By Taher G. Solaiman
The Moro Islamic Liberation Front (MILF) is willing to return to the negotiating table when there is "an international guarantee.”
This was the statement given to the media early this week by Ghazali Jaafar, MILF vice chair on political affairs.
“Any bilateral agreement between the government and the MILF should be made binding before the international community and should not be unilaterally disowned by one party,” Jaafar said referring to the aborted signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) on August 5, 2008 that led to series of heavy fightings between government troops and MILF guerrillas in various parts of Mindanao.
Jaafar also expressed the willingness of the MILF to sign and honor a document stating that the MILF will not secede from the Philippines even as he asserted that the government should honor its commitment to give the Bangsamoro people their homeland as stipulated in the MOA-AD.
He identified the European Union (EU) as a possible guarantor in the resumption of the peace talks between the GRP and the MILF.
He also could not help but expressed his pessimism that the MILF cannot get domestic relief from this government.
Thursday, October 30, 2008
Wednesday, October 29, 2008
NEWS: Moro groups lobby the UN Secretary General for Right to Self-Determination
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YOUTH GROUP SEEKS UN INTERVENTION ON MINDANAO SITUATION
Believing that "the situation in Mindanao is now ripe for the direct interventions of the UN peace keeping force to stall the continuing carnage in this Island," the United Youth for Peace and Development, Inc. (UNYPAD) is now seeking the intervention and support of the UN. We are publishing here the letter of the UNYPAD to His Excellency Ban Ki-Moon, the UN Secretary General. Here is the text of the letter:
October 28, 2008
HIS EXCELLENCY BAN KI-MOON
UN Secretary General
The United Nations
Dear His Excellency:
The aborted signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) on August 5, 2008 at Putrajaya, Malaysia, which a paradigm and framework for the negotiation of the GRP-MILF Comprehensive Agreement Compact, represents a collective people’s failure to seize an opportunity for a just, lasting and comprehensive political solution to the four decades old armed conflict and the Bangsamoro problem in the South of the Philippines. The MOA-AD could have been a breakthrough towards the attainment of the long-held aspirations of the Bangsamoro people for freedom and self-determination, which have longed eluded them as a free and sovereign people at the times of conquest and colonization.
Moreover, the MOA-AD suffered great setback when the Supreme Court, through the prodding of oligarchs and warlords particularly the local politicians representing various vested interests in Mindanao who opposed the MOA-AD based mainly on prejudice, hatred and bigotry against the Bangsamoro people issued a Temporary Restraining Order (TRO) and consequently declared it unconstitutional, which contravened the commitment of the Parties (GRP-MILF) to open up “new formulas” in the search for a negotiated political solution to the armed conflict and the Bangsamoro problem. This aborted signing of the MOA-AD triggered a volatile tension in Mindanao that saw the escalation of a renewed armed conflict that very much threatened the peace process, security and stability since last August of this year
The high hopes on the peace process, of freeing Mindanao from the bondage of fratricidal war are virtually snatched away, as the aborted signing of the document has caused deep frustration among the MILF commanders who have waited for long for a positive result in the peace negotiations including the civilian populations who are embroidered in the conflict areas which have ever since yearned for peace in their communities. Sadly, the conflict in Mindanao has resulted to horizontal violence, killing and maiming of innocent civilians, the destruction of their properties, which include burning of their houses and the heavy displacement it has caused to them. The armed conflict has now displaced more than 500,000 civilians who are presently languishing in makeshift shelters, mostly made up of unfortified tents and burrows, in various evacuation centers. Mindanao is now suffering from a very serious humanitarian crisis and carrying the heaviest costs of the armed conflict.
At present, the military campaign being launched by the Armed Forces of the Philippines (AFP continued without let up with heavy use of air and ground firepower not only targeting the MILF Forces but it has pounded heavily on the Moro civilian communities in Lanao Norte, Lanao Sur, North Cotabato, Maguindanao, Shariff Kabunsuan and Sarangani provinces in Central Mindanao. Hence, it seriously destroyed the foundation of the peace and development, not to speak of foregone investments in the Mindanao, South of the Philippines. Thus, we, the members of United Youth for Peace and Development (UNYPAD), a broad coalition of peace and development advocates in the Philippines, are exerting all our efforts to call on the government to set aside its vested interests, resist any political pressures and continue to find a viable formula in order to come up with a negotiated political settlement that will finally address the centuries-old Mindanao armed conflict and the Bangsamoro problem.
UNYPAD believes that, through your influential and direct intervention in the Mindanao peace process, you could help us propel the peace process forward. It behooves upon you to listen to the plaints of widows and orphans and the cries of people longing for peace that they may fully celebrate their human security which is free from fears and dangers. It is on this note that we respectfully request your intervention and support as chief of the most coveted position of the United Nations. The situation in Mindanao is now ripe for the direct interventions of the UN peace keeping force to stall the continuing carnage in this Island. Knowing your uncompromising adherence to the universality of human rights, we are very confident that you will help us in our efforts to put an end to this seemingly genocidal war in Mindanao.
Thank you and more power to you and your peers.
Sincerely,
(Sgd.) RAHIB L. KUDTO
National President
(Sgd.) ANWAR A. UPAHM
Nat’l Vice President for External Affairs
(Sgd.) BADRUDIN T. ABAS
Nat’l Vice President for Internal Affairs
(Sgd.) MAHDIE C. AMELLA
Secretary General
(Sgd.) ANWAR Z. SALUWANG
Deputy Secretary General for Finance
(Sgd.) TAHER G. SOLAIMAN
Deputy Secretary General for Administration
October 28, 2008
HIS EXCELLENCY BAN KI-MOON
UN Secretary General
The United Nations
Dear His Excellency:
The aborted signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) on August 5, 2008 at Putrajaya, Malaysia, which a paradigm and framework for the negotiation of the GRP-MILF Comprehensive Agreement Compact, represents a collective people’s failure to seize an opportunity for a just, lasting and comprehensive political solution to the four decades old armed conflict and the Bangsamoro problem in the South of the Philippines. The MOA-AD could have been a breakthrough towards the attainment of the long-held aspirations of the Bangsamoro people for freedom and self-determination, which have longed eluded them as a free and sovereign people at the times of conquest and colonization.
Moreover, the MOA-AD suffered great setback when the Supreme Court, through the prodding of oligarchs and warlords particularly the local politicians representing various vested interests in Mindanao who opposed the MOA-AD based mainly on prejudice, hatred and bigotry against the Bangsamoro people issued a Temporary Restraining Order (TRO) and consequently declared it unconstitutional, which contravened the commitment of the Parties (GRP-MILF) to open up “new formulas” in the search for a negotiated political solution to the armed conflict and the Bangsamoro problem. This aborted signing of the MOA-AD triggered a volatile tension in Mindanao that saw the escalation of a renewed armed conflict that very much threatened the peace process, security and stability since last August of this year
The high hopes on the peace process, of freeing Mindanao from the bondage of fratricidal war are virtually snatched away, as the aborted signing of the document has caused deep frustration among the MILF commanders who have waited for long for a positive result in the peace negotiations including the civilian populations who are embroidered in the conflict areas which have ever since yearned for peace in their communities. Sadly, the conflict in Mindanao has resulted to horizontal violence, killing and maiming of innocent civilians, the destruction of their properties, which include burning of their houses and the heavy displacement it has caused to them. The armed conflict has now displaced more than 500,000 civilians who are presently languishing in makeshift shelters, mostly made up of unfortified tents and burrows, in various evacuation centers. Mindanao is now suffering from a very serious humanitarian crisis and carrying the heaviest costs of the armed conflict.
At present, the military campaign being launched by the Armed Forces of the Philippines (AFP continued without let up with heavy use of air and ground firepower not only targeting the MILF Forces but it has pounded heavily on the Moro civilian communities in Lanao Norte, Lanao Sur, North Cotabato, Maguindanao, Shariff Kabunsuan and Sarangani provinces in Central Mindanao. Hence, it seriously destroyed the foundation of the peace and development, not to speak of foregone investments in the Mindanao, South of the Philippines. Thus, we, the members of United Youth for Peace and Development (UNYPAD), a broad coalition of peace and development advocates in the Philippines, are exerting all our efforts to call on the government to set aside its vested interests, resist any political pressures and continue to find a viable formula in order to come up with a negotiated political settlement that will finally address the centuries-old Mindanao armed conflict and the Bangsamoro problem.
UNYPAD believes that, through your influential and direct intervention in the Mindanao peace process, you could help us propel the peace process forward. It behooves upon you to listen to the plaints of widows and orphans and the cries of people longing for peace that they may fully celebrate their human security which is free from fears and dangers. It is on this note that we respectfully request your intervention and support as chief of the most coveted position of the United Nations. The situation in Mindanao is now ripe for the direct interventions of the UN peace keeping force to stall the continuing carnage in this Island. Knowing your uncompromising adherence to the universality of human rights, we are very confident that you will help us in our efforts to put an end to this seemingly genocidal war in Mindanao.
Thank you and more power to you and your peers.
Sincerely,
(Sgd.) RAHIB L. KUDTO
National President
(Sgd.) ANWAR A. UPAHM
Nat’l Vice President for External Affairs
(Sgd.) BADRUDIN T. ABAS
Nat’l Vice President for Internal Affairs
(Sgd.) MAHDIE C. AMELLA
Secretary General
(Sgd.) ANWAR Z. SALUWANG
Deputy Secretary General for Finance
(Sgd.) TAHER G. SOLAIMAN
Deputy Secretary General for Administration
INITIAL FINDINGS OF THE NATIONAL INTERFAITH HUMANITARIAN MISSION TO NORTH COTABATO AND MAGUINDANAO
The situation in North Cotabato and Maguindanao has deteriorated since renewed fighting between government forces and the Moro Islamic Liberation Front (MILF) broke out in Aleosan and Midsayap, North Cotabato last Aug. 8.
The Arroyo administration would have the public believe that the renewed skirmishes in North Cotabato broke out following the Supreme Court’s issuance of a temporary restraining order on the signing of the Memorandum of Agreement on Ancestral Domain (MoA-AD) between the Philippine government and the MILF, which was scheduled on Aug. 5.
But based on a radio news report, there had been an encounter in Sitio Maligaya, Brgy. Malamote in Kabacan as early as June 30. This was followed by another firefight the next day in Sitio Tubak, Brgy. Pagangan in Aleosan, in which forces belonging to the MILF’s 105th Brigade under Kato clashed with AFP troops.
Before these incidents, there was already massive military deployment to North Cotabato, purportedly to secure the province for the Autonomous Region in Muslim Mindanao (ARMM) elections on Aug. 11.
These clashes led civilians to evacuate to Brgy. Bagolibas in Aleosan and Brgys. Bualan and Nalapaan in Pikit.
Later in July, some of the houses in Brgy. Bual were burned by armed men while a number of farm animals in Brgy. Bagolibas were stolen.
More massive house burnings took place on Aug. 2, in which a total of 84 homes were razed to the ground. Fifty-one of these were in Brgy Bagolibas, 26 were in Sitio Puypuyon, Brgy. Dualing, and seven were in Sitio Taguan, Brgy. San Mateo – all in Aleosan. The government claimed these torchings were perpetrated by MILF fighters led by Kato.
Military offensives intensified following the Aug. 8 implementation of Oplan Ultimatum and military positionings in Pikit, Aleosan, and Midsayap; as well as the dissolution of the government peace panel in the negotiations with the MILF.
Aerial bombings were used with great frequency in North Cotabato. In a statement, the Philippine Air Force (PAF) said that never before have they conducted air strikes as intense as what is now being done in the province.
While the government claims that these offensives are directed against Kato and his group, civilians have not been spared from the effects of the military’s attacks; in fact, civilians have been among the targets. They have suffered various human rights abuses, ranging from violations of the right to life to violations of economic, social and cultural rights.
The AFP’s offensives have led to mass evacuations. In the evacuation centers, the displaced persons suffer from inadequate facilities. Most of them have set up tents in whatever public place available. With heavy rains and flooding now common at this time of year, many child evacuees are sick with cough, cold, fever, and diarrhea. A number of evacuees have died of disease. There is also the trauma experienced by the evacuees, particularly the children.
The sufferings of the evacuees are compounded by the fact that even the “evacuation centers” are not spared from attacks by the military.
The local government units (LGUs) have virtually lost control of the situation as it is now the military which lords it over the areas affected by the fighting. Barangay officials seeking to help the evacuees are being threatened by the AFP.
Meanwhile, Solicitor-General Agnes Devenadera has said in a press interview that her office cannot sue the soldiers involved in the aerial bombings.
While fighting in North Cotabato continues, the armed confrontations are also spreading toward Maguindanao, leading to more and more displacement of civilians. There is an increasing number of evacuees in Maguinanao province.
In Datu Piang, Maguindanao alone, based on data from the Department of Social Welfare and Development (DSWD), there are 9,800 family heads with a total of 50,012 dependents as of Oct. 2.
The continuously growing number of evacuees paints a picture of what is now a humanitarian crisis. To say that government support for the evacuees is insufficient is an understatement. LGUs are forced to rely on assistance from various non-government organizations (NGOs) and local and international aid agencies.
Many of the evacuees have been away from their homes for as long as three months, and three months is already a long time for languishing in evacuation centers. But from all indications, their sufferings are not going to end soon. Some local officials believe that if the offensives do not stop, families be in evacuation centers well into the new year.
NATIONAL INTERFAITH HUMANITARIAN MISSION
On Oct. 22-23, various groups conducted a National Interfaith Humanitarian Mission (NIHM) to Pikit, North Cotabato and Datu Piang, Maguindanao. The NIHM conducted human rights documentation, psycho-social and medical treatment, and relief operations for evacuees in these two municipalities.
The NIHM was composed of human rights groups, relief workers, church-based groups, doctors, nurses, students, business groups, human rights advocates, peace advocates and various cause-oriented groups.
1.Human Rights Documentation
The NIHM documented, through direct testimonies from victims and witnesses, cases of forced evacuation, indiscriminate bombings, strafing, torture, destruction of property and livelihood, divestment of property, harassment, illegal arrest and detention and possible extra-judicial killing of a civilian.
At around 9 a.m. on Oct. 21, while harvesting coconuts with his sons from their farm in Sitio Pamalian, Brgy. Dapiawan, Datu Saudi Ampatuan, Maguindanao, Esmael Adam noticed several soldiers on a road leading to their sitio. He sent Walid to tell his wife to leave for the nearest evacuation center along with their other children. He also asked the other son to take the carabao to a safe place. The soldiers started firing before the wife and the five children she took along could run to a safe distance. (Their two oldest children were already staying at the evacuation center at that time.) They traveled across the river by holding on to the banks until they reached the Balubugan Dike in Brgy. Pagatin, Mamasapano. One of the children was almost hit by a bullet during their escape. They proceeded to the Mahad Buayan evacuation center, also in Brgy. Dapiawan. After a few hours, one of the sons arrived at the same evacuation center, pale and stuttering. When asked where his father was, he said Esmael had gone back to the house to check on them. Two days went by without Esmael showing up at the evacuation center. On Oct. 23, the wife received information that neighbors had seen Esmael being tortured and killed by soldiers. They have been barred by soldiers from claiming his body. The relatives tried to recover Esmael’s body so that they can bury him decently but the soldiers refused them access to the area.
On Oct. 15, at midnight, soldiers knocked violently on the door of a house in Brgy. Nalapaan, Pikit which had been serving as an evacuation center. They threatened to strafe the house if the occupants failed to open the door within five minutes. The owner of the house opened the door, whereupon the soldiers, who were carrying bolos, ordered the occupants to lie on the floor face down and beat them up, even stepping on the heads of some of them. The women and children were separated from the men and locked up in a room. The soldiers asked the civilians whether there was anyone upstairs, to which they received a negative answer. They then dragged Salasal’s wife upstairs, where they found Rakman Suleik hiding in the ceiling. They ordered him to come down, dragged downstairs and kicked him as he descended, causing him to fall. His son, 17-year-old Samsudin, was beaten up. The mother of the house owner pleaded to the soldiers not to hurt the civilians, whereupon they inserted a flashlight into her mouth. The soldiers took the Suleiks away and continued beating them up near another evacuation center, where their hands were tied with a rope. After a while, they were brought to the municipal police office in Aleosan, where Rakman learned for the first time that there was a case against him. He is still detained and there is no information on whether or not he has been slapped with any charges. His 17-year old son, Samsudin, was released on October 18.
On Sept. 8, at around 9-10 a.m., Mohalidin Mandi and his neighbors, including a number of children, were evacuating from Brgy. Tee, Datu Piang, Maguindanao as a fighter plane was indiscriminately dropping bombs in the area. They were in two boats, with one boat carrying the children. Because of the children’s seating arrangement, the boat that was carrying them ran the risk of capsizing, so they stopped for a while and alighted to switch places. The plane dropped a bomb near the children, killing six of them and injuring four others. Mandi’s wife – who was five months pregnant – and father-in-law were also hit and killed, while his son Jamalubin was among the wounded. As he was carrying the bodies to the street, soldiers threatened to kill him and only pleas from civilians prevented the soldiers from doing so. After he had gathered the children’s bodies, he made his way back to the river to carry the remains of his wife and father-in-law. The soldiers gave him 30 minutes to do so, after which they would shoot him. He was only able to get his wife’s body; he left behind that of his father-in-law out of fear that he would be shot. His father-in-law’s body was gathered only in the afternoon of the next day.
These are just a few of the incidents of human rights violations documented by the NIHM in Pikit, North Cotabato and Datu Piang, Maguindanao. There have been deaths due to strafing and aerial bombing. Those who have been “fortunate” to survive these attacks have suffered threats and intimidation, torture, abductions, illegal searches and arrests, as well as divestment and destruction of property.
None of the victims of house-burnings who were interviewed by the human rights documentation teams pointed to the MILF as the perpetrators.
1.Psycho-social Treatment
As a result of the military’s offensives, many children among the evacuees are suffering from trauma – manifested among other things in restlessness and the disruption of sleeping patterns.
The children were asked to share their experiences through drawings, sharing, and role-playing. Most of the drawings were of fighter planes dropping bombs on houses. The children 7-9 years old shared a common observation that the presence of soldiers means “there will be war,” while those 10-12 years of age expressed a common fear of guns and are afraid of going back to their communities.
The children feel fear and/or hatred toward soldiers.
The psycho-social activity served a total of 214 children, 131 of whom are in Pikit and 83 of whom are in Datu Piang. Nine of the children were identified for follow-up.
1.Medical Treatment
The NIHM notes the dire conditions in the evacuation centers the strain this puts on the health of the evacuees.
The medical teams rendered free health services to 192 patients in both areas. Of these, 118 were in Datu Piang and 74 were in Pikit.
About 2/3 of the patients are female and majority of them are in their reproductive age (18-45 years old). Also, about 1/3 of the patients are children.
Various complaints were heard by the doctors during the consultation. In both areas, about 1/3 of the patients were complaining of cough and colds, headaches and fever. Most of the children were also complaining of cough and colds, fever and skin itchiness and infections while most of the adult patients were complaining of headaches, dizziness, difficulty of sleeping, and abdominal pains. Also, in both areas, children were suffering from toothaches and diarrhea.
During the consultations, about 1/3 of the total number of patients were diagnosed to have upper respiratory tract infection (URTI). Tension headache and insomnia were also noted in both areas.
In Pikit, some adult patients were diagnosed to have hypertension and arthritis while in Datu Piang, most of them were suffering from urinary tract infection and abdominal colic. Children in both areas were also having diarrhea and skin infections.
1.Relief
The National Interafaith Humanitarian Mission conducted a relief drive and many organizations and institutions responded and helped in the actual delivery of relief during the mission. Two relief teams were sent to both areas, serving a total of 1,749 evacuees. There were two waves of relief activities in Datu Piang: the first one, conducted in Pikit, Midsayap and Aleosan on September 29-30 had 766 beneficiaries, while the second wave, conducted in Brgy. Tee, and Poblacion in Datu Piang and Batulawan in Pikit on October 22 had 983 beneficiaries.
CONCLUSIONS
The military offensives in North Cotabato and Maguindanao are carried out under the pretext of pursuit operations against Kato and his group, but these in reality fall within the context of an all-out war. The policy of “disarmament, demobilization and rehabilitation” (DDR) which is now being carried out by the government shuts the door to peace and leaves all-out war as the main option. The so-called pursuit operations and “surgical operations” being conducted in North Cotabato and Maguindanao are characterized by the excessive use of firepower mainly against the civilian populace.
No military personnel have been called to account for the atrocities against human rights. The military’s tactic has invariably been to divert the blame for atrocities on other groups.
The situation in the two provinces continues to deteriorate and has reached the proportions of a humanitarian crisis. As yet, there appears to be no end in sight to the miseries of those who have borne the brunt of the fighting.
RECOMMENDATIONS
In view of these, the NIHM thus puts forward the following recommendations:
1. that the government immediately put a stop to military offensives and allow the evacuees to return home;
2. that the issues being blamed as the reason for the escalating conflict be instead addressed in the proper forum, in particular the Coordinating Committee for the Cessation of Hostilities (CCCH);
3. that human rights violations be investigated and their perpetrators be made accountable; an independent probe can also be undertaken to fully take into account the wide range of human rights abuses that have so far taken place since renewed fighting broke out;
4. that the victims of human rights violations be indemnified and assisted in their rehabilitation; and
5. that the peace negotiations between the government and the MILF be resumed.
The NIHM will publish a full report on its findings in North Cotabato and Maguindanao and submit these to relevant government agencies as well as international bodies.
Participating Organizations: Bagong Alyansang Makabayan, Bayan Muna, Gabriela Women’s Party, Gabriela, Karapatan, Kawagib-Moro Human Rights, Suara Bangsamoro, Liga ng Kabataang Moro, Initiatives for Peace in Mindanao, Kalumaran, Health Action for Human Rights, Bangsamoro Medical Society, Ecumenical Mission for Peace and Development, National Council of Churches in the Philippines, Southeast Mindanao Ecumenical Council, Cotabato Regional Ecumenical Council, Children’s Rehabilitation Center-Southern Mindanao, Kabiba Alliance for Children’s Concern, Center for Women’s Resource, Alpha-Sigma Phi – CCSPC Chapter, The Torch Publication – CCSPC, Moro Youth Religious Organization, Assumption College of Davao-Social Worker Students, Notre Dame University Peace Center, Notre Dame University College Of Nursing, Notre Dame School of Dulawan, United Youth for Peace and Development, Lay Forum Philippines, United Methodist Church – Mindanao Philippines Annual Conference, Episcopal Diocese for Southern Philippines, United Church of Christ in the Philippines – Southern Mindanao District Conference, Holy Cross of Davao College– Social Work Students.
The Arroyo administration would have the public believe that the renewed skirmishes in North Cotabato broke out following the Supreme Court’s issuance of a temporary restraining order on the signing of the Memorandum of Agreement on Ancestral Domain (MoA-AD) between the Philippine government and the MILF, which was scheduled on Aug. 5.
But based on a radio news report, there had been an encounter in Sitio Maligaya, Brgy. Malamote in Kabacan as early as June 30. This was followed by another firefight the next day in Sitio Tubak, Brgy. Pagangan in Aleosan, in which forces belonging to the MILF’s 105th Brigade under Kato clashed with AFP troops.
Before these incidents, there was already massive military deployment to North Cotabato, purportedly to secure the province for the Autonomous Region in Muslim Mindanao (ARMM) elections on Aug. 11.
These clashes led civilians to evacuate to Brgy. Bagolibas in Aleosan and Brgys. Bualan and Nalapaan in Pikit.
Later in July, some of the houses in Brgy. Bual were burned by armed men while a number of farm animals in Brgy. Bagolibas were stolen.
More massive house burnings took place on Aug. 2, in which a total of 84 homes were razed to the ground. Fifty-one of these were in Brgy Bagolibas, 26 were in Sitio Puypuyon, Brgy. Dualing, and seven were in Sitio Taguan, Brgy. San Mateo – all in Aleosan. The government claimed these torchings were perpetrated by MILF fighters led by Kato.
Military offensives intensified following the Aug. 8 implementation of Oplan Ultimatum and military positionings in Pikit, Aleosan, and Midsayap; as well as the dissolution of the government peace panel in the negotiations with the MILF.
Aerial bombings were used with great frequency in North Cotabato. In a statement, the Philippine Air Force (PAF) said that never before have they conducted air strikes as intense as what is now being done in the province.
While the government claims that these offensives are directed against Kato and his group, civilians have not been spared from the effects of the military’s attacks; in fact, civilians have been among the targets. They have suffered various human rights abuses, ranging from violations of the right to life to violations of economic, social and cultural rights.
The AFP’s offensives have led to mass evacuations. In the evacuation centers, the displaced persons suffer from inadequate facilities. Most of them have set up tents in whatever public place available. With heavy rains and flooding now common at this time of year, many child evacuees are sick with cough, cold, fever, and diarrhea. A number of evacuees have died of disease. There is also the trauma experienced by the evacuees, particularly the children.
The sufferings of the evacuees are compounded by the fact that even the “evacuation centers” are not spared from attacks by the military.
The local government units (LGUs) have virtually lost control of the situation as it is now the military which lords it over the areas affected by the fighting. Barangay officials seeking to help the evacuees are being threatened by the AFP.
Meanwhile, Solicitor-General Agnes Devenadera has said in a press interview that her office cannot sue the soldiers involved in the aerial bombings.
While fighting in North Cotabato continues, the armed confrontations are also spreading toward Maguindanao, leading to more and more displacement of civilians. There is an increasing number of evacuees in Maguinanao province.
In Datu Piang, Maguindanao alone, based on data from the Department of Social Welfare and Development (DSWD), there are 9,800 family heads with a total of 50,012 dependents as of Oct. 2.
The continuously growing number of evacuees paints a picture of what is now a humanitarian crisis. To say that government support for the evacuees is insufficient is an understatement. LGUs are forced to rely on assistance from various non-government organizations (NGOs) and local and international aid agencies.
Many of the evacuees have been away from their homes for as long as three months, and three months is already a long time for languishing in evacuation centers. But from all indications, their sufferings are not going to end soon. Some local officials believe that if the offensives do not stop, families be in evacuation centers well into the new year.
NATIONAL INTERFAITH HUMANITARIAN MISSION
On Oct. 22-23, various groups conducted a National Interfaith Humanitarian Mission (NIHM) to Pikit, North Cotabato and Datu Piang, Maguindanao. The NIHM conducted human rights documentation, psycho-social and medical treatment, and relief operations for evacuees in these two municipalities.
The NIHM was composed of human rights groups, relief workers, church-based groups, doctors, nurses, students, business groups, human rights advocates, peace advocates and various cause-oriented groups.
1.Human Rights Documentation
The NIHM documented, through direct testimonies from victims and witnesses, cases of forced evacuation, indiscriminate bombings, strafing, torture, destruction of property and livelihood, divestment of property, harassment, illegal arrest and detention and possible extra-judicial killing of a civilian.
At around 9 a.m. on Oct. 21, while harvesting coconuts with his sons from their farm in Sitio Pamalian, Brgy. Dapiawan, Datu Saudi Ampatuan, Maguindanao, Esmael Adam noticed several soldiers on a road leading to their sitio. He sent Walid to tell his wife to leave for the nearest evacuation center along with their other children. He also asked the other son to take the carabao to a safe place. The soldiers started firing before the wife and the five children she took along could run to a safe distance. (Their two oldest children were already staying at the evacuation center at that time.) They traveled across the river by holding on to the banks until they reached the Balubugan Dike in Brgy. Pagatin, Mamasapano. One of the children was almost hit by a bullet during their escape. They proceeded to the Mahad Buayan evacuation center, also in Brgy. Dapiawan. After a few hours, one of the sons arrived at the same evacuation center, pale and stuttering. When asked where his father was, he said Esmael had gone back to the house to check on them. Two days went by without Esmael showing up at the evacuation center. On Oct. 23, the wife received information that neighbors had seen Esmael being tortured and killed by soldiers. They have been barred by soldiers from claiming his body. The relatives tried to recover Esmael’s body so that they can bury him decently but the soldiers refused them access to the area.
On Oct. 15, at midnight, soldiers knocked violently on the door of a house in Brgy. Nalapaan, Pikit which had been serving as an evacuation center. They threatened to strafe the house if the occupants failed to open the door within five minutes. The owner of the house opened the door, whereupon the soldiers, who were carrying bolos, ordered the occupants to lie on the floor face down and beat them up, even stepping on the heads of some of them. The women and children were separated from the men and locked up in a room. The soldiers asked the civilians whether there was anyone upstairs, to which they received a negative answer. They then dragged Salasal’s wife upstairs, where they found Rakman Suleik hiding in the ceiling. They ordered him to come down, dragged downstairs and kicked him as he descended, causing him to fall. His son, 17-year-old Samsudin, was beaten up. The mother of the house owner pleaded to the soldiers not to hurt the civilians, whereupon they inserted a flashlight into her mouth. The soldiers took the Suleiks away and continued beating them up near another evacuation center, where their hands were tied with a rope. After a while, they were brought to the municipal police office in Aleosan, where Rakman learned for the first time that there was a case against him. He is still detained and there is no information on whether or not he has been slapped with any charges. His 17-year old son, Samsudin, was released on October 18.
On Sept. 8, at around 9-10 a.m., Mohalidin Mandi and his neighbors, including a number of children, were evacuating from Brgy. Tee, Datu Piang, Maguindanao as a fighter plane was indiscriminately dropping bombs in the area. They were in two boats, with one boat carrying the children. Because of the children’s seating arrangement, the boat that was carrying them ran the risk of capsizing, so they stopped for a while and alighted to switch places. The plane dropped a bomb near the children, killing six of them and injuring four others. Mandi’s wife – who was five months pregnant – and father-in-law were also hit and killed, while his son Jamalubin was among the wounded. As he was carrying the bodies to the street, soldiers threatened to kill him and only pleas from civilians prevented the soldiers from doing so. After he had gathered the children’s bodies, he made his way back to the river to carry the remains of his wife and father-in-law. The soldiers gave him 30 minutes to do so, after which they would shoot him. He was only able to get his wife’s body; he left behind that of his father-in-law out of fear that he would be shot. His father-in-law’s body was gathered only in the afternoon of the next day.
These are just a few of the incidents of human rights violations documented by the NIHM in Pikit, North Cotabato and Datu Piang, Maguindanao. There have been deaths due to strafing and aerial bombing. Those who have been “fortunate” to survive these attacks have suffered threats and intimidation, torture, abductions, illegal searches and arrests, as well as divestment and destruction of property.
None of the victims of house-burnings who were interviewed by the human rights documentation teams pointed to the MILF as the perpetrators.
1.Psycho-social Treatment
As a result of the military’s offensives, many children among the evacuees are suffering from trauma – manifested among other things in restlessness and the disruption of sleeping patterns.
The children were asked to share their experiences through drawings, sharing, and role-playing. Most of the drawings were of fighter planes dropping bombs on houses. The children 7-9 years old shared a common observation that the presence of soldiers means “there will be war,” while those 10-12 years of age expressed a common fear of guns and are afraid of going back to their communities.
The children feel fear and/or hatred toward soldiers.
The psycho-social activity served a total of 214 children, 131 of whom are in Pikit and 83 of whom are in Datu Piang. Nine of the children were identified for follow-up.
1.Medical Treatment
The NIHM notes the dire conditions in the evacuation centers the strain this puts on the health of the evacuees.
The medical teams rendered free health services to 192 patients in both areas. Of these, 118 were in Datu Piang and 74 were in Pikit.
About 2/3 of the patients are female and majority of them are in their reproductive age (18-45 years old). Also, about 1/3 of the patients are children.
Various complaints were heard by the doctors during the consultation. In both areas, about 1/3 of the patients were complaining of cough and colds, headaches and fever. Most of the children were also complaining of cough and colds, fever and skin itchiness and infections while most of the adult patients were complaining of headaches, dizziness, difficulty of sleeping, and abdominal pains. Also, in both areas, children were suffering from toothaches and diarrhea.
During the consultations, about 1/3 of the total number of patients were diagnosed to have upper respiratory tract infection (URTI). Tension headache and insomnia were also noted in both areas.
In Pikit, some adult patients were diagnosed to have hypertension and arthritis while in Datu Piang, most of them were suffering from urinary tract infection and abdominal colic. Children in both areas were also having diarrhea and skin infections.
1.Relief
The National Interafaith Humanitarian Mission conducted a relief drive and many organizations and institutions responded and helped in the actual delivery of relief during the mission. Two relief teams were sent to both areas, serving a total of 1,749 evacuees. There were two waves of relief activities in Datu Piang: the first one, conducted in Pikit, Midsayap and Aleosan on September 29-30 had 766 beneficiaries, while the second wave, conducted in Brgy. Tee, and Poblacion in Datu Piang and Batulawan in Pikit on October 22 had 983 beneficiaries.
CONCLUSIONS
The military offensives in North Cotabato and Maguindanao are carried out under the pretext of pursuit operations against Kato and his group, but these in reality fall within the context of an all-out war. The policy of “disarmament, demobilization and rehabilitation” (DDR) which is now being carried out by the government shuts the door to peace and leaves all-out war as the main option. The so-called pursuit operations and “surgical operations” being conducted in North Cotabato and Maguindanao are characterized by the excessive use of firepower mainly against the civilian populace.
No military personnel have been called to account for the atrocities against human rights. The military’s tactic has invariably been to divert the blame for atrocities on other groups.
The situation in the two provinces continues to deteriorate and has reached the proportions of a humanitarian crisis. As yet, there appears to be no end in sight to the miseries of those who have borne the brunt of the fighting.
RECOMMENDATIONS
In view of these, the NIHM thus puts forward the following recommendations:
1. that the government immediately put a stop to military offensives and allow the evacuees to return home;
2. that the issues being blamed as the reason for the escalating conflict be instead addressed in the proper forum, in particular the Coordinating Committee for the Cessation of Hostilities (CCCH);
3. that human rights violations be investigated and their perpetrators be made accountable; an independent probe can also be undertaken to fully take into account the wide range of human rights abuses that have so far taken place since renewed fighting broke out;
4. that the victims of human rights violations be indemnified and assisted in their rehabilitation; and
5. that the peace negotiations between the government and the MILF be resumed.
The NIHM will publish a full report on its findings in North Cotabato and Maguindanao and submit these to relevant government agencies as well as international bodies.
Participating Organizations: Bagong Alyansang Makabayan, Bayan Muna, Gabriela Women’s Party, Gabriela, Karapatan, Kawagib-Moro Human Rights, Suara Bangsamoro, Liga ng Kabataang Moro, Initiatives for Peace in Mindanao, Kalumaran, Health Action for Human Rights, Bangsamoro Medical Society, Ecumenical Mission for Peace and Development, National Council of Churches in the Philippines, Southeast Mindanao Ecumenical Council, Cotabato Regional Ecumenical Council, Children’s Rehabilitation Center-Southern Mindanao, Kabiba Alliance for Children’s Concern, Center for Women’s Resource, Alpha-Sigma Phi – CCSPC Chapter, The Torch Publication – CCSPC, Moro Youth Religious Organization, Assumption College of Davao-Social Worker Students, Notre Dame University Peace Center, Notre Dame University College Of Nursing, Notre Dame School of Dulawan, United Youth for Peace and Development, Lay Forum Philippines, United Methodist Church – Mindanao Philippines Annual Conference, Episcopal Diocese for Southern Philippines, United Church of Christ in the Philippines – Southern Mindanao District Conference, Holy Cross of Davao College– Social Work Students.
Thursday, October 16, 2008
COMMENTARY: Initial Notes and Comments on the SC Decision on the MOA-AD
By Atty. Soliman M. Santos, Jr. (1)
Quezon City, 15 October 2008
These are initial notes based on the Supreme Court Public Information Office bulletin of October 14, 2008 titled “SC Declares MOA-AD Unconstitutional” and a quick scanning of the 87-page majority Decision of the same date penned by Associate Justice Conchita Carpio Morales based on an 8-7 vote declaring the MOA-AD “CONTRARY TO LAW AND THE CONSTITUTION.”(2) Those who joined her in the majority are Chief Justice Puno and Associate Justices Santiago, Carpio, Azcuna, Reyes, Quisumbing and Martinez, all of whom except the last two wrote separate concurring opinions. Those who voted to dismiss the petitions were Associate Justices Tinga, Nazario, Velasco, Nachura, De Castro, Brion and Corona, all of whom except the last wrote separate dissenting opinions. (All these separate opinions are not with me as of this writing.) Being initial notes, we limit ourselves to main points on the key thrusts of the Decision and their implications.
The aforesaid majority declaration is based on two substantive issues: [1] that the respondents GRP Peace Panel and Presidential Adviser on the Peace Process (PAPP) violating constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD; and [2] that the contents of the MOA-AD violate the Constitution and the laws. [p. 36] “MOA-AD” actually refers to the final draft of the “Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001.”
The Decision also finds “grave abuse of discretion” in respondents exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” which is (as far as amendments to the Constitution are concerned) a “usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves.” [p. 87] PAPP Esperon in particular was found to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated” (by EO 3, the Local Government Code, and IPRA) [p. 86].
The Decision, in dealing with the contents of the MOA-AD, summed it up this way: “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” [p. 86, underscoring and bold face in the original]
The effect of this ruling would appear to be to confine future peace negotiations with the MILF, and for that matter other rebel groups, “within the box” of existing provisions of the Constitution and national laws. The reported (by the SC PIO) pronouncements of the Chief Justice and others in the majority tend to reinforce this. CJ Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed… without crossing the parameters of powers marked in the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Associate Justice Carpio said that in negotiating the MOA-AD, the Executive branch “committed to amend the Constitution to conform to the MOA-AD.” These statements reflect a rather conservative judicial view of the MOA-AD negotiation effort that does not augur well for similar efforts.
The SC PIO bulletin says that the Decision “enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements.” There appears to be nothing as explicit as that in the Decision but that could be the effect. The Decision notes that the MOA-AD, as “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace” of 2001, “can be renegotiated or another one drawn up that could contain similar or significantly dissimilar [or drastic] provisions compared to the original.” [p. 84, see also p. 34] Precisely, because of this prospect of renegotiation of the MOA-AD “in another or in any form” to carry out the Ancestral Domain Aspect of the Tripoli Agreement on Peace of 2001, the Court was “minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.” [p. 34, underscoring and bold face in the original]
Are future peace negotiations now therefore necessarily confined “within the box” of existing provisions of the Constitution and national laws? Not necessarily. Because the Decision itself provides some opening for that, albeit with due regard to non-derogation of separation of powers, particularly the matter of constituent powers in proposing and adopting amendments to the Constitution. In the discussion in pp. 71-73, there are these guidelines: (underscoring and bold face in the original)
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. x x x
While the President does not possess constituent powers … she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.
x x x
From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
In other words, these guidelines do not necessarily preclude, but on the contrary inform, any subsequent effort to re-frame the GRP-MILF peace negotiations as constitutional negotiations – which they should be, in order to settle the relevant constitutional issues once and for all, otherwise the charge of unconstitutionality will always be raised when a better form of self-determination is sought for the Bangsamoro people in order to solve the Bangsamoro problem. The Decision, to its credit, does touch a bit [in p. 69] on peace-building and constitution-making by quoting from an American law journal: “Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up rules by which the new democracy will operate.”(3)
The SC PIO bulletin’s quote from the dissenting opinion of Justice Nazario is what to us is the right perspective on these negotiations: “In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”
The other major legal guideline for any subsequent effort is, of course, that on public consultation and the right to information. This brings us back to the substantive issues that were the basis for the Decision declaring the MOA-AD “contrary to law and the Constitution” as well as ruling the respondents to have “committed grave abuse of discretion.” These rulings are reconsiderable, i.e. can be the subject of a Motion for Reconsideration.
Whatever violation of constitutional and statutory provisions on public consultation and the right to information when respondents negotiated and later initialed the MOA-AD is not as sweeping or as grave as has been made to appear. The numerous documented consultation and information efforts by respondents (including in the local government units of most petitioners), even granting the consultation and information inadequacies during a process of difficult negotiation and hard bargaining, should be made clear on the record, at least for possible reconsideration of the “grave abuse of discretion” ruling. PAPP Esperon in particular is unfairly singled out to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated… “ [p. 86] But he just got into the job in June 2008! – at the tail end of the MOA-AD negotiation process of three years and eight months since 2005.
As for respondents supposedly exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” [p. 87], this interpretation of Paragraph 7 as a “guarantee” or “commitment” to the MILF “to amend the Constitution to conform to the MOA-AD” is highly debatable, to say the least. There is definitely no “usurpation of the constituent powers…” on the part of respondents. The respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP – along the lines in the above-quoted paragraphs of the Decision. As stated in the “Supplement to the Memorandum for Intervenors Consortium of Bangsamoro Civil Society and Bangsamoro Women Solidarity Forum, Inc.” dated 28 September 2008 in support of respondents [at pp. 47-48]:
Such needed constitutional amendments, as well as needed administrative action and new legislation, in pursuit of reforms aimed at addressing the root causes of the armed conflict, are well within the authority, mandate and parameters of the GRP Peace Panel to submit by way of recommendations to the Executive as a result of long discussions and eventual consensus at the negotiating table. Thereafter, the Executive may consider these for appropriate action by itself, or coordination with and referral to the Legislature which may then take the necessary legislative and constitutional processes.
As also argued in that CBCS-BWSF Supplement [at pp. 54, 78], Paragraph 7 under the Governance strand of the MOA-AD should not be seen negatively as “making the Constitution conform to the MOA” but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.
In the context of recommendatory amendments to the Constitution to address pursue reforms to aimed at addressing the root causes of the Moro armed struggle, it is unfair to the MOA-AD negotiation effort and the whole GRP-MILF peace negotiations to prematurely shoot down a mere preliminary (to a final) peace agreement just because the Decision finds that on its face, “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept [associative relationship] underlying them.” [p. 86] This early shooting down preempts and prejudices the whole peace process effort.
For the Decision to say that “the concept [of associative relationship] presupposes that the associated entity is a state and implies that the same is on its way to independence” [p. 87] is again highly debatable. There are states and there are states, including constituent states in a federal republic and associated states. But these said states are not sovereign independent states. There is nothing in the MOA-AD about a grant of independence to the Bangsamoro – even if they have good grounds for this (and maybe the Decision has just reinforced those grounds).
These questions of substantive constitutionality of the MOA-AD’s key provisions, as well as the numerous documented consultation and information efforts by respondents, were presented and discussed in the CBCS-BWSF Supplement [pp. 50-52, 56-79, also Annexes 3 & 4], even as these were not presented and discussed in the Memorandum of Office of the Solicitor General. Unfortunately, it appears that the Decision had not taken note of that CBCS-BWSF Supplement and its considerable set of Annexes, including especially information materials on the ancestral domain negotiations.
As we said, this is just an initial quick reading and commentary on some key thrusts in the Supreme Court Decision declaring the MOA-AD “contrary to law and the Constitution.” There is no doubt more to be done in terms of deeper and more thorough reading and study of the Decision, as well as the separate concurring and dissenting opinions, including their discussions of international law and indigenous peoples rights in relation to the peace negotiations. This is more than an academic exercise, for what really matters is its implications on the fate of the GRP-MILF peace negotiations, which is basically to say the fate of war and peace in Mindanao.
(1) Bicolano human rights lawyer, peace advocate, legal scholar; A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb); author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).
(2) The lead petition of “The Province of North Cotabato, et al. vs. The GRP Peace Panel, et al.” was filed on 23 July 2008 and docketed in the Supreme Court as G.R. No. 183591.
(3) Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int’l L. 663 (2006).
Quezon City, 15 October 2008
These are initial notes based on the Supreme Court Public Information Office bulletin of October 14, 2008 titled “SC Declares MOA-AD Unconstitutional” and a quick scanning of the 87-page majority Decision of the same date penned by Associate Justice Conchita Carpio Morales based on an 8-7 vote declaring the MOA-AD “CONTRARY TO LAW AND THE CONSTITUTION.”(2) Those who joined her in the majority are Chief Justice Puno and Associate Justices Santiago, Carpio, Azcuna, Reyes, Quisumbing and Martinez, all of whom except the last two wrote separate concurring opinions. Those who voted to dismiss the petitions were Associate Justices Tinga, Nazario, Velasco, Nachura, De Castro, Brion and Corona, all of whom except the last wrote separate dissenting opinions. (All these separate opinions are not with me as of this writing.) Being initial notes, we limit ourselves to main points on the key thrusts of the Decision and their implications.
The aforesaid majority declaration is based on two substantive issues: [1] that the respondents GRP Peace Panel and Presidential Adviser on the Peace Process (PAPP) violating constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD; and [2] that the contents of the MOA-AD violate the Constitution and the laws. [p. 36] “MOA-AD” actually refers to the final draft of the “Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001.”
The Decision also finds “grave abuse of discretion” in respondents exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” which is (as far as amendments to the Constitution are concerned) a “usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves.” [p. 87] PAPP Esperon in particular was found to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated” (by EO 3, the Local Government Code, and IPRA) [p. 86].
The Decision, in dealing with the contents of the MOA-AD, summed it up this way: “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” [p. 86, underscoring and bold face in the original]
The effect of this ruling would appear to be to confine future peace negotiations with the MILF, and for that matter other rebel groups, “within the box” of existing provisions of the Constitution and national laws. The reported (by the SC PIO) pronouncements of the Chief Justice and others in the majority tend to reinforce this. CJ Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed… without crossing the parameters of powers marked in the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Associate Justice Carpio said that in negotiating the MOA-AD, the Executive branch “committed to amend the Constitution to conform to the MOA-AD.” These statements reflect a rather conservative judicial view of the MOA-AD negotiation effort that does not augur well for similar efforts.
The SC PIO bulletin says that the Decision “enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements.” There appears to be nothing as explicit as that in the Decision but that could be the effect. The Decision notes that the MOA-AD, as “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace” of 2001, “can be renegotiated or another one drawn up that could contain similar or significantly dissimilar [or drastic] provisions compared to the original.” [p. 84, see also p. 34] Precisely, because of this prospect of renegotiation of the MOA-AD “in another or in any form” to carry out the Ancestral Domain Aspect of the Tripoli Agreement on Peace of 2001, the Court was “minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.” [p. 34, underscoring and bold face in the original]
Are future peace negotiations now therefore necessarily confined “within the box” of existing provisions of the Constitution and national laws? Not necessarily. Because the Decision itself provides some opening for that, albeit with due regard to non-derogation of separation of powers, particularly the matter of constituent powers in proposing and adopting amendments to the Constitution. In the discussion in pp. 71-73, there are these guidelines: (underscoring and bold face in the original)
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. x x x
While the President does not possess constituent powers … she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.
x x x
From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
In other words, these guidelines do not necessarily preclude, but on the contrary inform, any subsequent effort to re-frame the GRP-MILF peace negotiations as constitutional negotiations – which they should be, in order to settle the relevant constitutional issues once and for all, otherwise the charge of unconstitutionality will always be raised when a better form of self-determination is sought for the Bangsamoro people in order to solve the Bangsamoro problem. The Decision, to its credit, does touch a bit [in p. 69] on peace-building and constitution-making by quoting from an American law journal: “Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up rules by which the new democracy will operate.”(3)
The SC PIO bulletin’s quote from the dissenting opinion of Justice Nazario is what to us is the right perspective on these negotiations: “In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”
The other major legal guideline for any subsequent effort is, of course, that on public consultation and the right to information. This brings us back to the substantive issues that were the basis for the Decision declaring the MOA-AD “contrary to law and the Constitution” as well as ruling the respondents to have “committed grave abuse of discretion.” These rulings are reconsiderable, i.e. can be the subject of a Motion for Reconsideration.
Whatever violation of constitutional and statutory provisions on public consultation and the right to information when respondents negotiated and later initialed the MOA-AD is not as sweeping or as grave as has been made to appear. The numerous documented consultation and information efforts by respondents (including in the local government units of most petitioners), even granting the consultation and information inadequacies during a process of difficult negotiation and hard bargaining, should be made clear on the record, at least for possible reconsideration of the “grave abuse of discretion” ruling. PAPP Esperon in particular is unfairly singled out to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated… “ [p. 86] But he just got into the job in June 2008! – at the tail end of the MOA-AD negotiation process of three years and eight months since 2005.
As for respondents supposedly exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” [p. 87], this interpretation of Paragraph 7 as a “guarantee” or “commitment” to the MILF “to amend the Constitution to conform to the MOA-AD” is highly debatable, to say the least. There is definitely no “usurpation of the constituent powers…” on the part of respondents. The respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP – along the lines in the above-quoted paragraphs of the Decision. As stated in the “Supplement to the Memorandum for Intervenors Consortium of Bangsamoro Civil Society and Bangsamoro Women Solidarity Forum, Inc.” dated 28 September 2008 in support of respondents [at pp. 47-48]:
Such needed constitutional amendments, as well as needed administrative action and new legislation, in pursuit of reforms aimed at addressing the root causes of the armed conflict, are well within the authority, mandate and parameters of the GRP Peace Panel to submit by way of recommendations to the Executive as a result of long discussions and eventual consensus at the negotiating table. Thereafter, the Executive may consider these for appropriate action by itself, or coordination with and referral to the Legislature which may then take the necessary legislative and constitutional processes.
As also argued in that CBCS-BWSF Supplement [at pp. 54, 78], Paragraph 7 under the Governance strand of the MOA-AD should not be seen negatively as “making the Constitution conform to the MOA” but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.
In the context of recommendatory amendments to the Constitution to address pursue reforms to aimed at addressing the root causes of the Moro armed struggle, it is unfair to the MOA-AD negotiation effort and the whole GRP-MILF peace negotiations to prematurely shoot down a mere preliminary (to a final) peace agreement just because the Decision finds that on its face, “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept [associative relationship] underlying them.” [p. 86] This early shooting down preempts and prejudices the whole peace process effort.
For the Decision to say that “the concept [of associative relationship] presupposes that the associated entity is a state and implies that the same is on its way to independence” [p. 87] is again highly debatable. There are states and there are states, including constituent states in a federal republic and associated states. But these said states are not sovereign independent states. There is nothing in the MOA-AD about a grant of independence to the Bangsamoro – even if they have good grounds for this (and maybe the Decision has just reinforced those grounds).
These questions of substantive constitutionality of the MOA-AD’s key provisions, as well as the numerous documented consultation and information efforts by respondents, were presented and discussed in the CBCS-BWSF Supplement [pp. 50-52, 56-79, also Annexes 3 & 4], even as these were not presented and discussed in the Memorandum of Office of the Solicitor General. Unfortunately, it appears that the Decision had not taken note of that CBCS-BWSF Supplement and its considerable set of Annexes, including especially information materials on the ancestral domain negotiations.
As we said, this is just an initial quick reading and commentary on some key thrusts in the Supreme Court Decision declaring the MOA-AD “contrary to law and the Constitution.” There is no doubt more to be done in terms of deeper and more thorough reading and study of the Decision, as well as the separate concurring and dissenting opinions, including their discussions of international law and indigenous peoples rights in relation to the peace negotiations. This is more than an academic exercise, for what really matters is its implications on the fate of the GRP-MILF peace negotiations, which is basically to say the fate of war and peace in Mindanao.
(1) Bicolano human rights lawyer, peace advocate, legal scholar; A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb); author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).
(2) The lead petition of “The Province of North Cotabato, et al. vs. The GRP Peace Panel, et al.” was filed on 23 July 2008 and docketed in the Supreme Court as G.R. No. 183591.
(3) Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int’l L. 663 (2006).
Wednesday, October 15, 2008
COMMENTARY: SC decision on MOA-AD
By Kaka Mike
Peace to All!
The decision of the eight Supreme Court Justices on the Memorandum of Agreement on Ancestral Domain (MOA-AD) as unconstitutional is not at all surprising and is already expected. For no doubt the Supreme Court represents the mindset -- biases, prejudices and chauvinism against the Moro People by the majority of the Filipino people. These harsh feelings against the Moro Nation is being manifested and represented all through out from the local
government officials led by North Cotabato Vice Governor Manny Pinol to the Legislative led by Senator Mar Roxas and the eight Justices of the Supreme Court and their cohorts. In totality, these actuations is the real replica of the Philippine Government as a whole with regard to the inherent right of the Moro People for self-determination as enshrined both in domestic and international frameworks and which are actually part of the law of the land.
WHAT IS WORRISOME IS? It is the revelation that the "doctrine of separation of powers" among the three branches of the government (executive, legislative and judicial) is non-existent. Otherwise, the act of the legislative and judicial bodies in mingling and pre-empting a political issue which is under the jurisdiction of the Executive Branch is MORE UNCONSTITUTIONAL.
The next to be more dangerous in the future is that the Supreme Court decision will already be a precedent to any cases and be cited in any future case. It means that from now on the Supreme Court can now declare unconstitutional any plan or even individual or group thinking as unconstitutional. As Solicitor-General Devanadera in one of the TV interviews said: "How can the Supreme Court declare unconstitutional a matter which was not yet consummated?" So this is where the danger lies.
I just wonder if these Justices and ranking government officials who oppose the MOA-AD know what is "inherent right to self-determination of peoples" and "right of the minorities". Are they totally ignorant or just blinded by their self-interests?
COMMENTARY: PHILIPPINE GOVERNMENT LOSING ITS ARMED CAMPAIGN AGAINST THE BANGSAMORO?
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