1.9.09

Picture Documentary of IDP Rally

Picture Documentary:

State of the Bakwit (IDP) Address and Peace Convoy

July 23, 2009



A Muslim civic leader reads a prayer while behind him are members of Cotabato’s Catholic Church who likewise followed in reading a prayer.






Incumbent North Cotabato Provincial Governor Sacdalan giving his message of support for the IDP’s prayer rally.










Participants of the inter-faith multi-sectoral prayer rally held at the gym of the Notre Dame University of Cotabato City








Some of the IDPs along the Datu Saudi Ampatuan – Datu Piang Provincial Road. At least 2 dozen times, the convoy of rallyists were met by IDPs along the road. Everytime the convoy neared a cluster of IDP tents, IDPs came out on the highway and blocked the road for a few minutes to call the attention of the media contingent to their plight. At one point in Guindulungan, the IDPs managed to block the path of a convoy of military vehicles.



With the assistance of NGO support groups, the IDPs prepared placards that read “stop the war”, “safe return for IDPs”, “respect rights of IDPs”, “resume peace talks”, “rebuild homes destroyed by soldiers”.

11.9.08

Initial Findings: Deaths of Moro Children from Military Aerial Bombing



(WARNING: GRAPHIC PICTURES OF VICTIMS ATTACHED!)




I managed to interview one of the survivors today (September 10), a 13 year old boy, at the hospital. Multiple shrapnel wounds on both legs. Also proceeded to the place where the incident happened and managed to interview the boy's mother who, all in all, lost her husband and 5 of her children, the youngest being 2 years old. One of her children who died was pregnant.

The latest statements from the government military (AFP) say that the airplanes were fired at from the victims' boat and that the military was only retaliating. Here's the version of the civilian survivors and witnesses.

The Manungal family were on board two boats. They had just returned to their home in Barangay Tee, Municipality of Datu Piang, Maguindanao when they noticed that there was a lull in the military offensive and bombing.

However, once they saw planes and helicopters hovering again and bombs started to fall around their village, they hurriedly boarded the boats and made their way along the marsh towards the bank that was straddling the highway. Other residents in the village also boarded their own boats and thus a convoy of boats made their way to the safety of the highway. The Manungal boats were at the rear of the convoy.

When they were around 400 meters away from the bank of the marsh right next to the highway, they were forced to stop to prevent the boat from sinking. Besides the seven passengers (the father and 6 of his children), the front of the boat was also loaded with rice. At that point, helicopter were seen hovering overhead. Soon thereafter, another aircraft (a plane) shot a rocket at the boat which exploded around a meter from the boat. It was that rocket which led to the immediate deaths of the father and 4 of his children. The fifth one died at the town hospital. Only one child survived. The passengers of the other boat at the rear of the convoy of boats tried to rescue the passengers of the boat that got hit and brought them to the bank next to the highway.

The incident happened around 10a.m. There were people on the highway right beside the bank of the marsh who were witnessing the event as it was transpiring. Barangay officials and a member of the civilian militia tried to appeal to the military officials stationed along the bank to tell the air force men not to fire at the boats because on board were civilians trying to escape the military offensive. However, moments later, an order was overheard on the radio "birahin na yan" ("fire at them"). The witnesses along the highway said that it was impossible for the pilots or the military men on the highway not to notice that the passengers of the boats were civilians. Most of the victims were young and small children. Besides, the boats were only 200 meters away from the highway when they were fired upon.

Both the survivors and civilian witnesses say that there were no boats in the vicinity of the victims that were firing at the military aircrafts. This is to belie the military's claim that they were merely retaliating upon receiving fire from one of the boats in the convoy.

After we visited the mother to interview her, we proceeded to conduct an ocular inspection of the portion of the highway from which the place of incident could be clearly seen. However, we noticed the arrival of the military personnel at the house of the mother. When we inquired later on what the military men told her, she said they gave her P5thousand plus three bags of rice. A day earlier, they gave her P10 thousand.

Incidentally, the military initially claimed that it did not fire any ordinance or ammunition at the boats. But one of the attending physicians at the hospital where the survivor is confined said on TV tonight that his wounds are shrapnel wounds, meaning, it came from military ordinance.

On the way back to Cotabato City, we passed by several refugee encampments. It seems the civilians have occupied whatever public place available. From the very nature of their temporary structures, it does not seem to offer any protection from the elements. It is now monsoon season and there's heavy rain everyday, particularly late in the afternoon and in the evening.

I inquired if and how they are able to observe fasting during Ramadan while staying in the refugee centers. Their response was that some of them can no longer observe it due to the difficult conditions at the centers.

The interviews of the survivors of the bombing incident were videotaped although they were conducted in the vernacular (Maguindanon).

Attached are pictures of three of the victims. CAUTION: THE PICTURES ARE GRAPHIC!

Again, law groups are reiterating their earlier appeals to both sides of the conflict to respect and uphold Protocol II of the Geneva Convention on Non-International Armed Conflicts, particularly as it relates to the protection of civilians.

Again, we reiterate that the humanitarian crisis we see now is a direct offshoot of the scuttling of the peace process. We therefore call on everyone, particularly those who have been very vocal in their opposition to the peace process to be more circumspect about the consequences of their opposition to the MOA. The cavalier attitude of many people towards the peace process may proceed from the fact that it is not they who bear the brunt of such consequences. Rather, it is the people residing in the conflict affected areas. The least that we owe them is to educate ourself about the conflict and its roots and how the peace process is trying to provide a long-term and sustainable solution. Knee-jerk reactions without such self-education all too often leads to rash decisions, all too often provide a fertile ground to foment and perpetuate the conflict.

Atty. Zainudin Malang




URGENT APPEAL: RESPECT RULES OF WAR IN MINDANAO

RESPECT RULES OF WAR IN MINDANAO!

 

Even as people are still reeling from events in Lanao del Norte, field reports from our colleagues in civil society continue to be disturbing.  Now that fighting has shifted to Moro areas, we hear of insufficient time given to civilians to vacate their villages before AFP bombardment begins.  We hear of food blockades against internally displaced people.  We hear of NGOs being prevented from delivering urgently needed relief items and media personalities being prevented from covering the humanitarian crisis.  We hear of a high ranking national official of DSWD complaining about the assistance to displaced families (25 kilos of rice, per family, per month) as being too “big”!

 

Therefore, we remind ALL PARTIES AND COMBATANTS of the Protocol II of the Geneva Conventions on the Protection of Victims of Non-International Armed Conflicts, particularly on the protection of civilian populations.   Civilians enjoy protection from dangers arising from military operations (Art. 13-1).  Neither should they be subjected to attack (Art. 13-2), nor should acts of hostility be directed at places of worship (Art. 16).  Starvation of civilians as a method of combat is prohibited (Art. 14).

 

We call on United Nations humanitarian agencies, international organizations such as the International Red Cross and Red Crescent Societies, and other members of the international community to insist upon their mandate and duty to deliver aid to the victims of conflict.  The concept of Right to Protect (R2P) necessarily includes the duty to protect.

 

We call on our friends in the media to equally report suffering by ALL communities.  We wish to remind them that 85% of the civilian victims of the 2000 and 2003 all out wars were Moros.   We remind them further of the public's need to be provided with ACCURATE AND COMPREHENSIVE reports from ALL SIDES to the conflict.  Recall too the writings of Noam Chomsky on manufacturing public consent to support a war by playing up unchallenged claims of successful military operations and attrocities of enemies.


Impartiality!  Neutrality! Non-Discrimination!  These are the basics of International Humanitarian Law.


ALLIANCE OF MUSLIM ADVOCATES OF LAW

BANGSAMORO LAWYERS’ NETWORK

MUSLIM LEGAL AID FOUNDATION, INC.

BANGSAMORO CENTER FOR LAW AND POLICY

UP MUSLIM STUDENTS ASSOCIATION (COLLEGE OF LAW)

ATENEO DE MANILA MUSLIM LAW STUDENTS

26.8.08

"We Might End Up Becoming The Darfur Of Southeast Asia"

Malang: We might end up becoming the Darfur of southeast Asia

http://www.abs-cbnnews.com/storypage.aspx?StoryID=128716

(ANC's Tony Velasquez interviewed on August 18, Zainudin Malang, executive director of the Bangsamoro Center for Law and Policy, on the clashes that have erupted in parts of Mindanao and on the prospects for peace in the south. Malang has been a close observer of the peace process with Muslim separatists.)

Q. What was your expectation after the signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) in Malaysia, had it pushed through?

A. I was expecting optimism on the ground, not what we are seeing here, not what we saw today. I was expecting the complete opposite after they had signed the MOA.

Q. Are these recent clashes in North Cotabato and Lanao del Norte an offshoot of the failure to sign the MOA-AD?

A. I cannot help but arrive at that conclusion. You know, there are only two ways to resolve the conflict: either through military means or through negotiations. And apparently, after the cancellation of the signing of the MOA, the product of a dozen years of long and hard bargaining on both sides, perhaps, there are armed groups who feel it will already be hard to resolve the conflict by way of negotiations.

Q. Do you think the government and military should have anticipated that this would be the backlash from the Moro Islamic Liberation Front (MILF)?

A. I’m sure they’ve always been aware of the possibility of this happening. This situation is not new to them.

Q. Does it help the MILF if they undertake this kind of hostilities granted that they may have been frustrated?

A. I have to go back to the sentiments on the ground, both civil society as well as sentiments of people within the MILF as well as the other revolutionary movement, the MNLF. You have to bear in mind that the Mindanao peace process is three decades old. This started in 1976. The feeling on the ground is that, they had this 1976 Tripoli agreement, there was a 1996 peace agreement, but where did these end up? It ended up in failed implementation. When the MILF leadership undertook negotiations with the government, many in their ranks were already asking: why negotiate with the government when all the past peace agreements have never been implemented? So there’s always been skepticism among the [MILF] ranks in the peace process. And then at each stage of the peace process, each stage of the exploratory talks and formal talks, there has always been good results that both the MILF and government could present to their respective constituencies. But after all of those hard bargaining, those long years of negotiations, after they arrived at an agreement on how to resolve the conflict, suddenly, the Memorandum of Agreement on Ancestral Domain (MOA-AD) was blocked. So the skepticism that was present before is alive again. I think that’s what we’re seeing now.

Q. Were you privy to the details of the MOA-AD that was to be signed in KL?

A. There were several instances when I had attended very public forums where members of the GRP [government of the Republic of the Philippines] as well as members of the MILF gave the audience updates on what was going on.

Q. What about the contents of the draft MOA-AD?

A. We were given updates on what were the pending issues they discussed, they had resolved. My friends in the Mindanao People’s Caucus, for instance, organized several of these forums in Davao City , in Marawi City , and these very public consultations. And I also recalled that every time that the GRP and the MILF panels are about to meet, they always announce, they make a public announcement that we are about to meet.

Q. I guess the people back then should have already known about the more contentious issues such as the resource sharing agreement with the GRP-MILF, the inclusion of 700 barangays in an expanded Bangsamoro homeland. All of these were made public.

A. Some of these were made public. The forums I attended, these were staggered. They occurred over time. So depending on what the status of the negotiations at that time, that was what was divulged.

Q. Sen. Mar Roxas and Frank Drilon actually have an initialed copy of the MOA-AD, and they’re taking exceptions to several provisions there. For example, that the Bangsamoro Juridical Entity can now enter into separate treaties with foreign governments. And now, they’re saying that that’s totally unheard of for an autonomous homeland, to have that kind of sovereign power. Was that ever included in the consultations?

A. I think they refer not to treaties or all kinds of treaties. They referring to economic treaties, and this is not entirely unheard of. This is the kind of arrangement that they have in Belgium . For example, the Flemish region in Belgium is allowed to set up trade missions or enter into economic treaties with other countries.

Q. Like Quebec in Canada .

A. Yes, so let us bear in mind that the Philippines is not the only one that has an internal conflict in the whole world. So maybe we should learn at how this kind of problem has been tackled in other parts of the world. So I think that’s what the GRP and the MILF panels have borne in mind. And if I’m not mistaken, they’ve also mentioned Northern Ireland , for example, when it comes to a need to reexamine the Constitutional framework to resolve the conflict.

Q. It’s good you mentioned the Flemish territory in Belgium . But doesn’t it cause a lot of tension within Belgium ?

A. The tension that I’ve heard in Belgium is actually being managed by these sort of accommodations or arrangements. Because the Waloon region [of Belgium] can always tell the Flemish, why go for separation when you already enjoying these sovereign privileges? And I guess that’s what both the GRP and MILF panels had in mind when they agreed on this MOA-AD. I suppose what they were thinking was that, there would be no use, for now, to secede because all of these genuine...sort of tools would now be afforded or accorded to you rather than paper autonomy.

Q. But look at what’s happening now, when you see the MILF acting in a belligerent way, just because they’re frustrated, ,maybe this, to them, hopefully a hiccup in the peace talks, and then they finally give up all hope and resort to violence again. What does it say about giving a group like this the kind of powers that are contained in a MOA-AD? Isn’t it dangerous?

A. I will be frank with you. We ourselves are finding it hard to pacify these armed forces. We need to appeal for them to hold back, all the armed groups because, as they were saying, ‘We thought you said we should give negotiations a chance. We’ve been talking already for 12 years. We’ve already faced two all-out offensives already and then it ends up nowhere.’ We in civil society are finding it hard to pacify these armed groups. And I’m not just talking about the MILF, I’m also talking about the AFP. Our work is made much harder when we hear about much-publicized statements from our political leaders who say, if the MOA-AD is signed, there will be bloodshed, which we find completely illogical. Because what they’re saying is, if there’s a peace agreement, there won’t be peace. There will not be any peace. Whereas we are saying, if there’s a peace agreement, there will be peace.

Q. Let me play devil’s advocate. If you say it’s hard to pacify these groups, what we’ve seen is it’s the MILF that has been provoking these all-out wars. So it’s the MILF that is more difficult to restrain than the AFP.

A. I don’t want to take sides. I just want to say that when it comes to military solutions…we hear so many people say now, it’s time to go all out against the MILF. What I want to remind everyone is that every time we adopt a military solution, it never works. Remember that in the 1970s, we were under martial law, and President Marcos, with all the resources and powers he had in his hand, could not crush a hastily organized rebel army with very little training, with no battlefield experience, with very minimal equipment. And the military went against them during martial law. Here we are, three decades later, they are far more experienced, they have more equipment, what makes us think that they cannot put up a fight? What I’m afraid of is, they fought for two weeks in North Cotabato , we already have 160,000 internally-displaced refugees, extrapolate then. Let’s assume they continue fighting for two or three months. How many thousands or millions of refugees will we have? Remember, in year 2000, we had one million internally-displaced people, and these were World Bank and government figures. In comparison, Bosnia only had 600,000, East Timor only had 300,000. What I’m trying to say is, if we do not deescalate the situation, we might end up becoming the Darfur [in Sudan] of southeast Asia.

Q. Right now, we have a Coordinating Committee on the Cessation of Hostilities (CCCH). So far, we haven’t heard from it. If that committee does its job, then it should defuse the situation.

A. I remember one instance when I talked to a member of the CCCH. This was about Cotabato. This was when a Civilian Volunteer Organization and the MILF were fighting. The MILF were farmers in that area; the CVO members were also farmers in the barangay. There was fighting and it was reported to the Joint Ceasefire Committee. The committee came in and it was told by the CVOs, “We don’t recognize any captain. We don’t recognize any ceasefire committee.” So, the problem is, the public in Manila who don’t know any better, who are not immersed on the ground, who don’t know what’s happening, it’s very easy for them to be manipulated. It’s very easy for public opinion to be manipulated nowadays. Because we know that in times of war, the first casualty is truth. I would advise our friends in media to get a direct line to the CCCH so we will know what’s really happening. Let’s not rely…our sources of information should not depend on groups that are taking advantage of the conflict. We have so many groups who feel that their interests, whether economic or political, will be affected negatively by the peace process. I’ve always said the reason why there’s still no signing of a peace agreement is that….I’ve always said that if the government panel, as well as the MILF panel were left on their own to decide if they should sign the agreement, they would have done that two years ago. They just couldn’t sign it because they’re afraid. There are powerful economic and political forces who genuinely feel that their interests, political and economic may be adversely affected by the Mindanao peace process. Because we are talking here of returning the ancestral domain of the Moros themselves. Now, let’s ask ourselves: who are enjoying now the fruits of these ancestral domain? Who owns the mineral rights? Who has tens of thousands of hectares per DENR records in Mindanao ? How would you think they feel, now that the government is about to return the ancestral domain back to the Moros?

Q. But were they consulted in the first place?

A. If they had been consulted, what do you think they would say? Our friends in Zamboanga are complaining, they’re saying they were not consulted. But later, they said, they were. And they’ve said no. Apparently, what they mean by consultation is, to them, they are consulted if the government takes their position. In layman’s term, when we ask, what do you think? It doesn’t necessarily mean that I would have to adopt your position. But to them, they say that since they have already expressed their views in a public forum, albeit informally, their position is, the government should adopt their position. The problem is, if you’re in the GRP or MILF panel, if you try to accommodate everyone’s interest into this agreement, without asking anyone to make sacrifices or compromises, we will never arrive at any peace agreement. And what we saw today, it will continue to grow.

Q. How can this be resolved? The President has already ordered an all-out offensive. The military says it’s not going to stop because it’s already got the upper hand. Even local officials say it’s got to stop now. When do you think it’s going to stop?

A. I myself am hoping everything dies down, everbody calms down. How is it going to stop? There has to be…we have to show to everyone that there is a big constituency for peace. As of now, what’s being given air space and print space are the anti-MOA and the MILF. And both of them are either saying, if there’s no MOA, there’s going to be war. Or if there’s MOA, there’s going to be war. Right? Perhaps, it’s about time, the silent majority, if there is really a silent majority in support of the peace process, or the peaceful resolution of the conflict, maybe now is the time, now more than ever is the time for us to come out and say to everyone, say to these groups, say to those who would rather resolve the conflict by armed means, ‘Wait, there’s a big constituency in support of a peaceful resolution of whatever grievances, Bangsamoro grievances you have there.'

28.7.08

GRP-MILF JOINT STATEMENT ON THE MEMORANDUM OF AGREEMENT ON ANCESTRAL DOMAIN

JOINT STATEMENT


With the facilitation of the Malaysian Government, the Government of Republic of Philippines (GRP) and the Moro Islamic Liberation Front (MILF) Panels have initialed today the final draft of Memorandum of Agreement on Ancestral Domain (MOA-AD). Having restarted the talks today, relying on the deep reservoir of goodwill and cooperation on both sides, the two Panels have crafted an important document that would contribute immeasurably to peace in Mindanao, progress and prosperity for the Philippines, and strong affirmation of Malaysia-Philippine bilateral relations and multilateral cooperation for peace.


The conclusion of today's session marks the end of the negotiations on the third aspect of the Tripoli Agreement on Peace of 2001. Both sides reached a consensus to initial the final draft pending its official signing by the Chairmen of the two Peace Panels in early August 2008, in Putrajaya, Malaysia. The ceremony will be witnessed by the Secreatary of Foreign Affairs of the Republic of the Philippines and the Foreign Affairs Minister of Malaysia.


The Parties look forward to continue the negotiation on the Comprehensive Compact and finally address the Bangsamoro problem and conflict in Mindanao.


The Panels conveyed their appreciation to H.E. Prime Minister Dato' Seri Abdullah bin Haji Ahmad Badawi for the Malaysian Government's continued assistance in keeping the peace process on track, and to H.E. President Gloria Macapagal-Arroyo's unwavering commitment in pushing forward the Mindanao peace process.


Done on the 27th of July 2008 at Kuala Lumpur, Malaysia.


FOR THE GRP: FOR THE MILF:



RODOLFO C. GARCIA (sgd) MOHAGHER IQBAL (sgd)
Panel Chair Panel Chair



WITNESSED BY:


DATUK OTHMAN ABDUL RAZAK (sgd)
Special Adviser to the Prime Minister

Collapse of GRP-MILF Negotiations Most Serious Threat to Peace

Collapse of gov’t-MILF talks on Moro homeland ‘most serious threat to peace’

By ISAGANI DE CASTRO, JR. abs-cbnNEWS.com/Newsbreak

http://www.abs-cbnnews.com/topofthehour.aspx?StoryId=126527

The collapse of the talks between the Arroyo government and the Moro Islamic Liberation Front (MILF) on an expanded Moro homeland is “the most serious threat” to the peace process and may eventually lead to war, according to an analyst.

Zainudin Malang, a lawyer of the Bangsa Moro Center for Law and Policy, warned that the collapse Friday in Kuala Lumpur of the government-MILF talks on ancestral domain “is the most serious threat to a peaceful and negotiated solution to the peace process.”

Malang, an analyst of the government-MILF peace process, said the “level of skepticism over the negotiating parties’ sincerity is approaching irreversible levels, if not so already,” he said in an e-mail sent to Newsbreak, in response to the collapse of the talks.

“Frustrations over past un-implemented peace pacts, coupled with flip-flopping stance on this latest peace process risks transforming the Mindanao conflict into an unmanageable type of war,” Malang said.

Backtrack on plebiscite

According to a report by Reuters news agency, the government’s attempt to push back the timing of a plebiscite that would expand the Autonomous Region for Muslim Mindanao (ARMM) was the reason for the collapse of the talks.

Reuters said government negotiators tried to delay the referendum on enlarging a previous Muslim homeland until after a political agreement was reached.

This would have reneged on a previous commitment to hold the vote six months after a deal on territory was signed, originally scheduled for August 5. MILF negotiators walked out of the meeting.

Both sides had hoped to wrap up the talks on an ancestral homeland last Friday in Kuala Lumpur ahead of President Gloria Macapagal Arroyo's annual state of the nation address tomorrow.

But Press Secretary Jesus Dureza, the former presidential adviser on the peace process, said Saturday there is still hope for the peace process.

“The peace process is a continuing effort. In the latest talks in Kuala Lumpur over the last few days to finalize the draft agreement, there remain some differences. Although the meeting did not immediately bring about progress in the ancestral domain issue, I am sure that the parties will continue to look for ways to hurdle the difficulties and move the process forward.”

‘A conflict of Darfur proportions’

Malang noted that the government-MILF peace talks have been going on for 11 years already, or since 1997 during the Ramos administration.

“During that period, we have already seen two all-out wars and countless other large-scale fighting,” Malang said.

In 2000, the first all-out war under the Estrada government, led to one million internally-displaced people. In 2003, under the Arroyo government, there were more than 400,000 internally-displaced persons.

“The four-decade long Mindanao conflict is one of the most serious yet under-reported conflict in the world,” Malang said.

“Ironic because this is a conflict of Darfur and Timorese proportions. It has already cost more than 100,000 lives and millions of internally-displaced persons.”

During eleven years of the peace process, he said “agreements and consensus points that would have led to an early successful conclusion of the talks have also been set aside due to pressure from conservatives and hawks.”

“The GRP-MILF talks is only the latest of numerous attempts to peacefully resolve, by way of negotiations, what is now the longest-running armed conflict in Asia. But precisely because past efforts have failed, this latest one may turn out to be the last one, should it fail,” Malang said.

Seek to clarify

In a forum last week on the draft agreement on ancestral domain, Malang allayed “fears” that the creation of an expanded Moro homeland will lead to oppression against the Christians by Muslims. He said the Moros will not be “treating Christians as unjustly as the Christians have treated the Moros.”

Malang said “fears” of both sides should not be used to block the peace process but should be an opportunity to “seek clarification.”

"Let’s not use it as basis to oppose any signing. Nothing has been signed yet. If we don’t see anything good in it, then let the people decide. Because a plebiscite, after all, is an expression of sovereignty, which can only be exercised by individual members or society and the polity, not by their elected leaders or their representatives,” he said.

Related Story• Gov’t backtrack on plebiscite derails peace talks with MILF

Statement of the Mindanao People's Caucus on the Collapse of the GRP-MILF Peace Talks

Press Statement
July 26, 2008

In the light of the renewed collapse of the GRP-MILF talks in Kuala Lumpur yesterday, it is obvious that the opponents of the Memorandum of Agreement (MOA) on Ancestral Domain have once again succeeded in frustrating the efforts of the negotiation. With veiled threats of constitutional challenge, legal battles, communal violence and plain hysteria, we missed to grasp peace just when the Peace Panels have come closest to it.

In the name of the women and children and ordinary civilians in the conflict-affected areas, we urge both principals in the negotiation to uphold, sustain and defend the consensus points in the negotiations. Let us not allow politicians and vested interest groups to hostage the peace talks with their own economic and political interests. Let us not be swayed by the noise of a few loud personalities who are desperately protecting their own interests.

We appeal to both parties to continue finding viable options and solutions until we finally reach a mutually acceptable agreement.

We express strong disappointment over some statements and threats which vowed to kill the peace agreement even at this time when the Peace Panels are yet to give birth to the MOA on Ancestral Domain. We do not deserve this kind of demeanor coming from political leaders who, instead of forging unity among its people, are in fact the ones fanning hatred and violence.

Today is the time for us to examine the interests of those who block efforts of the peace process. It is time that we come together to engage in a meaningful dialogue, surface the fears and exchange notes in order to achieve understanding and unity.

We appeal to President Arroyo to sustain the primacy of the peace process and defend this policy against political pressures and vested interests including those coming from her own allies. The postponement of the ARMM election could have been a good step towards that direction.

Obviously, we are racing against time. With the final pullout of the International Monitoring Team come August and with no discussion on the extension of their tour of duty, war looms in many corners of Mindanao. Ordinary people, not our politicians and leaders, will be the ones to pay the consequences of the opposition to the MOA. This is where our hearts just bleed, out of frustration and sheer desperation, at the kind of leaders who are at the helm in Mindanao at this point in our history. We need leaders who will bring the people to an era of peace and development, not those who irresponsibly condemn us to war and violence, while they spend their quiet evenings in the city life of Davao, Manila or elsewhere.

MPC reiterates its call for the formal resumption of the GRP-MILF peace talks and the signing of the MOA on Ancestral Domain as a critical step towards showing the concrete result and progress in the negotiation. (30)

Reference:

ATTY. MARY ANN M. ARNADO
Secretary General
Mindanao Peoples Caucus

Tokyo International Peace Building Conference Paper

Addressing the Gaps in Human Security Initiatives in Mindanao*

By: Atty. Zainudin S. Malang**

Thank you for inviting me to comment on the presentations in this session. Now, since I come from Mindanao, allow me to comment by correlating the presentations to some of my own observations on best practices and not-so-best practices in addressing gaps in community development and human security.

My first observation is the imperative of engaging local stakeholders in addressing these gaps. It is clear from earlier presentations that local stakeholders are not just important but even indispensable. The reason is that they have the most at stake, they are the ones most familiar with the situation on the ground, and therefore know more how to deal with it. Local stakeholders must be engaged not only in program implementation but, more importantly, they must be engaged from the very beginning – in program identification, design and conceptualization. The aid and donor community must always bear this in mind in their initiatives and programs. Mr. Hossain’s paper itself captures the essence of this approach and I quote:

“CDCs identify their own problems and challenges, formulate own strategies and development plans, and then manage, monitor, and implement all projects at the field level.”

In Mindanao, NGOs and civil society have repeatedly expressed concern that except in the program implementation stage, they have been relegated to passive roles by those who come from the outside and impose their brand of peace building.

My second observation is that any intervention or initiative to address human security gaps need to proceed from a well-rounded understanding of how those gaps arose and the environment in which the initiatives will be introduced. Conflict analysis and needs assessment are indispensable and necessary preliminary steps. A lack of or even flawed conflict analysis, prepared without adequate inputs from those primarily affected by human security gaps can lead to serious issues. This is particularly true with respect to gaps brought about by internal conflict where social-political divides, instead of being addressed, may manifest itself in the implementation of initiatives intended to address those very same gaps.

Case in point is the staffing pattern of aid agencies operating in Mindanao. Study after study have shown that the conflict was bred by social-economic-political marginalization of the minority in the hands of the majority. In fact, a UNDP commissioned opinion poll asking detailed questions among those who comprise the majority in the Philippines showed that almost half of the respondents showed a negative perception of the Moros in Mindanao, even to the extent of denying them employment for no other reason than they don’t belong to the majority. Presumably, this sentiment runs across the entire strata of Philippine society. And yet for decades, the staffing pattern of many agencies in Mindanao show a dearth of consultants and program managers with sufficient familiarity with the conflict, much less people who actually come from the conflict affected area. This deprives their programs of valuables inputs and local sensitivity. In one instance, a staff of a humanitarian aid agency told a group of IDPs to go back to the mountains and find some rootcrops if they wanted food. An official from another major funding agency also publicly questioned the logic of designing an assistance program tailor-made for the marginalized minority.

The other important understanding we must incorporate in addressing gaps is that of the socio-political environment in which a peace promoting initiative is being introduced. Is the conflict ongoing? Or is there a ceasefire? Has a peace agreement been signed? Is the peace agreement in the process of being implemented? Answers to these basic questions must be asked because the appropriateness and viability of programs depend on those answers. I have seen programs designed for a post-agreement situation in an area with unresolved conflict.

The third observation I would like to share is the need to periodically and earnestly re-evaluate not only programs but also the frameworks that inform them. What works and what doesn’t are questions the aid community must ask themselves repeatedly and, more importantly, actively seek candid answers from their target beneficiaries. I just came from 3 months in Aceh where I participated in a meta-analysis of past reintegration programs for former combatants for the purpose of identifying the gaps in those programs. In Mindanao, the latest human development index figures for the five Bangsamoro provinces show that they continue to be the lowest in the whole country even after decades of receiving peace and development funds.

Allow me now to share some positive developments in relation to that I have just raised.

The first positive development is that key actors from the aid and donor community have recognized the need to give greater role to groups coming from the conflict affected area. As Mr. Alim says in his presentation:

“There is now a growing recognition especially from the international community, of the important role that CSOs play in societal reconstruction.”

I notice that JICA, for instance, have directly engaged the Bangsamoro Development Agency which was established by agreement by both the Government of the Republic of the Philippines and the Moro Islamic Liberation Front (MILF). They have also directly funded Moro NGOs. Previously, funding and assistance to communities were largely coursed through institutions where Moros did not have an effective voice. Other agencies have also followed suit. CIDA (through its LGSPA program), USAID (through its GEM program) and AusAid, have also undertaken a pro-active hiring of technocrats and professionals from the Moro communities. Even Asia Foundation, whose Philippine country chief is here with us, has adopted such an approach.

The second positive development I have observed is that those who are trying to raise the level of human security in Mindanao are now more aware that the success of economic interventions cannot be divorced from the larger political peace process. Last year there was a concerted effort by all the aid agencies to exert firm pressure on the government not to launch an all-out military offensive, recognizing that no peace and development assistance can possibly succeed where there is widespread fighting. The peace process in Mindanao spans 3 decades. That period is marked by numerous frustrations and false expectations. It was only when the international community has taken a more direct and active role that the peace negotiations has achieved substantial gains towards addressing the roots of the conflict. I am pleased to mention here that Japan is one of those countries that have made substantial contributions.

The last positive development is that there is more attention now to the human rights concerns of Moro communities. For years, no one wanted to touch this area because human rights cases were viewed as a political hot potato for aid agencies. But after being reminded by human rights advocates that human security also mean “freedom from fear”, more funding is now being devoted to human rights training.

However, let me emphasize that human rights assistance to Moro communities is still in its inception stage. Save for the Asia Foundation, there is still a reluctance to fund legal representation to indigents who are subjected to warrantless arrests, torture, and harassment. This should be the core of any human rights assistance and yet the bulk of the funding is given only to conferences and forums. If we are to encourage marginalized communities to pursue legal and peaceful avenues for the redress of their grievances instead of resorting to rebellion, we must give them the means to do so.

With this, I end my comment. Thank you again for inviting me.
* Delivered at the Tokyo International Peacebuilders Symposium 2008, U.N. House, Tokyo, March 24, 2008.
** Atty. Zainudin S. Malang is a Convenor of several civil society organizations. He is also a newspaper columnist and is frequently engaged as a resource speaker on the Mindanao Peace Process, human rights, and the political economy of the Mindanao conflict. Atty. Malang holds a degree Master of Laws from Kyushu University (Japan) and a Master in Regional Integration from Universidad Autonoma de Madrid (Spain). He recently completed an intensive 6-month joint peacebuilding program jointly administered by Japan’s Ministry of Foreign Affairs and the United Nations Development Program.

6.10.07

EXAMINING THE NEXUS BETWEEN PHILIPPINE CONSTITUTIONALISM AND THE MINDANAO CONFLICT

By:

Atty. Zainudin S. Malang
(LL.M., I.M.R.I, J.D.)


PART I: INTRODUCTION

The breakdown of the series of exploratory talks between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) at their 13th Exploratory Talks in September of 2006 highlighted once again how constitutional issues affect any attempt to resolve the conflict in Mindanao. Regardless of whether one takes the position that a peace agreement should be intra-constitutional or extra-constitutional, the fact remains that a negotiated and peaceful resolution to the conflict depends on how such issues are dealt with by the negotiating parties.

The negotiations – curiously called Exploratory Talks - between the GRP and MILF have three main items on the agenda: 1) security, 2) rehabilitation and development, and 3) ancestral domain. Arguably, the most contentious of the three is ancestral domain, given that the four strands into which it is divided are highly contentious in nature and strike at the core of the conflict: Concept, Resources, Territory, and Governance.[1]

Prior to the September Exploratory Talks, the parties were reportedly optimistic, albeit guarded, on the progress of the negotiations. They had already signed and implemented agreements on the first two items in their agenda, which are security, and rehabilitation and development. They had then moved on to a discussion of the four strands of ancestral domain.

In the Joint Statement they released shortly after their previous round of talks, they declared that they have made “substantial gains.”[2] A consensus on the concept of ancestral domain had been arrived at, and they were tackling the next strand, which was defining the territorial scope of that domain. In some of their public statements, the GRP even said the negotiations were about 85% finished. [3]

Unfortunately, the optimism that preceded the September talks was replaced by disappointment. The GRP described the talks as reaching an “impasse”; their MILF counterparts spoke about a “breakdown.”

Initially, the panels ascribed the impasse or breakdown to disagreements over the geographical scope (territory) of the ancestral domain. However, in subsequent statements, a deeper reason emerged and this was the insistence of the GRP panel to subject the issue on territory through a constitutional process, i.e., a plebiscite.

"We have presented constitutional options on the negotiating table consistent with socio-demographic realities and equitable development that will ensure just and durable peace," said the chairman of the GRP Panel. He went on to say that the government negotiators do not have the mandate to explore solutions to the issue of territory outside the parameters of the constitution.[4]

The MILF, in its own statement, said the GRP’s insistence on constitutional parameters as limitations on the negotiations shows that the GRP cannot think “out of the box.”[5] This constitutional box had already resulted in failed agreements between the MNLF and GRP, the other Moro liberation front with which the GRP had earlier entered into an agreement. Emphatically, the MILF warned that “by insisting on solving the Mindanao problem within the framework of the Philippine constitution (the ‘box’), the GRP had already consigned to doom any chance of ending the conflict”.[6]

The preceding backgrounder on the GRP-MILF Exploratory Talks indicates how strict constitutionalism and legalism can hold back the negotiated resolution of the Mindanao conflict.[7] This background paper intends to show how the Philippine constitutions have informed and contributed to the conflict, and how they helped generate feelings of alienation and deprivation that became the core grievance of the Moro liberation fronts now asserting the right to self-determination. Hopefully, it can shed better light on the viability of intra and extra-constitutional options for a peaceful resolution.

PART II: RECENT DEVELOPMENTS IN PHILIPPINE CONSTITUTIONALISM

The Philippine constitution has been subjected to a great degree of scrutiny brought about by attempts to amend it. Every national administration since the time of President Corazon Aquino under whose tenure the present 1987 Constitution - the 6th in the country’s history – was adopted has attempted to revise it, albeit unsuccessfully. None, however, has shown a more dogged determination to do so than the administration of President Gloria Macapagal Arroyo.

The 1987 Constitution allows for two modes of amendment or revision: through a constitutional convention or constituent assembly.[8] Amendments also have a third mode, people’s initiative.[9] A constitutional convention requires the passage of a law calling for the election of delegates who would draft the revisions or amendments and propose it to the general electorate by way of a referendum. A constituent assembly requires the legislature to convene itself as such and thereafter draft the constitutional changes to be proposed to the electorate. A people’s initiative requires a certain percentage of registered voters, certified by the Commission of Elections, to directly propose to the electorate the proposed amendments.

Of the three modes, President Arroyo and her political allies had tried the latter two. In 2005, she created a 55-member commission with the express mandate to “conduct consultations and studies and propose amendments and revisions to the 1987 Constitution.”[10] Their recommendations were to be submitted before the national legislature (Congress) sitting as a constituent assembly.[11]

President Arroyo’s allies in the House of Representatives managed to pass a resolution convening the body as a constituent assembly,[12] notwithstanding stiff resistance by the vastly outnumbered opposition delegates, who held that any such resolution must be concurred by the Senate which latter refuses to do.[13] When the resistance to the resolution threatened to spill onto the streets and spark massive unrest, the resolution was abandoned.[14]

In the meantime, a controversial parallel move to introduce amendments via a people’s initiative was nullified by the Supreme Court for being deceptively undertaken.[15]


PART III: THE NEXUS BETWEEN PHILIPPINE CONSTITUTIONS AND THE MINDANAO CONFLICT

A. Evolution of Philippine Constitutions

The recent attempts to revise the 1987 Constitution show that Philippine constitutions do not enjoy the kind of permanence that organic acts are normally accorded. In a span of one century, the Philippines had several constitutions and organic acts.

On June 12, 1898, near the end of the Filipinos’ war of liberation from Spanish colonization, revolutionaries declared independence from Spain in the town of Kawit in the northern island of Luzon. Later that year, delegates convened in the town of Malolos in the island of Luzon and drafted the constitution of the First Philippine Republic.

However, the Malolos Constitution and the First Philippine Republic, as it has came to be known, was short-lived due to the arrival of the Americans, who took over from the Spaniards and occupied the archipelago.

During the American period, there were several organic acts that governed the administration of the islands. These were President McKinley’s Instructions to the Second Philippine Commission, the Philippine Bill of 1902, and the Jones Law (1916). Though not strictly speaking constitutions, they nonetheless partook of the nature of constitutions as fundamental laws.[16] They became the legal standard by which the validity of all governmental actions in the Philippine islands would be determined.

Pursuant to the Tydings-McDuffie Act and in accordance with American intent and Filipino wishes to enact their own fundamental laws, a convention was called in 1934 that led to the drafting and adoption of the 1935 Constitution. However, its application was suspended during World War II, when Japan occupied the Philippines. During that period, another constitution was adopted known as the 1943 Constitution. In 1946, after the end of the Japanese period, the Philippines reverted to the 1935 Constitution.

By the late 1960s, there was widespread discomfort that the Philippines was still using a constitution (1935 Constitution) that was drafted and adopted while the country was still under American tutelage. Thus, a constitutional convention began deliberations in 1971 which produced what came to be known as the 1973 Constitution.

Soon after President Ferdinand Marcos was removed from power through extra-constitutional means, the Aquino revolutionary government adopted the 1986 Freedom Constitution. Less than a year later, President Aquino appointed members to a Constitutional Commission that drafted what later came to be to be known as the 1987 Constitution.

The 1987 Constitution remains as the basic law of the Philippines, although there have been several unsuccessful attempts to amend or revise it.

B. Philippine Constitutionalism and Core Bangsamoro Grievances

Should Moro and government peace panels allow strict constitutionalism to delimit their options in resolving the Mindanao conflict? An examination of the possible nexus of Philippine constitutionalism to core Bangsamoro grievances may shed light on this question.

1. The Constitution and the Question of Plebiscitary Consent

One lawyer-academic describes the Mindanao conflict as actually a “clash between two imagined nations,”[17] i.e.,that of the Filipinos and the Moros. Thus, one nation’s re-assertion of its identity by invoking its right to self-determination (RSD) was met with an equally determined government response intent on preserving the unity of the Philippines as a nation. In most instances, the Philippine constitution is invoked as the basis for that response. So what do these “imagined nations” refer to?

The conventional premise is that Mindanao, Sulu, and Palawan have always been part of the republic under the constitution and any re-assertion by the Moros of a distinct identity over their traditional homeland is contrary to the constitution. This republic and constitution is traced to the watershed year of 1898 when Philippine revolutionaries (Katipunaneros) issued the Declaration of Independence and convened the Malolos Convention which eventually gave rise to the Malolos Constitution and the birth of the First Philippine Republic. Thus, if the Malolos Constitution were to be viewed as the first political articulation of Filipino national identity and their sovereign will, it is worth looking at the participation of Moros in the drafting and adoption of that document.

A look at the list of delegates to the Malolos Convention shows that none were Moros.[18] Attempts by Filipino revolutionaries to invite the Sultan of Sulu to join in the building of a Philippine republic – apparently an offshoot of Pres. Aguinaldo’s proposal to the Malolos Congress for negotiations with the Moros towards the establishment of national solidarity - were ignored, the Moros preferring to “retain their own views of independence and liberty”.[19] Therefore, it would not be possible to sustain the premise that Moros have always formed one body-politic with Filipinos going back to the establishment of the First Philippine Republic, without admitting that such inclusion was done without their “plebiscitary consent.”

Exactly how crucial is this lack of plebiscitary consent in Philippine constitutionalism and nation/state-building to the Mindanao conflict?

Reflecting on the status of the Moros long before the Malolos Convention was convened, Jesuit priest-historian Horacio Dela Costa wrote of “full-pledged sultanates with a fiscal administration, courts of justice, and a bureaucracy,”[20] indicating that these were not just nations as a sociological concepts but nation-states as politico-legal entities as well. Indeed, pre-dating the Filipinos’s own sense of nationhood and initial attempts at state-building, Moros were already exhorting Filipinos to rise up against the Spaniards centuries before they declared their independence from Spain in 1898. [21] Eventually, when they did rise up, Katipuneros had to concede the distinctness of the Moros as a nation by attempting to convince them to join the Philippine revolution.[22]

We have, therefore, two distinct identities as nations, each of which pursued a very different track in nation-building.[23] One – the Moros – already had a distinct consciousness as nation-states by the time the Spaniards arrived and pursued a staunchly independent stance for more than 3 centuries. The other – Filipino – only began to assert Filipino nationhood as a basis for resistance near the nadir of the Spanish empire. But this was only after the rejection of their pleas for recognition as regular Spanish citizens with all the appurtenant rights that goes with it. Thus, with these two very distinct national identities at the time of the establishment of the First Philippine Republic, the failure to obtain the plebiscitary consent of the Moros could not but lead to an eventual “clash between two imagined nations”.[24]

Granted that the Bangsamoro did not participate in the Malolos Convention and in the establishment of the First Philippine Republic, did succeeding constitutional conventions, wherein some Moro individuals participated, correct this flaw?

2. The Question of Mono-Nation or Multi-Nation State and the Process of Revising/Drafting Succeeding Constitutions

At first glance, entertaining the notion that this flaw, i.e. lack of plebiscitary consent, could have been corrected by succeeding constitutional revision projects is understandable. However, the opportunity to undertake this correction was illusory because of the parameters and assumptions that governed succeeding constitutional revision projects. In addition, these were undertaken in contravention of expressed wishes of Moro leaders against the inclusion of the Bangsamoro in the re-establishment of a Philippine Republic that was being jointly undertaken by the Filipinos and Americans.[25]

Framers of succeeding constitutions could have adopted President Aguinaldo’s proposal for the Filipinos to negotiate with Moros towards the establishment of a federal national set-up,[26] a proposal which necessarily assumed that the Moros are to be negotiated with as a nation and which proposal they may or may not accept. Instead, having adopted a Unitarian republican state structure, succeeding constitutional projects ignored the existence in the islands of at least two distinct national identities and was replaced by the assumption that the Philippines was and is a mono-nation state.

Armed with this false assumption, it became unnecessary to negotiate with Moros as a nation towards the mutual framing of a constitutional framework of Filipino-Bangsamoro relations. There was no need to negotiate because there was no other nation, there was only a Filipino nation. Thus, representatives from Mindanao who were appointed or elected to subsequent constitutional revision projects sat and participated as Filipinos representatives of their respective legislative districts, not as representatives of another nation. Lumped together with representatives from other islands of the “mono-nation” republic, the frameworks and assumptions of subsequent revision projects allowed representatives from Luzon and Visayas (Filipinos) to be the dominant voice in defining constitutional frameworks, both in their drafting and subsequent ratification.

Ideally, multi-nation societies embarking on state-formation through constitutional processes should negotiate that process as nations, and not as a collection of individuals. The process and the resultant constitution must reflect the socio-political reality of multiple identities. Rather than embarking on a process whereby one identity dominates it at the expense of the other, individuals must participate as representatives of their respective nations. The right and burden of state-formation must rest on the nations themselves. This is the only way to ensure parity and avoid dominance by one nation over the other through sheer numerical superiority of its members, which will inevitably give rise to an unstable state and future armed conflicts.

The nexus between the Filipinos’ constitutional dominance over nation-state formation and the Mindanao conflict is framed by Peter Kreuzer as follows:

"When emotive bonding is understood in ethnic terms and the state perceived as a nation-state, the need for nation-building is often equated with conquering the nation-state and extending one’s own culture over the whole national realm – if necessary by subjugating or assimilating other cultural groups. The successful ‘nation’ (i.e. ethnic group) claims ownership of the state, its resources and the right to rule, because it transforms its collective identity into the national identity. Its history, its traditions, its mores and religion become the foundation of the nation. State and imposed nation become co-terminus. Any such effort to impose one vision of the nation against others must end in violence."[27]

3. Unitarian/Mono-Nation Constitutional Framework in Practice

The mono-nation state assumption informed constitutions, which in turn eventually gave rise to a Unitarian state structure whereby state institutions formulating policies that directly affected Moros came to be dominated by Filipinos. As illustrations, one need only cite the state’s land and peace policies.

Land Policy. In the early 1900s, Moros comprised around 75% of the inhabitants of Mindanao, Sulu, and Palawan. By the turn of the next century, they were reduced to a mere 18%. Filipino settlers from Luzon and Visayas now constitute the majority of the inhabitants.[28]

This dramatic change did not happen by accident or without the active encouragement of state institutions dominated by Filipinos. Land laws[29] were passed that:

a. denied recognition to lands possessed by Moros by virtue of grants obtained from their Sultan
b. imposed a new land distribution system solely in the control of state institutions dominated by Filipinos
c. encouraged Filipinos to settle in traditional Moro homeland

Thus, it was through institutions created by a unitarian republican state structure that Filipinos managed to achieve what their former Spanish colonial masters failed to accomplish – the colonization of the Bangsamoro. Historian Manuel Quezon III writes:

"Here was the Philippines, at the threshold of independence, soon to be free from the colonial yoke of the Americans, and the leaders of this soon-to-be independent state was already laying the foundations for a new kind of colonialism. What an ironic state of affairs; for even as the majority of Filipino leaders exulted over their having finally secured local autonomy and guaranteed independence, they made sure that those very same things would be denied the Muslims in Mindanao. The Commonwealth of the Philippines was about to embark on internal colonialism – or colonization.

x x x

The end result can all the more be seen as internal colonialism. Flooding Mindanao with Christian settlers – the way Americans flooded the Midwest in the US – became one of the most effective ways of ensuring that the island would stay in the hands of the Republic."[30]

In the same article, Quezon quotes a passage from the book of the former Philippine President during the Commonwealth period who said:

“Unless we fully opened up, protected and settled, and thus made use of this great, rich, only partly developed island, some other nation might some day try to move in and make it their own. For the past twenty years, continued and successful efforts to colonize Mindanao from the north have been undertaken.” (President Manuel L. Quezon) [31]

Up until the 1950s, the state had adopted numerous land distribution laws and enforced resettlement policies that dramatically changed the demographics of Mindanao. But by the 1960s, the demographic reengineering program assumed a far more sinister form. Through military support for a para-military movement of settlers known as the Ilagas, land dispossession in Central, Northern, Southern, Eastern, and Western Mindanao was achieved through outright forcible land-grabbing.

It was this land-grabbing that precipitated the formation of the Bangsa Moro Liberation Organization which, together with the original Moro National Liberation Front that spawned the Moro Islamic Liberation Front, launched the modern armed day struggle for re-assertion of Moro identity and right to the homeland.[32]

Peace Policy. The Unitarian republican state structure also explains the failed attempts by the executive branch of the state to peacefully settle the conflict.

In 1996, the executive branch of the state (GRP) entered into an agreement with the Misuari-led MNLF. Although the agreement’s title refers to it as a mere implementation of the 1976 Tripoli Agreement, it nonetheless says that the former shall prevail in case of any inconsistency with the latter. More noteworthy, the 1996 Final Peace Agreement (FPA) also concedes the supremacy of the constitution and constitutional processes in its implementation.[33] This meant that the FPA will have to pass through the other branch of the state – Congress or legislature – for purposes of enacting the implementing law.

Congress, however, is Filipino-dominated. Thus, it comes as no surprise that the last fact finding report of the OIC Secretary General’s Office states that the biggest obstacle to the implementation of the 1996 FPA is the very same law that was supposed to implement it.[34] And this, notwithstanding the fact that the executive branch of the state conducted a pro-active advocacy of the FPA with the legislature. In other words, the constitutionally created institutions of the unitarian republican state structure allowed the legislative representatives of the Filipino-majority to exercise “veto-power” over the 1996 FPA.

Interestingly, even as it maintains that the implementation of FPA is on track, the GRP’s report alludes to “certain constraints occasioned by economic crisis, complexities of Philippine democratic and constitutional processes and resurgence of other armed conflicts.”[35]

PART IV: CONSTITUTIONAL REVISIONS AND ATTEMPTS TO RESOLVE THE MINDANAO CONFLICT

The Philippines has had no less than six constitutions, with the latest and existing one undergoing several attempts to revise it. And yet none of these constitutions have been able to peaceably settle the “Bangsamoro Question,” the same question that confronted the 1935 Constitution.

Moros participated in previous constitutional conventions as mere representatives of geographical political units, not as representatives of an identity distinct from that of Filipinos. The assimilation or integration of Moro identity in the dominant Filipino identity was assumed – or imposed – instead of constitution-making and state-building being a voluntary joint-undertaking of Filipino and Moro nations.

Thus, even constitutional provisions in the 1987 Constitution on autonomy in the Muslim areas were couched in legal and political terms by the dominant Filipinos. The terms of Bangsamoro-Filipino constitutional relations were still imposed by the latter. Moro representation in the conventions and commissions were just too minimal to inform their decisions. This is probably why Moro scholars refer to Philippine constitutional processes as a means to institutionalize Filipinos’ “veto power” over the Moros’ right to determine their political future. In this context, even recent attempts to introduce a federal structure may not offer much relief.

This is probably why agreed upon frameworks for negotiations between the GRP and MILF refer to a “new formula” in pursuing a peaceful resolution to the Bangsamoro Question.[36] The tried and tested constitutional formula of the past and present has been a dismal failure.

PART V: INTRA-CONSTITUTIONAL, UNCONSTITUTIONAL, AND EXTRA-CONSTITUTIONAL OPTIONS

Nonetheless, taken purely from their perspective as mere agents of the state, the insistence of the GRP panel on constitutional process may be understandable. The members of the panel after all has two roles: one is to search for a peaceful resolution of the conflict, and the other is to abide by existing laws and constitutions just like any other employee or agent of the state. This limitation is all the more glaring for their principal, the President, who may be subject to impeachment proceedings for entering into any agreement which her political opponents as well as opponents of the peace process may portray as “culpable violations of the constitution.”[37]

Still, the Mindanao Peace Process is faced with the fact that intra-constitutional options has failed and will continue to fail.

Fortunately, it may not be necessary to limit the options to those that are constitutional and unconstitutional. There is a third option which may insulate the GRP panel and their principal from the charge of violating the constitution and from any judicial or legal processes that may arise therefrom. At the same time, it will unshackle them from a constitutional straight jacket in resolving the conflict in their negotiations with the MILF.

In several of its decisions, the Philippine Supreme Court has consistently held the distinctions between unconstitutional and extra-constitutional acts. The former are justiciable and may be subject to legal proceedings; the latter are not. Extra-constitutional questions are those that are primarily political questions and better left to the people in the exercise of their sovereign will. [38] Through this line of cases, the Court maintained that political questions do not fall in the realm of unconstitutional acts.

Given the role which past and present Philippine constitutions played in the roots of the Mindanao conflict, this option may yet untangle the Gordian know of resolving a conflict through parameters imposed by the very same document – the Constitution – that contributed to the conflict.

Deconstructing or at least re-examining the underlying premises of Philippine constitution and nation-state, may shed light, may yet transform it into an instrument to correct the historical injustice and thereby contribute to the peaceful resolution of the Mindanao conflict rather than an obstacle.

As to what the form or shape an extra-constitutional option would be appropriate, that is for the negotiating parties to determine. At this stage of the peace process, it suffices that the parties are freed from the constitutional straightjacket as they seek to explore possible solutions to the Mindanao conflict.

[1] Joint Statement of the GRP-MILF Peace Panels, December 23, 2004, Kuala Lumpur, Malaysia.
[2] Joint Statement of the GRP-MILF Peace Panels, May 4, 2006, Kuala Lumpur, Malaysia.
[3] See President Gloria Macapagal-Arroyo’s 2005 State of the Nation Address, available at http://www.news.ops.gov.ph/sona2005.htm.
[4] See Press Statement of the Philippine Information Agency dated September 15, 2006, available at http://www.pia.gov.ph/?m=12&sec=reader&rp=5&fi=p060915.htm&no=44&date=.
[5] See Press Statement of the MILF dated September 18, 2006, available at http://www.luwaran.com/modules.php?name=Content&pa=showpage&pid=49.
[6] Maulana Alonto, Breakdown of Negotiations: Will It Result in a Break-Up?,available at http://www.luwaran.com/modules.php?name=Content&pa=showpage&pid=48.
[7] Although the breakdown of the September talks can be ascribed to constitutional proceduralism as the source of the dispute, the present constitution impacts the negotiations in a more substantive manner. For example, the recognition of ownership over ancestral domain under the constitution is limited to lands and not resources. See the main, separate, and dissenting opinions in the Supreme Court case of Isagani Cruz vs. DENR, G.R. No. 135385. December 6, 2000.
[8] 1987 Constitution, Article XVII, Secs. 1 and 2.
[9] Ibid.
[10] President Gloria Macapagal-Arroyo, Executive Order No. 453, Sec. 1, August 19, 2005.
[11] Ibid, Sec. 8.
[12] House Resolution No. 197 (formerly 1450).
[13] Philippine Daily Inquirer, Senate Readies to Fierce Battle vs. House Over Charter Change, http://newsinfo.inquirer.net/breakingnews/nation/view_article.php?article_id=29812
[14] Philippine Daily Inquirer, Arroyo Backs Off From Charter Change, http://newsinfo.inquirer.net/breakingnews/nation/view_article.php?article_id=38260
[15] Lambino vs. COMELEC, G.R. No. 174153, October 25, 2006.
[16] An extensive discussion of the nature as organic acts of President McKinley’s Instructions and the Philippine Bill of 1902 is found in the decision of the Supreme Court in United States vs. H.N. Bull, 15 Philippine Reports 7.
[17] Soliman M. Santos, Evolution of the Armed Conflict on the Moro Front, Background Paper for the 2005 Philippine Human Development Report, p. 1.
[18] For a listing of the delegates to the Malolos Convention, see Constantino G. Jaraula, Constitution of the Philippines and Basic Documents (Mindanao Editorial and Printing Services, 1997), p. 496.
[19] Cesar Adib Majul, Muslims in the Philippines (University of the Philipines Press, 1999), pp. 371.
[20] Ruurdje Laarhoven, Triumph of Moro Diplomacy, New Day Publishers, 1989 (p. xvi).
[21] For an account of Rajah Buisan’s exhortation to the Leyte datus, see Cesar Adib Majul, op. cit., pp. 132-133, citing H.V. Dela Costa, A Spanish Jesuit Among the Maguindanaus, Proceedings of the International Conference of Scholars, November 25-30, 1960, Manila, The Philippine Historical Association (pp. 78-80).
[22] Ibid., p. 370.
[23] Thus, by the time the Americans took over from Spain, Jacob Shurman, the president of the First Philippines Commission, observed that there are “two entirely different social and political conditions” in the archipelago, that of the Filipinos and the Moros. The commission was formed to study what the U.S. government should do with the Philippines islands after it took over from Spain. See Jacob G. Shurman, The Philippines, 9 Yale Law Journal 222, October 1899-July 1900.
[24] Supra, note 16.
[25] E.g. 1921, 1924, and 1935 Declarations of Moro leaders.
[26] Supra, note 18.
[27] Peter Kreuzer and Mirjam Weiberg, Framing Violence: Nation and State-Building, PRIF Reports No. 72, Peace Research Institute Frankfurt (2005), p. ii.
[28] UNDP, 2005 Philippine Development Report, Human Development Network (Manila, 2005), p. 29.
[29] See the original Public Land Law of 1903 (Act No. 926, as amended by Act Nos. 2874, 3517, and C.A. No. 141)
[30] Manuel L. Quezon III, Repulsion and Colonisation, Today Newspaper, April 28, 1996. Also available at http://www.quezon.ph/thecolumn.php?which=23.
[31] President Manuel L. Quezon, cited in Repulsion and Colonisation, supra.
[32] For accounts of the Ilaga and their correlation to the founding of Moro liberation fronts, see e.g. Salah Jubair, A Nation Under Endless Tyranny, and Thomas McKenna, Muslim Rulers and Rebels, Anvil Publishing (Manila, 2002).
[33] The preamble of the FPA states that the parties “affirm the sovereignty, territorial integrity, and the Constitution of the Republic of the Philippines”. At the end of the agreement, it also states “any conflict in the interpretation of the agreement shall be resolved in the light of the Philippine Constitution and existing laws”. (Par. 153, FPA)
[34] Report of the Secretary General on the Question of Muslims in Southern Philippines, Submitted to the 33rd Islamic Conference of Foreign Ministers, Baku, Azerbaijan, June 19-21, 2006.
[35] GRP Report on the Status of Implementation of the !996 GRP-MNLF Final Peace Agreement.
[36] Par. A(2) GRP-MILF Tripoli Agreement of 2001.
[37] 1987 Constitution, Article XI, Sec. 2.
[38] Estrada vs. Distrito, G.R. No. 1467105, March 2, 2001; Lozano vs. Aquino G.R. No. 73748, May 22, 1986.

28.9.07

DIMINISHING RETURNS FOR US IN PHILIPPINE ENGAGEMENT EXCEPT IN MINDANAO

Diminishing Returns for US in Philippine Engagement Except in Mindanao
By: Ishak Mastura (LL.M., J.D.)

While Manila's rumor mill and the general public are preoccupied by the latest intra-elite scandal on the Chinese-funded $330 million National Broadband Network project wherein one faction of the oligarchic elite identified with the Speaker of the House of Representatives, Jose De Venecia, (no less than his son and namesake Jose De Venecia Jr., a telecommunications businessman, is involved) is pitted against the partisans of Mike Arroyo, the husband of President Gloria Macapagal Arroyo, there is an ongoing geopolitical realignment in East Asia in which the Philippines is slowly but surely becoming a focus of geopolitical machinations similar to the part that Lebanon plays in the Middle East. The ground zero of this realignment is not the self-satisfied "imperial" center in Manila but in its southern region of Mindanao.

While the Philippines may possibly no longer be called as the "sick man of Asia" because recently it has been showing signs of a shaky economic vitality growing 7.5% in GDP in the second quarter this year (which growth is primarily attributed to the pump-priming effect of national and local election spending by the oligarchic elite candidates in May), political instability remains a fact of life in the country with fresh rumblings of the coup prone military's restiveness. This political instability makes the Philippines inward looking and this is true as well for the Armed Forces of the Philippines (AFP), which is tied down with the decades-long insurgencies of the Communist New People's Army and the separatist Moro Islamic Liberation Front (MILF) and Moro National Liberation Front (MNLF) in Mindanao, and as such, it cannot even begin to defend the country's airspace and maritime borders.

One consequence of this chronic weakness of the Philippines is that its traditional ally and former colonial master, the US, is increasingly looking to partner with Indonesia and Vietnam since it views these two countries as emerging Regional Powers. As the world's 4th and 11th most populous states, with strong economic growth, sizable armed forces and historical wariness of China, Indonesia and Vietnam are seen by the US as having the potential and inclination, as they modernize their economies and military forces with US assistance, to serve as autonomous counterweights to Chinese influence in Southeast Asia (Twining, D., "America's Grand Design in Asia", Washington Quarterly, Summer 2007). As both strategic partners and independent centers of strength, they may prove more important than traditional US allies, Thailand and the Philippines, which for economic and cultural reasons appear to be growing more comfortable with rising Chinese influence in Asia even as their neighbors become more wary (Twining, 2007). The Philippine economic elite, for example, is dominated by the so-called Taipans or ethnic Chinese oligarchic businessmen. Philippine business is identified with the ethnic Chinese, as the national and local business chambers' leadership and membership can attest. Thailand's erstwhile Prime Minister Thaksin Shinawatra is an ethnic Chinese and their largest conglomerates are ethnic Chinese-owned.

Moreover, in the US assessment, Thailand and the Philippines do not possess the long-term power potential of Indonesia or Vietnam (Twining, 2007).

Indications are that the Philippine military assistance from the US for FY2008 will be diminished to $11 million from previous highs when Mindanao in the south was declared as the second front on the war on terror and US troops were deployed to assist the AFP in interdicting the criminal and terrorist Abu Sayyaf group in Basilan island in the Sulu archipelago in 2002. The Sulu archipelago is strategically located astride the major shipping route for the biggest oil tankers passing through their preferred route of the Lombok Strait then the Makassar Strait in Indonesia before going through the Sibutu Strait in the Sulu Sea and then either through the Mindoro Strait or through the Palawan Passage out to the South China Sea.

However, in one aspect is the US interest in the Philippines not being diminished and that is in USAID projects in Mindanao with the latest signing of the multi-year Mindanao Peace and Development Agreement worth $190 million. The Economic Support Fund (ESF) for FY 2008, which starts October 1, will increase from $25.9 million, up from the 2005-2006 levels of $24.7 million. The ESF promotes economic development and access to education in Mindanao. Under the Bush administration proposed appropriations, Development Assistance will also increase from $14.9 million last year to $22.9 million.

The reason for this is the need for US presence in Mindanao to complete a strategic encirclement of China in its periphery wherein "bringing up the rear to the forward bases in Taiwan , would neatly close the circle." (Ahmad, A. "At the mouth of a volcano", Frontline, Volume 19, Issue 14, July 6-19, 2002). No wonder that Chinese Navy strategists also appear to view the US presence in Japan, Taiwan, and the Philippine south as forming a "blockade" of China's legitimate maritime security interests (Cole, B., "Chinese Naval Modernization and Energy Security", Institute for National Strategic Studies, National Defense University, 2006 Pacific Symposium, Washington, D.C., July 20, 2006).

US presence in Mindanao has already been achieved through the Joint Special Operations Task Force based in Zamboanga City with US contingents in other Philippine bases in the Sulu archipelago and the rest of Mindanao, particularly in the Muslim Moro-dominated areas. The US can probably live with the fact that they are not subject to attacks by the local Moro population or the Moro revolutionary fronts, the MILF and the MNLF (whose military activities are now confined to Sulu island alone) because their massive economic assistance to the Moro areas of Mindanao allows them free rein (or gives them the excuse) to go wherever they want.

More importantly for the US Pacific Command is that the US navy including their submarines have free passage and unquestioned semi-permanent presence in the vital Sulawesi-Sulu Seas corridor while being allowed to resupply from nearby US military posts inside Philippine bases in Mindanao through its Mutual Logistics and Services Agreement and Voluntary Forces Agreement with the Philippine government, achieving a veritable "offshore or hovering base presence" (ala the science fiction or comic book rendering of a hover base). However, one international NGO, Focus on the Global South, has reported in August that the Pentagon has designated its operating base in Sulu as "Advance Operating Base 920". Focus, said that in June 6, 2007, the US Naval Facilities Engineering Command awarded a $14.4-million contract to Global Contingency Services LLC of Irving, Texas for “operations support” for the JSOTF - Philippines.

Lately, the premise has also been laid that the Sulawesi-Mindanao Arc is part of the so-called "ungoverned territories". These are geographical areas in the world in which a state faces significant challenges in establishing control. The 2007 RAND study (Ungoverned Territories, Understanding and Reducing Terrorism Risks, RAND, 2007) says that "ungoverned territories can be failed or failing states, poorly controlled land or maritime borders, or areas within otherwise viable states where the central government's authority does not extend" (RAND, 2007). In the case of Mindanao, particularly the Moro rebel-controlled areas and the surrounding Moro population centers as well as the vast tracks of inhospitable terrain that the Moros occupy, the area is considered by the RAND study as an area of "contested governance" where the Moro ethnic groups refuses to acknowledge the legitimacy of the government's rule and pledges loyalty to some other form of social organization, such as an insurgent movement (i.e. MILF), tribe or clan or other identity group. In most cases, areas of contested governance such as Muslim Mindanao, the groups contesting the state's authority are seeking to establish their own state-like entity.

The utility of designating Muslim Mindanao, which includes the Sulu archipelago where US presence is most felt, as an "ungoverned territory" and as an arena of contested governance by the Moro ethnic groups is that it allows the US military to insert its presence without much protest or resistance from the central government since they are effectively not within the writ of the central government's authority. So no matter the protestations of violation of sovereignty by the central government, the very fact that there is contested governance means that the consent of the Moros are all that the Americans need to operate in the area once the formalities with the central government are ironed out in the guise of logistics access agreements. So far with the massive economic assistance of the USAID, the Moro consent to US presence in their territories has been facilitated and no American soldier has been targetted by insurgent attacks by the Moro rebel groups.

Moreover, it is in Mindanao that the two strategic vectors of the Pentagon's third Quadrennial Defense Review (QDR) 2006 converge. These two vectors are: "the so-called long war against Islamic radicalism, and an increased emphasis on shaping the behavior of China by means of military "dissuasion" (Conetta, C., "Dissuading China and Fighting the 'Long War'", World Policy Journal, Summer 2006). The strategy of the "long war" allows for the policy framework for more U.S. interventions abroad as we are now witnessing in Mindanao. However, according to one critic:

"The long war as envisaged in the QDR defines an agenda and scope of action for the US military that is virtually indeterminate - insofar as its purview encompasses the entire Muslim world. Identification of the enemy tend to be categorical, rather than specific, and the criteria for inclusion in the enemy camp tend to be highly subjective. This approach to defining enemies runs the risk of dissipating American efforts and precipitating threats where none presently exist." (Conetta, 2006).

The strategy of the "long war" is finally revealed as the cover for US "claim-staking" to dissuade other rival powers or potential regional hegemons, in particular China according to the QDR, "against a proscribed behavior (or path of development) by persuading an opponent that it is unlikely to achieve its ends at an acceptable cost." (Conetta, 2006). As the economic and military gap with China is bound to narrow in the coming decades, the US may be able to limit China's future options in other ways, but that will depend on the outcome of the "long war." (Conetta, 2006). Ultimately, what unites the two strategic vectors is that it emphasizes the maintenance of US primacy as an overarching goal and approaching the long war as integral to that effort as a means of dissuasion to future rival powers (Conetta, 2006).

Mindanao is an arena of "claim-staking by the US whose presence is justified by the "war on terror" or what is now known as the "long war."

While China is busy in Manila buying-off through its economic diplomacy the oligarchic elite by offering enormous sums for infrastructure development with few strings attached, the US has concentrated its aid money in Mindanao to serve its strategic ends. Given the unreliability of the Philippines as a bulwark against China, the US is hedging its relations with a rising China by assisting the rise of strong neighbors along China's periphery and specifically this does not include the Philippines but relies on India, Indonesia and Vietnam (Twining, 2007).

As the Philippine center of economic gravity (i.e. the taipans are investing heavily in the Chinese mainland) shifts to China and draws the Philippines to its orbit, the US is hedging by cultivating its relationship with the Moros in Mindanao, particularly the rebel movements represented by the MILF and the MNLF. The United States Institute for Peace (USIP) Philippine Facilitation Project, which was supposed to dialogue with the MILF for a negotiated political settlement of the Moro struggle for self-determination, ended this year and has not been renewed because the US is shifting from Track 2 diplomacy to Track 1 diplomacy with the MILF by dealing directly with the MILF through US embassy personnel and not through intermediaries like USIP.

The current US policy is to help the peace process along towards a peace agreement between the MILF and the Philippine government. This policy allows the Philippine government breathing space to put its economic and governance house into order while at the same time curries favor with the Moros desirous of an end to their conflict situation.

If the peace process drags on, the US will have to step-in eventually to apply the necessary pressure to the Philippine government to offer substantial concessions to the Moros to forge a peace agreement. While others have said that a peace agreement is not necessary for US aims in Mindanao, they forget to mention that it is actually the peace process that facilitates the US entry into Moro homelands otherwise without the peace process and a modicum of stability where there is an ongoing ceasefire between the MILF and the Philippine government, the situation would be more like Somalia or Afghanistan with daily attacks and ambuscades or a situation of low-intensity guerilla warfare which might pull the Americans to fight in a war that is not their own and provides no strategic rationale since what they want is just a military presence in the area.

Among the wildest scenarios if the Philippine government is not able to forge a peace agreement with the Moros and war breaks out again in Mindanao, is that the Sulu Archipelago might break-off or spin-off from the rest of the Philippines through American sponsorship by invoking the 1898 Kiram-Bates treaty wherein the US granted the then Sultanate of Sulu the status of a protectorate. The protectorate was unilaterally cancelled by the US subsequently but the Moros of Sulu were not a party to it so it is not inconceivable that it may be invoked by the US as a form of intervention. Breaking-off Sulu to be its protectorate would mean that the US can establish a permanent base in Sulu plus there is the potentially huge hydrocarbon bonanza in the Sulu Sea where US oil supermajor, Exxon, is already engaged in oil and gas exploration. The US even if it is desirous only of Sulu as a base of operations would have to use the MILF, the bulk of whose forces are in Central Mindanao, as a hedge against the AFP and similar to the Anbar Awakening strategy in Iraq it would have to arm the MILF to keep the AFP occupied in mainland Mindanao. Eventually, the Philippine government would have to concede that it did not have the military power to ensure Philippine territorial integrity and may just ask for Chinese assistance to keep its war effort going and setting-up a stage for proxy war between the Chinese and the US. This scenario sounds inconceivable but stranger things have happened in history.

The best option then for the Philippine government and the US government in order to avoid serious destabilization in Mindanao and the Sulu archipelago is to complete the peace process and sign a peace agreement with the MILF as soon as possible wherein a Moro Homeland emerges as an anchor of stability in the region.

# # # #

I will write more about the implications for other countries like Japan, Indonesia, Malaysia, Australia, etc. regarding the Mindanao scenario.