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.

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.

NO SCOOP IS WORTH SENDING AN INNOCENT MAN TO JAIL

PRESS STATEMENT
AUGUST 7, 2007

NO SCOOP IS WORTH SENDING AN INNOCENT MAN TO JAIL

Once again, a member of the Muslim community was arrested without warrant. Once again, someone was subjected to physical abuse to force him to admit to a supposed terrorist plot. Once again, there is an attempt to hoodwink the public and to prostitute the judicial process through evidence that was not only unconstitutionally obtained but all indications point to its spurious nature. Once again, there is an attempt to earn media mileage points at the expense of protecting the public by going after those who are truly guilty. Once again, an excuse is being manufactured to have another escalation of hostilities in Mindanao .

Around two weeks ago, a poor man from a far-flung farming village in Maguindanao came to Metro Manila on board a ship in search of a way out of poverty. His name is Kaharudin Talib and like many others from Mindanao and other parts of the country, his route out of poverty is to land a menial job in the Middle East as an OFW. For this purpose, he obtained a passport and set a day to go to the recruitment agency.

But Kaharudin’s hope – a hope which countless other poor people in this country share - suddenly vanished last Friday, August 3, 2007, WHEN HE HIMSELF VANISHED. On that day, he was picked up and arrested WITHOUT A WARRANT by joint elements of the PNP-SPD and ISAFP. And for three straight days and nights, he was held incommunicado. Frantic families and neighbors sought the help of lawyers whose efforts to locate him were unsuccessful. The PNP-SPD denied that they have custody and instead pointed to the ISAFP. But the ISAFP also denied having custody over him and, as if playing a sort of SICK GAME only they can possibly find amusing, likewise pointed to their counterparts in the PNP-SPD as the ones with custody.

This, in itself, already indicates a sinister plan by the PNP and ISAFP.

But what is an even stronger indication of a sinister plan was what transpired the day following Kaharudin’s arrest. On Saturday afternoon ( August 4, 2007 ), members of the PNP went to Kaharudin’s residence and AGAIN WITHOUT A WARRANT AND WITHOUT COORDINATING WITH BARANGAY OFFICIALS as they are required under the law searched his place for supposed bombing implements. The search was initially conducted in the presence of Kaharudin’s housemates. But when no evidence was found even after each nook and cranny was searched, THEY ORDERED EVERYONE TO STEP OUTSIDE THE HOUSE. Only after giving themselves moments to search the house without effective supervision and witnessing did the cops allow the residents to step inside. AND LO AND BEHOLD! It was only then that a bomb was “found”.

The other evidences are of equally spurious nature. Even disregarding the constitutional inadmissibility of the supposedly incriminating text messages, the nature of those messages proves their manufactured nature rather than the guilt of Kaharudin. Why would supposed terrorists send messages in plain Tagalog? Why not in his dialect? To make their incriminating nature more obvious for the media and the public? To make it easier to convince the public that this person is really a terrorist? Wouldn’t anyone engaged in a sinister crime at least try to hide their crime by sending instructions in coded messages? Who sent those messages? Even a stranger who has someone else’s number can easily send such an incriminating message if he wanted to produce an “evidence” against that person. And when were those messages sent? Before or after the arresting officers had already possession of it? Sadly, these questions cannot be resolved as of now because THE POLICE REFUSED TO ALLOW ANYONE BUT THEMSELVES TO SEE THOSE TEXT MESSAGES, a clear indication that it is of spurious nature.

These and many other sinister aspects surrounding Kaharudin’s arrest and the attempt to pin a crime on him are the reasons why we, members of several law groups, have taken an interest in this case. NOT ONLY ARE THE BASIC CONSTITUTIONAL RIGHTS OF A PERSON INVOLVED IN THIS CASE BUT THE SPURIOUS NATURE OF THE SUPPOSED “EVIDENCE” AGAINST HIM STRONGLY INDICATES HIS INNOCENCE.

But this case involves not just Kaharudin and his family and friends. The public themselves have an utmost interest in this case. The public has a right to be protected from heinous crimes like terrorism. But when law enforcement agencies insist on pinning an act of terrorism on a clearly innocent person, AREN’T THEY IN EFFECT LETTING THE TRUE CULPRITS GO FREE??? Is their need to show to the public concrete results in their counter-terrorism campaign so strong that they don’t mind apprehending innocent people and letting guilty ones free??? Do such conduct from law enforcement and security agencies lead to better protection of the public, or are they only exposing the public to more risks? In other words, do the PNP and ISAFP deserve commendation or condemnation for the arrest of Kaharudin.

We are aware that the PNP, through one member of the media, presented a supposed confession by Kaharudin. But:

WHEN YOU BEAT UP A PERSON, HOLD HIM INCOMMUNICADO FOR 3 DAYS AND NIGHTS, PREVENT HIS FAMILY AND LAWYER FROM SEEING HIM, AND WHILE IN AN ENCLOSED POLICE STATION SURROUNDED BY THE VERY SAME PEOPLE WHO MOST LIKELY MANHANDLED HIM, ASK HIM LEADING QUESTIONS WHEN BEING INTERVIEWED BY A SOLE MEMBER OF THE PRESS …IT WOULD BE A MIRACLE IF HE DOESN’T OWN UP TO ANY CRIME YOU ASCRIBE TO HIM, EVEN THAT OF ASSASINATING JOHN F. KENNEDY AND NINOY AQUINO!!!

Thus, we remind our friends in the media of their profession’s code of ethics. We urge them not to allow themselves to be used in the abuse of a person’s constitutional rights.

THERE IS A THIN LINE BETWEEN GETTING A SCOOP AND BEING MADE A PARTY TO A POLICE INTERROGATION AND ILLEGAL CONFESSION. NO SCOOP IS WORTH SENDING AN INNOCENT MAN TO JAIL.

ASSOCIATION OF MUSLIM ADVOCATES OF LAW
BANGSAMORO LAWYERS NETWORK, INC.
MUSLIM LEGAL AID FOUNDATION, INC.

Basilan Offensive: Limited Police Action or All-Out War in Disguise?

Press Statement

BASILAN OFFENSIVE: LIMITED POLICE ACTION
OR ALL-OUT WAR IN DISGUISE?

“Limited police action”, that is how the hawks in government and military describes the impending offensive in Basilan to assure the people that it will not lead to another all-out war. We have heard this phrase before.

In year 2000, this was also the phrase used in the aftermath of the Ozamiz ferry bombing. In year 2003, it was again used in the aftermath of the Davao city airport and wharf bombings. And from what transpired in those years, we all know the truth behind that phrase – ALL OUT WAR!

The 2000 and 2003 all-out wars led to thousands of deaths - combatants and civilians alike - and a million and a half internally displaced people. The reconstruction and return of the refugees have not even been completed and yet we are staring at the specter of another all-out war as a consequence of the Basilan encounter between the Armed Forces of the Philippines (AFP) and the Bangsamoro Islamic Liberation Front (BIAF).

Therefore, we who come from various sectors and civil society organizations, who represent the true stakeholders of the Mindanao Peace Process, whose voices are drowned by the drums of war and jingoist calls for revenge, declare the following:

1. We condemn in no uncertain terms any and all atrocities and human rights abuses or any failure to respect the provisions of Protocol II of the Geneva Conventions BY ANY SIDE to the Mindanao Conflict;
2. We are disturbed at the attempt to exploit the legitimate outrage over the Basilan incident into calls for all-out war and abandonment of the GRP-MILF Peace Process;
3. We are disturbed at the disproportionate media coverage of atrocities committed by identified as Muslims versus those committed against them;
4. We strongly condemn the efforts to manipulate public opinion into acquiescing to another all-out war disguised as another “police action”;
5. We appreciate and commend the intense efforts of responsible people of both the AFP and the BIAF, as well as the respective peace panels of the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) and their respective ceasefire committees (CCCH) to defuse the volatile situation. We are aware of their difficult task made more difficult by the noise of the warmongers;
6. We also appreciate and commend the International Monitoring Team (IMT), and members of the international community particularly the governments of Malaysia, Japan, Canada, the United States, the European Union, and member countries of the Mindanao Trust Fund of the World Bank who have joined the calls for sobriety and reason;
7. We call on the Filipino public to educate themselves on the roots of the Mindanao conflict and not to take events into isolation but rather put it into the context of the long history of the conflict. We call on you to exercise your reason and to bear in mind that joining the calls of war will lead to the suffering of millions of people of all faiths in Mindanao;
8. We call on the media to observe the code of ethics of their profession and to be balanced and responsible both in their reporting and editorials;
9. We join the earlier calls of both government and civil society leaders in Mindanao (Mindanao Peaceweavers, Presidents of Catholic Universities and Colleges in Mindanao, Consortium of Bangsamoro Civil Society, ARMM Business Council, ARMM Regional Government) call on the government to refrain from any act that will irreversibly injure not only the peace process but also the welfare of the peoples of Mindanao;
10. We demand from the AFP and the BIAF to strictly adhere to their agreed upon ceasefire mechanisms as the only way to prevent repetitions of the Basilan encounter; and,
11. And we demand on all parties concerned, particularly the GRP and the MILF, to ensure sustainable peace by earnestly addressing the root causes of the Mindanao Conflict.


NO TO ALL OUT WAR IN MINDANAO DISGUISED AS LIMITED POLICE ACTION!

NO TO WAR, YES TO NEGOTIATED SOLUTION OF THE MINDANAO CONFLICT!

RESPECT THE CEASEFIRE MECHANISMS OF THE GRP-MILF PEACE PROCESS!

GUARANTY SUSTAINABLE PEACE BY ADDRESSING ROOT CAUSES OF THE MINDANAO CONFLICT!

Alliance of Muslim Advocates of Law (AMAL)
Assembly of the Dar’ul Ifta
Bangsamoro Lawyers Network (BLN)
Bangsamoro Center for Law and Policy (MoroLaw)
Consortium of Bangsamoro Civil Society (CBCS)
Mindanao Interfaith for Human Rights Advocacy (MIHRA)
Mindanao Solidarity Group
Young Moro Professionals (YMP)

Condemning the Basilan Encounter

From the Plains of Kutawato

By: Atty. Zainudin S. Malang

The statements of condemnation were swift in coming. Invariably, they all expressed shock and revulsion at the beheading of the Philippine Marines. Some hawks and hawk-wannabes in the legislature issued calls to arms and for the government to abandon its negotiations with the Moro Islamic Liberation Front (MILF). They were joined by many members of the media. A welcome surprise, however, was the initial statements from the executive and military which called for sobriety and candidly admitted failure to observe ceasefire mechanisms which were precisely agreed upon to prevent encounters between the Armed Forces of the Philippines (AFP) and the Bangsamoro Islamic Armed Forces (BIAF) while the peace talks are ongoing.

True, the beheading of the Marines is an atrocity that is rightfully condemned. Even the Black and White Movement’s press statement correctly pointed out the mutilation of one’s enemies are proscribed in the Qur’an and, thus, un-Islamic. But while I was quick to join BnW’s statement of condemnation, I was also quick to remind that we must be prepared to condemn any and all acts of barbarity and cruelty. Revulsion at one atrocity while ignoring another will not serve the cause of peace and will only encourage repetitions of such tragic incidents, bearing in mind always that one person’s barbarity may be another person’s revenge.

A related incident that has not been getting as much media and public attention – in fact belated and minimal – as the be beheading of the Philippine Marines is the reported mutilation of an Imam in the same village earlier on the day of the encounter. How we react to both incidents or ANY incident involving violations of rights of ANY person coming from ANY faith will determine if communal relations between Muslims and Christians in this part of the world can look forward to a positive future.

I have had many instances to share with Muslims and Christians alike my thoughts on inter and intra communal dialogue and how it is impacted by the issue of "terrorism". The argument I have always put forth in all my private and public statements is that awareness by Filipinos of what Moros are doing to ostracize those who would misuse Islam may perhaps reduce the resentment arising from the perceived acquiescence of the latter to atrocities committed in the name of Islam. That awareness in turn may move Filipinos to join the Moros' calls for respect for their rights and reduce their resentment at the former's perceived acquiescence to violations thereof.

A common statement among Moro human rights advocates is that if the national public devoted as much news coverage and op-eds to atrocities committed against them, the pages of all the broadsheets from front to back will not be enough. For instance, the kidnapping of Fr. Bossi in Zamboanga Sibugay has been occupying the front pages for weeks now and has been rightly condemned by people of all faiths. But for years now, Imams and Ustadzes from Zamboanga Peninsula to Davao Peninsula have been "disappearing" with nary a footnote in the national consciousness.

In an online discussion forum made up of members of Mindanao’s civil society, I wrote:

"For example, when Christians like Manong Pat ask ‘if the Philippine government will propose a similar plan to isolate and contain the Abu Sayyaf, will Filipino Muslims toe the line?’, wouldn't it be good to let them know what steps are being taken by their Moro activist friends to help ostracize religious extremists and expose them as religious frauds? Imagine yourself as such an activist trying to convince your own community to stand up to terrorists and be more outspoken. Given that most people at the grassroots see themselves as victims of both the ASG and the AFP, generating the right response is not as simple as it seems. Still, eventually one notices the Dar'ul Ifta issuing statements of condemnation, even Khutba. Radio talk shows in the vernacular start talking about the evil of indiscriminate violence, especially if religion is used as an excuse. We also see the liberation fronts not just being outspoken but actually cooperating in operations. Perhaps if more Christians knew of all these steps being taken by Moros themselves, then there might be less resentment for the latter's perceived acquiscence to ASG atrocities. And then, in turn, perhaps more Christians would join Muslims in calling for the AFP to respect the human rights of Moros who would also feel less resentfull at the seeming indifference to violations of Moros' human rights in the course of counter-terrorism."

Though clearly tragic, the latest Basilan incidents offers us another opportunity to look at the larger picture, examine the roots of the conflict in Mindanao, instead of taking the beheading of the Marines in isolation from all the incidents of physical, political, economic, and cultural violence during the 100 years of the Moros' incorporation in the Philippine republic. Incidents of atrocities are part of the much larger conflict that has been going on for centuries. Sadly, it is these type of incidents that are given prominence (and only those that are committed by Muslims and not those which are committed against them) and not the earnest efforts of people to settle the conflict via peaceful means.

Incidentally, Cito Beltran in his July 13 column asked "how much longer before those who mourn (for the Marines) will turn against the 'Muslims' in Metro Manila?". Such a rhetorical question as well as the strong statements that came from some of our honorable congressmen and senators forebodes of a slippery slope and the only way we can prevent it is if we are able to look at the Basilan incidents in the context of the totality of past and present events in Mindanao.

For the longest time, Metro Manila saw no need to examine the conflict with a critical eye and read between the lines of events in Mindanao as reported. It is high time it does so. Of course, I may be preaching to the converted here. Perhaps, we just need to spread that message.

The Two Faces of Counterterrorism Strategy in Mindanao

By Ishak Mastura

On the one hand there is that prevailing thought that “Counterterrorism is now 90 per cent law enforcement and intelligence,” according to Jonathan Stevenson, a senior strategist with the International Institute for Strategic Studies based in London . “Since Sept. 11, the only overt military actions have been the Predator (missile) strike in Yemen , and the wars in Afghanistan and Iraq – and I don’t think there will be many more. I think there’s a much higher priority placed on law enforcement and intelligence now. It’s not a traditional war.” (The Globe & Mail/Canada, September 6, 2003).

On the other hand, there is the Pentagon push, which is being felt in Mindanao, for regional militaries to establish control over what is called “ungoverned spaces” – urban shantytowns where gangs operated, borders, coastlines, and rivers where arms, drugs, and human smuggling took place, and jungle and rural areas where guerillas and terror cells could take root (Washington Office on Latin America, “Blurring the Lines: Trends in U.S. Military Programs with Latin America,” September 2004). Such a vision of international security implies a major expansion of the role of the armed forces in domestic affairs, “eroding the fragile firewall between police and military operations that human rights activists had fought so hard to erect since the end of the Cold War” (Grandin, G., Empire’s Workshop, 2006). In June 2005, for instance, Washington encouraged Central American nations to create a regional “rapid response” team composed of military and police units that could deal with cross-border drug trafficking and gang violence – an operation that harkens back to the 1960s, when U.S.-created rapid response units turned themselves into death squads (Ibid). In the Philippines, U.S. Special Forces have conducted training at the company level of the Philippine military to establish Light Reaction Teams, that are supposed to pursue JI and Abu Sayyaf terrorist groupings, but which in turn have been used to suppress Moro rebel groups fighting for legitimate Moro grievances, such as the Moro National Liberation Front (MNLF) and the Moro Islamic Liberation Front (MILF).

In the case of Mindanao, the U.S. relationship with the Moros is as old as that of its relationship with Latin America since it began in the age of American imperial expansion in 1898. Volumes and reams of papers have been written about the American success at the pacification of the Moros and the establishment of a separate Moro Province uniting the different tribal groupings of the Moros into one unified body politic. The failure is on the part of the Filipinos who took over the governance of the Moros from the Americans from Philippine independence in 1946 despite warnings that the Filipinos could never govern the Moros and that the animosities between the two would be rekindled sooner or later.

The question for U.S. policy makers is: Does the U.S. want to completely throw away all that history of its Military and Economic success for the Moro Province established by the likes of Generals John Pershing, Arthur MacArthur, Trasker Bliss and Leonard Wood, legends in their own time in the American pantheon of great generals?

Asia expert, Michael Vatikiotis, in his article “Brain not Brawn, the key to winning the War on Terror” (http://www.opinionasia.org/, April 4, 2007) showed us examples of success in counterterrorism operations by highlighting the differences in approach of Indonesia and the Philippines . “If there is one lesson to be learned from the war against terror as it has been waged in Southeast Asia , it is that good intelligence and careful police work rather than brute military force are the best counter terrorist strategy. And some of the best police work has been conducted in Indonesia, where many so-called terror experts once believed the government would be least effective in countering the terrorist threat”, he says. The success of Indonesia in its counterterrorism operations is in no small part attributed to the training in police and detective work and small unit operations provided by the U.S. Special Forces, FBI and Australian Federal Police.

And now we hear that the Australians have signed a Status of Visiting Forces Agreement with the Philippine government to conduct military trainings (operations?) in Mindanao . How different can the counterterrorism operations in the Philippines be from that in Indonesia , which is the source of the jihadists in Mindanao ?

In parting, my best advice for the U.S., Australia and other interested international actors in Mindanao is to identify the Moros that can be on your side, befriend them, offer them support on their legitimate aspirations (particularly regarding the peace process with the MILF), and you can be sure of longer term gains in the Great Game as China looms on the horizon. After all, the Moros are Muslims and what is critically important for the West is engaging the Islamic world since the Filipinos are already co-opted into the Western fold.

The Root Cause of Electoral Fraud, Violence and Vote-Vending in the Autonomous Region in Muslim Mindanao

By: Algamar A. Latiph

Once again we witnessed the nasty politics of violence and flood of allegations of vote rigging in the Autonomous Region in Muslim Mindanao. What has been largely ignored is the region’s prevailing poverty, political and socioecomic inequalities where electoral fraud and violence are rooted. United Nations’ official Topfler Klaus said that “when people are denied access to clean water and air to meet their basic human needs, we see rise of poverty, ill-health and a sense of hopelessness. Desperate people can resort to desperate solutions.”

Being consistently listed in the “Bottom 10 (2003)” of the Philippine Human Development Report 2005, the five provinces of ARMM confirmed their sorry state of inequalities and ebbing human development. They occupy PHDR’s “Bottom 10” in its category of the: Most Poor Provinces; Human Development Index (where Basilan, Maguindanao, Sulu and Tawi-Tawi are in the lowest rank); Per Capita Income (except Lanao del Sur); Basic Enrollment (except Tawi-Tawi), and; Gender Development Index (except Lanao del Sur).

As regards life expectancy, they placed at the lowest with Tawi-Tawi at 51.2 years (PHDR 2005). The National Anti-Poverty Commission’s Summaries of the 40 Poorest of the Poor Municipalities disclosed that 65% of the municipalities are from ARMM of which three are among the 13 municipalities where election failed on May 14, 2007. The NAPC’s database, likewise, revealed that the region’s 351,230 households have no access to water, this is equivalent to one-third of its registered voters.

These inequalities result to 1.8 million migrants all over the country in search of opportunities. Beyond the region’s boundaries, discrimination and exclusion confront Muslims thereby narrowing their choices. Job hiring, school admission, house leasing among others are just few instances of discrimination. Out of the 663 inmates in Camp Karingal ’s Women Jail Dormitory Facility, 94 come from ARMM (2005 data from the Muslim Legal Assistant Foundation). This is 14% of the jail’s population which is sharply disproportionate with the Muslims’ less than 2% population in National Capital Region. None of the inmates finished secondary school; they found themselves living in slum areas and all are unemployed.

On the other hand, perception of the 47% of the Filipinos is that Muslims are terrorist/extremists according to the Pulse Asia Ulat ng Bayan March 2005. It also found that 55% believed that Muslims are prone to run “amok” and about 33% to 44% have anti-Muslim bias. It is surprising however that only 14% of the respondents had experience interaction with Muslims while 58% based their judgment from media. It show how media’s negative portrayal of Muslims unduly affect stereotyping. In the later part of the election candidates’ theatrics in the media unraveled their stereotyping, and derision of the region’s people as cheaters with their culture of violence.

The region has experienced centuries of violent and painful history in defending their freedom from foreign domination. The 20th century was highlighted by exhaustion from struggle from the systematic policy of driving them out of their fertile ancestral land in which they are now a minority. The densely militarized region is host to 1.38 Million internally displaced persons brought about by armed conflict from 2000 to 2004. Since 1971, the armed conflict claimed 120,000 lives.

As a body politic, ARMM meets the profile of a failed region where it did not only breed electoral violence but, to an extreme, a terrorist group—Abu Sayyaf Group. The current political violence is a sad reality of Moro versus Moro. It is a violence devoid of any political ideologue neither personal animosity. Owing to the absence of choices within the region, politicians are not motivated by power and prestige but a control of the limited wealth in the local units or districts—the Internal Revenue Allotment or Pork Barrel Fund. A victory in election will secure a three-year uninterrupted flow of millions of money. Politicians spend millions to buy votes since “return-of-investment” is assured. The scenario in the region’s politics is that the cost of violence is worth an investment. That is the reason that politicians’ drive to ensure victory and the sense of losing the election increase political tensions and, at times, result to bloodshed.

In abstract, a ballot is more than a piece of paper; it is a paper where the highest expression people’s supremacy in governance is cast. But this exists only in law books. In ARMM the ballot has yet to serve its constitutional utility of building a “just and humane society.” Though it lost its altruistic value, the ballot is not a meaningless paper but a commodity that can yield money worth more than the expected delivery of public goods and services. And can be used as leverage in accessing basic human subsistence.

In The End of History and the Last Man, Francis Fukuyama states that Philippines is “masks [by] enormous disparities in wealth, prestige, status, and power, which these elites can use to control the democratic process.” The region’s political and socioeconomic inequalities had given birth to political slavery where political dynasty gestated and, in exceptional cases, political warlordism evolved. In this system, open political participation is systematically eliminated denying the possibility of equal access to public office in order to institutionalize political monopoly. It is a process of selection among members of the family instead of free election. It is based on ones’ influence in the family rather than platform of government. Qualification, competency and character play no role. Public accountability succumbs to bloodline loyalty.

Patronage politics thrives because of the political symbiotic-dependency between the politicians and the poverty-stricken majority. The former provides for basic human subsistence in exchange of the latter’s continued patronage. Supporters will be in a three-year payroll that would somehow satisfy basic human needs for job, food and health. Being of limited choice, one has no sufficient freedom to break the bond. Freedom and liberty are elusive to men with empty stomach whose faculties are too infirm to exercise freewill.

A different scenario however exist in the case of political warlordism where fear and reign of terror is employed to assure political submission; the leverage of money-politics plays a minimal role. The will of the people is snatched by the barrel of the gun. On the other hand, there is phenomenon on the increasing numbers druglord-turned-politician. In Lanao del Sur it is an open-secret that there are at least seven of them holding mayor position. And there is anticipation that they will control the provincial seat as well as the congressional post in the near future.

Family kinship contributes to the perpetuation of warlordism where family members serve as foot soldiers. More often than not, the history of rido (clan feud) among the candidates fuels electoral violence. This is the underlying cause on the failure of election in the 13 municipalities in Lanao del Sur on May 14, 2007. Likewise, the technical aspect of the election aids dynasty and warlordism in preserving their political domination. Instead of modern electronic voting which is free from human intervention what is used is the Jurassic process of paper voting on the sheets of ballots, election returns, statement of votes, and certificate of canvass which can be physically hijacked and doctored. The current process gives election staff wider latitude of discretion making it susceptible to bribery and intimidation.

Vote-rigging in the national level is attributable to national candidates themselves being logically the sole beneficiary of the cheating facilitated thru their operators and their political disciples in the region. Cheating with respect to local positions is very remote as they are under the scrutiny of watchful eyes of the local candidates. National candidates’ absence of concrete agenda and ideological principle in governance intended to alleviate the region’s inequalities thereby lacking any campaign platform to attract votes in the region. It is no wonder that the region perceived that the “government is the principal party to blame and hopelessness under the present set-up.” (PHDR 2005).
In terms of representation, political opportunities are reserved for the few elites. Philippines is “a society dominated by social elite, most often of large landowners, who are neither tolerant of other classes nor efficient entrepreneurs,” according to Francis Fukuyama. This is a bitter fact but its degree of impact is worst with respect to ARMM.

More than three quarters of the members of the House of Representative belong to political dynasty; the Senate is not an exception. While the Lower House is equalized by geographical representation, Senate’s (including the Senators-elect) balance of power is iniquitously tilted toward imperial Manila where half come from NCR (12% of national population) and each provinces of Cavite, Sorsogon, Iloilo, and Zambales have two. The ARMM which has 10% of the population has yet to have its Senator for a decade and without Sen. Pimentel, Mindanao would not have any representation.

It may be argued that this unequal representation is tempered by the creation of ARMM. This is far from truth. The Office of the Regional Governor, has yet to be freely elected. At present, it is Malacanang’s anointment. Since its creation, elections were postponed eight times; and there were eight instances where ARMM officials’ term of offices were extended by the Congress without election. Apart from this, the Southern Philippines Development Authority was inactivated by virtue of Executive Order No. 149 for almost five years, it was activated only few months ago.

It seemed that the root causes of the fraud and violence are not appealing to politicians as well as the media that it rarely have their equal attention. The region gets that extraordinary interest only when there is blood-letting during election and armed conflict. In this election the question on Moro Problem and inequalities have been hardly taken seriously. What was underscored in the media is the issue on who will control Congress rather than what Congress can do to the failing region. This political timidity is not surprising. Congress is dominated by northern politics, its members’ approach and perception to the region’s inequity is subjective than structural. “Dominant groups tend to be unaware of social inequalities… [they] tended to see person-related causes of war [in this case political violence], while non-dominant Muslims prioritized structural causes of the conflict.” (Montiel, C.J. and Macapagal, E.J., Effects of Social Position on Societal Attributions of an Asymmetric Conflict, Journal of Peace Research, Vol. 43, No. 2, 2006, pp. 219-227).

When job, health care, education, food and water, and physical security are wanting choices are shut off. The hapless marginalized people become vulnerable and exposed to exploitation aggravated by government’s impotence to guarantee human security. Nobel laureate W.A. Lewis in his Theory of Economics pointed out that increase in per capita income “gives a man greater control of his environment, and thereby increases his freedom.” But the State has failed to create a condition in which human development and security can be realized; where people choices and opportunities are much wider and where they could have greater control of their environment. Today’s politics however is not that encouraging: it is built on a high wall of intense and uncompromising political antagonism where constructive political cooperation is jettisoned.

It is Congress’ constitutional duty to dismantle dynasty. Unfortunately conflict of interest exist, Congress itself is ruled by different species of political dynasties. Legislative measures to make IRA and Pork Barrel spending more accountable and transparent are far from its agenda. International development agencies, who are pouring billions of pesos in ARMM, are not that helpful in making the country and other institutions more accountable on fund they received to alleviate the region’s inequalities. This gives wide perception that profits are taken out of the region’s misery. It is disturbing on how the visible political warlords exist in a society claiming to be governed by rule of law. It will not require a legislation to disarm private armies, with the military might of the State it is sufficient to destroy their existence. With these bleak scenarios and the political oblivion on the issues concerning the Bangsamoro, the ruling dynasties and warlords, therefore, will flourish while the cycle of electoral fraud, violence, and vending will persist.

It would appear that the region’s human development’s figures show that Bangsamoro, decades, has been denied of their right to live with human dignity.

ARMM Economics 101: Lesson 1 (The Big Picture)

FROM THE PLAINS OF KUTAWATO

ARMM ECONOMICS 101
(LESSON 1): THE BIG PICTURE

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

I am not an economist by profession but I would like to think my knowledge about economic issues confronting the Bangsamoro are better than average. Although a lawyer by profession, I had acquired a deeper understanding of what drives economic phenomena from my studies and work. I hold a masters degree on international economic and business law and another masters degree on regional integration, both from Asian and European universities. I also worked for several years as an investments consultant at the heart of Metro Manila’s central business district. Thus, I consider myself better equipped than many holders of an undergraduate degree in economics. One time, I even found myself explaining a seminal work on economic theory to such a degree holder, a classmate in one of my foreign studies.

I am mentioning all of these to drive home the point that my return to Cotabato allowed me to use whatever little knowledge on economics I acquired from my work and studies to bear upon the situation existing in the Bangsamoro. So, what is the situation?

First, lets start with some figures. Gross regional domestic product which refers to the total value of goods and services produced in the ARMM. Official census figures show that the ARMM population is about 4% of the total population. Thus, common sense tells us that our share in the total national production should approximate the same percentile, even more if we are more productive than average. Yet, per official figures, our share in the total production of goods and services is less than 1%. The situation becomes more glaring when we compare our level of production with others. CARAGA, which is the poorest non-ARMM region in Mindanao, contributes 1.5% to the national total. This means that their production, already poor as they are, is nonetheless 50% higher than ours.

What this points to is that we are not engaged in enough economic activity, either as an employee, a farmer, a fisherman, or engaged in business. Since we are lagging in the level of economic activity, it comes as no surprise then that we have the highest level of poverty in the entire Philippines. Poverty incidence, is the percentage of the population living below the poverty level and according to the World Bank, the region-wide figure is 67%, meaning 2 out of every 3 residents of the ARMM are poor. (one component province even has a 92% poverty incidence or more than 9 out of 10). If people are not gainfully employed, or not tilling enough lands, or not engaged in a profitable business, then we cannot expect them to lift themselves out of poverty.

So, the region is poor, its residents are poor. How about its regional government? Is it as poor or is it better off than its constituents? Figures vary depending on which office you ask but I do remember a graph I downloaded from the website of the national government’s Department of Budget and Management which clearly acknowledges that the ARMM had the smallest regional allocation of expenditure at P11 Billion with CARAGA having the next lowest at P14 Billion (circa 2002; the website did not provide data for succeeding years). But let us go one step further in our analysis. Let us assume that the ARMM has the power to collect all types of taxes, unlike at the moment wherein national internal revenues are excluded from its power. Under that assumption, will the regional government be able to raise the funds it needs to operate, to fund its projects, to pay the salaries of its workers? You wish!

One basic rule of taxation is that you cannot tax that which has no capability to pay. Simple enough, right? Wala na ngang kita si Bapa at si Babo, sisingilin mo pa ng buwis! And as the figures on gross regional domestic product and poverty incidence have shown, we are not producing enough, we are not economically active enough, and we are not earning enough. What we therefore have, as tax practitioners and revenue officials would say, is a very small tax base.

Therefore, the way out of the rut we are in all goes back to increasing our productivity, to being engaged in a productive economic activity, in one way or another. But this, of course, is easier said than done. Like most of the ARMM’s problems, things are not that simple.

To induce an increase in economic productivity requires investments, whether public (meaning the government or some other public institution funds it) or private (meaning the money belongs to a private entity). Public investments can either go into the production of public goods such as roads or it can go to proprietary activities similar in a way to those undertaken by private companies. But we face a few problems in this regard. First, we have learned that the regional government is in no fiscal position to invest. The bulk of its budget goes into the salaries of its employees. We also know that the national government is cash trapped and has to contend with a fiscal deficit year in and year out. In fact, some renowned economists have suggested that the national government may go the way of Argentina’s when it defaulted on its obligations and went bankrupt. This leaves us with other public institutions, e.g. the donor community, on which to rely for public investments.

But those who have been observing the manner by which aid money is spent in the region are frustrated, to say the least. Maybe this is worth writing about more in the future but for now, suffice it to say that juxtaposing poverty figures with the figures showing when, where, and how much aid money was poured into the region shows that there has been very little, if any, positive impact on the region as a whole. I wonder how many of the readers have heard of the EDSA-type Sulu Circumferential highway. I almost banged my head against a concrete wall when I first heard of this project that sought to build a multi-lane (on each side) highway that will rival the North Luzon Expressway and put EDSA to shame. Can’t we do with a two-lane concrete road? Talk about a warped sense of priority in spending the region’s meager funding. As expected, the project is not even half-finished.

With public investments offering not much relief, maybe private investments can. Maybe those who have poured millions, if not billions, of pesos in other regions will also do the same in the ARMM. Well, I have worked as an investments consultant for years and let me share whatever little I know about how private investors think. Given a choice between putting up my factory in Laguna, or Davao, or Cagayan de Oro, or the ARMM, which location would investors most likely choose? The simple but painful answer is anywhere but the ARMM. Like it or not, perception or reality, they see the region as not a healthy place in which to do business.

Thus far, the economic picture I have painted is undeniably bleak. And with both private and public investments written off as a way to increase our productivity, is there no way out of our depressing predicament? Maybe there is. And I will explore this in my next installment on ARMM Economics 101 subtitled “Lesson 2: Increasing Productivity”.

(Atty. Zainudin S. Malang is the Director of the Bangsamoro Center for Law and Policy. This article appears in his column in the Mindanao Cross under the title “From the Plains of Kutawato”. Comments may be sent to morolaw@yahoo.com)