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Saturday, August 16, 2008

Philippines:Agreement with MILF unconstitutional?

THis is from Malaya.
There are so many objections to this agreement from the courts and many citizens and politicians that it seems as if it is doomed not to be implemented. This in turn may result in increased conflict as MILF may see no hope in negotiations at the present time. The U.S. seems to be involved in all this behind the scenes. I doubt the U.S. would want independence for the area included under the agreement. It seems unlikely that the area would be favorably inclined to grant the U.S. a military base but then you never know. The region is quite poor on the whole.


'Clear Charter violations'SC hearing finds wholesale infirmities in pact
BY JP LOPEZ
ASSOCIATE Justice Antonio Carpio yesterday said several provisions of the Constitution were violated in the memorandum of agreement on ancestral domain that the government was supposed to sign with the Moro Islamic Liberation Front last week.
At the start of the oral arguments at the Supreme Court, Carpio said the expansion of the Autonomous Region for Muslim Mindanao with the creation on Bangsamoro Juridical Entity, as proposed in the MOA, does not take into consideration the existence of tribal groups in the area other than the Moro people.
The tribunal is hearing the arguments on the petitions of North Cotabato and Zamboanga and Iligan cities which are opposing their inclusion in the expanded ARMM.
On North Cotabato's petition, the high court last week issued a temporary restraining order, aborting the MOA signing scheduled August 5 in Kuala Lumpur.
Motions for intervention were also filed by Sen. Mar Roxas, former Senate President Franklin Drilon and United Opposition spokesman Adel Tamano.
Carpio said tribal groups, particularly Lumads, were not consulted on whether they want to be included in the BJE.
The MOA proposes the inclusion of 712 barangays from the non-ARMM provinces of Lanao del Norte, North Cotabato, Sultan Kudarat, Zamboanga Sibugay and Palawan.
The ARMM is composed of Maguindanao, Tawi-Tawi, Basilan, Lanao del Sur, Sulu and Shariff Kabunsuan.
A plebiscite will be held next year in these barangays as proposed in the MOA.
Carpio said the MOA also violated the Constitution in a provision which states that the BJE would maintain its own security force. He said the Constitution provides for a single police force, national in nature and civilian in character.
The national police, he added, should be under the National Police Commission and not any other entity.
Carpio said another violation is that the MOA did not commit the legislative to approve the agreement to pave the way for a plebiscite if it is brought to Congress.
A provision calling for the creation of a separate justice system for the BJE is likewise a clear violation of the Constitution. Carpio said under the Constitution, the country must have a unitary justice system headed by the Supreme Court.
On the plebiscite, Carpio said it encroaches into the power of the legislature to schedule a plebiscite to decide on such issues.
Carpio said the BJE cannot have its own electoral body because the Commission on Elections is the only authorized electoral body.
NO SECESSION
Supreme Court Chief Justice Reynato Puno rejected the creation of a separate state in Mindanao, saying the Constitution does not allow secession but only autonomy.
"The most that can be done is autonomy. It should be done within the framework of the Constitution, national sovereignty and territorial integrity of the Republic of the Philippines," he said.
CONSTITUTIONALITY ISSUE
Drilon said he was compelled to raise the constitutionality of the MOA because the earlier petitions raised only the issue of "non-consultation with the public."
"This was understandable because when the North Cotabato officials filed their petition, they were not yet given a copy of the MOA. Thus, their lawyers were unable to question the unconstitutionality of its provisions," Drilon said.
Unless permanently barred by the court, Drilon and Tamano said the members of the GRP panel would be acting "beyond their constitutional authority and jurisdiction and represents a grave abuse of discretion amounting to a lack of jurisdiction."
Drilon and Tamano said their interest in the case was material and direct. "The MOA is blatantly injurious to intervenors who are citizens of the Republic of the Philippines, eroding, as it does, the national sovereignty and territorial integrity of the Philippine state," the petition said.
"The peace panel exercised powers beyond its constitutional authority, effectively ceding the entire Muslim-Palawan-Sulu geographical territory to the MILF and creating within that region a state separate and distinct from the Republic."
DUE PROCESS
Earlier in the day, the tribunal dismissed a petition of Solicitor General Agnes Devanadera to defer the oral arguments.
Devanadera said the government motion was a request for "due process."
In an interview before the hearing, Devanadera said, "The reason for the request was that there were interventions filed . and we were not even asked to file comments. that is part of due process . we shouldn't be going to court unless we have inputs."
Devanadera said they needed more time to answer all the petitioners and coordinate with the government peace panel.
FLAWED MOA
Roxas welcomed the high court decision to proceed, saying there is a need to resume the oral arguments so that the court can determine the constitutionality of the agreement.
"The MOA-AD is flawed in the process just as it is flawed in its provisions. What was lost in the process was an appreciation for legitimacy in a democracy that stems from winning consensus, including the consent of the governed," he said.
"The MOA violates many provisions of the Constitution, which strangely enough the memorandum never mentions by name," he added.
Roxas also alleged that the government could be trying to "cover up" something in the MOA. "It's impossible that government lawyers won't be able to answer questions about the MOA since they prepared it," he said.
The Supreme Court adjourned the hearing past 5 p.m. and scheduled a second hearing for oral arguments on August 22.
DELAYING TACTICS
Roxas said it was clear that the government legal panel headed by Devanadera could not provide a clear explanation for the actions of the GRP panel that negotiated the MOA.
"In creating this MOA, the peace panel knew the people wouldn't accept the agreement if consultations were held. In the same way, they know they would be unable to argue their case in the Supreme Court, hence the resort to delaying tactics. Dalawa lang ang isyu dito: ang kakulangan ng konsultasyon, at constitutionality," he said.
Senate majority leader Francis Pangilinan pushed for the renegotiation of agreement.
"THE MOA should not be forced down our throats. The credibility of this peace pact is now highly suspect with MalacaƱang pressing for Cha-cha along with it, and the flawed, exclusive process undertaken to have the agreement," he said.
CHARTER CIRCUMVENTED
Roxas said the business sector has added its voice to the millions of Filipinos who are opposing the controversial agreement.
He said the Makati Business Club in a statement summed up how the government peace panel has disregarded the people's interests and circumvented the Constitution.
The MBC statement said it opposing the MOA "because it is flawed in the process just as it is flawed in its provisions."
"What was lost in the process was any appreciation for legitimacy in a democracy that stems from winning consensus, including the consent of the governed. Many, if not all, of its provisions violate the Constitution, which strangely enough the Memorandum never mentions by name ."
The MBC also said the MOA "will result in a diminution of Philippine sovereignty as it empowers its juridical creation to enter into economic agreements and trade relations with foreign countries, to open trade missions abroad, and to participate in meetings of the ASEAN and UN specialized agencies where only sovereign states take part."
MINDANAO INDEPENDENCE
US Ambassador Kristie Kenney said the US does not believe that independence for Mindanao is appropriate.
At the 45th founding anniversary of the National Defense College of the Philippines at Club Filipino in San Juan, she said a lasting peace agreement would "be a good deterrent to terrorism, good for security and would help spur economic development in Mindanao."
On questions about her presence in Kuala Lumpur for the MOA signing, Kenney said, "I was invited as a member of the diplomatic corps of the Philippines."
She called "pure speculations' reports that the US plans to build military bases in Mindanao, the reason for its strong support for the peace process.
"I have a very honest answer, no. We do not have plans to have military bases in the Philippines, not in Mindanao, not anywhere," she said. - With Ashzel Hachero

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