Decolonize the Philippines, adopt a new constitution

By Rudy Buhay Rodil

ILIGAN CITY (MindaNews/18 March) -- Kuala Lumpur, Malaysia. January 27, 2010: the peace negotiating panels of the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) met to exchange position papers based on seven points earlier agreed upon, namely, (1) Identity and citizenship, (2) Government and structure, (3) Security arrangements, (4) Wealth-sharing, natural resources and property rights, (5) Restorative justice and reconciliation, (6) Implementation arrangements, (7) Independent Monitoring. The MILF complied but the GRP proposed enhanced autonomy, not following the aforementioned seven points. In effect, it offered an amendment to the present Organic of the Autonomous Region in Muslim Mindanao. The MILF refused to meet the following day. A similar thing had been offered twice earlier, in May 2000 and in 2003. This is the third. They saw no point in the meeting. The two positions are so far apart one is immediately led to believe that no comprehensive compact can be expected within the term of President Gloria Macapagal-Arroyo, before June 30, 2010.

I will not add to the remarkable details and lucid insights assembled in the analysis of my mentor, Mr. Pat Diaz. What I will do is to view the problem from another angle.

In the first place I ask the question. Is it the Moro problem we are trying to solve? Or the GRP problem?

If it is the Moro problem, it has been with us since 1968, almost 42 two years to date.

A series of major Moro organizations articulated Moro aspirations. The Muslim Independence Movement (MIM) said it wanted to put up an Islamic State in predominantly Muslim areas of Mindanao-Sulu-Palawan (Minsupala). President Ferdinand Marcos responded by appointing its leader, former Cotabato Governor Datu Udtog Matalam, as presidential adviser on Muslim affairs. The organization died but the seed had been sown.

The Moro National Liberation Front (MNLF) emerged immediately after and loudly proclaimed the birth of the Bangsamoro, and their intent to liberate the Bangsamoro from the clutches of Philippine colonialism and establish a Bangsamoro Republic in Mindanao-Sulu-Palawan, their ancestral homeland. The war netted more than 100,000 lives and cost the government more than seventy billion pesos in combat expenses alone. The GRP-MNLF peace negotiations that followed produced the Tripoli Agreement which established the Autonomous Region for the Muslims of Southern Philippines. It took 20 years before the two parties could agree on how to implement. Finally in 1996, they signed the Final Peace Agreement on the Implementation of the Tripoli Agreement, but 13 years have passed and the government has yet to fully implement its provisions. And the government admits it.

Perceiving that the Bangsamoro cause has been compromised, the MILF refused to accept the 1996 agreement and announced its resumption of the Bangsamoro struggle for self-determination. From January 1997 to the present, two big events were happening at the same, an active war in 13 provinces of Mindanao-Sulu Archipelago and a peace negotiation. Over the years the MILF has narrowed down its pursuit to the creation of a political entity somewhere in between the present autonomy and independence and very much an integral part of the Republic of the Philippines.

So, if I may reiterate, what is the GRP problem?

Since the time of President Marcos, from the first negotiating panel to the 18^th, yes, Chairman Rafael Seguis is the 18^th panel chair on the government side, the GRP position has been consistent: to uphold national sovereignty and the integrity of the Philippine territory; it agreed to negotiate but only within the framework of the Philippine constitution. The constitutional part became more specific in Article X of the 1987 Constitution. But the Moro problem remains unsolved.

This was why the Tripoli Agreement was acceptable to the GRP. It is new in Philippine political history, has 16 paragraphs and paragraph 16 says that the entire agreement was to be implemented in accordance with constitutional processes. It took 20 years for the two parties to agree on what that exactly means. But despite the 1996 accord, the GRP seems hesitant to fully implement it.

Thoughtful military officers who have fought in the Moro front since they were junior officers claim that the military has fought for 40 years; between 100,000 to 120,000 lives have perished, 50 percent were MNLF, 30 percent were AFP, and 20 percent were civilians; Php 73 billion have been spent in combat expenses alone. But the Moro problem is still there very much alive and kicking. It is obvious to them the war is not the answer.

In the negotiation front, the constitution is the main GRP framework for solution. The GRP is on its 18^th peace panel chair and the same framework has been used. This is perfectly understandable. Every government employee as a matter of fact must swear to uphold the constitution as soon as he or she joins government service. How much more peace panel members who represent the republic through the office of the President. Still the Moro problem remains. Can we also say the constitutional solution is faulty?

It might help clarify a number of things if we review a series of interrelated events in Mindanao history.

The first event is the Treaty of Paris. Every Bangsamoro peace panel, whether MNLF or MILF, claims that they have never been colonized by the Spaniards but the Spaniards included them in their cession of the Philippines to the United States without their plebiscitary consent.

As a Mindanao historian who has done more than my share of historical research I know this to be true. As an assertion of our Filipino point of view, I should add that at the time of the Treaty of Paris, December 1898, it is doubtful if there was any part of the Philippines that Spain owned and could cede to the United States because the Filipino revolutionary leaders had declared Philippine independence in June of the same year.

The Cordillera was one territory she never colonized; the same may be said of Lumad communities which retained their independence through avoidance of contact with the Spanish forces. So, it is not only the Bangsamoro who should complain that they were never asked whether or not they wished their territory to be part of the Philippines; the Filipinos, too, and the Cordillerans and the Lumad – colonizers do not ask colonial victims for their consent. All this, of course, becomes moot and academic because we lost in the war against the Americans. As a consequence, we all became colonial subjects of America, in a colony they now called the Philippine Islands.

The second event is the marginalization of the indigenous Lumad and Moro communities of Mindanao starting with the American institutionalization of the ownership and disposition land through the imposition of the regalian doctrine and the torrens system. This means that the United States has become the owner of the new Philippine colony and reserves the right to pass laws to dispose of the land to its inhabitants. The US colonial government started the process by passing a law declaring as null and void all land grants made by traditional leaders if made without government consent.

At that point, 1903, no such traditional land grant had government consent. The legislative mill then churned out the public land laws and implemented the government resettlement program . Vast territories were opened for resettlement from north to south of the archipelago. This was how Filipino settlers from Luzon and the Visayas inundated Mindanao. In less than sixty years from the inauguration of the agricultural colonies in Cotabato in 1913 to 1970, the process displaced the Lumad and Moro communities from their traditional territories. And this was all legal, mostly at least, executed by government with government support.

Colonial government, and subsequently the Philippine government created the very conditions that marginalized the native Lumads and Moros in their own lands. The settlers who took part in the program unwittingly also contributed to this marginalization. So, now we have the Moro problem. And the Lumad problem. Threatened with extinction and aspiring to survive with dignity , both must now assert their right to self-determination within their respective ancestral domains.

The third event is the grant of independence to the Republic of the Philippines in July 1946. Filipino political leaders were responsible for the series of events that led to the Jones law in 1916, the Tydings-McDuffie Act of 1934 and the Treaty of General Relations in 1946 which recognized the grant of independence. The 1935 Constitution defines Philippine national territory in Article I, Sec. 1, as follows:

“The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

Notice that this constitution, as does the 1987 constitution, upholds the legitimacy of the Treaty of Paris. Our sovereign republic is a direct product of colonial logic. The official line of the United States government was that there were no nations here (in the Philippine Islands), only different tribes fighting one another. But somewhere along the way, American officials made sure that the Sultan of Sulu waived his sovereign powers in favor of the United States of American. So, in the end, when it granted independence it was only to one Republic of the Philippines whose sovereign people are called Filipinos.

The Bangsamoro Struggle for self-determination

The Bangsamoro leaders’ political position challenges the very foundations of our present sovereign state. There is no question about this. And to defend national sovereignty and maintain the integrity of national territory, every government of the republic must uphold the constitution. And in any political negotiation it conducts with the MNLF or the MILF it is duty-bound to use the constitution as it guide and framework. But this is the very constitution that upholds the legitimacy of the Treaty of Paris! This is the very constitution that upholds the primacy of colonial logic in the formation of our Philippine republic. This is the very same logic that led to the marginalization of the indigenous peoples of Mindanao. And now, is the government saying that we should use the same tool and the same colonial logic to correct the historical injustice perpetrated upon the Bangsamoro and the Lumad?

If we uphold the legitimacy of the Treaty of Paris through our constitution, must we also de-legitimize the celebration of our national independence on June 12, 1898? If we do, this will in effect render meaningless President Diosdado Macapagal’s order to move celebration of independence from July 4 to June 12.

If we uphold the legitimacy of the Treaty of Paris through our constitution, are we not in fact upholding colonial principles against democratic principles?

To solve the Bangsamoro problem, it seems that we have to make a number of major decisions. One, we have to complete the decolonization of the country and declare the Treaty of Paris as a colonial legacy that must go. Two, uphold the legitimacy of the Sultanates of Sulu, Sultanates of Maguindanao as de facto states in their own right at the time of the Treaty of Paris. Three, reorganize the Philippine republic on the basis of consent of the governed. Needless to say, we have to adopt a new constitution.

(Prof. Rudy Buhay Rodil was vice chair of the government peace panel that negotiated with the MILF until the MOA-AD of 2008. Previous to that, the Mindanao historian and history professor, an expert on Moro and Lumad histories, was a member of the GRP peace panel that negotiated and forged an agreement with the Moro National Liberation Front (MNLF) from 1992 to 1996. Before becoming a panel member, Mr. Rodil was a member of the Regional Consultative Commission that drafted the Organic Act of Muslim Mindanao).

18 March is the 42nd year of Jabidah Massacre

Jabidah massacre
http://en.wikipedia.org/wiki/Jabidah_massacre

"THE CORREGIDOR MASSACRE - 1968"
http://www.corregidor.org/Heritage_Battalion/jabidah.html

Senate bet to push for inclusion of women in gov’t peace panel

by Rico Biliran/MindaNews
Tuesday, 16 March 2010 23:50

DAVAO CITY (MindaNews/16 March) - Re-electionist Sen. Pia Cayetano said she will push for the inclusion of women in the government peace panel in peace talks with the Moro Islamic Liberation Front (MILF). “We will work for the inclusion of women in the peace panel with the provision stated in the law," Cayetano, a Nacionalista Party senatorial candidate, told reporters here over the weekend.

Cayetano, who is also the president of the Coordinating Committee of Women Parliamentarians of the Inter-Parliamentary Union (IPU), said that under the Magna Carta for Women, "women's group shall also be represented in international, national, and local special decision-making bodies.'

"The peace panel is a decision-making body. If it’s not, what's that?" the senator, a co-author of the law, asked.

Cayetano’s statement came just as peace advocates called for the possible appointment of women to the government peace panel to replace businessman Tomas Cabili and former South Cotabato Rep. Adelbert Antonino, who resigned as peace panel members last month.

The current government panel is headed by Foreign Affairs Undersecretary Rafael Sequis with Agrarian Reform Secretary Nasser Pangandaman and indigenous peoples leader Ronald Adamat as members.

Last year, female protesters were credited for helping end Liberia's 14-year civil war through aggressive sit-in style demonstrations, including at the country's peace talks.

Pastor Reu Montecillo, co-chair of the peace group Mindanao Peoples Caucus (MPC), said Malacanang should consider a suggestion that the panel include women as it would bring women’s perspectives to the peace negotiations.

“Women are the primary bearers of the weight of conflicts, so it would be wise to have their voice in the panel,” said Montecillo in a statement.

"Peace panels headed by women have better chances of forging a peace agreement expeditiously rather than those headed by men," said former senator Santanina Rasul who is a former adviser of the government peace panel that forged a final peace accord with the Moro National Liberation Front (MNLF) in 1996.

Rasul believes women are the "missing ingredient" in the ongoing peace negotiations between the Philippine government and the MILF.

The former senator said the government should make use of women in the peace negotiations by making the head of the peace panel a woman.

Asked if she and NP presidential standard bearer Sen. Manny Villar would overhaul the peace panel if they win in the May 10 general elections, Cayetano replied "No need".

"We have a law that clearly warrants the participation of women in the peace panel. We can do it now," she said.

Cotabato Rep. Emmylou Talino-Mendoza earlier declared her support to the designation of two women as new members of the government peace panel.

In a local daily report, Speaker Prospero Nograles strongly endorsed the inclusion of two women as members of the five-person government panel negotiating peace with the MILF.

Nograles said there are many women leaders in Mindanao such as noted peace and human rights advocate and director of the Philippine Council on Islam and Democracy (PCID) Amina Rasul, and civic leader Margie Moran Floirendo, both of whom have a strong understanding of the MILF rebellion.

In a related development, a total of 397 peace advocates actively took part in the conclusion of the nationwide "Dialogue Mindanaw" at the Datu Amirbahar H. Jaafar Convention Center of the Mindanao State University in Tawi-Tawi.

The outcome of the dialogues would help government and MILF peace negotiators in finding a genuine and lasting solution to the Mindanao problem, according to the Office of the Presidential Adviser on the Peace Process (OPAPP).

“Dialogue Mindanaw” is a series of consultations launched by the OPAPP in collaboration with civil society to provide the people, particularly the stakeholders the opportunity to air their views and opinions on the ongoing peace process. (Rico Biliran/MindaNews)

Mindanao youth want to assert voice in peace talks, governance and development

by H. Marcos C. Mordeno/MindaNews
Tuesday, 16 March 2010 23:44

DAVAO CITY (MindaNews/15 March) -- Politics was the main fare tackled in a gathering recently held in Davao City by some 100 youth leaders from all over Mindanao, and speaker after speaker urged the participants to get involved in it. But something was conspicuously missing – the faces of politicians who would normally exploit such event especially with the May 10 elections just around the corner. Samira Gutoc, a youth leader from Marawi City, said the Mindanao Young Leaders Parliament was being deliberate in barring the politicians from interfering in the group’s affairs because “we are sacred” and “the nation’s leaders should recognize us”.

Waxing emotional in an impromptu speech before inducting MYLP’s new members, Gutoc hit politicians who she said only use the youth during elections. “Are there politicians who carry the youth agenda?” she asked, tears streaming down her face which was half-concealed with a colorful scarf. “Damn the politicians who would say na pangbasketbol lang tayo (that we’re only good in basketball),” she added.

“Our love for the young flows until…Forgive me for these tears. The tears I shed today were the same tears I shed 15 years ago when we were just starting with the National Youth Parliament,” she said.
This and other messages of inspiration guided the delegates in the 2-day parliament especially in crafting resolutions that matter most to the inhabitants of Mindanao. The resolutions focused on the peace talks, governance and development issues facing the island, one specifically calling for the inclusion of youth representatives in all government peace panels.

Earlier, Fr. Eliseo Mercado, who gave an update on the stalled peace process in Mindanao, said that he would welcome the youth to both panels “because the world belongs to them”.

“But it’s a political action on the part of the GRP and MILF. I just act as bridge, not an official of either party,” Fr. Mercado clarified.

He said that in the remaining three months of the Arroyo government it is very unlikely for the parties to reach a comprehensive compact and unlikely for them to forge an interim agreement. The best that could happen is to arrive at an agreement on executive doables to bridge the peace efforts of the current government to that of the next administration, he added.

Gutoc, who along with Fr. Mercado presented the Mindanao Agenda 2020, also welcomed the idea of having the youth in the peace panels. “The youth, women and children are missing in the talks when they are the ones who sacrifice in times of war.,” she noted.

Two other resolutions called for the implementation of Executive Order 570 mandating schools to integrate peace education in the curriculum.

Ironically, it was an elder in the civil society movement – Lito Lorenzana – who set the tone of the assembly by urging the youth to become active in politics.

“Focus, learn well, educate yourself on the possibilities, debate, open up political conversation among yourselves. A clash of ideas is the only way. But don’t be perverted by the system by always looking forward. Create a critical mass to hit the tipping point,” Lorenzana, president of the Technical Assistance for the Development of Rural and Urban Areas (TACDRUP), said.

But Lorenzana dodged the question who he will vote as president on May 10. “None of the above. I’m a system man. All of them are good people, but this is not a beauty contest. They will be perverted without a change in the system. We should be the ones to change it,” he said.

He gave an overview of how the presidential candidates in the May 2010 elections came to land in their current state, to illustrate the irrelevance of party politics as the guidepost for choosing the country’s leaders. He contrasted this with the strong party system in the US where voters choose their leaders based not on personal traits but on beliefs in a party’s ideology. He, however, noted that “Filipinos seem no longer affected by the crass opportunism of politicians”.

Aside from Lorenzana’s misgivings over the usefulness of parties as tools for political change, the delegates got heavy doses of inputs on the country’s overall situation, a large part of which portrayed the gloomy side of the economy, environment and social landscape as well as, bleak prospects for the May 10 polls. All the speakers blamed these problems as mainly caused by defects in the political system.

Assistant Defense Secretary Michael Eric L. Castillo pointed out that the economy is beset by such problems as lack of productive investment, extremely high unemployment and underemployment rates, budget deficit and growing foreign debt. Growth in Gross Domestic Product was only 0.9 percent in 2009 compared to 3.8 percent in 2008 and 6.4 percent in 2007, he said.

In addition, he said, there has been less hiring of new overseas Filipino workers, a major source of dollar remittances. Employers abroad tend to rehire old ones, a pattern which implies the low quality of new ones.

The official also cited pressing problems in the environment front particularly the country’s inability to cope with the effects of climate change such as extreme weather conditions and degraded air quality caused by the emission of greenhouse gases. He noted the increase in the number of typhoons from 2004 to 2007 (39) compared to only 27 for the period 2003-2007 Ondoy, which brought unusually heavy rainfall, proved the country’s inability to cope with disasters, he said.

Castillo shared his thoughts on the country’s automated election system. He said his view is different from that of Commission on Elections which declared that human intervention not the technology will cause a failure. He expressed apprehensions over the existence of double registrants, lack of information drive, delays in the training of teachers and technicians and printing of ballots, clustering of precincts and the absence of backup machines.

He quoted Comelec Chair Jose Melo as having said around 100 PCOS machines could fail, which the speaker said will affect the result and might result in a no-proclamation scenario.

The assistant secretary clarified that his presentation was not an official assessment of the Department of National Defense but just a personal view based on data from various sources, including news reports and government agencies.

Reacting to the inputs, Prof. Jose Ma. Cruz said: “I teach a topic on political ethics. I gave the students the unfinished statement ‘Politics is…’ to be made into 20 sentences. The answers of some 200 students alarmed me – politics is ugly, immoral, corrupt, where I don’t want to be, unfair, complicated, place for greedy people.
“So my question is, ‘will this work’? The first automated election system is done now. The youth are the most techno-savvy, but it seems we will have another generation of cynical youth. We have to work so hard before, during and after the elections. Fr. Jun [Mercado] has been in this work for 40 years. However, this is no guarantee to reach the Promised Land. It may take three generations. But whatever the result of the election, don’t stop dreaming.”

Diane Rodriguez, who works for an NGO, shared Cruz’s optimism.

“I’m going to say what other civil society groups have to say. We have to believe in things bigger than ourselves. Mindanao has many of the poorest provinces in the country. Leadership is the key hence the election is linked to this issue of poverty. A lot of subversion is happening in the uplands because the people there have no chance to better their lot. The election is for the youth and we have to make sure to be part of the solution,” she said.

The MYLP started in 2005 as an initiative of alumni from Mindanao of the National Youth Parliament until it became a network of young leaders from all provinces in the island.

Steve Laurence Arquiza, outgoing MYLP president, stressed that the organization is now focusing its efforts in the areas of peace in Mindanao, development (human, social, political, structural and environmental), and governance.

In the election conducted during the same forum, the parliament elected Hadji Balajadia, a faculty member at the Ateneo de Davao University, as new president. (H. Marcos C. Mordeno/MindaNews)

Journalists from 14 countries write GMA for justice to victims of Ampatuan Massacre

by MindaNews
Tuesday, 16 March 2010 11:01

JAKARTA, Indonesia (MindaNews/15 March) – Journalists attending a regional conference here have written President Arroyo an open letter to express their “deep concern” over the November 23 massacre in Ampatuan, Maguindanao that left at least 58 persons dead, 32 of them from the media, and to urge her administration and institutions of the state “to take the appropriate action to ensure justice is done and to create a better, safer environment for journalists in your country.”

The letter was signed by 29 journalists from 14 countries in East Asia, Australia and New Zealand.

“Their murder, and the death of countless other media workers in your country in recent years, will not be forgotten by us,” the journalists wrote.

The Ampatuan Massacre is the worst pre-election violence in Philippine history and, worldwide, is the greatest loss of life by news media in a single day.

The journalists were in a convoy from Buluan, Maguindanao, with one of the wives and relatives of Vice Mayor Esmael “Toto” Mangudadatu, and two female human rights lawyers, en route to the provincial office of the Commission on Elections in the capital town of Shariff Aguak in Maguindanao to file Mangudadatu’s certificate of candidacy for governor when stopped at the national highway in Ampatuan town by around a hundred men reportedly led by Datu Unsay mayor Datu Andal Ampatuan, Jr., who wanted to run for governor, unopposed, like his father did in 2007.

Six other occupants on board two vehicles who passed at the wrong time were taken in and herded along with the rest to Sitio Masalay, Barangay Salman, Ampatuan, some 3.5 kilometers at the foothills of Daguma Range, where they were mowed down.

Ampatuan Jr. has been charged with multiple murder while several key personalities from the clan like his father and brothers - were arrested for rebellion hours after martial law was declared over portions of Maguindanao on December 4.

In early February, a total of 197, among them the Ampatuans, were charged for conspiracy to commit the massacre.

“We are a group of journalists from around the Asia Pacific region who have gathered in Jakarta over the past few days to share our experiences of reporting in the region. Our goal is to produce better quality journalism, safely and in an unhindered manner. With this in mind, we call on you to mark this tragedy by taking concrete and positive steps to address the plight of journalists in the Philippines,” the letter-writers said.

The signatories are Carolyn Jones of Australia; Rohani hj Abd Hamid of Brunei; Colum Murphy, Hongkong, Rachna Bisht-Rawat of India; Ismira Luftia, Abu Hanifah and Warief Djajanto Basorie of Indonesia; Dong Won Kim of Korea; Faezah Ismail and Harlina Samson of Malaysia; Zaw Win Than of Myanmar; David Robie, Alan Samson, Graeme Rolf Acton, . Edward Gay and Julie Middleton of New Zealand; Rahim Ullah Yusufzai and Zahid Hussein of Pakistan; Carolyn Arguillas, Amy Pamintuan, Cynthia D. Balana, Charissa Matutina Luci, Edmund K. Usman, and Julmunir I. Jannaral of the Philippines; Tay Hwee Peng of Singapore; . Supara Janchitfah, Don Pathan and Somsack Pongkhao of Thailand and Pham Trung Bac, of Vietnam. (MindaNews)

Peace panels meet for Q and A session; 2 more NGOs in CPC

by Carolyn O. Arguillas/MindaNews

DAVAO CITY (MindaNews/05 March) – The government and Moro Islamic Liberation Front (MILF) peace panels met Thursday at the Sheraton Hotel in Kuala Lumpur for a “Q and A” session on the seven-page extract of the 38-page draft comprehensive compact of the MILF.

The panels agreed that the government peace panel will produce a draft in response to the MILF presentation, sources from both panels told MindaNews.

At the same time, the two panels approved the application of two groups -- the Cotabato City-based Mindanao Human Rights Action Center (MinHRAC) and the Marawi City-based Muslim Organizaon Government Officials and Professionals (MOGOP) -- for inclusion in the Civilian Protection Component (CPC).
Government peace panel chair Rafael Sequis told MindaNews by phone that “everything went very well.”

“The Q and A session ended this afternoon at Sheraton Hotel with optimistic note. The MILF panel replied to the questions raised by the GRP with clarity and candidness,” Seguis said Thursday night. But he did not elaborate on what questions the government raised and what issues the MILF answered with “clarity and candidness.”

MILF peace panel chair Mohagher Iqbal described the session as “blunt,frank, and tiring.”

“Perspectives differ: GRP constitutional, MILF negotiated formula. No document signed except the admission of two NGO members of CPC,” Iqbal told MindaNews in a text message. The Mindanao Peoples Caucus and Non-Violent Peace Force had earlier been named members of the CPC.

“It was extended to afternoon. We presented and explained our draft in Power Point. Then GRP grilled us. Then separate sessions for GRP and ICG then another for MI-ICG,” Iqbal said.

ICG is the International Contact Group (ICG) that was set up on December 3 and is initially composed of the United Kingdom, Japan and Turkey as member-countries and The Asia Foundation, the Geneva-based Centre for Humanitarian Dialogue, the London-based Conciliation Resources and the Indonesia-based Muhammadiyah as INGO members.

Iqbal said the ICG members were allowed to raise questions in the session after lunch.

Iqbal, in his speech at the Q and A session, posted in the MILF website, said the last time they were in Kuala Lumpur was for the supposed two-day 17th GRP-MILF Exploratory Talks on January 27 to 28.

“We exchanged drafts on the comprehensive compact on the first day, on January 27, but on the second day the Parties (did not meet) directly for reason all of us know. The lesson learned here is that the peace negotiation between the Government of the Republic of the Philippines (GRP) and Moro Islamic Liberation Front (MILF), like all similar negotiations, has rules of engagement to follow and agreed agenda to discuss and pursue through to the end.,” he said.

Iqbal explained that since 1997, the agenda of the talks had been on how to solve the “Bangsamoro Problem.”

The problem, he said, “involves a variety of social, cultural, economic and political issues and concerns,” so the task of the negotiators is “to find a political and lasting solution to this problem … with the end in view of establishing a system of life and governance suitable and acceptable to the Bangsamoro people.”

“The Tripoli Agreement on Peace on June 22, 2001 entrenched this further by providing that the negotiation and peaceful resolution of the conflict must involve consultations with the Bangsamoro, free of any imposition in order to provide chances of success and open new formulas that permanently respond to the aspirations of the Bangsamoro people for freedom,” Iqbal dded.

He noted that there was an “almost impasse” on January 28 because government offered as its draft comprehensive compact ‘old formula’ contained in the Republic Act 6734, as amended by 9054, that established Autonomous Region in Muslim Mindanao (ARMM).

But the ARMM, he said, “has never been the product of negotiation but a unilateral action of government through legislations or acts of the Philippine Congress.”

He said the so-called ‘enhanced autonomy’ offered by government is nothing new as it been offered to the MILF at least three times “and each time the offer was made the MILF rejected it outright.”

MindaNews recalls the first offer was made in May 2000 when peace talks resumed as government and rebel forces battled in Camp Bushra, Lanao del Sur. The second was in February 2003, on the eve of the aerial strike on Buliok and the third, according to Iqbal, on January 27 this year.

“The government also offered federal state to the MILF in April 2005 with the central government having exclusive powers over national defense, foreign relations, coinage and currency, and postal services, but the MILF rejected it simply because the government was not in a position to give it to us,” he said. The shift to a federal form of government requires constitutional amendment.

Iqbal added that the essence of the GRP draft presented in January is “contained in existing laws and policies or programs of government like strengthening of the Islamic banking, the Shariah justice system, madaris system, etc.”

“Why do we have to negotiate for something which is already given; and stated more seriously, why do we have to accept something that had already caused the marginalization of the MNLF (Moro National Liberation Front) and the irrelevance of its leaders --- who up to now are waiting for the GRP to comply with the spirit and letter of the GRP-MNLF Final Agreement on September 2, 1996?”

The MNLF had since divided into several factions with peace pact signatory Nur Misuari now running again for Sulu governor. Misuari ran but lost the gubernatorial race in 2007.

“If the peace talks is passing through a turbulent zone today --- and on the verge of signing nothing until President Arroyo’s exit on June 30, this year -- it is because the GRP is not very truthful to what is agreed by the Parties at the start of their engagement; i.e., for the MILF not to raise the issue of independence and the GRP the issue of constitution and territorial integrity. Up to now, the MILF has not breached this commitment, and we have declared time and again that the MILF will no longer pursue independence as solution to the Bangsamoro problem in favor of an asymmetrical arrangement of a ‘state-and-substate’ arrangement. An offer of bogus autonomy is no solution at all --- and the MILF will never accept, knowing fully well that our people and the generations yet to come will suffer forever,” Iqbal said.

Iqbal said the Philipine government “has not changed its ‘inside the box’ approach as far as its reference to its Constitution is concerned, when other states, which also have constitutions, like Sudan, Ireland, Indonesia, Papua New Guinea, and even Canada, have already succeeded to resolve conflicts in their borders to the satisfaction of the parties. They used their constitutions as vehicles --- and not as obstacles --- to solve their conflicts. As far as the MILF is concerned, the Philippine Constitution is a contested issue. We view this constitution as an instrument of perpetuation of the ruler-and-ruled relationship between the majority Filipinos and minoritized Moros. We have never been part of the decision-making since we were annexed as part of the Republic of the Philippines in 1946. Our part of Mindanao has continued to shrink and shrink, while our natural wealth is being carted away by outsiders without a share of the profit for our people,” Iqbal added.

Seguis was sought for comment but had not responded as of press time.

Iqbal recalled that in their joint statement on July 29, 2009, the first time the parties met again after the aborted August 5, 2008 signing of the then already initialed Memorandum of Agreement on Ancestral Domain (MOA-AD), they agreed to “acknowledge the MOA-AD as an unsigned and yet initialed document and they also committed to reframe the consensus points with the end in view of moving towards the comprehensive compact to bring about a negotiated political settlement.”

“The MILF indeed reframed the consensus points in both its 38-page draft on comprehensive compact and the seven-page paper on the Interim Governance Arrangement, while the GRP is so scared even to mention the word MOA-AD in its draft. Why is this so, after agreeing to that MOA-AD reframing?” Iqbal asked.

In closing, Iqbal said that “if some of my statements are blunt and direct, it is not my intention to hurt the feelings of people especially my honorable counterparts from the government headed by Ambassador Rafael Seguis. It is my way of bringing my message clearly as possible.”

The two panels were supposed to have met February 18 to 19 but this was reset to March.

MindaNews asked Seguis in late January on his panel’s alleged offer of the ARMM to the MILF but Seguis told MindaNews in a text message, “no substantive talks yet. Not in that context!”

In his January 28 press statement, Seguis clarified “there is no agreement yet” with the MILF.

“Both sides are still in the early stages of discussing each other’s position papers,” he said.

Though not explaining what kind of political package it was offering the MILF, Seguis in his press statement said the government’s draft peace agreement is “compliant with the Constitution and pertinent laws” and is “also guided by the Supreme Court decision on the aborted MOA-AD”

Seguis said the government’s 2010 draft peace agreement “mostly identifies executive ‘doables’, proposed legislative actions to strengthen regional autonomy, and openness to hear MILF proposals for constitutional change.”

“The GRP draft is clear that discussions that will concern legislative and other policy actions will still be proposals which would be submitted to Congress,” he said.

“There is no mention of any ‘Bangsa Moro’ sub-state in our draft,” Seguis added.

Iqbal told MindaNews the MILF has proposed a “State – Sub-state relationship” that would require amending the 1987 Constitution’s Article 10, Section 15-21.

Sections 15 to 21 of Article 10 on Local Government, focus on the autonomous regions. In the 1987 Constitution, these sections provided for the creation of autonomous regions in Muslim Mindanao and the Cordilleras but only the autonomous region in Muslim Mindanao has been created. The Cordillera region has remained an administrative region.

The arrangement, Iqbal said, would be “similar to Sarawak” in Malaysia. Malaysia has a federal form of government. (Carolyn O. Arguillas/MindaNews)

Prosecutors can't depend on "positive identification" in Maguindanao massacre case

Thursday, February 25, 2010

Prosecutors can't depend on "positive identification" in Maguindanao massacre case
3:32 PM ET

Danilo Reyes [Staff member, Asian Human Rights Commission]: "The decision of the Department of Justice (DoJ) that 197 people can be prosecuted for multiple murders in the deaths of 57 people in the November 2009 Maguindanao massacre, based largely on "positive identification" could be a concern. In order for the case to have the possibility of securing a conviction in trial, it cannot afford to depend largely on witnesses' oral testimonies and on the principle of "positive identification" alone.

In a country like the Philippines, where the public prosecutors and court judges still rely heavily on oral testimonies for deciding a "probable cause" to go for trial or to convict a person respectively, the prosecution of cases face the risk of being dismissed for lack of evidence or that the entire case could collapse once witnesses recant their testimonies or have their credibility questioned.

In order for the "positive identification" to stand in trial, it requires not only a mere facial identification of the accused by a witness, but also an adequate proof that the witness knew of or had met the accused before the crime took place. In the argument contained in the DoJ's resolution, however, this reasoning has not been fully explained. The fundamental requirements in which each witness should have knowledge to each of the accused has not been adequately mentioned. Having charges filed in court is not enough assurance that the families of the victims will obtain redress.

The Philippines has the reputation of poor conviction rates in cases of extrajudicial killings of human rights and political activists. For example, of over 900 cases of killings of activists reported since 2001, only three are known to have resulted to conviction. Most of the cases either could not be filed in court or were dismissed for lack of evidence, the failure to protect witnesses or the failure of the police to collect and preserve needed forensic evidence from the crime scene.

One example is the case of Enrico Cabanit, a land reform activist murdered in Panabo City in Mindanao on April 24, 2006. The local police failed to secure the material evidence needed from the crime scene; for example, not all the spent shells were recovered. They also failed to take photographs and sketches of the crime scene. Further, Cabanit's body was not subjected to autopsy and post-mortem examination, thereby deliberately depriving the possibility of promptly obtaining forensic evidence regarding the cause of his death.

Although police investigators were able to produce sketches of the gunmen based on witness accounts, their descriptions contradicted those of other witnesses present at the crime scene. The police also deliberately weakened the case by planting false witnesses as those who provided the gunmen descriptions were later found out to be persons who work as police informants or assets.

Cabanit's daughter, Daffodil, who is herself an eyewitness to his father's murder, was never afforded any protection. Her father's case ended up not having filed in court.

Meanwhile, in the Maguindanao massacre case, police investigators have been seen on television allowing onlookers to dig up dead bodies with bare hands at the crime scene. The process of autopsies and the collection of excavated bodies from the crime scene were also completely disorganized. On one occasion, two families of the journalist victims ended up confused and squabbling over one dead body.

Given the inability of the investigators to appreciate and employ forensic evidence as exposed in the early stage of investigation, oral testimonies should not be largely depended upon in the prosecution of this case. The government prosecutors must ensure the evidence stands in trial. In the Philippines, filing of charges in court provides no guarantee that victims would obtain redress and that perpetrators are punished.

In fact, early on in this case's investigation the DoJ lacked the urgency to even file it with the court as required by the time set by court rules. Under Rule 112 of the Revised Rules of Criminal Procedure, the public prosecutors should have completed the investigation and the determination of "probable cause" within 50 days, but it took the DoJ over two months in this instance.

Also, the DoJ's failure to conclude promptly that the Ampatuans, a powerful local clan, along with dozens of policemen, soldiers and militiamen could be prosecuted for the massacre demonstrates the reality of how difficult it is to pursue the prosecution of cases due to the government's failure."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Source: http://jurist.law.pitt.edu/hotline/2010/02/prosecutors-cant-depend-on-positive.php