Balay Drilon

This I say after learning of moves to amend the 1987 Constitution—only the economic provisions—to amend only economic provisions could backfire and will only cause devastating negative effects on the national economy instead of improving it.

Due to the apparent poor credibility of the Arroyo administration in the business community, nobody will buy the excuse that only the economic provisions will be touched once the Malacanang Cha-Cha train takes off.

It is obvious that the primary motivation of Cha-Cha is the extension of President Arroyo’s term. No amount of sugarcoating or media spin can deodorize that self-serving objective.

Did I hear there was a move of the House Committee on Constitutional Amendments that approved a resolution, sponsored by House Speaker Propero Nograles, scrapping foreign-ownership limits on corporations and lands as part of the congressmen’s initiative to amend the 1987 Constitution?

For the information of everyone, House Resolution 737 seeks to erase the constitutional provision limiting foreign ownership of a corporation to 40 percent and disallows foreign acquisition of both public and private lands. In relation to this, according to Nograles, enabling foreign corporations and associations to hold, acquire and in any manner be granted the right to possess and utilize lands in the Philippines is a strategic policy that could encourage more long-term foreign investments in the country.

If Malacanang continues to push the Nograles Cha-Cha resolution in the national agenda, it could trigger devastating consequences on the national economy, as it would give the impression that President Arroyo was succeeding in railroading it despite massive protests from the Filipino people.

Business leaders predict more political and financial instability that will trigger another wave of capital flight from disappointed foreign investors.

The negative impact of Charter Change could be enough to cripple the national economy in the first quarter of 2009 given the projected ill effects of the ongoing worldwide economic slowdown on Southeast Asia.

If this Malacanang-supported Nograles House resolution will dominate the national agenda, we can kiss our economic recovery programs goodbye. We must not underestimate the devastating effect of Malacanang’s self-serving exercise on the national economy that is already suffering from the effects of the current global financial crisis.

Makati business leaders fear that the renewed efforts to amend the Constitution will not help any in alleviating the country's flagging economy. I heard that Makati Business Club (MBC) Executive Director Alberto Lim said business leaders were wary that President Gloria Macapagal Arroyo's allies at the House of Representatives were moving to extend her term beyond 2010.

I had argued before that amending the Constitution was not the appropriate solution to resolve the current political and financial turmoil in the country. The proposed charter change would not eradicate corruption in government, which is the very root cause of the country's present problems. What we need is not a change in the system but a change in the character of the people in government.

I have not come across an agreement where the violations of the Constitution are so brazen and reckless as what I have seen in the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the Government (GRP) and the Moro Islamic Liberation Front (MILF). In fact, the “Terms of Reference” and the entire MOA-AD cite numerous agreements, laws and international conventions, but omit any reference to the Philippine Constitution.

The MOA-AD contains the terms and conditions agreed upon by the GRP and the MILF on Ancestral Domain, or the Muslims’ historical claim over the Southern Philippines as their homeland, which was one of the three issues in the peace process under the 2001 Tripoli Agreement.

The most violent objection against the MOA-AD is the gross violation of the national sovereignty and territorial integrity of the Republic of the Philippines. It creates a state, with all sovereign powers and institutions.

Under the MOA-AD “the Bangsamoro Juridical Entity (BJE) shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society.”

The listing of institutions that the BJE can create is not exclusive. The BJE is empowered to build, develop and maintain other state institutions without limit.

The BJE shall have its own legislature whose laws will not be subject to national laws passed by Congress. The BJE shall also have its own courts whose decisions will not be reviewable by the Supreme Court. The most alarming and destructive power granted to the MILF is the power to “build, develop and maintain its own…police and internal security force,” in violation of express provisions of the Constitution.

BJE in UN, Asean

Moreover, the GRP recognized right of the BJE to enter into agreements with any friendly country and the option to establish and open trade missions in foreign countries with which it has economic cooperation agreements. The GRP is also under obligation to ensure BJE’s participation in ASEAN and the UN.

Under the MOA-AD, “it is the birthright of all Moros…to identify themselves as Bangsamoros”, a distinct people consisting of “those who are natives or original inhabitants of Mindanao … Palawan and the Sulu archipelago.”

The territory of the Bangsamoro homeland is well defined, referring to the “land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.”

The ownership of the Bangsamoro ancestral domain is vested exclusively in the Bangsamoro people, and such ancestral domain no longer forms part of the public domain, with the BJE given the power to revoke any such titles, permits, concessions and land tenure arrangements granted by the GRP.

The BJE shall have exclusive jurisdiction over internal waters extending 15 kms. from the coastline and shall exercise, with the GRP, joint jurisdiction over territorial waters consisting of our 200-mile economic zone.

Thus, the attributes of an independent and sovereign state, i.e. (a) government, (b) distinct territory, and (c) distinct people, are all present. The MOA-AD creates a Bangsomoro state within the Philippine territory. This is dangerous.

Groundwork for secession

There is a growing support for federalism as a means of empowering local governments. But the MOA-AD is not about federalism. It lays the groundwork for secession. We support the right of our Muslim brothers and sisters to self-determination, but this should not come at the expense of our country’s sovereignty and the integrity of our national territory.

Under the MOA-AD, the ARMM will be replaced by the BJE. The BJE is not one of the political units authorized to be created under the Constitution. The BJE will exercise powers much broader than an autonomous region. In fact, the BJE’s relationship with GRP is described as “associative”, a relationship appropriate only among sovereign nations.

The other dangerous aspect of the MOA-AD is the removal from the Philippine public domain of the Bangsamoro homeland, and vesting in the BJE exclusive ownership over its defined territory. As a consequence of that exclusive ownership over its Ancestral Domain, the BJE will exercise control and jurisdiction over all natural resources and potential sources of energy.

Under our Constitution, what MILF claims as ancestral land is part of the public domain where “all lands, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy and other natural resources are owned by the State.” Under the MOA, BJE would now be exclusive owner of such land.

The MOA-AD does not respect vested rights over private property, as it provides that “land tenure instruments of any kind or nature whatsoever granted by the Philippine Government shall continue to operate xx unless otherwise modified and or cancelled” by the BJE. This brazen disregard of vested rights is a flash point which can trigger conflict, not only between Christians and Muslims, but between Muslim and Lumads as well.

Not a mere scrap of paper

The wanton disregard of the Constitution in the MOA-AD is beyond dispute. But it is argued that its provisions shall come into force only “upon effecting the necessary changes in the legal framework”, which the defenders of the MOA-AD assert refers to amendments to the Constitution. To the Government, the MOA-AD is simply “a scrap of paper” and merely a listing of consensus points.

This is completely wrong and maliciously misleading. The MOA-AD had brought conflict and caused over 100 deaths. People do not kill and get killed for a mere scrap of paper.

Clearly in the eyes of the MILF, the MOA is both a legal and moral commitment on the part of the Government to implement its terms. A mere scrap of paper is not supposed to be signed in front of many international dignitaries in an elaborate ceremony, some of whom are endorsers or witnesses. The hollowness and falsity of this argument is belied by the actions on the ground. Perhaps the MOA is something else, but definitely not a scrap of paper.

Violation of separation of powers

It is also wrong to insist that the Executive Department can commit to amend the Constitution in an agreement with the MILF. Under Article XVII of the Constitution, the Executive Department has no role in the process of constitutional amendments.

Moreover, the GRP panel obligated itself that in “effecting the necessary changes to the legal framework,” the same must be done “with due regard to non-derogation of prior agreements.” This means that the President committed that any amendments to the Constitution must conform to the MOA-AD. The President cannot commit Congress, which has the power to propose amendments to the Constitution. It violated the principle of separation of powers.

We believe that a peace agreement should find a common ground to enable as many sectors to unite behind the agreement. The MOA-AD, instead of providing a common ground to unite us, caused division among our people.

I cannot believe that President Arroyo sincerely believed that the MOA-AD in its present form can achieve stability, unity and peace.

So what is her agenda?

I deplored the “internationalization” of the Mindanao peace process. The “unwarranted intervention” of certain foreign countries was making it more difficult for the national government to resolve its “internal problem” with the Moro Islamic Liberation Front (MILF).

I had been receiving persistent reports that the intervention of some countries, including Malaysia and the United States, was putting “undue pressure” on government negotiators to grant concessions to the MILF that clearly violate the Philippine Constitution, such as the giving away of certain territories of the republic. We certainly do not want to happen to Mindanao what happened to Kosovo.

I am alarmed by the appeal of MILF Chairman Ebrahim Murad to the Malaysian government to revive the Mindanao peace talks that was stalled when MILF forces attacked unarmed civilians in Central Mindanao around the second week of August last year. Murad also asked that the military be stopped from pursuing the MILF forces involved in the atrocities. The MILF commanders reportedly attacked the civilians because the Supreme Court stopped the signing of the GRP-MILF Memorandum of Agreement on Ancestral Domain last Aug. 5.

I hope Malacanang will find the moral courage to send a diplomatic note to Malaysia, saying in no uncertain terms that that the Philippine government will implement its laws against criminals who attack and murder unarmed civilians. I am sure that the Malaysian government will understand and will not give the impression that it condones the unlawful acts of the MILF, especially the unprovoked killing of innocent civilians.

We urge our leaders to resolve this Mindanao conflict as an internal matter. The equitable solution to the Mindanao problem can be achieved only through honest and sincere consultations with the people of Mindanao, and not with foreign countries that obviously have other selfish interests to pursue in Mindanao.

The internationalization of the Mindanao peace process is against our national interests.

Let me tell you also about the offer of British Ambassador to the Philippines Peter Beckingham, who said his office was willing to bring politicians and officials from the United Kingdom (UK) to share with the Philippine government and the MILF how the Northern Ireland peace process had moved forward.

I have said that while we appreciate the generosity of the British ambassador, we regret to inform him that the case of Northern Ireland is the wrong model for the Mindanao Peace Process.

Allow me to remind you that during the UK-Ireland peace negotiations, it was established that the Irish Kingdom was already a strong independent monarchy for centuries before it was forcibly annexed by the English Kings. Ireland was already a state with strong ties with papal states until 150 years ago. Mindanao has always been part of the Republic of the Philippines ever since it was established. We must find our own model.

I denounce Malacanang’s "blatant abuse of discretion in the exercise of executive clemency" in the controversial release of convicted murderer Claudio Teehankee Jr.

I express alarm over the abuse of discretion showed by President Arroyo when she disregarded the rules in the application of executive clemency in the Teehankee case. Just a bit of information, I led the justice department as secretary in the prosecution of Teehankee in 1991.

Claudio Teehankee Jr. walked out of prison in the dead of the night on October 3, because he had access to power, because he had access to President Arroyo and Justice Secretary Raul Gonzales. It only proved once again that under the Arroyo administration, the rich and the privileged always get the upper hand.

We have witnessed once again that under this administration there is no such thing as the equal application of the law, regardless of whether you are rich or poor.

There was apparent lack of transparency in the granting of executive clemency to Teehankee, as under existing rules, the names of convicts seeking clemency should have been published to give the families of the victims, the opportunity to object.

In this case no announcement was made since the families of the Teehankee victims were not informed nor consulted about the convict’s release on that day.

The Board of Pardons and Parole should make a publication prior to the release, so that families of the convict’s victims can have the opportunity to object.

I am saddened. The public loses its trust on the Arroyo administration because to them, the administration of justice is not fair. President Arroyo’s executive clemency only shows that her administration favors the rich and the influential.

To me, Mr. Teehankee should not have been given executive clemency because he murdered an innocent young woman. When I was Justice Secretary, we made sure that Mr. Teehankee will be convicted because people need to know that everyone is equal before the law.

(I also led the prosecution of high profile cases that led to conviction of businessman Rolito Go and Calauan Mayor Antonio Sanchez. Teehankee was convicted for the 1991 murders of 16-year-old Maureen Hultman and 21-year-old Roland John Chapman.)

With Teehankee’s release, I call on Malacanang to also grant clemency to other qualified convicts even if they are poor and do not come from influential families. I support calls for the Department of Justice to publicize an inventory of convicts in heinous crimes who were granted parole, with emphasis on their social status.

I warn Malacanang not to sign the GRP-MILF Memorandum of Agreement on Ancestral Domain. President Arroyo will be committing an impeachable offense since the agreement constitutes a gross violation of the 1987 Constitution.

No doubt, Presidential Adviser to the Peace Process Hermogenes Esperon Jr and RP Panel Chair Rodolfo Garcia will be signing the agreement only upon the authority and orders of President Arroyo.

The MoA clearly violates the 1987 Constitution because it grants the so-called Bangsamoro Juridical Entity (BJE) a status of belligerency, which is a step closer to granting it international recognition as a separate and independent state. It will reportedly authorize the BJE to sign trade pacts, friendship treaties and other international agreements with foreign countries and send representatives to ASEAN and the United Nations. Moreover, the Terms of Reference cites the UN Charter, the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), which only sovereign states can be party to.

Further, the MoA unconstitutionally surrenders Philippine government authority over exploitation of natural resources, such as oil exploration, as the Bangsamoro territory no longer forms part of the national public domain.

Further, you cannot divide sovereignty, which the MoA provides for when it allows BJE to exercise shared authority and responsibility with the Philippine government over the Bangsamoro homeland.

While I have always supported the peace process in Mindanao, I maintain that any agreement should be within the boundaries of the present Constitution. This MoA goes beyond the constitutional parameters and boundaries, which provides only for autonomous regions. I am for the granting of full and genuine authority to the Autonomous Region for Muslim Mindanao (ARMM) but the process should not violate the Constitution.

To say that we need to amend the Constitution for this MoA only lends credence to allegations that the Arroyo administration intends to unscrupulously exploit the Mindanao peace process in its relentless bid to amend the 1987 Constitution and pave the way to extend President Arroyo’s stay in power beyond 2010.