While the Filipinos Sleep, the Framers of MOA-AD Raped the Constitution 36 Times

Mr. Amado Makasaet, in his article, “How the Charter was violated 36 times in the MOA AD”, Malaya News, October 20, 2008, reported:

“In a separate concurring opinion on the MOA AD case, Carpio listed the 36 violations of the Constitution. If the Court had ruled in favor of the MOA-AD, the Constitution might not be worth the value of the paper it is written on. The 36 violations of the Charter, listed by Carpio in his separate concurring opinion, are:

• Article 1 on the National Territory. During the oral arguments, Atty. Sedfrey Candelaria, principal counsel of the GRP panel, stated that this provision would have to be amended to conform to the MOA-AD.

• Section 3, Article II on the role of the Armed Forces of the Philippines as "protector of the people and the state." Under the MOA AD, the AFP’s role is only to defend the BJE (Bangsamoro Judicial Entity) against external aggression.

• Article III on the Bill of Rights. The MOA AD does not state that the Bill of Rights will apply to the BJE. The MOA AD refers only to the "internationally recognized human rights instruments" such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.

• Section 1, Article VI on the Legislative Department. Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall "build, develop and maintain its own institutions" like a legislature whose laws are not subordinate to laws passed by Congress.

• Section 1, Article VII on executive power. Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.

• Section 16, Article VII on the President’s power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments. All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE’s own basic law or constitution.

• Section 17, Article VII on the President’s control over all executive departments. The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE.

• Section 18, Article VII on the President as "Commander-in-Chief of all armed forces of the Philippines." Under the MOA-AD, the President will not be the Commander-in-Chief of the BJE’s internal security force. The BJE’s internal security force will not be part of the AFP chain of command.

• Section 21, Article VII on the ratification of treaties and international agreements by the Senate. This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.

• Section 1, Article VIII on judicial power being vested in one Supreme Court. Since the BJE will have "its own x x x judicial system," the BJE will also have its own Supreme Court.”

• Section 2, Article VIII on the power of Congress to define and apportion the jurisdiction of lower courts. Under the MOA-AD, Congress cannot prescribe the jurisdiction of BJE courts.

• Section 5(2), Article VIII on the power of the Supreme Court to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts. Under the MOA-AD, the BJE will have its own judicial system. Decisions of BJE courts are not reviewable by the Supreme Court.

• Section 5(6), Article VII on the power of the Supreme Court to appoint all officials and employees to the Judiciary. This power will not apply to courts in the BJE.

• Section 6, Article VIII on the Supreme Court’s administrative supervision over all courts and their personnel. Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.

• Section 9, Article VIII on the appointment by the President of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council. This provision will not apply to courts in the BJE.

• Section 11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts. This power will not apply to judges in the BJE.

• Section 1(1), Article IX-B on the power of the Civil Service Commission to administer the civil service. Under the MOA-AD, the BJE will have "its own x x x civil service." The Civil Service Commission will have no jurisdiction over the BJE’s Civil Service.

• Section 2(1), Article IX-C on the power of the Commission on Elections to enforce and administer all election laws. Under the MOA-AD, the BJE will have "its own x x x electoral system" The Commission on Elections will have no jurisdiction over the BJE’s electoral system.

• Section 2(1), Article IX-D on the power of the Commission on Audit to examine and audit all subdivisions, agencies, and instrumentalities of the Government. Under the MOA-AD, the BJE can "build, develop and maintain its own institutions" without limit. The BJE can create its own audit authority. The Commission on Audit will have no jurisdiction over the BJE or its subdivisions, agencies, or instrumentalities.

• Section1, Article X on the political subdivisions of the Philippines. A new political subdivision for the BJE will have to be created.

• Section 4, Article X on the power of the President to exercise general supervision over all local governments. Under the MOA-AD, this provision will not apply to the BJE.

• Section 5, Article X subjecting the taxing power of local governments to limitations prescribed by Congress. Under the MOA-AD, the BJE shall have "its own x x x legislation." The BJE’s taxing power will not be subject to limitations imposed by national law.

• Section 6, Article X on the "just share" of local government units in national taxes. Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis-à-vis other local government units.

• Section 10, Article X on the alteration of boundaries of local government units, which requires a plebiscite "in the political units affected." Under paragraph 2(d) on Territory of the MOA-AD, the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite "in the political units affected," which should include all the barangays within a city, and all municipalities within a province.

· Section 15, Article X on the creation of autonomous regions within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines. This will have to be revised since under the MOA-AD the BJE has all the attributes of a state.

· Section 16, Article X on the President’s power to exercise general supervision over autonomous regions. This provision will not apply to the BJE, which is totally independent from the President’s supervision.

• Section 17, Article X which vests in the National Government residual powers, or those powers which are not granted by the Constitution or laws to autonomous regions. This will not apply to the BJE.

• Section 18, Article X which requires that personal, family and property laws of autonomous regions shall be consistent with the Constitution and national laws. This will not apply to the BJE which will have its own basic law or constitution.

• Section 20, Article X on the legislative powers of the autonomous regional assemblies whose laws are subject to the Constitution and national laws. This provision will not apply to the BJE.

• Section 21, Article X on the preservation of peace and order within autonomous regions by the local police as provided in national laws. Under the MOA-AD, the BJE shall have "its own x x x police" to preserve peace and order within the BJE.

• Section 2, Article XII on State ownership of all lands of the public domain and of all natural resources of the Philippines. Under paragraph 3 on Concepts and Principles of the MOA-AD, ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD, the Bangsamoro people are the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples in Mindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521. In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao, Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions.

• Section 9. Article XII on the establishment of an independent economic and planning agency headed by the President. This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency.

• Section 20, Article XII on the establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas. Under the MOA-AD, the BJE will have its own financial and banking authority.

• Section 4, Article XVI on the maintenance of "a regular force necessary for the security of the State." This provision means there shall only be one "Armed Forces of the Philippines" under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have "its own x x x internal security force" which will not be under the command and control of the President.

• Section 5(6), Article XVI on the composition of the armed forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable. This will not apply to the BJE’s internal security force whose personnel will come only from BJE areas.

• Section 6, Article XVI on the establishment of one police force which shall be national in scope under the administration and control of a national police commission. The BJE will have "its own x x x police" which is a regional police force not administered or controlled by the National Police Commission.”

COMMENT: These violations of the Philippine Constitution threatened the very core of existence of the Philippines as “one and strong republic”. It gives me goose pimples to think that without a group of concerned Filipinos in Mindanao bringing out this issue in the open, we would one day wake up knowing that the Philippines merely consists of just Luzon and Visayas and that we would need a visitor’s visa to visit our relatives in Mindanao, Sulu, and Palawan.

The split decision of the Supreme Court clearly reflected on the “real” role of the high court as supposed protector of the fundamental law of the land. Mr. Macasaet succinctly observed that, “How the seven dissenting jurists interpreted the Constitution another way and failed to see these violations will be long remembered as one of the more malignant signs that have placed in doubt the independence of the Supreme Court.” He further added, “As in all cases, rulings boil down to numbers. The majority wins. How long they can rule independently as in the 8-7 vote on the MOA AD is an omen.”

It’s about time the Supreme Court justices are appointed by a collegial body consisting of retired and still able Supreme Court justices from a short list of legal luminaries recommended by the Integrated Bar of the Philippines. The power of the President to appoint Supreme Court justices should be reduced to a ceremonial function. Managing the country is too important to leave to the hands of politicians alone. I ask our honorable lawmakers on this: If there is such a crime as “Attempted Murder”, is there not a crime of “Attempted Treason”?

A Wish List for Lawmakers

Despite attendant controversies, the 2007 elections proved to be an improvement over similar exercises in the past. Thanks largely to the combined vigilance of various watchdogs and the public in general. Violence, electoral fraud, etc., did happen; but can and should be reduced- if not totally eliminated. In civilized societies such as ours, one instance of killing or cheating is one too many. Arguably, these long standing maladies can only be addressed thru institutional reforms established by appropriate laws.

Priority issues for legislation:

1. Return to the 2-Party System. The multi-party has been responsible for the personality-oriented campaigns rendering platforms irrelevant. Coalition’s platforms strike rightly the voters as nothing but empty slogans that are forgotten as soon as the campaign period is over. With only two parties, nomination processes can be more stringent, like putting on hold until the next elections the candidacy of politicians who changed parties; and, failure of those eventually elected to do their job becomes a liability of both the party and the individuals.

2. Elect Senators by Region. Should there be 1 per region- 12 regular & 2 autonomous; and 2 for NCR, the Senate can be reduced from 24 to 16 members. Another option: 2 each for NCR & 12 regular regions, and 1 each for the 2 autonomous regions, for a total of 28-man Senate. Any cost deviation in the maintenance of the Senate resulting from either shift may be negligible; but there will be marked reduction in the candidates’ campaign expense; thus eliminating corruption.

3. Reduce the Size of Congress to no more than 200, or 2 representatives per 1 million population (based on the estimated 83 million Filipinos); or fix each province to no more than two representations. Moreover, city/town councilors should be elected by district. This way, voters will only have to write one name per elective post. Voter can then focus on the candidates’ qualifications. At the same time, all areas will be assured of representation.

4. Abolish Political Dynasties. There should be no quibbling in crafting an Anti-Dynasty law. Simply, a graduating elected official should not field any member of his family to replace him/her, nor be allowed to run for a lower post in the same year he/she graduates; and, candidates in the same election year should be limited to one per family regardless of level. Ideally, the president, vice president, Supreme Court justices, commissioners of the COMELEC and officials of other similar Constitutional bodies, senators and cabinet secretaries should have no immediate family members running in any senatorial, congressional, gubernatorial and/or mayoral (and the vice of the latter two) race. Family ties here refer to husband-wife, parent-children, & siblings.

The Issue is not Competence; but more of leveling the playing field, and ensuring that the opportunity to indulge in politics is open to all qualified. Finally, no one with unfinished term should be allowed to run for another post (except the Presidency) unless he resigns first from his current office. In hindsight, the demise of the 2-party system could be traced to the enduring political dynasties that likewise spawned personality-oriented campaigns and unmitigated misuse of CDF. As to campaign expenses, relevant laws need to be reviewed aimed at fixing lower limits, easier expense accounting and instituting penalties to halt violations.

5. Abolish the CDF. Abolition of pork barrel could pave the way for a more cost-effective legislation with our law-makers focused on their real legislative job.

Other areas for consideration:

1. A vote for a presidential candidate should automatically be counted as vote for his vice presidential partner. Leave it to the party to ensure the president gets a good team. This provision addresses the unlikely case of a presidential death: with the ascendancy of the VP, party programs are assured of continuity.

2. To further strengthen the Executive branch, a cabinet secretary removed from office under a cloud should not be recycled or tossed to another department. Moving cabinet secretaries from one department to another reflects grossly wrong executive decision, or could be perceived as consequence and/or precursor of some underhanded schemes or prearranged agreements.

3. Abolish the party-list system; it allows the exploitation of the sector represented - some of which are legal fiction.

4. Tenure of elective officials needs to be reviewed, too, with the end in view of reverting to the 4-year term (8 years for the Senators) with one reelection. Holding of national (President/VP & Senators) and local elections shall be alternated every two years.

5. Congress should complete the budget process at least 3 months before their implementation. A reenacted budget indicates gross inefficiency, unnecessarily eats up public funds, and encourages corruption at all levels, in case of failure to pass the budget on time, expenses for consequent extended sessions should be charged to Congress members’ individual expense accounts.

6. Govt. officials who have their names attached to govt. projects or posters containing technical details of such projects should be considered to have misused govt. resources, be suspended and be prosecuted under appropriate laws against graft & corrupt practices. Having mentioned these laws, they appear sufficient; but, are wanting in implementation; relevant campaigns, if any, are hardly felt even if violators show-off their loots.

7. Implement the law on computerized voting now.

In conclusion, nothing in this Wish List grants additional privileges to public officials more than what is already provided for in the Constitution; hence, mere legislative acts may suffice to initiate the desired changes instead of a Charter Change. As they presuppose more people participation in the nation’s political affairs, and tempering the predilection by certain quarters to treat government posts as family franchise, the consequent system could define the very essence that guided the framers of our Basic Law. In realizing equality for all, individual potentials are made more manifest, and could be harnessed for the betterment of all.

Lt.Gen. Romeo B. Dominguez AFP(Ret)

dominguezrb@gmail.com

12 June 2007