G. R. No. 175608
June 8, 2007
DEPARTMENT O BUDGET AND MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the inter-Agency Bids and Awards Committee (IABAC), petetioners VS. KOLONWEL TRADING, respondent.
ISSUE:
Whether or not the foreign loan agreements (Loan No. 7118-PH) with international financial institutions, partake of an executive or international agreement and shall govern the procurement of goods necessary to implement the project.
HELD:
This issue has been affirmatively answered in the case of Abaya. In that case, the court declared that the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement.
Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118-PH. Applying this postulate, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.
Showing posts with label Treaty. Show all posts
Showing posts with label Treaty. Show all posts
Friday, October 17, 2008
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.
G. R. No. 167919
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.
FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law.
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.
FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law.
Monday, September 29, 2008
Bayan vs Zamora
G. R. No. 138570
October 10, 2000
Bayan vs Zamora
Facts:
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.
October 10, 2000
Bayan vs Zamora
Facts:
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
G.R. No. 153675
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
FACTS:
Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the offense of “accepting an advantage as an agent”, conspiracy to defraud, was penalized by a common law of Hongkong. A warrant of arrest was issued and if convicted, he may face jail terms.
On September 23, 1999, He was arrested and detained.
On November 22, 1999, Hongkong Special Administrative Region filed with the RTC of Manila a petition for his extradition.
Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia granted.
Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge.
ISSUE:
Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a potential extradite a right to bail.
HELD:
The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2 Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty.
The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty.
While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her from filing a motion for bail, aright to due process under the Constitution.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
FACTS:
Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the offense of “accepting an advantage as an agent”, conspiracy to defraud, was penalized by a common law of Hongkong. A warrant of arrest was issued and if convicted, he may face jail terms.
On September 23, 1999, He was arrested and detained.
On November 22, 1999, Hongkong Special Administrative Region filed with the RTC of Manila a petition for his extradition.
Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia granted.
Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge.
ISSUE:
Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a potential extradite a right to bail.
HELD:
The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2 Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty.
The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty.
While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her from filing a motion for bail, aright to due process under the Constitution.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
Monday, September 15, 2008
Answer to Question Nos. 2 & 3 of 2008 Bar Exam-Political & International Law
QUESTION NO. 2
May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.
Answer:
Yes, a treaty may be a violation to international law. It happens when the subject matter of the treaty of the contracting parties can not be legally complied with because it is forbidden by universally recognized principle of international law. The treaty of Tordesillas in 1494 which is sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are open seas under the law of nations is an example of a treaty which is a violation of international law.
QUESTION NO. 3
The President alone without the concurrence of the senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
Answer:
It could be resolved by applying the legal principle established in the case of Senator Pimentel Jr. vs. Office of the Executive Secretary G.R. No. 158088, July 6, 2005. In that case, Senator Aquilino Pimentel Jr. file a petition to compel Executive Secretary Hon. Alberto Romulo and Secretary of Foreign Affairs Hon. Blas Ople to transmit the signed documents – The Rome Statute which was signed by Charge d’ Affairs Enrique Manalo – to transmit it to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.
The Court settled the issue by declaring that: The President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.
May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.
Answer:
Yes, a treaty may be a violation to international law. It happens when the subject matter of the treaty of the contracting parties can not be legally complied with because it is forbidden by universally recognized principle of international law. The treaty of Tordesillas in 1494 which is sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are open seas under the law of nations is an example of a treaty which is a violation of international law.
QUESTION NO. 3
The President alone without the concurrence of the senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
Answer:
It could be resolved by applying the legal principle established in the case of Senator Pimentel Jr. vs. Office of the Executive Secretary G.R. No. 158088, July 6, 2005. In that case, Senator Aquilino Pimentel Jr. file a petition to compel Executive Secretary Hon. Alberto Romulo and Secretary of Foreign Affairs Hon. Blas Ople to transmit the signed documents – The Rome Statute which was signed by Charge d’ Affairs Enrique Manalo – to transmit it to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.
The Court settled the issue by declaring that: The President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.
Tuesday, August 19, 2008
Bangsamoro Treaty
The Bangsamoro ‘treaty’
By Isagani A. CruzPhilippine Daily InquirerFirst Posted 21:29:00 08/09/2008
THE AGREEMENT BETWEEN THE REPRESENTATIVES of the Republic of the Philippines and the Moro Islamic Liberation Front regarding the legal personality and rights of the so-called Bangsamoros has provoked heated debate on its validity in light of the pertinent provisions of the Constitution of 1987. Its formal signing last Tuesday was deferred by a temporary restraining older from the Supreme Court, which will hear oral arguments on the matter on Aug. 15.
This article is humbly offered for a better understanding of the agreement shorn of all its legal gobbledygook and presented in terms more familiar to the majority of our people who have not had the benefit of formal or even informal studies on the principles of our republican government.
A state is defined as a community of persons, more or less numerous, permanently occupying a fixed territory, and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. Its essential elements are people, territory, government, and sovereignty.
The term people refers to the population of the state, which may be big like the 1.3 billion of China or small like the some 400,000 only of Iceland. They must come from both sexes to perpetuate the race. Theoretically, they must be numerous enough to be self-sufficient and defend themselves but not so many as to be difficult to govern and feed.
The territory is a fixed portion of the surface of the earth consisting of the land mass known as the terrestrial domain, the internal and external waters called the maritime and fluvial domain, and the air space above the land and the waters, or the aerial domain. The components of an archipelago are integrated into one complete unit instead of being fragmented into separate islands.
Government is the instrumentality through which the will of the state is formulated, expressed and realized. It may be democratic or dictatorial, monarchial or republican, and must have jurisdiction over the inhabitants of the state and the capacity to represent it in its relations with other states.
Sovereignty means independence of the state from external control in its relations with its people and other members of the family of nations. The majority view is that it is its recognition as such that makes the state an international person and entitles it to participate in the decisions and activities of the family of nations.
I would not call the lengthy document “just a piece of paper” that does not deserve much attention. Whether it is eventually sustained or rejected by the Supreme Court, it is to me an insult per se to the democratic nature of our government and evidence of the docility of its present leadership.
The Philippines is unquestionably a state, possessing all the essential elements of statehood, with our more than 83 million population, our archipelagic territory, our rather wobbly government that is disgraced as the most corrupt in Asia, and the independence we regained in 1946 from the United States, which actually still controls us.
The MILF is only a rebellious group that our government has not even expressly recognized as a belligerent community under international law. But we are dealing with it as if it were a full-fledged state with the capacity, among other powers, to enter into treaties. Worse, it wants us to accept the Bangsamoro as a separate state with full and expressed preference “in their favor” in case of conflict with the Philippine Republic.
I do not intend to discuss the agreement in detail, assuming I have the competence to do so, which I have not at this time. The Supreme Court will eventually do this, as usual in a kilometric ponencia, with accompanying concurring and dissenting opinions. I will just say for the nonce that it contains many shocking provisions, like the recognition of the Bangsamoros as the exclusive owners of their claimed homeland covering various parts of the national territory described in Article 1 of our Constitution.
There are other incredible concessions given by the Republic of the Philippines to the Bangsamoros, such as the right to exercise powers exclusively vested in what the agreement calls the Central Government. The intention, it would seem, is to compare their ancestral domain to a component in a federation, which we are not. Moreover, the members of a federation, like the states in the United States, cannot exercise powers belonging only to the federal government, like the conduct of foreign affairs.
It is strongly suspected that the controversial agreement President Macapagal-Arroyo is endorsing is part of her scheme to replace our present Republic with a federal government where she will remain in power as its president or prime minister. She expects to do this with the controlled electoral support of the “Bangsamoro People” and the Bangsamoro Juridical Entity with which she is willing to share her authority in the governance of what the agreement grandly calls the “First Nation.”
I hope the solicitor general will not again claim the executive privilege of the President to prevent a full disclosure of the motives of the questioned agreement, which its apologists are already arrogantly calling “a done deal.” To many anxious and anguished citizens like me, it is nothing less than a treaty of surrender that should make the Republic of the Philippines bow its head in sorrow and shame.
For better understanding of the stand of the Muslims regarding this issue visit this site: http://bangsamoro.wordpress.com/
The Bangsamoro Struggle for Self-Determination
by Guiamel M. Alim, Executive Director, Kadtuntaya Foundation, Inc.
The Bangsa Moro struggle for self-determination is already a struggle of generations. The longest in Asia and maybe the whole world, it started in the 16th century and up to now there is no clear indiator yet as to when it will end. Other peoples' struggle in the world have either succeeded or been totally crushed. The Moro struggle is still going on. It is an ongoing struggle for survival, cultural identity and for the right to self-determination.
The Bangsa Moro : Who are they?
Bangsa Moro ("the Moro People") is the generic name for the 13 ethnolinguistic Muslim tribes in the Philippines which constitute a quarter of the population in Mindanao in the Southern Philippines. They number from 5-6 million and are found in every major island of the country. They share a distinct culture, speak different dialects, are varied in their social formation but share a common belief in Islam. This is a uniting factor among the different groups.
Of the 13 groups, there are three major groups on the bases of population and their leadership. These are the Maguindanaons (the people of the flooded plains), the Maranaos (people living around the lake) and the Tausogs (people of the current). These major groups have rallied the support of the Bangsa Moro in their struggle for self-determination.
The history of the struggle
The Bangsa Moro struggle for self-determination cannot be placed in proper perspective without a brief account of the Islamic era which began in the year 1310 A.D. through the efforts of Arab traders, travellers, sufis (saintly Muslims) and Muslim missionaries. Islam as a way of life (politics, governance, economic systems, justice systems, etc.) spread and soon Islamic principalities in Sulu and Maguindanao were established. In the 15th century and early 16th century, the Sultanate of Sulu and Maguindanao came into being. Each sultanate was independent, had sovereign power and had diplomatic and trade relations with other countries in the region.
Other Muslim principalities known as emirates, like those of Rajah Solaiman in Manila and the emirates of Panay and Mindoro, were also born. This goes to show that Islam stands on record as the first political institution, the first institutional religion, the first educational system and the first civilization in the Philippines, and that its economy was far advanced than those of the other indigenous communities. But before the Bangsa Moro could fully grow into full nationstatehood, a series of foreign colonial interventions came their way.
The Complete Article found in the website:
http://www.philsol.nl/solcon/Guiamel-95.htm
GRP-MILF draft pact on Bangsamoro homeland
The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) herein referred to as the “Parties” to this Agreement.
Terms of Reference
The context of referents follows:
The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines;
The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998;
The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001;
The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001;
The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996;
Republic Act No. 6734, as amended by R.A. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”;
ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments; and
Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understanding, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.
Have agreed and acknowledged as follows:
CONCEPTS AND PRINCIPLES
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.
2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.
3. Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.
4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.
The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as distinct dominant people.
5. Both Parties affirm their commitment to mutually respect the right to one’s identity and the parity of esteem of everyone in the political community. The protection of civil rights and religious liberties of individuals underlie the basis of peace and justice of their totality of relationships.
6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral history, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.
7. Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources.
The Complete Text of this Article can be found in the site:
http://blog.wyzemoro.com/grp-milf-draft-pact-on-bangsamoro-homeland/
By Isagani A. CruzPhilippine Daily InquirerFirst Posted 21:29:00 08/09/2008
THE AGREEMENT BETWEEN THE REPRESENTATIVES of the Republic of the Philippines and the Moro Islamic Liberation Front regarding the legal personality and rights of the so-called Bangsamoros has provoked heated debate on its validity in light of the pertinent provisions of the Constitution of 1987. Its formal signing last Tuesday was deferred by a temporary restraining older from the Supreme Court, which will hear oral arguments on the matter on Aug. 15.
This article is humbly offered for a better understanding of the agreement shorn of all its legal gobbledygook and presented in terms more familiar to the majority of our people who have not had the benefit of formal or even informal studies on the principles of our republican government.
A state is defined as a community of persons, more or less numerous, permanently occupying a fixed territory, and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. Its essential elements are people, territory, government, and sovereignty.
The term people refers to the population of the state, which may be big like the 1.3 billion of China or small like the some 400,000 only of Iceland. They must come from both sexes to perpetuate the race. Theoretically, they must be numerous enough to be self-sufficient and defend themselves but not so many as to be difficult to govern and feed.
The territory is a fixed portion of the surface of the earth consisting of the land mass known as the terrestrial domain, the internal and external waters called the maritime and fluvial domain, and the air space above the land and the waters, or the aerial domain. The components of an archipelago are integrated into one complete unit instead of being fragmented into separate islands.
Government is the instrumentality through which the will of the state is formulated, expressed and realized. It may be democratic or dictatorial, monarchial or republican, and must have jurisdiction over the inhabitants of the state and the capacity to represent it in its relations with other states.
Sovereignty means independence of the state from external control in its relations with its people and other members of the family of nations. The majority view is that it is its recognition as such that makes the state an international person and entitles it to participate in the decisions and activities of the family of nations.
I would not call the lengthy document “just a piece of paper” that does not deserve much attention. Whether it is eventually sustained or rejected by the Supreme Court, it is to me an insult per se to the democratic nature of our government and evidence of the docility of its present leadership.
The Philippines is unquestionably a state, possessing all the essential elements of statehood, with our more than 83 million population, our archipelagic territory, our rather wobbly government that is disgraced as the most corrupt in Asia, and the independence we regained in 1946 from the United States, which actually still controls us.
The MILF is only a rebellious group that our government has not even expressly recognized as a belligerent community under international law. But we are dealing with it as if it were a full-fledged state with the capacity, among other powers, to enter into treaties. Worse, it wants us to accept the Bangsamoro as a separate state with full and expressed preference “in their favor” in case of conflict with the Philippine Republic.
I do not intend to discuss the agreement in detail, assuming I have the competence to do so, which I have not at this time. The Supreme Court will eventually do this, as usual in a kilometric ponencia, with accompanying concurring and dissenting opinions. I will just say for the nonce that it contains many shocking provisions, like the recognition of the Bangsamoros as the exclusive owners of their claimed homeland covering various parts of the national territory described in Article 1 of our Constitution.
There are other incredible concessions given by the Republic of the Philippines to the Bangsamoros, such as the right to exercise powers exclusively vested in what the agreement calls the Central Government. The intention, it would seem, is to compare their ancestral domain to a component in a federation, which we are not. Moreover, the members of a federation, like the states in the United States, cannot exercise powers belonging only to the federal government, like the conduct of foreign affairs.
It is strongly suspected that the controversial agreement President Macapagal-Arroyo is endorsing is part of her scheme to replace our present Republic with a federal government where she will remain in power as its president or prime minister. She expects to do this with the controlled electoral support of the “Bangsamoro People” and the Bangsamoro Juridical Entity with which she is willing to share her authority in the governance of what the agreement grandly calls the “First Nation.”
I hope the solicitor general will not again claim the executive privilege of the President to prevent a full disclosure of the motives of the questioned agreement, which its apologists are already arrogantly calling “a done deal.” To many anxious and anguished citizens like me, it is nothing less than a treaty of surrender that should make the Republic of the Philippines bow its head in sorrow and shame.
For better understanding of the stand of the Muslims regarding this issue visit this site: http://bangsamoro.wordpress.com/
The Bangsamoro Struggle for Self-Determination
by Guiamel M. Alim, Executive Director, Kadtuntaya Foundation, Inc.
The Bangsa Moro struggle for self-determination is already a struggle of generations. The longest in Asia and maybe the whole world, it started in the 16th century and up to now there is no clear indiator yet as to when it will end. Other peoples' struggle in the world have either succeeded or been totally crushed. The Moro struggle is still going on. It is an ongoing struggle for survival, cultural identity and for the right to self-determination.
The Bangsa Moro : Who are they?
Bangsa Moro ("the Moro People") is the generic name for the 13 ethnolinguistic Muslim tribes in the Philippines which constitute a quarter of the population in Mindanao in the Southern Philippines. They number from 5-6 million and are found in every major island of the country. They share a distinct culture, speak different dialects, are varied in their social formation but share a common belief in Islam. This is a uniting factor among the different groups.
Of the 13 groups, there are three major groups on the bases of population and their leadership. These are the Maguindanaons (the people of the flooded plains), the Maranaos (people living around the lake) and the Tausogs (people of the current). These major groups have rallied the support of the Bangsa Moro in their struggle for self-determination.
The history of the struggle
The Bangsa Moro struggle for self-determination cannot be placed in proper perspective without a brief account of the Islamic era which began in the year 1310 A.D. through the efforts of Arab traders, travellers, sufis (saintly Muslims) and Muslim missionaries. Islam as a way of life (politics, governance, economic systems, justice systems, etc.) spread and soon Islamic principalities in Sulu and Maguindanao were established. In the 15th century and early 16th century, the Sultanate of Sulu and Maguindanao came into being. Each sultanate was independent, had sovereign power and had diplomatic and trade relations with other countries in the region.
Other Muslim principalities known as emirates, like those of Rajah Solaiman in Manila and the emirates of Panay and Mindoro, were also born. This goes to show that Islam stands on record as the first political institution, the first institutional religion, the first educational system and the first civilization in the Philippines, and that its economy was far advanced than those of the other indigenous communities. But before the Bangsa Moro could fully grow into full nationstatehood, a series of foreign colonial interventions came their way.
The Complete Article found in the website:
http://www.philsol.nl/solcon/Guiamel-95.htm
GRP-MILF draft pact on Bangsamoro homeland
The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) herein referred to as the “Parties” to this Agreement.
Terms of Reference
The context of referents follows:
The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines;
The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998;
The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001;
The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001;
The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996;
Republic Act No. 6734, as amended by R.A. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”;
ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments; and
Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understanding, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.
Have agreed and acknowledged as follows:
CONCEPTS AND PRINCIPLES
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.
2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.
3. Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.
4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.
The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as distinct dominant people.
5. Both Parties affirm their commitment to mutually respect the right to one’s identity and the parity of esteem of everyone in the political community. The protection of civil rights and religious liberties of individuals underlie the basis of peace and justice of their totality of relationships.
6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral history, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.
7. Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources.
The Complete Text of this Article can be found in the site:
http://blog.wyzemoro.com/grp-milf-draft-pact-on-bangsamoro-homeland/
Thursday, August 14, 2008
Pimentel Jr. vs Office of the Exe. Sec.
Senator Aquilino Pimentel, Jr. et al. vs. Office of the Executive Secretary represented by Hon. Alberto Romulo, Department of Foreign Affairs represented by Hon. Blas Ople
G. R. No. 158088. July 6, 2005
FACTS:
On July 17, 1998, the Rome Statute was opened for signature at its headquarter in New York. On December 28, 2000, three days before its deadline for signing, the Philippines through its Charge d’ Affairs, Enrique A. Manalo signed the Statute. By its provision, however, it is requiring that it be ratified by the accepting states.
Senator Aquilino Pimentel, file this petition to compel the Hon. Alberto Romulo (Executive Secretary) and Hon. Blas Ople (Department of Foreign Affairs) – respondents in this case – to transmit the signed document to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.
ISSUE:
Who has the power to ratify the Rome Statute?
HELD:
The President, being the head of state, is regarded as the sole organ and authority in external relations and is the county’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.
Thus, this petition is DISMISSED. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
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