Republic of the Philippines SUPREME COURT Manila City

HELEN GUILLERGAN, FOR AND IN HER OWN BEHALF AND ON BEHALF OF INDIGENOUS PEOPLES IN MINDANAO NOT BELONGING TO THE MILF, Petitioner, -versusG.R. No. 283591

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, REPRESENTED BY ITS CHAIRMAN MARVIC LEONEN, AND THE MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, REPRESENTED BY ITS CHAIRMAN MOHAGHER IQBAL, Respondents. x-------------------------------------------------------------x MEMORANDUM

Petitioner most respectfully submits this Memorandum, through counsel, and unto this Honorable Supreme Court, in support of this petition and in compliance with the Order of the High Tribunal. STATEMENT OF THE CASE

This is a petition assailing the constitutionality and validity of the initiation and contents of the 2012 Framework Agreement on the Bangsamoro

FACTS OF THE CASE

At the southern end of the Philippine archipelago lies Mindanano, the second largest of the country's major islands.1 Its contact with Muslim traders before the arrival of the Spaniards in the 16th century became the catalyst for its inhabitants' conversion to Islam. Thus, Muslim Sultanates of Maguindanao and Sulu were established. During the Spanish colonization period, while Spain invaded Luzon and most of the Visayas converting Filipinos to Catholicism, Mindanao confronted the Spanish with disdain and refused to profess the Christian faith introduced by the latter. This was the genesis of its conflict with the central government. Mindanao was only brought under central control at the end of the PhilippineAmerican War at the turn of the 20th century and the conflict became dormant.

Mindanao was calm until sometime in 1967 when the conflict flared yet again between the Government of the Republic of the Philippines and the Mindanaoans. This originated from the infamous Jabidah Massacre, otherwise known as the Corregidor Massacre, which occurred during the Marcos administration's plot to try and reclaim Sabah. Operation

Merdeka, as this plan was called, involved the recruitment of nearly 200 Tausug and Sama Muslims aged 18 to 30 from Sulu and Tawi-Tawi. However, upon gaining knowledge that they will be made to fight against their Muslim brothers in Sabah, the Tausug and Sama Muslims resisted against the government. The resistance only upsurged when the recruits were not accorded their promised monthly allowance. Disgruntled with the turn of events, the recruits demanded to be returned home but this was not granted and several members of the Armed Forces of the Philippines massacred the mutinous recruits.2 This incident eventually resulted to the emergence of the Moro National Liberation Front (MNLF) and, subsequently, the Moro Islamic Liberation Front (MILF) organizations representing the interests of Mindanao's Muslim population. Over the years, continued violence has been occuring in Mindanao due to MNLF and MILF's opposition to the central government and such confrontation between both parties has led to numerous deaths and poverty in war-stricken areas.
1 Funk and Wagnalls New Encyclopedia Vol. 17, p. 345. 2 http://www.corregidor.org/heritage_battalion/jabidah.html visited October 24, 2012

The Government, in lieu of its duty to provide peace to its citizenry, has long been negotiating with both organizations for a successful settlement of their conflict. In December 1976, the Government of the Philippines under the Marcos regime sought the intercession of Libya in the signing of the Tripoli Agreement3 with the MNLF. The agreement provided for the cessation of hostilities and an autonomous government in southern Philippines but this provision for autonomy was not implemented. The implementation was only realized upon President Corazon Aquino's term after holding a plebiscite to determine which provinces stipulated in the Tripoli Agreement agree to being part of the proposed autonomous region. Out of the 13 specified provinces, only 4 provinces where Muslims are a majority, opted to be part of the autonomous region. With this outcome, the government again obtained desistance from the MNLF which accused the former of violating the Tripoli Agreement.

In December 1996, a peace settlement was initiated under President Fidel Ramos in continuance of the past administration's advocacy. The Southern Philippine Council for Peace and Development (SPCPD), headed by Chairman Nur Misuari, was made to be responsible for supervising and coordinating development projects in an area designated as the Special Zone for Peace and Development (SZOPAD). SZOPAD covered all the provinces specified in the Tripoli Agreement. The SPCPD agreement only added one province to the autonomous region and the problem in other areas in Mindanao continued.

Upon President Joseph Estrada's election in 1998, the MNLF's threat was abated with its support from the government by its members' occupance of government positions. The threat was now delivered by MILF, a breakaway group of the MNLF. Between the two Moro fronts, the Government's stellar rival is the MILF which is more religion-oriented than the nationalistic-oriented MNLF. An Islamic organization, the MILF became a threat to the

country having relations with terrorist and criminal group Abu Sayyaf and the Indonesianbased Jemaah Islamiyah. MILF has also maintained close relations with Muslims in Indonesia and Malaysia, benefiting from their support as member of the Organization of Islamic
3 http://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdf

Conferences. Consequently, Estrada declared an all-out war policy in April 2000, mobilizing the military in Mindanao. However, the MILF avoided the government's assault by being divided in smaller groups and hiding in remote areas.

On July 27, 2008, President Gloria Macapagal Arroyo's administration initially signed the Memorandum of Agreement Ancestral Domain, Bangsamoro Juridical Entity which was scheduled to be formally signed on August 5, 2008. However, by virtue of a restraining order of the Supreme Court on August 4, 2008, the signing was stopped. The agreement aimed for the creation of the Bangsamoro Juridical Entity4, providing further that the Bangsamoro Juridical Entity would have its own internal waters and territorial seas that should only pertain to states. This and other provisions violating the sovereignty of the Philippines were struck down because of its failure to reconcile with the Constitution. The Supreme Court deemed the aforesaid agreement to be unconstitutional on October 14, 2008.

After the failure of its predecessors, comes the making of the 2012 Framework Agreement on the Bangsamoro. On October 7, 2012, the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF), parties to the agreement, released by publishing on-line the Framework of Agreement on the Bangsamoro, which will pave the way for the establishment of the new autonomous political entity, the Bangsamoro, to replace the Autonomous Region in Muslim Mindanao. The agreement was signed on the afternoon of October 15, 2012, in ceremonies held in the Malacaan Palace, witnessed by President Benigno Aquino III and Malaysian Prime Minister Dato' Sri Mohd Najib Bin Tun Haji Abdul Razak.5

The 2012 Framework Agreement on the Bangsamoro, despite its laudable purpose of promoting peace, contemplates and provides for certain measures which are dubious and essentially unconstitutional.

4 http://pcdspo.gov.ph/downloads/2012/10/MOA---Ancestral-Domain-August-5-2008.pdf 5 http://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdf

HENCE, this petition. ISSUES

1. WHETHER OR NOT THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT NEGOTIATED AND INITIATED THE FRAMEWORK AGREEMENT ON THE BANGSAMORO.

2. WHETHER OR NOT THE FRAMEWORK AGREEMENT ON THE BANGSAMORO IS UNCONSTITUTIONAL.

DISCUSSIONS

Petitioner respectfully begs to discuss the assigned issues as follows:

1. THE

GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE

NEGOTIATING PANEL GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT NEGOTIATED AND INITIATED THE FRAMEWORK AGREEMENT ON THE BANGSAMORO.

1.1. It is a grave abuse of discretion amounting to excess of jurisdiction on the part of the Republic of the Philippines Peace Negotiating Panel to guarantee constitutional amendments when such is not a power bestowed upon it.

There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is executed whimsically, capriciously or

arbitrarily out of malice, ill will or personal bias.6 In the present case, the Peace Negotiationg Panel of the Republic of the Philippines is guaranteeing changes in the Constitution, particulary its replacement of the provisions on the Autonomous Region in Muslim Mindanao, in order to conform with the creation of the Bangsamoro. Regardless of Respondents' claim that the framework agreement does not compel any of the parties to work for charter change, charter change is inevitable because the Bangsamoro would not have a constitutional anchor to justify its existence, including the ministerial government expressly stipulated in the agreement and absent in the Constitution, if no amendment is to be made. Their contention that the major political commitments that were made in the Framework Agreement can be achieved within the flexibilities of the existing constitution is absurd because the Constitution is a rigid one. Flexibility can only come with changes or amendments. Even if the Constitution allows any citizen to recommend ideas to amend the Constitution through proper legal process7, it is merely a recommendation or a proposal that is allowed, not a guarantee in an agreement of such recommendation or proposal which is beyond the jurisdiction of the peace panel.

The Respondents have gravely abused their discretion amounting to lack or excess of jurisdiction when it guaranteed that there is no need to amend the Constitution, when in truth and in fact, through the agreement's provision stating the creation of the Bangsamoro autonomous political entity in Muslim Mindanao to replace the Autonomous Region in Muslim Mindanao, a Constitutional amendment is essential or indispensable. The Agreement virtually states its guarantee to a constitutional amendment when it promised to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreement of the Parties whenever necessary...8 The power to guarantee such amendments lies only with those who have been vested the power to make amendments possible. This power belongs ultimately to the legislature and/or the sovereign people it represents as clearly provided by the Constitution in Article XVII. In addition, it bears
6 Infotech Foundation, et al. v. COMELEC, G.R. No.159139, January 13, 2004. 7 Constitution, Article 17 8 Framework Agreement on the Bangsamoro, VII.4.b.

stressing that this agreement's latest predecessor had been deemed unconstitutional for the very same reason. According to the Supreme Court, no one has the power to commit to amend the Constitution to make it conform to any agreement:

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, Respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution(Emphasis supplied)9

1.2. It is a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Republic of the Philippines Peace Negotiating Panel to violate the constitutional right of the people to information on matters of public concern. The Constitution recognizes the right of the people to information on matters of public concern.10 The Framework Agreement is such matter of public concern because it shall be decided by the people and its implementation shall bring alterations to the fundamental law that the people have revered. The peace negotiating panel has violated the aforementioned right for it has failed to give a clear and transparent presentation of what the 2,973-word Framework Agreement on the Bangsamoro is all about. Gung-ho as it is with its aims, the Respondents failed to abide by the Constitution's provision that the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.11 It leaves the Filipino citizen in confusion by the non-clarification of its provisions.
9 G.R. No. 183591, October 14, 2008 10 Constitution, Article III, Section 7 11 Ibid., Article II, Section 28

First, the Framework states that the form of government shall be ministerial 12. Does this mean that Bangsamoro officials will compose of a prime minister and cabinet members or ministers? The Framework fatally fails to specify on this.

Second, the Framework stipulates an assymetric relationship13 between the Bangsamoro and the central government. Assymetric is defined as without symmetry 14 Is this stipulation the same as the relationship between China and Vietnam where the former is powerful and the latter the weak one? Which then would be more powerful? This leaves the reader with more questions than answers again.

Third, The Framework's section on Revenue Generation and Wealth Sharing provides that The Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. 15 This statement does not give any distinction as to what auditing body or procedure shall be implemented and is again left to the discretion of the Bangsamoro government. Without limits or restrains, this could lead to the still continuing systemic plunder in ARMM.

Fourth, and most important, the Framework asserts in its Normalization annex that the MILF will be decomissioning its forces.16 However, there is no mention of the MILF surrendering their firearms. There is also no timetable for the MILF's decomissioning of its forces. It should also be taken note of that the MILF, once the agreement is implemented, will metamorphose into members of the army of the Philippines as part of the police force of the Bangsamoro. This means that they will still be able to possess firearms, this time legally. Without the MILF's surrender of firearms, it is possible that not only rebellion in Mindanao will still continue, but the rebels will have access with impunity to the internal organs of the Philippines.

12 13 14 15 16

Framework Agreement on the Bangsamoro, I.2. Framework Agreement on the Bangsamoro, I.4. http://dictionary.cambridge.org/dictionary/british/asymmetric visited October 24, 2012 Framework Agreement on the Bangsamoro, IV.5. Ibid., VIII.5.

The People of the Philippines are entitled to an in-depth discussion of the abovementioned matters but were afforded none and were clearly deprived of their right to information and its full disclosure. Ergo, despite its publication of the Agreement, the Respondents disseminated very lacking information and violated the people's constitutional right to information on matters of public concern.

2. THE FRAMEWORK AGREEMENT ON THE BANGSAMORO IS UNCONSTITUTIONAL.

2.1. The Framework Agreement creating the Bangsamoro as an autonomous is political entity in Muslim Mindanao for a religious organization UNCONSTITUTIONAL. The beneficiary of the Framework Agreement on the Bangsamoro creating a political entity in Muslim Mindanao is undisputedly the followers of the Islam faith. This is due to the fact that the envisioned Bangsamoro government will be populated by a Muslim majority. The Framework Agreement states: The core territory of the Bangsamoro shall be composed of: (a) the present geographical area of the ARMM; (b) the Municipalities of Baloi, Munai, Nunugan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pagkawayan, Pikit, and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite 17 These areas that will be incorporated in the creation of Bangsamoro are part of the Autonomous Region of Muslim Mindanao and are dominated ipso facto by Muslims. The supreme and fundamental law states that no law shall be made respecting an establishment of religion...18 and the separation of Church and State shall be inviolable19 The creation then of the Bangsamoro is also the creation of a territory for the MILF, an Islamic organization, and Muslims in general which is prohibited by our Constitution.
17 Framework Agreement on the Bangsamoro, V. 18 Constitution, Article III, Section 5 19 Id., Section 6

2.2. The Framework Agreement creating the Bangsamoro as an autonomous political entity in Muslim Mindanao for a minority is UNCONSTITUTIONAL.

As it appears in the published map20 highlighting the areas that will comprise the Bangsamoro Autonomous Political entity, the Bangsamoro territory would encompass a total area larger by a small fraction than the Autonomous Region in Muslim Mindanao (ARMM) and, proportionally, a population increased by an almost insignificant percentage. However, the statistics as to the areas and people who are willing to become an integral part of the Bangsamoro government is still subject to a reduction since the contiguous areas, cities and municipalities reckoned by the Agreement may not opt for inclusion in the said entity. This will lead to the creation of the Bangsamoro for a minority which is unconstitutional as this will be an encroachment of the constitutional right of other minorities to equal protection. 21 It will be inequitable to the other minorities for they will not be given a government of their own as the Bangsamoro minority will have.

2.3. The Framework Agreement creating the Bangsamoro and authorizing it with the same powers of a state, except the powers on external defense, security, and foreign postal policy, over coinage and monetary policy, citizenship, naturalization service is UNCONSTITUTIONAL.

The entrenchment of the Bangsamoro is unconstutional for it is the eqivalent of making an independent state but with finances and expenses provided by the Philippine state. According to the agreement:

20 http://www.gov.ph/the-2012-framework-agreement-on-the-bangsamoro/ visited October 22, 2012 21 Constitution, Article III, Section 1

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The Central Government shall have powers on: a) Defense and external security b) Foreign policy c) Common market and global trade, provided that the power to enter into economic agreements already allowed under Republic Act. 9054 shall be transferred to the Bangsamoro d) Coinage and monetary policy e) Citizenship and naturalization f) Postal service22 Even without the powers mentioned in the above-stated list, the Bangsamoro can become a state upon its implementation and not merely a sub-state as the Respondents claim it is. A state is 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 23 In order for a state to

become independent, it only needs the elements which are territory, people, government and sovereignty. These elements are just waiting to be accorded to the Bangsamoro through its establishment.

Under the rule of par in parem non habet imperium, even the strongest state cannot assume jurisdiction over another state, no matter how weak, or question the validity of its acts in so far as they are made to take effect within its own territory. All states including the smallest and least influential, are also entitled to their dignity and the protection of their honor and reputation.24 The creation of the Bangsamoro which could independently work as a state would make this political autonomous entity into an equal of the Philippine state. The making of the Bangsamoro state is definitely unconstitutional. The Philippines cannot create a state within itself because the Constitution recognizes only the Philippine state. If the agreement wishes to replace the Autonomous Region in Muslim Mindanao, it should only give the Bangsamoro the powers of a special local government unit and not the transcendent powers
22 Framework Agreement on the Bangsamoro, III.2. 23 Garner, Introduction to Political Science, 41. 24 Cruz, International Law, 1989, p. 106.

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of a state. The establishment of the Bangsamoro will also infringe the archipelago doctrine, under which we connect the outermost points of our archipelago with straight baselines and consider all the waters enclosed thereby as internal waters. The entire archipelago is regarded as one integrated unit instead of being fragmented into so many thousand islands. 25 Once Bangsamoro assumes its identity as a state, there is no telling if the conflict in Mindanao will end for there will surely be a territorial dispute and other controversies. Moreover, Bangsamoro will certainly be recognized as a state by the Muslim and Arab nations in the international community which the Philippines will be unable to stop.

The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.26

If the Philippines cannot stop the creation of the Bangsamoro, it will certainly find itself with a tapered territory, decreased number of people, undermined government and retrenched sovereignty as it becomes the laughing-stock of its fellow nations for having done all these to itself.

2.4. The Framework Agreement authorizing a foreign entity to aid and be part of the process in amending the Philippine Constitution is UNCONSTITUTIONAL.

The Framework Agreement on the Bangsamoro provides that: An international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate and in conformity with international standards.27 This proviso allowing the
25 Cruz, Phil. Pol. Law, 1987, p. 16. 26 Art. I. Institute de Droit International. 27 Framework Agreement on the Bangsamoro, V.2.

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intervention of foreign entities to the possible amendment of the Constitution, which has already been established, is reiterated in its section for Transition and Implementation stating that: There will be created a third party monitoring team to be composed of international bodies, as well as domestic groups to monitor the implementation of all agreements.28 Both of this stipulations are unconstitutional because it would encroach the independence of the Philippine state by a unilateral and voluntary surrender of sovereignty to foreign power or foreign intervention.

Intervention is not sanctioned in international relations except only when it is exercised as an act of self-defense or when it is decreed by the Security Council as a preventive or enforcement action for the maintenance of international peace and security.29 Even the United Nations is bound not to intervene in matters which are essentially within the domestic jurisdiction of any state.30 The Bangsamoro Agreement's inclusion of a foreign party as a monitoring body is surely an unjustifiable intervention. An entity outside the Philippines' area of sovereignty cannot and should never be included in the amendment of the Constitution because it is a violation of this state's independence. If the Bangsamoro Agreement will be implemented, the freedom of the Philippines to control its own affairs will be foisted by foreign entities and its jurisdiction will forever be questioned, not only by other nations but by its own people. PRAYER

WHEREFORE, in view of the foregoing considerations, it is most respectfully prayed that judgment be rendered in favor of the Petitioner and against the Respondents with the 2012 Framework Agreement on the Bangsamoro declared UNCONSTITUTIONAL deeming it NULL AND VOID and WITHOUT FORCE AND EFFECT.

Other just and equitable relief under the foregoing are likewise being prayed for. _____________________________________________________________________
28 Framework Agreement on the Bangsamoro, VII.11. 29 Cruz, International Law, 1989, p.102. 30 U.N. Charter, Art. 2(7)

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RESPECTFULLY SUBMITTED. Iloilo City for Manila City, Philippines. October 27, 2012.

ROZ LOURDIZ P. CAMACHO Counsel for the Petitioner Rm. 17 Da. Luz Building, 25 Burgos Street, La Paz Iloilo City PTR 5678910/ Jan. 18, 2011/ Iloilo City IBP 998877/ Jan. 19, 2011/ Iloilo City MCLE Compliance No. IV-0919816/Oct. 28, 2010 Roll No. 14344

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