Sunday, June 26, 2011

President Aquino as a Water Hyacinth Remover-in-Chief and the
Postponement of the ARMM Elections – Are They Related?

By Atty. Elpidio V. Peria

            It was equally dismaying to listen to Cotabato City and Maguindanao Province  local officials this week saying they were dismayed at  Pnoy not bringing any solution  or vision to the water hyacinth or water lily problem that has congested  the  Rio Grande river in Mindanao which has caused severe  flooding in these two areas recently.

            In other words, they want Pnoy to be the Remover-in-Chief of these water lilies and they will just follow what he will instruct them.

            Why this attitude? From the pronouncements of these local officials, it was obvious the Local Government Code has failed in weaning away the dependency of local officials from what is Imperial Manila.

            Their utter helplessness in dealing with their problems and now just waiting for President Aquino to helicopter to them ready-made solutions is pathetic and unbecoming of the vision of what local executives should be under  the Local Government Code, one who is resourceful and can find the means to support his own activities with a lessened dependence in the national agencies..

            The first sentence of the Declaration of Policy of Republic Act 7160 or the Local Government Code has this to say on the matter :

            sec. 2. Declaration of Policy – (a) it is hereby declared the policy of the State that the territorial   and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to   enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.

             The word “self-reliant” was not placed there by Sen. Pimentel, the father of the Local Government Code, for nothing but to underline the need for local government units not to go to Manila too often to ask for  money and anything else needed to run a barangay, city, municipality or province, though local officials sometimes may need the excitement of Manila to perk themselves up and shake the ennui of rural boredom that is seen as a regular feature of life outside the capital.

            Come to think of it, in a act of statesmanlike deliberativeness,  Pnoy said he will study the issue some more and will consult some experts and on an unspecified date, will come back and propose solutions.
            Those who are fond of FVR and GMA miss their intense work ethic and hands-on approach to the minutiae of governing. Those familiar with the  work-styles of these former Presidents swear that had it been FVR or GMA who was there visiting the flooded regions, there would have been officials, be it local or line agency, who may have been berated and upbraided already in front of many people, given deadlines or were given marginal notes. Heck, one of them said  GMA even will write on a piece of  any paper found on the spot, just to scribble down some instructions to underlings, all giving the aura of action and authority fused at that instant  aimed at solving the basic problem faced at that time.

            That is what these local officials may have gotten used to, but did not see in Pnoy.
            Pnoy, like what the leftists say, is an out and out hacendero or at most, a son of an absentee landlord and at fifty years old, even on women that  he'd rather date than commit, he has set habits or work and thought, thus, a lifetime of lethargic existence and easy-going unharried lifestyle refuses to be unsettled by the water hyacinths or water lillies that these dismayed local officials have neglected to manage in the first place, thus, Pnoy appeared to them as someone who has not shown any active interest or clear vision of what he wants to do when confronted with the problem face to face.

            Unless what we mean by “solution” or “vision” has some peso sign attached to it.

            Clearly, in a DZRH interview of a Cotabato City official, it was clear that Pnoy was not that in a hurry to give money to the local officials in the area, and that it was palpable according to the local official that there was no trust at all in the local officials handling the problem, thus that kind of sense of dismay felt by those officials who are in need of “solutions” or “vision” to solve their water lily problem.

            This sense of lack of trust in the local officials in the ARMM,  apparent in this incident of the issue of removing the water lilies could be  one reason why Pnoy and his party-mates in Congress pushed hard to have the legally scheduled ARMM elections in August re-set and synchronized with the regular local elections in 2013.

            It must be noted though that  Cotabato City is not a part of this autonomous region, but is instead a host to the offices of the ARMM, in an odd Washington. D.C.-type of political arrangement. A lot of ARMM officials though live in Cotabato City.  Just the same, Cotabato City is one of the worst-hit areas by the floods caused by, among others, the water hyacinths clogging the river outlets of the city.

            Pnoy and his party-mates actually wants to ensure their party wins the next round of general elections in 2016, thus eschewing the actual legal rationale for synchronization of elections. 

            Thus, those who wish to make Pnoy take the lead in removing the water lilies should just await his solutions to the problem which may come anytime soon, and like the proverbial saying “be careful what you wish for, it may be granted”, this surrender or holding in abeyance of the exercise of local authority and autonomy will get its full treatment once Pnoy signs this week the law synchronizing the ARMM elections to 2013, in effect, postponing it.

            In that way, we can truly see what kind of Water Lily  Remover-in-Chief he will be including perhaps becoming an ARMM overlord,  which may be tested under the Constitutional vision of the President as having “general supervision” over local government units and autonomous regions.

            How that will actually turn out and how he would like things to happen there,  a glimpse of that we can see when he makes his oath-taking anniversary speech or the traditional SONA to mark his one year in office in the coming days.

            With a sliding popularity that shows a trend of continuous decline, Pnoy may have to resort to something like authoritarian measures to show he has vision, to show he is  a leader, not a stranger to action.

            The people love it, or perhaps they have gotten used to it, to them that is leadership.

Please check link also at President Aquino as Cotabato Water Hyacinth Remover


Sunday, June 19, 2011

Spratlys Idiosyncrasies:
Does the Philippines Have What It Takes to Prevail Over China?

By Elpidio V. Peria
            This  write-up will not dwell on the political and military capability of the Philippines over a rising power such as China, but will  provide a sketch of the relative legal merits of the Philippine claims over the Spratlys Island or Kalayaan Island Group, in the recently-named West Philippine Sea.

            The late Prof. Haydee Yorac of the University of the Philippines College of Law, wrote as early as 1983 in a Philippine Law Journal article that 

              Persuasive arguments in favor of the Philippine claim are the related notions of abandonment, territorium nullius   and effective occupation.
                Prof. Yorac explained that the  case for abandonment is anchored on the premise that it is Japan, not China, that can be considered to trace their legal title to the islands  before World War II, making the earliest categorical claim of sovereign occupation  over the islands and actually occupying the islands for a long period of time. The existence of a legal title can also be inferred from the way Japan was made to renounce title to the islands in both the  Treaty of Peace with the Allies in 1951 and the Bilateral Treaty of Peace with the Republic of China. Since it was not clear to which country the renunciation was made in favor of, then the islands became what in international law is called as territorium nullius.

            Prof. Yorac elaborated on this concept of territorium nullius, defining it as “territory over which there exists no effective sovereignty and which is therefore, subject to acquisition by occupation”. These may include either uninhabited islands or even inhabited ones, if those who inhabit the latter  do not constitute a political society.

            Thus, when Tomas Cloma, a private citizen, made a declaration in 1956 asserting ownership by discovery and occupation over the "33 islands, sands cays, sands bars and coral reefs and fishing grounds in the Spratlies covering an area of 64,976 square nautical miles”,  he was in effect taking advantage of the nature of the islands as either abandoned and/or having the status of a territorium nullius.

            Other international law scholars would belittle the Philippine actions and legal claim as this was only recently affirmed on June 11, 1978, when President Marcos issued Presidential Decree No. 1596 declaring most19 of the islands, cays, shaols and reefs as belonging to. the Philippines and forming an integral part of Philippine territory.

            Malaysia's claim came much later, in 1980, when  it issued a new official map which claimed continental shelf encroaching upon a portion of the Spratly group and part of the Palawan group.

            Another set of legal arguments the Philippines is using to bolster its claim in the Spratlys is the UN Convention on the Law of the Sea or UNCLOS, to which it is a signatory and a ratifying country, specifically citing the islands as part of its Exclusive Economic Zone or EEZ.
                Xavier Furtado, a visiting Assistant Professor in International Relations at De La Salle University noted in a 1999 paper two idiosyncratic problems when citing UNCLOS to bolster the Philippine claims. According to him:

                one such issue is the definition of an island. According to UNCLOS, an island can be used to generate an EEZ. The   drafters of the Convention, not wanting small uninhabitable rocks and occasionally submerged features to be used      as base points, defined an island as "a naturally-formed area of land, surrounded by water, which is above water at                 high tide".  The Convention is careful to differentiate between legitimate islands and "rocks which cannot            sustain                   human habitation or economic life on their own".  In spite of this clear definition, some claimants (the Peoples'     Republic of China particular) have used submerged features in the Spratly chain to claim territorial waters and                EEZ.

                For example, both the PRC and the Philippines claim Scarborough Reef which lies some 215 kilometres west of         the Philippines. While some features of the Reef are submerged, others manage to remain above sea level at all                times. However, as those features are unable to generate any sort of economic activity and are uninhabitable, they     cannot be used to claim an EEZ. In spite of this, the PRC and the Philippines continue to engage in an open          confrontation over who has legitimate control over Scarborough Reef.  More importantly, this has contributed               to further confusion over the definition of an island as outlined in UNCLOS. 

            Another problematic aspect of UNCLOS as it relates to the Philippines is the Convention's provisions on archipelagic states.  Prof. Furtado explains:

            Part IV of UNCLOS defines an archipelago as "a group of islands, including parts of islands, interconnecting              waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as             such". UNCLOS affords archipelagic states, such as the Philippines, specific privileges in terms of drawing        baselines for territorial/sovereignty purposes. Specifically, such states have the right to draw baselines around the            fringes of their outermost islands. In doing so, archipelagic states are allowed to claim the waters within these       boundaries as sovereign territory. Having established their periphery, archipelagic states can then claim their               territorial sea and other maritime spaces as would any other state. As a result, it is possible that substantial areas of           the ocean (which otherwise would be considered part of the high seas) would come under the sovereign jurisdiction     of a single state. In the case of the Spratly dispute, the Philippines has benefited the most from these provisions     and, at various times, has attempted (rightly or wrongly) to use them to justify its claim to the Kalayaan group. 

                 However, Prof. Furtado says that :

            it has proven very difficult to reconcile UNCLOS with existing provisions in the Philippine Constitution regarding       internal waters. Article 1 of the 1987 Constitution states that "the waters around, between, and connecting the          islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the              Philippines". To reinforce this assertion, the Philippine Government made the following statement: The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and          removes straits connecting these waters with the economic zone or the high sea from the rights of foreign vessels to            transit passage for international navigation.

                On 10  March 2009, President GMA signed into law, RA  9522 or “An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes”.
                The said law was however questioned before the Supreme Court by Profs. Merlin Magallona, and Harry Roque,  Akbayan Party-list Rep Rissa Hontiveros and 38 other UP Law students, and among other grounds it asserted, the key point for our discussion from that petition is that RA 9522 has effectively weakened the Philippine claim over the Spratlys or Kalayaan Islands Group as it is called there in such petition, by classifying such islands as a  “regime of islands” which means “a group of islands whose ownership is being contested by the Philippines and other claimant countries.”  aside from putting these islands effectively outside of the outermost points of the baseline.

            The Supreme Court, however, has not yet resolved this case, up until now. Perhaps it may help if the Supreme Court can clarify some of the changes effected by the new law on the Philippine baselines, whether they are legally valid or not, as that will determine whether the Philippine claims to the Spratlys will be helped or not, especially when it involves the interplay of what is in the Philippine Constitution, which has a provision on the national territory based on the Treaty of Paris that gives the Philippines a bigger territory than what is provided for by RA 9522 and interpretation of how far UNCLOS provisions on archipelagic waters can be implemented within Philippine jurisdiction.
            Given the intricate link of this case to the Philippine claims over the Spratlys, it is best to await its outcome and then define the  subsequent courses of action later.

(The author, Atty. Elpidio V. Peria, is a partner at Cartojano Peria & Associates, a full service law firm in the Philippines)

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