The Philippine claim on the islands in the South China Sea , now being called West Philippine Sea by Philippine authorities, could have been stronger had past administrations been more decisive about asserting our claims in the area that is being claimed wholly by China and Taiwan and partially by, aside from the Philippines, Vietnam, Malaysia, and Brunei.

In a speech of Supreme Court Justice Antonio T. Carpio at the 50th anniversary celebration of Ateneo de Davao University last Oct. 29 on “The Rule of Law as the Great Equalizer’, he mentioned two instances when the Philippines could have done something but did not to strengthen the Philippine claim over the area that spans hundreds of thousands square kilometers including 53 islets.

The first time was right after the Philippines became a signatory to the United Nations Convention on the Law of the Sea (UNCLOS) in 1982 and the other one was before China opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS.

In discussing the rule of law, Carpio zeroed in on three major international conventions which the Philippines has ratified: the UNCLOS; the Agreement creating in 1995 the World Trade Organization or WTO; and the Rome Statute, the treaty creating the International Criminal Court or ICC.

Carpio was President Fidel Ramos’ chief legal counsel and he knows whereof he speaks about the missed opportunities in building lighthouses.

He said: “after the Philippines became a signatory to UNCLOS in 1982, Philippine officials studied for several years various options on how to maximize the country’s archipelagic waters under UNCLOS. Finally, these officials agreed on one thing: establish lighthouses in low-tide elevations (LTEs), which are rocks above water at low tide but submerged at high tide. With lighthouses, these LTEs qualify under UNCLOS as basepoints to connect archipelagic baselines. Without lighthouses, these LTEs do not qualify as basepoints. Preparations were thus made to install lighthouses in several LTEs, particularly in the Kalayaan Island Group.

“In early 1998, the Philippine Government decided to install the lighthouses. However, at the last minute, the Philippine Government backed out and stopped the installation of the lighthouses. Thus, the Philippines missed the chance to maximize its archipelagic waters under UNCLOS.”

Documents I have obtained on this attempt to build lighthouses in KIG showed that it was bureaucratic wrangling, particularly between the National Mapping and Resource Information Authority (NAMRIA) and the Department of National Defense on who would be the lead agency in the activity that had an initial budget of P178 million, that derailed the project.

On the second missed opportunity, Carpio said, “If China’s 9-dashed line map is questioned before an UNCLOS tribunal, there is no doubt that it would be declared as having no basis in international law.

“China’s 9-dashed line map simply cannot co-exist with UNCLOS. Upholding one means killing the other. The challenge then, for the Philippines as well as for other states trampled upon by China’s 9-dashed line map, is how to bring the validity of China’s 9-dashed line map to an UNCLOS tribunal, given that China has opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS. Had the Philippines and other claimant states brought China to compulsory arbitration before 2006, China, which ratified UNCLOS in 1996, would have had no recourse but to submit to compulsory arbitration. That would have ended China’s claim to the entire South China Sea under whatever basis or theory. Inexplicably, the Philippines and other claimant states missed their chance to bring China to UNCLOS before China opted out of the compulsory dispute settlement mechanism.”

The nine-dash-line is a map showing a U-shaped line enclosing almost the whole of the South China Sea which China claims belongs to them. The map has been widely protested by several countries including the Philippines and criticized in the international community.

In the recently-held forum on South China Sea organized by the Carlos P. Romulo Foundation, Peter Gailbraith, former US ambassador to Croatia and who now heads the Windham Resources Group, which provides negotiating and strategic services to government and corporate clients, said China’s nine-dash-line “has no basis in international law.”

Carpio said “Not all is lost” for the Philippines.

Government agencies involved in the South China Sea issue (Foreign Affairs, Defense and Justice departments) should study this part of Carpio’s speech:

“First, a state that opts out of the UNCLOS compulsory dispute settlement mechanism is still subject to compulsory conciliation under UNCLOS. While the decision of an UNCLOS conciliation commission is not binding on the parties, its ruling is nevertheless persuasive. If the conciliation commission concludes that China’s 9-dashed line map has no basis in international law, then that is practically the end of China’s claim to 90% of the South China Sea. World opinion will turn strongly against China if it insists on its 9-dashed line map. The South China Sea is the second busiest international sea-lane in the world. More than one-half of the world’s merchant fleet by tonnage passes through the South China Sea every year. More than 80% of the crude oil for Japan, South Korea, and Taiwan passes through the South China Sea. The entire world has an important stake in the South China Sea. A country like China that depends on international trade for its growth and prosperity cannot simply ignore world opinion. As events in the break-up of Yugoslavia and the upheavals of the Arab Spring have shown, world opinion has become the defining moral force behind the Rule of Law.

“Second, UNCLOS allows states to opt out of compulsory arbitration only with respect to the delimitation of overlapping maritime zones or issues involving historic bays or titles forming part of internal waters. The validity of China’s 9-dashed line map is an issue that is independent of maritime delimitation because it also affects fishing, scientific research and freedom of navigation in the South China Sea. No historic bay or title is involved because China obviously cannot claim the South China Sea as its internal waters.

“Also, whether the geographic features in the Spratlys Islands Group in the West Philippine Sea are rocks or islands entitled to maritime zones is an issue not subject to the opt out clause as this issue does not involve the delimitation of maritime boundaries. Once the maritime status of these rocks and islands are defined, as distinguished from their sovereignty status, the extent of the disputed area in the South China Sea will also be defined and narrowed. If none of the islands generate their own EEZs, then there will be no overlapping EEZs between China and the Philippines in the Spratlys Islands Group. If some islands generate their own EEZs, then the dispute will be narrowed to those overlapping EEZs, freeing the rest of the South China Sea from any dispute.

“Thus, some international law scholars have suggested that opposing claimant states should subject the validity of China’s 9-dashed line map, as well as the maritime status of the rocks and islands in the South China Sea, to compulsory arbitration under UNCLOS.

“In this crucial battle to secure our EEZ under UNCLOS, the Philippines can never lose to China, unless the Philippines commits an irremediable blunder like bringing the battle outside of UNCLOS. We must bring the battle to an UNCLOS tribunal for resolution of the dispute under UNCLOS. Our right to our EEZ in the South China Sea is guaranteed under UNCLOS. UNCLOS will lose its reason for existence if it fails to secure for the Philippines its EEZ. If the Philippines brings the battle outside of UNCLOS, it can never expect to win over China, whether militarily or diplomatically.”

It is within the rights of President Aquino to deny the desire of the Marcos family for a state burial for President Ferdinand Marcos.

If Aquino thinks that Marcos’ dictatorship nullified the latter’s two-term presidency and disqualified him for a state burial, he is entitled to that opinion.

Since Aquino is the president now, his decision will be followed in political matters, which the Marcos burial issue, has become.

At the forum hosted by the Foreign Correspondents Association of the Philippines last Wednesday, Aquino announced his decision to ignore the recommendation of Vice President Binay whom he had tasked to study the issue that his three predecessors – Fidel Ramos, Joseph Estrada, and Gloria Arroyo, did not want to handle.

Aquino cited the many victims of Marcos’ martial law that includes his father, Benigno “Ninoy” Aquino Jr.

“It would be really, I think, the height of injustice to render any honors to the person who was the direct mastermind of all their suffering,” he said.

Aquino’ sentiments are understandable.

But why, in the first place, did he ask Binay to study the matter? The vice-president even conducted a survey which elicited 3,115 replies (2,139 through text and 976 through email.)

Joey Salgado, the vice president’s spokesperson, said they did not tabulate the responses because “they wanted to know the basis for their respective positions.”

Did Binay sense even then the President’s sentiment and wanted to give him a way out?

Nevertheless, Binay came out with the recommendation last June to have the remains of Marcos buried in Ilocos Norte with military honors. The Marcos remains has been kept in a refrigerated crypt in his hometown in Batac, Ilocos Norte since it was brought home in 1993. Marcos died in 1989 while in exile in Hawaii.

The Marcos family was amenable to Binay’s recommendation.

That’s why, it is also understandable that Sen. Ferdinand “Bongbong” Marcos Jr would be dismayed with Aquino’s decision.

“Nagtataka ako bakit pa tayo pinag-aksaya ng panahon kung di naman talaga susundin yung mga rekomendasyon, mga study. Mukhang sarswela lang pala lahat ‘tong ating ginawa. It turns out it was a futile exercise,” Marcos said.

Nagtataka din ako.

Of course, this is not the first time that Aquino ordered a study or an investigation but ignored the recommendation. Remember the recommendation of the Incident Investigation and Review Committee headed by Justice Secretary Leila de Lima that recommended filing of criminal and administrative charges against officials who bungled the Aug. 23, 2010 Rizal Park hostage-taking incident?

When he didn’t like the IIRC recommendations because it called for heavy sanctions against his shooting buddy, Interior Undersecretary Rico Puno, his favorite police chief Jesus Verzosa, and Manila Mayor Alfredo Lim, a close friend of his family, he created another review committee. In the end, none of the negligent decision-makers were punished.

Next time, another sensitive issue comes up, please Mr. President, don’t create study or investigating groups. Just decide on it. No waste of government resources.

Huwag na tayo maglokohan.

***

Social Weather Stations conducted last March a survey on whether Marcos is worthy of a burial in the Libingan ng mga Bayani. The result: 50 percent said “Yes”, 49 per cent said “No” and one per cent had no answer.

Sen. Antonio Trillanes was not exactly surprised that the “Mayuga Report” was a dud.

It actually did not add much more to the one page press statement that the Arroyo government released in April 2006, at the start of the Lenten week when everybody was either in a holy retreat or holiday mood, that cleared all the generals mentioned in the “Hello Garci” tapes of any complicity in the election cheating that allowed Arroyo to keep the presidential powers she grabbed from elected President Joseph Estrada.

Trillanes, a former navy officer and imprisoned for more almost seven years for standing up to Arroyo, said the 15-page report, “ per see, as expected, was sanitized.”

But, he said, “the attachments which contain the testimonies of the resource persons and witnesses are loaded with revelations about some officers’ involvement in the election cheating in 2004.”

The young senator said, “We can just throw away the report and just focus on the testimonial evidence.”

One testimony that Trillanes would like to pursue is that of former AFP Vice Chief-of-Staff Lt. Gen. Rodolfo Garcia, commander of the 2004 Task Force HOPE (Honest, Orderly, Peaceful Elections). Gen Garcia asked the fact-finding board, headed by then Vice Admiral Mateo M. Mayuga, to audit the P197 million given to the Task Force.

Garcia said that “a big amount of money” had been allotted for the military’s role in maintaining honest, orderly and peaceful elections, but he said, “I don’t think what was spent came close to what was given to us.”

The one who had control of the TF HOPE’s fund was its deputy commander, Maj. Gen. Hermogenes Esperon, who was then the AFP deputy chief of staff for operations (J3).

When asked about the phone conversation between Arroyo and Comelec Commissioner Virgilio Garcillano where names of a number of ranking military officers were mentioned as participants in tampering election results, Garcia was frank with the five-man board.

He said: “I think if you look deep down inside yourself and ask yourself your honest opinion, whether you believe our officers can be capable of cheating or did it happen, the answer is ‘yes’.”

Garcia further said, “There are people among us who allowed themselves to be used. Let us not joke ourselves or try to delude ourselves in the idea na walang nangyari.”

It is a reflection of the quality of the Mayuga report that not a line about Garcia’s testimony was mentioned in the executive summary.

Another testimony worth following up is that of Col. (then Capt.) Feliciano Angue who was then the Naval Task Force Commander in Tawi-Tawi. Strangely, he was relieved of his duties in Tawi-tawi the day after the May 10, 2004 elections by then Flag-Officer in Command Ernesto de Leon and was told to report to the commander of the Naval Forces Western Mindanao in Zamboanga City.

The Mayuga Report merely said that Angue attended a three-day conference.

But Angue told fellow officers that Esperon called him at least six times to allow Arroyo’s election operators to do their thing in his area. He also mentioned a “Capt. Ball” who also called him with the same message. Many guessed that Capt. Ball was either a retired military officer or police officer who held a high position in the Arroyo government.

Angue said he told Esperon and Capt. Ball to spare his area because anyway the votes were not really substantial.

He said that if they insisted, it’s better that he be “grounded”.

He was indeed grounded in Zamboanga for three days after the elections, enough time for Arroyo operators to tamper with the elections results.

Mayuga later confided to friends that the problem with Angue was, he did not tell the fact-finding board what he was telling his fellow officers.

Mayuga, after clearing the ‘Hello Garci” officers, was promoted to the Philippine Navy’s top post vice De Leon who was sent to Australia as ambassador, where he spent most of his time getting a doctor’s degree on time and resources paid for by Filipino taxpayers.

Angue, meanwhile, is facing court martial for airing his grievances in public on alleged favoritism in the military now.

Sen. Chiz Escudero, chairman of the committee on national defense and security, said reading the transcripts, there were many times that the investigators stopped the questioning when the interview was leading to a vital information. “One got the sense that they didn’t want to know the truth,” he said.

When members of media were asking Mayuga for a copy of his report which was classified “Secret” during the Arroyo administration, he had said that he would bring the board’s findings to his grave.

Arroyo is out of Malacañang and is immobilized by an infected spine.

President Aquino last Tuesday declassified the Mayuga Report and copies of which were made available to media.

Moral of the story: Truth cannot be suppressed forever. Like water, it will find its way out to the people.

Now that Bertie Lim will soon be out of the Department of Tourism, the issue about Mark Lapid rests squarely with President Aquino.

People in the DOT are keenly watching the case of Lapid because it would prove that the President’s pledge to lead the people through the “matuwid na daan” is more than just sloganeering.

I would like to make it clear here that the case of Lapid is a separate issue from Lim’s lackluster performance as tourism chief.

I think that quitting the DOT was a good decision for Lim. His one year stint with the DOT showed that he is not cut for that job which requires more than sincerity, honesty and dedication.

Anyway, sometime in May, Lim reported to Aquino about his problem with Lapid, chief operating officer of the Tourism Infrastructure and Enterprise Zone Authority (TIEZA), formerly Philippine Tourism Authority. The report allegedly involved deals with suppliers.

Lapid, who has the rank of undersecretary, is the son of Sen. Manuel “Lito” Lapid. He was formerly governor of Pampanga. He was once romantically linked to Kris Aquino, sister of the President.

It is worth recalling that Lapid’s position in TIEZA was one of those included among the controversial midnight appointments of Gloria Arroyo – appointments made during the ban which was 45 days before the May 10, 2010 elections.

Lapid then argued that his TIEZA post could not be considered a midnight appointment because it was merely a nominal change from his old post as PTA general manager.

There were reports then that Sen. Francis Pangilinan was helping convince Malacanang to allow Mark to keep his post in exchange for the support of Lito Lapid for his senate presidency bid. Neither Pangilinan nor any one aligned with the Aquino administration got the Senate presidency. It went to Sen. Juan Ponce Enrile of Partido ng Masang Pilipino of former president Joseph Estrada.

Back to Lim and his report to Aquino about Lapid’s alleged disturbing activities.

A highly reliable source said Aquino asked Lim to wait because Malacañang needed the vote of Lito Lapid for the postponement of the election in the Autonomous Region for Muslim Mindanao that they were pushing.

Indeed, one of the 13 senators who voted for Senate Bill 2756 deferring the scheduled Aug 8, 2011 elections to the first Monday of May 2013 was Lapid. That was on June 6, 2011.

The source said Lim expected Aquino to act on his recommendation after the Senate vote on the postponement of the ARMM elections. A Malacañang source, however, said they were getting irritated that Lim didn’t want to let go of the Lapid issue.

More than two weeks after, during the anniversary celebration of the Department of Public Works and Highways, while praising DPWH Secretary Rogelio Singson and two others, Aquino said, “Sa totoo lang, meron akong na-obserbahan na mga miyembro ng gabinete, mga dalawa o tatlo – kada makita ko agad iniisip ko, ano kayang bad news ang dala-dala nito (In truth, I have observed Cabinet members, about two or three – each time I see them I wonder what bad news they bring.)”

One newspaper later named Lim as one of those three secretaries who were messengers of bad news to Aquino.

The source said Lim felt all the more the lack of Malacañang’s support when DOT was not mentioned in the President’s second state-of-the nation address last July 25.

In a statement about Lim’s resignation, Presidential Spokesperson Edwin Lacierda lauded the former president of the Makati Business Club for being “the chief advocate of the Pocket Open Skies Policy, the landmark breakthrough from the protectionist policies of the past.”

Lacierda also said during Lim’s one year stint as tourism secretary international visitors increased to an unprecedented level: over 3.7 million arrivals between July 1, 2010 and June 30, 2011.

Those were culled from the report submitted by Lim for the SONA.

I perfectly understand why the President didn’t feel like bragging about those tourist arrivals. That’s nothing compared to the tourist arrivals in neighboring Singapore, Thailand and Malaysia.

The resignation of Lim gives Aquino another chance to look for someone who could re-energize the country’s sluggish tourism industry.

Meanwhile, what does he do with government officials like Mark Lapid?

Surely, Justice Secretary Lilia de Lima knows the ramifications of her willingness to consider Zaldy Ampatuan, former governor of the Autonomous Region for Muslim Mindanao and one of the 196 persons accused in connection with the Maguindanao massacre, as state witness in a possible election fraud case against Gloria Arroyo.

“That is a new case, a totally different case and we can consider them, or whoever, it is Zaldy Ampatuan or Lintang Bedol. It would depend on the extent of their participation, “ De Lima said a day after Zaldy and former Maguindanao election supervisor Lintang Bedol said in separate TV interviews where they dangled information everybody knew about cheating in the 2004 and 2007 elections. Nothing in the published reports, though, directly implicates Gloria Arroyo.

De Lima also echoed Malacañang’s assurance that Zaldy will not be considered state witness in the Nov. 23, 2009 massacre that killed at least 58 persons, 32 of them journalists. This was despite the offer of Zaldy that he was willing to turn his back on his father, Andal Ampatuan Sr, identified by witnesses as the mastermind of the gruesome murders, and his brother, Andal Jr, identified as the triggerman.
Zaldy is one of the 79 people detained for the massacre. He has been working to be dropped from the case and he almost succeeded during Arroyo’s administration aborted only by strong public protest.

The long rumored connection of the Ampatuans with Bedol, wanted by the Commission on Elections since 2007 in connection with poll fraud investigations, has been confirmed with their obviously orchestrated TV interviews. “Zaldy is the handler of Bedol,” a Malacañang official said.

Both Zaldy and Bedol said they are not offering themselves as state witnesses. What they want is to be under the Witness Protection Program.

Based on the statement of De Lima and other officials of the Aquino government, it looks like Zaldy and Bedol will get it. They will get their freedom. They will not be made to pay for their crimes against the Filipino people.

Here are the rights and benefits of a person under the WPP (R.A. 6981):

“ (a) To have a secure housing facility until he has testified or until the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level. When the circumstances warrant, the Witness shall be entitled to relocation and/or change of personal identity at the expense of the Program. This right may be extended to any member of the family of the Witness within the second civil degree of consanguinity or affinity.

“ (b) The Department shall, whenever practicable, assist the Witness in obtaining a means of livelihood. The Witness relocated pursuant to this Act shall be entitled to a financial assistance from the Program for his support and that of his family in such amount and for such duration as the Department shall determine.

“ (c) In no case shall the Witness be removed from or demoted in work because or on account of his absences due to his attendance before any judicial or quasi-judicial body or investigating authority, including legislative investigations in aid of legislation, in going thereto and in coming therefrom: Provided, That his employer is notified through a certification issued by the Department, within a period of thirty (30) days from the date when the Witness last reported for work: Provided, further, That in the case of prolonged transfer or permanent relocation, the employer shall have the option to remove the Witness from employment after securing clearance from the Department upon the recommendation of the Department of Labor and Employment.

“Any Witness who failed to report for work because of witness duty shall be paid his equivalent salaries or wages corresponding to the number of days of absence occasioned by the Program. For purposes of this Act, any fraction of a day shall constitute a full day salary or wage. This provision shall be applicable to both government and private employees.

“ (d) To be provided with reasonable traveling expenses and subsistence allowance by the Program in such amount as the Department may determine for his attendance in the court, body or authority where his testimony is required, as well as conferences and interviews with prosecutors or investigating officers.

“ (e) To be provided with free medical treatment, hospitalization and medicines for any injury or illness incurred or suffered by him because of witness duty in any private or public hospital, clinic, or at any such institution at the expense of the Program.

“ (f) If a Witness is killed, because of his participation in the Program, his heirs shall be entitled to a burial benefit of not less than Ten thousand pesos (P10,000.00) from the Program exclusive of any other similar benefits he may be entitled to under other existing laws.

“(g) In case of death or permanent incapacity, his minor or dependent children shall be entitled to free education, from primary to college level in any state, or private school, college or university as may be determined by the Department, as long as they shall have qualified thereto.”

Once Zaldy is under the WPP (in connection with the possible case of election fraud against officials of the Arroyo administration), anyone who tries to get custody of him for another case would be criminally liable. How is he then going to be tried for his role in the Maguindanao massacre?

So Zaldy can stay in a safehouse (it can be in one of his mansions), protected by government agents paid for by the Filipino people. Take note that last Friday, the prison doctor recommended “prison arrest” for him.

Andal, Sr, who is in his late 70’s, is expected to apply for release for humanitarian reason when he reaches 80.

As of now, they are willing to sacrifice Andal Jr. But don’t bet on it. Later on he might plead insanity.

As to Bedol, it looks like he is part of the package deal with Zaldy. A stinking package deal.

In case there’s a shooting war in the disputed islands of the Spratlys, don’t expect the United States military to come to the aid of the Philippines, South China Sea experts said.

The experts were discussing the possibility of the United States military would entering the picture in case of an armed conflict in the South China Sea. This was in light of the excitement of some Philippine officials and media over the statement of U.S. State Secretary Hillary and U.S. Ambassador Harry Thomas about continuing to work with the Philippines on all issues including related to the South China Sea conflict and that the US would stand by the Philippines “by our commitment under the Mutual Defense Treaty.”

This was at the two-day Manila Conference on the South China Sea jointly organized by the Foreign Service Institute of the Philippines, National Defense College of the Philippines, and the Development Academy of Vietnam held at the Dusit Thani Hotel in Makati last week.

Retired General Vinod Saighal of the Indian Army, who is now executive director of the Eco Monitors Society, a non-governmental organization concerned with demography and ecology, said, “Forget the U.S. It will not happen. They are going to sleep.”

Saighal said the U.S. has its hands full with Afghanistan and Libya.

Mark J. Valencia, a fellow at the National Asia Research program, National Bureau of Asia Research and Woodrow Wilson Center (U.S.A) said the U.S. may share intelligence information but he ruled out their sending the U.S. Marines.

Renato de Castro of the De La Salle University recalled the words of former Commander-in-chief of the Pacific Command Charles Larson after the 1991 Philippine Senate decision to terminate the PH-US Military Bases agreement who asked why the Philippines would expect the US to honor their commitment under the MDT after depriving them of their forward base.

But De Castro said the U.S. won’t stand idly in case of hostilities in the South China Sea where a third of the world’s maritime trade pass. “They will not allow the sea lanes of communication to be blocked,” he said.

In his paper presented during the conference, Dato Vice Admiral Noor Aziz Bin Yunan, Difense Konsult PLC, Malaysia cited three reasons for the strategic importance of the SCS: critical trade route, oil reserves and fishery resources, and geo-political strategy.

“Much of the trade between Europe and the Middle East passes from the Indian Ocean through the Malacca Strait, then up through the South China Sea, South Korea, and Japan. Japanese and South Korea defense planners in particular do now want this trade route dominated by China. Japan has shown strong interest for guaranteeing the freedom of trade. This is due to the fact that Japan’s trade and an overwhelming part of the oil Japan imports is transported through the South China Sea. It is in Japan’s interest that not one party gets strong enough to control the trade throughout the region,” he said.

Yunan said recalled that on Dec. 24, 1989, China revealed that the Spratlys contained 25 billion cubic metersof natural gas, 105 billion barrels of oil, and 370,000 ton of phosphor.

He said the strategic location of the SCS as an important sea-line-of communications adjacent to choke points of Malacca and Singapore Straits is becoming a zone of competition between China and the United States and the Spratlys area has military, economic, and strategic importance for all the parties in the conflict. Paracel and the Gulf of Tonkin have the same strategic importance for Vietnam and China.

“Should one party gain exclusive control over the area, that state would gain total control over the economic development and the trade routes in the region,” Yunan said.

He also said China is seeking naval preponderance in the South China Sea as part of its bid to become a global naval power.

In the meeting of Clinton with Philippine Foreign Affairs Secretary Albert del Rosario in Washington D.C. last month, the former expressed concern over renewed tension in the SCS. “These reported incidents clearly present significant maritime security issues, including the freedom of navigation, respect for international law, and the lawful, unimpeded economic development and commerce that all nations are entitled to pursue.”

She reiterated U.S. policy: “Our position on the South China Sea has been consistent and clear. We support a collaborative diplomatic process by all claimants to resolve their disputes without the use or threat of force.”

Clinton also made clear the U.S. position on the conflicting claims of the Philippines, China, Vietnam, Malaysia, Brunei and Taiwan: “And as I’ve said, we don’t, as the United States, take a position on competing sovereignty claims over land features. And as the secretary said, there is customary international law; there is the law of the seas. What is theirs is theirs and then what is disputed should be resolved peacefully. However, if there are claimants to land or sea features, then they should respect the international law and do everything we can to try to resolve these disputes because, ultimately, territorial disputes have to be resolved by the claimants. But the United States is prepared to support the initiatives led by ASEAN and work with the South China Sea’s claimants to meet their concerns.”

Col. Galileo Gerard Kintanar, Jr. of the Philippine Air Force asked about a worst-case scenario in the SCS. Peter A. Dutton, Associate Professor, China Maritime Studies Institute, U.S. Naval War College, Hasjim Djalal of the Indonesian Maritime Council and Carolina Hernandez of the Institute for Strategic and Development Studies, Philippines ruled out an all-out-war.

But Dutton and Hernandez warned of “unintended flare-ups”.

“Small incidents that get out of control,” Dutton said.

Dutton said there is no “shortage of good aspirations” to find solutions to make SCS a zone of peace, freedom and cooperation.

However, he said, “There appears to be a shortage of political will to find compromise and all sides are using naval power to send signals of resolve.”

He added:“If parties are to stave off conflict, the answer lies not in the win-lose propositions of sovereignty and jurisdiction, but in finding answers in some of the examples of win-win frameworks that would regionalize the territory and waters of the South China Sea, allow common development of the living and non-living resources, and provide for shared enforcement of laws.”

The alternative, Dutton said, “is as it ever has been – that the strong will do what they can and the weak will do what they must.”

To those who got excited with the statement of United States Secretary of State Hillary Clinton and Ambassador Harry Thomas about supporting the Philippines in the Spratlys issue, read carefully what they said.

Thomas said: "We are allies. We will continue to work with each other in all issues including the South China Sea and Spratlys." This was at the time when the Philippines was protesting the intrusions of Chinese armed vessels in West Philippine Sea.

Thomas got hearty applause when he repeated that assurance during the launching of the National Renewable Energy Program at the Department of Energy in the presence of President Aquino.

Thomas also said that the US stands "by our commitment under Mutual Defense Treaty."

What’s the US commitment under the 1952 RP-US MDT?

Article IV of the MDT says, "Each party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes."

Former UP College of Law Dean Pacifico Agabin said "constitutional processes" means the US president must first consult with Congress before coming to the aid of the Philippines in case of hostilities in the South China Sea.

In other words American lawmakers, in the spirit of democracy, would be discussing whether it is in the interest of the American people to risk their troops in the South China Sea while the Philippine Navy with their vintage vessels battles the well-equipped Chinese troops.

But the Spratlys tension could serve another purpose which is pave the way for the return of American troops in the Philippines.

In the recent visit of Foreign Secretary Albert del Rosario to Washington D.C, State Secretary Hillary Clinton said "The US is determined and committed to supporting the defense of the Philippines, and that means trying to find ways of providing affordable material and equipment that will assist the Philippine military to take the steps necessary to defend itself."

As if on cue, Philippine Navy Vice Commander Rear Admiral Orwen Cortez told a press conference following the opening ceremony of the PH-US Cooperation Afloat Readiness and Training (CARAT) in Puerto Princesa of a plan enter into an "operational lease" agreement with the US military.

In a report by VERA Files, the "operational lease" is being resorted to as a short cut because "the government could not purchase patrol boats off-the-rack, and would have to wait two years to procure them, given government procurement rules. "

VERA Files quoted Cortez as saying that the operation lease concept was practiced in the 50’s under the Southeast Asia Treaty Organization (SEATO).

SEATO was a regional alliance formed in 1955 to contain the powers of communist China by providing for the collective defense of its members. But it only had two Southeast Asian members, Philippines and Thailand, and the latter hosted the headquarters. The other members were Australia, France, New Zealand, Pakistan, the United Kingdom and the U.S. SEATO formally disbanded in 1977.

But the politics of countries of the world have changed. The Association of Southeast Asian Nations now groups former SEATO members with Vietnam, the communist country that humbled mighty America.

But, we have a question: under the lease agreement, who will operate the U.S. vessels?

It was fine during the SEATO days because the Philippines was hosting American bases under the RP-US Military Bases Agreement.

But as the VERA Files article said, "should the country enter into a lease with the U.S. that would include American military personnel who will help operate the vessels, the arrangement might violate the Constitutional ban on foreign military troops."

Article 18, Section 25 of the Constitution provides that "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state."

Besides, isn’t the Aquino government reviewing the RP-US Visiting Forces Agreement?

The current word war between the Philippines and China is another proof of the continuing curse of Gloria Arroyo on the Filipino people.

The latest series of diplomatic protests lodged by the Philippines with China and submitted also to the United Nations have its roots to the controversial Joint Marine Seismic Undertaking entered into by the Arroyo government with China in 2004 which allowed China and later on Vietnam to explore not only the Philippine-occupied islands in the disputed mineral-rich Spratlys but areas that are clearly Philippine territory.

The JMSU was signed during Gloria Arroyo’s 2004 visit to China which paved the way for the signing of at least two graft-riddled deals: North Rail and national broadband network with ZTE agreements.

Last March, the Philippines filed a diplomatic protest when two Chinese patrol boats intruded into Reed Bank in Western Palawan where the Department of Energy, together with a private firm, was conducting a seismic survey. The AFP's Western Command sent a Navy team to drive away the Chinese ships in what Philippine officials assert as "Philippine territory."

It was followed by a much-delayed protest last April by the Philippines over China’s nine-dash line map submitted to the United Nations Commission on the Limits of the Continental Shelf. China’s map, submitted to the U.N on May 7, 2009 supports their claim that the whole South China belongs to them including the Spratly islands which are being claimed in part by the Philippines, Vietnam, Malaysia, Brunei and Taiwan.

This month, the Philippines again protested the discovery on Amy Douglas Bank, also known as Iroquois reef, that the Chinese have erected a number of steel posts and placed a buoy near the breaker. The Philippine Navy reported that Chinese ships were seen unloading building materials.

The Philippine Navy had removed the posts and the buoy.

After the Amy Douglas protest, the Philippines again filed another diplomatic protest over a February 2011 incident when two Philippine fishing vessels were fired upon by Chinese warships at Jackson Atoll. The fishermen sought the help of the Philippine Navy which accompanied them back to the area to retrieve their anchors.

The Navy reported seeing Chinese fishermen exploiting the marine resources in the area.

Philippine officials said all the areas that Chinese armed ships intruded lately were within the Philippines' 200 nautical miles Exclusive Economic Zone. The Chinese, on the other hand, asserted its ownership over areas covered by the South China Sea.

This prompted the Philippines to adopt the term "West Philippine Sea" referring to the same area in the same manner that Vietnam refers to the same area as East Asia Sea. India, by the way, does not claim ownership of the Indian Ocean.

Foreign Secretary Albert del Rosario and Defense Secretary Voltaire Gazmin are alarmed by the latest pattern of intrusions.

They don’t want another Mischief Reef incident to happen. In 1995, the Philippines discovered military-type structures on Mischief Reef, 150 nautical miles west of Palawan and 620 nautical miles southeast of China.

Despite Philippine protest, China never left Mischief Reef and has even expanded its fortifications in the island complete with parabolic antennas and machine guns.

There’s another thing that concerns the Aquino government.

When Del Rosario met with the Chinese Embassy charge d’affaires last May 31 over the Amy Douglas intrusion, he conveyed the Philippine government’s concern over reports in Chinese state media about China's planned installation of its most advanced oil rig in the South China Sea next month.

Diplomatic sources said China’s planned oil exploration is related to the JMSU which was not continued after the first phase because of questions of legality, the case is still pending with the Philippine Supreme Court, because the project included areas that were not disputed. Under the Constitution, "exploration, development, and utilization of natural resources shall be under the full control and supervision of the State."

To go around the constitutional prohibition, the government changed the word "exploration" to "seismic survey."

The initial exploration/seismic survey was conducted to find out how much resources are there in the area. Based on the results, the Philippines, China, and Vietnam are supposed to jointly develop the resources. The Chinese provided the ships, Vietnam the scientists and the Philippines interpreted the data gathered.

With the information gathered from the survey, it was expected that development of the area would proceed. China’s recent moves are seen as moving to the next phase of the project. The Philippines government, on the other hand, is stopped by questions on the legality of the project.

Under the JMSU, Reed Bank, said to contain about 3.4 trillion cubic feet of natural gas and 440 million barrels of oil, is included. The Philippines now insists it is Philippine territory and not part of the disputed areas.

Oppositors to the JMSU had expressed concern that by entering into the project, the Philippines surrendered sovereignty over the resource-rich area and strengthened China’s claim over it.

There were allegations that the Arroyo government’s sell-out of Philippine sovereignty in the West Philippine Sea was connected to a number of multi-million dollar Chinese loans for projects that became riddled with graft and corruption.

That’s one of the crimes of Gloria Arroyo against the Filipino people.

It’s not too late for President Aquino to recall the appointment of Domingo Y. Lee as ambassador to the People’s Republic of China.

Lee’s Taiwan connection is so well-entrenched, it will complicate further the Philippine’s delicate relations with one of the world’s superpowers.

A reliable source in the Chinese community said he knows that Lee, in his 70’s “is a card-carrying member of the Koumintang.” He said he is not sure if he has resigned but what he understood of the party affiliation is that it’s a “lifetime commitment.”

Koumintang is the political party of the Republic of China. Online history accounts said it was founded by Song Jiaoren and Sun Yat-sen shortly after the Xinhai Revolution, also known as the Revolution of 1911 or the Chinese Revolution which ousted Emperor Puyi on February 12, 1912.

Led by Chiang Kai-shek, the Koumintang ruled much of China from 1928 until its retreat to Taiwan in 1949 after being defeated by the Communist Party of China (CPC) during the Chinese Civil War.

China requires a One-China policy in its relations with other countries: the recognition of the PROC, with its seat of government in Beijing, as the sole government of China. It considers Taiwan its province.

The Philippines adheres to the One-China policy but maintains a people-to-people relations with Taiwan, host to an estimated 80,000 Filipino workers.

Sources said documents submitted to the DFA showed that the affiliation of Lee’s family with the Koumintang Party goes back to his grandfather.

Lee was head of the Manila Economic and Cultural Office in Taipei, the de facto embassy of the Philippines in Taiwan during the administration of Cory Aquino.

In the book “Cory, an intimate portrait”, a compilation of memories of the late president by people close to her, Lee has a five- paragraph piece which stated his closeness with the Aquino family.

Lee wrote: “Ninoy and I were childhood friends in our hometown of Concepcion, Tarlac. His father was my godfather. We grew up and bonded a lot. Ours was a special friendship – a treasure of a lifetime. Indeed, he was more than a friend to me- we grew up like brothers. Naturally, his chosen partner for life was a matter of a special interest to me.”

Lee was a member of the business delegation that accompanied Aquino in his first trip to the United States September last year. His business description was “senior adviser, Philippine Savings Bank.”

He is listed as a stockholder of Tower Steel Corp. He is also known as owning an alcohol distillery in Tarlac.

China will not embarrass Aquino by rejecting Lee. Some China experts even think that China will use Lee as a showcase of their “United Front” policy towards Taiwan which they consider a province of China.

But as a Koumintang member, in the conflict between China and the Philippines, whose interest would Lee protect?

The appointment of Lee is another case of friendship winning over competence and professionalism. Foreign Secretary Albert del Rosario had recommended banker Edward Go. Some members of the Chinese community were batting for flour miller Alfonso Uy.

When Del Rosario sensed that the President was not so keen on either Go or Uy, he batted for a career officer. At this time when China is accelerating the intrusions of its warships to the Philippine-claimed islands in the Spratlys, Del Rosario has stressed to the President that it is important that the Philippine ambassador in Beijing is someone who is competent to navigate through the intricacies of international politics while upholding Philippine sovereignty and protecting the interest of the Filipino people.

Sources, however, said Eldon Cruz, husband of presidential sister Ballsy Cruz, is the main sponsor of Lee.

A source said Aquino’s appointment of Lee as ambassador must have something to do with election contributions. Although Lee is not among the election contributors in the list submitted by Aquino to the Commission on Elections, a source also said that Lee could have taken credit for the ample contributions from the Chinese community when in fact even without him, Chinese businessmen are ‘natural’ election campaign contributors.

By now, the Aquino relatives should have realized the folly of their intervention in foreign affairs appointments when they pushed for the retention of a family friend, the inept Alberto Romulo, as foreign secretary. Almost a year was wasted which should have been precious time to re-invigorate DFA and make it an effective arm in governance.

It took a crisis in the Middle East to compel Aquino to change the leadership in the foreign affairs department that is in the frontline in the promotion of the country’s interests in the world community.

Last week, someone called me up trying to confirm a report that the President was recalling the appointment of Lee from the Commission on Appointments, just like what he did with his earlier nominee to the same post, Francisco Benedicto, who caused a lot of embarrassment in Beijing with his actions at the height of the issue of the execution of Filipino drug mules in China.

(Benedicto was actually the appointee of Gloria Arroyo. Aquino re-appointed him to the position upon the recommendation of Romulo.)

For the country’s sake, I hope the rumor is true.

There are three changes that would be happening in May and June that should be a cause of concern for the Filipino people.

No, we are not talking about the presidency.

It’s not the replacement of Gloria Arroyo after June 30, 2010 that we are worried about. It’s more of she might be replacing herself.

The most discussed impending change is in the judiciary, when Chief Justice Reynato Puno retires on May 17.

Article VIII, Section 4(1) of the Constitution states that any vacancy in the Supreme Court shall be filled within 90 days of the occurrence.

Gloria Arroyo’s minions say that she can appoint Puno’s replacement because he term ends on June 30.

However, Article VII, Section 15 of the Constitution prohibits midnight appointments.

It states that after two months immediately before the next presidential election and up to the end of his/her term, a President or acting President shall not make appointments except temporary appointments to executive positions when continued vacancies will prejudice or endanger public safety.

May 17 is still within that restricted period.

But one cannot take comfort on the protection of the law knowing Arroyo’s penchant for violating the Constitution and the subservience of the majority of the members of the Supreme Court.

Another problematic impending vacuum is in the Senate.

There are calls for Senate President Juan Ponce Enrile to step down so that a senator whose term would be until 2013 could be elected senate president.

Enrile has resisted these calls.

Probably because they are being made by allies of Senator Villar, presidential candidate of the Nacionalista party, who are maneuvering to control the upper chamber to prevent the approval of the Committee of the Whole report on the C-5 road project censuring Villar for unethical conduct and ordering him to return P6.5 billion he gained from the project.

Villar’s allies want him cleared in that controversial project.

The Villar investigation is just a side issue.

What is more important is the vacuum that would be created in the presidency of the country if there would be a failure of elections and no new president is declared by June 30, 2010.

The Constitution provides that in case of a vacancy in the presidency, the vice president takes over.

If the VP is unable to assume the presidency, next in line is the senate president and then the speaker of the House of Representatives.

If the there is no one qualified, Congress shall pass a law to provide who shall serve as acting president until the president or vice president shall have been elected and qualified.

The term of Enrile, who is running for re-election, ends on June 30, just like 11 other senators.

The same thing with House Speaker Prospero Nograles.

Who will then be acting president on June 30, if national winners are not proclaimed?

Yesterday’s Inquirer carried a suggestion to elect as senate president either Sen. Loren Legarda, who is running for vice president under the Nacionalista Party or Sen. Chiz Escudero.

Both are members of the Senate up to 2013.

But then, even if Enrile agrees to step down and any one of those whose term ends in 2013 would succeed him, there will be questions on the legality of his or her ascension to the presidency under a Senate without a quorum because there would only be 12 members.

If the issue goes to an Arroyo-controlled Supreme Court, one can guess what the decision would be.

Another change that is causing a lot of concern is in the military.

Armed Forces Chief of Staff Victor Ibrado is retiring on March 10. He missed the election ban on appointment by one day. That means Arroyo can appoint his successor.

The name being mentioned as frontrunner to succeed Ibrado is Army Chief Delfin Bangit, former head of the Arroyo’s Presidential Security Group.

The involvement of the military in the 2004 election cheating has been traumatic for the people, more so for members of the Armed Forces.

Ibrado’s performance the past seven months has elicited trust and confidence that he would not allow the military to be used for partisan politics in the may elections under his watch.

More than that, many believe that Ibrado will not allow himself to be used for any unconstitutional attempt by Arroyo to continue staying in power beyond 2010.

There have been calls, all from the opposition, to extend Ibrado’s term.

Even Magdalo officers, who rebelled against Arroyo in 2003, said extending the term of Ibrado beyond March is better than appointing “a very unpopular candidate.”

Magdalo spokesperson, Lt. Ashley Acedillo, said “Ibrado has shown himself to be professional and non-partisan.”

Bukidnon Rep. Teofisto Guingona III, who is running for senator under the Liberal party ticket, said extending the term of Ibrado will give the next president a free hand to appoint a new AFP chief and “would create stability within the AFP especially during the critical period leading to the elections. A stable AFP is absolutely crucial to ensure free, safe and honest elections.”

That is if Arroyo wants an honest and credible elections.

A contentious resolution in any one of these three areas of concern would increase political tension and put at risk the political stability of the country.

If it’s all the three areas, the country would be in big, big trouble because that would mean Gloria Arroyo forever.

Christmas is family affair and for Christians, whatever the nationality, we take that to heart.

But on two Christmases in the past, I found myself away from the Philippines, both in colder environments.

My first Christmas outside of the Philippines was in Hanoi, in 1984. In 1991, it was in Versailles, France.

At the end of the conference, I attended with three other Filipinos in Ho Chi Minh (formerly Saigon) in December 1984, we were asked if we wanted to go to Hanoi.

My other companions, from the academe and labor unions, declined the invitation, as they didn't want to spend Christmas away from home. It's seldom that one gets an invitation to communist Hanoi so I readily said "yes."

It was only nine years after the end of the Vietnam war. Vietnam was heavily under the influence of the Union of Soviet Socialist Republics, which as the name conveyed, it had not yet disintegrated. Mikhail Gorbachev and his perestroika which inspired Vietnam's Doi Moi (renovation) were not in anybody's imagination yet.

Early the next day, I was put in a military plane which was carrying a high-ranking military official to Hanoi.

The moment I landed in Hanoi, I felt the huge difference between South and North Vietnam: the weather.

Ho Chi Minh City, the capital of South Vietnam, is a tropical city just like Manila. The temperature hovers around 70 to 85 degrees Fahrenheit. Hanoi is cold, just like a European village. Temperature in Hanoi in December is down to 50 to 60 degrees Fahrenheit.

Since the Hanoi trip was not planned, I was not dressed for it.

At the airport, I already developed allergies. The guide assigned to me noticed it so the moment we got to the hotel, she requested for warm clothes and overcoat for me. That was communist efficiency at work.

I stayed at Thang Loi hotel, built by the Cubans. It was a lovely, sprawling hotel, a huge part of it built on stilts over Ho Tay (West Lake).

Through the gaps of the wood floor slabs, I could see fish on the lake underneath. From my room, I had to cross a wooden bridge to the dining room where the foreigners I saw were Russians and Cubans.

Thang Loi was a charming hotel. The signs were in French and Vietnamese. The curtains had flower designs and the bedding had lace ruffles.

While my colleagues in Manila were busy with their last minute Christmas shopping, I was peering at the waxed remains of Ho Chi Minh, the inspiration and founder of Vietnam's liberation movement, and looking at the craters caused by American bombs.

Christmas eve was so serene with only the swishing sound of the water underneath. Then came from somewhere the soft, angelic sound of "Silent Night, Holy Night". It was beautiful.

Upon my request, my host arranged my visit with the Philippine embassy. The ambassador then was a kindly, retired military officer Juan Cruz. (The Philippine government then a misguided war-mentality when it came to Vietnam so for many years it was sending retired military officers as ambassadors.) The number two guy in the embassy was a very competent career officer Ernesto Castro. (Ernie died a few years ago in a freak accident. He was electrocuted while taking a shower in his home in Ilocos.)

At that time, Hanoi was not a favorite destination of Filipinos so Ambassador Cruz and the very small Filipino community were glad to have me as visitor for their Christmas feast. I remember we had lechon and arroz valenciana.

When I went back to Hanoi in 1990 to cover the visit of then Foreign Secretary Raul Manglapus, I made it a point to drop by Thang Loi.

They had the same menu in French and Vietnamese but it had lost a lot of its charm. It looked rundown.

I made two more visits to Vietnam, which had overtaken the Philippines in economic growth, after that but never again in Christmas.

Christmas in Versailles was part of my holiday in France in 1991. Needless to say, I was freezing.

With my friend, who hosted me for the visit, we toured the magnificent Château de Versailles, located some 20 kilometers southwest of Paris.

The seat of power of ancient France in the 17th century, half a day is not enough to absorb the grandeur of Versailles. The Hall of Mirrors was truly splendid.

We had dinner in the place of the French-Peruvian friend of my friend. We attended midnight mass in a quaint church in Versailles.

I forgot the name of the old church but it's not the grand chapel in the Chateau. I think it was a chapel of the community that served the Chateau's royal residents.

This year, I am away from the Philippines but it will be with a family Christmas with my brother's family in Southern California. It's again going to be a very cold Christmas.

But there's enough love in our hearts to keep it warm and memorable. Merry Christmas!

As of Dec. 10, Isabela Governor Grace Padaca, now with the Liberal Party, her lawyers and supporters were going through the 12,000 (twelve thousand!) page decision of Comelec's second division headed by Commissioner Nicodemo Ferrer, nullifying her victory over Benjamin Dy of the Nationalist People's Coalition.

Padaca said they have five days since last Dec. 8 to file a motion for reconsideration. That would be on Monday, Dec. 14.

Padaca said she feels that the preposterous length of the decision was probably a strategy to prevent her from filing a motion for reconsideration so that they can execute the order for Dy to take over the reins of the Isabela provincial government.

The shocking reversal of the results of the 2007 gubernatorial election in Isabela makes us recall the previous case of thwarting the will of the people in the national which was in the 2004 elections.

Remember in July 2005, immediately after the “Hello Garci” tapes were made public, there was talk that Faustino “Jun” Dy, Jr, brother of Benjamin, who was defeated by Padaca, was going to spill the beans on Arroyo's manipulation of the 2004 elections.

The Dys were defeated in what was considered a political upset since they belonged to a well-entrenched dynasty.

At that time, Jun Dy was in Los Angeles because there were reportedly threats to his life.

Our sources then said the threats were coming from people who had no permanent address.

A source, who had met with Dy in L.A., also said that the former governor was sulking for having been abandoned by Malacañang.

The source told me that Jun Dy had told former senator Tito Sotto, who was his golfing partner in LA, of what transpired in Arroyo's meeting with Comelec regional directors in her La Vista home.

In the 2004 elections, the NPC made a policy that members could make their own individual decisions on whom to support in the presidential race. Although Dy had pledged support for Arroyo, a source said Arroyo was not sure of his loyalty.

FPJ won in Isabela.

"At least Dy, didn't do some hard-selling of GMA. Probably because he was also protecting himself. He didn't want to turn off voters," a source said.

GMA's distrust of Dy made her keep him close to her throughout the campaign. "That is called 'protective surveillance,'" a retired military official said.

That was how Dy became a witness to a number of meetings of Arroyo with different groups in connection with the 2004 elections.

One of those meetings was with Comelec regional directors and provincial election supervisors at the Arroyos' La Vista home.

[Former Office of the President staffer] Michael Angelo Zuce said that in that meeting, Lilia Pineda, wife of alleged jueteng lord Rodolfo "Bong" Pineda gave envelopes containing P30,000 each to the Comelec officials.

I wrote about the “Roof of Dy's” discontent on August 11, 2005.

Here's part of that column:

“A source who had talked with Dy said there were two cases in the last election where the former governor felt betrayed by Arroyo: his defeat to radio announcer Grace Padaca and the startling loss of Angelo Roncal Montilla, gubernatorial candidate of the Nationalist People's Coalition in Sultan Kudarat.

“Dy, whose family has controlled Isabela politics for decades, believes that GMA's husband, Mike Arroyo, operated against him with the help of Isabela Rep. Edwin Uy (Lakas-2nd district). Padaca was the gubernatorial candidate of Raul Roco's Aksyon Demokratiko.

“As NPC chairman, Dy took up the cudgels for Montilla who found himself in the losing end after posting what was seemingly a formidable lead of more than 28,000 over Lakas candidate Pax Mangudadatu.

“Yvonne Chua of the Philippine Center for Investigative Journalism, in her article on Lintang Bedol, provincial election supervisor for Sultan Kudarat in the last election, said "There was problem (too) at the canvassing for the gubernatorial election. Opposition candidate Angelo Roncal Montilla was leading Pax Mangudadatu until the votes from the last three of the province's 12 towns came in.

Mangudadatu had gotten nearly all the votes cast in Palimbang, Lutayan and Lambayong Mariano Marcos towns.

Montilla at first filed a poll protest with the Bedol-led board of canvassers, but later elevated his case to the Comelec office in Manila (SPC No. 04-132) after the board dismissed it outright."

“In the 'Hello, Garci' tapes, there was a conversation between former Comelec Chairman Virgilio Garcillano and someone believed to be Dy. In their talk, Dy said not to bother about his own case and all that he was asking was to help Montilla. But there was something intriguing about Garcillano's replies.

“Excerpts of the Garcillano-Dy conversation (May 28, 2004, 12:58):

Dy: Hello, hi Commissioner, si Dy 'to. Ito ang kwan Gil…

Garcillano: Sultan Kudarat?

Dy: Oo, si…Montilla.. tulungan natin yan.

Garcillano: Pro-forma lang yan, kung ano ang posisyon. Kasi nag-usap din kami ni Ma'am diyan, tinawagan niya ako pero di yan.

Dy: Tinawagan ka ni Presidente tungkol dyan?

Garcillano: Hindi naman tungkol dyan pero kakausapin ko din siya tungkol dyan.

Dy: Sabihin mo, yan lang naman ang hihilingin ko naman eh, yan lang ang hihilingin ko sa 'yo, alam mo naman hindi ako humihiling sa 'yo.

Garcillano: Hindi. Naipit na nga ako dun sa kaso...

Dy: Yung tungkol dun sa 'kin pabayaan mo na yan. Ok lang ako.

“The above conversation shows that Montilla's case was so important as to be discussed by the Comelec commissioner with the President.

Garcillano said that he was being caught in the middle.

“A source said Montilla, confident that he won overwhelmingly over Mangudadatu, moved heaven and earth to prevent his opponent from stealing the election from him. Aside from Dy, he contacted his uncle in Negros Occidental who was one of the campaign leaders of Rep. Ignacio "Iggy" Arroyo, brother of Mike. Montilla's uncle advised him to forget about his protest. He was told that Malacañang was offering him a government position.

Montilla didn't bite the government job offer.

Instead he found a connection to Comelec Chairman Benjamin Abalos. His wife happens to be related to Abalos' wife. Through their wives, Abalos sent a message to Montilla: Don't pursue your protest.

At that time, Montilla and Dy were perplexed about Abalos' advice. They got their answers in the "Hello Garci" tapes. Montilla's protest, if pushed through, would have revealed the vote-padding done in favor of Arroyo. That's why Garcillano, even if he was sympathetic to Dy's request, had to clear the request with "Ma'am".

In the same PCIJ article, Chua said, "According to the congressional tally, President Arroyo beat Fernando Poe Jr. in Sultan Kudarat, 126,622 to 40,714.

Congressional records showed that opposition senators Aquilino Pimentel, Tessie Aquino-Oreta, and Sergio Osmeña III objected to the certificates of canvass (COCs) and demanded a return to the election returns (ERs) amid charges that massive "dagdag bawas" (vote padding and shaving) took place in the province.

"The minority said in a report that the President got an additional 53,158 votes in eight towns, while Poe's votes were reduced by 60,014. The "dagdag-bawas" in the towns involved a swing of 113,172 votes, it said. The eight towns: Palimbang, Kalamansig, Lambayong, Lebak, Bagumbayan, Esperanza, Sen. Ninoy Aquino and President Quirino."

“As shown in a conversation between Arroyo and Garcillano (May 26, 2004, 11:04) on the threat of Sen. Biazon to have ballot boxes in Tawi-Tawi opened, she didn't care if her partymates were adversely affected. What was important to her was, her padded votes wouldn't be reversed.”

As we see here, every crime and anomaly happening today leads back to the “Hello Garci”, Arroyo's original sin.

Let us beware. Let us not be lulled into another legal shortcut by Gloria Arroyo.

We should learn our lesson from what happened in January 2001 when we closed our eyes and even aided her in grabbing power from an elected, although incompetent, president.

Since then, she has made a mockery of the Constitution and perverted democratic institutions. And we allowed her.

She got away with subverting the will of the people in the 2004 elections. She got away with multi-billion scandals. Why then would she stop?

Last Friday, she issued Proclamation 1959, another proof of her contempt for the law and condescending attitude towards the Filipino people.

If she gets away with 1959, she would be encouraged to impose Martial Law in the whole country.

Proclamation 1959 declares a state of Martial Law and suspends the privilege of the writ of habeas corpus in the province of Maguindanao.

The Constitution provides only two grounds for the imposition of martial law: rebellion and invasion.

Rebellion is defined in the revised Penal Code as “rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof...”

Invasion is entrance of an armed force into a territory to conquer. Surely, there was no invasion by foreign forces.

Proclamation 1959 was made to supposedly restore order in Maguindanao caused by the massacre perpetrated allegedly by the Ampatuan clan, political allies of Arroyo.

In 2004, the Ampatuans helped Arroyo tamper with the results of the 2004 elections in her favor. In 2007, the Ampatuans also helped some of Arroyo's candidates become senator.

In the Nov. 23 massacre, 58 persons were killed identified as members of family and supporters of the Mangudadatu clan, political rivals of the Ampatuans but also allies of Arroyo.

Thirty-one of those killed were members of media. Others were innocent motorists who happened to be in the area when the abduction took place.

The charges filed against Mayor Andal Ampatuan, Jr., who was identified by witnesses as the one who directed the massacre, were several counts of murder. It was not rebellion or invasion.

As correctly pointed out by Rep. Didagen Dilanggalen (Maguindanao, 1st district), the Ampatuans are allies of the Arroyo government. They did not take up arms for the purpose of removing allegiance from the Arroyo government.

Proclamation 1959 provided an exception. It states that Martial Law is not operative in areas identified as territory of the Moro Islamic Liberation Front, which advocates secession.

The irony of the exception was not lost on a Muslim lawyer who quipped, “The Philippine Government declared martial law in Maguindanao to quell rebellion except in places where there are rebels.”

The Supreme Court took exception to “whereas” number five of Proclamation 1959 saying “that local judicial system and other government mechanisms in the province are not functioning.”

Lawyer Midas Marquez, Supreme Court deputy court administrator and spokesperson said that the cases filed in the Cotabato trial court in connection with the Maguindanao massacre continued to develop over the past days.

Search warrants issued out of the Kidapawan regional trial court also made the police raids on the Ampatuan houses possible. “This is far from a picture of a non-performing judicial system,” he said.

Justice Secretary Agnes Devanedara has come up with another tack: “brewing rebellion.”

What Constitution is Malacañang’s legal advisers using? The 1935 Constitution?

The 1935 Constitution, has included “imminent danger thereof” as basis for declaration of martial law in addition to invasion, insurrection and rebellion.

But “imminent danger” has been removed and dies not appear in the 1987 Constitution.

The Philippine National Police recently reported another seizure of high powered guns and arrest of 47 persons led by the patriarch of the Ampatuan clan, Maguindanao Governor Andal Ampatuan Sr.

The PNP press release said, “Those arrested and undergoing investigation for involvement in armed resistance against the government as indicated by the massing of forces in several towns, mobilization of local government employees for a stand-off with government forces and stockpiling of weapons.”

So, the case is now “armed resistance.” What happened to the murder charges?

One discerning lawyer/blogger, SaxnViolins, said,” Stroke of evil genius na naman. The government has a less than weak case for rebellion against the Ampatuans. Is this a setup for an acquittal?”

There were talks the past few days of an ace still being held by the Ampatuans against Arroyo: the original copies of the 2004 Election Returns and Certificates of Canvass which would prove Arroyo's biggest act of thievery.

With the sweep of Maguindanao by the military and police, chances are the election documents are out of the hands of the Ampatuans.

There was also an observation by those in touch with the Ampatuans of their reluctance to use the 2004 election cheating as leverage.

Gloria Arroyo, the evil genius, is shooting several birds with one stone.

Her allies, the Ampatuans, get away with murder and the evidence of her crime is destroyed.

Next: martial law in the whole Philippines.

Just pray that with the retirement of Associate Justice Minita Chico-Nazario on Friday, the voting on the motion for reconsideration that the Commission on Elections would be filing on the deplorable Nachura December 1 decision would change.

The vote on the Supreme Court decision penned by Associate Justice Eduardo Nachura declaring as unconstitutional the provisions in the election laws that consider appointed officials resigned once they filed their certificates of candidacy was 8-6.

Those who concurred with Nachura were Justices Nazario, Renato Corona, Presbitero Velasco, Teresita de Castro, Arturo Brion, Lucas Bersamin, and Mariano del Castillo.

Those who dissented were Chief Justice Reynato Puno, Justices Antonio Carpio, Conchita Carpio-Morales, Diosdado Peralta, Martin S. Villarama, Jr., and Roberto A. Abad.

With the retirement of Nazario, those who concurred with Nachura would be down to seven.

Pray for the enlightenment of at least one of those justices for the sake of democracy in this country.

As the CJ Puno said in his dissenting opinion, “The importance of the coming May 2010 national and local elections cannot be overstated. The country cannot afford an election which will be perceived as neither free nor fair. It is the bounden duty of this Court to protect the integrity of our electoral process from any suspicion of partisan bias. The people should see judges and justices wearing judicial and not political robes. A court that cannot elevate itself above politics cannot protect the rule of law.”

Anybody who still doubts the destruction that Gloria Arroyo has caused the judiciary should take a close look at the Nachura decision.

The decision, applicable to appointed officials, may not directly apply to Arroyo, who considers herself “elected” although the truth is she was never elected by the Filipino people to the position of president that she had held for nine years.

But I imagine that Arroyo and her advisers would hope that the Nachura decision would temper the people's outrage over her lack of delicadeza of staying while running for a congressional seat in the second district of Pampanga.

It will benefit her because her appointed officials who are running for election like cabinet secretary Silvestre Bello III.

Bello, a senatorial candidate, and others can campaign on time being paid for by taxpayers, using government facilities.

This is, by itself, already a misuse and abuse of power.

If they win, you can just imagine the kind of morality that they bring in to public service.

If they lose but administration presidential candidate Gilbert Teodoro wins, they yet remain in their positions.

The anomaly of this decision on the petition filed by election lawyer Romulo Makalintal (who is also the lawyer of Arroyo and her political spokesman) in behalf of Eleazar Quinto and Gerino Tolentino, both employees of the Department of Environment and Natural Resources, is best summed up by the warning of Associate Justice Carpio: “This is a disaster waiting to happen.”

In his dissenting opinion, Carpio said, “One can just imagine the anomaly, conflict and tension that will arise if the Provincial Director of the Philippine National Police, or the Philippine Army Commander whose troops are stationed within the province, will file a certificate of candidacy for governor of the province on 1 December 2009 for the 10 May 2010 elections. If the PNP Provincial Director or Army Commander is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel.”

Ferdinand Rafanan, head of the Comelec legal department said it is the Nachura decision that is unconstitutional.

He echoed the justices’ dissenting opinions citing constitutional provisions that “[n]o officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.” (Art IX, part B, Sec. 2 (a)) and “[n]o member of the military shall engage directly or indirectly in any partisan activity, except to vote.” (Art XVI, Sec 5 (3).

A lawyer/blogger, Saxnviolins, posted in my blog his strong reactions on the Nachura decision:
“Denial of equal protection daw. Goddamn nasaan ang logic niyo?

“The Constitution mandates equal treatment of people who are similarly situated. Elected officials have been chosen by the people for a specific term, while appointive officials have been chosen by an elective official. So elective officials have the trust of the people, while appointive ones enjoy the trust of the appointing authority. One (elective) holds office by direct mandate of the people, while another (appointive) holds office by the selection of a representative of the people. Clearly, they are not similarly situated.

“Since the appointing authority (president) flows from the sovereign power, that may be controlled by the sovereign. That was so controlled, when the people, through their representatives, limited the power of the appointing official. Between the power of the people (legislature) and the power of a servant of the people, the choice is quite clear.

“Now about equal protection; equal protection comes into play when rights are at stake. The right of one individual must be protected with the same degree as the right of another. But public office is a public trust, not a right. And the people have spoken (through their representatives) stating that they trust those they elected, but those appointed by the people’s representative do not enjoy the same trust.

“This issue is not only about Gloria Arroyo. This will affect future generations, in regard to the relationship of the legislature and the appointing power.

“There is a scene in Dead Poets Society (starring Robin Williams), where he asks his literature students to march, while he is talking, and do other weird stuff. His point was, if you march to the cadence of a drumbeat, pretty soon, you walk in lockstep with the others, and you cease to think for yourself. This happens all the time; whether you talk of Arroyo's justices, Nazi youth, or white supremacists.”

Last April, I attended a very informative lecture by Peruvian forensic anthropologist Jose Pablo Baraybar on investigating extrajudicial killings and forced disappearances.

Sponsored by the Center for International Law chaired by Harry Roque, the US Department of State and the American Bar Association, the seminar had prosecutors, members of the military, and the Philippine National Police assigned in Mindanao as participants.

Baraybar, who has been called on by the Commission on Human Rights to help in the investigation of the Nov. 23 Maguindanao massacre, comes with impressive credentials and solid accomplishment: he helped secure the conviction of former Peruvian President Alberto Fujimori for his role in two cases of massacres in the 1990s.

In a historic decision last April 9, Fujimori was sentenced to 25 years in prison for ordering the killing of 25 Peruvians. Fifteen of the victims were shot at a barbecue stand in the Barrios Altos area of Lima. Another 10 were abducted in 1992 from La Cantuta University and later killed.

The two massacres were carried out by a government death squad, known as Grupo Colina (Colina Group). In the Cantuta case, nine university students and one professor were abducted in a pre-dawn raid July 18, 1992 and shot in the head. Their remains were later found in an unmarked grave.

Baraybar’s group, the Peruvian Forensic Anthropology Team (EPAF) conducted forensic tests and DNA analysis on the remains in 2007 and also gave testimony to the First Anticorruption Criminal Court in Peru. Only four of the 10 victims could be positively identified, but that evidence was sufficient for the court to convict four members of the Colina death squad in April 2008.

More than 69,000 Peruvians lost their lives during the country's 20-year struggle between the two insurgent groups, Shining Path and the Tupac Amaru Revolutionary Army, and the government. About 15,000 people disappeared. The majority of the bodies have yet to be recovered and identified.

In that lecture, Baraybar underscored the importance of the proper way of recovering evidence. “If it’s badly done, it destroys evidence. You will not be able to reconstruct the event.”

He said “the way we recover things will assist us or define how we will interpret the evidence.”

He said material evidence recovered from the crime scene is not just “‘stuff.’ It is ‘fossilized’ human behavior.”

“The goal of a forensic investigation is to reconstruct and interpret behavior. When human behavior repeats itself and is patterned, it reflects specific activities. Activities are actions with goals; they are not random,” he further said.

This is important because in many crime incidents, including the Nov. 23 carnage, the public has been witness to the careless handling of evidence.

Romel Bagares, executive director of CenterLaw, which is a member of the Southeast Asia Media Defense Network, has reported from Maguindanao that, “Official autopsies on the recovered victims remains have been painstakingly slow and an acute lack of sophisticated forensic equipment and facilities, made worse by the haphazard handling by investigators of the crime scene, has made evidence preservation essential to a successful prosecution of the perpetrators doubly difficult.

“Officials of the National Union of Journalists of the Philippines who visited the crime scene were appalled to see police Scene of the Crime Operatives (SOCO), assisted by government troops, use a backhoe to dig up the remains of victims allegedly buried by their killers in a newly discovered grave in Barangay Salman, Ampatuan town. They arrived just in time to see the backhoe's claw unearth a woman's bloodied and broken body.

“Authorities pulled out from the same mass grave the remains of DZRH's Henry Araneta, and UNTV's Victor Nuñez and Mark Gilbert Mac-Mac Arriola, it was subsequently reported.”

“Families of the victims, frustrated by the disorganized response of government agencies to the tragedy…Five government doctors — three from the National Bureau of Investigation and two from the Philippine National Police Crime Laboratory Service — had been working round-the-clock to conduct autopsies on the recovered remains of the victims. As of noontime Wednesday, they had completed work on only 10 of the bodies brought in from the crime scene 45 km away in Ampatuan town.

“‘At the rate they're going,’said Elliver M. Cablitas, whose wife Maritess, a reporter connected with the General Santos-based News Focus newspaper, who died in the massacre, ‘the remains of my wife would have long been decomposed before the government doctors get the chance to do an autopsy.’”

The lack of refrigeration facilities to keep the remains from decomposing is also complicating the grim task of identifying the victims and preserving evidence, according to Benito Molino, a veteran forensics investigator engaged by CenterLaw to assist authorities in investigative work.

"We have to move faster," said Molino, who has spent many years in human rights work as a medical expert for the Medical Action Group and the Asian Federation Against Involuntary Disappearance (AFAD). The government has not fielded enough medico-legal officers to do the autopsies.

“Molino also said,’I pity the government doctors who had to do the gruesome task. They have so much work with so little.’ As it often happens in the Philippines, government investigative agencies do not have adequate facilities to preserve human remains recovered in crime investigations.”

Baraybar is accompanied by British Chris Cobb Smith of the London-based Chiron Resources, which specializes on “hostile environment support”

A former member of the Royal Artillery, Smith has advised and escorted journalists and camera crews covering hostilities in Macedonia, Albania, and Kosovo. He has also conducted investigations into a number of high-profile human rights and humanitarian law violations, primarily in the Israeli Occupied Territories and those controlled by the Palestinian Authority. Foremost among these were the deaths in 2000 of a BBC driver/fixer Abed Takkoush and in May 2003 of director and cameraman James Miller in Rafah, Gaza.

“His expertise is relevant in this case, “ said CHR chair Leila de Lima. Of the 57 killed in the Nov. 23 Maguindanao carnage, 32 were members of media.