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PHILIPPINE JURISPRUDENCE -
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Republic of the Philippines EN BANC G.R. No. 151445 April 11, 2002 ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, ---------------------------------------- SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
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EN BANC
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA
MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in his official capacity as
Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.
DISSENTING OPINION
KAPUNAN, J.:
On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World Trade Center Building in New York City and the Pentagon Building in Washington D.C., U.S.A., killing thousands of people.
Following the attacks, the United States declared a "global war" against terrorism and started to bomb and attack Afghanistan to topple the Taliban regime and capture Osama bin Laden, the suspected mastermind of the September 11, 2001 attacks. With the Northern Alliance mainly providing the ground forces, the Taliban regime fell in a few months, without Osama bin Laden having been captured. He is believed either to be still in Afghanistan or has crossed the border into Pakistan.
In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign against "global terrorism," an arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered into between the US and Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main objective of enhancing the operational capabilities of the countries in combating terrorism. The US government has identified the Abu Sayyaf Group (ASG) in the Philippines as a terrorist group forming part of a "terrorist underground" linked to the al-Qaeda network of Osama bin Laden.
Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total contingent force of 660 soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in the Air Force base in Mactan, Cebu.
The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are summarized as follows:
(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly the RP-US Visiting Forces Agreement;
(b) No permanent US bases and support facilities will be established;
(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the direction of the Chief of Staff of the AFP and in no instance will US Forces operate independently during field training exercises;
(d) It shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP forces, and the Chief of Staff of the AFP shall direct the Exercise Co-Directors to wind up the Exercise and other activities and the withdrawal of US forces within the six-month period;
(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative to Philippine efforts against the Abu Sayyaf Group and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will also be conducted in support of the Exercise;
(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan, with the US Team remaining at the Company Tactical Headquarters where they can observe and assess the performance of the troops; and
(g) US exercise participants shall not engage in combat, without prejudice to their right to self-defense.
Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of armed conflict on the ground that such is in gross violation of the Constitution. They argue that:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES" OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECTED THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON."
Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that the Constitution prohibits the presence of foreign military troops or facilities in the country, except under a treaty duly concurred in by the Senate and recognized as a treaty by the other state.
The petition is impressed with merit.
There is no treaty allowing
US troops to engage in combat.
The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. Section 25, Article XVIII of the Constitution provides:
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 the 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.
There is no treaty allowing foreign military troops to engage in combat with internal elements.
The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not authorize US military troops to engage the ASG in combat. The MDT contemplates only an "external armed attack." Article III of the treaty cannot be more explicit:
The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. [Emphasis supplied.]
Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their desire
to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area. [Emphasis supplied.]
There is no evidence that
the ASG is connected with
"global terrorism."
There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of constitutes an "external armed attack." The ASG has committed mostly crimes of kidnapping for ransom and murder - common crimes that are punishable under the penal code but which, by themselves, hardly constitute "terrorism."
Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's terrorist may be another man's freedom fighter. The divergent interests of States have caused contradicting definitions and conflicting perceptions of what constitutes "terrorist acts" that make it difficult for the United Nations to reach a decision on the definition of terrorism. Because of this "definitional predicament," the power of definition is easily exercised by a superpower which, by reason of its unchallenged hegemony, could draw lists of what it considers terrorist organizations or states sponsoring terrorism based on criteria determined by the hegemon's own strategic interests.1
In any case, ties between the ASG and so-called international "terrorist" organizations have not been established.2 Even assuming that such ties do exist, it does not necessarily make the "attacks" by the ASG "external" as to fall within the ambit of the MDT.
Balikatan exercises are
not covered by VFA as
US troops are not
allowed to engage in combat.
Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA was concluded after the removal of the US military bases, troops and facilities in the aftermath of the termination of the treaty allowing the presence of American military bases in the Philippines. The VF A is nothing more than what its formal name suggests: an "Agreement between the Government of the Republic of the Philippines and the Government of the United States of America regarding the Treatment of United States Armed Forces Visiting the Philippines. "The last paragraph of the V FA preamble also "recogniz[es] the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines."
The VFA was entered into to enable American troops to enter the country again after the removal of the American military bases so they can participate in military exercises under the auspices of the Mutual Defense Treaty. It provided the legal framework under which American soldiers will be treated while they remain in the country.
The military exercises contemplated in the VFA are those in accordance with the National Defense Plan (NDP) of the Philippines. The NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the Chief of Staff of the Armed Forces of the Philippines and the Commander in the Pacific of the United States Armed Forces.
The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders. This was what the Senate understood when it ratified the VFA in Senate Resolution No. 18, which reads:
The VFA shall serve as the legal mechanism to promote defense cooperation between the two countries, enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling the Philippines to bolster the stability of the Pacific Area in a shared effort with its neighbor states.
The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US troops in Basilan. In the treaty's preamble, the parties "reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951." As the preamble comprises part of a treaty's context for the purpose of interpretation, the VFA must be read in light of the provisions of the MDT. As stated earlier, the MDT contemplates only an external armed attack; consequently, the "activities" referred to in the V FA cannot thus be interpreted to include armed confrontation with or suppression of the ASG members who appear to be mere local bandits, mainly engaged in kidnapping for ransom and murder -even arson, extortion and illegal possession of firearms, all of which are common offenses under our criminal laws. These activities involve purely police matters and domestic law and order problems; they are hardly "external" attacks within the contemplation of the MDT and the V FA. To construe the vagueness of the term "activities" in the V FA as authorizing American troops to confront the ASG in armed conflict would, therefore, contravene both spirit and letter of the MDT.
Respondents maintain that the American troops are not here to fight the ASG but merely to engage in "training exercises." To allay fears that the American troops are here to engage the ASG in combat, the TOR professes that the present exercise "is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan." The TOR further provides that the "exercise" shall involve the conduct of "mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism."
These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops in the heart of the ASG's stronghold. Such presence is an act of provocation that makes an armed confrontation between US soldiers and ASG members inevitable.
The US troops in Basilan have been described as being "on a slippery slope between training and fighting." Their very presence makes them a target for terrorist and for the local Moslem populace, which has been bitterly anti-American since colonial times. Though they are called advisers, the Americans win be going on risky missions deep into the jungle. A former Green Beret who is an analyst of Washington's Center for Strategies and Budgetary Assessments notes that "when troops go out on patrol, they come as close as they can to direct combat."4
"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino counterparts) on board combat helicopters which land on the battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For example, on April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle on Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time in recent weeks that chopper-borne US forces had evacuated Filipino soldiers fighting the ASG.5
Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1 Exercises are aimed at seeking out the ASG and exterminating it.
The prohibition contained in the TOR against US exercise participants from engaging in combat but "without prejudice to their right to self- defense" provides little consolation. Combat muddles the distinction between aggression and self-defense. US troops can always say they did not fire first and no one would dare say otherwise. The ASG has been so demonized that no one cares how it is exorcised. Significantly, the TOR does not define the parameters of "self-defense." Militarily, a pre-emptive strike could be interpreted as an act of self -defense.
What I fear most is that the country would be dragged into a more devastating and protracted conflict as a result of the continued presence of US military troops in Basilan. A single ASG sniper's bullet felling an American soldier could be used as an excuse for massive retaliation by US ground and air forces to attack and bomb out every suspected ASG lair, all in the name of "self -defense.
Apprehensions over possible catastrophic consequence of US military involvement in our country are not without historical basis.
The US experience in Vietnam, for example, began as an expression of support for the establishment of South Vietnam under Bao Dai's leadership in 1949 to. counteract the support given by communist China and the Soviet Union to North Vietnam. In 1950, the US began providing military assistance in fighting North Vietnam by sending military advisors as well as US tanks, planes, artillery and other supplies. The US became more involved in the Vietnam conflict when in 1961, it sent the first 400 Green Beret "Special Advisors" to South Vietnam to train the latter's soldiers in methods of counter-insurgency against the Viet Cong guerillas. It clarified that the American soldiers were not in Vietnam to engage in combat.6
However, due to the increased success of the Viet Cong guerillas, assisted by the Northern Vietnamese Army, the US eventually began to run covert operations using South Vietnamese commandos in speed boats to harass radar sites along the coastline of North Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and USS. C. Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting bombing raids in North Vietnam.7
The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others. Twelve million Vietnamese became refugees and thousands of children became orphaned.8 Millions of acres of Vietnam's forests were defoliated by a herbicide called Agent Orange, dropped from the air. Millions of mines and unexploded bombs and artillery shells are still scattered in the countryside, posing constant danger to life and limb.
US militarv presence is
essentially indefinite
and open-ended.
Already, there are indications that the US intends to reestablish a more enduring presence in the country. Defense Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in the RP-US Balikatan 02-2 starting next month in Central Luzon and that 10 more military exercises will be held this year.9 How many more war exercises are needed for "training and advising" Filipino soldiers? What conditions must be satisfied for the United States to consider the "war against terrorism" in Mindanao terminated? The endless frequency and successive repetition of the war exercises covering the two largest islands of the country amount, in a real sense, to the permanent presence of foreign military troops here sans a treaty in blatant violation of the constitutional proscription.
US President George w. Bush in his January 30, 2002 speech declared:
The men and women of our armed-forces have delivered a message to every enemy of the United States. You shall not escape the justice of this nation. x x x.
Should any country be timid in the face of terror, if they do not act, America will.
President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her "full support" to US President George W. Bush in the fight against international terrorism. She declared that "the Philippines will continue to be a partner of the United States in the war to end terrorism" and that "(t)he anti-terrorism partnership will continue after the whole world is secure against the terrorist."10
In his speech on the White House Laws on March 11, 2002, President Bush exhorted:
America encourages and expects governments everywhere to help remove the terrorist parasites that threaten their own countries and the peace of the world. x x x. We are helping right now in the Philippines, where terrorist with links to Al Qaeda are trying to seize the southern part of the country to establish a military regime.
They are oppressing local peoples, and have kidnapped both American and Filipino citizens."11
The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:
The United States wants to bring in more troops for the controversial Balikatan 02-1 training exercise aimed at wiping out the Abu Sayyaf bandits in Basilan.
The US military last week began calling the war-games "Operation Enduring Freedom-Philippines," giving credence to claims that the country has become, after Afghanistan, the second front of the US-led global war on terrorism.
Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush administration official as saying:
We are looking at prolonged training. x x x. It takes more to build up capabilities than saying here are some night vision goggles.
The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the terrorists would ineluctably suggest a long-drawn conflict without a foreseeable end. Worse, it is not unlikely that this war could expand and escalate to include as protagonists the Moro Islamic Liberation Front and the Moro National Liberation Front and -not improbably -the National People's Army, all lumped-up as "terrorists" in a unilateral characterization.
No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion increase to the US defense budget for 2003 is intended to sustain the war on terrorism,12 including that fought in this country, thus: .
Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big budget increase next year on terrorism, which has expanded from Afghanistan to the Philippines and now appears to be moving to Georgia.13
The Court can take judicial notice of the foregoing pronouncements as they are of public knowledge,14 having been widely circulated in all channels of the media. Neither have they been denied.
US military intervention
is not the solution to the
Mindanao problem.
Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to achieve peace. The annihilation of the rebel bandits would be a futile quest so long at the root causes of their criminality are not addressed. A study15 by the United Nations Secretariat, however, acknowledges that international terrorism springs from "misery, frustration, grievance and 'despair," elements which, many believe, are present in Basilan. Two veteran Philippine journalists have described the province as Mindanao's "war laboratory," where lawlessness, government neglect, religious strife, poverty, and power struggle are rampant.16
If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies of "misery, frustration, grievance and despair," then it cannot be remedied alone by ASG's physical extermination, which appears to be the object of President Bush and President Macapagal- Arroyo's joint campaign against global terrorism." Admittedly, the State has the right to use force as a means of self-preservation. But perhaps we should all consider that a military solution is but a first-aid measure, not the prescription to these diseases. It has been opined that:
The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-Washington ties but from a serious study of how terrorism figures in the minds of leaders and armed men belonging to the large but deeply factionalized guerrilla movements in the country. Terrorism can never be dissociated from guerrilla warfare and the separatist movement in Mindanao. From these movements would arise religious extremists or millennarian groups. With the right resources and the right agenda, these movements will continue to attract men-skilled, intelligent, and experienced-who will come to grasp the practical realities of waging a war with the minimum of resources but maximum public impact.
The government does not have to look for foreign connections-and be motivated by the desire to help foreign friends to address a problem that has been and will be the making of its own home grown armies.17
The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical perspective cannot be justified, On the contrary, it is counterproductive. It serves to fuel an already volatile situation. US troops are likely less able, if not less willing, to distinguish between the innocent and the enemy. The inevitable "collateral damage," the killing of women and children, Muslims and Christians, the destruction of homes, schools and hospitals would fan the flames of fanaticism and transform mere rogues into martyrs.
The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in Bataan and Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the struggle for independence against Spain and the United States at the turn of the last century. The local army and police have successfully battled in the past against Communist and other insurgents which were more organized and numerous, operating in larger parts of the country and fighting for their political beliefs. If our troops need training by us advisers or have to conduct joint exercises with US troops to improve their fighting capability, these could be more effectively achieved if done outside Basilan or away from the danger zones. Instead of bringing troops to the combat zones, the US can do more by supplying our soldiers with modern and high tech weaponry.
Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing or that the issues raised by them are premature and not based on sufficient facts. The issues raised are of transcendental importance.18 The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in the affected areas. The presence of us troops in the combat zones "assisting" and "advising" our troops in combat against the ASG is a blatant violation of the Constitutional proscription against the stationing of foreign troops to fight a local insurgency and puts the country in peril of becoming a veritable killing field. If the time is not ripe to challenge the continuing affront against the Constitution and the safety of the people, when is the right time? When the countryside has been devastated and numerous lives lost?
I therefore vote to give due course to the petition.
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sgd. SANTIAGO M. KAPUNAN |
Footnotes
1 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International Progress Organization, speaking on "The United Nations, The International Rule of Law and Terrorism, " noted;
In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions -or threats of the use of force as the most recent by the United States against Iraq- consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can be summarized in the saying '"One country's terrorist is another country's freedom fighter." The apparent contradiction or lack of consistency in the use of the term "'terrorism" may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen.
What, then, is the defining creterion for terrorist acts -the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate "'terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned
The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) -which is a terrorist group for Israel and a liberation movement for Arabs and Muslims -the Kashmiri resistance groups -who are terrorists in the perception of India, liberation fighters in that of Pakistan -the earlier Contras in Nicaragua -freedom fighters for the United States, terrorists for the Socialist camp -or, most drastically, the Afhani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way -because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic r.eason for these striking inconsistencies lies in the divergent interests of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the defmition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these i. conflicting interests of sovereign states that determine in each and every ! instance how a particular armed movement (i.e. a non-state actor) is r labeled in regard to the terrorist-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence.
This "defmitional predicament" of an organization consisting of ~ sovereign states -and not of peoples, in spite of the emphasis in the I! Preamble to the United Nations Charter! -has become even more serious ~ in the present global power constellation: ~ superpower exercises the :1 decisive role in the Security Council, former great powers of the Cold ill i War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 in the United States. "
Koechler adds, however, that this failure to distinguish between terrorist acts and acts of national liberation did not prevent the international community from arriving at an implicit or 11, "operative" definition. For example, in Article of the International Convention for Suppression of Terrorist Bombings, terrorist acts are referred to as "criminal acts ..., in particular where they are intended or calculated to provoke a state of terror in the general i ~ public or in a group of persons or particular persons" that are under no circumstances justifiable considerations of a political, philosophical, ideological, racial, ethnic, religious or ti ~ other similar nature."
2 The following excerpts from "Under the Crescent Moon: Rebellion in Mindanao" by Marites Dafiguilan Vitug and Glenda M. Gloria (Ateneo Center for Social Policy and Public Affairs and Institute for Popular Democracy, 2000) demonstrate the obscurity of the ASG's raison d. etre:
...for all the warring [the Abu Sayyaf] it has done supposedly in the name of Islam, there is much confusion and mistrust surrounding the Abu Sayyaf, whose leaders had flaunted their ties with the police and the military. Even veterans of the Mindanao war find it hard to identify the Abu Sayyaf's political direction-where it really wants to go, or what it wants to achieve as an organization. (At pp. 204205.)
The military had long been divided on how to view the Abu Sayyaf. The dominant view held the group as a genuine extremist organization driven by an extreme view of Islam. But there are military strategists who have downplayed the ideological component of Janjalani's cause, arguing that he merely wanted to steal the thunder from the MNLF and the MILF - and in the process also hijack their financial connections to the Arab World. (At p. 206.)
….[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu Sayyaf was truly espousing fundamentalism. "Initially I thought this was a religious conflict because of the so-called resurgence of Islam. For awhile the Church even attributed the spate of kidnappings in Basilan to Islamic fundamentalism. "Later on we realized this was not the case. Islam was being used as a mere cover of these people.
Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years, shares this view. The Abu Sayyaf was being used to destroy the image of Islam. He cited the fact that Janjalani's mother was a Christian. Was he out, therefore, the destroy Islam? "I am not saying that... It's just that he's not pure Muslim."
Thus, how and why exactly the Abu Sayyaf was founded is a question for which neither the military nor Janjalani had a solid answer. The group remains as nebulous as its beginning, and as shadowy as its charismatic founder. There is absolutely no doubt that it has been infiltrated by the military. What is uncertain is whether or not Janjalani, who was admired by many in the Muslim community, formed the Abu Sayyafprecisely to work for the military or if he had simply lost control over his own men. (At pp. 210-211.)
3 Article III (1) on Entry and Departure, for example, imposes upon the Philippine Government the duty to "facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement." Article VI (1) also mentions "claims... from activities to which this agreement applies." The same reference to "activities to which this agreement applies" is found in Article VII on Importation and Exportation. Article I, in defining "United States personnel" as "United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government," does not limit the scope of the "activities" that the Philippine Government may "approve."
4 McGeary, Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22.
5Philippine Daily Inquirer, April 6, 2002.
6 See www.historyplace.com, Also Ambrose, Stephen, Rise to Globalism: American Foreign Policy since 1938 (Fifth Rev, Ed.),
7 Id.
8 Microsoft Encyclopedia Encarta (2000).
9 Philippine Daily Inquirer, March 21,2002.
10 Manila Bulletin, February 2, 2002.
II Philippine Star, March 13,2002.
12 "Democratic Senate Majority Leader Tom Daschle criticized the US administration's war terrorism yesterday, charging that it has undergone an expansion without at least a clear direction."
"How long can we stand this kind of pressure on our treasury?.. We seem to be good at developing enhance strategies, not so good at developing exit strategies, he charged." (The Philippine Star, March 2, 2002).
13 The Philippine Star, March 2, 2002.
14 Sec. 1, Rule 129, RULES OF COURT.
15 Entitled "Measures to Prevent International Terrorism which Endangers or Takes Innocent Human Lives or Jeopardizes Fundamental Freedoms and Study of the Underlying Causes of Those Forms of Terrorism and Acts of Violence which Lie in Misery, Frustration, Grievance and Despair and which Cause Some People to Sacrifice Human Lives, including Their Own, in an Attempt to Effect Radical Changes." 2 November 1972, 27th Session. The pertinent portions of the study state:
13. Man is one of the few species that frequently uses violence against its own kind. He has done so since the dawn of history. In the past, periods in which violence has been especially conspicuous have been those of rapid social change. During the years of the existence of the United Nations, when in most parts of the world, and in both the
developed and the developing countries, the patters of society are changing with almost unprecedented speed, violence has been frequent.
14. The interlinked growth of technology and growth of population have tended to create new hopes, expectations and needs in many social groups. These new attitudes mark a departure from the resignation and passivity with which most men in the past accepted the ills of life. The United Nations Charter is the voice of the aspirations of mankind when it contemplates the establishment of a world in which aggression and the threat or use of force in international relations would be effectively outlawed, friendly relations would exist among nations on the basis of respect for the principles of equal rights and self- determination of peoples, international disputes would be settled justly be peaceful, and international co-operation would solve international economic and social problems and promote respect for human rights and fundamental freedoms for all.
15. The period of the existence of the United Nations, however, has shown very incomplete and uneven progress towards these goals. While major wars involving the great Power have not occurred, force has often been resorted to, and has inflicted suffering and exile upon peoples. While progress has been made against colonialism and racism, those evils have not yet been completely eliminated. Even where political independence has been established, in many cases much remains to be done in assisting the populations to attain the minimum level necessary for decent conditions of life. Few advances have been made towards the peaceful settlement of some major international disputes, which are too often left to fester and poison international relations. Among groups where economic and social progress has been relatively slow, conditions have been unfavourable to the exercise of and the respect for human rights and fundamental freedom.
16. The lack of slowness of advance towards these goals has contributed toward the "misery, frustration, grievance and despair" which, while not themselves causes of terrorism, are psychological conditions or states of being which sometimes lead, directly or indirectly, to the commission of acts of violence. While in the United Nations context it is perhaps appropriate to give special attention to the international factor that contribute to violence, there are also many situations in individual nations which may give rise to the grievance of a particular group or person, leading to acts having international repercussions. Purely personal circumstances can also often have the same result. There are also cases in which there is no genuine grievance at all, and a violent crime affecting more than one country seems to have been committed from mere cupidity, or a desire to escape criminal prosecution. The General Assembly, however, in stressing "misery, frustration, grievance and despair, seems to have singled out for special attention those situations which have the common characteristic of calling for redress.
17. Why is it that violence resulting from these circumstances takes with increasing frequency the form of international terrorism, threatening, endangering or killing innocent victims? As the peoples of the world grow more interdependent the solution of many problems no longer hangs on any local ruler or government, but on actions and decisions taken thousands of miles away. Men think their ills have been produced by some vast impersonal force, which is deaf to their pleas for justice or impotent to find solutions, rather than by other men, striving for similar although opposed ends and bound to them by the claims of a common humanity. Modem communications and the growth of the public information media have transformed local incidents into world events, especially when the incidents have an international character. A terrorist act focuses world attention upon the terrorist and upon any cause he may claim to represent. In these circumstances, some such acts - which, as has already been said, cannot possibly by themselves effect radical social changes -are really acts of communication. They are intended to show the world that the determination and devotion of the terrorists are sufficient to compensate in the long run for their apparent inferiority in strength; that their cause is more holy to them than life itself, must be taken seriously, and is worthy of support; and that neither their foe nor the world at-Iarge is able to prevent their success in their purpose, or ensure punishment of their deeds and those of their associates.
18. Other such acts, however, seem to be more the result of blind fanaticism, or of the adoption of an extremist ideology which subordinates morality and all other human values to a single aim. In either case, the result is the same; modern life and modern weapons bring more and more strangers and foreigners within the reach of the terrorist, and he uses them as instruments for his purpose. As violence breeds violence, so terrorism begets counter-terrorism, which in turn leads to more terrorism in an ever-increasing spiral,
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20. It thus appears that the "misery, frustration, grievance and despair" which lead to terrorism have many roots in international and national political, economic and social situations affecting the terrorist, as well as in his personal circumstances. The precise chain of causation of particular acts cannot be traced with scientific exactitude. Nevertheless, the General Assembly may wish to identify types of situations which, if a remedy could be found to bring them more into accord with justice, will cease to contribute to the spreading terrorism which has shocked the world.
16 Dańguilan Vitug and Gloria (Under the Crescent Moon: Rebellion in Mindanao, supra.) write:
Indeed, a man is inspired by his belief but is constrained by his environment. And Basilan, where Janjalani grew up, is a place where the laws set by men are flouted daily. It is a place where people of weak resolve could give in to the challenges posed by power, either the lack or possession of it. It certainly is not a place conducive for reflection or reinforcing pure religious thoughts.
Mindanao's best war laboratory, Basilan is one of the Country's poorest provinces where all sorts of armed groups dominate a populace long neglected by government. Local rulers compete for legitimacy with armed rebel groups, bandits, Muslim preachers, Catholic volunteers, loggers legal and illegal, the Marines, the Army. In this sense, the Abu Sayyaf was ripe for growth. Modern history has proven that whenever the legitimacy of the state suffers and the economy goes down, other forces come to fore as alternative. Janjalani had offered solace to those who bothered to listen to him. The reality of Basilan, after all, is its deadly environment: grinding poverty, the absence of the rule of law, and the proliferation of arms and of men who thrive on them. It is no coincidence that a group with such amorphous beginnings as the Abu Sayyaf was established in a province that remains poor despite its fertile, lushly forested land and its proximity to Zamboanga City. It didn't matter that Janjalani went to the Catholic-run Clarest school. Janjalani, or any local leader for that matter, would have found it difficult to detach himself from this environment.
Former MNLF members in Basilan who have known little more than how to was kidnapping, and it gave Abu Sayaff away. No group espousing a true Islamic state would have resorted to kidnapping in such a random, blatant style as the Abu Sayyaf did in its heyday.
It also didn't help that the governrnent and the media unfairly lumped Islamic fundamentalism and terrorism together because the Abu Sayyaf, which espouses the former, has been suing the latter as a means to fight for its cause. (At 206-207.)
17 DANGUILAN VITUG AND GLORIA, at 244-245.
18 Bayan vs. Zamora, 342 SCRA 449 (2002).