Indigenous peoples: Discrimination within and without

was my Trade Tripper column in this weekend issue of BusinessWorld:

Last Saturday (which providentially was also World Indigenous People’s Day), an interesting round table discussion was held at the University of Asia and the Pacific on indigenous people’s rights. It was led by Ambassador Jose Romero, and done under the auspices of the Center for Research and Communication and UA&P’s School of Law and Governance. I was a speaker in that event and here are some of my notes on the matter, which focused on the need for a consistent legal framework in addressing the issues surrounding tribal people’s rights:

The first thing to be noted is the incompleteness of data regarding the population of indigenous peoples. While government numbers peg 14 million, a variety of figures abound, ranging all the way to 17 million. This is unfortunate. The gap in knowledge makes it difficult then to seriously provide services if the scale for its demand can’t even be determined.

In any event, the numbers, whatever they may be, gives us a bit of insight into the nature of indigenous peoples’ issues. At around 14-17% of the Philippine population, they constitute a far bigger group than the Muslims (around a mere 5%). Although the latter is indeed more concentrated in the South, nevertheless, again in scope of territory claimed (by way of ancestral domain or ancestral lands), indigenous peoples would account for around 20% of the total land area of the Philippines.

And land is where a lot of the issues arise. Here, the need for a consistent framework is palpable, with a seeming disconnect from the land rights of the indigenous peoples as previously understood.

While gratifyingly, indigenous people’s rights in the international sphere have moved conceptually from natural law to positivist and back once more to natural law understandings of human dignity (as can be seen in the 2007 UN Declaration on the Rights of Indigenous Peoples), nevertheless, there is again a Filipino misreading of how international law works.

For one, what works at the policy or conceptual level does not necessarily mean the same can be applied at the implementation level. And, yes, relativism to a certain extent is not necessarily a bad thing (witness international trade policy, for example). Furthermore, at the implementation level, we seemed to have moved from the natural law understanding to positivist but ignoring the differences that a Western or European understanding of indigenous people’s issues might bring to the Asian context.

Furthermore, we also seem to have fallen into the trap of considering any international law document as apt for legislation. In the same manner that we took the World Trade Organization agreements on anti-dumping or safeguards and transported them cut-and-paste style into Republic Acts, so the same impression can be had in relation to RA 8371 (or the Indigenous People’s Rights Acts)

Another problem area in terms of consistency is on the common ownership of lands. Ironically, while looking at Western models, we seem to have disregarded its appalling results. Indigenous peoples in the United States, Australia or Canada live in dire poverty and the same is said to be traceable to what economists call the “tragedy of the commons.” Put bluntly, nobody would bother improving land (or any property) and expend effort to utilize the same productively if it’s owned in common. In short: if everybody owns it then effectively nobody owns it.

Then there’s the consistency issue vis-à-vis the Muslims. Inasmuch as indigenous peoples have a far larger population, claim a bigger land area, have consistently proclaimed their being of the Philippines and that they are proudly Filipinos, and -- most importantly -- have been quite peaceful in their advocacy for better rights and contented themselves with resorting to our legal system, then the indigenous peoples have been given short shrift indeed.

Finally, there is the matter of discrimination against women. As Froilyn Mendoza wrote (in an article for Thomson Reuters, “End The Silence On Rape In Southern Philippines Indigenous Communities”): “Rape is considered an ordinary case that is confined to the expertise of the tribal leaders and settled amicably. Even worse, rape victims are sometimes forced to marry the perpetrator because in our culture, rape is a form of marriage. Cases of incest rape are common. With the prominence of alcoholism among indigenous peoples, physical and sexual abuse is increasing. These cases are settled amicably as part of our customary law, and are not known publicly. The tribal structure is the biggest stumbling block to indigenous women’s empowerment.”

Hence, while indeed balance must be achieved by giving respect to peoples’ cultural identities, nevertheless, political will must be applied in ensuring that our central, most fundamental, Filipino values are respected and followed.

Bangsamoro agreement: More problem than solution

was my Trade Tripper column in the weekend issue of BusinessWorld:

Longtime readers of this column know our objections to the Comprehensive Agreement on the Bangsamoro or CAB (stretching as far back to the ill-fated Memorandum of Agreement on Ancestral Domain of President Gloria Arroyo). As I kept pointing out, all four of international law’s elements for statehood have been granted to the Bangsamoro, now just needing a fateful declaration from it that it is indeed a new state.

That the Bangsamoro is geared toward statehood independent of the Philippines is palpable. One sees that in Article I.5 of the Framework Agreement on the Bangsamoro (which forms an integral part of the Comprehensive Agreement).

The Bangsamoro has been granted all the powers of a state: police powers, taxation, and eminent domain. It even has its own executive, legislative and judicial branches of government. At this point, for the Philippines to refuse “recognition” is inutile. The fact that it’s provided for under the agreements that the Bangsamoro and the Philippine government has an “asymmetric” relationship means nothing.

The argument that people should not worry as the planned Basic Law could fix the infirmities in the CAB is incorrect, for two reasons: one, the Basic Law cannot “fix” (amend) the express provisions of the CAB; and two, the Basic Law is only applicable to those who admit themselves Filipinos and subject to the Constitution.

Some argue that the remedy is for the CAB to be declared unconstitutional. I hope they’re right. But it can also be argued that a declaration of unconstitutionality is futile at this point.

The fact is, the government, by (consciously or inadvertently) agreeing to use specific international law terms in the CAB (such as the unwitting use of the words “self-determination,” which technically under international law means “secession”), and the participation of other states in the process (e.g., Malaysia) has arguably elevated the CAB to the level of an international instrument. And it is in the nature of international agreements that they are not to be thwarted by local laws (including the Constitution).

This is not to mention the fact that the CAB may not even bring the peace for which all these constitutional and legal infirmities were done.

The CAB works on the presumption that there is a “Bangsamoro,” which is actually disputed by some experts. And even if such exists, the CAB involved only the Moro International Liberation Front, which constitutes one group within the Muslim population. This is not even mentioning the large indigenous peoples’ population, whose numbers actually rival that of the Muslims.

How that one group is to legitimately claim political credibility over the others remain to be seen.

With all the troubles that this CAB is bringing (and is expected to bring), I got to wondering: whatever happened to the Brunei Darussalam-Indonesia-Malaysia-the Philippines East ASEAN Growth Area, otherwise known as the BIMP-EAGA?

The BIMP-EAGA was a project started during the presidency of Fidel Ramos and had for its objectives “increased intra- and extra-trade among EAGA focus areas; increased investments in the EAGA sub-region by 10%, and increased tourism arrivals in the EAGA sub-region.” One of its defining characteristics is a strong working relationship between the private and public sectors. And according to most accounts, it worked.

In its early days, the BIMP-EAGA made gains in the area of transportation (both for goods and people), telecommunications and tourism. The latter had the collateral effect of raising awareness in the region, thus giving strong potential for investment.

Admittedly, the 1997 Asian Financial Crisis seriously hampered BIMP-EAGA’s progress. But the BIMP-EAGA countries plowed on, gaining focus on transport linkages, agro-industry and tourism sectors, fisheries, energy, trade and investment.

It is expected that with the coming ASEAN integration, BIMP-EAGA can play a crucial role in its outcome, but not without adjustments coming from EAGA members themselves.

From the Philippine perspective, the problem is that succeeding administrations have paid mere lip service to this project. Surely, there were recent government nods to “regional and international cooperation,” as well as the Davao City-General Santos City-Tahuna-Bitung sea route. But the latter is more of a private sector initiative than anything else.

The fact is, we already have a constitutionally approved autonomous system in place in that area and that is the Autonomous Region for Muslim Mindanao (ARMM).

And most of ARMM’s problems are traceable to economic issues, more than anything else. Despite its wealth in resources, it remains an impoverished area, with a per capita gross regional domestic product of around 70% below that of the national average.

Ironically, ARMM depends on the national government for a huge bulk of its revenue needs. And yet that is what the BIMP-EAGA was designed to solve.

The BIMP-EAGA is certainly a more palatable, mature route than the CAB’s “peace” made up of conditions that fail to conform to the dictates of our Constitution. And most damningly, it is a “peace” that demands that the Philippines meekly submit to the accusation that it indeed inflicted “hurts” on Muslims.


The SONA of our discontent

was my Trade Tripper column in the past weekend issue of BusinessWorld:

Writing this almost five days after the State of the Nation Address (SONA) means that most other commentators have likely said what needs to be said. And yet, implications need to be seen more clearly from what was left unmentioned in the SONA.

Why do this? Not for complaining or pessimism’s sake. But precisely to address our nation’s concerns. For how do we resolve something when we don’t even want to recognize that it needs resolving?

So, as always, context is important. While poverty incidence is said to have improved at 24.9%, the accuracy of that number is suspect considering self-rated poverty went up to 55% in the last three months.

In any event, our poverty numbers (taken at face value) are still way below our ASEAN counterparts, matching only Laos and Myanmar, with even Cambodia having a lower incidence of poverty.

This within the context of almost three million Filipinos currently unemployed, nearly 80% of which are youths 15-34 years old. While unemployment figures recently improved somewhat, many of those considered “employed” are actually either unpaid (about 10%) or underemployed (nearly 20%).

Clearly, we need more jobs. But how, with an imminent power crisis involving Metro Manila and surrounding provinces? This on top of the Philippines’ already unsatisfactory electrification rate of 83%, which is below Thailand’s 88% and Vietnam’s 98%.

Add to this the ridiculous possibility of having a water shortage, despite Metro Manila being constantly inundated by floods. With the metropolis’ rising population, it remains dependent on one dam for its water supply. Which could get worse with the coming of El Niño. The Asian Development Bank (ADB) long warned about this problem, not only with supply but also sanitation.

Then you have other indicators: The 2014 IMD World Competitive Yearbook (WCY) ranked the Philippines 42 (out of 60) this year, four notches down from 2013’s 38.

The 2014 Economic Freedom Index ranks the Philippines 89 (out of 186 countries, “slightly below the world average”), including low ratings for “rule of law,” as well as ease of doing business (in the Philippines, “launching a business takes 15 procedures and 35 days”).

The Philippines also dropped in the World Bank’s Logistics Performance Index, from 44 in 2010 to 57 in 2014.

Our universities fare well neither in the Times Higher Education World University Rankings 2013-2014 nor in the Times Higher Education World Reputation Rankings.

Connect to that the Philippines’ disconcertingly worsening performance in intelligence test scores, averaging 86% IQ levels according to some studies (one of which pointed to the increased exposure to lead as possible culprit).

In OpenSignal’s survey of different countries’ broadband speed, the Philippines came in the slowest and last with regard to time and speed on LTE.

Then there is traffic, with the Japan International Cooperation Agency reporting that Metro Manila traffic in 2012 cost the country an amount equal to 7% of the GDP. Think of that alongside planned increased road repairs. Then you have our overcrowded, chaotic MRT system. Our airport has been rated the world’s worst in 2013, the second time in a row it was so labeled.

And don’t forget smuggling.

All the foregoing probably explains the Philippines having foreign direct investments in 2013 of $3.86 billions, spectacularly short of Malaysia’s $11.7 billion, Indonesia’s $22 billion, Thailand’s $13 billion, and Singapore’s $56 billion.

And this probably accounts for the International Monetary Fund lowering its 2014 Philippine growth outlook to 6.2% (rather than 6.5%).

That, remember, is within the context of recent massive government spending, putting the government back in deficit territory (nearly P54 billion), with public expenditures surging the last few months by 40%.

And we still have to grasp how the hostilities happening right now in the Middle East would affect our overseas workers’ continued employment.

Even assuming that our people do get jobs (and get paid for it), there is also the possible rice shortage next year.

All these within the context of ASEAN 2015 integration, with the necessity of pitting our products and services vis-à-vis competition from our Southeast Asian counterparts.

But what should worry us the most is that teenage pregnancy in this country rose by 70% in the past 10-year period (114,205 in 1999 to 195,662 in 2009). The 2010 figures show 206,574 of such pregnancies, with more than half of that number being girls below 14 years of age. This makes us among the highest in ASEAN and the only country where that number is increasing.

Also disconcertingly, 13-14% of all registered marriages are among teenagers below 20 years old. Meanwhile, there is also a rise in annulment cases, with the Office of the Solicitor General reporting a 100% increase in just 10 years.

The RH Law can’t really help, particularly with regard to rape (many incestuous), which is on the rise. One study documented 4,572 cases of rape for 2010, a 13% increase from 2009.

Then there are the China and the Bangsamoro issues. Oh, and the Freedom of Informatiom bill.


Fallacies and the devil's bargain

was my Trade Tripper column in the recent weekend issue of BusinessWorld:

It is in the nature of small men to be petty. And to have the inability to admit mistakes. This whole issue of the Disbursement Acceleration Program (DAP) should have been excised from public consciousness after the Supreme Court made its ruling. After all, there are bigger, more urgent problems to address. But the government’s insistence that it is right and may incorrigibly do something similar sticks out like a bad sore one feels compelled to pay attention to.

The consensus is that the Supreme Court was right to state that the DAP-related acts or measures were illegal. The counterpoint from government apologists, however, is that the illegality was more technical than real, something only lawyers obsess about. Of the morality of the DAP, such is unquestionably right as the government was in “good faith.”

But sadly they mislead. From ad hominem (the Supreme Court is obstructionist), self-righteous (we acted in good faith and hence we are right) and strawmen argumentation (lawyers insist only they can comment on DAP), to tu quoque fallacies (the Court can’t rule on the DAP as it did similar acts as well), all miss the point that the law is there to be followed not merely when things are going well but necessarily so when situations are dire.

And this is precisely one of the underlying principles of our Constitution. That ours is not a government of passions or self-righteous ideologues but of laws. As James Madison wrote in Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

This is what the Wall Street Journal was saying when it commented on the DAP: Mr. Aquino “created a bad precedent.” Unfortunately, “taking an unconstitutional shortcut only dilutes accountability, relieves voters and congressmen from the consequences of their choices, and sets the stage for a more corrupt president in 2016 or beyond to channel spending for his own benefit.”

And frankly, the government itself was engaging in another fallacy: that of “either/or.” Either we did the DAP or social justice programs would have collapsed. That is a false dichotomy. As other commentators have pointed out, some of the programs for which the DAP was employed were actually truly needed. But the need for them had been identified long ago. Why then was it not vigorously insisted to be included in previous budgets? This administration had at least starting 2011 to do that.

The administration’s complaint is that our system is slow. That’s no excuse. Our system was precisely designed to be slow. To force each branch of government to confer with others, to ponder deeply, to force officials to move without haste, to plan far ahead.

The fact is, the government has fallen into the trap that many other governments before succumbed to: the belief of the righteousness of its cause and that it could solve everything only if it had the power to do so. Thus, like many other past governments, it comes before the people offering a deal: give us more power and we will achieve more. Give us more power and we will make your life better. We will get rid of corruption. We will be free of inequality. The offer will be about anything and everything. But such is a devil’s bargain.

Because we know this: “Power tends to corrupt, and absolute power corrupts absolutely.” We don’t even need refer to Lord Acton for this. Our history has that politician who promised all, including a nation great again -- only if he had more power.

Going back to the argument that the DAP issue is not only for lawyers: of course it isn’t. Matters of national concern involve every citizen’s duty and participation.

Ultimately (and many seem to not understand this), our political system is built on the idea that our country’s destiny lies not with the government but with the people. That’s why our government is one of merely limited powers. As Madison put’s it: government is merely an “auxiliary precaution,” there to assist the people to be able to do things for themselves.

Ours is a government of public servants, with limited functions delegated to them by the people. And the first thing they need to do to be good servants is to humbly set the good example of following the law.


Our father whose DAP ain't heaven

my Trade Tripper column in this weekend issue of BusinessWorld:

Well, one has to write about the Disbursement Acceleration Program (DAP) conundrum. Everybody has done so already and so I might as well give it my 25 centavos worth. And since others have already gone into the nitty-gritty legalities of the issue, I’ll just focus on certain conceptual aspects of the matter.

At the outset, it would be good to have a study of the actual ruling of the Supreme Court, the dispositive portion of which reads in part:

“Wherefore, the Court partially grants the petitions for certiorari and prohibition; and declares the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances unconstitutional for being in violation of Section 25 (5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

“(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

“(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

“(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.”

So there was indeed a declaration of unconstitutionality, and this refers to, among others, “related executive issuances” (of which, in the Constitution, executive power is vested in the President and the President -- it must be considered -- “acts” through orders and issuances). Also, that a department secretary, like the Budget Secretary, is the alter ego of the President. Which means that the acts of the Secretary are essentially the acts of the President.

Having said that, comment has been made by certain quarters regarding the application of the “operative act” doctrine, whereby a government official who relies on a law or rule yet to be declared unconstitutional could have such reliance result in being upheld or even liabilities absolved.

The DAP ruling of the Supreme Court, however, precludes such blanket application of the doctrine: the “doctrine of operative fact can apply only to the PAPs [program, activity or project] that can no longer be undone, and whose beneficiaries relied, in good faith, on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

Which is the correct view, I believe. In Yap v. Thenamaris (a 2011 case), the Supreme Court held that the “operative fact” doctrine will not be applied when such “would be iniquitous and would send a wrong signal that an act may be justified when based on an unconstitutional provision of law.” This is aside from the fact that the doctrine is an exemption rule and, hence, must be applied strictly.

A thing that bothered me during President Aquino’s Monday night speech was when he referred to himself as “father of the country.” Where did he get that idea? Even as a rhetorical device, it was in poor taste. The fact is, President he may be but he is in our system of government a paid public servant with a specific set of functions (e.g., execute -- not make -- laws), who heads only one of three co-equal branches of government, with powers merely delegated to that office by the people through the Constitution.

But perhaps that is where the problem lies: that he believes himself solely responsible for the State, that he is entitled to go even beyond our laws and our institutional processes to achieve (at least in his mind) rightful ends.

Forgetting for the moment the application of the Pauline Principle (“One should never do evil so that good may come,” from Romans 3:8), he also ignores basic philosophical foundations of our Constitution: the common good (found in the Preamble) and subsidiarity (the theme of which runs through the Constitution, particularly on devolution of authority). These two go hand in hand.

Of common good (and subsidiarity’s role in it), the best definition is in John Finnis’ Natural Law and Natural Rights: “a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value (s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.”

Note the repeated mention of the attainment “for themselves” by the people. The President need not do everything, need not be some national patriarch.

Perhaps if this government trusted the people more and the system it set up by way of the Constitution, we wouldn’t be so deep in this mess we’re in right now.


The beautiful game

was my Trade Tripper column in the 4-5 July 2014 issue of BusinessWorld:

It's not easy to wax poetic about a sport when you’re living in the only one of two countries on Earth that isn’t crazy about it. But really, there’s no getting around it: football is the beautiful game. And if there’s anything that the ongoing 2014 World Cup in Brazil is doing, it is to demonstrate to the world how dramatic, unpredictable, elegant and powerful football is.

Many will perhaps shake their heads in disbelief. It is after all just a game with 22 men running up and down a field kicking the ball and getting crazy should it happen to go behind the net once or twice during the game.

But Ann Coulter (right as she often is; proof of which is how she drives leftists and progressives nuts) was wrong to say in her column that there are no MVPs in football, that scoring is merely accidental. If that were so, there would be no Messi or Neymar or Cristiano Ronaldo. And scoring in football is far from accidental. It is ability.

Football is not to be compared to basketball, the sport, which most Filipinos go gaga over. Basketball’s strength is in its repetitiveness.

I don’t buy it when Phil Jackson said basketball is a spontaneous, fluid sport. It is repetitive. Even Kobe Bryant said this in so many words. The plays are crafted, then memorized. Both teams, at the highest levels, actually know what’s going to happen next at both ends of the court. Basketball all boils down to execution, of which Bryant and Michael Jordan are its primary executioners.

No. The better comparison would be to chess. After the first 40 possible moves, chess progresses to 400 possible positions. By the fifth move, one could possibly log 4,897,256 potential moves. Football is the same; although, in some ways, even more complex: moves are not fixed to alternating between players, the 22 “pieces” are moving (and moving fast), and the movements don’t remain on a flat square.

Admittedly, football has problems translating to media. It does not lend well to being made into a movie or for TV viewing. The fact that it has no breaks except for half-time means that advertisers get left out. It’s not broken into quarters and statistics for TV analysts to comment on during lulls in the play.

Football keeps moving -- unlike, say, baseball. Baseball is easy to shoot as a movie or to write as a novel: with all the breaks between innings and pitches, the writers have the opening to put personal drama (or comedy) in between the actual action (see For Love of the Game or Bull Durham as examples).

Football, on the other hand, has to be savored directly. And this is to be emphasized: watching those moments on Youtube won’t be the same. Those moments have to -- must -- be experienced.

So contrary to what some say that it’s a sport where the ball just gets kicked back and forth, a closer look reveals the sheer artistry in footwork that even a Nijinksy would envy, the athleticism that an Ali would admire, or the speed that would exhilarate a Senna.

And then you have those supremely, shatteringly magical moments that last you a lifetime, imprinted in your brain, replayed over and over to marvel at and, yes I’ll say it, remind you that life is good. And much like life, the good comes with the bad.

The bad: I remember being 16 years old watching Maradona in 1986 shamelessly celebrating a goal he handballed over the Brits. But then, I also remember, of moments later being rendered speechless as Maradona dribbled from mid-field, at full speed, past one, two, three, four, five England players and finally blasting the ball into the goal. I could still hear, in my mind’s ear, the announcer shouting in disbelief.

And like life, football has its ups and downs: there was frail Roberto Baggio, going against the powerful Nigerians and with Italy facing elimination, in the Round of 16 of the 1994 World Cup, miraculously left alone within the penalty area, and scoring in the final two minutes of the game. He’d later score another cardiac-arresting but utterly sublime (no other word for it) goal, again in the last two minutes, against Spain in the quarterfinals. He’d then authoritatively stamp his will against the much bigger Bulgarians in the semis. In the finals against Brazil (which had Bebeto and the great predatory Romario), Baggio -- exhausted, in pain -- would be blamed for the loss, missing in the decisive penalty shootout.

Thinking about it more, ultimately, perhaps, there really are no ups and downs. For in football, it’s not the tedium or the disappointments or the hooliganism that one remembers. Like life, it’s about those fleeting moments when once in every great while, amid all the complexities and confusion, you get to live perfection.

It’s a beautiful game.

China's dashed lying lines

my Trade Tripper column in the 27-28 issue of BusinessWorld:

Amid all the news regarding arresting senators and the expected ruling on the Disbursement Acceleration Program (DAP) by the Supreme Court, China’s attempts at territorial grab goes on. Bloomberg Businessweek reported that “in recent months, vessels belonging to the People’s Republic have been spotted ferrying construction materials to build new islands in the sea. Pasi Abdulpata, a Filipino fishing contractor who in October was plying the waters near Parola Island in the northern Spratlys, says he came across this huge Chinese ship sucking sand and rocks from one end of the ocean and blasting it to the other using a tube.”

The report goes on to say that “land reclamation work at Johnson South Reef started in February. There have been reports of Chinese activity at two other reefs in the Spratlys. ‘They are creating artificial islands that never existed since the creation of the world,’ says Eugenio Bito-onon, mayor of a sparsely populated stretch of the archipelago called Kalayaan. ‘The construction is massive and nonstop,’ he says, and could pave the way for China’s ‘total control of the South China Sea.’”

Providentially, Supreme Court Justice Antonio Carpio made a frank assessment of the Chinese claims during a lecture given at one of Manila’s universities: “Clearly, there is nothing ‘historical’ or ‘right’ about China’s nine-dashed line claim. The nine-dashed line claim is based not on historical facts but on historical lies.”

In fact, continues Justice Carpio, “neither the Spratlys nor Scarborough Shoal appeared in any Chinese dynasty maps, as obviously the Spratlys and Scarborough are several hundred miles farther south to Hainan Island.” Furthermore, “numerous ancient maps made by Westerners, and later by Philippine authorities, from 1636 to 1940, consistently showed that Scarborough Shoal, a.k.a. Panacot and Bajo de Masinloc, has always been part of Philippine territory. Scarborough Shoal has never appeared in a single ancient Chinese map throughout the long history of China. Neither is there any historical records of any Chinese expedition to Scarborough Shoal.”

Justice Carpio concludes: “China’s so-called historical facts to justify its nine-dashed lines are glaringly inconsistent with actual historical facts, based on China’s own historical maps, Constitutions, and official pronouncements. China has no historical link whatsoever to Scarborough Shoal. The rocks of Scarborough Shoal were never bequeathed to the present generation of Chinese by their ancestors because their ancestors never owned those rocks in the first place.”

This “nine-dashed line” has been a real nuisance not only for the Philippines but for all other countries wanting stability in the region. The problem with it is, not only is it based on historical inventions, not even the Chinese themselves in all likelihood know what it actually is. There has been no actual legal document specifically laying down in precise terms what the boundaries of the “lines” are.

And, as James Holmes writes (“The Nine-Dashed Line Isn’t China’s Monroe Doctrine,” The Diplomat), for the Chinese to claim that their “nine-dashed line” is merely the Chinese version of the Monroe doctrine is rubbish:

“... let’s beware of taking history lessons from representatives of a regime that managed to airbrush such misdeeds as the Great Leap Forward, the Cultural Revolution, and Tiananmen Square out of official and popular memory while casting itself as the heir to the Confucian traditions it once sought to eradicate. These are folks set on convincing you the lightning-bug is the same thing as the lightning.”

Mr. Holmes continues: “The difference between the American and Chinese visions of maritime law is the difference between the 17th-century Dutch international-law theorist Hugo Grotius and his English foil, jurist John Selden. Grotius insisted the seas weren’t subject to national sovereignty -- to ownership, in effect -- while Selden proclaimed English sovereignty over the waters lapping against the British Isles. A century ago, as now, Grotius is the face of US policy in the commons. Selden may as well be China’s prophet of maritime law.”

Finally, one point I’d like to make came to me while reading Mu Chunshan’s The Diplomat article (“Why Doesn’t Russia Support China in the South China Sea?”) and this is Russia’s silence despite the worsening conditions between China and the Philippines: “Russia also enjoys a good relationship with the Philippines. For example, two years ago, three Russian navy vessels (including the anti-submarine destroyer Admiral Panteleyev) arrived in Manila for a three-day port visit. According to Russia, this visit helped improve Russia-Philippine ties.”

I just find it ironic (and also amusing) that President Aquino has the benefit of Russia’s (for now) policy of non-interference. For that, it can thank Ferdinand Marcos (working with his Executive Secretary Alex Melchor and Aide-de-camp Jose Almonte), who decided to initiate diplomatic ties with the then Soviet Union in 1970. This at a time when US support was crucial for Marcos. A huge gamble if there ever was one, now paying off.