Here is another update from Balaod Mindanao. Please help us spread the information so the public may know.
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Walk for Sumilao Land, Walk for Justice
13/14 December 2007
Today (Dec. 14), the farmers had a 'sit down rally", again in protest of the one sided order of Pangandaman issued last Dec. 12. The farmers, joined by the other peoples organizations like UPAL, SAMBA, UNORKA, and other peasant groups sit in the entrance and exit gates of the DAR.
This morning, the police, army and security guards attempted to disperse the farmers. Rep. Risa Hontiveros helped in negotiating with the police not to disperse the farmers. Fortunately, they were not dispersed.
At around 12:00pm, a mass was celebrated for the farmers who are sitting at the exit gate. Another mass was celebrated at around 2:00 pm at the entrance gate.
13 December
"Respondent SMFI is hereby directed to refrain from further undertaking development activities other than those presently ongoing."
The quotation above is the content of the order of Secretary Pangandaman issued on December 12 as regards the petition of the Sumilao farmers for the cancellation/revocation of the conversion order over the 144 hectares.
Said order was received by the farmers at around 12:30 pm yesterday, while a press conference of priests in the encampment of the farmers was ongoing. The priests in said press conference expressed to support and join the farmers' march on Monday (Dec. 17) to Malacanang for a dialogue with Pres. Arroyo.
Upon receiving the order, the farmers felt disgusted and insulted. Instead of being gratified, the order only raised more anger and frustration from the farmers.
As worded, the "order" does not command SMFI to cease and desist from undertaking any development in the subject property, because it clearly allows SMFI to continue its ongoing development in the area.
At around 2pm, the farmers together with their lawyers called for a press briefing to explain that the order of Pangandaman is not a cease and desist order.
The farmers condemned the order. Mr. Rene Penas, one of the Sumilao farmers, even burned the document. Mr. Penas, as with the other farmers, feel that the order was one sided and favors SMFI. Further, their anger was further aggravated with the provision of the order commanding them to "respect SMFI's ownernship and possession of the property."
In continuing their indignation against said order, the farmers made a "noise barrage" for more than 20 minutes. After the noise barrage, they chanted their call for the issuance of a genuine cease and desist order, which was subsequently followed by a community prayer and lighting of candles.
At around 7:30 pm, Rock Ed Philippines offered the Sumilao farmers a mini-concert. Among the performers are Tribu, Noel Cabangon, Rico Blanco, Village Idiot, and Vin Dancel. The farmers also sang a song by Buklod, "Buhay at Bukid" together with Pilipinas Palma of BALAOD Mindanaw and their lawyer (Atty. Bag-ao).
It was not until 10pm that they felt their hunger. But while they were eating their dinner, songs of support and sympathy from the artists continued to echo in the night.
POSITION PAPER OF SUMILAO FARMERS
ARGUMENTS
Preliminary Issues
The Instant Case Is Different From The Supreme Court Case Of Fortich Vs. Corona
The instant Petition involves a new case with a totally different cause of action from the first Office of the President (OP) case with No. 96-C-6424, issued by then Executive Secretary Ruben Torres, granting NQSRMDC's application for the conversion order . The first OP case pertains to the approval of the conversion order of the subject land which was affirmed by the Supreme Court in the case of Fortich vs. Corona.
It is important to clarify that the instant case does not seek to assail the abovementioned Decision of the Office of the President. Rather, this Petition is a separate though related remedy provided under the law; revocation of the conversion order because NQSRMDC and/or SMFI failed and continues to fail compliance with the conditions in the conversion order, both those NQSRMDC itself has enumerated in its approved application and those legal provisions and administrative issuances necessarily attached to said conversion order.
That matter being clarified, petitioners hereby assert that the Supreme Court case Fortich vs. Corona does not serve as an obstacle to the determination of this petition, as opposed to the assertion of the respondent SMFI based on the following reasons:
1. The petition for revocation is not barred by res judicata because the Fortich vs. Corona decision was not an adjudication on the merits;
2. There is no identity between the causes of action in the said case and in the instant Petition for Cancellation of the Conversion Order;
3. The Petition for Cancellation is not barred by conclusiveness of judgment; and
4. The petitioners have legal standing in the instant case.
The Petition for Cancellation is not
barred by Res Judicata
For res judicata to serve as an absolute bar to a subsequent action, the following requisites must concur: (1) there must be a final judgment or order; (2) the court rendering it must have jurisdiction over the subject matter and the parties; (3) it must be a judgment or order on the merits; and (4) there must be between the two cases identity of parties, subject matter and causes of action . Applying the foregoing requisites to the present petition, it is apparent requisites are absent.
There is no final judgment or order in the instant Petition for Cancellation
As stated above, the instant petition is an original action which seeks the cancellation of the conversion order issued to NQSRMDC and its successor-in-interest SMFI. There is no final judgment on the matter. The petition should not be confused with the Fortich case since the crux of the controversy in the latter case was whether the OP can still modify its own decision which had already attained finality. On the other hand, the instant petition seeks the cancellation of the approved conversion order for non-compliance with its conditions.
The Fortich v. Corona Decision was not an adjudication on the merits
An adjudication on the merits is a decision on a controversy or a determination of the rights and liabilities of the parties in a given case. The Fortich v. Corona decision is not an adjudication on the merits because:
- The case did not determine the substantial issues since the Supreme Court ruled that the DAR failed to file its Motion for Reconsideration on time, thereby allowing the Conversion Order issued by then Executive Secretary Torres to lapse into finality;
- The petition filed therein was one for certiorari under under Rule 65 of the Revised Rules of Court against then Deputy Executive Secretary Renato C. Corona and DAR Secretary Ernesto D. Garilao and not an appeal or review of the DAR decision/ruling;
- The ground invoked was grave abuse of discretion and acts beyond jurisdiction – not errors of judgment, as the Court itself declared;
- The certiorari petition assailed the "Win-Win" Resolution only on the ground that it was issued without or in excess of jurisdiction and merely sought the review of then Sec. Corona's disposition, and not that of DAR. The main issue before the Court was whether the final and executory Decision dated 29 March 1996 can still be substantially modified by the "Win-Win" Resolution;
- The Court merely stated that Sec. Corona committed grave abuse of discretion and acted beyond his jurisdiction in issuing the "Win-Win" Resolution on the ground that he has no authority to modify a final and executory decision; and
- It is conclusive only with respect to the lack of authority of Sec. Corona to modify a final and executory decision .
There is no identity of parties and of causes of action
Moreover, there is no identity of parties. In the Fortich case, the petitioners were Bukidnon Governor Carlos O. Fortich, Sumilao Mayor Rey B. Baula, NQSRMDC and the respondents were Deputy Executive Secretary Renato C. Corona, DAR Secretary Ernesto D. Garilao, while the MAPALAD farmers were the intervenors. In the instant Petition for Cancellation, the petitioners are the farmers, majorioty of whom belong to the Higaonon Tribe, of which 78 are memebers of the MAPALAD-MPC and 99 are members of SALFA in San Vicente, Sumilao, Bukidnon, seeking to cancel the conversion order previously given to NQSRMDC and to enjoin SMFI from proceeding illegally with its hog farm project. There is also no identity in the causes of action in the Fortich case and the instant Petition for reasons already stated above.
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Balay Alternative Legal Advocates for Development in Mindanaw (BALAOD Mindanaw)
Door 3 Balay Mindanaw SIAD Peace Center
53A 12th St., zone II, Upper Bulua
9000 Cagayan de Oro City, Philippines
+63 8822 738794
+63 8822 738794 (telefax)
balaodmindanaw@gmail.com
balaod_mindanaw@yahoo.com
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