(The series is an analysis of the draft peace pacts exchanged between the government and Moro Islamic Liberation Front peace panels on January 27, 2010 in Kuala Lumpur, Malaysia. The MILF did not show up for discussion the next day claiming the GRP [Government of the Republic of the Philippines] presented nothing new, that it offered “enhanced autonomy” again, an offer rejected in 2000 and 2003.

The two panels met again on March 4 in Kuala Lumpur for a Q and A session on the MILF’s draft Declaration of Principles on Interim Governance Arrangements, an 11-page extract from its proposed Comprehensive Compact. The GRP peace panel vowed to submit its counter-proposal but as of March 18, panel chair Rafael Seguis told MindaNews he has not submitted it because “I have to clear with the National Security Cabinet Group.”

Dialogue Mindanaw, a series of consultations organized by the Office of the Presidential Adviser on the Peace Process (OPAPP), is supposed to “engage the people by informing them about the issues being discussed in the GRP-MILF peace talks, and by securing their honest feedback on these issues”

OPAPP Secretary Annabelle Abaya announced before Mindanao’s state university presidents who attended a peacebuilding conference in Penang, Malaysia in January that the Dialogue Mindanaw consultations will be specific as to the issues the government and MILF peace panels will be discussing at the negotiating table.

“The idea is to get back to the people on the issues they (panels) are discussing. What do they want?“ Abaya said.

But issues like “state-sub-state relationship” which was allegedly part of the proposal of the MILF in late January, has not been discussed in the consultations.

MindaNews’ Patricio P. Diaz got hold of copies of the draft peace agreements exchanged on January 27 from sources who asked not to be named.

This series is intended to help the readers understand the drafts and the issues being resolved now. Prof. Rudy Rodil has also written a separate commentary — MindaNews editor)

I. The Agreed Guidelines

GENERAL SANTOS CITY – From the various reports of the stalled peace talks of the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF), the inference is: The peace process to arrive at a political solution to the Mindanao Problem is not in a state of impasse; rather, it is in a state of by-pass: the MILF is resisting and the GRP is insisting on.

This interesting, yet intriguing, twist in the Kuala Lumpur negotiation the GRP and the MILF drafts of agreements tell, the media reports notwithstanding.

[Author’s Note: Incidentally and presumably, in response to my latest three-part COMMENT: “Peace Pact Still Possible?”, posted in MindaNews February 16, 20, 21 and 22, sources who asked not to be named sent copies of the GRP and MILF Drafts]

Moral Issue

The present stalled negotiation raises the moral issue of sincerity and honesty. The two Parties – GRP and MILF – have agreed to follow the talks agenda. On reading the Drafts, it is to be wondered: How sincere and honest are they to their agreements?

A year after the Supreme Court restrained the Government from signing the Memorandum of Agreement on Ancestral Domain (MOA-AD) and later declared it unconstitutional, the two Parties “re-established official contact” on July 29, 2009 and issued the four-point “Joint Statement” to do so. This is a key reference of the resumed peace talks.

Joint Statement acknowledged the following:

1. Mutual effort to sustain the Government’s Suspension of Military Offensives (SOMO) and the MILF’s Suspension of Military Actions (SOMA).

2. Acknowledgment of MOA-AD as an unsigned and yet initialed document, and commitment by both parties to reframe the consensus points with the end in view of moving towards the comprehensive compact to bring about a negotiated political settlement;

3. Work for a framework agreement on the establishment of a mechanism on the protection of non-combatants in armed conflict;

4. Work for a framework agreement on the establishment of International Contact Group (ICG) of groups of states and non-state organizations to accompany and mobilize international support for the peace process.

What does Item 2 imply? Since the MILF never abandoned the MOA-AD, the acknowledgment of it as an “initialed document” was solely that of the GRP after having disowned it publicly and before the Supreme Court.

The GRP and the MILF, in committing “to reframe the consensus points with the end in view of moving towards the comprehensive compact to bring about a negotiated political settlement”, agreed to re-start the talks from where they had stopped – the initialed MOA-AD. That is a defining statement.

In so agreeing, the MILF acknowledged the Decision of the Supreme Court and, by extension, the 1987 Constitution. However, the Court ruling should be noted well:

Its final resolution reads: “The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.”

Paragraph 4 of the Summary of the Supreme Court’s October 14, 2008 Decision reads: “The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.”

What are to be noted well?

First, the Court declared unconstitutional only the MOA, not the AD as an aspect of the Tripoli Agreement on Peace of 2001.

Second, the Court recognized the Tripoli Agreement on Peace of 2001 and the series of agreements already done to carry it out. The Court acknowledged the MOA-AD as a significant part of that series.

Third, the Court restrained the Government from signing the MOA-AD; however, on recognizing its significance to the GRP-MILF peace negotiation, it recommended three options to save the peace process: (1) renegotiate it; (2) draft a new one with similar provisions; or, (3) draft another with significantly dissimilar provisions compared to the unconstitutional MOA-AD.

Item 2 of the four-item agreement of the July 29, 2009 Statement is consonant with these options.

On December 9, 2009, the GRP and MILF agreed to cut short the negotiation by exchanging draft agreements drawn up following a seven-item guideline: (1) Identity and citizenship; (2) Government and structure; (3) Security arrangement; (4) Wealth-sharing, natural resources and property rights; (5) Restorative justice and reconciliation; (6) Implementation arrangement; (7) Independent monitoring.

The seven-item specific guideline, another key reference of the resumed peace talk, is consonant with Item 2 of the July 29 Statement and the final ruling of the Supreme Court on the MOA-AD. To reiterate the moral issue: Do the GRP and MILF draft agreements adhere to their agreed guideline? The drafts will tell how sincere and honest the Parties are.

Restatement

The Supreme Court decision recommends three options to revive the negotiations on the Ancestral Domain aspect of the Tripoli Agreement on Peace of June 2001.

The GRP-MILF Joint Statement of July 29, 2009 is a general agreement to reframe the consensus points of the MOA-AD to re-start the peace talks and move it toward the Comprehensive Compact.

The December 9, 2009 Seven-Item guideline sets the details of the Joint Statement as reference of the two Parties in drafting their Peace Agreement Proposal to shorten the negotiation to five months or less.

MOROLAND – Land of the Bangsa Moro

Right now as of this moment, everybody has been debating that why is it that the dreaded ASG was already eliminated nad here they are again striking it off with their new prey.

Really really, our intellectuals have to do more than just wash their hands, we need a total reassessment of whats happening in Moroland.

Almost majority if not all of the prime lands in the mainland are owned if not controlled by the non-Muslims. Recently The US navy and the Japanese research vessels have been doing underwater marine research in MIndanao and palawan areas. Why?

let me tell you why…. the area surrounding the Island has huge reserves of heavy water (deuterium) which is being used for cold fusion, an alternative power source. (for those who are unfamilliar with the idea please watch Val Kilmers movie “the saint” to know more). Its better and safer than nuclear energy. and if we dont realize it, If Mindanao becomes independent, this power source will be one  of the things that US and japan will clobber heads to gain control of……

Now if we havent realized where have we all gone wrong, the other people will end up gobbling our resources.

Something to think about folks

Thank you, Honorable Chief Justice and Associate Justices for showing us how justice works in this country.  Thank you for issuing the TRO on the MOA-AD, for showing to the Filipino people how fast you can actually act upon cases filed by powerful politicians like Emmanuel Piñol and Celso Lobregat.  Indeed, the speediness at which you have acted on this case was extraordinary and phenomenal.  In 3 months time, you have struck down a document which took more than 10 years of painstaking negotiations to accomplish.

Thank you, too, for helping MILF base Commanders Ameril Ombra Kato and Bravo recruit more fighters and supporters.  Your decision vindicated what they have always believed from the very beginning — that this government will never be sincere in talking peace with the Bangsamoro people.  Now we are faced with the world’s longest running armed conflict that sees no resolution in sight.  Thank you for condemning Mindanao as the next Afghanistan or Darfur in Asia.

As you said, you went farther to rule on the constitutionality of the MOA-AD as it involves a matter of transcendental importance.  And for the guidance of everyone, you struck down the MOA as unconstitutional. Scouring on the voluminous pages of your decision including the separate, concurring and dissenting opinions, one could not help but ask, “where is the guidance?”

Thank you, Supreme Court for making us realize that we still have a lot to learn from the history of Mindanao.  That we still have a long way to go in healing the wounds of the past, in correcting the historical wrong committed against the Bangsamoro and indigenous peoples.  Thank you if you can agree that some of you could use a great deal of refresher in the History class of Prof. Rudy Rodil,  a well respected historian and scholar who by the way is now a persona non grata in his own home city in  Iligan.  But that’s not something new.  Jesus Christ himself was also a persona non grata in Nazareth.

Hear ye, hear ye, Supreme Court of the Philippines, thank you for making us understand that the minority definitely has no place in this country.  This was glaring in the series of Oral Arguments where you generously provided ample time to lawyers, politicians, mayors, senators and generals to argue against the MOA-AD.  Yet, no single Moro soul has ever been allowed to speak about her own identity, the desecration of her culture, the militarization of her community and the blatant discrimination that she feels as a Muslim Filipino.  Is this the kind of equality that the blind-folded lady of justice bears? What an ostentatious display of fair play, Honorable Justices!

Thank you also for reigniting the fire of animosity and hatred between Christians and Muslims. The resurgence of fanatical and anti-Muslim local vigilante called Ilaga came not as a surprise. Local politicians, exploiting your decision, unleashed this menace in order to curb the Bangsamoro’s quest for justice.  Thanks to the 10,000 shotguns the other Puno in the DILG distributed to arm the civilians, the theater of communal violence in the ’70s is now showing again.  Can Puno “TRO” the other Puno, too?

Thank you for helping these politicians secure their interests over vast tracts of lands they have grabbed from the Moro people.  By the way, land grabbing was “legal” because it was in accordance with the Public Land Act which “legitimized” the dispossession of the non-Christian tribes from their ancestral lands.  Never mind if it is not just, notwithstanding if it is not fair, for as long as it is legal and in accordance with the Constitution.

Thank you for making us understand why in the JPEPA case, you upheld the exercise of executive privilege by Malacañang while in the MOA-AD it simply cannot be.  Vis-a vis the interests of superpowers like Japan and the US, it’s okay to compromise sovereignty, we are their puppets anyway.  But with regards to the Bangsamoro people, that’s another story. Our business interest over their ancestral domain is of such transcendental importance to these Senators, Congressmen, Mayors, Generals, Lawyers, Vice Governors  cum owners of mining, logging, banana, pineapple and jatropha plantations in Mindanao – they cannot be compromised.

Thank you for affirming that we are indeed one country, one people, one nation.  As such, one cannot help but wonder why the military indiscriminately drop bombs over civilian communities in Mindanao akin to the carpet bombings in Iraq.  If you stubbornly insist that the Bangsamoro people cannot be allowed to dismember from this Republic, you should at least treat them like they are members of this country in the first place.

But alas! Thanks that seven of you, Honorable Justices, will be retiring next year.  Whether it is this court or next year’s full Arroyo court, it doesn’t matter to ordinary Moros, lumads and settlers anymore.  There is no place for them in your court anyway.

In the meantime, there are more urgent tasks to do in Mindanao — attending to the sick, burying the dead, consoling the orphans, securing our homes and communities.  As children slowly die of hunger and diarrhea in congested evacuation centers, they ask?  “Why is there war again”.  May you take it in your conscience to explain to them how the constitution is far more important than the innocent lives of hundreds of thousands of people.  They pay such a high price for your Constitution. You should thank them for that, Supreme Court of the Philippines.

—
You may send your comments and reactions to fatimahbinguerra@yahoo.com.

 
The MOA-AD is “dead”. This became the headline in newspapers when the Supreme Court (SC) declared the Memorandum of Agreement on Ancestral Domain (MOA-AD) as unconstitutional last October 14, 2008. The “death” of the MOA-AD had divided and polarized the country like never before in recent history. 

The debate on the MOA awakened dormant religious prejudice and discrimination between Muslims and Christians. While the people who were Anti-MOA celebrated, some Moros felt that they had lost something. Some other Moro sectors felt like an “anti-dote” to the Moro problem was deliberately withheld from them. Disillusioned MILF rebels renewed hostilities with the government forces. Suddenly, the dreaded “ilagas” emerge and revived past Muslim-Christian community conflicts. There is so much blissful celebration and emotional retaliation by each side respectively, yet only a few really know the issues involved that was “killed” by the Supreme Court decision.  

In a sense it was a pyrrhic victory for it gave the impression that a negotiated peace settlement is unfeasible, further pushing those in the jungles of Mindanao to pursue their armed struggle as the only way of, paradoxically, achieving peace.  

With the escalating conflict in Central Mindanao which is displacing close to half a million civilians, it is important to understand the implication of the Supreme Court decision. The ruling must be viewed not as a wall that bars dialogue but rather as guidance to a better and peaceful settlement.  

Injustice: root cause of the Mindanao problem 

In order to understand the issue on the MOA-AD, it is important to have a working background of the Mindanao problem. It will be biased, however, if it is based on the perspective of a Moro. Thus, a re-statement of points made by Archbishop Orlando Quevedo (Archbishop Quevedo), the former two-term President of the Catholic Bishops’ Conference of the Philippines (CBCP) and current Sec. Gen. of the Asian Bishops’ Conference, during the 27th General Assembly of the Bishops’ Businessmen’s Conference in Taguig, Metro Manila, on July 8, 2008 entitled, “Injustic: root cause of the Mindanao problem,” shall be more credible. 

He argued that the roots of the problem in Mindanao are due to three injustices, namely, against: (1) The Moro identity; (2) The Moro sovereignty; and, (3) The Moro integral development.  

The injustices against the Moro identity were the centuries of effort to “subjugate, assimilate and integrate the Bangsamoro without regard to their historical and cultural make-up, which is an injustice to the Bangsamoros’ religious, cultural and political identity.”  

As to the second, Archbishop Quevedo considered “a fundamental injustice,” the loss of sovereignty of the Moro which it defended for three centuries, only to be gradually lost to the US and the Philippine government. 

Lastly, with regard to the injustices against the Moro integral development,  “with the loss of political sovereignty came the loss of great chunks of Moro ancestral lands by legal enactments” of the government during those times. “The loss of land was compounded by government neglect of the Moro right to integral development. In all dimensions of human development, political, economic, educational, and cultural, the Moro population continues to lag far behind its Christian Filipino counterparts.”  

As the quest for justice is the spirit of the MOA, its basic element is the clamor for equality between the majority Christian citizens and the minority Muslims in the Philippines – equality in terms of integral development. Is there equality when the Bangsamoro people live with human development index (HDI) equal to the poorest countries in Africa, like Congro and Ethiopia? The HDI what the United Nations use to collectively measure standard of living, education, health, security, access and opportunity. Where is equality when people in ARMM, in general, has a life expectancy 20 years lower than the people in the rest of the country? Can there be equality when a US-AID study recently showed that the english comprehension of a significant number of teachers in ARMM are equal to a grade 4 pupil in Manila? Is there equality when a Tabang Mindanao study in 2006 showed that more than 90% of the people in Basilan, Sulu & Tawi-Tawi do not have access to potable drinking water?  

Some will dismiss this by putting all the blame on the Moros. Yet, who has the political and economic control in this country that can allocate resources and can have the political will to address major challenges? Sadly, the only consistent resource regularly sent to ARMM  are bombs and bullets. 

Economics Nobel price winner Amartya Sen, in his book, “Development as Freedom” expanded the definition of development. From simply a measure of income he included human capabilities. He calls this the “substantive human freedom.” In essence, he said that a people whose capabilities are not harnessed and developed are not free. In other words, a person whose mind, faculties, talents, gifts and capabilities are not developed and utilised are trapped in a poverty worst than the lack of money.  

SMART CEO Manny Pangilinan during a Philippine Business for Social Progress (PBSP) anniversary said that the ARMM is beset by the worst poverty of all, the “Poverty of Capacity.” Why? Because it constrains people to the point of being unable to even help themselves. A people who is blindfolded with ignorance and shackled with poverty are no worse than prisoners in a cell. If we really belong to one Nation, under one flag, why do we let more than four million people, who all belong to the minority Muslim ethnic groups, live as prisoners of ignorance, poverty and neglect? 

These perspectives have become the generally acceptable premise for grievances and sentiments that must be addressed by the present Administration and the Filipino people in general. This search for redress is, therefore, the spirit of the MOA-AD.  

Why the Supreme Court declared the MOA-AD unconstitutional 

If the quest for a solution to the injustices is the spirit of the MOA-AD, then that answer was not barred after all by the Supreme Court. Instead, what had only been declared unconstitutional was the means in arriving at such end as founded on five main grounds, to wit:  

(1) That no consultation was made on an issue that affects significantly a large territory and population;  

(2) That the Indigenous Peoples’ Rights Act (IPRA) had provided a clear procedure on how ancestral land may be granted to indigenous peoples and the Executive Branch does not have the power to unilaterally supersede a procedure mandated by law;  

(3) That it would have been a binding international agreement that would compel the Philippines to support the right to self-determination of the Bangsamoro people;  

(4) That the Executive Branch cannot guarantee that the Constitution will conform with the MOA; and, 

(5) The concept of “Associative” relationship is a “transition point to independence” which threatens the territorial integrity of the Country. 

1. Violation on the peoples right to information

Section 7 Article III of the Philippine Constitution recognizes ”the right of the people to information on matters of public concern.” The Local Government Code of 1991 further “require all national agencies to conduct periodic consultations with appropriate local government units before any program is implemented in their respective jurisdictions.” Yet, in this matter that is definitely of public concern, no consultation nor public information was made. Thus, the Supreme Court declared that the government negotiators abused their discretion by not informing and consulting the people most affected by the proposed policies, as mandated by law. Nonetheless, the Supreme Court did not forbid the Executive branch from proposing peace solutions. It merely slammed the deceptive secrecy in the drafting of the peace agreement.  

An overview of the petitions will show that the primary relief sought was the exclusion of their territory in the proposed BJE. It is evident, therefore, that the greatest fear of the MOA-AD oppositionists is to be under a proposed Bangsamoro government, whose present condition in the Autonomous Region in Muslim Mindanao (ARMM) is far from encouraging. Statistics say that it has the highest poverty incidence, the lowest access to all government services, and the poorest governance indicators.  

Hence, this challenge must first be addressed prior to any contemplated expansion. ARMM should first be made the model region in the country not necessarily in economic prosperity but even just in the transformation from “governance of the guns” to good governance. The success of “internal self determination” must first be proved with an improved bureaucratic and service delivery system in ARMM before other people would realistically be expected to say “yes” to a plebiscite to be part of it. 

2. The IPRA has its own procedure that must be followed

The MOA-AD had envisaged “ancestral domain” to be given by virtue of an executive agreement. The Supreme Court declared it as unlawful since it is contrary to the procedure laid out by the Indigenous Peoples’ Rights Act.  The law requires a process of delineation, presentation of proof, investigation and approval of by the National Council of Indigenous Peoples (NCIP) and due notice. 

In spite of this, Father Joaquin Bernas, S.J. believes that an executive agreement is no longer necessary to grant the Moros their Ancestral Land as the IPRA law may suffice.  

Flashing back to a hundred years ago, the Americans, after purchasing the Philippine Islands were actually “shocked” by the “small dots” of territory that Spain controlled in Mindanao.  However, the government declared all lands without Torrence titles issued by the Spaniards as public lands. With almost all Moro land not registered with the Spaniards against whom they had fought for more than three centuries and to whom they did not surrender their sovereignty, almost all Moro lands in Mindanao were declared public property. Now, what are left to the Moros are the small islands of the Sulu archipelago, the outskirts of the Lanao Lake, and the volatile plains of Maguindanao.  

It is true. This past historical injustices that were allowed by the laws then could not be corrected by another injustice to the present generations who now occupy the lands. However, there are still thousands of hectares that remain as public property that may be given to the Moros thru the issuance of Ancestral Land titles. These may still be granted to correct a historical wrong.  

The Subanon tribe, with a national indigenous peoples survey estimating their population at 90,000, is currently processing an application for 15,000 hectares of Ancestral Land title in Zamboanga Peninsula. If they can forward a claim, then why can’t the more than 4.3 million Muslims in the Philippines apply and reclaim some of the Ancestral land “legacies” that Moro ancestors had defended and fought for three centuries?  

It is a popular belief by the public that the MOA-AD will grant Ancestral Land titles even if it is already under private ownership. This is not true. What the MILF wants to take back are those public lands that remain unused, unutilized, or at least uninhabited. Also, Ancestral land titles awarded by the IPRA cover lands that are State-owned and do not include areas already owned by private individuals. In fact, according to the NCIP, of the 15,000 applied for by the Subanon tribe, only 9,000 may actually be awarded since the rest are already of private ownership. It is clear then that the law ensures that land already owned by its citizens are protected. This may also give an insight that the individual tribes of the Moro must apply to the IPRA to avoid the confusion since the term Bangsamoro is defined differently by the ARMM organic act compared with the proposed MOA. This may also hasten the delineation between the Ancestral domain of different tribes considered under the term Bangsamoro. 

The Supreme Court noted further that there is a significant difference though with Ancestral Domain as proposed in the MOA and Ancestral Land as defined in the IPRA. The former involves more control over the resources found in the land while the later is simply a land title as evidence of ownership. Nonetheless, since the present law already grants Ancestral Land titles, the Moro indigenous people must not wait for another decade to apply. By the time another peace agreement is signed, all areas may have either been converted to private land or granted as Ancestral land to other indigenous groups. 

Basically, the Supreme Court did not declare that the Moros are not entitled to their Ancestral Land. The Court simply stated that there is a procedure that must be followed based on the existing law.  

3. It may have been a binding International obligation

Justice Adolfo Azcuna warned that the MOA-AD “would have provided a basis for a suit in an international court ”since the Philippines made a unilateral declaration before representatives of the international community.” Moreover, since international law is not limited by precedence, the MILF GRP MOA may have become a landmark case that would have compelled the Philippines to enforce the agreement. 

However, even without the MOA, there is now an international customary law that supports the right to self-determination of indigenous peoples. Last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples through General Assembly Resolution 61/295. The Philippine government was one of the 142 countries that signed the declaration. Article 3 of the declaration states: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Furthermore Article 26 states: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” 

Along this line, Article II, Section 2 of the Constitution states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land.” This makes the UN Declaration part of the laws of the Philippines. Furthermore, the doctrine of “pacta sunt servanda” in International law obliges the Philippines to “perform in good faith” such UN Declaration. This enjoins the country to continue searching for a remedy to the valid grievances of the Moros. Of course, democratic processes must be followed and proper consultations made, not only in the implementation, but to include the conceptualisation process. 

4. The Executive branch cannot guarantee the Constitution to conform with the MOA 

Justice Ruben Reyes said that the Executive Department went beyond its powers in unilaterally guaranteeing an amendment to the Constitution to conform with the MOA-AD. Such power, as Justice Antonio Carpio also contended, belongs to Congress and the People. On the other hand, Justice Minita Chico-Nazario deemed it within the powers of the Executive to offer solutions beyond what the present constitution allows when circumstances of ”internal conflict” justifies. Nonetheless, the majority of the SC Justices agreed that the Executive Department “gave a promise that it could not deliver.”  

The Supreme Court recognizes the power of amendment to the Constitution to reside with Congress and the people and not with the President. The Executive may recommend, but not guarantee, amendments. Thus, the peace process should change gear and direction and move towards the realization of the Federalism proposal. A charter change that will push for a federal-presidential government system with a regionalized senate will help the country decentralize political and economic power. Indirectly, this will move will give the Moro a more meaningful autonomy.  

Now is the time for a serious debate on this issue not only by the legislators, but by all stakeholders, especially the people. More importantly, the MNLF, MILF and other minority sectors who have issues should start preparing concrete proposals, conduct consultations and popularize their issues. At the end of the day, good ideas will just be thrown in the garbage bin if it does not get the acceptance of the leaders and general public.  

Only by long term comprehensive planning that engages all stakeholders can we truly arrive at a sustainable national roadmap. The case of the MOA may have been another product of disjointed planning where the left hand plans things that the right hand, and absurdly, even the “head”, does not know. Where else can you find a government that suddenly declares a MOA-AD as a solution then retracts a few weeks thereafter? Like a fickle, it suddenly reverses its statement. It announces that it will not sign it “in any form” and states that it will shift be changed to “community based consultation”, and, then, changes strategy yet again to a Disarmament, Demobilisation, and Rehabilitation (DDR) program. This clearly shows a lack of long term comprehensive agenda.  

Having three distinct plans with only a few weeks of intervals shows a total lack of deep understanding and political will to solve to address this national problem; but, the present administration should not totally be blamed. It is the system itself that makes political survival and post-administration security the number one priority of any president. 

5. The “Associative” relationship is a “transition to independence.”

The decision of the court stated “In international practice, the ‘associated state’ arrangement has usually been used as a transitional device of former colonies on their way to full independence.”   

As regards to the transition aspect, the “associated” relationship was used by the British government as a transitional phase for its former colonies, most of whom were members of the short lived West Indies Federation. As colonies of the British Crown, they were inevitably on the way towards independence due to the process of decolonization after World War II. The British government themselves had the political will to grant independence. Almost all countries held as colonies by Western and European countries have ever since been granted independence.  

In the case of the Philippines, political will for the dismemberment of the country is an unimaginable option. The GRP and MILF negotiators may not have intended the “associative” relationship as a jumping board for independence. In law, the nature of contracts are not only defined by what they are called but more importantly by the elements present. Moreover, the basic characteristics present in the “associative” system are also present in the Senate Joint Resolution No. 10 as endorsed by 16 senators this year. In fact, the much feared power of being able to demand independence in an “associative” BJE is also present in the Federal proposal. The Senate proposal gives a State the right to secede upon approval of two thirds of Congress voting separately. Also, the “associative” power of having State police while external defense rests with the “central government” is also present in the proposed Federal system. So is more power given with regard to control of natural resource and having foreign economic ties. In essence actually, the BJE is an empowered version of the Bangsamoro State proposed by the Senate. 

While the Supreme Court has “killed” the proposed MOA by the Executive Department, the “spirit” of the MOA is still proposed by the Legislative Branch in the Federal system of government proposal. It is just waiting for its time to come. The Supreme Court had declared that only the Legislature and the people are endowed with the power to change the Constitution. It is beyond the power of the Executive to transgress. But then again, if the Country will have a new Charter after the 2010 elections, then the Supreme Court will have a new frame of reference in declaring unconstitutionality. What may be unconstitutional today, may not necessarily be unconstitutional a few years from now.  

The spirit of the MOA-AD lives on 

In summary, the spirit of the MOA survived. The Court merely required consultation, the proper IPRA procedures and restrained the President from giving promises it cannot keep. It also identified the Legislative and the people as the ones with the real power to give what the spirit of the MOA seeks. Therefore, the peace process should focus on being able to convince the legislative branch of government and the people to co-own aspects of the MOA that can lawfully be incorporated during the Charter Change.  

The Supreme Court decision can be viewed “as a light that shows the right way” instead of being perceived as the “executioner” of the peace process. With this decision, where does the path to peace go? The practical and feasible way is the Federal system of government proposal. Much of the points raised in the MOA can be accommodated in the Federal concept. The aspect on Ancestral domain, may at this point be pushed through the IPRA law.  

The urgent and important issue that must be addressed by the peace process, the proposed federal government or the present Administration is the problem of education in ARMM. Since education is the greatest equalizer amidst poverty, an “intensive-care” approach should be made in rehabilitating the educational system of ARMM. The government must elevate the principle of “Parens Patriae” to apply to the region and take responsibility over the deteriorating quality of education in ARMM which is debilitating the next Moro generations. 

According to Al Jazeera news channel, the father of President Barrack Hussein Obama was born and raised in one of the poorest communities in Africa, with no access to electricity and television. Since his grandmother and most of his relatives in Kenya are Muslims, he faced a double edged prejudice – first, as an African-American and second being associated to Muslims. Yet in spite of these negative stereotypes and being part of the minority, it was simply quality education that empowered the son of a poor African-American to become the most influential man on earth today. More amazing is that, it can happen in one generation. The fact that Obama got elected as President of the US shows that there is hope for change in this world. The spirit of change, emanating from the most powerful country in the world, may hopefully also spark the momentum of change in our Country. 

The aborted MOA signing should be taken as a positive change in the long history of war the Philippines. A recognized revolutionary armed group is willing have a paradigm shift to seriously believe in a negotiated agreement instead of an armed struggle. Although the GRP negotiators may be scolded for making gross mistakes, the MILF should still be given credit for believing in the democratic process. The burden of being within the bounds of the laws rested on the government and not with the MILF. Thus, the peace process should continue. But a real peace process must involve the government as a whole and its people.  

The fear of having part of the country secede, should be met with sincere effort to address the root causes that divide the country. Fear and military force should not be the iron chain that keeps this country together. It should be the universal love by the Country to all its citizens no matter what religion, ethnicity, and geographic location. The Moro people must be given a chance to be equal with his fellow Filipinos in all aspects:  in practice and not just in law – in reality and not just in the ideal sense. 

At the end of the day, the spirit of the MOA-AD will continue to find a way to be realized. The MOA proposal may have been stopped on its tracks by the Supreme Court, but the grievances and injustices that drove it still exist. Hence, as long as the spirit of the MOA-AD, which Archbishop Quevedo divided into three injustices, lives on and the gross inequality between the minority and majority remains, then there will always be a clamor for change and justice.  

The interconnected problems of wars, poverty and illiteracy are merely symptoms of deeper causes such as the aforementioned injustices. Only by addressing these injustices can we stop the vicious cycle of conflict that hampers development. While there are those who advocate justice by democratic means, most of them simply fall on deaf ears or are silenced. Consequently, only those who advocate with guns are heard. Thereafter, the government misinterprets this as purely a security problem which can only be resolved by “an all out war.” However, a military solution is only palliative in nature and will never address the issues raised nor solve the problem. If only the hundreds of billions of pesos spent on war is used to address the injustice to the Moro integral development, perhaps peace would be more within reach. 

Change and justice will never be achieved by having more blood spilled on the fertile lands of Mindanao, but by the ink of the pen on paper. In fact, Muslims are taught that “the ink of a scholar is holier than the blood of a martyr.” Undeniably, as the beginning of the injustice started with unjust laws and executive policies a century ago, justice can only be institutionalized by incorporating affirmative action into our Constitution, statutes and jurisprudence.  

More than quarter of a million people have already died due to the Mindanao conflict in the last five decades. How many more people must die by the bullets and bombs for a cause that only a pen can resolve? 

—
Comments regarding this article may be emailed to donloong@yahoo.com 

[Engr. Don Mustapha Arbison Loong is the President of WMSU Law Students’ Association, the former Provincial Administrator of Sulu, a US State Dept. International Visitor Alumni, a British Chevening Fellow to Bradford University, UK, an AIM Bridging Leadership Fellow, a former delegate to the South East Asian Conflict Studies Network in Thailand, an Outwardbound Global Leader to the peak Mt. Kilimanjaro, Tanzania, Africa, and the President of the Movement for Economic Development in Sulu Foundation, Inc. He is also one of the founding co-convenors of the Young Moro Professionals Network]

Dear All,

We don’t have money to further enrich the national dailies with a whole page AD.  So I do have to settle for alternative media prints “a la pobre”.  But it has the benefit of global interconnectedness.  Here’s my initial salvo to Frank’s ADS on MOA-AD.  I will elaborate my commentary much later.  For the sake of a broader debate, please help circulate this Open Letter on the MOA-AD.

Yours truly,
Datu Michael O. Mastura

An Open Letter
24 August 2008

My reply email was interrupted by a brownout amidst my composing thoughts I wanted to convey to our readers at the Mindanews website besides Luwaran website.  Hopefully someone from the editorial box of the national dailies (in particular PDI) will pick as news items warranting some space the legal views of lawyers (like me) who represent MILF as the real Party in interest across the GRP-MILF negotiating table.

The series of full page ADS in PDI 08/22/08 and PD 08/23/08 of former senate president Frank M. Drilon simplify and focus on perceived infringements to the 1987 Constitution.  Those two Q & A pages make up powerful arguments for the continuing extension of what I call the “colonisibility status” of the Bangsamoro people, posing the matter of immediate infringement as a danger.

If we think rationally out of the maddening reactive anti-Moro sentiments generated by opinion-editorials and hardly balanced media coverage of the Government-MILF peace process, it makes me reflect the ‘triumph of diplomacy’ in our era of postmodern states. [N. B. this phrase is taken from the title of a book on how the Moro rulers of the Magindanaw sultanate and the Sulu sultanate had survived the era of treaty-making with Spain, an imperial power, and Holland, a commercial power, of the time and the United States up to 1916, when President Woodrow Wilson enunciated seminal ideas of the right to self determination.] Thus, there is no occasion to speak of Balkanization of this ungovernable part of the region.

Now the Country (el Pais)—Las Islas Filipinas—has just awakened to the depth of the Bangsamoro legitimate GRIEVANCES.  Instead of killing the ideas—the CAUSE (or SABAB)—embodied in the MOA-AD, the representatives of Government must face up to the Agreed Text as STATECRAFT.  It vindicates the JUSTNESS of the ORIGINAL POSITIONS to fix in constitutional construct. Traditional Moro negri (statehood) ‘earned sovereignty’ is encapsulated by the Republic in its present form and structure as an autonomous entity presently in existence before the family of nations since 1946.

Spokespersons for that Sovereign state called the Republic of the Philippines (GRP) configure their constituencies into a political community.  Such an assumption neglects a number of contested constitutional issues before the negotiating table.

What is the “territorial integrity” of the Philippines? When reduced to geographic maps with proper technical coordinates, the fundamental question we formally raised at the GRP-MILF Talks are as follows:

1. Is the present national territorial delimitation based on the Treaty of Paris of 10 December 1898 as corrected by the Treaty of Washington of 7 November 1900 and the treaty between the United States and England on 2 January 1930? Or,
2. Is it the current technical description of the archipelagic doctrine based on R.A. 3046 of 1961, as amended by R.A 5446 of 1968 as a system of straight baselines, its negotiating position on boundary delimitations under the United Nations Law of the Sea Convention?

An act of statesmanship is to ‘write sovereignty’ in terms of the ‘associative ties’ envisaged in the MOA-AD.  We cannot proceed with a serious debate as if the meaning of sovereignty were stable; for, in reality, not one but various forms of sovereign statehood exist. There’s no confusing justice with legitimacy for workable arrangements here.  However, there’s a truncated understanding of sovereignty when 12 June 1898 was fixed by law as an episodic event, following the inauguration of Philippine independence on 4 July 1946. Article 1 of Title I of the Malolos Constitution succinctly reads: “The political association of all the Filipinos constitutes a nation, whose state is called the Philippine Republic”.  At that point in time, the Bangsamoro homeland was not a part of the whole Country, for as a matter of historical narrative that Republic invited the Sultan of Sulu and the Sultan of Magindanaw to federate with it.

What matters for us present generation of patriots is that Driion’s half-a-million-worth of PDI ADS highlights the absolute necessity for a change in the first principles of the unitary system. How do we, then, fit inter-subjective understandings of ‘statehood’?  Former senate president Drilon, at least, seriously confronts the arenas of debate over the MOA-AD, but why does he not concede to explore the course of constitutionalism beyond the status quo of the existing constitutional order? That is unfortunate, because, what is placed before the Supreme Court is a new “elegant formula” of negotiability to balance between state sovereign authority and the right to self determination.

We need to examine the MOA-AD on the foundation of the formal division of sovereignty that favors “state rights” that have inhered in the Bangsamoro people, whose ancestral homeland was “illegally and immorally annexed” to the Republic without their plebiscitary consent.  Peace negotiations are said to be “the war after the war”.  Here, too, there is a subtle but in-depth way of looking at what amount of central authority in point of fact is compatible with “what is worth dying for” in the eyes of the majority of Bangsamoros in the contemporary politics of identity.

This is what the MILF-GRP negotiation process is all about: to determine the extent and limits of each side’s commitments. Clearly the premise of peace with your Muslim brothers under the MOA-AD precisely does not endanger but entrench the Country’s sovereignty.  The MOA-AD achieves, rather than contemplates the use of naked coercive force, the desirable levers of division, allocation and distribution of powers; in other words, shared and residuary authorities for the Bangsamoro people and the rest of the Filipino people.  All I can advance for now as an explanatory note is that the “general welfare clause” of the Philippine Constitution matching the principle of maslaha wal mursalah in Islamic constitutionalism is a catch all framework to accommodate “a medley of associative ties and tiers”.

I will elaborate on these points in a separate commentary on specific provisions of the MOA on AD. If only a healthy environment for serious debate is not drowned out by the intrusion of the mass media into the negotiating process that now encourage the politics of fear at the Metro Manila capital while excessive use of force are applied to villages in Mindanao, we can peaceably settle the conflict in Mindanao.

All the best,
Datu Michael O. Mastura

Q. Are these recent clashes in North Cotabato and Lanao del Norte an offshoot of the failure to sign the MOA-AD?

A. I cannot help but arrive at that conclusion. You know, there are only two ways to resolve the conflict: either through military means or through negotiations. And apparently, after the cancellation of the signing of the MOA, the product of a dozen years of long and hard bargaining on both sides, perhaps, there are armed groups who feel it will already be hard to resolve the conflict by way of negotiations.

Q. Do you think the government and military should have anticipated that this would be the backlash from the Moro Islamic Liberation Front (MILF)?

A. I’m sure they’ve always been aware of the possibility of this happening. This situation is not new to them.

Q. Does it help the MILF if they undertake this kind of hostilities granted that they may have been frustrated?

A. I have to go back to the sentiments on the ground, both civil society as well as sentiments of people within the MILF as well as the other revolutionary movement, the MNLF. You have to bear in mind that the Mindanao peace process is three decades old. This started in 1976. The feeling on the ground is that, they had this 1976 Tripoli agreement, there was a 1996 peace agreement, but where did these end up? It ended up in failed implementation. When the MILF leadership undertook negotiations with the government, many in their ranks were already asking: why negotiate with the government when all the past peace agreements have never been implemented? So there’s always been skepticism among the [MILF] ranks in the peace process. And then at each stage of the peace process, each stage of the exploratory talks and formal talks, there has always been good results that both the MILF and government could present to their respective constituencies. But after all of those hard bargaining, those long years of negotiations, after they arrived at an agreement on how to resolve the conflict, suddenly, the Memorandum of Agreement on Ancestral Domain (MOA-AD) was blocked. So the skepticism that was present before is alive again. I think that’s what we’re seeing now.

Q. Were you privy to the details of the MOA-AD that was to be signed in KL?

A. There were several instances when I had attended very public forums where members of the GRP [government of the Republic of the Philippines] as well as members of the MILF gave the audience updates on what was going on.

Q. What about the contents of the draft MOA-AD?

A. We were given updates on what were the pending issues they discussed, they had resolved. My friends in the Mindanao People’s Caucus, for instance, organized several of these forums in Davao City , in Marawi City , and these very public consultations. And I also recalled that every time that the GRP and the MILF panels are about to meet, they always announce, they make a public announcement that we are about to meet.

Q. I guess the people back then should have already known about the more contentious issues such as the resource sharing agreement with the GRP-MILF, the inclusion of 700 barangays in an expanded Bangsamoro homeland. All of these were made public.

A. Some of these were made public. The forums I attended, these were staggered. They occurred over time. So depending on what the status of the negotiations at that time, that was what was divulged.

Q. Sen. Mar Roxas and Frank Drilon actually have an initialed copy of the MOA-AD, and they’re taking exceptions to several provisions there. For example, that the Bangsamoro Juridical Entity can now enter into separate treaties with foreign governments. And now, they’re saying that that’s totally unheard of for an autonomous homeland, to have that kind of sovereign power. Was that ever included in the consultations?

A. I think they refer not to treaties or all kinds of treaties. They referring to economic treaties, and this is not entirely unheard of. This is the kind of arrangement that they have in Belgium . For example, the Flemish region in Belgium is allowed to set up trade missions or enter into economic treaties with other countries.

Q. Like Quebec in Canada .

A. Yes, so let us bear in mind that the Philippines is not the only one that has an internal conflict in the whole world. So maybe we should learn at how this kind of problem has been tackled in other parts of the world. So I think that’s what the GRP and the MILF panels have borne in mind. And if I’m not mistaken, they’ve also mentioned Northern Ireland , for example, when it comes to a need to reexamine the Constitutional framework to resolve the conflict.

Q. It’s good you mentioned the Flemish territory in Belgium . But doesn’t it cause a lot of tension within Belgium ?

A. The tension that I’ve heard in Belgium is actually being managed by these sort of accommodations or arrangements. Because the Waloon region [of Belgium] can always tell the Flemish, why go for separation when you already enjoying these sovereign privileges? And I guess that’s what both the GRP and MILF panels had in mind when they agreed on this MOA-AD. I suppose what they were thinking was that, there would be no use, for now, to secede because all of these genuine…sort of tools would now be afforded or accorded to you rather than paper autonomy.

Q. But look at what’s happening now, when you see the MILF acting in a belligerent way, just because they’re frustrated, ,maybe this, to them, hopefully a hiccup in the peace talks, and then they finally give up all hope and resort to violence again. What does it say about giving a group like this the kind of powers that are contained in a MOA-AD? Isn’t it dangerous?

A. I will be frank with you. We ourselves are finding it hard to pacify these armed forces. We need to appeal for them to hold back, all the armed groups because, as they were saying, ‘We thought you said we should give negotiations a chance. We’ve been talking already for 12 years. We’ve already faced two all-out offensives already and then it ends up nowhere.’ We in civil society are finding it hard to pacify these armed groups. And I’m not just talking about the MILF, I’m also talking about the AFP. Our work is made much harder when we hear about much-publicized statements from our political leaders who say, if the MOA-AD is signed, there will be bloodshed, which we find completely illogical. Because what they’re saying is, if there’s a peace agreement, there won’t be peace. There will not be any peace. Whereas we are saying, if there’s a peace agreement, there will be peace.

Q. Let me play devil’s advocate. If you say it’s hard to pacify these groups, what we’ve seen is it’s the MILF that has been provoking these all-out wars. So it’s the MILF that is more difficult to restrain than the AFP.

A. I don’t want to take sides. I just want to say that when it comes to military solutions…we hear so many people say now, it’s time to go all out against the MILF. What I want to remind everyone is that every time we adopt a military solution, it never works. Remember that in the 1970s, we were under martial law, and President Marcos, with all the resources and powers he had in his hand, could not crush a hastily organized rebel army with very little training, with no battlefield experience, with very minimal equipment. And the military went against them during martial law. Here we are, three decades later, they are far more experienced, they have more equipment, what makes us think that they cannot put up a fight? What I’m afraid of is, they fought for two weeks in North Cotabato , we already have 160,000 internally-displaced refugees, extrapolate then. Let’s assume they continue fighting for two or three months. How many thousands or millions of refugees will we have? Remember, in year 2000, we had one million internally-displaced people, and these were World Bank and government figures.  In comparison, Bosnia only had 600,000, East Timor only had 300,000. What I’m trying to say is, if we do not deescalate the situation, we might end up becoming the Darfur [in Sudan] of southeast Asia.

Q. Right now, we have a Coordinating Committee on the Cessation of Hostilities (CCCH). So far, we haven’t heard from it. If that committee does its job, then it should defuse the situation.

A. I remember one instance when I talked to a member of the CCCH. This was about Cotabato. This was when a Civilian Volunteer Organization and the MILF were fighting. The MILF were farmers in that area; the CVO members were also farmers in the barangay. There was fighting and it was reported to the Joint Ceasefire Committee. The committee came in and it was told by the CVOs, “We don’t recognize any captain. We don’t recognize any ceasefire committee.” So, the problem is, the public in Manila who don’t know any better, who are not immersed on the ground, who don’t know what’s happening, it’s very easy for them to be manipulated. It’s very easy for public opinion to be manipulated nowadays. Because we know that in times of war, the first casualty is truth. I would advise our friends in media to get a direct line to the CCCH so we will know what’s really happening. Let’s not rely…our sources of information should not depend on groups that are taking advantage of the conflict. We have so many groups who feel that their interests, whether economic or political, will be affected negatively by the peace process. I’ve always said the reason why there’s still no signing of a peace agreement is that….I’ve always said that if the government panel, as well as the MILF panel were left on their own to decide if they should sign the agreement, they would have done that two years ago. They just couldn’t sign it because they’re afraid. There are powerful economic and political forces who genuinely feel that their interests, political and economic may be adversely affected by the Mindanao peace process. Because we are talking here of returning the ancestral domain of the Moros themselves. Now, let’s ask ourselves: who are enjoying now the fruits of these ancestral domain? Who owns the mineral rights? Who has tens of thousands of hectares per DENR records in Mindanao ? How would you think they feel, now that the government is about to return the ancestral domain back to the Moros?

Q. But were they consulted in the first place?

A. If they had been consulted, what do you think they would say? Our friends in Zamboanga are complaining, they’re saying they were not consulted. But later, they said, they were. And they’ve said no. Apparently, what they mean by consultation is, to them, they are consulted if the government takes their position. In layman’s term, when we ask, what do you think? It doesn’t necessarily mean that I would have to adopt your position. But to them, they say that since they have already expressed their views in a public forum, albeit informally, their position is, the government should adopt their position. The problem is, if you’re in the GRP or MILF panel, if you try to accommodate everyone’s interest into this agreement, without asking anyone to make sacrifices or compromises, we will never arrive at any peace agreement. And what we saw today, it will continue to grow.

Q. How can this be resolved? The President has already ordered an all-out offensive. The military says it’s not going to stop because it’s already got the upper hand. Even local officials say it’s got to stop now. When do you think it’s going to stop?

A. I myself am hoping everything dies down, everbody calms down. How is it going to stop? There has to be…we have to show to everyone that there is a big constituency for peace. As of now, what’s being given air space and print space are the anti-MOA and the MILF. And both of them are either saying, if there’s no MOA, there’s going to be war. Or if there’s MOA, there’s going to be war. Right? Perhaps, it’s about time, the silent majority, if there is really a silent majority in support of the peace process, or the peaceful resolution of the conflict, maybe now is the time, now more than ever is the time for us to come out and say to everyone, say to these groups, say to those who would rather resolve the conflict by armed means, ‘Wait, there’s a big constituency in support of a peaceful resolution of whatever grievances, Bangsamoro grievances you have there.’