Silencing peace: The story of MOA-AD

OPINION By SEDFREY CANDELARIA
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There was never any intention to create ‘a republic within the republic’

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Amidst the rumblings surrounding the aborted signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD), the nation once again finds itself in a dilemma on whether to pursue the peace process or resort to military solution to finally put an end to the armed conflict in Mindanao.

As we await the Supreme Court’s pronouncement on matters raised against the MOA-AD, it is perhaps high time to look at the MOA-AD in its proper context devoid of prejudices, stereotyping, political color, unfounded fear and speculation as we have witnessed the past four weeks. Only through the prism of disinterested passion and with the highest regard for a just and lasting peace could we responsibly deliberate upon genuine solutions to the present armed conflict with the MILF.

Background

A basic understanding on how peace negotiations around the world are presently conducted will be instructive, specifically for those uninitiated in the process, as a starting point to put the MOA-AD in the proper context.

It is commonplace today to see peace negotiations divided in stages, namely: pre-negotiation, preliminary agreement, comprehensive framework and implementation. The agreement on ceasefire may come in sometimes early on in the talks or during the agreement on final cessation of hostilities at the last stage of the negotiations.

In the case of the talks with MILF, prior to the discussions on the MOA-AD, it is crucial to note that the MILF had entered into a ceasefire agreement and subject to the supervision by an International Monitoring Team led by the Malaysians. After 2003, Mindanao had enjoyed considerable calm and very low level of violence on account of this ceasefire.

The MOA-AD is not a stand-alone document but constitutes a codification of consensus points (e.g. principles, territory, and resources) prior to Governance and the Comprehensive Compact. It is the result of more than a hundred consultative dialogues or fora with various stakeholders conducted by the GRP Panel spread to about 3-4 years, inclusive of the periodic technical working group meetings here and abroad between the Parties.

Joint statements are released to the public on key issues tackled after every exploratory talk. The GRP Panel is also in receipt of local government resolutions, statements and memoranda expressing their sentiments on the key issues (for example, opposition to inclusion in Bangsamoro Homeland and the need for consultations, adding representatives to the Panel, etc, …)

Structure of the MOA-AD and substantive issues covered

Discussions on the MOA-AD hit a snag for about a year on the matter of territory before November of 2007. The final codification process of consensus points on the MOA-AD was completed thereafter.

By early 2008, the two Panels have arrived at an understanding of the final text of the MOA-AD and a thorough review of its legal implications, particularly on the needed appropriate legal processes which may be undertaken by the GRP side to address the proposals contained in the MOA-AD.

Judging from the various Supreme Court justices’ interpellations of the counsels for both the petitioners and the respondents, the following contentious issues are worth examining in seriatim: (a) legal characterization of the MOA-AD; (b) status of the Bangsamoro Juridical Entity (BJE); and, (c) authority of the GRP Panel to negotiate and sign the MOA-AD.

Legal characterization of MOA-AD

There were several attempts by petitioners during the oral arguments to advance the theory that the MOA-AD is classified as a treaty under international law.

The rule laid down under the Vienna Convention on the Law of Treaties is that an international agreement must be entered into by two states in writing and governed by international law. Petitioners’ argument immediately fails this test because the MOA-AD is one entered into between a state and a non-state entity.

Related to this is the difficulty of characterizing it under municipal law as an ordinary contract because of the political character of the obligations arising from it. Thus, even the matter of governing law and applicable remedial measures would now be a serious legal concern when attempting to enforce this type of instrument.

Elsewhere, it has been observed by Christine Bell that, “(a) lack of legal formality enables parties to avoid the appearance of commitment to compromise, which could undermine the move toward talks and give ammunition to dissenters and outbidders…” She maintains that peace agreements “do not easily fit within traditional legal categories.”

The MOA-AD contains the following crucial provision which may also explain the unique and non-self-executing character of the document:

“The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of the Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to the non derogation of prior agreements and within the stipulated time frame to be contained in the Comprehensive Compact.”

The practice of negotiating peace agreements confirms that “(b)y their nature, implementation agreements involve new negotiations…as parties test whether they can claw back concessions made at an early stage.” Therefore, the tentative character of the principles, concepts and framework may evolve as the parties continue to move to the next stage of the negotiations.

Status of the BJE

A series of discussions ensued on the matter of creation of a new state as a result of the MOA-AD.

In this regard, the Montevideo Convention of 1933 provides for the qualifications of a state: (1) permanent population; (2) a defined territory; (3) a government that is in effective control of its territory and independent of any other authority; and, (4) a capacity to enter into relations with other states.

Nowhere in the MOA-AD could one derive that all the requisites (of an independent state) are present. On the contrary, the reference to “Central Government” and the need to undertake legal processes within the GRP confirm the hierarchical relationship similar to an empowered autonomous region which already exists in our Constitution. Perhaps, the petitioners were harping at the “state-in-the-making” theory which is highly speculative in nature.

Nothing in the MOA-AD grants territory to the BJE without the benefit of plebiscites at three levels: the more than 700 barangays in Category A (within 12 months from signing of MOA-AD), Category B (not earlier than 25 years from the signing of the Comprehensive Compact) and the implementation of the BJE after the Comprehensive Compact. There were reasonable criteria for choosing the areas subject of the plebiscites such as: historical, population patterns, contiguity, and functionality.

Secession was never an issue between the two Panels. It is even more instructive to note that the current Senate Joint Resolution No. 10 initiated by Sen. Pimentel, et. al. on the establishment of a Federal System of Government, including a Bangsamoro State, provides the right to secede for every state. Not even the MOA-AD went this far!

Clearly, there was never any intention to create “a republic within the republic.” It may be recalled that this was practically the same fear expressed when the Indigenous Peoples’ Rights Act of 1997 (IPRA) was questioned before the Supreme Court on the matter of ancestral domain claim based on native title.

But vested property rights of all are, in fact, respected in both IPRA and the MOA-AD. The free choice of indigenous peoples inside BJE is also assured, i.e they may continue to enjoy their stay inside their own ancestral domain as this constitutes clear vested right.

Those inside the political subdivisions to be constituted within the BJE will be governed by the principles of equality of peoples and mutual respect and guaranteed protection of their civil, political, economic and cultural rights.

Authority of the GRP Panel to negotiate and to sign the MOA The premise of most peace negotiations is to address key issues in the conflict. In some cases, law reform initiatives or even constitutional amendments result from political commitments or settlement.

When the GRP and MILF Panels came to the negotiating table, they were driven by what is possible and not by what is unthinkable.

Under E.O. No. 125 (September 15, 1993) and E.O. No. 3 (February 28, 2001), the comprehensive peace process may require administrative action, new legislation or even constitutional amendments. These are well within the mandate of the GRP Panel to submit by way of recommendations to the Executive as a result of discussions at the negotiating table. Thereafter, the Executive may consider these for appropriate coordination with the Legislative Branch which may now undertake the necessary legal processes.

In summary, there was never any attempt to supplant the powers of a co-equal branch of the Government by entering into the MOA-AD.

The way forward

After weeks of fingerpointing and costly armed engagements resulting to loss of innocent lives, it is the hope of any responsible and peace-loving citizen to find durable solutions instead of inflaming deep-rooted biases and misconceptions. As peace negotiators, the eye for breakthroughs even in the most trying moments of the process will remain focused and unrelenting.

Justice will have to be served in so far as the atrocities committed by rogue MILF elements are concerned. Confidence building and trust will have to be creatively worked on once again.

In the end, the process of achieving peace is beyond the MOA-AD signing. One may silence the MOA-AD, but not peace itself.

The author is chief legal consultant of the GRP peace panel for talks with the MILF.