Is there hope for peace after the SC decision on the MOA-AD?

By Maugan Buat Mosaid, Ph.D.

Dura lex sed lex

“The law is hard, but it is the law”. So goes that Latin legal maxim.

The Supreme Court decided that the Memorandum of Agreement on Ancestral Domain (MOA-AD), which was supposed to be signed by the GRP and MILF panels last August 5, 2008, was not consistent with the Constitution and existing laws. Its implications, notwithstanding, the decision was part of a “dura lex sed lex” nature of the legal domain.

Plain citizens, some members of the clergy, lawyers and non-lawyers reacted in various ways on the decision of the Supreme Court. The petitioners got their day in court and celebrated thereafter while those who have seen the wisdom behind the MOA-AD can only respect the decision while they ponder on with some degree of disbelief and awe. Pat Diaz, an avid follower of the peace process, like me, said, “on legal grounds, the Court may be right; but, on the import of the MOA-AD, the Court is wrong.” I agree. Not all that is legal is right, not all that is right is moral. In the same notion, not all that is unconstitutional is wrong.

The decision came out with a very slim margin of 8-7 vote and out of the 8 concurring votes two Justices concurred with separate opinions. From the looks of it, even the decision was hard by itself. We can only surmise that those who concurred must have succinctly trained their eyes purely on the legal dimension of what they have to decide on. Nothing else, for if they had considered their victim, that is, the MOA-AD, they must have joined the dissenters.

Those who realized how at a snap of the powerful legalese finger of the Supreme Court a supposedly monumental document like the MOA-AD can be zapped to naught are lamenting at how the MOA-AD met its fate. Dura lex, sed lex.

Irreversible

There is no way to refute, much more question the wisdom of the Supreme Court Justices who concurred with the decision written by Justice Conchita Carpio-Morales. The Supreme Court is the final arbiter of legal issues; there is no other recourse, except that, at least, we can write about it. The decision has already made its indelible mark in the annals of our jurisprudence. That is irreversible. At this point, we can only imagine the implications and how the members of both panels must have felt after working day in and day out to resolve conscientious and recurring issues which brought the MOA-AD into the form that it was.

But with the Supreme Court decision, it would be hard to imagine how after all those earnest endeavors and hard-earned consensus were achieved by both panels, everything could just end up to naught. How wasteful, how resentful!

Thinking “out of the box”

From the beginning both the GRP and the MILF peace panels realized that if they allow the Constitution to stand in the way of the negotiations they will not be at liberty to discuss the issues in the manner that they would wish to. But doing so was not easy. There was hard bargaining from both sides on top of the consensus building aspect and trade-offs that followed if only to make the ‘talks’ proceed and the peace process prosper. When both parties decided to sit at the negotiating table, there was a compromise. On one side was the MILF which agreed not to raise the issue of Moro independence in the negotiation; on the other side was the GRP which, to balance the MILF’s concession, agreed not to invoke the Philippine Constitution as framework for negotiation. Fair enough.

Compromise

To illustrate this point further, there was a compromise by both sides in the course of the peace talks. While the Bangsamoro people have valid historical sovereign claims to their ancestral domain and homeland comprising the whole of Mindanao, Sulu and Palawan which, albeit grudgingly, even the GRP acknowledged, the MILF, for the sake of ‘balanced compromise’ and practicality, has substantially reduced the scope of this claim to areas, territories and provinces where the Bangsamoro people are still the majority. The larger part of Mindanao shall remain as it is.

Another example is the matter of Bangsamoro right of self-determination. Much can be said about this matter but suffice to say that the right of self-determination is a legitimate right accorded to all peoples and nations under international law. It is, in fact, a human right which the GRP, or the MILF for that matter, cannot deny and suppress.

That both parties, therefore, have accepted the fact that the issue of Moro right of self-determination has to be eventually addressed by the peace negotiation whether now or in the future is quite explicit and unequivocal not only in the Tripoli Agreement on Peace of 2001 but more so in the official communication of then GRP Peace Panel chair, Secretary Silvestre Afable, Jr., to Mohaghir Iqbal, MILF Peace Panel chairman, on November 9, 2006 reaffirming the GRP’s recognition of Moro right of self-determination.

The rule governing the negotiation, notwithstanding, even the issue of right of self-determination had to undergo the process of give-and-take. The principle of right of self-determination cannot be subjected to compromise, but, the time frame and modality for the exercise thereof can be formulated to conform to the mutual liking of both parties.

Implications

With the Supreme Court decision, one of the implications is that the Constitution is now an inevitable instrument in all future peace negotiations and all existing laws of the land shall have to be the rule of the game. “Restricting the peace negotiation to the Constitution is not negotiation but dictation”, says Pat Diaz. Not only that. This also means that future negotiators are not allowed to agree on matters that would tend to amend the Constitution, plain and simple.

And now with very little space left for future peace negotiators to move around with, I am afraid that no one would be enticed to join both peace panels and spend time, resources and energy to engage in lengthy negotiation whose fate is already predictable. One of the reasons why there is negotiation is because no one is certain about its outcome.

Gone were the days when the Bangsamoro used to enjoy full rights to their ‘sovereign homeland’. Now, they see that past as their only hope for the future. But the laws crafted by the ‘majority’ Filipinos many years thereafter, including the Constitution, have overtaken that right. And now, they (the Bangsamoro) did not only lose that right; they cannot reclaim it anymore because recently crafted laws of the land would no longer allow that.

Apparently, any creative attempt to strike a political solution to the Bangsamoro issue under the present circumstances has gone down the river. For that matter, there are indications that the MILF will also disband its peace panel anytime soon.

Iota of hope, but..

If there is an iota of hope that can be gleaned from the SC decision, it was because the Court did offer that: “The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace… 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.” Considering this one, the only problem would be Malacanang after it pronounced that it will not sign the MOA-AD in its present or any other form. Not only this. Those who had considered the MOA-AD a ‘poison’ are closely watching by. Any revival of the MOA-AD, or anything like it, is prone to attack.
Add to this the DDR (demobilization, disarmament, reintegration) as a precondition set by the national government before any peace talk can take place. With this imposition, all sensible persons have begun to doubt the sincerity of the national government in concluding peace with the Moro fronts. No rebel organization, in its right mind, will disarm and disintegrate first before negotiating peace. The DDR, from what we see anywhere in the world, is one of the by-products of peace negotiations, not a precondition.

Given this, the Bangsamoro has turned to the larger and more sensible body of civilized nations – the United Nations, to have a hand in the Mindanao peace process. A consortium of Bangsamoro civil society organizations had recently urged UN Secretary General Ban Ki-Moon to call on the GRP and the MILF to stop the war and resume the peace talks. The UN is the last resort of hope for the Bangsamoro to regain its birthright because in a situation where the majority lords it over the minority, there can be no fair and just settlement that can be expected, and not to mention the so-called “tyranny of the majority” or the game of numbers that is the rule in the Congress of the Philippines.

Let’s hope that there is still hope left after the Supreme Court decision. It was a significant decision, but certainly “not one of the best decisions of 2008” (Fr. Bernas).

On the whole, unless the current paradigm of the Arroyo peace strategy is modified, we see a bleak future for the peace process in Mindanao.
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(Dr. Maugan Buat Mosaid holds a doctorate degree in rural development. He is a social researcher, freelance writer and teaches in the graduate school.)