On the SC Decision & Re-framing the MOA-AD
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FROM "Behind Hope, Fears" by PAT DIAZ (4/6/13):
From Day One of the GPH-MILF negotiation under President Aquino III [“GRP-MILF” from 1997 to June, 2010 under Presidents Ramos, Estrada and Arroyo] the MILF position has been anchored on the Memorandum of Agreement on Ancestral Domain reframed as suggested in the Supreme Court Decision.
FROM "MILF View of the TransCom" by PAT DIAZ (4/16/13):
MILF will accept only a political settlement that will solve the Bangsamoro Problem. This solution was agreed in the Memorandum of Agreement on Ancestral Domain which was only a framework of a Comprehensive Compact.In declaring it unconstitutional, the Supreme Court did not nullify it but ruled it could be reframed as a peace agreement between Government and MILF.That MILF did and presented it complete with annexes in an organic law format to the Aquino peace panel as its proposed draft agreement.
The government panel rejected the draft in its format but after months of negotiation signed the FAB which if closely examined is basically the reframe of the MILF peace draft minus the annexes – the reframe of the reframed MOA-AD. This Government can commit and has given; this MILF has accepted. While MILF is ready to sign the Annexes, Government is not – still deciding what to commit and give.
1. The 2008 Supreme Court (SC) Decision in Province of North Cotabato vs. GRP Peace Panel (568 SCRA 402), in declaring the MOA-AD "CONTRARY TO LAW AND THE CONSTITUTION," in effect NULLIFIED it as far as the GPH is concerned because for the GPH what is "contrary to law and the Constitution" is NULL AND VOID. On this basis, for the GPH, the MOA-AD is NOT a "prior peace agreement." For the MILF to treat it so (IF it does so treat it) indicates that there is NO meeting of the minds between the GPH and MILF on this point. There is DEFINITELY no meeting of the minds when the GPH treats the MOA-AD as DEAD, while the MILF treats it as ALIVE.
2. It can NOT be said that the SC Decision "suggested" that the MOA-AD be reframed or "ruled it could be reframed as a peace agreement..." The SC Decision did NOT use the word "reframe." It merely said that an agreement on ancestral domain could be renegotiated because that agenda is indicated by the then mother Tripoli Agreement on Peace of 2001. And that the renegotiated version "could contain similar or significantly drastic provisions (or "significantly dissimilar provisions compared to the original") -- which do NOT necessarily connote reframing.
The relevant passages of the SC Decision appear twice therein:
a. In page 463 of Vol. 568 of the Supreme Court Reports Annotated (SCRA), under the section "Need to formulate principles-guidelines," there is this sentence: "Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions." [underscoring and boldface in the original]
And this is followed by a sentence which ends with this phrase: "it [the SC] is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain." [underscoring and boldface in the original] This in fact is the rationale of the SC to decide the MOA-AD case on the merits -- notwithstanding the executive's mid-case policy decision not to sign the MOA-AD -- in order to guide subsequent negotiations on ancestral domain (but actually not just on ancestral domain).
b. In page 519 of Vol. 568 of the SCRA, under the last section, the "Summary," there is this paragraph: "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."
To repeat, the quoted passages are NOT "suggestions" or "rulings" for the reframing of the MOA-AD
3. The closest reference to reframing the MOA-AD after the SC Decision can be found in two GRP-MILF peace documents during the time of the Seguis GRP panel under President Arroyo:
a. Joint Statement of 29 July 2009, Point 2 among 4 points of agreement: "Acknowledgement 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 ofmoving towards the comprehensive compact to bring about a negotiated political settlement" (underscorings mine).
-- What does the said joint "acknowledgement" of the MOA-AD signify in terms of its status as a document? This is subject to debate, to say the least.
-- What was agreed to be reframed was "the consensus points" and not the MOA-AD itself, although the consensus points obviously refer to those accumulated under the four strands of concept, territory, resources and governance during the 2005-08 GRP-MILF negotiations on the Ancestral Domain Aspect leading to the MOA-AD.
-- These said consensus points would be reframed eventually into the comprehensive compact which leapfrogs the phase of a separate prior agreement on ancestral domain.
b. Declaration of Continuity for Peace Negotiation dated 3 June 2010: "In reframing the consensus points on Ancestral Domain, respect the existing property and community rights taking into account in particular the rights of indigenous people in accordance with the UN Declaration on Rights of Indigenous Peoples."
-- It is clearer here that the "consensus points" to be "reframed" are those "on Ancestral Domain," which consensus points came under the above-said four strands.
-- One clear reference (not necessarily the only reference) for this reframing is the UN DRIP, which incidentally was extensively quoted and discussed in the SC Decision on the MOA-AD.
4. Under President Aquino and the Leonen GPH panel, the key GPH-MILF peace document before the Framework Agreement on the Bangsamoro (FAB) of 15 October 2012 was the GPH-MILF Decision Points on Principles of 24 April 2012. But in both these documents, there is no articulation of the term and concept of ancestral domain, even as certain of its strands such as territory, resources (wealth-sharing) and governance (power-sharing) are dealt with. Some questions:
-- A comprehensive agreement will leapfrog a separate prior agreement on ancestral domain (which was what the MOA-AD would have been). But does this mean that the comprehensive agreement itself need not deal with the concept of ancestral domain? Is the Ancestral Domain Aspect indicated in the previous mother Tripoli Agreement on Peace of 2001 no longer controlling? Has the latter been superseded by the FAB?
-- Has ancestral domain as a concept been in effect reframed in the FAB such that the very term "ancestral domain" need no longer be used? If so, how or in what way was the concept of ancestral domain reframed in the FAB?
-- Can the FAB's Annexes (which are supposed to fill in the details of the framework) deal with such a basic concern as ancestral domain when the term and concept are not found in the FAB framework itself?
-- Let us say that, for various valid reasons, ancestral domain and even some other important substantive concepts that are not in the FAB cannot be somehow "accommodated and entrenched" in its Annexes. What then is the Plan B for this eventuality?
5. Pat Diaz says "the FAB which if closely examined is basically the reframe of the MILF peace draft minus the annexes -- the reframe of the reframed MOA-AD." There are actually some conservatives in the GPH side who preceive the FAB similarly, i.e, as a "reincarnation" of the MOA-AD, aware also, as Pat says, that "From Day One of the GPH-MILF peace negotiation under President Aquino III... the MILF position has been anchored on the MOA-AD reframed." How accurate or correct is the view that the FAB is basically a reframed MOA-AD? Much as the MILF (and for that matter GPH conservatives) may be looking at it that way, there are some reasons to doubt this view.
-- To start with, there is no articulation in the FAB of the term and concept of ancestral domain which was central to the MOA-AD.
-- What the SC Decision found to be the "underlying concept" and "animating spirit" of the MOA-AD -- an "associative relationship" -- is not found in the FAB which, since it does not require constitutional amendments (acc. the GPH, which is presumed to know its Constitution), would still be framed by the existing constitutional provisions on autonomous regions under a national unitary system of government.
-- Precisely, the SC Decision and the MOA-AD itself both saw that constitutional amendments would be necessary to effectuate the MOA-AD and its Bangsamoro Juridical Entity (BJE). The FAB's road map does not envision constitutional amendments, only a Bangsamoro Basic Law (still under the existing Constitution), to establish a new autonomous political entity called Bangsamoro.
We don't really know for now but some of the above-indicated differences of view, unclear points and posed questions may be partly behind the current prolonged delay in the GPH-MILF negotiations on the remaining Annexes to the FAB that altogether are supposed to constitute a comprehensive agreement. Ultimately, to finally and truly comprehensively solve the Bangsamoro problem, the GPH will sooner or later have to "think outside the box" of the present Constitution (and the present administration), while the MILF should also "think outside the box" of the MOA-AD (and the present administration).
Soliman M. Santos, Jr. is a long-time Bicolano human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer especially for and on the Mindanao peace process, with several books on this, among them The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001; with 2nd printing, 2009), Dynamics and Directions of the GRP-MILF Peace Negotiations (AFRIM, 2005), and In Defense of and Thinking Beyond the GRP-MILF MOA-AD (AFRIM, 2011). He is presently Presiding Judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, both in Camarines Sur.