Atty. Soliman Santos Jr.
Manila Times

1. Is the memorandum of agreement on ancestral domain (MOA-AD) the Final Peace Agreement?

No. It is a sub agreement on the third substantive aspect identified by the Parties under the Government of the Republic of the Philippines (GRP)—Moro Islamic Liberation Front (MILF) Tripoli Agreement on Peace of 2001. Once the MOA-AD is signed, the Panels will move on to discuss the issues that will be carried to the final peace accord (or Comprehensive Compact).

2. In brief, what does the MOA-AD contain?

It contains general principles concerning, among others, Bangsamoro identity and rights, the establishment of a genuine self-governance system appropriate for them, the areas to be placed under this self-governance system, and the protection and utilization of resources found therein.

3. Is the concept of “ancestral domain” discussed in the negotiations the same concept as in the Indigenous Peoples Rights Act (or IPRA, R.A. 8371)?

No. While “ancestral domain” in the context of IPRA is tenurial (i.e. recognition and protection of traditional collective land areas—or domain—belonging to an IP clan/group), the issue of “ancestral domain” in the context of the GRP-MILF negotiations has a political dimension.

Under IPRA, an IP clan/group claiming a certain area of land as their ancestral domain or ancestral land will ideally be awarded certificates of ancestral domain/land title (CADT or CALT) to show their collective ownership of the area. They are therefore entitled to certain rights over their ancestral domain/land, such as the right of ownership, the right to regulate the entry of migrants, priority rights in utilizing resources, a share in the revenue derived from the utilization of resources by other parties, etc.

In the GRP-MILF negotiations, areas identified are those that will be placed under the political jurisdiction of the prospective Bangsamoro self-governance system (generically termed as a Bangsamoro juridical entity or BJE).

4. What are these so-called “Consensus Points” in MOA-AD negotiations?

These are agreements in principle reached by Parties during the initial stages of discussions on AD (Seventh and Ninth Exploratory Talks in 2005). Consisting 26 items of general ideas and concepts, the consensus points provide the overall parameters and foundation of AD discussions. These consensus points have since been carried over and/or expanded into the present draft MOA-AD.

5. Why is there so much confidentiality involved in the negotiations?

Since the start of the negotiations, the GRP and MILF Panels, along with the Malaysian facilitators, have adopted a set of protocols meant to foster the confidence and trust of the Parties at the negotiating table. Among these is a mutual understanding that all pending matters under negotiation are kept confidential in order to avoid preempting the substantive discussions and undermining the integrity of the talks.

Since 2001, however, the GRP Panel has been providing regular updates on the peace process to strategic audiences, and in the process avail of views and insights from the ground.

Actual deliberations over the text of the draft MOA-AD itself started during the 11th Exploratory Talks in March 2006 and continues to this day. The deliberations had been punctuated at times by periods of impasse or cancellations in previously scheduled talks. Presently, there are around 31 items of agreed text on the draft AD MOA, and three additional residual items awaiting formal resolution.

6. Are the MOA-AD and the prospective Comprehensive Compact unconstitutional?

No. Although the agreement will contain provisions that ultimately describe the relationship between the Central Government and the BJE, it also indicates clearly that it is prospective and non-executory.

In the extensive legal consultations conducted by the GRP Panel with various experts, it was found out that the self-governance system for the Bangsamoro people (i.e. BJE) being proposed by the MILF will contain elements having Constitutional implications. Indeed, people will always view their aspirations and collective vision beyond any legal prism.

Notwithstanding the above, however, the agreement will also recognize that provisions requiring possible amendments to the existing legal framework shall be executory only after we are able to effect the necessary changes to the legal framework.

7. What is the Bangsamoro Juri­di­cal Entity?

“Bangsamoro juridical entity” is a generic term referring to the proposed self-governance system contemplated under the GRP-MILF peace negotiations.

8. What is the difference between the Autonomous Region in Muslim Mindanao (ARMM) and BJE?

The ARMM is the self-governance system for the Bangsamoro people under the 1986 Philippine Constitution and RA 9054 “The Expanded ARMM.”

If and when a final peace agreement with the MILF is signed, eventually the ARMM will be transitioned into the BJE. The BJE is envisioned to enjoy more autonomy, more powers and more territory.

The powers to be devolved to the prospective BJE touches on a range of familiar issues such as executive, legislative and judicial arrangements, powers over taxation, fiscal authority, institution building, revenue sharing, representation in National Government on matters directly affecting the BJE, etc. However, the details of all these will still be the subject of future discussions in the Final Peace Agreement called the Comprehensive Compact.

9. What happens, therefore, to the implementation of the 1996 GRP-MNLF Final Peace Agreement (FPA)? How can Government implement the 1996 GRP-MNLF FPA and the prospective GRP-MILF final agreement when we are talking of the same people, the same area and the same self-governance system for the Bangsamoro people?

In a broader sense, the prospective BJE intends to be the fulfillment of the Bangsamoro people’s struggle for their rights and aspirations—begun by the Moro National Liberation Front (MNLF) and pushed to completion by the MILF.

The 1996 FPA will continue to be implemented until the implementation process achieves full closure. Government will build on the ARMM setup in order to fulfill its commitment under the prospective GRP-MILF agreements, even as it will seek later on to transform the ARMM into the BJE. Second, GRP’s track record in implementing the 1996 FPA will also reflect on its political will to implement a prospective agreement with the MILF.

Both the ARMM and the contemplated BJE belong to the Bangsamoro people, and neither to the MNLF nor the MILF. The objective of their armed struggle is the advancement of the Bangsamoro people’s rights and aspirations. If either the ARMM or BJE proves to be the path to attain this objective, then the struggle would have been won.

But for the vision to work, the entire Bangsamoro people—MNLF, MILF, local political leaders, traditional leaders, community members, individual tribes—must all reach out to one another and forge for themselves a modus vivendi, and a common direction in pursuing their political and socioeconomic destiny.

10. Who will govern the prospective BJE when it is finally in place?

Those who will be chosen by the people within. The same principles respecting the fundamental right of the constituents to choose their leaders will be respected.

11. What areas will be included in the BJE?

The areas under contemplation include the following: (a) the present geographic area of ARMM; (b) municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal, in Lanao del Norte that voted “yes” in 2001 plebiscite and; (c) around 735 barangays wherein a plebiscite will eventually be conducted

12. Will Indigenous Peoples (IPs) be included in the BJE?

Inclusion of areas into the BJE will require a plebiscite to be administered to all affected communities and residents—Moros, settlers and Lumads. If a community, by virtue of plebiscitary consent, decides in favor of inclusion, then it will be respected.

13. Will the BJE be given ownership of its own maritime areas?

No. Rather, the BJE and the component local governments within shall have jurisdiction over the management and utilization of natural resources within the 15-km municipal waters. This is consistent with rights of local governments over municipal waters, and IP rights over ancestral waters, which are all still part of the internal waters of the Philippines.

The GRP is also looking into joint management arrangements over strategic resources (i.e. oil, natural gas) found in territorial waters extending immediately beyond the 15-km zone under the BJE. Again, it must be pointed out that this prospective arrangement will only be effected if and when we are able to effect the necessary changes to our legal framework.

14. Will BJE have jurisdiction over the natural resources found therein like timber, mines, etc?

Yes. In fact, such powers are already granted to the present autonomous government. They can even regulate certain activities within the area, such as logging operations for instance.

15. What will happen to operating licenses and similar instruments (like Industrial Forest Management Agreements, Technical Licenses Agreement, etc.) already issued beforehand?

These will continue to operate until they either expire, revoked with due cause, or renewed. The MOA-AD will have an explicit provision respecting all existing and vested property rights.

16. Will private properties of settlers and ancestral domains of IPs be confiscated from them later on?

No. Again, the MOA-AD will have an explicit provision respecting all existing and vested property rights.

17. Will MILF fighters be integrated into the Armed Forces of the Philippines or the Philippine National Police (PNP)?

The Parties have not yet discussed this specific issue at the negotiating table. There are arrangements for an internal security force in the prospective BJE, and this issue is similar to what transpired during the negotiations with the MNLF. Again, this will be taken up in the discussions at the Comprehensive Compact stage.

For the GRP, we intend to put forward proposals on a long-term framework for the normalization of communities. This must run alongside a comprehensive government program to eliminate the proliferation of loose firearms in Mindanao.

18. What is the nature of the internal security force contemplated in the BJE?

There are no detailed discussions on this issue yet. As a starting point for the GRP, however, we can make use of a precedent found in Sec. 2, Art. XIII of Republic Act 9054 (ARMM Organic Charter) concerning the Special Regional Security Force (SRSF). Under this arrangement for example, the SRSF is composed of existing PNP units, the MNLF elements, and other residents of the area who would opt to join in following certain recruitment standards. Of course, said structure is ultimately under the general supervision of the national government.

19. Will the Panels eventually discuss the disarmament, demobilization and reintegration (DDR) of the MILF?

The Government will push for discussions on DDR at the appropriate juncture of the negotiations on the FPA stage.

We have learned from the MNLF experience that in the absence of a well-designed and holistic DDR component in the peace agreement, some fighters still tend to resort to violence when the implementation process encounters difficulties and delays, or when they do not benefit tangibly from the fruits of a peace settlement.

Peace process models in other parts of the world (Sin Feinn in Northern Ireland, GAM in Aceh, FRETELIN in East Timor, etc.) have successfully showcased that in a post-peace settlement scenario, it is possible for revolutionary groups to later on shift their arena of struggle—from armed (rebel group) to parliamentary (political party)—where they are free to advance their political programs and compete for political power through the electoral system.

The massive presence of loose firearms in Mindanao, as well as the culture of rido (family feuds), are among the factors which will complicate the planning and execution of a successful DDR. We need to also institute parallel government programs addressing these issues alongside the implementation of DDR.

20. How will the MOA-AD and the prospective Comprehensive Compact be operationalized?

The AD MOA itself is a non-executory document and still subject to further discussions as to the details of its provisions. Once the details are discussed and agreed on, these will be incorporated, among others, into the Comprehensive Compact document.

To implement provisions of the agreement, the Executive branch will undertake the necessary processes, where needed, to effect changes to the existing legal framework. This will range from the passage of the necessary executive issuances (E.O.), national laws (R.A.), and perhaps Constitutional amendment (via Constituent Assembly or Constitutional Convention) to legally entrench our arrangements on the BJE.

We have faith that there is bi-partisan support for the peace process, and that the other branches of government will help the executive pursue the attainment of lasting peace in Mindanao. The three decades of armed conflict has affected the entire country. Its solution is our shared responsibility.

21. Is the prospective BJE envisioned to exist under a federal form of government?

The ongoing negotiations focus on the substance of governance, rather than the form of government.

In terms of substance, we know that amendments to some provisions of the Constitution (probably, Art. X on Local Government and Art. XII on National Economy and Patrimony) may be necessary to give full effect to our agreement.

In terms of form of government, many legal experts are of the opinion that the agreement will find more pragmatic application when a federal system is in place. In the end, this will be a matter of collective judgment on the part of the Bangsamoro people and the rest of Philippine society.

However, we welcome the strong bi-partisan initiatives of some of our legislators who push for federalism, and see it as a viable track to help solve the Mindanao problem. When such an opportunity becomes evident, we will leave it to the wisdom of the framers on how they see themselves contributing to the achievement of lasting peace in Mindanao.

22. Does the ancestral domain issue also involve discussions on compensation, reparation, and the like?

The issue of compensation or reparation for properties lost or destroyed by reasons of the conflict on the part of displaced individuals and families is already included in the Implementing Guidelines on Humanitarian, Rehabilitation and Development signed in May 2002.

The MOA-AD affirms this principle, and it will include a provision on restitution measures for unjust dispossession and marginalization of displaced persons and communities. This will have to be studied and evaluated by the Parties on a case-to-case basis.

23. What happens to settlers and Lumad communities who will be situated later on within the prospective BJE?

There will be no effect on the fundamental rights, properties and personal circumstances of settlers and Lumads. The principles of equality, respect for cultural integrity, and the rule of law will be recognized at all times. Good governance will ensure that these rights are protected at all times, and the basic needs of communities—regardless of cultural persuasion and religion—are satisfied.

24. Is the MOA-AD bereft of respect for civil and human rights?

There is no truth to the hysterics that the unsigned GRP-MILF MOA-AD is “bereft of respect for civil and human rights” and that its proposed BJE shall possess and exercise “absolute powers without any of the civilized limitations in the Bill of Rights . . .” One has just to look mainly at the “Terms of Reference [TOR]” at the start of the MOA-AD. The seventh paragraph therein states as a TOR:

“ILO Convention No. 169, in correlation to the UN Declaration of Rights of the Indigenous Peoples, and Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter, the UN Declaration of Human Rights, International Humanitarian Law, and internationally recognized human rights instruments.”

The second, third and fourth paragraphs of the TOR in turn mention three earlier interim but framework agreements in the GRP-MILF peace negotiations:

1. The General Framework of Agreement of Intent (GFAI) between the GRP and the MILF dated August 27, 1998

2. The Agreement on the General Framework for the Resumption of Peace Talks between the GRP and the MILF dated March 24, 2001

3. The Tripoli Agreement on Peace (TAP) between the GRP and the MILF dated June 22, 2001

In the GFAI of August 27, 1998, an important early framework agreement which deserves more attention than it is usually given, there is Article II which states: “The Parties affirm their commitment to protect and respect human rights in accordance with the principles set forth in the Charter of the United Nations, and the Universal Declaration of Human Rights.” There is also Article V, which states: “The parties recognize that there will be lasting peace in Mindanao when there is mutual trust, justice, freedom, and tolerance for the identity, culture, way of life and aspirations of all the peoples of Mindanao.”

It is clear under the MOA-AD that the powers of the BJE are not “absolute” and that these are with “civilized limitations.” The so-called “civilized limitations in the Bill of Rights” are found in other legal instruments, which are mutually acceptable to the parties like those mentioned in the early above-quoted seventh paragraph of the TOR of the MOA-AD. That would include what is known as the “International Bill of Rights”—the 1948 Universal Declaration of Human Rights; the 1966 International Covenant on Civil and Political Rights; and the 1966 International Covenant on Economic, Social and Cultural Rights. In fine, the Bill of Rights of the Philippine Constitution is not the only, nor even the best, legal instrument on civilized limitations to governmental powers.

The non-mention in the MOA-AD of the Bill of Rights and for that matter the Constitution itself, is understandable because of the MILF’s consistent objection from Day 1 to the Constitution as a TOR or framework for the peace talks. This negotiating position is only natural for any revolutionary force (just like the NDF, for that matter), which seeks the overthrow of, or separation from that constitutional order or entity. Those who insist on the mention of the Constitution as a TOR or framework in these peace negotiations do not really understand the armed struggles that these negotiations are trying to resolve. Those who make peace negotiations impossible by imposing the Constitution will make continued armed struggle inevitable.

Atty. Soliman Santos, Jr. is a Bicolano human rights lawyer, peace advocate, legal scholar; A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb); author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).