5th of a series

GENERAL SANTOS CITY — The MOA-AD is a very well constructed piece – possessing unity, coherence and emphasis. Unfortunately, the interest it holds caught the Philippine Government between its commitment to the MILF and the vehement protests from the Senate, the affected local governments in Mindanao, other critics and the media.

Governance

The essentials of ancestral domain are defined in “Concepts and Principles” which are spelt out in details in “Territory” and “Resources”. How ancestral domain is to operate is provided in “Governance”.

What does “Governance” say of the MOA-AD? The consensuses, not yet implementable, are a compendium of ideas and intentions for the process of finding lasting peace with justice as a solution to the Mindanao problem. The MOA-AD is a “Memorandum of Intentions” as aptly seen by Cotabato Archbishop Orlando B. Quevedo, O.M.I., DD.

This is clearly stated in Consensus 7: “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.” This, however, has not been given importance by the critics, opponents and protesters.

Free People

Consensus 1 emphasizes freedom: “The recognition and peaceful resolution of the conflict must involve consultations with the Bangsamoro people free of any imposition in order to provide chances of success and open new formulas that permanently respond to the aspirations of the Bangsamoro people.”

Originally, Consensus 1 of “Governance” was the first part of Consensus 2 of “Concepts and Principles” transferred in toto to “Governance” ending with the phrase, “for freedom”. In the week before the July 24 GRP-MILF panel meeting, the GRP wanted the phrase deleted for it was deemed a ground for BJE to secede. The MILF agreed to break the impasse.

When transferred to “Governance”, the second part — “The observance of international humanitarian law and respect for internationally recognized human rights instruments and the protection of evacuees and displaced persons in the conduct of their relations reinforce the Bangsamoro people’s fundamental right to determine their own future and political status” – was omitted.

The GRP is very sensitive to any element in the agreement that can be a ground for secession. More seditious than “for freedom” in the first part is “reinforce the Bangsamoro people’s right to determine their own future and political status” or “self-determination” in part 2.

Cleansed of those elements, Consensus 1 should no longer be seditious. President Arroyo hailed it as a “breakthrough” when the MILF agreed to the deletion. As revised, does not “consultations with the Bangsamoro people free of any impositions” make the consensus unconstitutional?

Entrenchment

Consensuses 2 to 5 are about the entrenchment of the Bangsamoro Homeland and the BJE.

Consensus 2 reiterates the “ultimate objective of entrenching the Bangsamoro Homeland as a territorial space” as provided in Concepts and Principles, Territory and Resources: (1) “to secure their identity and posterity, (2)to protect their property rights”, and (3) “to establish a system of governance suitable and acceptable to them as a distinct people”.

Critics take exception to the phrase, “as a distinct people”. The question — “What is distinct about the Moros?” — is loaded with anti-Muslim bias and prejudice. The “Homeland” the Moros are claiming is very much smaller than the Moro Province that the Americans created for them as distinct people. Until today, they have always been treated as distinct people.

Consensus 2 also states: “The Parties respect the freedom of choice of the indigenous peoples.” Critics question the sincerity of this provision, calling it meaningless. At issue here is the constitutional right of the IPs or Lumads.

Consensus 3 calls for the invitation of “a multinational third-party to observe and monitor the actual implementation of the comprehensive compact” embodying “the details for the effective enforcement of this Agreement” without “in any way” affecting “the status of the relationship between the Central Government and the BJE”.

Consensus 4 defines this relationship as “associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions …” A Comprehensive Compact will (1) define the powers and functions of these institutions; (2) specify the associative relationship; and, (3) establish a period of transition for the entrenchment.

Until it has been specified in the Comprehensive Compact, “associative relationship” is too general to be clear. A statement from the MILF that “associative” does not mean equal status between the MILF and the GRP does not clarify “shared authority and responsibility”.

In the ARMM, the “inter-government relations” is clearly supervision: R.A. 6734, Article VI, Sec. 1 states: “The President of the Philippines shall exercise general supervision over the Regional Government including the local government units therein, directly or through the regional governor, to ensure that national and regional laws are faithfully executed.”

This was amended by R.A. 9054 to read: “Consistent with the Constitution and basic policy on local autonomy, the President shall exercise general supervision over the Regional Governor…” (Art. V, Section 1) with a long three-paragraph elaboration that limits the Governor’s power with penalties to the extent of changing “supervision” to “control”.

Re-(3), the original consensus was for a 6-year transitory period but was revised.

Consensus 5 defines “entrenchment” to mean “the creation of a process of institution-building to exercise shared authority over territory and defined functions of associative character.” It is clarified that the meaning of “entrenchment” is in “the context of implementing prior and increment agreements between the GRP and MILF … for the purposes of giving effect to this transitory provisions”.

Like Consensus 4, the determination of the unconstitutionality of Consensus 5, hinges on the Comprehensive Compact.

Modalities, Mechanisms

As it is, the MOA-AD has no provisions for its immediate implementation. After signing it, the GRP and MILF panels will negotiate the Comprehensive Compact to specifically provide for the modalities and mechanisms for its actual implementation.

Consensus 6: “The modalities for the governance intended to settle the outstanding negotiated political issues are deferred [until] after the signing of the MOA-AD.”

Specifically provided are: (1) “The establishment of institutions for governance (See: Consensus … together with its modalities during the transition period; (2) these institutions and their modalities “shall be fully entrenched and established in the basic law of the BJE”; and (3) “The Parties shall faithfully comply with their commitment to the associative arrangements upon entry into force of the Comprehensive Compact.”

The “basic law of the BJE” is the BJE Charter. The final consensus on how to frame this has been deferred – obviously, to be taken up in the negotiation of the Comprehensive Compact.

The original agreement was for: “Bangsamoro people to draft and promulgate their own organic charter by convening a constitutional commission that shall embody their legitimate aspiration for self-governance.” (Governance, 3, Matrix of GRP Comments on MILF Draft MOA. [Note: This “Matrix” is the source of all “original agreement/consensus” mentioned in above discussions.]) This is a clue of how contentious this issue will be.

As quoted at the outset, Consensus 7 — “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.”—is not immediately implementable.

It considers amendments to the 1987 Constitution, referred to as “existing legal framework”: “Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework …”

The amendment will be done (1) “with due regard to non-derogation of prior agreements and (2) within the stipulated timeframe to be contained in the Comprehensive Compact.”

Controversial

The first condition above means that the amendment of the 1987 Constitution must not detract from “prior agreements”. Anti-MOA-AD critics and opponents interpret this as amending the Constitution as dictated by the MOA-AD. Does “prior agreements” include the MOA-AD?

Consensus 3 refers to the MOA-AD as “this agreement” implying it is excluded from “prior agreements” since two different references cannot be the same at the same time. The latter must be referring to the many agreements signed before the negotiation of the ancestral domain.

One such agreement that appears relevant, the General Framework for the Resumption of Peace Talks, was signed by then Presidential Peace Adviser (now Executive Secretary) Eduardo R. Ermita and then MILF Vice Chairman for Military Affairs (now MILF Chairman) Al-Hadji Murad Ebrahim in Kuala Lumpur on March 24, 2001.

As stated in that agreement, the primary reason for the resumption of “their stalled peace talks” is “to end the armed hostilities between them and achieve a negotiated political settlement of the conflict in Mindanao and of the Bangsamoro problem, thereby promoting peace and stability in this part of the world” — briefly, for the promotion of the peace process.

This was reiterated in the Tripoli Agreement of June 22. 2001that spelled out the three aspects of the GRP-MILF peace negotiation. The peace process has been the primary end of all agreements prior or related to and of the MOA-AD.

What must be the intention of amending the Constitution “with due regard to non-derogation of prior agreements”? Is it to satisfy the MOA-AD or to secure and realize the peace process in Mindanao?

Questions

Among the institutions the BJE is “empowered to build, develop and maintain” are “civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions” (Consensus 8). Except for civil service and electoral institutions, R.A. 9054 allows all the others in the ARMM.

How those in the MOA-AD will differ from those provided in R.A. 9054 will be seen in their details provided in the Comprehensive Compact. Until then, it will be premature to determine their unconstitutionality.

The last two consensuses are not unconstitutional. Consensus 9 provides for the enhancement of the capacity of government institutions during the transition period; Consensus 10 provides that “details of the agreed consensus points on Governance not covered under this Agreement shall be deferred to, and discussed during, the negotiation of the Comprehensive Compact.”

To reiterate, the strand “Governance” states the true status of the MOA-AD — a compendium of consensus points still to be negotiated in detail. While it embodies the ultimate solutions to the Mindanao problem, it lacks the modalities and mechanisms for implementation which will be spelled out in the Comprehensive Compact.

Many of the consensuses are deemed unconstitutional in the light of the 1987 Constitution. But these may be asked: How unconstitutional are they? Can the unconstitutionality not be remedied during the negotiation of the Comprehensive Compact? Can the 1987 Constitution not be amended to secure lasting peace in Mindanao?

It should also be asked: Is the MOA-AD dead? What are the implications of the oppositions to the MOA-AD and the turn-around of the Arroyo government, its abandonment of the MOA-AD, its baby, and the changing of its peace policy? [To Be Concluded]

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