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By Antonio G.M. La Viña
Dean, Ateneo School of Government


I started writing these reflections last September 7 in the Lumbia Airport in my hometown, Cagayan de Oro City. Tthis was my third trip to Mindanao in ten days. It did not come as a surprise that the dominant topic of my conversations in my recent trips to Mindanao have been the Memorandum of Agreement on Ancestral Domain (MOA-AD). My Mindanao friends know that I teach Constitutional Law and the Law on Local Governments at the U.P. College of Law and that I have specialized on ancestral domain and other indigenous peoples' legal issues for the last twenty years.  Hence, I was frequently asked what I thought of the MOA-AD. Was it constitutional? Is this a fair and just settlement of a historic struggle for self-determination? Was the Arroyo government serious about peace when the peace panel agreed to the MOA-AD?

Consistently, my answer has been: I have no problem with the substance of the MOA-AD. In fact, let me put on record my admiration for the courage and imagination of the peace panels and their commitment to peace.  They did the right thing in thinking out-of-the-box to achieve agreement. But, as I always teach my students and colleagues I mentor, it is not enough to do the right thing; one must do the right thing but must always do so the right way. In other words, when you do something good, and especially something that is innovative and radical, you have to be able to defend your actions legally and politically.

Precisely because the consensus points the panels agreed on went to the roots of the conflict, the importance of getting the language and process (including timing) right became imperative. In the case of the Mindanao conflict, it is crucial to find the technically correct language that clothes the agreement with constitutional and legal validity, at the very least avoiding patently unconstitutional text. And it is essential to develop and implement a political strategy so that there is support for radical solutions. This means the process followed must be transparent, inclusive and participatory, giving special attention to those who have high and direct stakes in the outcomes of the agreement.

When the story of this historical moment is written, I predict many will conclude that this was an opportunity lost to achieve peace in Mindanao. The government is now on record that it will not sign the MOA-AD. The Supreme Court could rule that it is unconstitutional, complicating future negotiations.  The island continues to be on the brink of war.

We have lost an opportunity. But not all is lost. It is important to see this moment of time in the context of the larger and longer history of Mindanao and the Philippines. Because viewed through such lens, there are lessons we can capture in this historic moment. If we allow these lessons to guide us in the future, then this is not a lost opportunity but, in hind sight, brought the reality of peace nearer.

What are these lessons?

First, the power of words.  In my view, the MOA-AD was doomed to non-acceptance because of the lack of precision of the language that was used to capture a good agreement of minds. For example, standing out clearly in the agreement is the confusion between "ancestral domain", a property concept, and "homeland", a political concept. Whether this was deliberate or not, the confusion of terms opened the agreement to attacks from many quarters, including an assault on its constitutional validity. The deliberately vague language on the need to change the legal framework for the MOA-AD to be implemented, code for constitutional change, is another example of why the right words are important to avoid bad outcomes.                       

Second, why process is critical. As an observer of the peace process, conscious that the content of the MOA-AD was agreed upon quite awhile ago, one mystifying thing for me has always been why the local governments and the indigenous peoples of Mindanao consistently felt left out in the process. The reason is now obvious.  The national government is confident that it is able to represent adequately their interests thus more intensive consultations were not a priority. The need for transparency and participation was trumped by the need of confidentiality demanded by the political dynamics between the peace panels. But herein is the basic flaw: the reality is that the national government cannot represent the local governments and the indigenous peoples because their interests are in fact distinct from the national government.

What does it tell us about how future negotiations should be conducted? I propose that what is needed is an innovation, an out-of-the-box solution. Let's negotiate as a QUAD and let's reserve four seats at the table -  the National Government, the MILF, the Local Governments, and the Lumads. Drafting and agreeing to the mechanics of a QUAD process is a challenge but it is worth the effort if it helps avoid the criticisms leveled against the MOA-AD process.

Third, the importance of setting the right foundations. It is clear to me that resolving the Mindanao conflict requires territorial concessions and a reallocation of power between national and local institutions, including establishing new forms of regional governance. It is also clear to me that these concessions and this reallocation cannot happen unless we change the 1987 Constitution. It is therefore imperative that we use this period, when the peace process is on hold, to do our homework and explore the means to make this happen.

I am of the opinion that the presidential, unitary system of the 1987 Constitution is badly dysfunctional and no longer serves the interest of the country. Our political and governance institutions have been so severely weakened by the politics of the last decade that a reallocation of powers is good not just for Mindanao but the whole country. My view is that we will be better off if more power and authority, and the resources necessary for their exercise, is shifted to the local governments. It is also my view that we should give the basic LGUs (barangays, municipalities, cities and provinces) more power to decide to collaborate and confederate with each other, including (in the case of Mindanao or parts of it) coming together as states albeit with limited sovereignty. All these require constitutional change.

I do think that constitutional change should wait until after the 2010 elections, with a new President and a Congress. But the debate must begin now so that constitutional change becomes an issue in the presidential and legislative elections of 2010.

Fourth, the urgency of social accountability. Another lesson from the aborted MOA-AD is the indispensable role of citizens and citizens' organizations to hold the government and other public actors accountable for their actions. Once again, in spite of the consequences of certain decisions and actions of some individuals, it looks like no one will be held accountable for bringing Mindanao to the brink of war.

Fifth, why effective and ethical leadership matters. What is happening in Mindanao today has reminded me why it is so important to have effective and ethical leaders in our country today. Unless we have trust and confidence in our leaders or those who purport to lead us, things are not going to get better even after the 2010 elections. What has been alarming with how our present and future leaders have responded to the crisis in Mindanao is that the responses have ranged from denial of responsibility to silence. And worst of all are those who escalated the conflict through their alarmist and warlike rhetoric.

Our Priorities                       

So what should our priorities be today? Getting an immediate ceasefire in place. Cooling down the rhetoric especially by local and national politicians who might be unwittingly fanning the flames of war. Making sure that those who are responsible for the breakdown of peace, especially those who-have committed crimes should be held accountable for their actions. But most important of all - memorializing the gains that have been achieved and the lessons learned from the MOA-AD process so that we can build on them when the process resumes perhaps after the 2010 elections. A time out is needed for the peace process but the game is not over. It can resume when once again, as we always had in the last 30 years realize that war is not an option.                       

Let me end on a personal note. Whenever I am asked: why I became a political and social activist and why I fought the Marcos dictatorship; why as a  philosophy student and teacher, reflecting on the relationship between ethics and politics was at the center of my philosophical enterprise; why I ended up being a human rights, indigenous peoples' and environmental lawyer; why I am today a social entrepreneur; why the Ateneo School of Government is opening academic programs in Marawi, General Santos, and in many other local governments throughout the country; and why I am so passionate about connecting citizens and leaders to change the Philippines, to improve governance and build a prosperous and just society; whenever I am asked where it all began -- I always say that it began here in Cagayan de Oro, in 1975-1976, in the middle of the war between the Marcos government and the Moro National Liberation Front.                       

My hometown became an evacuation center and I ended up leading the work for refugees for Xavier University High School where I was a senior. In doing relief work for those refugees (mostly from the Lanao provinces), I saw first hand the brutality of war and the terrible consequences of injustice. That year, I helped bury many children from the refugee families. That year, my life irrevocably changed. As a Christian, Filipino and Mindanaoan, I knew what I was called to do: to dedicate my life for others and to work for a peaceful and just world, starting with my island and my country. Even then, it was clear to me: In Mindanao, peace is non-negotiable.


Antonio G. M. La Viña
Ateneo School of Government
20 Rockwell Drive, Rockwell Center, Makati City 1200, Philippines
Tel. No. 632-8994587, Telefax. No. 632-8905695
Ashoka Email: tlavina@ashoka. org
Ateneo Email: alavina@aps. ateneo.edu
Personal Email: tonylavs@gmail. com

  Copyright 2011 Asian Institute of Journalism and Communication