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By Amado D. Valdez
Dean, College of Law, University of the East


I. Recognition of the Bangsamoro State
To the keen eye, the proposed Memorandum Of Agreement between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) on Ancestral Domain will not miss the statements of acknowledgement and recognition of the Bangsamoro Juridical Entity as having the status of a state.
So, when the MILF leadership claimed that the agreement is a "done deal",
it is more a reference to their being recognized as a Bangsa Moro State, never mind the provisions on ancestral domain which is yet to be approved
in a plebiscite.
The government lately argued that the MOA is a preliminary step to a Final Peace Agreement, wrongly assuming that the former is not binding until the latter has been reached by the parties. The truth of the matter is that the admissions and acceptance made on the status of the Bangsa Moro will no longer be reversed by any subsequent accord or denials.
Such agreement standing alone, witnessed by the powerful and influential United States, Malaysia and other Islamic states, will have irreversible impact on the status of the MILF in case of resumption of armed hostilities in the area.

These are consequences thoughtfully avoided by the Philippine government when it inked the Tripoli Agreement in the seventies with the MNLF. In that accord, it was made clear in writing that the "establishment of Autonomy in Southern Philippines" must be "within the realm of the sovereignty and territorial integrity of the Philippines," and to be implemented in accordance with "constitutional processes". This was the cornerstone of all subsequent talks. 

Thus, in a statement delivered by the Libya Foreign Minister Ali Treki in the UN General Assembly on 12 October 1977, he categorically and definitely declared that the MNLF issue is a "domestic problem" of the Filipino people. Presently, the MILF prematurely revealed its hidden agenda by claiming that the agreement having been initialled has binding effect under international law.

II.  How the Philippine panel was deceived
The Agreement is a model in grand deception. In the segment entitled Concepts and Principles, the Philippine government "agreed and acknowledged" the attributes of a Bangsamoro State such as people, territory, government, and sovereignty.

Of course, it was not a simple textbook enumeration of the elements of a state as taught in political science or law schools. Nonetheless, the statement of concepts and principles clearly recognized the "birthright of the Moros and Indigenous peoples of Mindanao who identify themselves as 'Bangsamoros' ".

Who ever crafted the part on "Concepts and Principles" had successfully steered the Philippine government panel to commit as it "agreed and acknowledged" the following elements of a state:

(1) a people considered as "FIRST NATION", a domestic community distinct from the rest of the national communities (No. 4), or distinct and dominant people (No. 5);

(2) a territory or the Bangsamoro Homeland, ownership of which is vested exclusively in them, by virtue of prior rights of occupation (No.2). An ancestral domain and ancestral land claimed, owned, occupied or possessed by themselves or through ancestors of the Bangsamoro people,  communally or individually (No. 3), and that the ancestral domain does not form part of the public domain (No. 3), a definite historic homeland (No. 4);

(3) a First Nation with a SYSTEM OF GOVERNMENT entered into treaties of comity and commerce with foreign nations (No. 4), thereby recognizing a Bangsa Moro Juridical Entity (BJE) which shall have authority and jurisdiction over the ancestral domain and ancestral lands ( No. 6); and

(4) sovereignty by acknowledging the "right to self-governance" which "is rooted on ancestral territoriality exercised originally under suzerain authority of their sultanates and the Pat a Pongampon Ku Ranaw (No. 4), Moro Sultanates resembling a body politic endowed with all the elements of nation-state in the modern sense (No.4).

III. Violations of the Constitution
If only to be informative, without commenting on the matter because of its sub judice nature, the following provisions of the constitution are adversely affected by the MOA, viz:

1.    Section 22, Article II which requires that the promotion of the rights of indigenous cultural communities be within the framework of national unity and development. The MOA instead of promoting national unity, allows the creation of a new state.

2.    Section 10, Art. 10 - On creation of provinces, cities, municipalities and change of boundaries.

3.    Section 15, Art. 10 – On the creation of autonomous regions within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Please note that the constitution may be amended to adopt federalism but not to derogate on national sovereignty and territorial integrity of the Republic.

4.    Section 16, Art. 10 – On the President's power being limited to general supervision of autonomous regions.

5.    Section 2, Art. 12 – On ownership, development, utilization and exploitation of natural resources.

IV. Status of the MOA under International Law

Unlike the Tripoli Agreement, the MOA did not only fail to mention the Philippine constitution, it clearly avoided recognition of Philippine sovereignty and commitment to comply with constitutional processes. Instead, the panels agreed to treat the agreement as a treaty setting out "understandings, obligations, and benefits for both parties" and provides for a framework that elaborates the principles declared in the Agreement.

The Philippine government can not reneged in follow-up agreements on the principles and concepts it had acknowledged in the MOA, particularly the recognition of a Bangsa Moro State.

Assuming that after the signing of the MOA the talks are stalled and there is a resumption of hostilities, the MILF has already acquired the status of belligerency under customary rules of international law.

A status of belligerency is conferred on communities not on individuals or group of individuals engaged in a political movement aiming at independence and secession. The MOA has treated the MILF as the Bangsamoro community, or the natives or regional inhabitants of Mindanao.

Furthermore, to confer the status of belligerency, the hostilities must be of general character. This explains why despite reaching an accord on the ancestral domain, MILF troops are still waging war in so many areas as possible.

V. Peace in Mindanao

The US Ambassador to the Philippines, Kirstey Kenny publicly stated that her country will not allow Mindanao to be separated from the Philippines. This is partially true if she meant that the agreement does not separate Mindanao but this is different from the fact that only a portion in Mindanao referred to in the agreement is recognized as a separate Bangsamoro State.

With the acceptance and acknowledgement of concepts and principles, particularly the existence of Bangsamoro State made in the MOA, being the framework of all subsequent agreements, then the Philippine government panel had been had.

We want peace in Mindanao. The recognition of a Bangsamoro State in the MOA is definitely not the right step to peace.

MOA- a Trojan horse?

  Copyright 2011 Asian Institute of Journalism and Communication