PEACETALK (MindaNews/10 September) – The views expressed here aim to help in understanding the Agreed Text of the GRP-MILF MOA on Ancestral Domain strands and to some extent clarify wording which is unclear or ambiguous.

1. It is interesting to scrutinize the questions posed by the Justices of the Supreme Court at the oral arguments for the TRO on the MOA-AD.  In this instance procedure is substance that entails international relations theory and practice. There is urgency to dispose of the confusion and frustration created by the case at bar to ensure that the petitioners, respondents, intervenors or individuals do not become the judges of their petitions.  The MOA-AD firmly proffers a new modality to end the conflict in Mindanao.  As an initialed Agreed Text, we rely on the good faith principle to honor what it embodies in a single instrument.  Although not a common practice, an exchange of third-person diplomatic notes which are initialed but not signed are agreements. Consensus is a point of agreement and so in diplomacy a ‘non-paper’ is a very informal means of conveying written information. And there as those that institute frameworks to carry out the stipulations. The signing ceremony of the MOA-AD agreed text scheduled on August 5, 2008 at the Malaysian federal capital in Putra Jaya was set only to make it politically an important event.

2. The Court itself in restraining the signing of the MOA-AD has evoked American philosophic traditions in a constitutional legal system that includes both separation of powers and judicial review. Do they, therefore, have a duty to decide this case one way or the other? Is this Court willing to contemplate the discursive strategies of Moro public intellectuals that unfold contemporary Islamic political theories as well as indigenous scholarship that evolve globalizing justice to challenge the legitimizing ideologies of American-tutelage political thought? Finding the law, of course, includes the law of treaties and diplomatic practices which is in reality an empirical task that exercises powerful abstraction to argue humanitarian law instruments or invoke remedial rights only for constitutional arguments. 

Governing law of the MOA-AD

3. The search for some coherent legal underpinnings for judicial review the due process clause and the general welfare clause both function as guarantees to the powerless.  In legal history, Lockean canon rests on the assertion that the authority of magistrates was only to be exercised for ‘the good, preservation and peace of men in that society’ derived from natural law function. From Marshall’s juristic model of ‘dependent nations’ to the exercise of juridical rights over ‘Indian territory’, the realist decisions legitimated the law of nations by which indigenous peoples were deemed to possess no ‘territorial rights’ that states or monarchs were bound to respect.  The law’s construction of indigenous peoples as ‘populations’ to be governed and integrated or assimilated into mainstream society that lumped together the Moros and other native ‘inhabitants’ into “non-Christian tribes” prevailed over earlier natural law notions. Realist reductive idioms represented the Moro ruler’s treaties and compacts as ‘incapable of creating rights and obligations’ even if they had ‘treaty-making capacity’ that satisfied doctrinal structure embedded in the international legal frameworks, norms and discourses.  What is today placed before this Court is not an abuse of authority or an act repugnant to the Constitution: The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is a new “elegant formula” of negotiability to balance between state sovereign authority and the right to self determination for freedom.  The “vague” standards were adopted leading to compromises with facilitation to reconcile wide gaps and differences.

4. The analysis of interest is logically interwoven with the discourse on politics that constructs it as a conflict between politics and religion and the forces of secular statecraft.  Political reality makes sovereignty and self determination perform the referents for statehood.  Certainly the empiricist decisions of the Court can be criticized on the construction of the Philippine unitary state as the ‘signifier of modernity’ arising from nationalism and exhibiting positivist interpretation of international law that has concretized the unjust annexation of the Bangsamoro ancestral homeland.  From Worcester the legal and political battle for termination policy shifted toward Carino over ownership of land under native title that was not part of the public domain. The politics of law move into a progressive direction when “the presumption is and ought to be against the government” and the Regalian doctrine was held “all theory and discourse”.  

5. The effect of a divided Court in Cruz vs. NCIP [2000, in separate opinions] was to uphold the constitutionality of the Indigenous Peoples Rights Act of 1997. The land classification under the Constitution is irrelevant because the Regalian doctrine which vests in the State ownership of lands of the public domain does not cover ancestral lands and ancestral domains. Legal history supports the Carino doctrine in terms of priority rights. The IPRA speaks only of “surface rights.”  But all of the justices hesitated to grant full “ownership” rights over all resources and so adverse possession law still demonstrates tension.  This conflict pervades in the law of property and contract for which reason the MOA-AD proffers a nuanced bundling of certain rights:

“It is essential to lay the foundation of the Bangsamoro homeland in order to address the             Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all Bangsamoro people.  Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.”  

Workings of the Dualist Approach to MOA-AD

6.  Local government officials are the main petitioners in G.R. No. 183591.  The thrust of their argument is the lack of consultation.  To rule on the original petition anchored on the right to information as constraint to Government would have been expedient because it was rendered moot after the distribution of copies of the MOA-AD.  But the Court must wait until “litigious battle” casts up an issue of inclusion of barangays or any local government units in the Bangsamoro Juridical Entity (BJE).  Pending MOA-AD’s status (or the Comprehensive Compact’s) being ‘incorporated’ into municipal law, the Local Government Code is inapplicable. The principle of ‘advice and consent’ by which treaties are not the supreme law is a function of the Philippine constitutional order that adopts the monist procedure.  By ruling in Abbas vs, Comelect that the Tripoli Agreement of 1976 has having the same status only of a domestic law, the Court sustained the power of Congress to amend the Organic Act.  That constitutional constraint is not an excuse for noncompliance with the duty to perform treaties enunciated in Bayan v. Executive Secretary is illustrative of the dualist approach to treaty ratification. The MOA-AD agreed text uses ‘juridical entity’ as signifiers of political status with an antecedent and a future so that its ‘object and purpose’ becomes a crucial factor be looked into closely. The workings of dualist system may be tested. The modality to accord an organically functioning BJE with entrenched associative arrangements (or asymmetrical federative ties) to exercise sovereign shared authority with the central authority (parent state) is an incremental step agreed under MOA-AD “to establish a system of life and governance suitable and acceptable to the Bangsamoro people.”  This is because political institutions are necessary to resolve the totality of relationships with the rest of the Country.  Modern constitutionalism leaves the justness of the original position open covenants of peace more than legal frameworks.

7.  The Court, in practice, denies its own jurisdiction to pass on matters—such as foreign or military policy—under the doctrine “political question” unless there is no remedy available through the political processes.   As a republican state entity, this Country is a political community yet difficult to define as a territorial state. This normative position holds that the borders inherited from the colonizers is and ought to be re-drawn to comply with the UNCLOS and thus resolve the internal territorial waters issue covered in the MOA-AD.  For now it is a political question and the negotiation process is well established to arrange the success or failure of political settlement of a sovereignty-based armed conflict.  Basic lines on policy debate have not been clearly drawn as a new formula without option to secede.  This Court’s understanding of self-determination “as a right of political separation” was pronounced in Disumangcop v. Datuamong, but rather “as a complex net of legal-political relations between a certain people and the state authorities.”  In the Court’s opinion the Moros’ struggle for RSD dating as far back as the Spanish conquest in the Philippines goes on even at present.  “Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations.” 

8. Strategic use of procedural rules, however, weighs in consideration of whether the Court could rule on political questions besides constitutional issues. How does the MOA-AD agreed text meaningfully connect with the society of which it is part?  It does so as a framework agreement because the operation of opinions of jurists and justices are often political, economic, and social events, as well as “legal events.” It is not the correctness of the Court decisions that concerns us here but instead the so-called ‘canons of judicial adjudication’ to avoid the realists security doctrinaire approach.  The renunciation of war as “an instrument of policy” holds high the possibility for the application of “the generally accepted principles of international law as part of the law of the land.”  The constitution makes agreements part of the law of the land for constitutional adherence to the policy of peace and justice.

9. Surely, the Justices of the Supreme Court know best why the Moro Islamic Liberation (MILF) was not impleaded in the TRO.  The unstated premise is that the Court is a nonmajoritarian institution that can overstep it bounds, hence the accompanying plea for judicial restraint and less intrusive government under the contractual clause.  Why, then, should procedure give way to permit debates over the substantive? Jurists and lawyers can read the MILF chief negotiator’s remark that “MOA-AD is a done deal” would become, sooner or later, the subject of judicial debate involving high stakes including issues of political morality. This reasoning does not hide the crucial fact that both Government and MILF negotiating panels may have plausible arguments for their positions. Jurisprudential growth areas such as theories resting the legitimacy of transformation in treaty law (and practice) and the malleability of the living constitution (and judicial activism) are not perplexing at all or a grave cause for alarm.

10. A former senate president and Senators with open presidential ambitions—and with roles in mind as precedent setting—have supplied arguments that put the blame on respondent Government peace negotiators for “endangering the country’s sovereignty”.  There is a deep distrust prompting the Court to ask: Are the objections to MOA not based on “fear of the unknown” as many details will have to be further discussed for inclusion in the Comprehensive Compact?  What is objectionable to the MOA when it appears to be conditioned on the amendment of the Constitution?”  The embodiment of progressive counterargument does not foreclose “the re-conceptualization of sovereignty to include multiple loci of authority.”  Despite the timely intervention of the Muslim Legal Assistance Foundation (MUSLAF), no Moro integral voice was heard from lawyer volunteers to argue how the ‘treaty device’ is shaped by and in turn could shape or open ‘new formulas’ and ‘free of any imposition’ because it remains to be concluded in the Comprehensive Compact. 

11. The Department Justice’s Solicitor General has argued the case in which the State (GRP) is interested, but it has missed most of its fundamental point. This petition falls under the so-called “hard cases” and so hard cases are better settled out of the court.  What is so curious about the Government chief counsel conceding not to sign the MOA-AD “in its present form” is that in the course of the last hearing it further repudiated the agreed text in “any other form.”  As have been evident on manifestation, the phrase “any other means” seems to be avoided for it is possible for an agreement to be adopted, without signature.  Has the Solicitor General found herself in an awkward position of adverse party opposite solons out to establish the ‘culpable violation of the constitution’ ground just to impeach the sitting President?  Arguments among diplomats and commentators whether initialing the Agreed Text of the MOA-AD constituted signature or expressed ‘consent to be bound’ was lost on her ambivalent manifestations. 

Framework Status of the MOA-AD

12. Legal writers on the politics of law argue that to ascertain the logic inherent in a ‘framework treaty’ is pretending it is what the parties intended. Evidently, the advocates of the MOA-AD could still show how the working draft was drawn up to get going the peace talks to reach closure.  To explain the necessary “background” for the GRP-MILF peace process, the preparatory work (or travaux) of the peace deal include:  the text, its context, and the object and purpose of the treaty. The MILF negotiating panel is justified in concluding that initialing the Agreed Text constituted signature of the MOA-AD as the parties have so agreed [1969, Vienna Convention on the Law on Treaties, Article 12 (2) (a)].  Following that, the initialed instrument was delivered to the depositary, Malaysian Secretariat of the GRP-MILF peace process. 

13. The adoption of the MOA-AD was done by initialing the Agreed Text prepared as of 27 July 2008 on the space below the testimonium. Government was represented by panel Chairman Rodolfo C. Garcia and Hermogenes Esperon, Presidential Assistant on the peace process, who affixed their initials on each and every page of the agreed text.  On the part of the MILF, panel Chairman Mohagher Iqbal initialed the same copies of the agreed text. Likewise, Datu Othman bin Abd Razak, Special Adviser to the Prime Minister, initialed as witness the same copies of the agreed text after which the both sides exchange their initialed copies.  Copies for the ceremonial signing scheduled on 5 August 2008 in Putra Jaya were prepared with the signature box reserved for endorsement by Ambassador Sayed Elmasry, Adviser to the OIC Secretary General and Special Envoy for Peace Process in Southern Philippine in the signature of Alberto G. Romulo, Secretary of Foreign Affairs of the Philippines, and Dato’ Seri Utama Dr. Rais bin Yatim, Minister of Foreign Affairs of Malaysia.

14. It is the initialing and the act of exchange which constitute consent to be bound. Of course, there are other ways to express it. Given the MILF position, what is the legal effect of the Government expressing its decision not to sign the MOA-AD “in its present form or any other form?”  Here three points must be established. First, the content (subject matter) does not determine the status of the MOA on AD, which is an intermediate instrument but not a domestic contract. Secondly, there is a common misconception about acceptance (ratification) that it is a ‘constitutional process.’ This argument is definitional: it is an ‘international’ act so named to carry out on ‘international plane.”  Thirdly, the title or form will not be determinative but taken on the basis of the substance of the arrangement.

15. When acceptance is in doubt, legitimacy should not be confused with justice but principles of obligation in revolutionary situation become crucial and much talked about.  The use of the legal system coincident with influential politician’s manipulation of the law is illustrative of legal stratagems.  In Catawba Indian Tribe claim for ancestral homeland the U.S. Supreme Court held that “the demands of justice do not cease simply because a wronged people grow less distinctive, or because the rights inherent third parties must be taken into account.” The case logic in this legal dynamic is that “real nations, like great men, should keep their word.” [Cited in 476 US, 513/1986]   

MILF as Non-State Actor

16. If the Court’s majority blinds itself to opinion editorials all they see is an MILF peril.  Against this, one justice posed: You have to determine the status of the MILF to make sense to discover the law governing the MOA-AD? Does MILF have a personality under domestic law?  What about in international law?  The Geneva Convention and the Protocols [Cf. I, II and III and Statute of Rome] in regard to combatants and non-combatants have given status to national liberation fronts engaged in armed struggle. In the chronology of principal colonies and colonial territories the Philippines ranks first in the 1940s. A vital constitutional provision is adopting ‘the principles of international law as part of the law of the land’ and of paramount consideration is balancing sovereignty with the right to self-determination [See Sec. 2 and Sec. 7 of Art. II.] Yet the theory of sovereignty as the organizing juridical principle of the state and self-determination are contested sites to fit inter-subjective understandings of statehood. The legitimacy deficit test in pre-modern state has provided a base for non-state actors to become radicalized unless granted substantive collective right to self determination (RSD).

17. If it stays disengaged, the international community runs the risk of becoming complicit bystanders in massacre or ethnic cleansing according to a Report of the International Commission on Intervention and State Sovereignty [ICISS 2001]. Traditional rebel movements and armed non-state actors have forced the debate about intervention for protection purposes.  Sovereignty as a responsibility came to the forefront of Wesphalian understanding: the idea of strong state sovereignty.  Nearly as significant has been Wilsonian political theorizing of RSD applied in the context of decolonization that emerged as a key strategy by Third World countries and national liberation movements.  A decade into this twenty-first century, the new global governance ushered in humanitarian law and intervention for humanitarian protection purposes. It is not “self-evident truths” but the indivisible framework of human rights in deference to sovereignty or RSD that can develop a jurisprudence of “third-generation rights” encompassing collective rights and re-territorialization. In depth conceptualization of earned sovereignty to sovereignty as responsibility has seeped into the agreed text of the MOA-AD   The Puno Court’s reputation for activist-footnotes approach may call now for more celebrated searching judicial inquiry. 

Withdrawal of consent to be bound

18. The law of treaties Convention’s definition of treaty does not mention ‘signature’ as the paper sometimes bearing a signatory party can still be ‘open for signature.’ The recent invention of ‘framework treaties’ allow provisions by which legal regime can develop being a treaty device.  So it is not always necessary to determine the precise of status of an intermediate agreement or ad interim instrument as legally binding in domestic law.  Moreover, the MOA-AD is normative in the sense that it attempts to influence future behavior.  Paragraphs 7 and 8 of Governance read:

“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.”

19. Finally, for all the comments mentioned already, the intention to create legal obligations is a vital element in treaties and agreements.  However, the MOA-AD may develop in other ways that do not involve the creation of legal rights and obligations.  This is especially so to adopt procedures to meet changing needs for the technical map annexes by tacit agreement.  Now it appears that the Government has withdrawn ‘its consent to be bound’ by the peace pact with MILF.  Is the GRP trying to ‘defeat the object and purpose’ of the MOA-AD prior to its entry into force?  Legal writers can observe current Government conduct akin to common law practice of “the doctrine of frustration” due to change of circumstances.

20. The legal effect of the outbreak of hostilities between the Government and MILF is abnormal.  Besides, the MILF has made time leeway pending the resolution of the TRO in the Supreme Court.  Certain ambiguity or some reason why a particular compromise formula was adopted may be difficult to establish.  Or what it was intended to mean may result into contrario interpretation. As have taken place this week a unilateral declaration on September 3, 2008 as to the Government’s new general policy towards the peace process and the dissolution of the GRP negotiating panel to re-align or review all peace initiatives amount to reservations.  

Source: MindaNews   >>>>opinion section of MindaNews. Datu Michael O. Mastura, lawyer, historian, political scientist, is a senior member of the MILF peace panel).