[The views expressed here are not unilateral reservations but to help in understanding specific ambiguities in the crafting of the GRP-MILF MOA on Ancestral Domain aspect.]

Prefatory Statements

1. It is convenient to deal with the topic of the regime of dar-ul-mua’hada and dar-ul-sulh—the first means “territory under compact� and the latter means “territory under peace agreement.� The inclusion of this Term of Reference (TOR) is a built-in compact devise where there is sometimes a need for provisions by which a legal regime created by the agreement can develop. This is consistent with how things work in diplomatic practice.

2. There is nothing inherently wicked or mystifying in the intent of the framers of the Memorandum of Agreement (MOA) on the ancestral domain aspect of the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) but precisely to provide for special interpretation supported by the preparatory work (or travaux) so the tribunal could inevitably consider them along with all the other material put before it.

3. We submit that the fundamental questions about a new formula free from any imposition to solve the Bangsamoro problem must firmly proffer to end the conflict in Mindanao, with a new modality that adopts modern treaty law practice and adapts to practical guidelines as well as codes of conduct to reconcile authority and self-determination principles.

Complexity of the GRP-MILF Negotiation

4. In the course of the Exploratory Talks between the Government and MILF negotiating panels, the major objective of dividing into four strands, namely—the conceptual framework, territory, resources, governance—the working draft for negotiation of the Ancestral Domain aspect of the GRP-MILF Tripoli Agreement on Peace of 2001was to resolve conflicted understandings of the homeland, ancestral domain, and ancestral land. But first, some working definition is needed.

5. In Islamic political theory, the “land of unbelief� is subdivided into the land of harb (war) and the land of sulh (truce). Assume, in that land under truce, that Muslims do not wage war or instigate violence or resort to armed means, where a compact is concluded by which a legal regime can develop into a dar-ul-mua’hada – a territory under compact or treaty. The true spirit and intent of writing this part of TOR is to correct the historical injustices of the status quo and the de facto negotiated political settlement can only be acceptable until justice is done.

7. Here is the context in which the negotiators are exercised, so to speak, thinking outside the box and beyond a constitutional structure based on that unitary system. Under the MOA on ancestral domain Agreed Text: The entrenchment of compact rights “emanating from the regime of ‘territory under compact’ and ‘territory under peace agreement’ [see the TOR] partake (s) the nature of a treaty device.�

8. The treaty device is no different as a legal effect from other framework treaties in that its contextual referent reads:

“For the purpose of this Agreement [i.e. the MOA] a “treaty� is defined as any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.�

8. This is not an unusual as a conceptual approach. Nor is the procedural step outside the ambit of treaty-making that we have embodied in the MOA. It is a framework agreement for entrenching later, and more detailed, comprehensive compact (and legal measures) which elaborate the principles declared in this Agreement, even to the point of using the Arabic terminology to confirm the meaning arrived at.

9. The term “framework agreement� is a relative recent invention because a treaty may also develop in other ways that do not involve the creation of legal rights and obligations. The procedures by which detailed, technical annexes or maps depicting territorial boundaries can be amended by tacit agreement to be adjusted more easily to meet transition process (or changing needs) can be done by “framework treaties�. Such measures are used for the adoption/adaptation of guidelines such as “concordats� or “protocols�, and codes of conduct in armed conflicts.


The Constituent Instrument

10. We submit that there is nothing apprehensible or undesirable in the Agreed Text of the MOA on ancestral domain and it is not easy to plead that the initialed document of 05 August 2008 is contrary to modern treaty law practice. To allay fears and apprehensions, the MOA under paragraph 1 in respect to the Agreed Text on Governance reads:

“In the context of implementing prior and incremental agreements between the GRP and MILF, it is the joint understanding of the Parties that the term “entrenchment� means, for the purposes of giving effect to this transitory provision, the creation of a process of institution building to exercise shared authority over territory and defined functions of associative character.�

11. Fundamental questions about the contract of citizenship and the justificatory concept of nationality and governance are being raised today, with integration (or assimilation) and separatism, for the Bangsamoro people in Mindanao hanging in the balance. The way agreements and treaties are dealt with under the Constitution of the Philippines reflects both the singular mode (‘monist’ approach) and the dual mode (‘dualist’ approach) in treaty making and operation. Authentication is done by an act or procedure.

12. Some agreements or treaties even do not need to have effect in the domestic law of the Parties as when it is self-executing. In other situations, there are certain principles to alleviate the strictness of the workings of the duality approach, as where “Executive Prerogative� (to be politically correct, not executive privilege) is made without a prior Act of Congress. Here it is premature to invoke the principle of “Advise and Consent� of the Senate in respect to the MOA-AD initialed by the GRP and the MILF peace negotiators. For MILF, that is a matter internal to the Government side as a shared competence.

13. The Memorandum of Agreement does paper the contested constitutional issues that will be negotiated when both negotiating panels take up the Comprehensive Compact. Most treaties entered into by the Government of the Philippines with the Moro National Liberation Front (MNLF) have been the so-called “Executive Agreements�, which is a controversial and ill-defined area. Similarly, those entered into by President Arroyo through authorized representatives with the Moro Islamic Liberation Front (MILF) are in the exercise of her executive power. This point is discussed separately.

14. It would be wrong to think that not enough public fora on the part of GRP and likewise MILF popular consultation have been conducted as advocacy activities for both sides, not to mention the “due diligence study� at Cabinet level. If we take at face value the MOA on AD, it is not the jealous limitation of the separation of powers of the unitary State, but the release of creative collective right and group energies have been the dominant value in its framing. The use of memorandum is to protect the sensitive matters. Finally, it has the advantage of being broad and flexible as ‘umbrella’ device or framework.


Respectfully submitted,
Datu Michael O. Mastura