Why MOA on Ancestral Domain Doesn’t Mean Much

By the Policy Study, Publication and Advocacy Program
Center for People Empowerment in Governance (CenPEG)

The Memorandum of Agreement (MoA) on Ancestral Domain between the Philippine government and the Moro Islamic Liberation Front (MILF) does not automatically bind the Arroyo government to honor the territorial claim of the Bangsamoro people in Mindanao, Palawan, and Sulu. If there is any clear commitment made by the Philippine government based on the MoA, it is on explicit assurances that under any final accord with the MILF the property rights and investments of big landowners, transnational corporations, and foreign powers that are formalized in a myriad of agreements and treaties will be protected.

As to the ancestral domain, territories and resources, and authority of the Bangsamoro Juridical Entity (BJE) – all of these are subject to the yet-to-be cobbled Comprehensive Compact due in November 2009, a plebiscite, and charter change which are foreseen to be acrimonious and drawn-out in the coming years.

The MoA on Ancestral Domain, a by-product of a series of peace talks and agreements between the Arroyo government and the MILF since 2001, was to be signed by both parties on August 5 in Malaysia where the talks are being hosted by the Kuala Lumpur government. It was stopped by a temporary restraining order (TRO) issued August 4 by the Supreme Court (SC) acting on a petition filed against the MoA by local executives and politicians in Mindanao.

The MoA was hastily put together under instructions made to the government panel by Malacanang to come up with an agreement which the President would show as her “legacy of peace” during her State-of-the-Nation Address on July 28. A temporary deadlock in the talks changed all that, however. But the paper had to be drafted anyway by both parties under pain of losing the International Monitoring Team (IMT). Malaysia, which heads the IMT that is overseeing a ceasefire, had threatened to end the team’s tour of duty on August 31 unless progress is made in the talks.

Secrecy

The street protests generated by the agreement particularly in Mindanao this week were inevitable in a peace process shrouded with secrecy. Although the positions of both government and MILF on the issues under negotiation have been well-publicized, the contents of the MoAwere kept under wraps until a former AFP general privy to the peace talks reportedly leaked the document to test the waters, so to speak.

Basically, the MoA is a set of consensus points forged together by the two negotiating panels in the roadmap to peace that will culminate in the Comprehensive Compact. The next discussions after the MoA signing will prove to be more contentious as both sides tackle the specifics of the territorial and maritime resources claimed by the MILF covering, aside from the expanded Autonomous Region of Muslim Mindanao (ARMM), about 1,000 barangays (villages). Other discussions are on the mechanics and modalities of the BJE; the final scheduling of the local plebiscite among peoples including indigenous peoples and other non-Muslims covered by the Bangsamoro homeland; and, finally, amending the charter to establish a new federal system (with the Bangsamoro as a federated state) and parliamentary government that will be ratified nationwide in a second plebiscite.

Now that the contents of the MoA are out, with many pressure groups in Mindanao calling it a “sellout,” the next negotiations should anticipate a storm of fireworks and a possible derailment. The tit-for-tat in the SC dealing on the MoA’s constitutional implications would be interesting to observe. Knowing, however, the high court’s well-established deference to the chief executive’s policy imperatives, it will likely rule in favor of the government no matter the insurmountable political backlash it would create.

But should the MoA, in the first place, be considered as a breakthrough in the Bangsamoro people’s historic struggle for self-determination? A closer scrutiny of the unsigned agreement reveals that while the Philippine government pledges to recognize the ancestral domain claim of the Bangsamoro people in motherhood principles it appends several conditions. Among others, the conditions are: First, it exempts territories covered by “government projects or any other voluntary dealings entered into by the government and private individuals, corporate entities, or institutions.” Second, although the BJE has jurisdiction and control over potential sources of energy including oil and natural gas, these will remain under the operation of the central government “in times of national emergency” or “when public interest so requires.” Third, although the autonomous Bangsamoro government may engage in economic and trade relations with other countries, the central government reserves its jurisdiction on “external defense.”

Excluded

As formulated, these conditions effectively exempt from the ancestral domain and BJE authority the mining, forest, and other resource areas covered by existing laws, executive agreements, and policies in favor of foreign corporations, local landowners, and other non-Muslim stakeholders. Likewise, the central government can always invoke “emergency situation” and “national interest” to exercise authority over energy resources.

Moreover, the presence of foreign military forces is also guaranteed in pursuit of the central government’s “external defense” responsibility. The presence of U.S. troops, special operations forces, basing facilities, and surveillance systems in Moro-dominated areas and waters is guaranteed by the Visiting Forces Agreement (VFA) and other agreements signed secretly by Arroyo with the U.S. government since 2002 which the MoA implicitly honors.

Arroyo officials claim that the President aims to sustain the momentum of the peace process with the MILF until her term ends in June 2010. Critics and anti-Arroyo opposition groups are wary, however, that the peace talks are being calibrated to justify charter change en route to Arroyo’s extending her power as prime minister under a federal cum parliamentary system that will also formalize the Bangsamoro homeland as a federated state. Considering that anti-Arroyo opposition groups are all gears for the 2010 elections, the Malacanang agenda will likely end up as another debacle akin to the fate suffered by her two previous attempts.

The MILF, on the other hand, views the MoA as a step forward for its goal of self-determination. Its leaders can always invoke the general concepts and principles of the MoA on Ancestral Domain to pursue the MILF’s political goal more so if they choose to declare unilaterally a separate state later on.

But they should be pragmatic enough to learn from the mistakes of the MNLF when, its armed strength weakened by strategic setbacks and factionalism, and abandoned by its foreign backers, it forged a final peace accord 12 years ago that yielded neither real autonomy nor effective political authority and development for the Bangsamoro people. Ever incremental in their objectives, the MoA – for that matter the peace talks with Arroyo – is an incidental part of the MILF’s 50-year jihad that its leaders declared in 2000. MILF ground forces continue to train and hold on to their arms knowing that their struggle for self-determination includes fighting and negotiating.

The strong backlash ignited by the MoA deserves a second look by the MILF leaders. A lesson that can be drawn is the fact that the war for self-determination involves not only taking arms and talking but also a political war to win the broadest support for the just and historic struggle of the Bangsamoro people. A lot of hard work needs to be done in this area. (pinoypress.net)