The issue that captivates the students of Mindanao reality in the present debate is the Bangsamoro Juridical Entity or BJE. The establishment of the BJE is anchored on the recognition of the right of the Bangsamoro to have their own government. This right to self-governance is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The MOA recognizes that the Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense.

Moreover, the Philippine Government concedes “historical” international recognition of the Bangsamoro People as “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.

1. What is this BJE?

The BJE is the system of governance that shall be entrenched in the Bangsamoro ancestral domain (land, sea and air) after the signing of the Comprehensive Peace Compact and Charter change.

2. Does the Bangsamoro Juridical Entity or BJE require a Charter change?

Yes, the BJE requires both a change in the present legal framework and a Charter change, for the simple reason that the powers and jurisdiction granted to the BJE are beyond the limits set by the 1987 Constitution and the present Autonomy Law or RA 9054. In the “initialed” MOA, the Comprehensive Peace Compact should be negotiated within 15 month after the signing of the MOA and immediately thereafter, the GRP commits to deliver the necessary changes both in the Constitution and the legal framework.

3. What if the Charter change will not push through? Does this mean that the Bangsamoro Juridical Entity is hinged entirely on the amendment to Constitution?

Yes, the BJE is hinged entirely on a new Constitution that shall allow for it. If Charter change does not happen, there is NO way that the BJE can be entrenched and GRP has failed to deliver its obligations as contained in the Comprehensive Peace Compact.

4. What then would be the binding power of the MOA between the GRP and the MILF? Is the GRPs giving recognition of juridical entity to the MILF binding? Is it not subject to the interpretation of the Supreme Court as to its Constitutionality? Under what law will the GRP be bound?

The MOA on Ancestral Domain is not the agreement that will give "recognition of juridical entity". The BJE will be entrenched by both the signing of the Comprehensive Peace Compact and the necessary changes both in the Constitution and the present legal framework. The MOA sets the framework and the principles.

5. What is the binding power of the MOA?

The MOA states:

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. Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the comprehensive compact.

6. Who will write the legal framework for the BJE?

In the Comprehensive Compact, the Bangsamoro People themselves will write their own Basic Law. In the past, it was the Philippine Congress that enacted the Organic Act as prescribed by the 1987 Constitution. The essence of self-determination is allowing the Bangsamoro People write their own Charter or Organic Act.

7. How can the Bangsamoro People be empowered to write their own Charter?

The Government needs to change the Constitution to contain the obligations or commitments in Final Comprehensive Peace Compact, not the MOA on AD.

If the mode of implementation of the Final Comprehensive Compact is Constitutional change, the relevant "public" for the plebiscite is the whole nation, not just the people of the future Bangsamoro territory. The whole nation in a plebiscite, will be asked to approve the new Constitution or changes in the Constitution. There is always a possibility of rejection... Atty. Michael Mastura, Senior MILF Peace Panel member, has observed the de facto “majority veto" of any possible arrangement with the Bangsamoro people.

8. What are my perceived “Good News” about the MOA and the BJE?

The MOA I and the BJE are very good examples of "thinking outside the box" in confronting the aspiration of the Bangsamoro peopleS (the capital "S") is intended to indicate pluralism within that Bangsamoro identity. The MOA and the BJE show that they draw theoretical, actual and practical LESSONS from the vast worldwide experiences of peace processes, particularly the kind and type that is suitable to the Bangsamoro peopleS.

In a globalized world, our inter-connectedness is already an established fact. Isolationist and parochial views have all become archaic or "dinosaurs". We need to learn from our neighbors as well as experiences in other continents and regions - after all we speak not only of Mindanao Peace or National Peace... but we speak of regional (ASEAN) peace and global (planetary) Peace. The MOA and the BJE carry that new thinking and a new paradigm in viewing the reality of unpeace in Mindanao.

Since, the MOA and the BJE are formula and principles outside the box, there are no if's and but's that these are solutions that are beyond the narrow confines of the present legal framework and Constitution.

Peace Agreements worldwide lead to changes in the current legal framework and Constitution. The changes have to be effected in order for the MOA and its subsequent Comprehensive Peace Compact and BJE to become LEGAL and Constitutional... since the changes are precisely undertaken to "contain" the Peace Agreement - a sort of "new wine into a new wine skin." Attempting to put this new paradigm and new thinking in the current legal framework and Constitution would waste not only the new paradigm but also current legal framework and Constitution. We shall be forever discussing the legal points and we shall resort to all kinds of casuistry and we shall NOT convince anyone... What are needed are a new legal framework and a new Constitution - plain and simple!

With the MOA and the BJE, we are evolving an innovative peace process in Mindanao that are completely new and with deeper perspective. In the past, from Marcos' 1976 Tripoli Agreement to Aquino’s ARMM to the Ramos' 1996 Final Peace Accord, there has always been the fears to confront the issue of self-determination or the issue of secession... As an academic and as professor of Peace Studies I hold SACRED the rights of peoples and nations to self-determination and in cases of national oppression and discrimination, the right of self-determination includes the right of secession. If I differ from Rebels and other revolutionaries, it is my present belief that with the varied ways of asserting this right... I have opted for the way of dialogue and negotiation. War and violence bring us to nowhere and I believe also that peoples no longer settle their differences in battlefields as done in the past but in the negotiating tables. The justness and the moral of the cause and aspirations whether for the Bangsamoro or Palestinians or the Aborigines/Indigenous peoples or the US First Nations, ultimately, shall win them the victory. It is a struggle that is JUST and MORAL! And because it is so that I do not believe in violence! It is in this light that I see the tragedy of military adventurism - MILF or AFP - as temporary hysteria and insanity that I hope and pray would soon pass us by...

(Next: the Bad News!)

The hot and passionate debates over the GRP-MILF Memorandum of Agreement on Ancestral Domain have prompted me to make a short primer on what the MOA actually SAYS and does NOT say. In doing so, I am making a summary of the discussion posted in the Kusog Discussion Group, specifically the postings of Atty. Camilo Montesa, the Executive Director of the Cotabato-based policy think tank, the Institute of Autonomy and Governance.

1. What is this MOA all about?

To begin with, the MOA stands for the Memorandum of Agreement on the Ancestral Domain Aspect of the Tripoli Agreement of Peace in 2001. The MOA on the Ancestral Domain is an integral part of that 2001 GRP-MILF Tripoli Peace Agreement. The 2001 Tripoli Agreement includes among others the Security Arrangement and the Development and rehabilitation of the Conflict areas.

2. What are the content of the now ‘Controversial” MOA?

The MOA on Ancestral Domain has four (4) Strands: Concepts, Territory, Resources and Governance.

2.2 The Strand on Concepts and Principles: These are the real “big” stones in the MOA. This strand sets the framework as well as the new prism by which the issue and the struggle of the Bangsamoro need to be viewed and interpreted. There are seven basic concepts and principles that the Philippine Government “recognize” that become the platform of continuing peace process with the Moro Islamic Liberation Front. These are the following:

- The GRP recognizes that a Bangsamoro Identity is a birthright of all Moros and IPs of Mindanao;
- The GRP recognizes the Bangsamoro homeland;
- The GRP recognizes that the ownership of the Ancestral Domain is exclusively vested in the Bangsamoro people since time immemorial to the present;
- The GRP recognizes that the Ancestral Domain is not part of the public domain;
- The GRP recognizes the Bangsamoro as “First Nation” with defined territory and system of government;
- The GR recognizes the right of the Bangsamoro to determine their future political status by popular consultation; and
- The GRP recognizes the Bangsamoro Juridical Entity or BJE as the authority over Moro ancestral domain and lands.

3. What are the implications of the Philippine Government recognition that the Bangsamoro People is a distinct people?

First is the recognition by the GRP that the Bangsamoro People is a domestic community distinct from the rest of the national communities.

Second is the fine tuning of the concept of the concept of “Bangsamoro People.” This term refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro, including the non-Islamized indigenous peoples, giving them the right of choice to be part or not of the BJE.

Third is the government recognition of the Bangsamoro People as “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.

4. What are the implications of the Philippine Government’s recognition that the Bangsamoro People have their own distinct territory?

First is the fact that the GRP recognizes the territory of the Bangsamoro People shall consist of the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite. Subject to plebiscite within 12 months after the signing of the MOA, the GRP shall deliver additional 700+ geographic areas in the Provinces of Sultan Kudarat, Lanao del Norte, North Cotabato, Palawan and the entire Cities of Cotabato and Isabela and some baranggays in the Cities of Iligan and Zamboanga.

Second is the GRP recognition that the ownership of the homeland/territory is vested exclusively in the Bangsamoro People.

Third is the GRP recognition that the homeland/territory never form part of the public domain. Thus, the homeland territory is not within the jurisdiction of the Philippine Government.

Fourth is the GRP recognition that the homeland/territory encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of native title.

5. What are the implications of the Philippine Government’s recognition of the Bangsamoro People’s right to their own government?

First, the MOA states that there shall be established a government entity – Bangsamoro Juridical Entity (BJE) - which shall have the plenary authority and jurisdiction over the territory.

Second, the MOA defines that the relationship between the Philippine Government and the BJE shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions.

Third, the over-all purpose is to “establish a system of governance suitable and acceptable to them as a distinct dominant people”.

Fourth, the GRP recognizes that the right to self-governance is historical. It is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro Sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense.

Fifth, the Philippine Government concedes “historical” international recognition of the Bangsamoro People. The Bangsamoro People are recognized as “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.

(Next week: BJE)

The Memorandum of Agreement (MOA) on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is supposed to be signed Tuesday, the 5th of August 2008. As in all peace agreements, the signing of the MOA is the easy part notwithstanding the protests and the many discordant voices from “foul” to “sell out”. The formidable task for the Philippine government (GRP) and the Moro Islamic Liberation Front (MILF) is to win public support for the accord that would eventually lead to a “successful” plebiscite in all the areas to be added to the core territory of the Bangsamoro (the present ARMM plus the six municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangcal in Lanao del Norte).

To appreciate the MOA, one has to understand the struggle of the MILF in the name of the Bangsamoro peoples. In bold stroke, the peace process between the GRP and the MILF is geared towards solving a "sovereignty- based" conflict. The “non-understanding” of this kind of conflict is, precisely, the source of the many of the confusion or a lack of understanding about the nature of the struggle of the Bangsamoro.

It is a truism that the solution to conflict depends on the type of conflict. There is no “ready- made” and “fit-all” solution to conflicts. The way to resolve the Bangsamoro question entails answering a sovereignty-based struggle that is at the root of their aspiration and dream as a distinct nation.

The MOA on Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is, definitely, a step towards answering to that sovereignty question. The title "MOA on Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001” is misleading. The MOA is not just about "ancestral domain" in the ordinary sense of the word. The MOA creates the very prism, the framework and the mechanism to realize their dream and aspiration.

The MOA will be difficult to understand, simply because it introduces a new and unfamiliar paradigm in looking at the issues involved in the peace process. In the past, the peace negotiations were done and approached by insisting on the Constitution as if it were written in stone. It is no accident that the peace negotiators of the past had to negotiate within the “box”, that is, the principles of sovereignty, territorial integrity, and political independence.

Atty. Camilo Montesa of the Institute for Autonomy and Governance, a Cotabato-based Think Tank, narrated to the Kusog Mindanaw Group the genesis of the new paradigm as used in the negotiation with the MILF beginning December 2006. The new paradigm is based on the concept of "earned sovereignty" as a way out of the intractable positioning of the parties. The new paradigm had the following three stages:

Stage 1: Shared sovereignty. The GRP and the MILF shall agree on an initial stage of shared sovereignty, whereby the Philippine State and soon-to-created sub-state, Bangsamoro Juridical Entity (BJE) will jointly exercise some sovereign authority powers and functions over a defined territory in Mindanao (with the present ARMM territory as the core).

Stage 2: Institution building. During the period of shared sovereignty and prior to the determination of final political status, the sub-state BJE, with the assistance of the international community, undertakes to construct new institutions for self-government, or even modify present autonomy arrangements, e.g. ARMM.

Stage 3: Future determination of the final political status. In some future time, the relationship between the GRP and the BJE will be determined by the Bangsamoro people themselves directly. Most probably the status will be determined by a referendum conducted by international third parties, i.e. the United Nations.

The main flaws of the otherwise a very good paradigm are basic which could have been addressed easily by government while negotiating with the MILF. The paramount flaw is the absence or utter lack of consultation of stakeholders, including Christian leaders, indigenous peoples in Mindanao, and peace advocates themselves. This flaw contravenes the very essence of any peace process which is participative of the stakeholders. The participative aspect of any process can NOT be overemphasized since this should lead to a regional and national consensus on the peace formula.

The second flaw is the lack of transparency and thus the lack of accountability in the whole process. It is rather very tragic that a good paradigm is now being “torpedoed” on the basis of fundamentals (consultation and transparency) that could have been easily addressed. The same fundamentals are required in the upcoming negotiations on the Comprehensive Compact (or Final Peace Agreement).

The third flaw is the fact that the government negotiating peace with the MILF is at its lowest ebb. The social capital and the credibility of Government are busted. For a peace process to bring to a successful conclusion will require a very high social capital and credibility that this Government sorely lacks. Government has to do a lot of “selling”, “cajoling” and “convincing”, especially so when the waters the Parties have navigated in coming up with the MOA are deep and little known. For this very reason, Government should have walked the extra mile in making sure that the stakeholders are on board.

The way Government negotiated the MOA would appear that it will NOT deliver on its commitments. Thus I have made observations that point to the seeming “bad faith” of government in the negotiation of the MOA. In an earlier forum, I have raised the issue of Government’s real motive in coming up with this MOA knowing fully well that it cannot deliver. Is it simply a feather in its cap and feather it shall remain…? Or is this a plan to use the MOA for something more “sinister” like perpetuating itself beyond 2010 through charter change?

What is the MOA?

By the GRP-MILF MOA on ancestral domain according to Atty. Camilo Miguel Montesa, Executive Director of the Institute for Autonomy and Governance (IAG), the Philippine government agrees to:

- Recognize the Bangsamoro people as “distinct from the rest of the national communities;”
- Grant the Bangsamoro people their own “distinct territory;”
- Grant the Bangsamoro pople their own “government;” and,
- Concede international recognition to the Bangsamoro people.

Who are the Bangsamoro?

The Bangsamoro people refer to “those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or full native blood.”

Spouses and descendants, including the Lumads, he said, are also classified as Bangsamoro “unless they choose otherwise.”

“They are the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations,” Montesa said.

Bangsamoro territory

Under the MOA, the Bangsamoro territory comprises the following areas:

- the present Autonomous Region of Muslim Mindanao (ARMM);
- the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan, and Tangkal in the province of Lanao del Norte, which voted for inclusion in the ARMM during the 2001 plebiscite;
- additional geographic areas in the provinces of Sultan Kudarat, Lanao del Norte, and North Cotobato, “subject to plebiscite.”

Montesa said that under the MOA, the Bangsamoro homeland did “not form part of the public domain.” Thus, it is “not within the jurisdiction of the Philippine government.”

The Bangsamoro homeland, he added, “encompasses ancestral communal and customary lands, maritime, fluvial and alluvial domains as well as all natural resources therein that have inured or vested ancestral rights on the basis of native title.”

Bangsamoro government

The Bangsamoro territory will be governed by the Bangsamoro Juridical Entity (BJE).

Montesa said the “relationship between the Philippine government and the BJE shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions.”

The BJE’s purpose is to “establish a system of governance suitable and acceptable to them as a distinct dominant people.”

Montesa said the public still does not know about the MOA. He said peace will not work if people are not informed about the agreement and why it should be supported.

The MOA is expected to encounter rough sailing right after its initialing. North Cotobato, Iligan City, Zamboanga City are now raising their loud protests over the MOA and accusing the Arroyo government for lack of consultation and transparency. They claim that the MOA will require several other steps, including charter change and another plebiscite “only to face stumbling blocks along the way.” They warn the government is courting trouble by signing the MOA, especially when the leaders themselves are not aware of the content and the process of the MOA.