Prepared remarks of Senator Franklin Drilon
Senior Counsel
ACCRA Law Offices

[Presented at the public forum GRP-Moro Conflict: Is there an end in sight? Human Security and Human Development Revisited, held on September 19, 2009, 2-5pm at the UP School of Economics Auditorium, jointly organized by the Human Development Network and the UP School of Economics and sponsored by the UNDP]

Discussion

At the outset, let me make my position very clear: While I opposed the controversial GRP-MILF Memorandum of Agreement on Ancestral Domain (MOA-AD) because of its constitutional infirmities, I remain a firm supporter of the Mindanao peace process.

In fact, having been a member of the National Unification Commission chaired by the late Haydee Yorac and as an adviser to the government peace panel in the negotiations with the National Democratic Front (NDF) during the Ramos administration, I am familiar with the tremendous challenge if forging peace to end decades of conflict brought about by social inequities among our people.

In the ongoing GRP-Moro conflict, my position is clear and straightforward: Government and the MILF must immediately return to the negotiating table, resume the peace negotiations, and let the peace process proceed.

Despite of all the overwhelming odds, there is no alternative to peace in Mindanao. We can never give up on peace.

I fully support the proposition that we cannot have stability and sustainable peace in Mindanao, unless the historical injustices, perceived or real, inflicted upon the Bangsamoro people are recognized and addressed.

Having said that, let us confront the issue at hand: does the MOA-AD recognize and address that historical injustice in a manner that will achieve peace and stability in Southern Philippines?

My respectful submission is that the MOA-AD does not. I submit that a peace agreement should find a common ground to enable as many sectors and stakeholders to unite behind it. The MOA-AD, instead of providing a common ground to unite us, caused division among us. If implemented, it may kill any hope that Filipinos can find a way to live together. The MOA is a document that in language and effects demonstrates no loyalty to the Constitution nor to the Filipino people, but rather demonstrates an ideological loyalty to the concept of peace, even if it is peace by surrender.

Why? First, the MOA-AD lays the foundation for a separate and sovereign Bangsamoro state, a state within the Philippine Republic. The Government Peace Panel gave in to MILF’s demand for the ultimate creation of an independent Islamic state, which will dismember our country. Second, the MOA-AD does violence to the principle of respecting the vested rights over private property, a cardinal rule of equity.

There are four elements for statehood: (a) territory; (b) people; (c) government; (d) sovereignty.

The Bangsamoro State has a distinct territory under the MOA-AD. It is well defined, referring to the “land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region”.

It has a distinct people. Under the MOA-AD, “it is the birthright of all Moros xx to identigy themselves as Bangsamoros”, a distinct people consisting “of those who are natives or original inhabitants of Mindanao, xx Palawan and the Sulu archipelago”.

The Bangsamoro Juridical Entity or BJE, is empowered to create institutions for governance as a state. Under the MOA-AD the BJE “shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society”. The listing of institutions that the BJE can create is not exclusive. The BJE is empowered to build, develop and maintain other state institutions, without limit.

Moreover, under the MOA-AD the BJE may conduct its own foreign relations. The government recognized the right of the BJE to enter into agreements with any friendly country and the option to establish and open trade missions in foreign countries with which it has economic cooperation agreements. The government is also under obligation to ensure BJE’s participation in ASEAN and the UN.

BJE’s relationship with the government of the Philippines is described as “associative”, a relationship appropriate only among sovereign nations. Associative relationship in international law connotes independence.

There is a growing support for Federalism as a means of empowering local governments. But the MOA-AD is not about federalism. It lays the groundwork for secession. We support the right of our Muslim brothers to full autonomy and self-determination, but this should not come at the expense of our country’s sovereignty and the integrity of our national territory.

The MOA-AD does not respect the vested rights over private property, as it provides that “land tenure instruments of any kind or nature whatsoever granted by the Philippine Government shall continue to operate unless otherwise modified and/or cancelled” by the BJE. This brazen disregard of vested rights is a flash point which can trigger conflict, not only between Christians and Muslims, but between Muslims and Lumads as well.

The other objectionable aspect of the MOA-AD is the removal from the Philippine public domain of the Bangsamoro Homeland, and vesting in the BJE exclusive ownership over its defined territory. As a consequence of that exclusive ownership over its Ancestral Domain, the BJE will exercise control and jurisdiction over all natural resources and potential sources of energy. Under our Constitution, what MILF claims as Ancestral Homeland is part of the public domain where “all lands, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy and other natural resources are owned by the State”. Under the MOA, BJE would now be exclusive owner of all the natural resources within the Bangsamoro homeland.

The BJE also has veto powers over the decisions of the government over the Philippine territorial waters consisting of our 200-mile economic zone. This has very serious implications, especially because there could be an overlap between the 200-mile economic zones claimed by both Malaysia and the Philippines.

Finally, let us not forget that if the MOA-AD can lay the basis for an independent and sovereign Bangsamoro Juridical Entity, a demand can be validly made for a similar MOA-AD that can create a Cordillera Juridical Entity in Northern Philippines, with similar powers. This was privately admitted to me by no less than the head of the peace panel, Gen. Rodolfo Garcia on August 15, 2008 during the MOA-AD hearing in the Supreme Court.

The wanton disregard of the Constitution in the MOA-AD is beyond dispute. In fact, the MOA-AD cites numerous agreements, laws and international conventions, but deliberately omits any reference to the Philippine Constitution. But it is argued that its provisions shall come into force only “upon affecting the necessary changes in the legal framework”, which the defenders of the MOA-AD assert refers to amendments to the Constitution.

I can concede that if we are to achieve peace and stability in Southern Philippines, we must be open to amending the Constitution. Indeed, the possibility of charter change opens doors to a wider range of options to end the armed conflict.

But I ask: will amending the Constitution which will dismember our country by laying the basis for an independent and sovereign Bangsamoro state, bring peace, unity and stability to our nation? Will an amendment that will lay the ground for a demand for a Cordillera independent state in Northern Philippines, bring peace and unity to our country? Will an amendment that will authorize BJE to disregard vested rights over private properly bring peace and unity? Is the injustice addressed by committing another injustice? Are these amendments consistent with our national interest one Filipino nation?

To my mind, for any peace agreement to succeed, it must first and foremost, recognize the sovereignty and territorial integrity of the Republic of the Philippines. This is non-negotiable. Respect for our sovereignty and territorial integrity was the premise of the 1976 Tripoli Agreement. No agreement will have the support of our people unless based on these premises.

Second, any agreement must recognize and respect vested rights. Yes, the Bangsamoro people may have been unjustly dispossessed of their ancestral land, or parts of it. But, is voiding title of the present owners over these lands the only way of correcting the injustice committed? Are we correcting injustice with another injustice? The important element is compensating those who were unjustly deprived of ownership. Compensation need not necessarily mean voiding title of the present landowners.

These two basic principles must form part of a common framework for any peace agreement. Otherwise, I cannot see how any peace pact can provide a just, lasting and comprehensive peace.

One final point. Yesterday, I filed my memorandum before the Supreme Court, asking the Court to decide on the constitutionality of the MOA-AD, and not simply consider the case as moot, even if the government has decided that it will no longer sign the peace agreement “in this form or any other form.” For, as ruled by the Supreme Court in the case of Prof. Randy David vs. Gloria Macapagal Arroyo,

“The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot or academic, if: first there is a gross violation of the Constitution; second, the exceptional character of the situation and the paramount public interest involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.”

The guidance of the Supreme Court is absolutely needed, given the fact that Presidential Peace Adviser General Hermogenes Esperon was quoted in media as saying that “even if the government would no longer sign the MOA, the document could still be used as a “major reference”, particularly its “substance”, in future negotiations with MILF”. The Supreme Court must painstakingly outline for the government what it should not have done and what it cannot do. Unless it does so, this government will continue its unabated recklessness.

Peace negotiations demand patience, understanding and most important, mutual respect. I have not lost hope. As long as we do not forget that we are all Filipinos, with the Philippines as our only country, the end to the conflict will always be in sight.

As I have said earlier, we can not give up on peace. The MOA-AD having been effectively junked, I pray that the government and MILF panels will find creative ways to defy the odds and make it back to the negotiating table.

By then, I hope the government panel would have learned its lessons, embrace the principle of transparency and conduct real consultations with all the stakeholders involved in this conflict.

In the end, and by the grace of God, I am sure we shall overcome and lasting peace shall prevail in our land.

Thank you. (End.)