By Atty. Soliman Santos, Jr.
Contributor
IS the Bangsamoro Juridical Entity (BJE), proposed in the unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD), a sovereign independent nation-state separate from the Philippine state? Will it mean the territorial dismemberment of the country? These are among the worst fears about the MOA-AD and its BJE splashed or aired over the Philippine media. Let us try to “tackle this issue in an intelligent and dispassionate manner,” guided by truth, reason and justice.
Under the terms of the MOA-AD, the BJE is clearly not a sovereign independent nation-state separate from the Philippine state and, therefore, whatever territory pertains to it would not constitute dismemberment of the country. We shall deal more with statehood rather than territory here. It is not enough to recall the old political science or Philippine political law definitions of the state and its four essential elements of people, territory, government and sovereignty, then say that since the BJE seems to have all these, ergo it is a “state,” and then raise hell about it as if there were a declaration of war.
Other juridical entities (if I may also use the term), including my city of Naga and province of Camarines Sur easily have elements of people, territory and government, so it is usually sovereignty or a certain level of it that makes the difference between statehood and non-statehood. This refers to sovereignty that is independent of external control that has absolute power to govern, unlimited power to make laws, as manifested by power to make and change the fundamental law, which usually resides in the people. Then also does international recognition. Sovereignty at the country level has traditionally been deemed absolute and indivisible but this notion has changed over several centuries due to both external and internal entities that countries have to deal with.
Anyway, long before there was a Philippine state in the 20th Century, there were already in these islands sovereign independent nation-states that were the sultanates of Sulu and Maguindanao, beginning in the 15th and 17th centuries, respectively. The relevance of this is indicated in the MOA-AD, “Concepts and Principles,” paragraph 4, with the Parties, to their credit, reaffirming certain historical truths: “Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised 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.”
But that was of a time past. By the early 20th century, such historical sovereignty of the Moro sultanates was lost and since then never recovered, first under the American colonial regime and then under the newly independent Republic of the Philippines. The Moro liberal fronts of the past four decades have sought to regain that lost sovereignty for the Bangsamoro people, initially through armed struggle against the Philippine government. The negotiated political settlement of that armed conflict and its roots in sovereignty and related issues are what the peace negotiations are all about. The settlement reached with the Moro National Liberation Front (MNLF) since 1996, resulting in a new Autonomous Region in Muslim Mindanao (ARMM), has proven to be inadequate. Thus we saw the subsequent and ongoing negotiations with the MILF for a higher and better form of self-governance or self-determination for which the GRP usually draws the line at independence or secession.
That the BJE under the MOA-AD is not independent and separate from the Philippines is perhaps best shown by the characterization of their proposed restructured relationship as “associative” in several provisions, notably those under “Governance:”
4. The relationship between the Central 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 in a Comprehensive Compact. A period of transition shall be established in a Comprehensive Compact specifying the relationship between the Central Government and the BJE.
5. 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.
Shared authority and responsibility connote “shared sovereignty.” If sovereignty is to be shared by the Central Government and the BJE, then they are necessarily not independent and separate from each other. The MOA-AD speaks of a transition, presumably to what would be the final political status of the BJE, but what this might be is still subject to negotiations of the Comprehensive Compact. Ordinarily, there are three general options for self-determination, or more precisely for a Non-Self Governing Territory to reach a full measure of self-government, indicated in UN General Assembly Resolution 1541 (XV) of 1960 (admittedly quite dated):
1.Emergence as a sovereign independent State;
2.Free association with an independent State; or
3.Integration with an independent State.
In the MOA-AD at least, the choice for the BJE appears to be the “free association” option, not the “sovereign independent State” option. The “integration” option is basically what the Bangsamoro people have had under the Republic of the Philippines. Note how the autonomy (which is not only in the form of the ARMM) and federalism options are not mentioned here, which doesn’t mean these are not viable options. Both the GRP and MILF are well aware, in particular, of the federalism option but the concept they preferred to use for the BJE, at least for the period of transition, was an “associative relationship.” Apart from “shared authority and functions,” the specifics of this relationship have yet to be determined in the Comprehensive Compact.
Parenthetically, some have questioned the terminology “Central Government,” saying this is proper only for a federal set-up. But it was the terminology used in the1976 Tripoli Agreement, one of the terms of reference (TOR) for the MOA-AD. And the mention in that TOR of the 1976 Tripoli Agreement, 1996 GRP-MNLF Peace Agreement, Republic Acts Nos. 6734, 9054 and 8371 are in fact indications of a non-independence option in the MOA-AD. These legal instruments in turn make their own references to the Philippine Constitution (Attention those looking for something along this line).
Aside from the provisions of the MOA-AD, UNGA Resolution 1541 contains these concepts or principles about free association, so that we might have some idea of this self-determination arrangement short of independence:
(a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.
(b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.
So, much depends really on “the terms of the free association agreed upon.” This precisely is what the GRP and MILF are in the process of doing, with such terms to be found in the MOA-AD and more importantly for finality and detail, the Comprehensive Compact. We do not have any more space here to discuss examples of free association, and can only mention a few associated states of the U.S. which are of some familiarity to Filipinos: the Commonwealth of the Philippines from 1935-46; the Federated States of Micronesia, Palau, and the Marshall Islands; Puerto Rico and Northern Mariana Islands. Some of these later emerged as a sovereign independent State (notably the Philippines), others stayed as associated states of the U.S. All of them, even non-independent states like Puerto Rico, can participate as such in the Olympics, which is really the truer “United Nations.”
To sum up, the BJE under the MOA-AD is neither independent nor a full-fledged state. Given “shared authority and responsibility,” it may be safer to refer to it as a “semi-state” or “quasi-state.” Being sub-national in its territory, we might also call it a “sub-state.” This might jibe with the general notion that free associated states are usually smaller minor partners to larger major partners, e.g. an existing independent State or the former colonial power. But again, the terms of the free association agreed upon can provide for a more equitable relationship between peoples or nations which are ideally sovereign equals. The MOA-AD seems to be going in this direction, which is just as well for redressing historical grievances and imbalances. Perhaps, a best effort at an “associative relationship” should be made and be given a chance — before all concerned consider other options.
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August 25th, 2008 at 12:23 am
Why are pro moa people telling us its just an agreement and nothing more? To even say that it has no legal value to any seperatists like MILF? Yet MILF went on rampage when it was delayed? What guarantee that REBELS will not seek more?
I just think BJE-MOA for MILF is basically the Philippine government declaring to the world that Moros rightfully are the natives of the southern part of Philippines and that MILF represents them. So what happens when they decide to declare independence? We gave them legitimacy to the land, gave them authority that they speak and represent for all southern Philippines and we already defined and expanded thier territory.
August 24th, 2008 at 2:52 pm
“In order for EVIL to conquer, we who are GOOD must be silent..”
Familiar phrase anyone? Tears of the Sun (the movie starring Bruce Willis) will give you some light or a true picture of Rebellious dominion.
Whether you are educated enough to know the events erupting in my homeland can you fathom the pain of those who abruptly lost their loved ones that day or picture your own young kid around 3 to 4 years old, running around naked crying mama saying nothing but the word mama (lone survivor lost during that atrocity)
Fort he rest I’d say I’m saddened you’d care less, I guess when we are well off complacency really dampens our soul, and you have the right to view your complacency, it’s not your families or relatives being tortured and properties being plundered anyway. But enough of inflammatory dialogues we respect each others opinion, it will only weaken what we all desire for this nation. One Philippines.
Yes! I hear you. It has happened it has been done and nothing can bring back the lives of the many that have died “it is as it is”. Now, what can we do? To stop these and to punish the perpetrators, other than bellowing out loud our egoistic selves to express our sentiments and opinions about the lives of the victims both Muslims and Christians, it’s worth noting, that these area the lives of the modern Filipino people in Mindanao.
Policies change over time, people change too… and as we grow shouldn’t change grow positively too for us all as a nation? It goes to show that Education hasn’t done much to appease the issues of Modern Mindanao. What has messed it up? There are varying opposing factors to contend and that includes the government, but then again all your points are good… but its time that the very people that live in this land be consulted. What do they really want, the majority?
Too many lies have been said and actions without our knowing, created or veiled in words like “Autonomous Region”, “Peace Talks”, “MOA” and so on… which further on resulted to more atrocities, which goes to say, when one party does not agree lets punish the people so they, other parties will agree and perhaps vice versa (MILF VS. GOVERNMENT) MILF afflicts the people, Military “silent” operates, conspiring against the very people that entrusted peace in there hands.
Your comfort and silence my friend is our death (and I speak to those in Mindanao especially all the majority of educated Christians), you must choose then the lesser evil if that confuses your principle and moral, we favor peace so much, but ignorance here is the only evil that must be contained we must all be made aware, conscious of what is. What good will all these discussions or accusations of “I am right and you are wrong” thing or “these land is mind not yours” (wait till a meteor as big as Mindanao hits us all lets see what happens to all our ideologies about life, about your Bangsang Moro thing… that is if we are still alive). Maybe these kinds of heavenly catastrophe will wake up our humanity consciousness as ONE.
If the very people that cultivated these land will soon turn out to be another lost realms subdued by greed and ignorance, I chose not to be silent anymore, to be complacent about the Evil acts committed… and guess what I heard my God say… “They are not my children those that kill Children, those that lie, those that steal…” what have you heard lately?
My friends I take all your discussions to be valid, it inspires me to know that we are a thinking substance indeed, and thinking substance are alive and will permeate into things, only if these things are meant to create and flourish to another meaningful life which in turns create another fuller life.
I do aspire that we who are GOOD must not be silent. Even if it means the last option… for as long as it creates a fuller life for all…
Inshala!
August 22nd, 2008 at 9:42 pm
this is the philippines and it should be considered as a whole,bart did u even saw what happen to georgia,one the muslims in mindanao get what they want,the muslims countries around us will encourage them to be part of there country,if they want a muslim way of life they could always go to saudi or iran, lets not give these idiots a chance to run as all around just because they have guns..
August 22nd, 2008 at 11:24 am
The way things are going on in Mindanao, although the Muslims there has some sort of rights to their land, what transpired for so many years between the government and the MILF is something to think about.
Remember that on several occasion, our government representatives went on a mission of peace to certain Island in Sulu; were mowed down by bullets from the hostile Muslim islanders? Remember how a high ranking Military Officer, again, on a mission to negotiate, went to the MILF camp, and was held hostage by a Muslim leader? Remember how several marines were massacred in Basilan while passing thru the Muslim domain?
What does all these shows? It indicates that you cannot trust the MILF, the MNLF, or any one from their side. Even the election in Maguindanao was rig, and so many electoral violations were committed in the pass, like vote buying, under age voters, flying voters, and vote buying. What do these incidents imply?
In means that you are talking to a party that does not have HONOR in their vocabulary. And taking for granted that the MOA was signed, do you think, these Muslims will not commit atrocities like what they are doing right now? They did not fight the Military, they massacred innocent civilians, young or old, and not satisfied, and they dismember their victims. They burned houses and pepper the local government buildings with gun fire even when there is no one there.
What will the government do with millions of Christians in Mindanao? Ex general Esperon is unfit to negotiate the MOA because he has already expressed his view that, one way or another, there should be a MOA for the shake of peace. Peace at whose expense? He should have considered first, the plight of the millions of displace Christians before he would even consider about this MOA.
We all know, both Christians and Muslims, that the Muslims in Mindanao wants to take back the whole Mindanao including Palawan. Our government was acting stupid from the very start of the negotiation. Why not be frank to the Muslims in Mindanao that the past belongs to the past. They should have told the Muslims in Mindanao that the whole place is teeming with people who has cultivated, who were born, and who considers their property as their own, and no one else can take these from them.
Ex general Esperon has mess up the election as one of those perceive to have engineered the cheating in the last presidential election. Now, again, he messes up with the MOA. This government does not have transparency. It acts, unilaterally and arbitrary, on issues of paramount importance which will affect everyone. Today, it may be a MOA, tomorrow, we might wake up that our stupid government has already signed a treaty.
The President, PGMA, together with the government negotiating panel, has committed, in the most blatant word, TREASON in the first order, because of these blander. A firing squad is more appropriate for these traitors.
August 21st, 2008 at 11:20 am
What about the educated Filipino Muslims those that adheres to Philippine Government, those that truly put into the light the perspective of what it is to be a Muslim. They are worthy of praise for the conduct of making Mindanao progressive and they have developed businesses that have flourished in areas like Lanao. In my heart this people know how much they hate these atrocities and have seen their own brothers and sisters greed and yet, are afraid to tell the world all these, they pray with us for peace.
For those who favor this atrocities (Mr. Santos, Soliman you seem to agree with this BJE/MOA if you have questions talk to our Mayor Lawrence Cruz). Have we not seen how the Talibans ruined Afghanistan with there so-called Islamic Laws and governance, why are we so ignorant to repeat that mistake in our country. We won’t allow that.., maybe you can rally for that in your hometown.
How could God or Allah direct men (including their politicians and priest since they justified that this atrocities was an offshoot of the no signing thing… KILLING DOESN’T JUSTIFY ANYTHING. YOU VIOLATED YOUR KORAN AND YOU HAD NO ENEMIES NO ONE PROVOKED YOU, YOU’RE FILIPINO STILL) to kill children and helpless civilians for the cause of his chosen people, really? Has Allah or God come down upon you all exclusively and instructed that… Blasphemy! YOU all should be charge for that… may God himself curse all those who use his name in vain. Don’t brag about your Islamic nation thing if its very foundation is annihilation of races, discrimination, hate for other religion, and denial of freedom and co-existence. You don’t deserve it, even without religion we existed knowing there was a God up there. A God that wanted us to be rich in all things, to share and co-exist, so we may experience the fullness of his existence in us and through others. You can’t understand what I’m saying? Well too bad that’s because you’re too stupid to love all or love God. Throw your books it’s not updated its bad for you…
It only shows one thing clear about this MILF CONDUCT and Bangsamoro goal, it’s not PEACE they want but piece by piece of Mindanao and grab the power the riches and resources this land offers. It is their dream to flourish as a Nation least they forget they are Filipino; they should be something else other than that, to create a nation of their own. The past simply does not exist anymore why can’t they accept it… oh? POWER! Not Allah… Remember, wealth, resources… that can go to feed the desert wolves that support them (food for oil or money) these entire MOA, Islamic independence etc. thing are facades of the real bigger picture.
This country will not be separated by a stupid idiot running amok declaring war or politicians or clergy/priest… but only by it’s very own decent and educated people who will not stand up to give a fight to these greedy power hungry bastards.
We Iliganons will stand our ground; the new Mindanao is not about Islamic Rule we abhor that, its disgusting… you can’t even handle matters to important and simple… life.
In praise of our brave Mayor Lawrence Cruz… we will not go into the night without a fight…