With the repeated statement of the MILF that they do not recognize the decision of the Supreme Court (SC) declaring the nullity of the Memorandum Agreement on ancestral domain (MOA-AD), it is quite clear that any resumption of the peace talks for a renegotiation of the terms of the agreement is not possible. Talks are resumed and the terms are renegotiated only because an agreement already reached has been found to be legally flawed or could not be carried out. By refusing to recognize the SC decision nullifying MOA-AD, the MILF is already rejecting the resumption of the peace talks since it is no longer necessary as far as they are concerned. Hence before going back to the negotiating table, the government must first require MILF to recognize the SC and its decision nullifying the MOA-AD for being contrary to the Philippine Constitution and laws.
Besides this is a country under the rule of law where no person or group is above the law. And parts of the laws of the land are the final decisions of its highest court, the court of last resort. Said decisions must be recognized by all persons or entities dealing with the government no matter how disagreeable it may appear to them. A government dealing with a person or entity that does not recognize its laws and institutions specifically the SC, one of its three main branches, is impliedly admitting that this person or entity is above the rule of law.
This is a crucial issue that has to be resolved first especially in this case where an amendment of the Constitution may be necessary as it entails the transfer of a portion of the National Territory considered as ancestral domain of the Bangsamoro people. If the MILF does not recognize our SC and its decision on the recent MOA-AD, it may not likewise recognize the constitutional amendment process and the results that a renegotiated MOA-AD may have to undergo.
Such scenario is not pure conjecture. It must be remembered that this MOA-AD is but a step towards a comprehensive peace pact known as the Tripoli Agreement on Peace between the GRP and the MILF dated June 22, 2001. This 2001 Tripoli Agreement became necessary apparently because the MILF broke away from the Moro National Liberation Front (MNLF) that entered into a Final Agreement on the Implementation of an earlier Tripoli Agreement between the GRP and the MNLF dated December 23, 1976 culminating in the creation of Autonomous Region in Muslim Mindanao (ARMM) pursuant to R.A. 6734. Hence even if another MOA-AD is finally reached, some disgruntled elements in the MILF may again form another secessionist movement that may call for yet another Tripoli Peace Pact. At this stage, MILF commanders Bravo and Kato are already displaying violent tantrums indicative of defiance to any agreement forged under the rule of law.
Last October 14, 2008, I attended a Round Table Conference sponsored by the National Defense College Foundation Inc (NDCPFI) upon invitation of retired Commodore Jose G. Lansangan its Chairman of the Board of Trustees. The main topic discussed was the implications to national security of the Mindanao armed conflict. Retired UP Professor and President/Trustee of NDCPFI, Nestor M. Nisperos Ph.D. with vast experience and knowledge on strategic and international policies correctly pointed out that the Mindanao peace is not purely domestic or military problem but also involves a foreign policy question. Hence the peace process in this southern part of our archipelago has generated the participation of other countries particularly Malaysia, our next door neighbor, the other member countries of the Organization of Islamic Conference (OIC) and the United States obviously because of its strategic location as the gateway to the China Sea.
For this reason also, the issue about the ancestral domain should not be tied up solely to the peace talks with the MILF. Before resuming negotiations the government should invite other representatives of the ethnic Muslim minorities in the Mindanao, Sulu and Palawan region who have a stake in these ancestral lands allegedly owned privately by their ancestors since time immemorial and therefore do not form part of the public domain. A law should be passed first creating a Juridical Entity to represent the Bangsamoro people and defining its powers and functions more specifically the power to enter into a peace agreement and to take over the control and supervision of the ancestral domain within the framework of our Constitution.
Then in formulating the terms of the agreement, there should be a rigorous and scientific public consultation on both local and national levels. In the recognition and delineation of the ancestral domain there must be a free and prior informed consent of the indigenous cultural communities.
Furthermore, steps should also be taken to include the Sabah claim especially considering the active participation of Malaysia in the negotiations. In his lecture during the NDCPFI round table conference, Prof. Nisperos said Sabah was originally given as a gift by the Sultan of Brunei to the Sultan of Sulu which has been an on going institution since 1408. Subsequently however the Brunei Sultanate disregarded the earlier cession and gave the same territory to a European adventurer Baron Von Overbeck. The continuing control of Sabah by the Sulu Sultanate however forced Overbeck to enter into another agreement with the Sulu Sultan that became the subject of a controversy between the British and Philippine government with Britain claiming that it was a cession while the Philippines insisting that it was a lease. This controversy was never solved until the British government turned over Sabah to Malaysia upon its Federation. Apparently, Sabah may really be part of the ancestral domain of the Bangsamoro people.
Finally for a truly lasting peace, the negotiators must strictly adhere to the Constitution by agreeing to be guided by the principles and doctrines enunciated by the SC in the case of (Province of Cotabato vs. Republic, G.R. Nos. 183591, 183572, 183893 and 183951, October 14, 2008).