The MOA-AD, a Memorandum of Intent?

(Fifth of a Series)

The distinct impression that the Memorandum of Agreement on Ancestral Domain between the Moro Islamic Liberation Front and the Government of the Republic of the Philippines gives me is that the title is a misnomer. The document is effectively a Memorandum of Intent.

The MOA-AD purports to be precisely what it says, a memorandum of agreement by the MILF and GRP. Both parties agree on the various points of the memo. And presumably both agree to implement them. In this sense the document is a memo of agreement. But can the two panels really bind, without prior consultation and consent, the two bodies they represent to do what is written in the document? That is the question this reflection wants to deal with. It is the reflection of a lay person in matters political and legal.

First with regard to the GRP side. Let us presume that the GRP peace panel did not consult nor have the agreement of the legislative and judicial branches of government. Let us also presume that much of the MOA-AD will depend on the consent of both these bodies. If so, it would seem to me that the GRP side would be assuming too much if it were to sign the Memorandum of Agreement prior to that consultation and consent. The Supreme Court could, for instance, strike down the agreement as illegal or unconstitutional. The legislative branch in turn might not agree with changes in government structures that a peace agreement could require.

Moreover from what I know about the reactions of both government branches to the document, I have the idea that the name “GRP” in the GRP-MILF negotiations would represent only the executive branch of the government of the Philippines. Therefore, if it signs the document prior to consultation and consent the executive branch only really intends to do its very best to persuade both the judicial and legislative branches that everything is above board.

Present developments and reactions to the MOA-AD would indicate this. The MOA-AD is now to be argued by the representatives of the Executive branch before the Supreme Court. Waiting for their chance to attack or support the MOA-AD are the members of Congress, House and Senate. What we read in the newspapers about the reactions of some members, albeit the opposition group, does not bode well for the MOA-AD.

On the other hand, the MILF could face the same challenge. The document is to be signed by the MILF on behalf of the Bangsamoro people. But logic tells me that the MILF cannot do so unless the ARMM and the MNLF that also claim to represent the Bangsamoro would first be consulted and give consent. The document could mean an entirely new basic law for the Bangsamoro people. Or it could mean amendments to the present ARMM law. But would the ARMM agree? Would the MNLF agree to changes that could possibly supersede their 1996 peace agreement with the government? Would both of these agree to changes in the power structure within the Bangsamoro ancestral domain that the MOA-AD implies? Perhaps this is one reason that at least one foreign representative has urged the various Bangsamoro groups to come together and forge a united position.

Moreover, the present MOA-AD contains many provisions stating that such and such points will be the basis of negotiations towards a future Comprehensive Compact. Hence, the present document could be more of preliminary agenda setting by way of consensus points for formal negotiations to take place. But as I go through the MOA-AD it seems to be more than agenda setting.

In the light of all the above, the following would be my conclusion: the memorandum of agreement on ancestral domain, initialed by both panels, is in effect an agreement on consensus points. By this document the parties intend to do their very best to have these points approved by the groups they represent. More negotiations and consultations will take place until a Comprehensive Pact is signed, indubitably “owned” by the Bangsamoro and the Government of the Republic of the Philippines.

But until such time, the document on consensus points would not really be a memorandum of agreement but a memorandum of intent and perhaps one of commitment to take the necessary steps towards a final Comprehensive Compact.

Should either party fail to get such an approval, the peaceful alternative would be for the peace panels to return to the negotiating table and resolve the problematic issues. It is for this reason that the following, I believe, are imperative: prior as well as ongoing consultation and dialogue with various constituencies on the issues of the peace negotiations, information for and education of the constituencies on the historical, cultural, legal, political, territorial, economic, and social dimensions of the peace talks, and the building of support constituencies.

Therefore, as a way out of the present impasse let organized and focused public discussions on the MOA-AD be conducted for a specific and reasonable period of time so that the two parties may be guided accordingly.

+Orlando B. Quevedo, O.M.I.
Archbishop of Cotabato

August 9, 2008