Some Options to Overcome the Impasse

On the stalled GRP-MILF negotiation:

SOME OPTIONS TO OVERCOME THE IMPASSE

Maugan Buat Mosaid, Ph.D.


Brief Background

After the Government of the Republic of the Philippines (GRP) signed the Final Peace Agreement with the Moro National Liberation Front (MNLF) on September 2, 1996, the next best and most logical thing to do is to negotiate peace with the Moro Islamic Liberation Front (MILF). With following and military capabilities more or less equal that of the MNLF, the GRP may have realized that its task of peace-building is never complete if there remains of the Bangsamoro a restless force that has not come to settle peace with the government.

And so on August 3, 1996 Executive Secretary Ruben Torres met MILF Vice Chairman for Political Affairs Ghadzali Jaafar in Davao and relayed the government’s desire to enter into formal negotiations with the MILF. This was followed by the meeting of the GRP and MILF Technical Committees on January 7, 1997 which marked the start of formal negotiations between the two parties. Subsequent meetings, mostly at the technical level, followed.

The MILF originally proposed nine talking points which were later clustered into six talking points. When the GRP and MILF panels met in Tripoli, Libya in June 2001, this was fine-tuned to three aspects that served as the main agenda for the peace talks. These are: 1) Security, 2) Rehabilitation and Development, and 3) Ancestral Domain. This resulted to the signing of the GRP-MILF Tripoli Agreement on Peace of 2001. Thus, the MILF had its own version of the Tripoli Agreement. If the Tripoli Agreement of 1976 served as the framework for the government’s negotiation with the MNLF, the Tripoli Agreement of 2001 served the purpose for the MILF.

The agendum on ancestral domain was further subdivided into four strands, namely: 1) General Concepts, 2) Territory, 3) Natural Resources, and 4) Governance. These four strands were discussed during the 7th exploratory talks (April 2005) and 8rh exploratory talks (September 2005) and the consensus therein shall become the framework within which both panels would be crafting the memorandum of agreement on ancestral domain.

Other Frameworks for the Negotiation

There was clear understanding between the two parties with respect to the Tripoli Agreement of 2001 but occasional misunderstandings occur when references were made on some other frameworks for the negotiation. On one hand, the GRP Panel made it a point that it negotiates on the bases of the Philippine Constitution and territorial integrity of the country. Therefore, any agreement shall pass through the usual constitutional processes and any realignment of territorial boundaries shall have to pass through a plebiscite. On the other hand, the MILF Panel insists that its claim for a Bangsamoro homeland was based on an established right to ancestral domain recognized by the Philippine constitution and quest for self-rule based on an established right to self-determination recognized under international law and a duly recognized instrument for peace by no less than the United Nations. In addition, the MILF panel insists that the government shall take into consideration some historical realities related to the Bangsamoro issues on ancestral domain and self-determination.

The following are some concepts and principles on self-determination under international law and practice (as cited by Atty. Musib M. Buat, member of the MILF Panel):

“Self-determination is not a destabilizing concept. Self-determination and democracy go hand in hand, if democracy means the rule of the people, by the people, then the people of self-determination assures that no one people may rule another – and here lies its enduring appeal” (Nadesa Satyendra, 1998);

“The right of peoples to self-determination exists as such in modern international law, with all the consequences that flow therefrom” (Hector Gross Espiell, 1980);

“All peoples have the right of self-determination. By the virtues of that right they determine the political status and freely pursue their economic, social, and cultural development” (Article 1.1: the International Covenant on Civil and Political Rights, 1966).

Breakdown of Negotiation

The first major breakdown in the negotiation was on June 1, 2000. Before this, on April 27, 2000, the GRP and MILF panels met in Cotabato City to discuss ways on how to diffuse the tensions brought about by armed encounters between government and MILF forces which started in the Lanao provinces. However, at dawn of the following day the Armed Forces of the Philippines (AFP) attacked Camp Abubakar, the main camp of the MILF. Thus begun the all-out war enunciated by the Estrada administration against the MILF.

The second major impasse was during the 13th Exploratory Talks in September 2006 when both panels could not agree on the delineation and delimitation of territories that shall comprise the Bangsamoro Juridical Entity (BJE) – the more technical term for a Bangsamoro Homeland. The GRP panel would consider more or less 600 Muslim-dominated villages outside the ARMM while the MILF panel would insist for more than a thousand. These areas are over and above the present areas covered by the ARMM. The other contentious issue was the definition of contiguity.

The third major breakdown in the talks happened on December 15, 2007. Both panels were already in Kuala Lumpur, Malaysia for the supposed 15th Exploratory Talks to fine-tune the consensus points on Ancestral Domain. There was no major debate expected as most of the consensus points were already settled during the 14th Exploratory Talks. All was set for the panels to initial the draft MOA which was calendared for formal signing when the talks resume in January 2008. Then, the MILF panel learned that the GRP panel had inserted in its draft of the Memorandum of Agreement the phrase “in accordance with constitutional processes”. This was vehemently opposed by the MILF panel as this was an insertion – an adulteration of the original draft of the MOA. Not being able to cleanse its copy of the draft MOA, the MILF panel decided that it is no longer feasible to face the other party in the negotiating table. Thus, the talks bumped into another impasse.

How Previous Snags in the Talks were Resolved

The circumstances, as well as the personalities and institutions involved, in the resumption of the talks are important as they give us significant lessons in the peace process. In a way, they serve to guide future actions that will have to be undertaken to put the negotiation back on track. While each particular situation may require distinct creative ways and adept means at a given time, the fundamentals of handling them remain the same.

The first parting of ways in the negotiation was caused by the government’s violation of the ceasefire agreement. Apparently, the government’s armed forces did not give much credence to its peace panel when, despite some consensus reached to diffuse the tension brought about by the armed confrontation that started in the Lanao provinces, it proceeded to attack Camp Abubakar at dawn of June 2, 2000. Immediately, thereafter, the MILF disbanded its panel and withdrew from the talks.

When Gloria Macapagal-Arroyo assumed the Presidency in 2001, she sought the assistance of Prime Minister Mahathir to convince the MILF to go back to the negotiation table. After a series of trips by the Malaysian emissaries to the Islamic Center in Camp Rajahmuda, MILF Chair Hashim Salamat agreed to resume talks with the government.

The second impasse was primarily caused by some technicalities in the matter of interpretation of delineation and delimitation of areas that will comprise the Bangsamoro Juridical Entity including some ambiguity on the definition of contiguity.

This time (2004), the coming in of a third party (country) monitoring team composed of representatives from Malaysia, Brunei and Libya was an added dimension. The ‘back-channeling’ efforts from both parties to revive the negotiation was minimized as this was replaced by the so-called ‘shuttle diplomacy’ employed by Malaysia, in particular, as a creative means of convincing the parties to go back to the negotiating table. After a series of shuttling down to Manila and Camp Darapanan, the Parties agreed to attend the 14th Exploratory Talks in November 2007. That proved to be very fruitful as some 29 consensus points, mostly on ancestral domain, were settled.

Then, the 15th Exploratory Talks was set December 15-17 in Kuala Lumpur, Malaysia. The MILF panel was in high spirits as it was more of a formality like initialing the draft MOA than talking because everything on ancestral domain had been settled during the previous exploratory talk. Then the MILF panel learned that the GRP panel’s copy of the draft MOA contained the phrase “in accordance with constitutional processes” which it vehemently objected to the point that it did not enter the negotiating room when the GRP panel failed to cleanse its copy. And so the talks bumped into another impasse.

This time the breakdown in negotiation was the making of the GRP panel as obviously influenced by the so-called ‘spoilers’ of the talks. These are people, alleged by the MILF, as well-entrenched in power and having strong influence in national policy and decision-making. They are also thought to be people of the cabinet cluster “E” or the national security cluster.

The Bone of Contentions

First, let us examine the obstructing mechanisms both legal, traditional, historical and behavioral on the part of both parties. Then let us fit them against the facilitating mechanisms in the same aspects and see if some adjustments are possible without causing major shifts in terms of positions or positioning espoused by both parties.

The MILF insisted that the claim for a ‘Bangsamoro Homeland’ is based on an established right to ancestral domain as well as the claim for ‘self-rule’ based on an established right to self-determination. However, some people in government commented that the MILF’s claim for ancestral domain based on some historical antecedents is no longer plausible or logical. So, the first bone of contention, it seems, is the relevance of historical antecedents to the claim for ancestral domain. In our view, the issue of historical relevance would not have been an issue at all because the Philippine Constitution of 1987 recognizes ancestral domain as one of the bases for recognizing minority rights in the Philippines. On this basis alone, the Bangsamoro claim for ancestral domain can be accommodated under the Philippine Constitution in much the same way as the Indigenous Peoples Rights Act (IPRA) passed by Congress was anchored on the same principle.

The Philippine Constitution of 1987 recognizes the right of self determination (Art. II, section 7, on State Policies) but unfortunately it has its limiting mechanisms such as the principles of national sovereignty and territorial integrity. One of the justifications for the Philippine’s claim of territorial integrity, with particular reference to historic rights under the 1935 Constitution, was the foreign treaties entered into by the Moro suzerains.

The same Constitution under Article II, Section 1 on Declaration of Principles “…adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, unity with all nations.” This is another restricted principle under the Philippine constitution. As interpreted by the Supreme Court, treaties entered into by the Philippines have the same category as domestic laws and as such like any legislation enacted by Congress, these treaties could be amended. This interpretation runs counter to the principle of pacta sunt servanda whereby the state parties are duty bound to honor their treaty obligations under treaties entered into. Thus, the Supreme Court, in the Bayan case when the constitutionality of the VFA was raised, sustained the principle of pacta sunt servanda under international law. This was the reason why the MILF Peace Panel during the resumption of he peace talks in Tripoli, Libya registered its objection to use the Philippine constitution as the framework of negotiation. The MILF Panel preferred the adherence by the Parties on International Humanitarian Law (IHL) and the internationally recognized Human Rights instruments in defining the relations between the Philippine Government and the Bangsamoro people with respect, among others, to their fundamental right to determine their future political status, which specifically refers to the right to self-determination (Atty. Musib M. Buat, 2007: Right to Self Determination).

As early as April 2005, the Government of Republic of the Philippines (GRP) through its peace panel, has offered the Moro Islamic Liberation Front (MILF) a federal state but the latter rejected it, saying the government is not in a position to offer much less grant it. The offer was contained in a document submitted to the MILF peace panel during the 7th GRP-MILF Exploratory Talks in Guoman, Port Dickson, Selangor, Malaysia.

However, the MILF’s rejection of the offer of a federal state should be put to context. The MILF viewed this as a ‘trick’. Knowing the propensity of the GRP panel to invoke the constitution whenever confronted with issues of constitutional concerns, how can the government grant something that is non-existent in the constitution? It means that the offer is only as good as when the constitution is amended and the form of government changed. Otherwise, this is tantamount to having made no offer at all. With the present Senate, any proposal to amend the constitution is next to impossible; at least, not before 2010. Must we wait after 2010 for the talks to resume? While this is possible, the danger of prolonged negotiation is the so-called ‘negotiation fatigue’.

From the looks of it, the MILF would stand pat on its position to pursue the so-called Bangsamoro Juridical Entity (BJE) with all presently-Muslim-dominated villages in Mindanao to compose it and have it governed by the shariah. Defining the extent of the BJE, although already a contentious issue, would not be as complicated as implementing the shariah en toto in this part of the country. Physical mutilation, under the shariah, is allowed as a form of punishment but same is not allowed under the Philippine Constitution. This was the reason why the so-called shariah being implemented under Presidential Decree No. 1086 was only limited in its application to Muslim personal laws (civil law) such as family relations, inheritance and succession.

Is there a Way to Meet Half-Way?

Maybe there is, maybe none. It all depends on the two sides whether they agree to a solution. Maybe the first option is to meet half-way or examine the primary agenda in the negotiation if it is possible to make some adjustments to meet half-way. By this, we mean that both parties are willing to drop some to gain some. For example, the primary reason why negotiation between the GRP and the MILF was made possible was because the GRP offered not to use the Philippine constitution as the benchmark for the negotiation which the MILF reciprocated by dropping the issue of independence as one of the subjects for negotiation.

The primary issue has been whether or not the GRP would allow some extra-constitutional means to address the issues surrounding the negotiation. Whether this is settled or not, there is still a way out so that negotiations don’t get stuck to where it has bunged. For example, determining the extent of the territorial boundary of the proposed Bangsamoro Juridical Entity (BJE) should not be a problem because it was already clear that only presently-Muslim-dominated villages would be absorbed into the BJE. If we are to assume that no Bangsamoro is opposed to the MILF-sponsored idea of creating the BJE, then a plebiscite or referendum becomes moot and academic.

Second, if we take recent pronouncements from the GRP and the MILF, there seems to be some reasons to be optimistic for the talks to resume. Muhammad Ameen, chairperson of the MILF Central Committee Secretariat, stressed the need to correct false impression or accusation that the MILF does not want the government to undertake constitutional processes to implement any peace deal with the MILF. He said “the government can undertake all constitutional processes it wants, provided [it does] not derogate what the Parties have jointly ‘crafted, agreed and signed’ in the negotiations. He stressed further that what the MILF cannot agree to is that it takes part in those constitutional processes, citing six reasons for it:

1. All negotiations to resolve sovereignty-based conflicts all over the world such as those in Kosovo , Ireland , Bougainville, Aceh , Sudan , Western Sahara , and many others are extra-constitutional in character. The one with the MILF is not an exception;

2. The MILF is a revolutionary organization, or in plain words, a rebel, which necessarily does not recognize the Philippine Constitution; otherwise, to do so would be tantamount to agreeing to become and [be] considered “criminals”;

3. The Philippine Constitution represents the interests of the majority, who are Christians, short-changing or undermining that of the Moros and other indigenous tribes. The Constitution always favors the greatest majority, because they were the framers, interpreters, and implementers;

4. To allow itself to be bound by constitutional process, aside from the foregoing reasons, the MILF virtually allows itself at the tyranny of the Philippine Government in [the] matter of interpretation and implementation of any peace deal;

5. The MILF will not and will never repeat the blunders committed by the MNLF and Chairman Nur Misuari of negotiating within the framework of the Philippine Constitution. After more than ten years since the signing of the GRP-MNLF Final Agreement in 1996, the MNLF and Nur Misuari are back to square one as far as the genuine resolution of the Moro Problem is concerned. Instead of giving genuine self-governance to the Bangsamoro People, they are being integrated into the national body politic, reminiscent of the government approach in the 50s and 60s; and

Today, there are enough models of resolving sovereignty-based conflicts which the government and the MILF can study and possibly adopt any of the appropriate model to the satisfaction of the Parties and other stake-holders. The international community must play an active role in this undertaking.

Third, the issue of whether or not the MILF gained some semblance of ‘status of belligerency’ keeps coming back. The mere fact that the GRP had initiated a formal negotiation between the Philippine state and the MILF is an affirmation of this reality. Negotiation of this breadth and specter necessitates that there must be at least two parties of equal footing facing each other on the negotiating table. While recognizing a status of belligerency for the MILF, the Philippine government can maintain that the issues or problems are internal in nature and sovereign in character. When the MILF agreed to drop the issue of independence, the territorial integrity of the country was already assured.
Fourth, the GRP, in initiating the formal negotiation, has already set aside the Philippine constitution as benchmark for the negotiation which the MILF reciprocated by dropping independence as one of the subjects of the talks. The ball is clearly in the hands of the GRP panel. The moment it goes back to re-assume its original position, negotiation can proceed anytime.

Fifth, apparently what is lacking in this case is a strong political will on the part of government and principled negotiation from both sides. What is obvious is a case of lackadaisical attitude on the part of government and maybe occasional enthusiasm that only shows every-time there is an impasse. On the part of the MILF, some extra effort to stretch its patience will help. For example, while the GRP panel’s copy of the draft MOA on ancestral domain was adulterated by a proposal to subject it to ‘constitutional process’, the MILF panel could have tried to do some bargaining efforts as in ‘hit and miss’ kind of thing. Having tried would have mattered more than not having tried at all.

Lastly, it might help to reconstitute the membership of the GRP panel. Secretary Eduardo Ermita was not able to bring the GRP-MNLF negotiation to a conclusion. It was Ambassador Manuel Yan who had successfully brought the negotiation to a close. This time, some quarters are beginning to doubt Secretary Rodolfo Garcia’s ability to steer the GRP-MILF talks to its conclusive phase.

What made the difference, if any, among these people? Well, all of them were former military men, except that Manuel Yan was a military-man-turned-diplomat. Diplomats have greater advantage in the art of negotiating than military men who had not experienced the art of diplomacy. If we are to take this notion, then Ambassador Roy Cimatu makes a good replacement for Secretary Rodolfo Garcia. Also, instead of Secretary Nasser Pangandaman, somebody else, a prominent lawyer who would, in a way, represent the ARMM, shall be allowed to replace him. The MILF might, also, consider reconstituting its panel of negotiators. While it may be argued that the negotiators are not the problem, bringing in some fresh minds into the negotiation may help as some of the old buddies may have already been experiencing negotiation fatigue.

Presently, the government Peace Panel is composed of Secretary Rodolfo Garcia (ret. Gen.), Prof. Rudy Rodil, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Sylvia Paraguya, Secretary Nasser Pangandaman and Ryan Mark Sullivan.

On the MILF side are Mohagher Iqbal, Atty. Lanang Ali, Atty. Michael Mastura, Atty. Musib Buat, Maulana Alonto, and Abdulla Camlian, head of the MILF Technical Committee. Also with the group are Mike Pasigan, Amor Pendaliday, and Mohajirin Ali.
For principled negotiation and determined negotiators, any conceivable means is worth trying and all possible options are worth considering, if only to make it proceed. The talks, for whatever level it has reached, has already achieved so much that nobody could imagine such gains would go to naught because nobody tried enough to salvage it from vanishing into, probably, oblivion.