In the first five of the eight paragraphs of the Terms of Reference (TOR) at the start of the unsigned final draft of the Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) are stated as TOR six prior peace agreements, four with the MILF and two with the Moro National Liberation Front (MNLF), including the 1996 Final Peace Agreement (FPA).  This indicates a building on and need for harmonizing with the peace settlement already achieved with the MNLF.

Then, in the sixth and seventh paragraphs are stated as TOR three Republic Acts (RA 6374, 9054 and 8371), three specific international treaties (ILO Convention No. 169, UN Declaration on the Rights of  Indigenous Peoples, UN Charter, and Universal Declaration of Human Rights) and, in general terms, “International Humanitarian Law (IHL), and internationally recognized human rights instruments.”  So, while there is no direct or express mention of the Philippine Constitution, there is reference to three national laws which carry that framework, as in fact so does the abovementioned 1996 FPA make reference to it.

RA 6374 and 9054 are the previous and current Organic Acts for the Autonomous Region in Muslim Mindanao (ARMM).  RA 8371 is the Indigenous Peoples’ Rights Act (IPRA) of 1997.   This as well as ILO 169 and the new UN Declaration on the Rights of Indigenous Peoples provide for the protection and promotion of such rights.   The TOR of “International Humanitarian Law (IHL), and internationally recognized human rights instruments” is also significant because “the generally accepted principles of international law [are adopted] as part of the law of the land” under the Philippine Constitution.  But it is international law, not the Constitution, that has become a hopeful common ground or lingua franca between the GRP and MILF, they of their radically different paradigms.

Finally, in the last of the eight paragraphs is this TOR found for the first time ever in any of the peace agreements involving the GRP and the various rebel groups: “Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device.  For the purpose of this Agreement, a ‘treaty’ is defined as any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.”  (bold face mine)

Wow, forgive the expression, but I find quite exciting as a lawyer the infusion here of an Islamic element, something that is even overdue where one negotiating party is an Islamic liberation front.   After all, these are negotiations – so why must the TOR be limited to instruments which are most familiar to only one party?  There is common (GRP-MILF) ground like prior agreements and international law.  But the mention of national laws (GRP) as TOR is somewhat balanced by the mention of  Islamic concepts (MILF).  This already illustrates the give-and-take which part of the inherent character of negotiations.

Aside from substantive laws and concepts, there must also be give-and-take in the matter of “formatic” language in peace agreements.  Sometimes, one party must also accommodate the language of the other party, even if it sounds Greek or in this case Arabic.  The reality is that different sides often speak different languages.  And while the peace agreements are usually written in the difficult King’s language of English, it is not the first language of most of the negotiators on both sides.  It is a common lingua franca that both sides have to grapple with – difficult enough as a first language, more so as a second language, and most so with legal terminology (okay, gobbledygook) which has its own meaning often quite different from the ordinary meaning.

Canadian scholar James Tully, in his book Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press,1995), says that the most important and difficult first step in the dialogue process is listening to the voices of others in their own terms and traditions, as they want to be and as they speak to us.  Speaking in their own terms includes their own terms of reference such as Bangsamoro history and Qur’anic verses.  Thus, the MILF’s insistence about defining the Bangsamoro problem as they perceive it to be. In fact, if the idea is better expressed in Basa Magindanaon, then so be it spoken.  There is always the risk of the idea being lost in translation.  Native Magindanaon-speaking negotiators of the MILF, however, would basically have to use their second or third language of English when communicating with the GRP, including draft consensus points.  If there is such a thing as “Taglish,” maybe there is also “Maglish.”  And so, give(-and-take) some leeway when it comes to the language of GRP-MILF peace agreements, esp. the MOA-AD.  Look at the spirit more than the letter.

Mua’hada is Arabic for compact or treaty.  The treaty device is very significant in Islamic tradition because of the Prophet Muhammad’s practice of peace treaty-making with non-Muslim tribes during his time.  They are a form of ‘aqd (tie or conjunction) which more than just a contract in Western law, because it is treated like a religious obligation to be strictly observed.  Perhaps the closest concept to this in Western law is pacta sunt servanda (treaties must be performed in good faith).  In this sense, for the MILF to treat peace agreements like treaties should be reassuring for the GRP.

Treaties are also very significant in Bangsamoro history.  In the MOA-AD, under “Concepts and Principles,” paragraph 4, there is this sentence about the Bangsamoro (Moro nation):  “They are the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.”  About 33 such treaties have been documented, 15 by the Sulu sultanate and 18 by the Maguindanao sultanate).   One of these is the Treaty of 30 April 1851 between the Spanish Captain General of the Philippines and the Sultan of Sulu where the former guaranteed the free exercise of region and customs of Sulu’s inhabitants, and maintained the territorial integrity of Sulu and its dependencies as part of the archipelago belonging to Spain.

And that Treaty had been referred to in the1922 Supreme Court decision in Adong vs. Cheong Seng Gee (43 Phil. 43) which listed treaty, organic law, statutory law, and executive proclamation as the various instruments where the purpose of the government towards the Moros/Muslims had been announced.  And constitution has since been added to that list, with the 1987 Philippine Constitution, Art. X, Sec. 15-21 provisions on autonomous regions in Muslim Mindanao (and the Cordilleras).  So, there is Philippine jurisprudence that affirms treaty as a policy instrument of the government towards the Moros.

And the best relevant definition of treaty, better than that above-quoted from the MOA-AD, is found in American jurisprudence which has in turn been incorporated into Philippine jurisprudence.  This is the definition of treaty as “a compact formed between two nations or communities, having the right of self-government” found in the 1832 U.S. landmark case of Worcester vs. The State of Georgia, 31 U.S. (6 Pet.) 515, at 581, on U.S. government-American Indian tribes relations.  Such a compact also partakes of the nature of a charter on the form of constitutional association between two nations/peoples.  This concept and the quoted definition of treaty is more relevant to the GRP-MILF peace negotiations than the usual definition or understanding of treaty as an international agreement between States, which is useful only for international relations.  The said U.S. case has been incorporated into Philippine jurisprudence through the 1919 Philippine case of Rubi vs. Provincial Board of Mindoro (39 Phil. 660).

The treaty device also helps to realize the international law principle of equality of peoples, such as Filipino and Bangsamoro.  It would indicate an at least symbolic, if not also substantive, equality between two peoples.  After all, while Bangsamoro statehood has not been recognized, Bangsamoro “peoplehood” has – e.g. in the 1996 FPA, RA 9054 and Philippine jurisprudence in the case of Cruz vs. Secretary of Environment and Natural Resources (G.R. No. 135385, December 6, 2000) which upheld the constitutionality of the IPRA.   And in this case is interestingly found this description of the Constitution as “a compact made by and among citizens of a State to govern themselves in a certain manner…a solemn covenant made by all Filipinos to govern themselves.” (bold face mine)

In another Philippine case, BAYAN vs. Executive Secretary (G.R. No. 138570, October 10, 2000), which upheld the constitutionality of the Visiting Forces Agreement (VFA) with the U.S., there was an enumeration of other terms used for treaty or international agreement:  “act, protocol, agreement, compromise d’arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi.” (bold face mine)  To these, we may add “compact” and “covenant” used in the IPRA Case as synonyms for Constitution.  And so, there may be more than semantic basis to treat a treaty and a Constitution on the same plane, in certain circumstances.

In the MOA-AD, the GRP and MILF Peace Panels preferred to use the term “Comprehensive Compact” in lieu of “Final Peace Agreement” largely in order to avoid confusion with the 1996 FPA with the MNLF.  If we go back to the early quoted definition of treaty in the MOA-AD, it can be gleaned from the wording “For the purpose of this Agreement, a ‘treaty’ is defined as a solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement” that the “treaty” referred to here is not the MOA (which is the “Agreement”) but the envisioned Comprehensive Compact (“that elaborates the principles declared in the Agreement”).  It is the Comprehensive Compact which would be the real deal “that sets out understandings, obligations, and benefits for both parties.”  Let’s not overlook this now with all the sound and fury, and so much ado, about the MOA-AD.

Atty Soliman Santos is a Bicolano human rights lawyer, peace advocate, legal scholar;  A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb);  author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).