Professor Pangalangan is a member of the faculty and a former dean of the University of the Philippines College of Law. This was published in the Philippine Daily Inquirer on September 5, 2008, page A14.

The draft peace pact with the Moro Islamic Liberation Front (MILF) was flawed from the start, but aborting the peace process altogether and shackling the hands of future negotiators is not the way to go. From Day One, the MILF should have known that it was negotiating with an impostor government that bore a spurious mandate (thanks to Garci) and harbored questionable motives (thanks to Charter change), and— given the public outrage and suspicions—was terribly out of touch with the pulse of the sovereign people it purported to represent.
However, the anti-ancestral domain rhetoric is getting out of hand, and we must rein in the over-zealous and over-legalistic. Let us remind ourselves of the genuine grievances that historically have pushed Islamic Filipinos to wage war. We mustn’t effectively block peace negotiations in the future just to stop the deficient Memorandum of Agreement (MOA) on ancestral domain with the MILF now.

War-mongering civilians, ensconced in their comfortable enclaves in Manila, must remember that in a real all-out war, there will be no sanctuaries, not even in the heart of the metropolis, and that those photographs of grieving mothers and children in evacuation camps will cease to be mere front-page newspapers stuff but day-to-day life in the here and now. Should it happen, a breakaway state in the Islamic south wouldn’t be a wholly isolated event. As recently as Aug. 25, 2008 (or 10 days ago), two states completed their secession citing their distinct ethnic identity, when South Ossetia and Abkzhia seceded from the state of Georgia, which itself had earlier broken away from the USSR. In February 2008, Kosovo declared its independence from Serbia, which had earlier broken away from Yugoslavia and subsequently from Serbia-Montenegro.

That the MOA is inconsistent with the Constitution—it definitely is—does not void it. As I have earlier written, it is at best a promise to submit constitutional amendments to a plebiscite, and at worst, conditional consent subject to ratification in that plebiscite. Most probably, such proposals will be voted down. To give foreign affairs and finance powers to the new “juridical entity” goes way beyond the settled meaning of “autonomy” and sounds too much like sovereignty, and gives it to a group which, by its recent actuations, seems unworthy of such immense trust.

But to insist that we never amend that Constitution to accommodate peace talks is to shut the door to peace. I can perfectly understand those who insist that the Constitution be the sole legal framework for the peace talks. One, that is the nature of internal armed conflict—the rebels are Filipino citizens living in Philippine territory, yet they are strangely bound by the flag against which they fight. And two, that is the logic of “pre-commitment”—bind your hands in advance for those times when you are tempted to sacrifice principle for expediency, when you are pushed to forget systemic norms for episodic advantage. That’s why we have a Bill of Rights. That’s why we have a Constitution.

Yet for issues of secession, there are enough pre-committed norms outside the Constitution, and if it were only a question of legal constraints, the constitutional straightjacket is unnecessary. (And if you argue that legal constraints never stopped anyone anyway, then what does it matter what law we invoke?)

One, the rule of non-use of force against the territorial integrity of states under the famous Article 2.4 of the UN Charter. Two, the principle of “uti possidetis” [as you possess], which preserves the territorial boundaries inherited from the colonizers. Three, the rule of non-intervention in our “reserve domain” under Article 2.7 of the UN Charter, under which the southern rebellion remains presumptively an internal matter for the Philippines. These three doctrines explain why, so far, only the former KGB officer Vladimir Putin of Russia and the Sandinista Daniel Ortega of Nicaragua have recognized the Georgia breakaways. It’s because the rest of the world holds sacrosanct the principle of territorial integrity.

On the other hand, there is a fourth doctrine, the right of self-determination (“to freely determine their political status and freely pursue their economic, social and cultural development”), which can be invoked by the MILF. It is this that explains why the Kosovar secession has been recognized by 47 countries, in contrast to only 2 for the Georgian breakaways.

In case we have forgotten, rebels of all stripes can very well invoke a classic document that has gained reverential status—and to which we equally must hold them true. Sure it was invoked against a colonizer, but then again, that is exactly how the Manila republic seems to have been constructed in the Moro imagination.
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, … a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, [and] whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it ….” (from the 1776 American Declaration of Independence).