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1st of a series
GENERAL SANTOS CITY (MindaNews/05 Sept) — Opponents of the Memorandum of Agreement on Ancestral Domain pinned it down on the question of constitutionality. At the Supreme Court hearing, the respondents led by the solicitor general admitted that the MOA-AD could not be implemented without amending the Constitution. That sealed the question.
The admission elicits the question: How unconstitutional is the MOA-AD?
Two propositions clash in the background: The agreement should suit the Constitution, not the Constitution suiting the agreement; versus, The Constitution must be amended if that is necessary to realize the objective – just and lasting peace in Mindanao – of the peace process.
The question of constitutionality must be resolved not to satisfy the Constitution or the constitutionalists but to reconcile the two clashing propositions. Rightly, the Constitution should pave — not obstruct — the way of the peace process.
The Premises
Deleting the word “Constitution” from the MOA-AD and using “legal framework” instead does not dispense with the necessity of having it as the primary term of reference. The substitution of “legal framework” confirms this.
Why is the Constitution indispensable? First, reference to international laws is in accordance with Article II, Section 2; second, the constitutionality or unconstitutionality of the agreement can only be determined in reference to Article X and other relevant provisions; and, third, so will be the determination of any necessary “amendments to the legal framework”.
Reference to the Constitution should not mean to limit the negotiation to what the Constitution now provides. Rather, the talks should follow the agreed agenda of the peace process. But the Constitution should be a flexible – not unnecessarily rigid, unbending – political and legal instrument, tempering rigidity with common sense.
Yes, as much as possible, the negotiation should strictly follow the Constitution; but when necessary, it should bend with the peace process even to the extent of allowing amendments. Is it not a truism that the Constitution is for the people, not the people for the Constitution? That is what Article XVI on Amendments or Revisions is for.
For the good of the people, it was once proposed to amend the Constitution to attract foreign investors; at another time, to change the form of government; and there is a proposal to change the political system. The MOA-AD-driven peace process is for the good of the people. Can the Constitution, with necessary amendments, not be used to pave the way?
The anti-MOA-AD petitioners want the court to strike down the agreement as unconstitutional. Have they determined how unconstitutional it is and, with certainty, that the amendment of the Constitution to shore up the peace process will materialize into the worst of their fears and perceptions?
Concepts and Principles
The five consensus points under “Concepts and Principles” defining the “Bangsamoro people”, their “ancestral domain” and “ancestral lands”, and “the authority and jurisdiction of the Bangsamoro Juridical Entity” alarmed the majority of the Filipinos and their leaders, crying to the tune of “sell-out”, “dismemberment of the republic”, “treason”, etc.
Reference to four sections (15, 18, 19 and 20) of Article X of the Constitution — adding a little amount of common sense — could have calmed down their alarm. The MOA-AD is not the end of the Philippine Republic.
Who are the “Bangsamoros”? (Consensus 1)
First: “Bangsamoros” is an identity. By birth, “all Moros and all indigenous peoples of Mindanao” [and its adjacent islands] have the right to “identify themselves and be accepted as ‘Bangsamoros’”, although in the case of the indigenous people or lumads, their “freedom of choice … shall be respected”.
Second: The identity “refers to those who are natives or original inhabitants of Mindanao and its adjacent islands and their descendants whether mixed or of full native blood.” The identity also refers to their “[s]pouses and descendants”.
What is wrong or alarming about that? Will it be wrong and alarming should Ilonggos, Ilocanos, Cebuanos, Tagalogs, etc. want to assert who they are, their forbears and descendants? The right to identity can never be unconstitutional.
What is Bangsamoro homeland? (Consensus 2)
First: The imperative. “It is essential to lay down the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations.”
Second: This homeland as defined. “Such territorial jurisdictions and geographic areas being their natural wealth and patrimony represent the social, cultural and political identity and pride of the Bangsamoro people.”
Third: Their right to their homeland as also defined. “Ownership to the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial and being the first politically organized dominant occupants.”
What is wrong and unconstitutional about a people defining and proclaiming their right to their homeland? Every ethnic group in the country has a homeland – Panay for Ilonggos; Ilocos for Ilocanos; Katagalogan for Tagalogs; Cebu for Cebuanos; Bicol for Bicolanos, etc.
Each ethnic group is proud of their homeland as the source of their humanitarian and economic needs, their political aspirations, and their social, cultural and political identity. Why deny the same to the Muslims? Tracing the historicity of their right to their homeland strengthens them as a people. Distinguishing themselves will not dismember the Philippines.
Article X, Section 15 of the Constitution provides that Muslim Mindanao autonomy should consist of “…provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics…” That’s what Consensus Points 1 and 2 are all about. BJE is another version of the Autonomous Region in Muslim Mindanao.
What is ancestral domain and ancestral land? (Consensus 3)
First: The distinction. “Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well as all natural resources therein that have inured or vested ancestral rights on the basis of native title.”
Second: Definitive elements of “ancestral domain and ancestral land” as to:
(Ownership). “… those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually…”
(Tenure). “… since time immemorial continuously to the present except when prevented (a) by war, civil disturbance, force majeure, or (b) other forms of possible usurpation or displacement by force, deceit, stealth, or (c) as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.”
Controversial
The acknowledgment of ancestral domain as not forming part of the public domain is deemed to be unconstitutional in violation of the regalian doctrine embodied in the Constitution which provides that: “All lands of the public domain belongs to the State, which is the source of any asserted right to ownership of land.”
But the doctrine has been long overtaken by international laws and conventions protecting the human rights and rights to lands, territories and resources of indigenous peoples and of which the Philippines is a signatory. Such laws and conventions – five of which are MOA-AD terms of references* – bred R.A. 6371 (the Indigenous Peoples Rights Acts of 1997) which is also a MOA-AD TOR and the validity of which has been upheld by the Supreme Court.
*[The five: (1) ILO Convention No. 169, (2) UN Declaration of the Rights of Indigenous Peoples, (3) the UN Charter, (4) the UN Universal Declaration on Human Rights, and (5) the International Humanitarian Law.]
Are the Bangsamoros indigenous people? They are according to Article X, Section 3(b) of R.A. 9054 and Article XI, Section 3(2) of R.A. 6734, the original Organic Act of the ARMM. Both acts are TORs of MOA-AD.
How could the consensus on ancestral domain and ancestral lands be unconstitutional when its references are constitutional? R.As. 6371, 9054 and 6734 are Philippine laws; the conventions and international laws are, according to Article II, Section 2 of the Constitution, “part of the law of the land”?
Acknowledgment
The consensus on the definition of ancestral domain and ancestral lands is not only disturbing but offensive to the government, the settlers or migrant and estate owners, the concession and lease holders. To them, this is most discomforting despite the guarantee of individual civil rights and vested property rights in Consensus 5 and 7 of “Concepts and Principals”. They cannot tolerate the challenge to the legality of their transactions with the government.
By the consensus, the government acknowledged Muslim grievances concerning how they had unjustly lost their lands, as an established fact or as alleged. This is not an agreement to return those lands but it is the first step for future actions to address the injustice. To the MILF this is most satisfying; to the government, this is some kind of mea culpa to which, unfortunately, the majority of Filipinos in Luzon, the Visayas and as well as in Mindanao vehemently disagree
But what is wrong – least of all unconstitutional – in acknowledging the injustices done against the Muslims and addressing these during the negotiation of the comprehensive agreement? In reality, this is a big, indispensable push for the peace process.
The fears and perceptions associated with this consensus and the vehement protests are an acknowledgment of insensitivity to the injustices against the Muslims – the main root of the Muslim problem – and of blindness to the need and means of lasting peace with justice in Mindanao. (To Be Continued) .
(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. Mr. Diaz is the recipient of a “Lifetime Achievement Award” from the Titus Brandsma for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You may e-mail your comments to
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