An Open Letter re: MOA-AD

Written on Wednesday, August 27th, 2008 at 11:46 pm | by Abe N. Margallo

An Open Letter re: MOA-AD

By Datu Michael O. Mastura

(This open letter that’s currently going the rounds is attributed to Datu Michael O. Mastura, a member of the MILF peace panel. Mastura is an Islam scholar, a Filipino lawyer and a former member of the Philippine Congress representing Maguindanao.)

Dear All,

We don’t have money to further enrich the national dailies with a whole page AD. So I do have to settle for alternative media prints “a la pobre”. But it has the benefit of global interconnectedness. Here’s my initial salvo to Frank’s ADS on MOA-AD. I will elaborate my commentary much later. For the sake of a broader debate, please help circulate this Open Letter on the MOA-AD.

Yours truly, Datu Michael O. Mastura

An Open Letter 24 August 2008

My reply email was interrupted by a brownout amidst my composing thoughts I wanted to convey to our readers at the Mindanews website besides Luwaran website. Hopefully someone from the editorial box of the national dailies (in particular PDI) will pick as news items warranting some space the legal views of lawyers (like me) who represent MILF as the real Party in interest across the GRP-MILF negotiating table.

The series of full page ADS in PDI 08/22/08 and PD 08/23/08 of former senate president Frank M. Drilon simplify and focus on perceived infringements to the 1987 Constitution. Those two Q & A pages make up powerful arguments for the continuing extension of what I call the “colonisibility status” of the Bangsamoro people, posing the matter of immediate infringement as a danger.

If we think rationally out of the maddening reactive anti-Moro sentiments generated by opinion-editorials and hardly balanced media coverage of the Government-MILF peace process, it makes me reflect the ‘triumph of diplomacy’ in our era of postmodern states. [N. B. this phrase is taken from the title of a book on how the Moro rulers of the Magindanaw sultanate and the Sulu sultanate had survived the era of treaty-making with Spain, an imperial power, and Holland, a commercial power, of the time and the United States up to 1916, when President Woodrow Wilson enunciated seminal ideas of the right to self determination.] Thus, there is no occasion to speak of Balkanization of this ungovernable part of the region.

Now the Country (el Pais)—Las Islas Filipinas—has just awakened to the depth of the Bangsamoro legitimate GRIEVANCES. Instead of killing the ideas—the CAUSE (or SABAB)—embodied in the MOA-AD, the representatives of Government must face up to the Agreed Text as STATECRAFT. It vindicates the JUSTNESS of the ORIGINAL POSITIONS to fix in constitutional construct. Traditional Moro negri (statehood) ‘earned sovereignty’ is encapsulated by the Republic in its present form and structure as an autonomous entity presently in existence before the family of nations since 1946.

Spokespersons for that Sovereign state called the Republic of the Philippines (GRP) configure their constituencies into a political community. Such an assumption neglects a number of contested constitutional issues before the negotiating table.

What is the “territorial integrity” of the Philippines? When reduced to geographic maps with proper technical coordinates, the fundamental question we formally raised at the GRP-MILF Talks are as follows:

1. Is the present national territorial delimitation based on the Treaty of Paris of 10 December 1898 as corrected by the Treaty of Washington of 7 November 1900 and the treaty between the United States and England on 2 January 1930? Or,

2. Is it the current technical description of the archipelagic doctrine based on R.A. 3046 of 1961, as amended by R.A 5446 of 1968 as a system of straight baselines, its negotiating position on boundary delimitations under the United Nations Law of the Sea Convention?

An act of statesmanship is to ‘write sovereignty’ in terms of the ‘associative ties’ envisaged in the MOA-AD. We cannot proceed with a serious debate as if the meaning of sovereignty were stable; for, in reality, not one but various forms of sovereign statehood exist. There’s no confusing justice with legitimacy for workable arrangements here. However, there’s a truncated understanding of sovereignty when 12 June 1898 was fixed by law as an episodic event, following the inauguration of Philippine independence on 4 July 1946. Article 1 of Title I of the Malolos Constitution succinctly reads: “The political association of all the Filipinos constitutes a nation, whose state is called the Philippine Republic”. At that point in time, the Bangsamoro homeland was not a part of the whole Country, for as a matter of historical narrative that Republic invited the Sultan of Sulu and the Sultan of Magindanaw to federate with it.

What matters for us present generation of patriots is that Drilon’s half-a-million-worth of PDI ADS highlights the absolute necessity for a change in the first principles of the unitary system. How do we, then, fit inter-subjective understandings of ‘statehood’? Former senate president Drilon, at least, seriously confronts the arenas of debate over the MOA-AD, but why does he not concede to explore the course of constitutionalism beyond the status quo of the existing constitutional order? That is unfortunate, because, what is placed before the Supreme Court is a new “elegant formula” of negotiability to balance between state sovereign authority and the right to self determination.

We need to examine the MOA-AD on the foundation of the formal division of sovereignty that favors “state rights” that have inhered in the Bangsamoro people, whose ancestral homeland was “illegally and immorally annexed” to the Republic without their plebiscitary consent. Peace negotiations are said to be “the war after the war”. Here, too, there is a subtle but in-depth way of looking at what amount of central authority in point of fact is compatible with “what is worth dying for” in the eyes of the majority of Bangsamoros in the contemporary politics of identity.

This is what the MILF-GRP negotiation process is all about: to determine the extent and limits of each side’s commitments. Clearly the premise of peace with your Muslim brothers under the MOA-AD precisely does not endanger but entrench the Country’s sovereignty. The MOA-AD achieves, rather than contemplates the use of naked coercive force, the desirable levers of division, allocation and distribution of powers; in other words, shared and residuary authorities for the Bangsamoro people and the rest of the Filipino people. All I can advance for now as an explanatory note is that the “general welfare clause” of the Philippine Constitution matching the principle of maslaha wal mursalah in Islamic constitutionalism is a catch all framework to accommodate “a medley of associative ties and tiers”.

I will elaborate on these points in a separate commentary on specific provisions of the MOA on AD. If only a healthy environment for serious debate is not drowned out by the intrusion of the mass media into the negotiating process that now encourage the politics of fear at the Metro Manila capital while excessive use of force are applied to villages in Mindanao, we can peaceably settle the conflict in Mindanao.

All the best,

Datu Michael O. Mastura

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About The Author: Abe N. Margallo is a teacher, lawyer, author, columnist, and activist. When not running, advising community associations, or teaching, he studies events, and reacts accordingly by writing, blogging (at Red’s Herring) or acting on them, alone or with others

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22 Responses to “An Open Letter re: MOA-AD”

  1. Bencard on August 29th, 2008 4:19 am

    datu mastura, assuming, for argument’s sake, that the “bangsamoro” territory was “illegally and immorally annexed” to the republic in the treaty of paris (1898), how would you refute a claim of title, i.e., sovereignty by the republic under the doctrine of acquisitive prescription ( adverse possession) by virtue of a long, adverse and continuous possession under a color of title for over 100 years? under both the prevailing rules of law and equity on the matter, it would seem to me that, legalistically speaking, your claim is untenable.

  2. Datu on August 29th, 2008 4:44 am

    Legalistically, which law? Where does it say that one can acquire a bangsa together with its natural and human resources by prescription?

  3. Ding Gagelonia on August 29th, 2008 10:05 am

    Atty Mastura,
    I just have several non-lawyer’s questions: Do you in the MILF consider yourselves Filipinos? If so, why are foreigners, with their own designs on our natural resources, fueling your cause? Why did your leaders seek help from the White House? Are Esperon and company talking to you as ‘foreigners’, or as Filipinos?

  4. Dong on August 29th, 2008 1:10 pm

    “We Filipinos would do well to handle our own worries and not to always look to Uncle Sam for ’solutions’ with palms open ‘mendicantly.’” - Ding

  5. the jester-in-exile on August 29th, 2008 9:59 pm

    mister mastura,

    “excessive use of force are applied to villages in Mindanao”

    what, you think the marquis of queensberry rules apply in war?

    idiocy.

    oh, speaking of excessive force? the luwaran.com report AFP uses excessive force in attack pulverizing Muslim communities?

    Heavy air strikes from OV 10 bomber plane, F5 and MG520 Helicopter gunships and artillery and mortar shelling were unleashed by the AFP soon after the ground attack it perpetrated against the MILF forces.

    we haven’t had F5s for quite a while now.

    yet another masterful example of dissimulation.

  6. Bencard on August 29th, 2008 10:57 pm

    datu mastura, your bio indicates that you are a bar- member lawyer. therefore, i assumed you’ve at least heard of that body of laws recognized in common law, civil law and international law encapsulated in the legal doctrine “adverse possession” at common law, and “acquisitive prescription” in civil law jurisdictions. i suggest you google the term, if you have no opportunity to go to a law library. our own civil code of the philippines devote a whole chapter to it, chapter V, articles 1106 through 1138.

    if you say “sharia” law doesn’t recognize the doctrine, that’s just too bad. but why do you think the bangsamoros are called “rebels” and treated as such?

  7. Datu on August 30th, 2008 3:16 am

    Even assuming, arguendo, that the provisions of the Civil Code (a law of general application enacted in 1949) on prescriptive acquisition applies to ancestral domain, the 1987 Constitution has apparently reduced the basis of such an assumption to nil. The Constitution has authorized Congress to provide for the applicability of customary laws governing property rights or relations concerning ancestral domain. Pursuant to said authority, Congress passed IPRA of 1997 (a special legislation) into law, recognizing the ICCs/IPs’ ancestral domain, and requiring the application first of customary laws, traditions and practices of the ICCs/IPs “with respect to property rights, claims and ownerships, hereditary succession and settlement” of ancestral land disputes and where “any doubt or ambiguity in the application of laws shall be resolved in favor of the ICCs/IPs.”

    IPRA now makes it even plainer that prescription under the Civil Code could be of questionable application to ancestral domain and lands.

  8. Bencard on August 30th, 2008 3:34 am

    questions: does ipra specifically abrogates the civil code with respect to acquisition of title on property? if so, does ipra make provisions at all for properties falling within the purview of acquisitive prescription doctrine recognized in the civil code?

  9. Datu on August 30th, 2008 9:41 am

    Mr. Bencard, you are a lawyer too, right? How do you answer your questions then?

  10. Bencard on August 30th, 2008 10:33 am

    yes, datu. i’m a fil-am lawyer practicing in 2 states of the u.s. but it was you and not me who wrote this “open letter” in apparent effort to explain the bangsamoro’s ancestral domain claim. therefore, i get to ask the questions and i expect you to answer them as advocate for the claimant.

  11. Datu on August 31st, 2008 12:54 pm

    You don’t need to be a lawyer in two or more states to answer your own questions. Common sense is enough. For instance, can an ordinary statute prevail over the Constitution? or What is the rule if a older law of general application conflicts with a new law of special application?

  12. Bencard on August 31st, 2008 7:30 pm

    o.k., let’s say i don’t have common sense. didn’t the constitution leave it up to the legislature to deal with claimed ancestral domain? so, did the legislature, through ipra, abolished the civil code with respect to alleged “ancestral domain”, or specifically replaced it with some other provisions?
    where is the conflict that you are talking about?

  13. the jester-in-exile on August 31st, 2008 7:54 pm

    so there it is. mister mastura is NOT defending his stand.

  14. Datu on September 1st, 2008 5:56 am

    Mr. Bencard, I’m just curious if repeal by implication is recognized in the two states that you practice law.

    Anyway, discovery, conquest and slavery were once justified by Catholic Popes by the fact that native peoples were not Christians.

    On the other hand, under the doctrine of Terra Nullius, settlements by the natives afforded no property rights and therefore such settlements were allowed to be claimed by anyone by occupying and developing it.

    If by any modernity standards, both legal fictions of acquiring property are now considered to be uncivilized or barbaric, where do you think would a theory of acquiring a bangsa by acquisitive prescription be in the same scale of barbarity, given the express recognition now in the Constitution of ancestral domain and the attempted realization through IPRA of that recognition?

  15. Bencard on September 1st, 2008 10:20 am

    the constitutional recognition of ancestral domain and putting it into effect through ipra are manifestations of ownership, dominion and sovereignty of the republic of the philippines over the so-called bangsamoroland.

    under ipra, a legitimate ancestral domain may establish its own justice system “as may be compatible with the national legal system”. also, property rights within the ancestral domain already existing and/or vested at the ti
    me ipra became effective “shall be recognized and respected”.

    fyi, repeal of a law, whether express or implied, is always prospective, never retroactive. thus, even assuming for argument sake that ipra has repealed the civil code provisions on acquisition by prescription, it cannot operate to divest rights that were already in existence.

  16. AdB on September 1st, 2008 10:32 am

    Re: we haven’t had F5s for quite a while now.

    Has PAF mothballed their remaining 4 or 5 F5s?

  17. Dean Jorge Bocobo on September 1st, 2008 11:09 am

    Datu, Bencard,
    IPRA becomes the central bone of contention. It’s constitutionality was tested in Cruz v. DENR/NCIP but the 7-7 tie decision (2000) does not offer solace in jurisprudence or doctrine for its supporters, all of whom even admitted (sheepishly, I think) that it represented a radical departure from established principles (like the Regalian principle and various others of a technical nature). So radical they ought to have rejected it. It will be challenged again.

    In the meantime, I wish to challenge the claim of Datu Mastura that MILF represents the “bangsamoro” in any legitimate sense. If their goal is independence all this legal talk is worthless, no? They simply have to win by the force of arms and decisive Bangsamoro support, which have not been forthcoming. And three plebiscites have already tested “self-determination”. What happens to the MNLF and elected Moro officials if were to give in to these MILF “demands” at the point of a gun?

    I like the new position of the govt better: disarm and demobilize first, then work for a political settlement (including Bangsamorostan if you can manage it) the way everybody else has to, including the 100 other indigenous peoples and 50 non-indigenous Fiipino tribes who happen to make up the overwhelming majority of HOMO SAPIENS in this archipelago.

  18. Datu on September 1st, 2008 11:47 am

    On the contrary, “the constitutional recognition of ancestral domain and putting it into effect through ipra are manifestations,” although belatedly, of certain pre-existing rights or “pre-conquest rights to lands and domains . . . as far back as memory reaches” and therefore preceding the so-called state dominion in like manner that a claim of a right based on acquisitive prescription is an acknowledgment of a valid pre-existing or prior right.

    ALWAYS prospective, NEVER retroactive?

    The presumption is that the legislature
    intended the repealing statute to be applied retroactively, unless there is an expression of legislative intent to the contrary. For example, if a law is passed today de-criminalizing libel and therefore repealing existing criminal libel laws, that law will apply retroactively and will mean dismissal of all pending libel cases. When did this rule change?

  19. E Unum, Pluribus | Filipino Voices on September 1st, 2008 2:05 pm

    […] the historical and legal wrangling, (see for example the recent post here at Filipino Voices from Datu Mastura) Democracy itself has evolved to the point where there can be no more compromising its most basic […]

  20. Dean Jorge Bocobo on September 1st, 2008 3:02 pm

    Datu is literally correct. IPRA does repeal the Regalian Doctrine and declares nearly one third of the Philippine territory in 110 separate patches or more, to be “private property ancestal lands and domains.” That is why its Constitutionality will be severely tested in the days and perhaps years to come. Because it absurdly leads to dismemberment and apartheid!

  21. Dean Jorge Bocobo on September 1st, 2008 3:18 pm

    Some questions for Datu Mastura:

    The MOA-AD defines the Bangsamoro People as follows:

    “The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or of full native blood.”

    Question: Could we be more precise as to which “conquest or colonization” is actually referred to, since this formulation occurs ? (To the nearest century would be okay, as well as by whom, and why that one.)

    Another: How are descendants to be identified or verified. By DNA analysis, tarsilas, self-ascription, proclamation?

  22. Bencard on September 1st, 2008 6:34 pm

    panero mastura, i thought we have been talking about property law all along, not criminal law. you’re right, in criminal law, repeal can be retroactive when beneficial to the accused. perhaps, i should have been more specific than relevant.

    at any rate, how can you give away something that you don’t own? why would there be a need for a constitutional imprimatur and legislative fiat for a bangsamoroland to exist? why should its justice system be compatible with the national rule of law? why should decisions of its adjudicatory bodies be subject to review by the courts of the republic?

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