SC urged not to 'kill' peace process with MILF

The Supreme Court could "kill" the peace process with the separatist Moro Islamic Liberation Front (MILF) if it makes the temporary restraining order (TRO) on the Moro homeland agreement permanent, a legal adviser to the government peace panel said.

In an interview on ABS-CBN News Channel (ANC) Tuesday, Camilo Montesa, an adviser to the Philippine government's peace panel with the MILF, said that if the SC makes its TRO permanent, then the "SC effectively kills the peace process."

In response to petitions from local officials of North Cotabato and Zamboanga, the SC issued a TRO Monday on the Memorandum of Agreement on Ancestral Domain (MOA-AD) that would have led to the resumption of talks for a final and comprehensive peace agreement with the MILF.

"I guess the Supreme Court will have to rethink its decision on this because it can effectively kill the peace process," Montesa, also a policy adviser of the Cotabato-based think-tank, Institute for Autonomy and Governance, said.

He said there was "great disappointment" in Kuala Lumpur after they learned about the SC's decision to stop the signing of the MOA-AD in Malaysia between the head of the government's peace panel and the MILF negotiators.

Instead of issuing a TRO, Montesa said the SC could have waited for the actual signing of the MOA-AD, scheduled August 5 in Malaysia, and then determine later, through a "judicial review", if the executive branch can commit to the agreement. 

Montesa said the peace process with the MILF is a "political question" which is the "province" of the executive, not of the judiciary.

He said the cancellation of Tuesday's signing on the MOA-AD was an "embarrassment" for the Philippines since there were representatives from various embassies engaged in the peace process who were already in Kuala Lumpur to witness the signing.

Get support

In hindsight, Montesa said what the executive branch could have done to avoid such an incident was to get the support of the legislative and judiciary behind a peace agreement even while negotiations were taking place.

"If we would do this all over again, what government must do is to bring everyone in the loop, meaning to say the Supreme Court and Congress because the Philippine government commits the whole state and not just the executive," he said.

He noted that the SC made its decision based only on the submissions by the local officials of North Cotabato and Zamboanga who were against the MOA-AD on the ground that they were not consulted on the homeland deal.

Montesa said the SC could have been given a security briefing by the executive department, which would have given the SC a bigger picture.

"I guess the Supreme Court made a decision based on the submissions and did not have the benefit of full briefing on the security, political, economic implications if this MOA-AD is not signed," he said.  "If the talks break down because of this TRO, there are a lot of political ramifications, and I think the SC was not fully informed about this."

Road map

Montesa clarified that the MOA-AD is simply a "commitment and a road map" that would have to go through a democratic process.

The MOA-AD creates a "sub-state for the Bangsamoro in a defined territory in southern Philippines" and commits the executive department to implement it.

"The MOA-AD is basically a road map. It contains the intentions of the parties to have doable peace in Mindanao, and the subsequent legal and constitutional processes are still to be undertaken by the Philippine government," he said.

Thus, Montesa said "there's really no irreparable damage or injury that needs to be prevented as to justify the issuance of the TRO by the Supreme Court."

On criticisms that the government was imposing the Moro homeland on the Christian majority in Mindanao, Montesa said that had the MOA-AD been signed, there would have been "all-out consultations", which will then be followed by a law calling for a plebiscite in more than 700 villages.

"The most important thing to remember is that what the MOA-AD commits with respect to the areas wherein Zamboanga, North Cotabato people are protesting is basically an inclusion on the list. But they will be asked sometime in the future, within a year, whether or not they would like to be part of the ARMM," he said.

Montesa said there were consultations with various stakeholders in Mindanao prior to the initialing of the MOA-AD, but he said that not all the agreements can be disclosed during the negotiations.

Security threat

He said the SC's TRO is a "hurdle" that must be overcome by the government, warning that the relative peace that has held since the Malaysia became engaged in the peace process in Mindanao may not hold.

Montesa said the term of the Malaysian-led International Monitoring Team (IMT) will terminate on August 31, and if there is no progress in the peace talks, the rest of the IMT might follow the Malaysians and pull out after August 31.

Based on feedback from peace advocates, he said this "will have serious ramifications in the security and stability in southern Philippines."

With the SC's TRO, Montesa said the Malaysian peace facilitators believe that "basically, the ball is in the government's hands, and this is internal to the GRP."

"Because as far as the MILF is concerned, this is a done deal already, and what was scheduled today was a merely a formal ceremony to celebrate the signing of the MOA-AD," he said.

Moro homeland not unconstitutional

Meanwhile, a peace advocate and expert on peace talks with Muslim separatists said Tuesday that the Arroyo government's move to grant a new homeland to 3 million Filipino Muslims is not unconstitutional as alleged by some lawyers.

Lawyer Soliman Santos, author of several books on peace talks with Muslim separatists, said it is "normal" to seek constitutional reform when negotiating with rebel groups.

"To seek constitutional change and reform (e.g. shift to federalism) has not been usually treated as unconstitutional, except it seems when it has to do with the Moro question," Santos said, in an e-mail sent to abs-cbnNEWS.com/Newsbreak.

"In fact, it is even normal for peace processes, as shown by the experience of many countries, to seek and effect constitutional change and reform as needed for a negotiated political settlement," he said.

Santos pointed out that even the peace process with the National Democratic Front (NDF) talks about the need for "constitutional change" especially when "questions of implementation start to be grappled with."

In the case of the GRP-MILF peace talks, he said it took the government 11 years--from 1997 to 2008--before the government agreed that a solution to the Bangsamoro problem that "would entail changes in the existing legal, including constitutional framework."

"It is to the credit of the GRP side that it is now willing to effect constitutional change as needed as part of an overall solution to the Bangsamoro problem," he said.

Santos pointed out that the 1935, 1973 and 1986 constitutions have always treated by the Bangsamoro people as part of the problem since these have failed to grant them genuine autonomy.  

He credited the government's negotiating panel for trying to "frame a qualitatively better and higher degree of self-determination for the Bangsamoro people short of independence or secession."

"These are peace negotiations, not surrender negotiations, between two sides which simply have different frameworks, if not world views," he said.

"As for the MILF and for that matter the NDF have often said, what point is there to these negotiations if their side will just accept the framework of the Philippine Constitution?" Santos asked.

In the MOA-AD, he said the MILF, just like the Moro National Liberation Front (MNLF), has "clearly come down from a maximum position" of independence for the whole of Mindanao.

Santos said the Philippine Constitution also allows for a process of amendments as part of the constitutional processes. He said the government recognized this when it negotiated a political settlement with the MNLF.

He said any agreement with rebel forces, which will require constitutional change, will go through either a constitutional convention, a constituent assembly, or a people's initiative.

The proposed changes in the charter also have to be approved by a majority of votes cast in a plebiscite.

Unlike the peace process with the MNLF, which did not require a shift to a federal system of government, Santos said the MILF wants a "negotiated political settlement" that "must go beyond the framework of the Constitution."

He said the government must be given the support it needs to "negotiate this difficult terrain" of resolving an armed conflict that has lasted four decades.

Michael Mastura, a member of the MILF negotiating panel told ANC Monday that changing the Constitution is a must for successful peace negotiations with the MILF.

"Let us face it: this Constitution has outlived its usefulness with regards to the Bangsamoro people’s problem and the conflict in Mindanao," he said.