GENERAL SANTOS CITY (MindaNews/20 March) -- A comparison of the two Drafts in reference to the seven-item guideline will show vital differences.  The more these will stand out upon looking closely into the Articles.

At the Outset

The vital differences begin with the Draft titles: The emphasis of the GRP Draft is Peace; that of the MILF Draft is Interim Government.

The preambles of the Drafts also present vital differences that readily show the GRP and MILF heading to opposite directions. 

“The Philippines is a nation of ethnic and cultural diversity, where people can claim autonomy within the framework of national sovereignty and territorial integrity, as expressed in the 1987 Constitution.” (Emphasis supplied)

On this principle, it offers “enhanced autonomy” to the MILF exhorting that “a just peace is possible only through the free will and consent of all the peoples affected”.

In the MILF Draft, the initialed MOA-AD is a principal reference in the negotiation of the Comprehensive Compact – stated in the Preamble and reiterated in Article I. In Article II, the 1987 Constitution is acknowledged not as the GRP Draft wants it to be but as an instrument needing amendments to implement the Comprehensive Compact.

Seven-Item Guideline

An article-by-article examination of the Drafts would show how the GRP and the MILF have adhered to their agreed Seven-Item Guideline. [Refer to: December 9, 2009 agreed Seven-Item guideline under “Moral Issues” above.] This has a defining implication on the peace process. 

The GRP Draft has virtually bypassed the seven-item guideline. It contains “doables” to enhance autonomy through executive orders. Measures that are beyond the power of Executive will be sent to Congress for legislation -- if necessary, for constitutional amendment. Only Article 3 (On Wealth Sharing) and two sections of Article 5 (Other Commitments) touch the Guideline with some degree of relevance.

The MILF Draft, except for Articles I and II (On Aims and Principles, respectively) are keyed to the Guideline – modifying “(5) Restorative justice and reconciliation” to “Transitional Justice …”.

Their agreement to fast track the negotiation by exchanging Drafts based on their common guideline is not a license for the GRP and the MILF to detract from their commitment in their July 29, 2009 Joint Statement.  The Seven-Item guideline fleshes out the Joint Statement. The GRP has disregarded the Statement and the Supreme Court MOA-AD Decision.         

No Meeting Point

The Drafts are so different that they have no meeting point for reconciliation. The issues and concerns emanating from the Seven-item guideline should have defined the meeting points with the contending positions of the Parties embodied in the Drafts.

In the negotiations over Ancestral Domain until the initialing of the Memorandum of Agreement, Ancestral Domain was broken down into talking points and arranged in the Incremental Matrix -- the MILF positions ranged against those of the GRP. When resolved, the talking points became consensus points.

In the exchanged Drafts, the MILF Draft contains vital issues – in fact contentious issues; the GRP Draft contains non-issues – “doables” and other offers.  The Drafts call for two different actions.  What will they do at the negotiation table – they first tackle the issues in the MILF draft, or the MILF first consider the GRP offers?

The GRP Draft is not for negotiation but for acceptance or rejection. What might become subjects of bargaining – not negotiation – are the rejected offers to make them acceptable. This downgrades the peace talk to sales talk.

In fact, the GRP Draft contains just tentative offers, subject to bargaining. As Peace Process Secretary Annabelle Abaya has nicely put it, “This is a first draft. In a first draft, you usually give your position and then shift your position depending on what the other side thinks.” (Inquirer.net, February 2: Gov’t offers MILF ‘enhanced autonomy’ to end rebellion)

Iqbal is right in telling the ICG: “In short, the GRP draft has not conformed to the basic agreed principles in the Joint Statement for the resumption of negotiations dated 29 July 2009.”

Seguis is also right in stating to GMA News.TV that the Drafts are not expected to match. The MILF has different demands; the Government has different ideas as to what an agreement should contain and how to forge it.

IV. How Different?

How different are the Drafts on closer scrutiny?

The most significant: They differ in the solution of the Mindanao Problem to end the Mindanao Conflict – the ultimate goal of the peace process.

GRP Solution

The GRP Draft centers on “Enhanced Autonomy” within the Autonomous Region in Muslim Mindanao and the amended Organic Act, R.A. 9054. The executive doables and other offers are for this end. This is now the offer to the MILF to end the 40-year rebellion as a legacy of President Arroyo.

This “Enhanced Autonomy” is defined in Sections 1 of Article 1 as “the subject of this Agreement”, the “highest form of autonomy”. As “the expressed desire of the Bangsamoro people”, its purpose is “to address their humanitarian and economic needs as well as their political aspirations”. (Emphases supplied)

Section 2 states that this “ultimate objective” can be attained by enhancing “the powers and functions of the existing Autonomous Region in Muslim Mindanao (ARMM) Regional Government through immediate actions by the Executive Branch, and proposals for legislative and other policy changes as appropriate”.

The GRP Draft shows no traces of the negotiations from the Declaration of Intent in 1997 to the initialing of the MOA-AD in 2008 although it acknowledges the Terms of Reference in its preface. It has no reference whatsoever to consensus points in the MOA-AD. Can this be construed that any sub-state idea is a closed no-no?

In their media statements, Seguis, Abaya and Ermita belaboredly assure that the GRP Draft has no Bangsamoro sub-state, is compliant with the Constitution and the Supreme Court Decision and will not “fractionalize the state”. They stress that there is no agreement yet. The GRP sounds chastised by the opposition and critics of the MOA-AD and by the Supreme Court and haunted by the memories of the MOA-AD debacle.   

MILF Solution

The MILF Draft centers on the entrenchment of “Interim Governance” still to be agreed in the “Comprehensive Compact” to establish “Bangsamoro State” – in free association relation with the Philippine State -- defined in Section 2 of Article II as having an “interim jurisdiction [that] will cover the land base and territorial waters set out in [the MOA-AD] agreed Schedules (Annex 2, Category A, B and C) the delimitations of which are reframed as constitutional issues”.

“Bangsamoro State” is the reframed “Bangsamoro Juridical Entity” in the MOA-AD. In his media statements MILF panel chair Mohagher Iqbal likens this to Sarawak Federal State of Malaysia that has a form of government the same as that of the Bangsamoro State provided in the MILF Draft. As Section 1, Article II asserts, this is the legitimate “choice of the Bangsamoro people in regard to their national identity and the right to determine their future political status”.

The realization of this solution is embodied in Article I, providing the aims of the negotiation of the Comprehensive Compact and its term of reference – “the prior agreements” consolidated “without derogation” and “the conceptual framework of the initialed Memorandum (MOA-AD) in respect to the ancestral domain”.

The MILF Draft hews to prior agreements including the MOA-AD as it adheres to the December 9 agreed Seven-Item guideline.

Inference

The GRP Draft is a clear statement of the Arroyo government rejecting the political settlement of the Mindanao Conflict, the MILF option. The political aspirations of the Moros are incidental, not preferential – taking a third seat behind humanitarian and economic needs.

The GRP Draft is a statement of the Arroyo government denying the gains of the past eleven years of the GRP-MILF peace talks.  It has reversed its tact in the peace process and torn down the bridge of good will, confidence and understanding built by its past negotiating panels.

Ironically, the GRP alternative to the MILF option has been repeatedly rejected in the past by the MILF. Yet, Abaya has expressed the government’s hope that “the fresh offer would convince the MILF to sign a peace accord” before June 30, 2010. (Inquirer.net, February 2, 2010: Gov’t offers MILF …) (Emphasis supplied)

The MILF Draft is a clear statement the MILF is standing firm on and will not change its position on Ancestral Domain notwithstanding its reframing of the Memorandum of Agreement. This can stall the negotiation.

Contrary Meanings

It appears that “Ancestral Domain” in the GRP Draft has different meaning from that in the MILF Draft. This connotes contrary intents of the Parties and does not bode well for the negotiation.

Article 2 of the GRP Draft is about “recognizing ancestral domain claims of the Bangsamoro people”. Section 1 recognizes “the right of the Bangsamoro people to their ancestral domain”, stating they “have the option to immediately establish their ancestral domain and ancestral land claims under the current legal framework of the Expanded Organic Act for ARMM (Republic Act No. 9054, or Organic Act)”.

Section 2 quotes a portion of Section 1, Article X of R.A. 9054 defining “ancestral domain and lands of Indigenous Cultural Communities”. This definition is essentially the same as the definition of “ancestral domain” (Section 3a) and “ancestral lands” (Section 3b) of Chapter II RA 8371 (IPRA) and that of “ancestral domain” in the MOA-AD (Consensus 3 of Concepts and Principles).  

Why does the MILF dismiss this as “nothing new”?

The 1996 GRP-MNLF Final Peace Agreement that was enacted into R.A. 9054 did not have a definition of ancestral domain.  Obviously, Congress lifted the definition in IPRA to become the definition in R.A. 9054 -- specifically classifying “Bangsamoro People” as a component of “indigenous cultural community”. 

Is this much of a difference? To the MILF it is. In a statement, Mastura said: “On definition of the term “ancestral domain” in the contexts of MOA-AD and IPRA, the contexts may overlap but not have the same elements. … [T]he conceptualization of IPRA is based on CULTURAL INTEGRITY of Indigenous people, whereas MOA-AD is anchored on POLITICAL IDENTITY of the Bangsamoro people.”

a.    [[AUTHOR’S NOTE: Mastura emphasized that “IPRA covers ‘CULTURAL identity’ whereas MOA-AD covers ‘POLITICAL identity’ in relation to the State as a political identity. IPs (Indigenous People) conceived in IPRA as minorities is a very different one from the story of Islamized Moro resistance and transformation of the Bangsamoro people.] 

Obviously, the GRP Draft contemplates “ancestral domain” as lands to be possessed by the Indigenous People, the Bangsamoro People included; the MILF Draft, in the context of the MOA-AD, means “ancestral domain” to be the jurisdictional area of the Bangsamoro state. The first has socio-economic intent; the second, political.

Both Drafts talk about “amendment of the Constitution”. Evidently, however, to the MILF amendment means to make the unconstitutional constitutional or to remedy unconstitutionality; to the GRP, to make changes in the constitutional. That can derail the peace process.  (Patricio P. Diaz/MindaNews) [Tomorrow: Doability]

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