THE Supreme Court recently issued a temporary restraining order to prevent the Arroyo government and the Moro Islamic Liberation Front (MILF) from signing the memorandum of agreement on the Bangsamoro ancestral domain issue in Malaysia. The MOA signing would have paved the way for the resumption of formal peace negotiations between the government and the MILF panels.

But the MOA, which has been kept from public knowledge, has come under fire from critics who have raised the issue of its constitutionality. The agreement calls for the creation of a new state, a Bangsamoro Juridical Entity (BJE), out of an expanded Autonomous Region in Muslim Mindanao (ARMM) that would, among others, have full authority to develop and exploit natural resources within its delineated territory. The BJE would also have its own institutions, including civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions.

Both the government and MILF, however, defended the agreement as being a product of 10-year discussions, and one that has passed the legal scrutiny of experts.

In this and a succeeding post, we publish essays written by Atty. Soliman Santos Jr., a Bicolano human rights lawyer who provides his own perspective on the issues assailing the unsigned MOA on ancestral domain as a long-time peace advocate and legal scholar. Soliman argues that if a real and lasting solution to the Bangsamoro problem is to be achieved, the negotiated political settlement must have to go beyond the framework of the Constitution.

Negotiating beyond the Constitution, not unconstitutional

THE unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) is being assailed now for being unconstitutional because some of its provisions admittedly go beyond the framework of the 1987 Philippine Constitution. We beg to disagree that this is necessarily unconstitutional. To seek constitutional change and reform (e.g. a shift to federalism) has not been usually treated as unconstitutional, except it seems when it has to do with the Moro question. 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.

A peace process may seek from the very start to eventually achieve constitutional reform, among other reforms, as is the case in the GRP-National Democratic Front (NDF) peace negotiations, per The Hague Joint Declaration of 1 September 1992. Or a peace process, especially at the government end, may see the need for constitutional change only towards the later part of the process, when questions of implementation start to be grappled with.

In the case of the GRP-MILF peace negotiations, it started in 1997 with the MILF’s single talking point: “To solve the Bangsamoro problem.” It was only 11 years later, in 2008, that the GRP side saw that the emerging ancestral domain aspect of a still to come “just, lasting and comprehensive solution to the Bangsamoro problem” would already entail changes in the existing legal, including constitutional, framework. And now, in the MOA-AD, the MILF in effect recognizes or acknowledges this “existing legal framework” albeit with a view to some key changes.

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. After all, as a number of legal and scholarly studies have long pointed out, the Philippine Constitution of 1935, 1973 and 1987 have all been part of the problem in so far as these have framed the structural relationship between the Philippine state and the Bangsamoro people. This is a colonial-type structural relationship which does injustice (this word used by Cotabato Archbishop Orlando V. Quevedo) to the Bangsamoro identity, way of life and longing for self-rule.

The framework and provisions of the 1987 Philippine Constitution, including its provisions for an Autonomous Region in Muslim Mindanao (ARMM), and its overarching application to the 1996 GRP-Moro National Liberation Front (MNLF) Final Peace Agreement (FPA), have been proven by 12 years of experience, to be inadequate in terms of effectively and qualitatively restructuring that relationship in a way that helps solve the problem. Thus, the effort in the GRP-MILF peace negotiations to frame a qualitatively better and higher degree of self-determination for the Bangsamoro people (not just the MILF) short of independence or secession (the last upper limit for the GRP). The MOA-AD is an important part of the process of this effort but it is not yet the Comprehensive Compact (final peace agreement).

These are peace negotiations, not surrender negotiations, between two sides, which simply have different frameworks, if not world views. As 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? This Constitution represents to them precisely the system that they are fighting to overthrow or separate from. It is the inherent character of peace negotiations of this sort to seek and find mutually acceptable common ground, usually somewhere in between the respective minimum and maximum positions of the parties. In the MOA-AD, the MILF (like the MNLF before), has clearly come down from a maximum position of independence for the whole of Mindanao, Sulu and Palawan as the Bangsamoro homeland. This should help place the MOA-AD in perspective in terms of who is really giving and taking in the overall, including historical, scheme of things.

But if the Philippine Constitution is the definitive framework of the GRP side, how can the GRP Peace Panel agree to provisions, such as those in the MOA-AD, which go beyond the existing constitutional framework and provisions? The quick simple answer is that it is because the Constitution itself allows for a process of amendments or revisions, to be among its constitutional processes.

To illustrate this, we cite two examples, one each, from the peace negotiations with the NDF and with the MNLF. First, in the GRP-NDF Breukelen Joint Statement of 14 June 1994, there is this paragraph: “The GRP Panel reaffirms its position that the GRP commitment to Constitutional processes…does not mean it will cite the GRP Constitution as a basis for rejecting what otherwise would be just and valid proposals fore reforms in society. If it is shown in fact that certain provisions of the GRP Constitution hinder the attainment of genuine reforms, the GRP Panel is willing to recommend to GRP authorities amendments thereto. In this context, it is clear that the GRP’s adherence to constitutional processes does not constitute the imposition of the GRP Constitution as framework for the peace talks.”

Second, there was this GRP position during its 1992-96 peace talks with the MNLF: “…that is not to say, however, that the Constitution is an inflexible and static document. It is a living constitution with built-in procedures for its amendments or revision, that will bring back to the people for approval such amendments or revision, to meet the needs and aspirations of the Filipino people…Any agreement which runs counter to the provisions of the Constitution or goes beyond its framework, needs to go through the tedious process of amending or revising the constitution, through a proposal made by a constitutional convention called by Congress or a proposal made by Congress by itself acting as a constituent assembly or a proposal by people’s initiative; and approval or ratification of the proposal by a majority of the votes cast in a plebiscite conducted throughout the Philippines.” This was, however, not really tested then because the negotiated political settlement with the MNLF did not go beyond the framework of the Constitution — the implication is that it could have, albeit through a tedious process.

But the peace talks with the MILF is another matter, with much indications that the negotiated political settlement this time must go beyond the framework of the Constitution, if it is to be a real and lasting solution to the Bangsamoro problem. The GRP Peace Panel, as an extension of the President and Chief Executive, must be given the necessary leeway and support — political, moral, technical, legislative and judicial — to negotiate this difficult terrain of effectively resolving an armed conflict of four decades already this year, counting from the 1968 Jabidah Massacre.

Atty. Soliman Santos Jr. graduated cum laude from the University of the Philippines with a degree in A.B. History. He obtained his law degree from the University of Nueva Caceres. He has a Master of Laws from the University of Melbourne in Australia. He is author of the following books: The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).

8 Responses to Lasting solution to Bangsamoro problem requires going beyond Constitution — peace advocate


The Daily PCIJ » Blog Archive » The phantom menace of ‘belligerency status’

August 8th, 2008 at 7:21 pm

[…] from the issue of constitutionality being raised against the yet to be signed memorandum of agreement on ancestral domain between the […]



August 8th, 2008 at 11:09 pm


Philippine archipelago is comprised of the territory “ceded” by the Spain to US in the treaty of Paris of December 10, 1898. In the treaty, this territories are described as follows:

Article III.

“A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty five minutes (4 [degree symbol] 45′]) north latitude, thence along the parallel of four degrees and forty five minutes (4 [degree symbol] 45′) north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119 [degree symbol] 35′) east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119 [degree symbol] 35′) east of Greenwich to the parallel of latitude seven degrees and forty minutes (7 [degree symbol] 40′) north, thence along the parallel of latitude of seven degrees and forty minutes (7 [degree symbol] 40′) north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning.The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty.”

The 1935 Constitution in defining the territory of the Philippines provides in Article 1:

“The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

The 1973 and 1987 Constitution define Philippine territory as follows:

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.”

We as laymen, come to know our territories as the main islands of Luzon, Visayas and Mindanao comprising of some 7,107 islands.

We did not agree that our country was ceded by Spain to the US on December 10, 1898 because we have become independent 6 months before that when Emilio Aguinaldo declared Philippine independence on June 12, 1898. This is the reason why we continue to celebrate our independence day on this date and not July 4, as we previously did.

From the time of the revolutionary government of Aguinaldo up to the present time, we have exercised sovereignty over the island of Mindanao.

Mindanao had recognized our government when its tribal chieftains run for public office and had pledged allegiance to the Philippine flag.

Later, when Malaysian and Indonesian influence on the minority moslem in Mindano created a vibrant religion that proselytized most of the Mindanao inhabitants, certain chieftains of the island would like to establish a Republic of Mindanao. The rise of moslem extremists of the Al Queda type found surrogates in the moslem inhabitants in this island. The issue of the island being neglected by the Manila government and the poverty level of the people in this island were used to drumbeat the need for a “Mindanao Republic”. This aspiration culminated in rise of the MNLF and MILF, the chief objective of these groups is to finally establish a separate republic for the island of Mindanao.

ARRM is the political aspect of this struggle. The peace process between the MILF and the Government is part of this political process and the brilliant people in the government see nothing wrong in this process.

It was to the credit of some people who see the bigger picture that the ARRM elections and “peace negotiations” between the MILF and the government were being used only to negotiate for time, just enough time, when these group of armed militias have all the strength and resources to wave their own flag in the island and declare the “State of Mindanao” and drive away all the Christians in the island.

Just like the “peace negotiation” the government has with the NPA. It is being done to sue for time.

Whoever thinks that the MILF/MNLF and the NPA have the desire for peace is a real dreamer. All they want is power and the subjugation of people who do not think like just like them.

Great nations would desire for more territories. We have already abdicated our rights over part of North Borneo during Marcos time. We are abdicating our territorial rights now over Spratleys. Now we are about to abdicate our territorial rights over Mindanao.

And some of us are okay with the way we mutilate our national territory!!!!

Oh boy, we are totally screwed ! ! !


Biboy Davila

August 13th, 2008 at 9:06 am

This issue of constitutional reforms in the light of achieving a just and lasting peace in Mandanao [especially in the Bangsamoro nation] only misleads us in the real cause of any armed conflict in the country. The real issue here is not on ancestral domain alone, but th bigger issue of power struggle between the ruling class and the exploited people.


nosi balasi

August 14th, 2008 at 7:58 am

pangarap na lang na mapag-isa ang bansang Pilipinas…lalo pa na mahina ang liderato ni GMA…ang alam lang ay pang sariling interes lamang.



August 15th, 2008 at 7:06 pm

I just heard the news from the sc, that any HS grad could have told you that the terms of the agreement were unconstitutional,I also heard that the milf may or could try to bring this up with the international community and that they could possibly get support that way.

This I say is all trash talk and its coming from a law professor of ue, The parties involved on both sides know that it is a fact that any agreement has to be ratified by the house, and until that happens its just paper. Although the milf would like everyone to believe otherwise.

I assure you that should any agreement be made with the milf it will be the partitioning off of all of Mindinao.

these milf terrorist are not asking for mere recognition they want to rule in every aspect the armm areas, and then expand from their. they have already shown that by not following the pullback agreement, their pilaging, burning property and armed agression against the AFP and citizens of that area.

This is in fact an act of war against the philippines. No one has the right to actively partake in armed rebellion against the citizens of a country.

The congress should go into session and discuss that the republic has been attacked, and what repercussions should be brought upon those whom have participated.

These are acts of treason, not acts to bring about peace, peace will be the last thing that they want. I say put the armm areas under marshall law and disband the milf and deal with the bangsamoro people in a just and honest way without selling out the country.You can’t have peace with a gun barrel in your face.



August 18th, 2008 at 5:43 am

i agree to you oneforall…but who’s behind in pressuring the Govt to make a deal with the MILF? as far as i remember MILF was branded by the US intelligence as terrorists, alongside with CPP-NPA. or the Govt now is the terrorist by themselves? as per sec Puno says in one of his press statements that they are having a clearing operations that they were only shoving away the MILF from taking over of one town in Mindanao. Clearing operations like MMDA’s style of clearing operation- that they do care to clear the streets and do not care for the livelihood of those vendors. The Military bombed the very own livelihood of the people living in that town. This is ridiculous, the Govt does not really care and understand the plights of every poor Filipino people. Poor pedro, he has anti-people military and anti-people MMDA.



August 18th, 2008 at 4:25 pm

I do not mean any disrespect to the parties involved,but this is stupid and pure nonesense. The GRP should offer these people who fall under this imminent domain the following- Money, land or other compensation such as relocation whether in the philippines or abroad.

For the government to give up it’s soverienty (bje) is ridiculious we are one nation one people under one law.

The bangsamoro have lived under the constitution and have participated in this form of government, as elected officials and have accepted this form of government. Only in recent years they want to start a religious state under self rule. their representative last night on the news pretty much threatened government with war and other threats of rebellion.

If restitution is owed to these people then lets give it to them. but they don’t get self rule, nor international independence and they must fall under all the laws of the republic. The milf is an armed force and I don’t believe for a minute that they represent the bangsamoro people as a whole. All parties have to be included in these negotations and the government has to stay within the constitution and not a fictitious cha-cha, nor changes or amendments and reforms nor should we recognize any religious groups laws outside of their physical house’s of worship.Any negotations must be understood that they will need the approval as prescibribed under the constitution otherwise its just a piece of paper.. They get compensated with money and the land or money and relocation but no self rule or independence and no international recognition as a separate entity of the republic philippines. other restitutions can also be added such as the assistance in building up the inferstructure, commerce schools,etc.

A special government agency to oversee that these restitutions are being implemented and dispersed to those that they are intended for.Should one decide that they want to relocate it will be their responsibility to locate a nation that will accept them and that they will be giving up their philippine citizenship. Give them a two year negotations period.

After that the signing and the period of implementation around ten years,all persons above the age of 18 years of age are eligible for compensation no person or entity can claim anothers property as it is recorded.

In that anyone can own land in the region, whereas it is duly recorded to that person whether or not that person or persons are bangsamoro or of the islamic faith, and also land granted for restitution is also the sole possession of that person or persons and to do as they wish this includes the sale or otherwise passing the land unto another of their choice.Other compensation could include the suspension of taxes in different areas such as property, vat, excise tax etc.

There are so many things the government can do to appease the bangsamoro Instead they chose self interest greed and criminal negotations, I am sorry to the milf and the bangsamoro people, for this governments impedence, arrogance and the shame it brings onto the philipino people. I implore you to lets take a time out and await the next administration to workout a fair and lawful agreement. It is readily apparent that this administration cannot,ie ZTE,agriculture,2004 election,garcie,and the offices of ineptness:ombudsman, justice dept, court of appeals commelec,neda BIR and more. all shrouded in inproprieties. I also ask you to join us in the restructuring of this country in uniting us all under one flag under one law for all philipinoes.



August 18th, 2008 at 4:47 pm

Well I did not want to be the one to right, but as you can see the milf is operating just like terrorist which they are and don’t represent anyone or thing but themselves. They have attacked civilians (real brave)
and towns unprotected killing anyone anything, then their hierachy says we did not authorize that. well if you don’t have control over there own little militia than how can they be responsible enough to carry out an agreement with a multitude of parties involved.Do they get to shoot all those not in agreement with what they want…

I also have a problem with the AFP saying they have the situation under control when asked if more troops are required. We need to flood mindanoa with afp troops this is war and we better treat it as such. Our sons are out their ready to serve this nation with their lives, we need to make sure they have all the support that we can provide.

again lets give the bangsamoro their due, but also lets not give into terrorist. As far as the negotraitors we need to reevaluate the incompitent team that is representing the grp. their acts in this agreement are such of a grievice nature I don’t know whether to call them traitors of the republic or just lapdogs…

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