Philippines: The impact of exclusion on the Moro peace process
Source: ACHR Weekly Review
I. The war of attrition
About 300 people have been killed in more than two months of fighting between Philippines security forces and alleged renegades of the Moro Islamic Liberation Front (MILF) led by commanders Ameril Umbra Kato, Adbullah Macapaar alias Kumander Bravo, and Solaiman Pangalian. To date more than 650,000 people have been displaced. Though President Gloria Macapagal Arroyo’s administration has intensified the attacks against the alleged MILF groups, there is a sentiment across the spectrum that peace talks will soon resume.
The collapse of the peace talks was not triggered by either party but rather by a judgement of the Supreme Court declaring a draft Memorandum of Agreement on Ancestral Domain (MOA-AD) between the MILF and the Philippines government as “contrary to law and the Constitution”.
The collapse of the peace talks with the MILF provides an opportunity for both parties to address inherent flaws – non inclusion of indigenous Lumad people – who are Christians unlike the Islamised Bangsamoros. The non-inclusion is not only a flaw in the peace process but constitutes a clear violation of the Indigenous Peoples Rights Act of 1997.
II. Peace processes with Bangsamoros and the Supreme court’s intervention
The Moro National Liberation Front (MNLF) started fighting for an independent Moro nation in 1968. Following peace talks between the Government of the Philippines and the MNLF from 1976, the Autonomous Region of Muslim Mindanao (ARMM) was created by the Republic Act No. 6734 on 1 August 1989. A plebiscite was held in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte and Zamboanga del Sur; and in the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga to determine if the residents would want to be part of the ARMM.
Of these, only Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi voted favorably for inclusion in the ARMM. The ARMM was officially inaugurated on 6 November 1990 in Cotabato City, designated as the provisional capital. In 2001, Republican Act 9054 was passed in order to expand the ARMM to include the areas which initially rejected inclusion and the provinces which were carved from them. Only Marawi City and Basilan with the exception of Isabela City opted to be integrated in the region. At present, the ARMM consist of five provinces namely Basilan (except Isabela City), Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi, and Marawi City.
The Final Peace Agreement with the MNLF was concluded on 2 September 1996. However, the conflict did not end with signing of the Final Peace Agreement. The MNLF split and the Moro Islamic Liberation Front (MILF) emerged claiming to be the true representative of the Bongsamoro people.
In July 1997, the Government of the Republic of Philippines started Peace talks with the MILF and the Agreement on General Cessation of Hostilities was signed. After a series of talks, in 2001 both parties came up with a document titled “The Government of the Republic of the Philippines-Moro Islamic Liberation Front Memorandum of Agreement on Ancestral Domain on Bangsamoro Juridical Entity” (MOA-AD-BJE).
The document provided for – (i) concept and principles, (ii) territories, (iii) resources, and (iii) governance of the Ancestral Domain of the Bangsamoro people. As per the said MOU-AD-BJE 2194 barangays (villages) inhabited by the indigenous peoples, settlers and Bongsamoros would be included in the Bangsamoro Juridical Entity. The total area intended to be included is estimated to be around 2 million hectares.
The Government and the MILF were scheduled to sign the Agreement on 5 August 2008 in Putrajaya, Selangor, Malaysia. But on 4 August 2008, the Supreme Court of Philippines issued an injunction against the ancestral domain agreement after local officials in Cotabato complained they had not been consulted. On 14 October 2008, the Supreme Court declared the MOA-AD-BJE “contrary to law and the Constitution”.
III. Peace talks and exclusion of the indigenous Lumads
Given the reasons behind the failure of the agreement it is expected that the peace talks between the government of the Philippines and the MILF will resume soon. President Gloria Macapagal-Arroyo and Malaysian Prime Minister Abdullah Ahmad Badawi met on 25 October 2008 on the sidelines of the Asia-Europe Summit in Beijing but details of the talks were not disclosed. The Arroyo administration cannot defy the judgement of the Supreme Court. But at the same time, the decision to launch military strikes against the alleged reneged MILF groups is counter-productive.
The interested governments like the United States, Malaysia and Japan and the Organsation of Islamic Countries which have been supporting the peace process must move beyond a focus on immediate concerns: more effective ceasefire mechanisms, reintegration of the former combatants and providing humanitarian assistance to the internally displaced.
It is essential to acknowledge that while none opposed the peace talks, both the government of Philippines and the MILF were aware of the strong opposition to the MOA-AD, not only from the Provincial government but indigenous Lumads too.
If the MOA-AD had been signed on 5 August 2008, it would have meant loss of at least 1 million hectares of Ancestral Domains belonging to the non-Bangsamoro indigenous peoples i.e. Erumanen ne Menuvù of Cotabato and Bukidnon provinces; Higaunon of Lanao del Norte province; and the Subanen of Zamboanga del Norte, Zamboanga de Sibugay and Zamboanga del Sur provinces to the Bangsamoro Juridical Entity. Once their Ancestral Domains are included in the Bongsomoro Juridical Entity, these indigenous communities would have been deprived of all legal rights and protection available to them under the Indigenous Peoples Rights Act of 1997.
The experiences of the indigenous communities of Teduray, Lambangian and Dulangan Manobo of Maguindanao and Sultan Kudarat provinces whose Ancestral Domains of 400,000 hectares were included in the existing Autonomous Region of Muslim Mindanao (ARMM) has not been encouraging. The Indigenous Peoples Rights Act of 1997 is not applicable in the ARMM. This led to further marginalisation of non-Muslim indigenous communities living under the ARMM.
The constitutional validity of the Indigenous Peoples Rights Act (IPRA) has already been upheld by the Supreme Court in December 2002. The IPRA, among others, provides for the right to free, prior and informed consent. Indigenous peoples who are likely to be affected by any agreement between the MILF and the government of Philippines have the right to free, prior and informed consent as to whether they want to be included in the Bongsomoro Juridical Entity.
Since indigenous Lumad people had not resorted to armed rebellion, they were never considered as a party in the peace process with the Moros. Their identities were subsumed in clear violations of the Indigenous Peoples Rights Act of 1997. While the government of Philippines must ensure implementation of the IPRA in letter and spirit; the MILF and other Moro groups must also recognise the distinctiveness of the indigenous Lumad people.
Asian Centre for Human Rights recommends to the government of Philippines and the MILF to ensure the following in any future peace process:
* implement the Indigenous Peoples Rights Act of 1997 including the right to free, prior and informed consent in letter and spirit;
* include Chairperson of the National Commission on Indigenous Peoples of the Philippines in the Peace Secretariat of the government of Philippines.
* delineate, recognise and protect the Ancestral Domains of the non-Muslim indigenous communities; and
* include representatives of the non-Muslim indigenous communities in any peace negotiation between the Government and the MILF.
ACHR also urges the United States, Malaysia and Japan and the Organsation of Islamic Countries to impress upon the government of Philippines and the MILF to implement the above recommendations.
 . This has been prepared based on the submission made by Asian Indigenous and Tribal Peoples Network and Kebager te Ked-Inged – an organisation representing indigenous Lumads of the Philippines – to the UN Special Rapporteur on the Rights of Indigenous Peoples, Prof James Anaya at the Regional Conference on the Role of National Human Rights Institutions organised by AITPN in New Delhi on 18-19 October 2008.
 . Manila says kills 13 rebels in air and ground attack, Reuters, 27 October 2008 available here.
 . Bangsamoros are not included as “indigenous peoples” under the Indigenous Peoples Rights Act of 1997. ACHR believes in self-identification by “indigenous peoples”. However, ACHR is acutely aware of the legal implications of the IPRA Act.