The Gph–M.I.L.F. Agreement: Human Rights Provisions and Possible Overlaps

: The GPH – M.I.L.F. Agreement: Human Rights Provisions and Possible Overlaps. One of the challenges in ending non-International armed conflicts is to conclude a peace agreement that satisfies the need of both parties. A new approach to this is the human rights approach, which seeks to observe and promise to fulfil elements of human rights as terms of peace. The ongoing peace process in the Philippines between the Government and the Moro Islamic Liberation Front is seeing positive progress, with its peace agreement provisions highly based upon human rights. However, there are potential problems in implementing these provisions, as well as overlaps with the pre-existing structure or even between the human rights provisions themselves. This essay will observe the problems and overlaps particularly on provisions related to the rights of religion and women, and how they can be addressed.


Introduction
The conflict between the Mindanao regions and the central Philippine government, to some extent, roots on economic injustice. 1 This injustice just so happened to be between Christians and Muslims, including land and other economic related disputes. 2 These disputes were then added by the massacre of Muslim recruits by the Philippine Armed Forces (PAF), responded by the announcement of a Mindanao Independence Movement in Cotabato Province. 3 Further hostilities between Muslims and Christians triggered the Martial Law declaration in 1972, starting the armed movement by the Moro National Liberation Front (MNLF). 4 A peace agreement was signed in Tripoli in 1976, but this caused a further break in the insurgency by a group what was later called the Moro Islamic Liberation Front (MILF). 5 The break up was due to inter alia persistence by MILF in demanding secession, 6 a preference to a religion based movement rather than ethnic, 7 and major problems in the wealth and resource sharing deals as well as developmental programs. 8 Peace talks with MILF short lived, when President Joseph Estrada underwent an all-out war against MILF and other insurgents. 9 Productive peace talks resumed at the regime of President Arroyo, when an agreement was signed with the MILF to continue peace talks. 10 Another agreement was drafted and prepared to be signed in 2008, which MILF was happy with. 11 However in 2008, the Government decided not to sign the agreement, while the Supreme Court declared the document to be unconstitutional, and the hostilities resumed once more. 12 This essay discusses agreements at the era of President Benigno Aquino (2010 onwards). The parties met for peace talks 13 and MILF dropped secession demands. 14 Further, in 2012, both parties agreed to a Decision Points of Principles (DPoP) as of April 2012, and later in October 2012a Framework Agreement on the Bangsamoro 1 G. Brown. The Long and Winding Road: The Peace Process in Mindanao, Institute for British-Irish Studies, Discussion Paper No. 6 (found at http://www.ucd.ie/ibis/publications/discussionpapers /thepeaceprocessinmindanao/G_Brown.pdfaccessed 13 April 2014 at 1.02am), p.8 2 ibid 3 Ibid, p.9 4 Ibid 5 Ibid, p.11 6 Center for Strategy, Enterprise, and intelligence.The Long Struggle to Silence the Guns.The CenSEI Report, Vol. 2, No. 13, (2012) (FAB) was concluded. From this FAB, many annexes and further agreements then emerged to regulate the details of provisions stipulated in the FAB, which until the writing of this essay has yet to be completed as many other negotiations are still ongoing.
This essay is aimed to answer a few points. First, the background of the conflict and peace agreements will be briefly explained. Second, there will be an overview of human rights provisions continued by some more thorough explanations on provisions related to rights of religion as well as rights of women. The reason to this is because, as will be shown, rights of religion are very central to the conflict. On the other hand, the application of it has potential to conflict with the existing structure as well as another right: rights of women.
Third, it will be seen how within the approach towards those rights, there are important issues that have not been dealt with so that therefore implementation difficulties can occur. It will be shown that the difficulties are mainly conflicts between the existing structure and what the agreement brings, or even a conflict between the fulfilling of two different rights. Some possibilities to resolve the matters will also be outlined. Finally, this essay will conclude on how important human rights are, especially in context of these two rights, in the peace talks.

Human Rights Provisions
Unlike the provisions in the previous peace related agreements surrounding the hostilities in Mindanao, these new agreements from 2012 onwards have highly referred to human rights. There were no explicit reference to international human rights conventions, but the provisions in the agreements were very detailed, even in the first agreement between the government of the Philippines in the Aquino era and the MILF, which is the DPoP.
Point 10 of the DPoPlisted twelve rights that the new political entity (that will emerge over the Bangsamoro) is bound to respect and guarantee, which includes inter alia rights to life and dignity, rights of freedom and expression of religion and beliefs, rights to privacy, equal opportunity, etc. The FAB in Article VI(1) cited the same rights mentioned in DPoP, but added a provision on vested property rights under Article VI(2) and LQGLJHQRXV SHRSOH·V ULJKWV XQGHU VI(3).
A small note must be taken that before enumerating a list of rights, both the '3R3 DQG WKH )$% VWDUWV WKH SURYLVLRQV ZLWK ´In addition to basic rights already enjoyed WKH IROORZLQJ ULJKWV«µ 15 It is still unclear to the writer what is meant by these ¶EDVLF ULJKWV·.
Another thing to note is how there are multiple mention of the same rights on different angles in separate provisions. An example to this would be: Rights to freedom and expression of religion and beliefs ( In order to analyse further how provisions of human rights were applied but may have blind spots, two particular rights will be analysed: rights to religion and ZRPHQ·V ULJKWV

Rights to Religion
As previously mentioned, religion has an important role in the conflict, as it was an identity the MILF and MNLF associated itself with and demanded accordingly. These matters of identity (including religious) have been seen as one of the major causes of civil wars with demands of secession or self-administration 16 (This is of course apart from the wealth sharing matters that also became a big issue).
In accommodating this, every single text of agreement produced from the Tripoli Agreement in 1976, until the most recent annexes, DOO VWDUW ZLWK WKH ZRUGV ´In the Name of God, the Beneficent, the Mercifulµ to bring about the identity of the Muslims. This is close to an English translation 17 of the Arabic sentence: 18 To Muslims, this sentence means a great deal, among its virtues is to start any action so that they are blessed with such act, 19 where practicing Muslims would say it before any deed and write it before any text.
To accommodate the rights for Muslims to practice their religion means to also provide various relevant sets of laws and institutions. Therefore, one can see these provisions from an angle of rights to religion as well as power sharing at the same time.
Prior These provisions that incorporate seem to do their best attempt to support the freedom of the Bangsamoro Muslims in practicing their religion.
7KH 6KDUL·DK ODZ DQG FRXUWV WKDW ZLOO EH HQDFWHG SXUVXDQW WR WKis agreement is yet to be known, as such provisions will be regulated in the Bangsamoro Basic Law 24 which has yet to be made to this date. However, 6KDUL·DK ODZ LV EDVHG RQ WKH 4XU·DQ 25 and Hadith 26 (where there has never been any change) as binding sources of law, with addition to interpretations by the four FiqhMadhabs (schools of Islamic jurisprudence). 27 This is what the MPC refers to, and there is reasonable basis that the 6KDUL·DK ODZ that will be enacted in the Basic Law may not be too different to what has already been there before. 7KLV PD\ EH H[FHSW SURYLVLRQV RQ WKH 6KDUL·DK FRXUW·V jurisdiction, as the FAB Article III.3. and III.5 suggests to be expanded.

Potential Problems in Religious Rights Application Post Agreement
There are however some potential problems in these provisions when they meet the pre-existing structures. These potential problems mainly revolves around Muslim and non-Muslim relations ²which may be a blind spot that the FAB may not have foreseen.The FAB stresses that WKH 6KDUL·DK MXVWLFH V\VWHP only will apply to Muslims. 28  The first very specific case would be in marital law. In case where there is marriage between a Muslim and Non-Muslim, it is clear in Article 13 (1) of the MPC that Muslim law applies to marriages between Muslims or between Muslim male and non-Muslim female. In another situation, when a Muslim female marries a non-Muslim male, it would be regulated under the Philippine Civil code, as per Article 13 (2) of the MPC.
With the enactment of the FAB, which says that Islamic law is only to be applied to Muslims, then a conclusion can be made that Muslim men may no longer exercise marriage under Islamic law to a Non-Muslim women, while this is something that Islamic law normally provides. 29 Another case would be in Islamic banking. While Islamic banking operates under Islamic laws, the Al Amanah Islamic Bank is also open for non-Muslims. 30 In neighbouring countries, such as Indonesia, the religious court is open for Non-Muslims so long as the subject matter is governed under Islamic law which includes Islamic Banking. 31 This practice stems from primary sources of Islamic law which can apply to Non-Muslims as well who wish to undergo transactions governed by Islamic laws (or wish to be judged by it, whatever the dispute is about). 32 However, similar to the problem of laws of marriage, if the FAB applies WKHQ WKH 6KDUL·DK FRXUWV FDQQRW judge disputes in Islamic Banking.
One may submit that the disputing parties can turn to arbitration, since the Al Amanah Bank Regulations does provide rules for that. 33 However, the said rule only regulates disputes between shareholders, and therefore not for other parties who may have legal relations with these banks (loaners, customers etc). Further, for these disputes not between shareholders to be subject to a separate arbitration, it will require consent from both parties to establish the arbitration tribunal. 34 The only possible solution for this, if one were to fulfil the rights of Muslims to practice religion, is to clarify for certain in the new Bangsamoro Basic Law that the 6KDUL·DK &RXrts does not close the doors to the possibility for Non-Muslims to settle their disputes if the matter still falls under the material jurisdiction of the Court.The provisions should be constructed in a way that, if a Non-Muslim consented to any legal relatLRQV JRYHUQHG E\ 6KDUL·DK ODZ H J Islamic banking or certain interfaith marriage), it could be considered as an acceptance to the compulsory jurisdiction of WKH 6KDUL·DK &RXUW However, there can be certain exceptions when the object of the legal relations is incompatible with Islamic laws as well (e.g. if the marriage is in between a Muslim woman and a

Women Rights
Regulating comprehensive implementatioQ RI ZRPHQ·V ULJKWV LV essential to peace processes. This is because women experience in the conflict will be different than that of men (which will highly affect their post-conflict determination and need), that peace processes must be built on the widest base of experience, and other reasons as well, so that the peace process can achieve more sustainable results. 35 This is why the UN Security Council saw it necessary to issue Resolution 1325 (2000) to urge the participation of women in peace processes.
The FAB LV YHU\ ULFK LQ PHQWLRQLQJ ¶ZRPHQ-IULHQGO\· SURYLVLRQV The FAB, reciting the DPoP, includes two women related rights, namely: right of women to meaningful political participation, and protection from all forms of violence (Article VI[1] [g], which in itself includes two rights in one point), as well as right to equal opportunity and non-discrimination in social and economic activity and the public service (Article VI[1][j]).
Further in the annexes, there are even more provisions to further enumerate these rights. The Annex on Power Sharing (2013) ensures that there are representatives of women in the: assembly of the Bangsamoro Basic Law (Article II.2.) and the Council of Leaders (Article II.7).
There have been sources mentioning that women are excluded from the Bangsamoro peace talks. 36 However, there are attempts in which women are participating to some extent, which include in (but not limited to) the following activities: 37 Participating in the actual peace talks between conflicting parties, Engagement with religious leaders, Mediation in settling family and clan disputes, Supporting violence victims, Study groups on Islam to seek strength and guidance from the 4XU·DQ, Peacekeeping, etc.
More Other than women participation in politics, there has also been stipulated numerous provisions related to welfare of women both in social development as well 35  as health sector. While generally women in the world have higher life expectancy than men, the women in Mindanao generally have lesser life expectancy than men. 38 Further, the maternal mortality rate is quite high (132/100.000 live births, according to 2006 statistics) 39 and highly linked to poverty and access to proper health services. 40 Responding to these issues, the Terms of Reference for SajahatraBangsamoro(ToRSajahatra) was signed in 2013, with a main aim to fulfil rights to health, education, and good living conditions (Article 2.2.3). Upliftingthe health service in general (as this ToRSajahatra aims to achieve e.g. through health insurances, community based health services, etc, as per Article 3), the project will be guided by the principles of inclusiveness and gender balanced (Article 5.2.3.) it is expected to help to tackle the root of the problem of women health issue which is the health service in general.
Other than health matters, there are provisions to enhance the capacity of women as well to uplift their state of welfare. The Annex on Revenue Generation and Wealth Sharing (2013) mentions that 5% of developmental funds should be allocated by the Bangsamoro Government for support programs and activities for women (Article XII). Along this aim, the ToRSajahatra also provides scholarships; community based vocational trainings, and others (Article 3).
Further, in making the Bangsamoro Basic Law, the women organizations have issued a comprehensive recommendation so that the new law would comprehensively deal with women related issues. Among the recommendations are on the topic of ZRPHQ·s political participation, which includes inter alia :women occupying fifty percent of positions at the management level within the Bangsamoro new political entity, and the creation of a Department of Women Affairs. 41 There is also a comprehensive recommendation to include provisions on education and livelihood, which include inter alia: funds for livelihood of widows and women who are victims of the conflict. 42 The actual manifestations of these provisions and recommendations are yet to be seen, as the negotiations are still in progress and the Bangsamoro Basic Law has yet to be completed.

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It has been mentioned how there is a positive enthusLDVP LQ ZRPHQ·V participation in so many fronts in the peace processes. However, there are some 38  structural matters that could be seen as a potential problem. There are certain rules in Islamic laws, which are instituted due to the fulfilment of the rights to religion, which seem WR FRQWUDGLFW ZRPHQ·V ULJKWV This is the main reason why this essay uses ZRPHQ·V ULJKWV DV D VHFRQG FDVH VWXG\ 2WKHU WKDQ WKH LPSRUWDQFH RI ZRPHQ·V ULJKWV it is also integral in the display of potential problems in the previous case study of rights to religion. The current FAB and its Annexes do not yet provide any solutions to this. The Women BBL Recommendations, in Section III regarding WKH 6KDUL·DK -XVWLFH System, SDUWLFXODUO\ SRLQW ,,, D PHQWLRQV ´Take into account the perspectives of women on WKH VFRSH RI H[SDQGHG 6KDUL·DK H J WKH FRQIOLFW RI WKH &03/ 43 provision on allowing Muslim men marrying non-Muslim women)µ. ,W LV XQFOHDU ZKDW LV PHDQW E\ ¶FRQIOLFW· LQ WKDW particular provision. It could either mean the conflict with WKH ¶6KDUL·DK RQO\ DSSOLHV WR 0XVOLPV· DV Hxplained earlier in this essay (with possible solution already mentioned), or seen under the language of gender equality it could mean possible unfairness since Muslim men have more options than Muslim women. If it is the latter, it will not make much sense as it is still possible for a Muslim woman to marry a Non-Muslim man under the Philippine Civil Code, 44 therefore balancing the satisfaction of the purity of Islamic law application and equal opportunities between genders as well.
However, that instance of interfaith marriage was simply cited as an example. Nisa, one of the women NGOs participating in the WBR, has advocated a few points on May 2013 that may serve as a better understanding in the matter. Relevant to point III.a.of the WBR, Nisasees the current MPC to have the following flaws: 45 Discrimination in spousal rights and responsibilities, Discrimination in inheritance rights.
On the first point on spousal rights and responsibilities, there are matters where the wife has to seek permission to the husband while the husband needs not to do the same. An example to this would be how the wife needs consent to acquire property by gratuitous title and to exercise profession. 46 As for the second point on inheritance rights, Muslim men would generally inherit more than woman. An example to this is how a wife inherits one-fourth of the estate shall the husband die, while a husband inherits one-half of the estate shall the wife die (if no legitimate child. If the marriage produced legitimate children, these portions are halved). 47 A , all these instrumentssuggests that ¶GLVFULPLQDWLRQ· is something done externally as opposed to internally by the individual her/himself. This is unlessif the faith itself is imposed upon the individuals which is against international law as well as Islamic laws. 48 Another reading from the perspective of Islamic laws, would suggest in many SDVVDJHV LQ WKH 4XU·an that men and women are equal. 49 However, Islam understand that equality of men and women is not understood as exact similarity but instead complementarily (of different roles). 50 An example to this is how the inheritance portion of women may be less, but men are given more financial burdens, namely to sustain their household during the marriage and for a period of time after divorce, 51 as well as other relatives who cannot sustain themselves 52 (the latter obligation is not codified in the Muslim Personal Law, but in the hadith which is a source of law in Article 7[h] of the Muslim Personal Law).
The above explanations show how different readings of these particular rules can cause very different conclusions, one may see it as discrimination while another would see it as equality. There are a few ways to get around this problem, to settle the different readings: First, To codify in the Bangsamoro Basic Law provisions on prenuptial agreements, where husbands can waive DQ\WKLQJ WKDW LV LQLWLDOO\ ¶VXEMHFW WR WKH KXVEDQG·V FRQVHQW· under Islamic contract law. 53 . Secondly, to codify rules financial sustenance more comprehensively (as per n.48) and To keep options open for those who wish to marry under the Philippine Civil Code shall they do not wish to follow Islamic Laws on marriage. Whether or not the Bangsamoro Basic Law will satisfy the demands of the Bangsamoro people in general, whichever the way they read the concept of gender equality, it is yet to be seen uQWLO WKH ODZ·V FRPSOHWLRQ

Conclusion
There is no question that human rights considerations are essential in peace agreements. The abuse or deprivation of human rights can be major parts or causes of the conflict, and the fulfilling of it is a key to achieve and sustain peace. 54 The peace agreements between the Government of the Philippines and MILF has put human rights at its heart, and has carried out further provisions to ensure these rights.Some of these rights have already been given implementing provisions ( mentioned rights to aspiration and political participation, land ownership and FXVWRPDU\ ODQG WHQXUH ULJKWV WR UHOLJLRQ DQG ZRPHQ·V ULJKWV As the negotiations are still undergone, there are important instruments that have yet to be seen. An example to this would be the right to redress of grievances and due process of law (VI[1][l] of the FAB), which the Annex on Normalization mentions to regulate further in a separate terms of reference which has yet to be agreed upon (Articles J and H). The completion of the Bangsamoro Basic Law is something to look forward to as well, as it will be this instrument that will overarch the new Bangsamoro laws in implementing the peace agreements.
However, as has been shown in the case study of both rights of religion and ZRPHQ·V ULJKWV more caution must be taken in order to avoid collision between the new provisions introduced and the pre-existing structures, as well as collision between the implementation of two different rights (like what happened in the Sejdic Case). 55 Negotiators must first pay extra attention to pick up these potential problems, and find ways to deal with them.  Law, Vol. 24 No. 2, (2013), pp.477-501, at p.478, 481-482