lJurnan K;Shtu lt" atise on

IVornen, Itl affl r'-,C De

ocracy

A publication of the

Ateneo Human Rights

Ce

nter

H"man Kghtr Treatise on

Women,
f

.nd cracg D"mo "lrr

A publication of the

Ateneo Human Rights Center

ACKNO\TLEDGMENT
The Ateneo Human Rights Center wishes to thank the Ateneo Center for Social Policy and Public Affairs (CSPP A) and the British Embassy for supporting the two (2) Round Thble Discussions on Islam, Democracy and Human Rights, and 'W'omen and Islam; and for the publication of the
proceedings;

the men and women who panicipated and shared their ideas, thoughts and opinions during the round table discussions and shed light on the more pressing issues and concerns in Muslim Mindanao;
Sedfrey M. Candelaria, Samira Ali Gutoc, Rossmia Coo, and Marvin Masangkay who contributed their writings to this publication;

Claire Clementir and Irene Marcial for the documentation and Rene Cruz for helping with the

editing;
Amparita S. Sta. Maria for the cover (mosquc
of Promise website);
source photo

from Bobby Tirnonera/ Mindanao: Land

the lawyers and staff of the Ateneo Human Rights Center for their continued support.

EDIToRS

AiraperureS. Sre. Menre

SRN
TT

LoUY.ARRIoLA

Any part of this publication may be reproduced or quoted for non-commercial purposes with
appropriate acknowledgment.
Copyright 2004.

ISBN 971

3899

- 13 - 8
A Publication of the
ArnNEo

Huuer Rrcurs CEnrm

Ateneo Professional Schools Building 20 Rockwell Drive, Rockwell Center,

Makati City, Philippines 1200 (63-2) Tel No. 899-76-91; Fax No. (63-2) 89943'42

fJur"n ftights lreatise on !!or"tt, l"l"r "nd p" mocracg

Tasrp or CoNTENTS

I. I

Introduction
Amparita S. Sta.

Maria

.............

RoundTable Discussion Proceedings: Islam, Human Rights and Democracy

Synthesis and Recommendations
Car/os P

Medina,Jr,

................ ............

....................... 2 ............................ 5
'l

Proceedings Proper

ilI.

RoundThble Discussion Proceedings: 'W'omen, Human Rights and Islam

Synthesis and Recommendations

AmpaitaSta. Maria
Sarah

LouArrioh

................. ............

.......................... 40

Proceedings Proper

.......43

RelatedAnicles The Development of Legal Protection for the Indigenous Population and Religious Minoriry under Philippine Law SedfeyM. Candzhria

................76

Muslim Women on Center Stage

SarniraAli.Gutoc.................
Islam and Muslims: A Few Observations
RossmiaCoo

......94

..............

................ 101

Empowering the Peoples: Use of Force in the Exercise ofthe Right to Self-Determination

MarainV

Masanghay.

............... 104

Iwrnooucrtow
The goals for a lasting peace and sustainable deveiopment have long been articulated in the Philippines' programs and policies. There is litde doubt that the past and present governments have justified their platform for action in the name of peace and development. The task of achieving these goals, however, has been daunting, to say the least. The conflict in Mindanao has led past governments to adopt policies in varying degrees in their effort to forge a regime of "peace." From confidence building measures to an all-out war policy; and a mixture of other strategies in between, the armed conflict in Muslim Mindanao, to this date howevet, persists and the number of casualties continues to increase as evef.

It has also been observed that with every change of administration, most policies and programs also change, especially those which are highly political in nature. Thus, people do not expect that certain pfograms would continue no matter how sound and viable they may be. At the very least, one may expect a change in priority in the policy agenda. At most, a policy may altogether be changed and programs discontinued. There is simply no guarantee that the mechanisms in place would outlast their initiator.
is within this context and aiso with a tacit recognition that there is a need to adopt clear and updated poJicies on human rights and on womeri in Muslim Mindanao that a series of Round Table Discussions (R.TD) were conducted, with the end in view of coming out with a policy framework on these issues, to be circulated among policy makers and government agencies, especially those that directly deal with Islamic communities in the

It

Philippines.

The first RTD dealt with the topic on Islam, Democracy and Human Rights. While the achievement of peace and development was seen as the end goal in Mindanao, it also became clear that the key element to its attainment was the promotion and protection of the Moro people human rights, especially their right as a people to selfdetermination. Equality in treatment and non-discrimination were also identified as important factors which should be seriously addressed by the government.
The second RTD focused on the Moro women and their rights, especially when using as point of reference, the Qur'an.It is quite clear that they are one with the men in voicing out their desire to assert themselves as a people whose identity and distinctness should be respected. Beyond this, however, there is also the lingering (though not so often voiced-out) concern on the articulation of their rights and roles as women in the Muslim society, and the interpretation of teachings in Islam concerning such rights and roles. This publication is a modest attempt at presenting some of the more pressing concerns that our Muslim brothers and sisters would like to convey to the Philippine government. It is fervently hoped that the contents of this book would find their way in the policy agenda of the government in its effot to achieve genuine and lasting peace in not only in Muslim Mindanao but in the entire country; with the human rights of every individual fullv recognized and observed, regardless of his or her sex, race, ethnic, linguistic or reLigious identin.

RouNo-Tesrs DrscussroN oN

Isr-AM, DeN{ocRAcyAND HuueN Rrcnrs SrNtrrssrs eNo RncoMMENDATToNS

Carlos P. Medina, Jr. Human Nghts Cennr, Ateneo Law 5'cbool

I.

Synthesis

Human Rishts. Cultural Relativism and Islam

a.

The concept of the universaliry of human rights is accepted in Islam. If ever there are differences between the universahty of human rights concept and Islamic values, these differences are few and are not fundamental in nature. For instance, there is really no provision in the pur'aa which denigrates or belittles women. In realiry, they can be as powerful and influential as men, or even mofe.

b.

values but can be attributed primarily

Human rights violations committed in Muslim countries are not due to Islamic to the system of politics and governance in these countries, since these countries are mostly authoritarian. It should also be noted many of the m are former colonie s of western powers. Hence, westefn powefs share the responsibility for the situation in these countries.

c.

There is a need to address the problem of double standard treatment by western powers like the US, UK and European governments in the application of human rights norms. Western governments tend to condemn Muslim countries for their human rights violations but keep quiet on violations committed by governments which they consider their friends (eg., the US on Israel).

Islam and Democrac),

a.

Like human rights, democracy is not incompatible with Islamic values. And like human rights, democracy concerns in many Muslim countries have to do with the manner of governance and the political systems in these countries, rather than with
Islamic values.

b.

In Islamic politics, there are three governing principles: the sovereignty of God, the vice-regency of man, and iniunctions in the par'an on proper behavior. Based on these principles, Islam is against monarchy, favors trusteeship and requires consultations in the formulation and making of pol-itical decisions. Consultations
can take various forms, including the kind of government and the holding of popular elections.

Islam and Peace

a. The term "Islamic" is

selectively overused to describe various situations or conditions connected with violence. Yet Islam is a whole system of life. Radical interpretations of Islam are a result of the oppressive policies by governments

supported by western powers on peoples who are forced to turn to religion aq a liberating force.
b.

The root causes of the Mindanao conflict have been identified as: economic underdevelopment, differences in identiry, and the demand for independence. Thd
Muslim people feel they lack economic opportunities. They feel they are not really Filipinos. And they want to be independent, since historically, they do not feel having ever been part of the Philippines. The situation of poverry in Muslim Mindanao can also be viewed as not the problem, but as the result of the quest for independence. It is this quest for independence which has resulted in the armed conflict. The armed conflict in turn has caused economic problems and poverty in Mindanao. Differences between the religions of Islam and Christianiry cannot be considered as a cause of the Mindanao conflict, since Islam is basically a religion of peace. Polarizing factors in the Mindanao situation include military abuses and human rights violations.

c.

There is a need to discuss this quest for independence among Muslim gtoups. To resolve the Mindanao conflict, it is recommended that a referendum on the question of independence be held. The referendum can cover areas where Muslims predominate. The referendum can take place after a transition period of around five or six years. During this period, the people can be educated not only on their rights but also on the need for and requirements of independence, autonomy or federalism. The UN should be invited to supervise the referendum, since the national government is seen as biased by Muslim groups. The challenge for civil society groups is convincing the government and the armed groups on the merits of having a referendum.

d.

Other problems also have to be addressed, including poor local governance and impuniry for abuses committed by local officials and the military. The government must exercise political will in addressing these issues.

II.

Recommendations

1.

There is a need for the government to undertake a comprehensive study and assessment of the Mindanao conflict. The study must seek to determine the root causes of the conflict and the best way to address them. As identified in the roundtable discussion, political and economic reasons have led to the conflict. Participants have pointed out that it is the quest for independence, and not poverty, which has caused the conflict and economic underdevelopment in the region. According to them, the problem is not economic or ond of conflict in values. Rather, it is one of governance and political will. There is a need to discuss these issues and to determine what concerns affecting governance have contributed to the conflict. The participants have mentioned the problem of local government incompetence, impunity for abuses by the military, and competition among constitutional, traditional and revolutionary authorities as among these concerns. The results of this study will serve to guide the peace process in Mindanao.

2.

The suggestion to conduct a referendum in Mindanao on the question of

independence merits serious consideration and positive action by the government.

Even among Muslims, this is a question which requires much clarification. What degree of autonomy or independence do they seek for Muslim Mindanao? Is federalism the answer? What areas in Mindanao are to be covered? A referendum on these issues will contribute gready to answering many questions which affect peace and development in Mindanao.
J.

The issue of discrimination and double standard treatment must be addressed. The government must be circumspect in acting based on criticisms of western powers against Muslims and Muslim countries in view of the double standards employed by some countries in the application of human rights principles.

4.

It is important to continue peace and human rights education campaigns in Mindanao. If possible, these must be carried out as part of preparatory measures towards the holding of a refetendum. The peace education campaign must focus in part on clari$ring and correcting misconceptions conceming Muslims and the nature of the conflict in Mindanao. For instance, Muslims are often poruayed in media as criminals, as killers, as bad people. This must be corrected. Moreover, it must be stressed that the nature of the conflict in Mindanao is not one based on identity (i.e., Christians against Muslims). Instead of focusing on differences, education efforts must strive to highlight shared values and aspitations between Christian and Muslim
Filipinos.

5.

Civil society groups must continue to enhance and sttengthen their efforts in working for peace and development in Mindanao. National and local government agencies lack resources and competence in many areas of governance in Mindanao. Without the active participation and involvement of civil society groups, many progmms on peace and development in Muslim Mindanao will not be as effective
and successful.

TRANSCRIPTION OF THE ROUND TABLE DISCUSSION ON ISLAM, DEMOCRACY AND PEACE

11 December 2003

Teehankee Center Ateneo Law School

Nagpapasalamat ako sa inyo sa pagresponde sa aming pa ny^y^ sa pagdalo sa Round Table ng Islam, democracy and peace. The Human Rights Center has organized this with the support of the British Council and Ateneo Center for Social Policy and Public Affairs. Bago po tayo magsimula, baka puwede ho na magbigay muna tayo ng maiksing introduction about ourselves and the name of the orgarization and the program which they offer.

CPM:

Special Projects
Pagpunta.

SYA: Ako po si Sarrah Arriola. Nagtatrabaho po ako sa Ateneo Human Rights Center, Desk. Ako y'ung nangungulit sa in1'o na pumunta dito at salamat sa

Abhoud: I'm Abhoud Linga. I'm the Executive Director of the Institute of Bangsamoro Studies. This is more of a research institute. The institute is not a decree countr\'. The Institute also conducts short- term trainings. One of our programs is human rights. \K'e started these human rights eady this year. Nakikita kasi naming na sa mga Nloro, u'ala
masyado tumututok sa human rights. Our program in human rights is first our advocacy' to

human rights. Me programa kami sa rad1o. Six da1's a week and one day is devoted to simply the human rights issues. Nakikita kasi naming na when we talk about human rights, we can talk about it in an academic level but )-un nasa grassroots, dapat alam nila yun karapatan rila. Iftpag nag- ooperations ang police, sila ang nahuhuli at mga abuses ng mga military. Aside sa program naming sa radio, nagcoconduct kami ng mga basic human rights training. Apat na y-un seminars na naconduct namin. Gusto nga ni Sarah sumali. She's more into the human rights training of the Moro women. It's too elementary for you. N{arami pa kaming mga schedule na trainings. May mga iba pa kaming program on education, training but ang focus namin ngayon ay human rights. Nakikita namin that it helps, kasi nakikita namin na mga military kapag nag-operations and nakikita mo din na ^ng ang mga matatanda na magsabi sa mga sundalo na n saan prng search warrant mo. When our partnefs could say that, it means that we are empowering them. That's our program.

Cala: I'm

Cala Clementir. I an intern of the Ateneo Human Rights Center. I just took ^m the bar last September. I will be your documentor for your round table discussion todar..

Benedict: BenedictJimenez represenring the British Embassy.

Edil: Edil Baddiri from... di ko alamif

from what organization I'm representing. Part of the yosng Moro professionals. Sangguniang Panlalawigan of Sulu. Graduated from this School kaya nandito kasi may connections e. Hehe! No scholarl), work on Islam excepr in my thesis where I learned a lot about Islam, hou'much Islam somehow started democracy and Human Rights. When I was reading this, I have some reactions. I'm sure Abhoud s'ould collaborate on the matter. I\{y advocacy is making the MusLim part of the Phils. Specifically Sulu. I want Sulu to foster an environment wherein human rights and the

practices

democracy become the integral part of the workings of the governance. Sabi nga ni Abhoud, there are problems with the abuses of the AFP, the PNP and those in power themselves, their fellow Muslims who are supposed to be their leaders who commit abuses against their people.

of

Sonny: Ako si Sonny. Parehas tayo di alam kung ano nirerepresent na otgarizauon. I(akaresign ko lang sa PARA. Ako nagpaimbita ako kay Sarah kasi interesado talaga ako
dito. Meron kaming proiect dats nz drafting ng isang declaration on the Moro Peoples, Right to Self- determinarion. Usap- usapin ngayon sa Human Rights and Democracy etc kaya
nandito ako ngayon.

ASM: I'm Ampy Sta. Maria. I'm also from

on migration and also traffickrng.

the Human Rights Center.

I handle the research

of the AHRC and sometimes the curriculum development. My actual desk is Migration and Women. I also need to know whether there is a protection for us to Mindanao in focusing

CPM: Again salamat ulit for coming here. $ile also invited three other people. All of them have confirmed. Si Prof. Roldan of the UP Islamic Studies, Comm. Sadik- former CHR Commissioner and Dir. Batuan of the Office of Muslim Affairs. Lahat sila nagconfirm and
expected to be arriving soon. I(ung titingnan natin )'un whole day program. The first part of the. . . (discussing the Schedule of Activities for the Day)

9:00- Arrival and Registration 9:15- Introduction and Levelling Off (Human Rights,
10:30- Break 10:45- Points of convergence 1 1:30- Islam and Democracy 1.2:30- Lunch 2:00- Islam and Peace 3:00- Break

Cultural Relativism and Islam)

3:154:00-

Synthesis

End of RTD

We have the Universal Declaration of Human Rights since 1948 pertains the universality of human rights. In 1,993, nagkaroon ng Wodd Conference on H1r-^. Rights sa Vienna which affirmed the universality, interdependence, indivisibiliry and relatedness of human rights. In fact, itong universal declaration is not iust a non- binding declaration ngayon. It becomes binding dahil in the sense na masyado na siyang matagal, bahagi na siva ng customary international law, to that extent it is considered as binding in the countries around the world. The universality is not really that it is universally accepted. There are many regions in the world especially in regions where countries have not really participated sa drafting ng universal declaration in 1948. Yung mga bagong countries in Africa, ).rrn mga bagong countries in Asia. Di sila naging bahagi ng proseso na )'un. Formally, they subscribed to the universality of human rights dahil r.rrarami na sa kanila ang pumirma na ng international covenants on political and civil rights, economic, social and iultural rights.. Marami pang iba pang international instruments na naging basis ng universal declaration at marami sa kanila ang pumirma doon. But still pn framework nila and siguro sa kalob- iooban ng kanilang mga puso at isip there is still a resistance to their universality of

To

s,.art

off.

human rights. We see that in Asia for example, maraming Asian countries led by Malaysia which is against the universaliry of the human rights. In fact, sinasabi nga ng Malaysia and some other countries maybe Singapore na merong Asian concept of Human Rights. Human Rights is not really that universal. Ito yrrng principle of cultural relativism of human rights na sinasabi ng mga countries na ito. Siguro one reason why we don't have an Asian human rights system. Meron ng European, Inter- American, African. Maybe iba talaga ang human rights sa understanding dito sa Asia. And in fact, marami sa Asia and iba sa Africa maybe the Middle East. They are saying that human rights is a \il7estern concept. Iba talaga ang human rights ng West against sa East ngayon. In the East, iba I'ung understanding ng human rights. Some are saying that maybe there is a difference between the north and the south. Iba yrng pagkaintindi ng pantao ng mga m^yayamarl at 1ba naman ang tingin sa karapatang pantao ng mga mahihirap. So the universaliry of human rights is being challenged around the wodd and especially in the Islamic countries. Yung sinasabi nila na Shari'ah law seems to be incompatible with human rights, democracy. Kasi sinasabi nga ng karamihan na democr^cy c n only exists if human rights is respected. I(ung hindi ginagalang ang karapat^ng p^ntaQ there will be no genuine democracy. Marami nagsasabi that in Islamic countries where the Shari'ah law remains merong incompatibility with human rights and merong incompatibility with democrao'. That is one question that we would like to address. Totoo bang merong incompatrbilin- ang human rights and Islam? Islam and democracy? Or is that a misnomer? Or is that \vrong? Or is that true in some respects? Not true in some areas? Ano ba I'ung points of convergence befween Islam and Human rights and Democracy. Saan naman sila nagkakahiwalay? Ano yrrn points of divergence? That one we would also like to address. And then to look at it not only at national level but to look it at the general international level, but to look at it in the context of where we are ^t right now in the Philippines e speciallv in trIindanao. Is it because of conflict of values? Is it because iba yrrn pagkakaintindi sa demokrasva ng mga Muslim? Ng Kristiyano? Iba ang kanilang concepts ng human rights? Kava nahihirapan tayong mag-implement ng policies and programs sa Mindanao? Part of the cause of the armed conflict dahil iba ang konsepto ng demokrasya? So the armed conflict of course has a substructural basis and unequal distribution of wealth and resources because of the conflict of the concepts of human rights and democracy. Is there a conflict of values? Yung universal declaration of human rights, is it really accepted in Muslim areas in Mindanao? Meron bang cultural legitimacy ang human rights as expressed in the universal declaration in Muslim areas? So gusto din nating ugnan ang repercussions ng ating discussion sa democracy, Islam and peace in the Philippines. Is it possible for us to come up with policy recommendations or perhaps to modify existing policies and to look at how this policy recommendations can be implemented. So yrrn po ang nais nating tingnan ngayong araw. That's why we have sessions on human rights, cultural relativism and Islam, that's one session. Islam and democracy, Islam and peace. I realtzed na mabigat itong mga discussions na ito. We will not be able to end everything by 4 o'clock but we will try to discuss as much as we can and come up with recommended policies by the end of this day and hindi natin alam baka ang discussion natifl flgayon can lead to futher discussions and round tables. So prn po ang nais nating mangyari ngayon and maybe we can start off with our own thoughts on human rights and cultural relativism and Islam from a general level and then tignan natin lung dito sa Pilipinas. Can we invite Abhoud to start?

Abhoud: I think we start with

some clarifications because there seems to be generahzation of this idea. When we talk of the universal declaration, generally these are accepted. If there

there are just very few. I think what you just have to do... I think Muslim scholars have come out with several documents on Islamic view on human rights. On early 80s, there was already a... drafted by Muslim scholars who got
are differences with Islamic values,

I think

themselves there in Europe and they got themselves to come out with the Islamic International declanaon of human rights. But these are scholars. These are not the government. And there was also Arab declaration of human rights and there were many. And when I look into these, there are only just some very few differences which are not found impact ... but what I said we should start with some clarifications is because the human rights records of Muslim countries. I would not call them Islamic countries because there should be a fundamental difference between a Muslim country and an Islamic country because when you say Islamic country, it is a country which is governed by Islamic law. And none of these is governed by Islamic law but when you say Muslim countries, a country inhabited by Muslims.. The poor records of the human rights in these countries are not because they are Islam. We have to understand these Muslim countries especially in the Middle East and even in Asia. These are not Islamic countries, these are secular countries. Some are socialist, monarchists, some are dictatorship. These forms of government afe very really susceptible to human rights violations. For example, Egypt is not Islamic, Egypt is a very secular and it is a socialist country. Iraq is a socialist country. It was never been an Islamic country. Syria is a sociaList country. Nibar parry is a socialist party. It is founded by a socialist Christian Arab. So these are not because they are Islamic but fundamentally because of the nature of their government, miJitary dictatorship. \X/hat do you expect from a monarchal form of government? We have to understand that in this country, many of the victims are Muslims themselves. Muslim scholars are also the victims. Even in Saudi Arabia and India. During the time of Suharto, the victims are mosdy Muslims. Because these are people who advocate for change. Change in the political structure and so on... so look at into the system of governance in these individual countries and we see that there is no relation with the Islamic law. Secondly, I think the reason why there is so much fear about Islam is because of the US campaign. Of all the Muslim countries, it is Iran that conducts the regular elections. But it is Iran which is being criticized very often by the US which is an absolute monarchy. til4ren you compare the human rights record Saudi Arabia and Itan, mas grabe ang Saudi Arabia. But the US is so silent with this subject matter. The US, British, the European are so silent about it. Is it because of their national interest? I think when we talk about human rights; there should be a fair application. It seems to be hut. When we talk about human rights, there seems to be double standard. For example, when the Islamic party in Algeria won in the elections. The secular military establishment, took over, cancelled the result of the elections and then banned the Islamic salvation parq. You see, nobody criticized this. Europe, Great Britain, America were so silent about this. These are basic violations of the human rights. We have Muslims who participate in popular elections but if sila yun mananzlo, they cancel the elections. This has also happened in Turkey. \ff/hen the parry of Eva I(ahn. The party won. Even the Time magazine, the Newsweek and so on cry foul. You can just imagine the governing party is being banned as illegal.

There is a double standard application of human rights (HR) values as far as the Muslims are concerned. \X/hen you talk of human rights, fundamentally, there are very few differences. These differences can be discarded. There is common limit about HR. HR is not given by the States. In an Islamic point of view, it is God-grven and nobody can take that. I know what we only mean is fair application of HR standards. I think the problem now is more on that... It's not the concept. Like in Mindanao for example, there is no

discourse about democracy and HR. It is mainly because of lack of HR and lack ot democracv is the issue in l\{indanao todal'. It is not because N{uslims do not like HR. ln fact, that is what we need to partake ourselves from abuses... But it is mainll'bccausc this democracv and t'ou Ln61y political rvadords are alu'avs u.inning thc clections. \\'hcrc is democracl' there? V'ala namang nagrereklamo e. Nlahirap din magrelilamo kasi. \\'ala ka namang baril e.

CPM: Ba't di kayo gumawa ng ingar'?

Abhoud: I(ung gumawa ka naman ng ingal-, dito ka lang

makagawa ng ingal' sa N{anila. Mag-ingay ka dun, walang papansin sa ivo because ABS-CBN, GMA, di ka pupuntahan. I\{agbaril ka na lang kasi, I'un ang papansinin ng media. I think that would be a good startin.g point. Tingin ko hindi naman problema ans issue about HR in Islam except therc are ccrtain things na pwede pag-usapan. mamava, u'hen s'e talk about democrac\'. \\'e can talk about political concepts.

),ou look at the histon' of Islam, \-()u start with the historv of tloltantruad .\'a//alt (?). Islam started in the Arab rvorld in the desert u.here the life was almost inhospitable. And where they rarelv have respect tbr lit-e. Thel have this practice of pag babae vun anak, p^r^ng walang use sa famih', ipapatal na lang. It was the time na they have their orvn set of values which somehou' \\'e can sav that it's r-en' cruel. Thev live in a ver1, inhospitable environment. \\'ell, u,hen Prophet )lol-iammad started receiving the call of God and he started this communitv oi belier-ers. He se t dos'n principles. He set dou'n principles which rvere God- given and uhich \\-ere protected the rights of the people. That's r.vhv I have a reaction rvhen sabi dito that the concepts oi HR and democracv that the persistent objectors are the Islamic countries. Tl-re problem is not u'ith the religion, the problem is u'ith the political and historical reasons in these countries. If vou go back to the basics, to the life of Prophet N{ohammad and u'hen lou so back to the I{oran u'hich is the Constitution of the I\Iuslims. It is the fundamental las' tbr even- Iluslirn. \{'e can see that u'hatever that is stated in the UDHR, it is highlighted and respccted and should be taken as God-given law bv even'Nfuslim. In practice, Nluslim countries irar-e fhiled in implementing HR records but if you look at the countries, these countries have been affected or is influenced bt' the \X'est. Somehorv, their orvn practice of Islam har-e becn at-tected has become impure. li vou look at most of the Nliddle Eastern countries. It is a tirrm of cokrnies of the \il'estern countries. Because of years of subjugation, these countries have leti an imprint on the Arabs and somehorv influenced them. It started 20 or 30 \'ears ago u-hen the to go back t() what is pure or u'hat is Islamic and the \\'est ftlt threatened about it. \\Ihat is happenine in -, Islamic Partv and u'ere Algeria, in Turkey and because rvhat the lo\rernment has elected is an o\-erthrown bv the secular institution. Because of the fear of the \\'est of the right of lslam, they did protect most incidents. Somehow, these is a distortion. \X'hat happened on 9-11 and this was on terror in America, the Nluslims have become a target and alwal's forgetting that there are other countries which are inhabited by Christians with far rvorse on terr()rism. If vou check the 'uvebsite of the State Dept. of the CIA. Nlost terrrrist acts \\'ere cr>mmitted in Columbia. Columbia is a Christian countr)' but now when lou talk about terrorism, immediateh' what comes to vour mind is a Nluslim countr\'. If t'ou talk about fundamentalism, fundamentalism is a Protestant concept. It is not an Islamic concept. But the waf it is talked in the media, it would appear that it is a Nluslim concept. It is a bad N'Iuslim concept. Actualll', it is not. Fundamental is just going back to vour faith. Going

Edil: If

back to what is good. \X/hen you're a Muslim, you go back to the Life of Prophet Mohanmad _ Salenz and you have ro follow his teachings. Prophet Mohammad is the perfect examPle of what a Muslim should be. He was a iust person, a merciful person, a just ruler, a good political leader. He practiced democracy. In a time where the world was ruled by emperors with absoiute powers. Mohammad was far from what these emperors practiced. He established a community where there was a rule of law. He established a communiry. He established a community where he consulted the people regarding the state matters. And somehow this was forgotten. The image of Islam/ Muslim has been hif acked by the suicide bombers on someone who lalled, on someone who sacrificed his life for a cause. This has been hiiacked not only by the Muslim radicals but also by the Western media. I think in Mindanao, the No. 1 violators of HR are the military and the elected leaders, the wadords. If we study how these warlords continue to flourish, continue to remain in power in spite of the law, of the Constitution. You can see that they remain in power; they flourish in power because they are tolerated by the National government. The national government itself distorts the practice of democracy in the local level. For instance, in the election of the ARN{M governor, I'm sure Abhoud would argue and I'm also on that ground. I saw how -foto Calla (?) and the problems of Sulu. No governor has won the fellowmen of one over without the blessings of Malacafrang. For our country which is a democratic country and would critictze neighbors like Malaysia, Indonesia... Hypocrisy, the practice here arc far worse. We also forget that in our constitution, we talk about the same procedures to stay and we're praised that it is brick- wdtten or some Western countries. They have the State religion which is the Anglican Church. Having a state religion... What is the difference between Britain having a state religion and let's say Saudi Arabja for that but we don't criticize Britain for the same reason. A double standard in HR, in democracy. That's why the US has no credibilitv with regard to the Muslims. The most obvious double standard application by the US is in the matter of Israel. They attack Iraq for violating the UN resolution but Israel has consistently violating UN resolution ever since its inception. But when _ ro show in the UN, US will always be with Israel. Even the matter with East Timor. If you took East Timor side by side with the Muslim Mindanao. Muslim Mindanao has more than enough right for self- determination, has more right to be an independent srate. If you look at the history of N{uslim Mindanao and compare with East Timor. N{uslim Mindanao should be an independent state more that East Timor. But you do not see the US asking the PhiLippines, preserving the PhiLippines. to give independence. To allow a referendum on the question of independence in Muslim Mindanao. But in East Timor, a different thing happened. \What was said at the time was, there were many Filipinos and Filipino groups supported the move of East Timor to become an independent country. Forgetting that the name existed in their own country. Iba lang ang religion. Indonesia rs a Muslim country while East Timor is Christian. Dito, Philippines is a Christian country but the Moros are Muslims. There is a double standard. It is painful for the Muslims ro see thar. Abhoud and I do it in academic discourse, for others, they violate means to show their frustration. As a concept HR, democracy, Islam/ Muslims embrace these concepts but when it comes to appLications, that's where the double standards come in and that's when the extremism comes in.
\X/hen you talk about the HR, I have two points. Basically I understand first politically attributed pero when you ask me, any development is a right. The point, when yolr r"v development is a right is not really granted by the US. Second point, in terms of mga .Qur'an. May iba-iba ring understanding o interpretation ang bawat Muslim groups. N{ay

Benedict:

10

kanya-kanyang grupo din yan n may iba-ibang interpretasyon ng par'an kung paano palalakairn. Sad to say na perhaps yung concept ng HR naman. Pero iba-iba naman ang interpretation ng mga Muslims. That may be a problem.

with Abhoud, na tingin ko, na although Muslim-dominated countries yung nag violate ng HR. It's not because they are Islam. Sa tingin ko, just like any other dictatorship. Behind the excuse of cultural relativism. Even FVR th^t time, sumasama ^t kay Mahathir sa issue ng cultural relativism. Sa tingin ko if Islamic republic yrrng pinaguusapan... I agree with Abhoud na di dapat na tawaging Islamic fundamentalist. Sabi nga ng kaibigan ko Islamic radicalists daw ang dapat na tawag. Mas nakakatakot talaga )'un mga tulad nito...mga Taliban, Abu Sayaff... Personally, tingin ko nga bandits talaga yan pero supposedly they espouse Islamic radicalists idealism. Pagdating mo kase sa ground, they need HR. We consulted the grassroots; we tried to interview ordinary people not political. Nakakatuwa kung tingnan mo. They have very same complaints ng isang ordinaryong m m yan sa isang ordinaryong m^m y^n sa isang ordinaryong barrio sa Pilipinas... Poverty, graft and corruption, etc... Everything that we complaifled about the government. Di namzn to limited to whether Muslim o Christian )'un nasa government. Sa tingin nila, hindi n mzn ini-implement yung ARMM, wala namang HR component yan so it's not only the people who neither do nor know democracy and HR. Even the officials also whether Christian or not. Pare-parehong hindi pinanghahawakan ang HR. I(asi sabi kanina ni Chochoy, cause ito ng armed conflict. Yan ang kaibahan ng Muslim sa ibang Pilipino na nagko-complain against the government. That they are being discriminated. Tingin nila, hindi talaga binibigay ng gobyerno ang dapat ibigay sa kanila. Sa Tingin nila pagpunta ntla dito sa Maynila, mas^m talaga ang tingin ng m ga l(ristiyano sa kanila. Incompatible ba talaga sa Shar'iah sa HR? I agree with you marami talaga. Islam is supposed to be for the protection of its people. Personally nagbobother sa akin. Di ko alam if paano remedyrrhan ng Shari'ah law. Even women, kasi nung pumasok ako sa Camp Abubakar, di pwede sumabay angbabae sa lalaki sa pagsakay sa motor. Maglakad nalangangbabae.
agree

Sonny: I

ASM: It's more attributed na bulok

ang gobyerno mo, corrupt... Pero hindi umuugat sa pagka- Kristiyano mo, Atheist mo o Komunista ka man. Hindi ganun. Pero kapag Muslim,

nauuwi dun e. Kasi Muslim/Islamic country Frn.

CPM: Before we proceed,

ipapaktlala lang namin si Mr. Tom from Minadanao Parry-list. (Sir introduced everyone again)

To go back to where we left earlier. Sabi ni Abhoud hindi naman problema ang concepts dito. It is in the political systems. Meron kayang basis sa Islamic sysrems... )'un mga violations. Meron bang basis sa kanilang religion? Or baka naman merong iba-ibang interpretations ng par'an? Meron iba-ibang policies na lumalabas kaya iba- ibang policies?

Not

necessarily siguro one Islamic interpretation but different interpretation system in different actions.

Abhoud: I think we have to stick with this topic Islam and democracy is also interrelated with this so we will be dumping on this. I(asi yun discussion on HR di mo maiwasan sa discussion on HR di mo maiwasan sa discussion on democt^cy. That is because it is an integral part of the democracy. Siguro, start with a point. Use of word "Islamic". It has been overused no. At sa Marawi, meron pang'Is/amic Carindeia"... I've bought this out in
11

one symposium in Hongkong sa scholars in Sountheast Asia. From time to time, the use of the word Islamic terrorist, Islamic fundamentalist and so on. There's a research on the use of thc word "lslamic". I can frrrgive the mcdia because they have no time to think. To you, thc "think- tank" of the US, to whom I am bringing this out. \X'hen )'ou sa\' "Islamic", it is the normative way of doing things. There's only one Islam, there is no other Islam but the followers of Islam who are called Muslims may differ in their interpretations, di ba? I can be a Muslim terrorist, I can be a Muslim fundamentalist, rvhat need yoq want to call me but I am An Islantic I think even in the use of terminologies, I think there is something wrong in the use of the word, Islamic States. You cannot find Islamic States even in the classical books of Islam, you cannot that. Islam is ahead in the concept of statehood. Of course, Muslim scholars are also at fault because they are also using that. There is ncr concept as Islamic state. Therc is more classification. It is verv common to human behavior that when a man magkakaproblema, he would alwal's seek refuge in his religion. If you remembcr that Saddam Hussein u'as probablv one of the worst dictators in this world. The Americans attacked him when declared Jihadbecause he was already pushed at the wall. It's very common in Muslim communities would seek legitimacy of their action by citing this or citing that. When a person has a problem, maghananp na talaga kung ano ang justification dito o doon o then here comes. O, y611 can justify it this way. Hindi yan. The problem really is the use of Islam selectir.eh'. But Islam is a whole system of life. For example, \'ou cannot implement cutting of hands of thieves is poverrl'. When people cannot eat. These things cannot be implemented. How can 1'ou be sure... he's iust done that to save his children from hunger and it's more fundamental rather than... \We have also to be clear that some punishment in Islam is not really a punishment. It's more of a social deterrent. I-ike death penalty for example, so much talk about death penaltl'. But death penaltf in Islam is being carried as the last resort. Before, we speak about forgiveness. We talk about the HR of the criminal but what about the HR of the victim. Under Islamic law, death penalq, 62n only be implemented if he is being convicted by court. Even is he is already convicted by court, there is still the option of (1) the victim's relative can agree for a blood money- par^ to save his life and the other is forgiveness. That if the victim forgives the convicted criminal. He can even receive rewards from God because of forgiveness. In the ruling of many scholars, when there is already execution, the relative s of the victim must be there and there should be at least 3 attempts to convince him to forgive. Hindi 1-Lrng didiretsuhin mong barilin. Bal<a at the last hour, nandiyan pa l.ung forgirreness in the Islamic lau'. It is within the power of the fudge or head of the state to forgive. The one to forgive are the victims. Because that is not a crime against the state. It is a crime against the individual. It is the individual rvho har.e the capabilitl' to forgive. It's ver;' humane. \il,'ag na sigurong palakihin ang issue. But you know as I said, to answer the question kanina on interpretation of Islam. There are rwo (2) laws. W'e have the Shari'ah law, the fundamental laws embodied in the Qur'an, in the _, the practices of l\{uslims. These are general principles. The pur'an speaks more on moral guidance. To implement this Shari'ah, we have thrs Fiqae(?) These are the bodies of jurisprudence. These are human interpretations of the Shari'ah. \Yhat eniol's permanence is the Shar'iah. You cannot change the ptr'an. A fixed law. But jurisprudence human interpretations of the pur'an. It is subf ect of a continuous debate ^re in the N{uslim community. We should clarify, is this the law of the pur'an or the law of the Islamic jurisprudence? If it's just a law of Islamic jurisprudence, then pwedeng pag-usapan. You present this argument and the N{uslims are open to this. Now, only very few Muslims are trying. .. because of Fiqwe... unless you're a scholar, you'll be lost. Lalo na if it's about law. Islam is often with regard to jurisprudence but we are not open to changing the par'an.

12

These are permanent. But these are guidance/guidelines. For example death penalq,'. There are many interpretations on how to carry death penalty. The par'an speaks certain punishment for certain crimes. But how would you implement that? On what occasion are you going to implement that? You cannot question that God allows death penalry but vou

can question on what circumstances. You can question the independence of the court because these are humans. It explains why Muslim interprets Islam differently because Muslim like any other human being if they have a problem; they look at their religion as a liberating force. If in the country where the Muslims are being oppressed, they will always look up to Islam. How Islam is able to liberate us? This is now the problem because in many Muslim countries, they are being oppressed by their own leaders. How can they be liberated? They have these kings, leaders, presidents who are very corrupt or oppressive. \X4ro supports this? They are supported by the US, by the UI(, Europe and so on. That's why there is hatred to America because it supports these dictatorships. You see now the reason why. It's not because of the differences of belief. Because they see that without the Americans and the British and the Europeans; of course these dictators will not be there in power. You know the hatred of the Muslim masses to their leaders is more than their hatred to the Americans. But it is the Americans who react masyado... Ano'ng answers ng mga Ieaders? Summary execution!!! You know bibilanguin ka ka when it would be kapag nagsahta against your Muslim leaders. You have to bring your toothbrush, your underwear kase di ka na makakauwi. This explains why N{uslims interpret Islam more radically. It's because of their experience. Di ba? E ganyan naman talaga. Even the Bible is interpreted based on experience. How can the Bible be able to liberate me from my problems? We have the Liberation Theology. Where did the Liberation Theology came from? Not in America but in Latin America. Because of their social and economic condition.

CPM: Yun

sinasabi kanina ni Sonny about sa kababaihan na yung sa Shari'ah lau'na hindi

pantay y.ung babae at lalaki?

Abhoud: Hindi naman

a!

CPM: Are there different interpretations

Abhoud: There is no provision in

saFiqae in terms of implementing or interpreting the verse nanakalagay sapar'an o Shari'ah na iba talaga ang status ng babae?
the pur'an that would discriminate women. In fact, kami lalaki ang dapat mag-complain. (laughters from the group) I tell you, in a family for example. I have my obligation to feed my wife, my children. To give them comfort. If my wifeisearning. It'sallforherown. If bibiglanniyaakongbaon. That's akeady charityon her side, not her obligation. O yan!!! Bit these are not being emphasized. But of course, there are some cultural practices. Dito fl fl^m^n nagkadiperensiya sa Fique. Because Islam gives too much emphasis on moraliry'. There is a provision on the par'an that one should not go near to adultery. The par'an did not say, do not commit adultery. Do not go near to adultery. Dito na ngayon nagkadiperensiya ng interpretation. Because some Ollattab (?) arc very restrictive. Magtabi lang ang babae sa lalaki, o, lumalapit yan sa adulterl' ah! Dapat lumayo ka. So diyan na nagkakalal'o. Yun nakita mo for example, Frng babae sa Caae Altubakkar na hindi sumakay dun sa motor. Minimake sure lang ng motor na bumper to bumper yrrn. Eh ikaw, magdadrive ka, e yayakapin ka ng babae. Hehe! Ang iba nilalagl,an nila ng bata in- between. These are interpretations. Interpretations of the l(oran provision

n mg

1.3

on "Do not go near to adultery." May mga nag-iinterpret na tingnan mo lang ang babae, that is aheady adulterous. There were christian beliefs like that before. Dito na nagkakatalo sa interpretation. We, muslims are open to the discussion about this. We afe not oPen to the discussion on the general provisions of the par'an. But all interpretations in fact, the most liberal system in history is Islamic before. Islam is not afraid of having certain conceprs. Those who preserve Greek knowledge, it was the Muslims. Without the Muslims, no Greek knowledge can be interpreted to you. We are open. Fair- Play. Give everybody a fair chance. \ilhen we talk about Islamic government, iba yun. Talking about Taliban, di nga natin alam kung sino ang gumagawa ng Taliban. Tungkol sa problema sa Mindanao, it's more on political. May economic component but it's more on political. Totoo yrrn na mga m^y iba't ibang opinion. $7e expect and respect that. In fact, if punta ka rao sa Mindanao ^y ng Mindanao and iisa lang ang isip, then maybe Mindanao is already ruled by a dictator. That could be your conclusion. But the diversity of the Muslims in Mindanao shows how democracy operates. Hindi maiiwasan na some sectors in Mindanao really want for the independence of Mindanao. These are mostly the armed groups and some factions like the MIIE, MNI-F... Because the problem is political. Is there in any way in a democratic state if we can to solve this? I, as an advocate and sole believer of democracy, believe that democracy is not impotent to answer any problem including war like this. That's why we are for a conduct referendum. To ask the Bangsa- Moro kung ano talaga ang gusto nila. E kung ano talaga ang gusto nila. E kung isang sector lang ang me gusto and I-hi-jack yrrn iba. How can we solve this? This is done in a country Sudan in the Christian province in the Sountheast. Every 6 years they conduct a referendum for sovereignry. This is also being used in Bougainville, Papua New Guinea... Why can't we not do it in the Muslim Mindanao? Ano ang diperensiya nila sa Moro in Metro Manila sa Christians on Sudan or the peole in Bougainuille? Just fair application of democracy. Just fair appiication of human rights. Just give it to us. Maganda dito that we can ask an MILF na lang na magparoon... baka manalo pa kayo. If matalo sila, e di pasensiya. E di ba, )'una naman ang essence ng
democracy
e.

Sonny: Of course I agree with Abhoud sa referendum. Pero pag pinag-uusapan if sino ang irereferendum natin. Ang population ng Muslims at ang population ng Christians,
outnumbeted talaga )'ung.
.
.

Abhoud: That is

aheady defined. Our proposal is not whole of Mindanao. We do not also

want the Moros to dominate Mindanao. It's unfair. V"ry clear that the Muslims are still the majoriry. Sinasabi ko nga sa mga leaders namin na do not forget the Palestinian slogan na "driving these values to the sea." That is unjust. That is against HR. Yun mga Cebuano, eh di na nga nlla alam kung saan ang bahay nila sa Cebu. You drive them to the sea. No, you cannot. It's very clear. At least we can start with the armed area. The five provinces madali yan. Wala yan problema. Pwede yan pag-usapan. Then all the people in the predetermined sector 1'ung magboto. There are many ways. Why can't we not start talking a democratic way? Huh! I mzy not have the solution to do it but pag-usapan. Para madivert )'un paguszpan sa glye2jl^.

Sonny: Yun problema sa pag-uusapan, )'ung mga grassroots hindi na nila alam 1'ung
kanilang mga rights. Before we can proceed with the referendum,dapat itaas ang a-wareness ng mga mam y^n so that when they choose, fitted I'ung pinili nila. Yung tama.

14

Abhoud: Ayaw namin ng referendum bukas. Kailangan n m y period. Let's say five y,ears. Within that five years, education. If pro-unity ka, e di mangampanya ka. If proindependence ka, explain mo yung advantages so may enough time ka to educate. Maganda yrrn! Within the period of five years, mapag-usapan talaga ng maigi. Kase if nagreferendum ka bukas, it's more on the emotions. Emotional masyado. Very personal. Mawawala ymn logic. Kailangan ng transition period. Sa Sudan nga six years ang gusto nila e. Bougainuille ten
yeafs.

CPM: Pwede pakilinaw yrrn cinasabi niyo na sa Shari'ah is permanent but subject to interpretati on sa Fiqud

Abhoud: Yes. The CPM: Yun fique ho

Fique is the interpretation of the Shari'ah.

ba which is applied to the period is that interpretation law? Is there any incompatibitity with the HR, democracy?

of the Shari'ah

Abhoud: Actuaily, ^ngm

wala namang Canon Law applicable to us. We very secular govt. ^re ^ Maybe P.D. 1083. These are the Muslim personal laws. These are not the Shari'ah law. Ano naman g-^ ply sa amin? Wala. nila establish ng Islamic State and law masyado by the Shari'ah dahil daw secular governed ,magyung Muslim Mindanao. They want a more Islamic... Di ba may mga courts na ganun.

CPM: We hear of the fundamentalist movement like for example, abu Sayaff, gusto

Abhoud: Other from rhetoric's, they haven't come out as political but I haven't seen any political platform. The Abu Sayaff is more of an armed group rather than a political goup. The difference between the Aba Sryd 4S) and the MILF, MNI'F.. . MILF and MNI,F, may
mga mass base y'un, may political structure, may mga political agents and so sa atin unlike the Abu Sayaff.

on.

Mas klaro

Is MEU 0 from Basilan mas alam ntya yrrng Abu Sayaff because he was able to meet the leaders of the Abu Sayaff. Sina Janlalani, yun leader ng AS. He established it with the concept of all those political, religious aspects... This part of the AS died with him. What remained was the armed part of the AS who committed these crimes. $7e have to be careful about the AS... Like Janialani, he was trained by the CIA in Afghanistan at the time when bounded by America. P"g iba y'ung kalaban ng America, they are called freedom fighters. Do you know how the minds of the Americans work... Pug dating dito sa Philippines. After the death of Janjalar+ what remained is the close collaboration with the military officers. You have to question sino yrrng mga handlers nitong mga militaries. You have this book of Torres, Fr. Nacorda, Gen. Luis, escape of Janialani at Camp Crame... Bangkan'... all these are mihtary officers, police officers, generals. You have to wonder. Who are the handlers and protectors of the AS? If you talk to the hostages, you will know kung sino )-ung mga tao ng AS. It's impossible na wala kang kilala sa kanila. Its impossible na 1'ung relative ko, walang relative na nakasama dun kay Janjalan You get to listen to them and they tell na pag magbobombana yrrng militaty,may tataw^g so aalis na naman sila. I believe that AS is a military creation para sirain y'ung Bangsa-Moro cause and to have a reason for the military intervention in Mindanao. Look at the fall out of AS. Mga Malaysians gaht na sa mga

Edil:

15

Tausugs. They now apply strict appLication of laws of migration to them and nastra sa Islamic world. Sa OIC. \X/ith these as background of AS, we can see that these people are mercenaries and they voice rhetoria on Bangsamoro cause but without the implementation and what they commit are crimes and I hope with the capture of Robot. \X/e hope that he will spill the beans if who are his protectors. pur'an with many interpretations. I think the same is true with Christian religion. How many Christian sects or groups in the world. I think it has more interpretations than the Bible. Even among the Catholic Church. The Opus Dei has a different view of Christianiry. The Jesuit has a different view with the OMI fathers. There are different views although they agree on common fundamentals of Christianiry. It's not only peculiar with Islam. For Muslim, you should always study if what's rhe correcr interpretation. \We should be guided by that. It is part of being a Muslim. It is to engage 1ihad. Jihad is not only war as the westerners. Jihad is a struggle to become a berter person. To become a true Muslim. Going back to what Ma'am A-py has said, if a Muslim committed a crime, biglang highlighted yrrng Muslim. Pag I{ristiyano, wala. Kapag m y n ngy^y^rtng masama, it is always connected to his religion. The reader would think perhaps ir is connected to what the Muslim believes in. for Christian Filipinos who have been bombarded by the media, pag Muslim nagkidnap, Muslim kidnapper , MusLim killer... But there are more Christian killers in this country than Muslims. Wala ka namang mabasa sa diyaryo na Christian Estrada, Christian theft, Christian I{iller, Christian dictator. This discrimination is going back to the way the history is being sold. If you go to the history of Muslim bandits. If you go to the history of Spanish- Moro wars, the Spanish started the war with the help of the Indians. Sulu sultanate is existing on its own. They were traders; get commerce with the Dutch, with the French, British. Here comes Legaspi, Magellan wanting to Christianize and colonize. Here comes Legaspi. Pumuntang Sulu. Gigiyerahin kami kasi \We respect their stay in our place pero ayaw kami Magpa- I(ristiyano. I(ami y-un masasama. kami yrrn inattack. Nagretaliate kami. It's a w^r. Definitely, we will commit acts that have been committed against us. We would raid, we would kill, we wanted to take away prisoners. Ginawa kaming pirates, slave traders ... We have to study history to understand the presetn. We have to look back at the relationships of the Moros and the Indios with the Spaniards. And we can understand why there is division. Majority have not made peace. They do not view Muslims as brothers, as a Filipino. This becomes worse in the 1970s when Marcos started killing Muslims. That's why nagkaroon ng MNLF in 1970s. Sulu was very peaceful ^ place until Marcos has an idea of having Sabah and use the Muslims. When you get oppressed, you go to your religion as a liberating force. The Tausugs found Islam as a liberating force. That's why they start educating their masses. In religion, they found a iust cause. They taught the armed forces. Because of the history of the Moros and the Christian Filipinos, ang dami ng HR abuses against the Muslims. Lumabas lahat ng discriminations against the Muslims. If there's a solution, it must start with the educational system. Textbooks must be changed and revised. If you say that Moros arePart of the Philippines. of Islan of You start with the history from the establishment of the Sultanate of Sulu, the basis Muslims on the to reeducate not trying I'm Abdulin the grade2 books in values. of Christian values and history because definitely they will reject it. Yung values thoughts in the texrbooks. Parehas lang yrrng values natin. I(onti lang yrrng pinagkaiba. It's the way it is being presented. It tends to exclude the Muslims.

Abhoud: I just want you to invite sa website of Manila Times wherein Supt. Mendoz^ was war with the Islam and the Muslims are the aggressors." \)7e are not quoted, "\)7e are ^t It's this government that is declaring war against Islam.
declaring waf.
16

Another issue, in March 1I, 2003, the Edi/- Abbab(?) day, they bomb Bullu(?)... just to prevent the Muslim not to pay on that very important holiday. The Army and the GMA tbundation celebrated Christmas in Ba/lo. Nakikita if pagdugtung-dugtungin mo ba, I(awawa na naman kami. Gigiyera natalagakamr. Coming froma police who is supposed to give securiry. Where is now our sense of security? I(ami ang nagsasabi na rhis is not religious na. Government institution, media. .. Patalastas lang y.un.

CPM: Mindset ng military Abhoud: And we

w^r against Islam.

are the aggressor's daw. Ifyou're walking along the streer. Tingin sa iyo aggressor, kalaban. Lalo na kapag naka-attre, di papasakavin ng taxi.

Sa pag- ikot-ikot ko sa Basilan... Wala ka talagang makitang dokumento kung pwede pa no pag-aralan... kung Paano makitang kung sino itong suportado ng mga armed group... Ilalamang dumaan na naging independente )ung pamar^ n nila... Labas si Altor- Ablack pagtakbo ng organisasyon, mas pumasok... tinitignan baka kasama sa Inrernational Training

Tom:

Afghan.

Abhoud: Iba ang interpretation ng US, iba ang interpretation ng European Union. Iba-iba ang interpretation ng mga countries. Ang interpretation niyan using same document. .. to server their particular needs... So yrng trabaho ng Human fughts mechanism, mahirap
ralaga yan kasi iba-iba ang pagtingin...

CPM: Dahil iba- iba ang religion... Meron bang ibang Qs before we move on to the next topic? 5-minute break muna...
--- 5 minutes break ---

because the laws are made by people who are probably nor really accountable in a democratic sense sa mga t^o. I(umbaga, hindi naman sila pinili flg tao as elected but they rePresent the people. Maybe these are some of the Quesrions thar come up will try to discuss Islam and Islamic law in the Philippines. Merong prevailing perception especiaily us, the Non- Muslims na merong mga incompatibility sa Islamic States. If it's really islamic, it's by virtue of an Islamic State, not democratic. Automatic yrrn. Maybe the se re some of the questions we might want to touch on when we discuss Islam. Let's start the discussion...

CPM: Balikan natin yrrng sinasabi ni Tom... Yun status ng women sa Islam. Status of nonN{uslim in an Islamic State... Meron ba talagang malaking discrimination berween Muslims and Non- Muslims? Is it a matter of interpretation again. Ano 1nlng mga discriminatory practices? Usually pag sinasabing Islamic State, y.ung pumapasok sa isip ko ay Iran. The religious law is even above the Constitution and )'un mga edicts ng mga Islamic leaders even supersedes un mga batas na ipinasa ng Padiament so even back, it's undemocratic in a sense

Abhoud: I think when we talk about Islam and democracy. We start talking ).un mga

fundamental principles ng Islamic politics pan n^tinmakita. Under Islamic politici, there aie only 3 governing fundamental principles 1) sovereignty of God not sovereignty of man;2) I/ice-gerengl @ of man 3) par'anic injunctions that Muslims shall conduc their affairs to mutual consultations. !7hen we talk about the sovereignry of God, we go back to rhe

17

Koran. It says that all laws, man can legislate should be in conformity with the Koran. Yun lang naman ang requirement. On the concept of vice-gerency of man, iba- iba ang interpretation. Generally, majority opinion that when you say uice- gerenry. It means to say that when man is vice-gerent or the cause of God. It is not limited to one person, one ^ group or one famlly but it is the whole Muslim communiry. That's why, many Muslims ate against monarchy, kingship. lWe are also against the rule of only one group or dictatorship because the idea of vice- regency is it takes what you call as popular uice- gerenqt. In the case of Iran is different. It is part of the fundamental belief of Siam Mwrlin(?)that in the absence of the 3'd Imam who is an occultation then there would be the rule of the Haqi, rule of the I(oran, the Imam concept of government. Under the Islamic government, it will be the Ollahorah who rule because they are in the better position to interpret Islam. That is what the rnajonty Shimus believes in. Because there are two main groups of Musl-im. The Shi-a Mus/irus are fromlran and the Southern Iraq and so on. But in mainstream Sunji Maslims, the popular belief is more on the popular vice- regency. The trusteeship or stewardship is not granted to one person, not even the Ollanah but the general population. The final arbiter is more on the masse s. The third principle ts a quarral(?) in Islam that affaxs should be done in consultations. But how does the consultations be made? The consultation will depend from one situation to anothef. \il4ren you are in a community where there are only 500 of you, you can have direct consultation. But if there are 100,000 populations, you can go to a representative consultation. There is no agreement with the padiamentary system of this legislative bodies is against Islam or not. Of coufse, there are some debates on how efficient it is. Seeing like how the congress in the Philippines. Works, it seems it's not a good representative way of doing but there is no so much objection that when we adopt padtamentary system, then that's against Islam. No. Because that can be also intelpreted as a way of conducting consultations. IF there are laws to be furnished, it should be thru consultations. That word "consultation can be interpreted in many ways depending on the situation. Now, Muslims are free... as far as selection of leaders is concerned, there is no definite wzy." It would depend on the Muslims or bicameralism wherein they can elect the persons. So that in popular elections, it is not totally incompatible with Islam. Probably how you conduct the election may be a question. Popular election for example is not incompatible with Islam. As far as the structure of the government is concerned, the Koran does not say that it is presidential, federal or like this. No. It is open. You can have your structure of Govt. that can cater the needs of the people. Muslims can put up institutional and procedural mechanisms to erisure public participation, accountability of rulers, protection of human rights and rule of law. In fact when you talk about the rule of law. That's why in Muslim's life, from his private life to his public life is governed by law, by Shari'ah. That's how we have to follow the rule of law. Muslims are also enjoined to ensure the independence of the judiciary. There are instances in Muslim history that even the President or the ruler is being charged with, he has to appear in court. There is no such
thing as Presidential immunity.

CPM: Does that apply to the religious

leaders?

Abhoud: Yes! Nobody is above the law. It does flot mean that when you'te an Ollamah, you cannot be brought to law or brought to the court. Because not all Ollamah can be a judge. A judge needs certain skills on how to administer justice. It's not easy to be a judge because does not commit sin. There are fundamental in Islam. Specific issues raised like status of minorities. Under the Islamic government, if there are non- Muslim minorities then
18

automatically these minorities should not be governed by Shari'ah law. Because Shari'ah law is a religious law. They should be governed by their own respective laws. For example, although Muslims are prohibited to eat pork, you cannot stop a Christian or Non-Muslim to raise pigs or from eating pork. No, their religion does not prohibit them. So, if it's nor prohibited by their religion, why prohibit them. This may be an ideal one. Ollamah even
argue that non-Muslims should have their own legislative counsel that would legislate laws to govern them. There should be a complete freedom of teligion, assurance of the cultural rights, even in education. Non- Muslim should have the right to educate the Non- Muslim. The State for example should not impose their own system of religion to the children of Non- Muslims. They can put up their own school, can live their own life. So all their personal laws shall not be governed. Of course, there are other laws that would governed. Of course, there are other laws that would govern them. There are state laws that should prevail. Now, the objection to right to minority is raised many times is the concept of 'DIJA,"what we call as parang the protection money. Under Islamic laws, Non- Muslim living in an Islamic govt. should p^y a tax. We call tax in Arabic as DIJA. These are contributions of the Non- Muslims in the funding of the govt. because Non- Muslims are exempted from paying jakat because jakat is a religious... So Non- MusLims should pay something to finance the government. But once the govt. cannot protect them, the govt. has to return this d/a, all the taxes. Because the relationship bet. The non- Muslims minoriries and Muslim government is more on a contractual basis. The government has to ensure that the rights are protected; their securities and properries are protected. If the State cannot protect that, then whatever is collected from the Non- Muslims should be returned because there is a fatlute of the government to protect them. But as long as the govt. can protect them, they have to continue paying taxes. In fact, this is more in favor of Non- Muslims because we, Muslims cannot be exempted from taxes but the State can exempt them from Paylng d/a if the finance of the govt. is sobra masyado. \X4rile jakat is fixed, whether you're rich or not, we pay 1akat. \X/e still have no State as of now. Under an ideal Islamic State, they are protected. In fact in the Islamic view, the right of the minorities is not to be given by the State. It is given by God. If the head of State is not giving that he is committing a sin. Regatding the women, it is more on the interpretation of law. The problem here is because the western interpretation is more on women's liberation movement. Sa aming mga Muslim na interpretation, we look at the relation of man and woman as a partner. Marriage in Islam is not sacred. It is contractual. The first who introduced marri age contr^ct are Muslims before. The \7est s ;ll doesn't have an idea of a marriage contract. It's in the marnage contract that man and woman can put into details ano ang agreement nila. In Islam, when you get married, you are not obliged to caffy the family name of your husband, you must have your own identity. \il/hen you get married, you do not change your identity. The worst thing that can happen to a \Moman is to adopt her husband's family name, where is her identity? But problema talaga when you get married, sabi ko ro my wife, do nor use my family Neme. Ang sagot ily^, " Huh, baka 1ba pa ang gagamit." Hehe! It's the right of the woman. Because in Islam, your identity is more on youf lineage not youf contractual relationship. Dahil mzrriage is a contractual relationship, my wife doesn'r automatically becomes Mrs. Linga. No, she should retain her own identity and that is the worst thing that can happento a man who lost her identiry. Nasaan ang original identity mo, nawala! Even leadership of women is not in the Koran. It's more on the interpretation of the Ohlma or Ollamah O. The leadership of women is an open discussion. Malaking debate pa y^n s^ Muslim community.

1,9

ASM: Pero dito

sa

Philippines, what's the Muslim stand regarding women leaders? dapat maliber^te

Abhoud: Dito

ang mga lalaki. Hehel I'm not joking. baka akala mo macho-macho pero sa E,specially bahay... hehe! When we talk about power, our women are so powerful. Although they do nor show it in public kasi pinoprotektahan din ang pagkamacho ng husband nila, di ba. Hehel It's not an issue here. Baka magkagulo if women. '.

^y ^trl, ^ng and Tausug communities, in the Maranao

sa

CPM: Di

ba, nasa Shari'ah that women cannot lead over men?

Abhoud: No, it's not in the Shari'ah. It's

actually an open debate. It's not that they can't. leader or president or commander-in-chief. \X/hen Example of debate, a woman carinot be a a woman becomes a commander-in-chief, in defense of the country, she'll become very busy in attending the affairs of the State. \X/hat happens to her family? What I mean is not the Shari'ah law but the arguments of some people, mapapabayaan mo ang mga anak mo. If pagmapapabayz n mo lang naman ang anak mo... Because in Isla.m, malaking bagay ^ng mother but the the of is not only work the child aalaga sa bata and that obligation of rearing is a common job. But naturally mas malapit kasi ang bata sa mother. Sa Islam kasi they encourage breast feeding. We discourage ),-ung bottle-feeding. i{apag bata nagbibreastfed ng bata, nasa prohibited degree of marnage. It is a question of balancing the moral values and

social coniugation of both men and women and the Sate. Diyan lang hindi nagkakaintindihan. \Wherein some group will give emphasis on that, others will give emphasis on rhat. Not very clear. My wife is working. I don't stop her from working. She's teaching. The only problem is I don't even know if how much she is receiving but I'm always audited all the time but I do not audit her. The issue of women's rights should be viewed based on the... wag muna basta rpapasok sa ano ba... Alamin annn if ano ang practice nila. Whether it is working or not rather than... If there's a funding from the USAID and you go to rhe community and implement mo ito... I think it will not work in that way. You'll be creating more problems than solving problems.

palagl kong nababasa, mukhang hindi nag-aadiust 1'ung Islamic especially with regatd to criticize the teachings practice of women stoning. . . if yan 1'ung practice niyo na di pwede baguhin, you'te violating the teachings of Islam.

Sonny: One issue na

according to time. Most Islamic ptactices

Abhoud: No! In the days of stoning, it is already there. That's the prescription of I(oran but the interpretation would be really for women or both women and men. It is for both men and women. No exception. Diperensiya lang if the person is married or not. If
married person and then if unmarried both men and women yata. Basta may diperensiya. \X/ill iust check on thar. But this applies to both men and women equally! The question is how would you prove that they committed adultery. It's very difficult to prove adultery. Under the Islamic law legal procedures, women witnesses who have seen with their naked eyes ang kasukat nun is one witness na lalaki dapat dalawang babae ang equivalent niya. Bakit? The Ollanah discourases to bring any woman to court and then magwitness and magwitness diyan. That's one way of discouraging. It's not because women women are inferior.

ASM: Pero wala ba sa pur'an

oung one-half lang ).ung credibility ng babae?

20

Abhoud: It's not half. They have the

same credibility. But one way of discouraging bringing women to litigation. Mahirap 1.un. You bring your wife every time may hearing. Ilahirap y'un. You must see it with your naked eyes and you must have seen the act. Mabuti kung ginagawa nila sa plaza... Atg morality kasi na somebody commit adultery and you cannot prove, you'll be punished.

CPM: Disincentive

yan.

Abhoud: Disincentive to humor mongering. I{asi kung galit ako to somebody, eh sasabihin ko na nakikita ko yan. I have to be very careful. Sa Islam kasi malaki ang value ng moraliry. Morality between man and woman. In fact, protection of chastity is so high- valued that both men and women have to protect their chastiry. I{ailangan narin sa pag-iimplemenr ng Shari'ah law ay ang training of judges. Appreciation of evidence, mga ganyan. There's nothing wrong on the law but it is on the appreciation of evidence, the courr administration,
and judicial administration. I{ailangan ang experrise.

ASM: Meron din bang branches, trial courts ang Shari'ah

Philippines?

courrs in decidrng cases like in the

Abhoud: There's no Shari'ah courts here. We only talk of a court that hears Muslim
personal laws is inP.D. /087. There's on-ly one rule, one law. One rules of court approved by the SC. It has been called Shari'ah court but it's not a Shari'ah courr in the real sense. It's a misnomer.

ASM: Bow many do we have?

Edil: One District La par^ng RTC

kasalan. Parang civil registry.

and four municipal.

Pag may

Abhoud: Hindi yata nagfufunction yrrn. Wala naman masyado pumupunra dun e.

The most obvious in the status of woman is thar they are not allowed to lead men. If vou iook at Muslim Mindanao, there's no movement on Muslim \(/omen Liberatron like the Feminist Movement of the West so they do not see any discrimination against them or downgrade in their status but perhaps di pa mature but now u,e have the BangsaMoru women. They have the advocacy but their advocacy is not being discriminated, their advocacy is same as the men like the economic development, advocacy of the Moro People and among Jluslims themselves, they are assured of their rights. It's only from the $7e sr na pinapalabas ang making of Taliban picture of Islam. Pag Taliban, gany^n kasi Muslim yan. That's u:rong. To Non- Muslims, if you read the history of Muslim civilization, Muslim empires treated their non- Muslim subiects well. Far better than Christian Europe. The Jews were treated well in Islamic areas than in Spain, France, and UI( in 1800s. It is clear in the I{oran or among Muslim scholars, there is no dury but there is respect and grant of rights to non\Iuslims. As to Iran, somehow we are focused to Iran. Sinasabing undemocratic ganyanganvan... But what... replaced, the SIAH is far more undemocratic than the present sovernmeflt. It's just funny how the USA supported and backed up the dictatorship of the -iliH. \X'hen the Islamic revolution, 1.979 came, it was very popular and with the concept

Edil:

21

American would denounce it as undemocratic. Obviously, it is not undemocratic. As to the rule of the Oliamah, countties and civtltzations have their own way of evolving and from the SIAH dictatorship to the present govt. in Iran. I think it will evolve soon and maybe the rule of the Ollamah would start going to the background especially underneath the govt. is granting rights to the people. Islamic policy, these State principles are cleaily stated in the l(oran. Going down to the Phil. National govt. level, if you examine and compare these principles stated in the Phil. Consti. The more objectionable... The Philippine Constitution recognizes the sovereignty of the Filipino people but the Muslims recognize the sovereignry of God. But in application, I don't see any fundamental difference. The sovereignty of the Filipino people can be related to the concepr of the vice- gerency. The concept of the KII,APA in Islam. Most scholars would say the concept of SHURA that that is the Islamic concept which fastens democratic principles wherein you consult with the people. The chosen leader consults with the people. In going back to the history of Prophet Mohammad, He led the way. He showed the Muslim how and what the Muslim should really be. Even in the succession of Abhoud, it was tfue election. The people chancing A to be the next Islamic leader then.

of the people.

CPM: Who

are the people?

Edil:

The Islamic community

^tth^t

time in Manila.

Abhoud: But it's not thru ballot. It's more on the populariry.
There are no c\ear... wherein jurisprudence would tell that this is the form of government should take. The par'an provides the principle. It's up to the community how they'll structure thru the principles. If you look at the present government system, the local government, they clearly can embody Islamic principles in their govt. There's no irreconcilable differences. Putting Islamic principle into practice and make part of the governance because it has always been that way. I described the governance in ARMM as one that is dysfunctional, it is one of my advocacy that Islamic values, principles and practices should be recognized and made part of the governance in ARMM. That is the only way that you make the leaders mofe fesponsive and solely accountable to the people but also accountable to God. Second, you make the people participate in the governance. You choose leaders thru consensus. It's not proper for Islam to have one govefning family. It's actually un- Islamic. You have to choose. These concepts are interrelated from sovereign[',

Edil:

vice- gerency and consensus.

Abhoud: The consensus can be election or what...

Diyos.

Mas matindi ang accountability nila

sa

consultation niya does not follow na susndin niya ang tao. If iba ang interpretation na sinasabi ng Kant (?),hindt niya kailangang sundin ang sinasabi ng tao.

CPM: Yun

Abhoud: Yes!

Basically these principles in Shari'ah are guidance. That's why the par'an is the book of guidance. If there's a conflict between the rule of man and the rule of God, it is only a subject of discussion. This will go the Pad-iament.

CPM:

Can you say that the padiament can be overruled by...?

Abhoud: We have the mainstream Muslim and we have the Sh/ah. Under shtlah, ther har-e the committee of five (5) and then it's not just saying tta "O, we caflnot do that." There has tobebasis. Youractionisillegalbecause ofthisbasis. It'sliketheSC. Alawcanbe declared unconstitutional by the SC. Sa kanila, that law can be declared as un- Islamic br the committee of five. It goes to a certain process. Ano ang diperensiya? The dictatorship of the SC or the dictatorship of the Committee offue??? Because there should be an arbiter to make that decision. Sa atin, it is the SC who decides the constitutionality of the law.

CPM: Pero ano ang pinagkaiba nivan na

basis ng SC decision is the Constitution, it's ^ng ran the people. Yun basis naman ng religious leaders?

Abhoud: It's the par'anl \X/ho interprets the par'ant., it is these group of people who
interprets the pur'an!.

CPM:

So walang participation ngayon ang mga tao

to the promulgation.

Abhoud: They are basic document ng Constitution. In fact, there's a move for
constitution. You can't have a govefnment without a constitution. The pur'an! Can't be a constitutional because the pur'anl. does not define the structure of the government, relation of judiciary, executive and legislative. You need a coristitution. Iran has a constitution. Saudi has none. Personally, a majority view. Even if under the Islamic govt., we still need a constitution and should be. . . does it violate the Islamic law? If it doesn't, go on.

CPM: I'm
padiament?

trying

to

reconcile the concept... supersedes )'ung law na pinapasa ng

Abhoud: Meron. Yung trial dito, they can appeal. You

are talking about the experience in among Sunji Muslims does not believe that rvay. These are the maiority of Muslims all over the world, the Sunji. Yun sa Iran, that's part of the Shia belief. Among the Sunji, Malalsia, Arabia, Philippines and so on. It's not our creed. Our belief in the interpretation of the pur'anl. can be done by the padiament. But of course, it can be done by a debt. Ang problema naman talaga dito nasa boundary whether it is prohibited or allowed. I{ung nasa boundary, yun ang problema. \When it is clear na prohibited o allowed, wala namang problema yan. But ang issue lang talaga is y'ung nasa boundary. Sa Sunii Muslim, inaallow 1'rrn padiament as long as that law does not contradict to par'anl. You can go to the CJ of the Shari'ab Courts if ;r6u'ys problems. You have to put distinction berween the Siah belief and Sunji belief. Yun sa Iran, more on the Siah.

han. This another view

CPM: Totoo ba ang or

accurate when you say Shiah is in the sense less democratic?

Abhoud: No! Do not put labelling. Yan ang worst thing to happen is to put labels. \{'e should not put labels because even in interpretation it can be done in many. Er.en in communist countries, they claim themselves to be democratic. I think we would fall into the
trap if we put labels immediately.

23

ASM: Tama ba na sa PhiJippines context when you

say

in the local government unit the

problem is the construction in applying the principles, wala bang conflict?

there is a dilemma;I cail, it as duality of the system. There is dilemma among and dilemma among the Muslim minorities as to how they view Islam. minority Christian the They are Muslim Filipinos. They're asking themselves, are they part of the Philippines, are they not? Are they Filipinos or are they not? The same is true with the Muslims. Are they part of the PhiJippines or are they not? This has come out in legislation, in the constitution, in the sovereignty of the Filipino people. It's not Islamic principles, it's the western principles that go against Islamic principles but you also have a provision on autonomous Muslim in Mindanao. In fact that there is a Muslim in the name itself, it suggests that it considers religion as an important part of the constitution itself. Under P.D. 1083 which is the recognition of the Mushm Personal Law... organic ^ct 6734, 1.954. If you read the organic act, puts emphasis on Islamic practices and principles. Recently, Malacafrang passed a proclamatjon of Hahla/authorizing OMA and then the SC struck it down declaring as unconstitutional validating the establishment clause which is the separation of church and state? Ano ba talaga? Do we v/ant to integrate the Muslim and Islamic practices and principles as p^rt of the Phil. Legal system or not. These give iustification for the Muslims to go underground. That is also one of the reasons why Muslims themselves allow their leaders to be corrupt. Sabi nila pera naman ).un ng Philippine Government, di naman namin per^ y^fl e. When it comes to conflict resolution, the Tausugs would result to theit iraditional in settling their conflicts. They will not go to the courts. Let's say my brother was hit by X, I would not go to the court and file case against X. There is that dilemma. They have to decide one way or another for final setdement of the issues. Maybe one of the ways is to have the referendum. If a referendum is done among Muslims in the Nfuslim area in Mindanao, rhey actually don't want their independence or the MII'F. The MII'F wr1l loose legitimacy. Everything will be setded. If they want independence. Dapat pag-usaPan yan how to go about it. But if the people choose to be part of the Republic of the Philippines, then there would be integration. Not y-ung half- half. May ARMM, taPos ),'ung sovereignty of the Filipino people. You recognize the sovereignty of the Christian people in terms of the Christian majority but also recognize that the Muslim's one of their basic principle is the sovereignty of the OMA, sovereignty of God. Tn the matter of the separation tf chrrrch and state, it does not work in the Muslim community. That's also one of the reasons why the Muslim people allow corruption of their leaders. May separation n m fl a. They believe ir's not part of their governance. Di naman kasi kami mapupunish ng Diyos kasi iba L m n ang governance nlla sa paniniwala namin. Except on the latest SC decision on rhe Hahlal, the way it is now, the Muslim principles and practices can be adopted to the Philippine legal system. The Philippine Government must have a clear policy on the matter. it tool how many years to consider EDILFIDRas a holiday. Mali-mali pa yrng date.

Edil: I think

Abhoud: That

is ignorance kasi

it is based on lunar calendar.

and practices. It's just a matter of

Edil: I don't see any conflict with Islamic principles

decision, a policy among the national leaders.

Abhoud: There is no permanent agency as far as Muslim affafts is concetned. Pati nga )'un office. Di ba noon, Commission on Islamic Afairs. Pinalitan ng OMACC. Then now OMA. Pati opisina palipat- lipat. \When you go sa planning for example, there is unpredictability on
24

the policy. Ano na lang ang mangs,ayari kapag ganun. Saan ba talaga nakatindig ancl gobyerno vis a vis on Muslims? Di malal^m^n. I{asi plaipat-lipat yung policy. Create this office, and then abolish it. Create another office. They don't know their policy... vrhere to stand. Bankcrupt in terms of policy. Di mo alam kung saan sila nakatindig e. I{ahit Jung
peace pfocess...

CPM:
pohcy...

Maybe

it can be attributed to the lack of N{uslim participation in governance, sa

the

Abhoud: That' total ignorance about Islam, about the Historv of N{usiim. Even how people in Nfanila see it as a problem. Di ba Edil, no?

Edil: That's insult to say that it is abclut poverty. It is not about

Abhoud: Tignan mo, who

poverty.

are advocating this Secerain(?) mouentenl? They 21s not the poor farmers; they are the educated grass in the community. Bakit si llur Mivari, saan graduate yan? UP!!! Si Salamat, sa Islaruic Uniuersifi (?),:-ng ibang leaders? Eh di sa Universities in Manilal Yun producer ng terrorist a)' not the masses, it is tl-re unir-ersities. Si Osama Bin Laden, engineer yan. Mia, medical doctor. Is rhat a problen-r of por ern ? This is a political issue. Dapat bigyan din ng poliucal solution. \\'e admit \\-e are poor. Thar' u-hr- sa negotiation, the US is dangling $30N.'I, kung mar- agreement, ther-'ll rcleasc S30II. Bakrt hindi pinapansin yan sa Mindanao? I{a- cheap namanl For our treedom, S30II lang? Usuallr r-un mga jokes na naririnig mo. I{a-cheap naman r-un! Because it's not a question of the S and the Peso, it is a question of a... You are here in the College of Lau.. You knou' the sentiment of people for freedom. \\'alang kapalit na pera. Ii vou \\-ant to understand the problem in Mindanao, you should understand the independent mor-ement of the r\mericans form the British. The independence movemenr of the Atricans tiom other Asran countrics. I am just very frank with you. Iiahit sa NIILF, lahat sila mag- surrender, there are other groups in the waitingand they might be more radical.

CPM:

Sabi niyo, it's not an economic problem, it's not even in the difference of values, very

few incompatibilities but it is a political will.

Abhoud: Yes! Political issue whether the Muslim wants independence or not. That is the bottom line. Put an end to that and the problem will be solved. I{asi ang problema sa atin raikot- ikot. Niloloko lang natin ang mga sarili natin. Address that problem and all other :roblems will lfo. But people in govt. don't want to talk about that. Yun ang problema. ?-. .rot- ikot lang because of that artifrcial concept of territorial integrity and sovereigntl'. .::cse are arttfrc:tal concepts which are being made by political scientists. \ilhat countries dcr -.:-.'- permanent boundaries? \Wleere was the Roman Empire? \X/here was the Greek :-:::tre? Persian Empire? Bagbabago ang mga boundaries because you're dealing with . : :le . irong self- determination is very important yan sa buong mundo. It's not only dito - :--a. \\'e har-e this Seccessionist movement in Europe. In fact, this started in Europe and -:,-:-. tl::rec \\'rnts to separate. But it has to be democratic mechanism of addressing

': -: - :::-. l-;i's s-r'.' the case of Czechoslovakia. They use democratic mechanism to : .: : -;'.i:rs gulo. \fi,'e have the Czech Republic and the Slovak Republic. But u-e - i' : -- -:rrries na matitrgas ang ulo like Yugoslavia. Ano ang nangyayari? Gi,veral \\'e har-e
cae

:rc

of rValaysia. Singapore separated. But dito

25

sa Mindanao, ayaw r:.z;m n nilang paq-

usapan ),-ung territorial iintegrity and sovereignty. These are pwede baguhin.

not Biblical verse na hindi

ASM: Let's go to the concept of Human Rights, Social and Cultural Relativism and then necessarily dumating tayo dun sa democracy and I think we touched a litde about the peace.
think kanina bago tayo nagwakas, meron tayorig sinasabi na walang clear policy ang govefnment. Any govefnment for that mattef... on Mindanao and even the Peace pfocess ay ambivalent. This afternoon we will talk about Islam and Peace. Basically, I think y-ung unang pananaw there is the conflict in Mindanao is something political. And then nagkaroon din afterwards ng belief that it is not really and solely political but mainly economic because of land question. Pero sa ngayon s discussion pffiattg bumabalik na namafi tayo sa what is the root cause? Ano y'ung historical, pinagmulan ng conflict sa Mindanao? Proceeding to that, we will also discuss what can be the clear focus as far as the peace process is concerned? That is something that we should have in the peace process. Siguro pwede nating simulan on your thoughts on what are actually the root cause? Or is it a conglomerating economic, political. Halo- halo or is it just mainly poltical na mabigat or economic. I don't know if it varies from where you are situated. IQsi hindi naman siguro homogeneous yung pinag- uugatan nito. So siguro Tom can start.

Tom: As Moro, galing

sa

ako sa Davao pero mas nakalubog ako ng m^t^gal sa Basilan. Siguro community perspective kasi gumagalatv ako sa community. I{ung tanungin mo }'ung mga tao sa communiry talaga, mas economic na usapin sa tingin nila. Dahii sa una, ),'ung opportunities hindi binibigay sa kanila ng present system. I{aya mas kunti support rather dun sa trnataw^g natin na struggle for self- determination. Mas nakikita njfa na may basis. Siguro to some extent usaping politika. Ako for one ang tingin ko usaping identity. So bago lang siguro nagbago ang isip ko. Mas gusto pa namin na tawaging Moro kaysa Pilipino. Mas okay tawaging Moro and llagay sa bio-data pero minsan mabigat tJagay na Pilipino. I{asi minsan wala na tayo magawa kasi nasa system na t^go na gumagalaw. Yun by lang siguro muna. Mag- butt in na lang ako later sa discussion. Sana nadala ko ang naisulat ko para di na masyado... I-email ko na lang. (laughter) I(ung titignan this needs some analysis. Let's start from the historical

Abhoud:

background. Historically, the Muslims in the South, wala pa itong Philippine territory. Wala pa sa isipan ng sinuman dito 1,.ung to install Philippine nationhood. The Muslims although different states like Sulu for example have the trading with China, they have abeady been recognized by the International community including China. This has been already the fact and rcaltty is that the Muslims were independent before was a g1ven. Nobody can ^rgu.e against that. Nung pumasok ay Amerikano dahil sa Treaty of Paris. There was a controversy dahil kasama ay Mindanao sa naibenta sa Spain to the Americans. Imean we also have to look into some documents that show Mindanao was not even included in the description of, kung ano )'ung spanish colonies that were beiing secede. The fact is that Americans occupy Mindanao. Nung pag-usapan na ng Philippine Independence, the Moro leaders protested. There are historical documents to show tht as early as 1922-24 the people of Sulu prohibited the US government that if independence be granted to the Pbilippines. Ayaw nilang maisabi. And then in 1926, meron dinZamboanga declaration which says ayav/ nila maisali. Mindanao will becomepart of the PhiJippines. They asking that 50 years after that independence referendum be conducted. 50 years elapsed in 1996. and then the leader in Marawi, Lanao in their Famous Tansalan Declaration ayaw din. So meron na protest. But
26

Pilipinas. So tingnan mo, )'-un cry for independence di namam^tay kahit na y'ung Mindanao became part of the Philippines and Banfsa, I think makikita pa rin )'un ng Archives sa under the present system, Congreeman Congress filed a bill for the independence of Sulu. Ganyan katindi ang ano. And then later - napag-usapan. Sira tugtog if you've heard of on, na-archive )'ung bill kasi nga hindi Republic. The the Philippine to under movement. it means say independence So Mindanao -, clamor for independence started the peaceful way, di ba? But nung p^rang nawala na, parang wala ng pzg-^s^ then dumating )'ung ilaga, wherein Muslim were forced to organize themselves into armed groups and that was the birth of the MNLF. So when the MNLF was forced by the okay to accept autonomy nagseparate ay MILF to continue independence is a continuing one. So unless na itong problema for independence is being addressed I don't think na itong problema will be addressed. So it wiil s ill continue. There are economic problem no doubt so but nakikita ko na itong economic problemis jutmainly a product of the war. So how do you stop the war? Adress the claim of the Moro people for independence. Unless you address that the war will continue and then ma-undermine lung
yet naisali din 1'ung Mindanao, )'ung mga

Moro

area sa

economic development.

na sabi mo sa masa )'ung Si Tom gusto kong tanungin. Ah y-ung sinasabi ni the Moros rather than more mo identify with kasi they ba y-ung... sabi perspective ganun with Filipinos. And then mainly economic y'r,rng nakikita mo actually.

ASM:

Tom:

Parang dalawang (2) aspekto 1'ung identification as Moros rather than Filipinos mas lumabas y^t^ Wn sa bayan namin ni E dil na mga kabataan na p^r^ng.. . di ba dati ang history ng y^n pag tinawag kang Moro ayaw mo talagang ma- identify kasi napakasama ng connotation pag tinawag kang Moro, kung tinawag kang pirata. Sa karanasan yata dito sa Manila s^ pag-^aral, pug tinawag mong Moro hahanapan ka ng buntot. So ganun no? Pero nung pumutok nga yung usaping movement, na pinalakas ng MNLF, at naappreciate ng mga Moros ang terminong Moro ay dapzt na mas ipagbunyi rather than ikahiya dahil pag tinawag mong Moro ay hindi yan resubjugate. Pag tinawag mong Moro ay nakikipaglaban yan pan sa kanyang independence. So mas frn sa society ng youth y'-ung sinasabi ko. Sabi ko kanina

yung sinasabi kong economic pag sa communities kasi ay unang hinaharap mas )'ung
opportunities, )'ung basic services. Mas )-un ang hinahanap nila kaysa mas ano pang mukha ng struktura na puwedeng sumama t^yo. Ano bang mukha ng pamumulitika y'ung puwedeng sumama )'ung mga tao. Yun nga ang tingn ko.

Edil:

Si Abhoud kanina 1,rrng historical perspective to the issue. Dati I used to accept that poverty is the problem but upon reflection and upon looking at the historical perspective, poverty is the result of the problem. Kasi if you look again sa history niya before the Spaniards came walang problema sa ate^ n yafl. Nagkaroon lang ng problema when you have the invader wanting to change your faith, to rule you. Of course, the natural tendency was for you to resist since not one of the parties was strong enough to vanquish the other. They persisted for hundreds of years. So when you're engaged in armed conflict for such a long time in such a large scale definitely you will suffer economically. And even with the coming of the Americans and some stability to the situation. The people sdid not forget their history. The people did not forget tht they were once an independent nation. And ng pag-usapan with their yearning for independence ws always there and again since ^yaw the Marcos dicttorship it opened up. Narejuvenate )'ung cause. It transformed into armed conflict because the Matcos then felt that the Marcos govt. was out to kill them. Especially

2l

with the Sabidah Massacre. The impression of the Musiims were tht his govt. is out to kill us, is out to explout the Christian prejudices against the Morosin order to stay in power. In the same wav that Erap used that age- old prefudice to be popular with christian majority. With that na-open y-ung armed conflict, again when a peole is engaged in armed conflic, you cannot sustain economic development. The tendency is you become poor and so poverty is not the main problem. Poverty is the result of the main problem. It is an insult to say na ang ptoblema sa Muslim Mindanao is poverty. Coz it's like saying kayang bilhin 1.uhng mga yan. Pag binudburan mo ng pera, wala na ring iisipin. Mabuung tao na )'ung mga yan. It's actually an insult and it's unfortunate that even among Muslims some say that it's not putting that in a proper perspective. Not rcalizing na binababa nila ang mga sarili ni1a. And yes, poverty should be addressed. But more than poverty the issue on that dilemma that question are the Muslim part of the PhiJippines as a people or not? Does the Philippine government want their resources but they they don't want them? For example, the Philippine government did u'as to use the usual American method. The setding, putung people there. If dati 90% Muslims vung N{indanao, ngayon 1,5- 20 o/o na lang. Such that when you conduct a vote hindi ka na mananalo. You use the democratic method, hindi na mananalo. Those are issues that have to be addressed in order to settle it once and for a17. And perhaps to tackle the social problems that have cropped up because of the problem. $/hen you go to the Theological level, Islam is a religion of peace. Even among Muslim when they get themselves Salam(?), I come to )'ou in peace in the name of Allah. And yeady in the front itself there are manv iniunctions on peace. The reason why now we misviewed as a war as a religion of war because of the grievances that have not been resolved peacefully and the people don't find any peaceful resolution to the matter. To get the attention of the people. But this is justified also under Jihad when you are under attack, you can defend yourself. That principle is self- defense.

ASM: \ilhen you say under

why do you construe under attack kasi under attackna ^t^ck, armed talaga that means literally under attack or )'ung par^ng economic struggle din na discriminated ka, wala ka, does then justify.

Edil: It does not. The injunction of pur'an is clear on the matter. It must be in defense of
the life and properry. Only as to other inequities, thepur'an would aski you to resort... the matter of armed struggle is a matter of last resort.

ASM: I think in a sociery merong part na which doesn't feel a strong, the struggle as strong as before. Yung generation. I sense na mas bataka you lose some sort of historical origin of
the struggle and therefore makikita mo na lang 1,'ung basic. Ano y-ung wala ka ngayon, not necessarilyna pinag-iisipan mo pa:iln ).Llngugat nun. I'm sure even among the Muslims or Moros merong variance as to sa inyong level malakas )'ung sense na iassert yr-rng identity whereas the others fiaman who are really sttuggling for the basic, ang needs nila ay more on economic, ito bang mga part na to na segment makikita nila 1.ung pan^y ganung need. Makaabot kaya sa isang struggle for an identity or independence or what I'm saying is not malinaw ba sa face ng government na isa lang. There's also unity among the Muslims. This is what we want. This cannot be resolved unless you resolve the political one. Kasi I think meron sa inyo ng part do not necessarily see, dahil wala ding )'ung awareness masyado, lalo fia sa genefation ngayon.

28

Tom:

Yung sinasabing awareness kahit na dun sa... )'ung declaration for rights and determination, even among the Moro kasi kahit ).ung term ng Moro ay hindi pa nagleleveloff. Parang hindi pa, mas marami pa rin Frng mas stigma din sa ganun na ano. Maliban na lang dun sa mga 70s na nakita nga nila. Bakit nga ba Moro? Pero mas marami pa dng sigutong hindi nga kami Moro.

Edil: What give impetus for the identity

and the movemtn for self- determination even among the grassroots level sa masa is the military abuses. Once a soldier of the Republic commits of the Republic commits an against an unarmed civilian, it really draws the Line. Na ikaw tna ka, ako iba ako. ^trocity The constitution, I am the protector of the Filipino people so kung hinaharm kita ibig sabihin hindi ka part ng Filipino people. They feel it and that's why they want it they feel that they are not being made part because kahit sinong kausapin mo. Punta ka ng Basilan, Sulu, Maguindanao around 80 to 90% would have felt that abuse. Or maybe a lot hav been abused by the military pinatay ang pamilya. So because of that, it puts the line na iba kayo, iba ako. I(alaban kayo namin. When the people feels that they would gain force for something na kami- kami. I{asi 1ba pala kami pinaparay niyo kami. Therefore, we would want ouf own country, our own state and whenever they get to learn about our history, aba oo nga independent naman kami ah. I{aaway naman pala namin dati sila. So that is where na ever hindi lang sa level ng intellectual part is where )-ung masa would feel that. And that is the reason wh1, Sat aff survived for so long. Because they had the support of the community. \We viewed that the Armed Forces of the Philippines is the enemy. Because in Sulu right now mas takot ang tao, ay common man sa military kesa sa abu Sayaff. I(asi alam fiya na Abu Savaff hindi siya i-haharm. Pag sundalo na )'un, wala ng
assufance.

ASM: Polarizing factor, military abuses, violation of the Human Rights... so for you that would be the points of agenda for... siguro input... In for the failure of the government na
not iust one grouP or probabaly conglomeration representing really the voice of the majority.

Abhoud: You cannot expect that. There is one group of human beings in this wodd
ang...

na iisa

ASM: Not iisa but representing you. But that will be a reahry na yun govt. will not concede to anything, na hindi sila sigurado. I(asr this group is really representative of the Muslim people and the Moro. I mean yung...

Abhoud: Mahirap kasi yan eh. Pag hindi mo makuha yrng isa. Ifthit ako pa ang magrepresenta pag hindi sentimento na mas^ ang dinadala mo. Yes I can have the
agreement but decision.

on the ground... Ay sa amin nga vie go to the people to make the final

ASM:

So how would that process be?

Abhoud: We would conduct referendum. ASM: Any points on referendum? Just independent...

29

Abhoud: Independent as one, autonomy is another or whatever choices we can come out, di ba? So failed kung hindi suportado ng masa ang MILF for example, wala na silang
nila the people have spoken? Tapos. Eh kung prolegitimacy no? Ano p^ ^ngipaglalaban military ka, e mangampanya ka. The government has all the resources to campaign. That is the best way rather than military means. Ang sa amin naman ay concern ang matapos na itong giyera. We put an end. Na may makikita tayong peaceful solution... dahil lang sa national pride? \,X4eat is national pride?

Atpee: Nabanggit ni Edil kanina na diluted

n Muslim sa Mindanao na minority pa. So ^ng p^r^nginiisip ko given ),-ung suggestion niyo, paano natin, sino angmatatalflungan natin doon sa... I think 1'un ang isa sa mga problema witth the ARMM. Hindi tayo makabuo talzga ng autonomous region doon na buo kasi since diluted na png mga Muslim sa Mindanao mismo. Maraming mga places na ay^w nila ng autonomous region ang Mindanao. So kunyari sa referendum, sino ho ang magiging parucipants? Mga solely Muslim ba? Icoconsider ba natin y-ung lahat na nandun sa territory na y'un?
see where

Abhoud: Eh klaro naman yan eh. You go to sta[istics and you'll

areas

the Muslim

^re.

You conduct the referendum where they are residing.

are the prevailing areas?

ASM: What

Abhoud: Sulu, Tawi- Tawi, Basilan, Lanao del Sur and some parts of Lanao del Norte. Some parts of South Cotabato. Yun ang dapat pag-usapan. But basically we have at least five provinces. NO doubt di na yan pagtatalunan pa. And then may iba p^ng areas na
subject for discussion. These things are -very cler. \We can start our discussion from there. Sa Lanao del Norte, p^ bang areas ang dapt hindi isali. But we have already at least five ^no provinces na buong- buo. Where they are the majority. So we can start from that. So it's not a problem. \We are not claiming fot whole of Mindanao.

Tom ...salaries para sumagot sa sinasabi nilang peace and development

sa communities. Malamang )'un )rung nas viable na proposal. Iconduct natin referendum pero )'un nga dapat clear na areas, clear na partrcipants )'ung tatanungin kasi nga kung pag pasok natin sa Mindanao as Mindanao ng democratic process minority tzlo talaga.

Abhoud; We will not be resolvinfg the problem.

Edil:

Ung pinag-uusapan natin Frung sa natter ng refeendum-)'ung self-determination we must riot also forget that among muslins themselves, there are conflicts and itnis my view in the province of Sulu, more than the abu sayaff, what's causing the problemin Sulu is the people themselves. Yung mga clan wats, because of the absence of the rule of law. Secondly, y'ung failure in governance, ).ung local governance. I think it's also important to address. And the only way to address it is to make these leaders accountable. Bring them to court. Let's say Gou. Parak Hussein if he's rndeed committed cortuption bring him to court, not because he's your man, tha man of malacanang and we look away if he commits criminal acts. In the same manner, that's why din, many of the masses are suffering because they have to contend with leaders in Philippine System in which they have no control and they cannot check them. i{ung nagsalita ka at wala ka namang armas they will harm you or they will threaten you. The only institution that has the capacity to nake them accountable is the

national government. I think its time that they should make them accountable. Like for instance in the province of Sulu, me isang municipality 3 term n m^yor matatapos na lang walang municipal hall. E di umuuwi sa town nya. Siguro once every three months lang umuuwi. \Xhat kind of a mzyot is that? And the government knows that, and the gov't is not being accounted for . . . kasi tao nila? It is the interest of the national governmen t na for the people in the are to have a mayor like that pan sira ang psyche ng mga tao dun. That has to change. For as long as you have a bad leader, abad mayo4 bad governor, who would tolerate or apouse criminal acts or who would use methods which are far from demo cr^ttc, then you will have a repressed people. And repressed people again would find means. And that's why you know let's say Abu Sayaf you know kalit ganyan yan, me sumasalt pa rin. And any of these groups. So they should also be movement for governance in the ARMM.

Abhoud: Yan

ang problema dito. Ang reality in the ground is, the muslim communities there are three competing authodties working. At least three. We have the constitutional authority, andiyan y'ung government, mayor, Brgy. Captain. Yan ang representative nyan. Then we have the revolutionary authoriry. MNLF', MILF, Abu Sayaf and then also we have the traditional authority the datus, tribes. So ang mangyayari is, a criminal who committed a crime, mamimila nalangako kung saan ako pupunta.

Tom: Kung saan ka me kakayanin

Abhoud: Oo, kung saan ka me kakayanin. Kung medyo tagilid ako sa sundalo punra ako sa abu sayaf, MNLF. I(ung medyo hindi ako vibes dito sa mga revolutionary prr.rt, ako sa sundalo' Ganun. So ito talaga. Mag ikot-ikot lang talaga ang problemu n iynn. So ang mayor for examplepabayaan mo na langyan pagdating n man ng election me pera naman ako no? I can buy votes. I have guns too, to terrorize people. Or I can just pay the COMELEC. So walang...And then ang mga revolutionary authoriry n^man pinzpibayaan nila. That also gives bad image for the governmenr, in favor of the evolutionary authority. So ganyan yan. \il4rere there is no one authority operating in a communtiy mahirap. IGsi ewan ko. This is the reason why may clan war kasi walang nakadisiplina sa t^o. Hindi makadisiplin^ kasi pupunta sa sundalo. Ano mag gawa mo dyan? ^ngMNLF

ASM:

So how do you see the problem fitting into the referendum? Sa ringin nyo ba magkakaroon ng talagang genuine reflection ng Constitution sa referendum pagka mayroon g ny^n.

government? Kasi me bias na )-ung gobyerno. Ipadala mo dun ang sundalo, bias na bias na sila ngayon. Yung pagconduct nga ng COMELEC, marunong ba silang magbilang? Di yata marunong magbilang COMELEC. At saka )'ung perception kailangan mo na Iniernational body who will supervize p^. Sa tingin ng tao may legitimacy. Madali lang yan. I{ung susundin lang natin democratic process, madali. Pero ang kailangan talagadito ii political will
31

Abhoud: Pag-arilan natin ang experience East Timor. I(asi mas grabe sa east Timor. They were able to solve that by bringing in the UN and to supervise. Nung after rcferendum, the military group who wete loyal to the indonesian government did not even respect the result. But we have UN fotces to disarm them. Ang maganda kasi if we can bring in the UN into the referendum. The UN can start the beginning of a democratic sysrem. Before the UN force will get out we'll have the Constitution, meron na first election which we can say freely, because without the UN coming in medyo mahirap din. Bakit UN, not Philippine

on the p^rt of the government and the revolutionary groups, di ba? So ito y'ung challenge sa atin sa civil society is to convince the revolutionary groups to agree, to convince the government to agree...Ah sa Moro? Mas madali Mas madali...mas distrustful pa sa government, kasi nga maraming beses ng... sa ARMM pa lang...sa MNLF peace. Akala dati-di ko makalimutan )'ung testimony" kunin langmuna natin y'ung kalesa atkabayo, pag tayo na ang nakapatong alam na natin kung saan natin dadalhin 1-ung Moro peoples. Yung pag govern natin sa ARMM. Pero nung nandyan nawala ding nangyari. Makakahon ka na e. nasa kahon kana.

Tom:

ASM:

So kung meron dito ngayon taga government at exacdy would be the talking point.

So what is your given on the present efforts toward this process na ang focus nila is siyempre to armed groups di ba?

MNLF thinking. Sa kanila na y-]n. We are talking about the civil society's opinion. ASM: More on the focus of the government...

Tom:

lWe are not prir,ry to the

Abhoud: I{ami sa civil society we are looking for a peaceful way out without

telling rhe MILF, Abu Sayaf to baba nyo baril nyo, baka kami pa barilin nyan. Mahirap na )-un. But okay we can s^y n pwede ba tayo maghinto muna? Ito ay proseso na pwede nyong gamitin na makuha din ninyoang gusto nyo di ba? Madali I explain sa revolutionary groups. I{esa sabihin mo na
mag surrender sila.

necessarily drop their demand. Kasi di ba sabihin mo na dito na kayo,

pino-float na tdea )'ung mga tribes people-consultations. Yung government, revolution ry, tsak^ civil society. Do you subscribe to that? Ok ba I'ung
mgz-

Sarah: Di ba rn y
pfocess na to?

Abhoud:

$7e can consider that idea, but we should give the bangsa moro people the final decision. $7e don't want to hijack the right of the bangsa Moro people. Yung consultations

arc geared to generate ideas.

Tom:

Siguro y-ung dapat ding tingnan sa ating peace settlement kasi kapag sa karanasan narin pag ang armed group lang ang kinakausap sa kinalabasan ng peace agreement ay napakabias. Paiaacconodate ang mga armed groups. Sa case halimbawa sa Sulu, ilang municipality ang idinagd^gpzLt^ makaupo, accomodation lang. Pero yung issue at saka dapat pag-usupan kadalasan naiiwanan sa likod.

Sarah: So paano )-ung suggestion kanina niAbud na mamimili sila ng form...handa naba
silang mamili? Yung grassroots?

Abhoud: That's why kailangan natin ng transition period. Mga ilan, how many years? The case of .\'outhern Sadan, six years, )'ung case ngBougainuille??? 10-15 yrs., di ba? Yung sinabi ko kanina if we do ir romorrow masyadong emotional pa. But kung bigyan ng time for
education campaign.

32

Sarah: Pero I'ung education campaign saan manggagaling? Yung Moro people educating
the Moro people?

Abhoud: Open. I-open mo sa lahat ng interest groups. I-open mo sa gobyerno for uniry. I-open mo sa MILF who is campaigning for independence. I-open mo sa mga lumad. Iexpalin mo sa civil society. I-open mo to everybody. Parabang election. Bawat isa meron siyang sariling plataporma. Sabihin ng pro-independence you vote independence kasi ganito, ito advantage. They won't talk about the disadvantage. Yung pro-unity flam^n sabihin, wag nakayo humiwalay kasi mas magana di hiwalay. I don't know why they didn't care ro do that. Dito mo makita ang rason. Ayaw nilang gawin. Ayaw nilang I solve 1.'ng problema.

Arpee: Siguro y'ung society natin, itong Mindanao

Abhoud: No it's not.

issue sa tagal tagal na eh, kung kunyari hihiwalay ngayon kung sino man ang nakaupo ngayon makikita na weak leader.

Arlree: Di ba kasi nakita ko nung kay Ramos ang ginawa nga ibinenta ny^ ang SEDC at saka y'ung ARMM. Para to make-ease lang with the MNLF at th^t time, di ba? Pero walang
nangyari.

Abhoud: Kung g^nyan

Arpee: That's true.

ang takbo ng isip narin we are not solving the problem.

for a rcferendum for East Timor, that was not the issue sa downfall, na hindi nanalo Habibi. It's more the connection of Habibi with Suharto. I think may fe eling of insecurity lang ang national leaders. So it is now a question of national security or human security. National interest or human interest? Saan ba tayo dun? IGsi if we keep talking about national interest sacrificing human interest, o sige lang giyera. \X/alang problema. That we should look into human interest. People in power should look also inlo the cost of war. Magkano ba ang nagagastos sa giyera? How much is the war in Mindanao costing the
agreed
si

Abhoud: I{asi tingnan mo when Abdal Rakhnan agreed to the separarion of Singapore, his status in the Malaysian society hindin n g-ano. He reamined a statesman. Wren Habibi

national Government?

Tom:

Mas malaki kasi siguro I'ung benefit.

Abhoud: Individual benefits siguro but not national benefit. Example promotion of
generals, factory ng generals, arms. Some people benefitting from intelligence ?unds, foreign aid. Kasi mas madali manghingi ng foreign aid kasi Mindanao problem. But if we look at national inrerest, namumulubi na nga ang Pilipino. I think if you have, if you can look at that \X/otld Bank study, the cost of war in Mindanao, that will give us an idea. The World Bank study on the cost of war. Talagang malaki. Prediction lang ng World Bank the next ten years about mga $20B. So we have to be more pragmatic, realisric. Wag na pairaltn ).ung...

.t.t

Sarah: Pero ano ).u),ng preference ng mga tao? Are thel' for secession or ano or whatever? N{eron na ba silang awarene ss na naiistp na ba nila yun? For the moment Sulu is N{NLF countrv. The thinking of the MNLF leaders is to abide b1, the peace agreement. So when vou talk about the peace agreement you're talkrng about autonom\r. But the consensus among N{NLF leaders is that the autonomy has faiied. And the government has not fully implemented the agreement. And although most of them are aheady occupl'rng positions in the government, elective positions, when you talk to them you can sul1 hear them sav that the government has not implemented the peace agreement. So the1, still talk about rndependence but the talk is all about autonomy and how the government has failed to implement it. And regarding this matter it's still the MNLF in Sulu u,-ho dictates the popular opimon of the people.
Sarah:
Sa Basrlan ano yung concern ng tao?

Edil:

Tom:

Actually p^r^ng, mabalik ko din sa Abu Savaf. I(asi ang para.rrg si1'ang isang ^no movement na siyang sasagot dun sa usapin ng right to self-determination. I{a1-a marami syanl mass base talaga hanggang si1,udad. Ibig sabihin kung mananawagan halimbawa ng referendum siguro hindi pa k1aro, kahit sa mo\-ement namin ngayon hindi pa klaro. Atg question kasi av sige magreferendum tayo pag autonomy yan tayo, mag islamc state tayo anong mukha ng islamic state na van? Ibig sabihin rvala pang preference, mas maganda kanyang... siguro sa self-determination 1.ung Moro mismo ang magdidikta kung ^no ^ng
sa

ASM: Na hindi nakikita

autonomv

Tom: Na hindi

nakikita sa autonomy. I{ava nag{ail talaga kasi nakarenda 1.ung sinasabi nating autonom) na ginagawr.
\.ung konsepto ng autonomy, into something that is more acceptable ibang countries autonom], is almost independence.

ASM: E kung baguhin

kasi
sa

Tom:

Yah, baguhin mo, tapusin mo )rung konsepto ng federalismo, tapusin mo konsepto ng independence but I think its not fair na papiliin mo lang angtao sa isang choice.

Abhoud: Yun... baguhin mo. Tapusin mo )ung konsepto ng federalismo, tapusin mo

konsepto ng independence, but
choice.

think it's not farc na papiliin mo lang ang tao sa isang

ASM:

Secccssion or not?

Abhoud: ()r autonomy or not,

federalism or not. NIas maganda mal'wider choice lahat of options nandun. N{amimili ka lang.

Tom:

Pcro yun nga ang tanong ko kanina kay ,\fl-t,r.rd kasi siva y.ung malapit sa peace process, na nakakalapit sa peacc process na nanlyari. Ano ba kasi ang nangvar.ari. Ano ba kasi, ang nangyal,2rl kasi ba't di lumalabas yung usapang pangkapayapaan rvith llor.ernment. Iiasing parang napi frame tayo ata ngaron sa umpisa pa lang ng Peace process na dapat

34

nakasunod tayo sa territorial integriry

o sovereignty, )'un nga. I{aya siguro hindi napapag.

.

usapan )'ung seccession, di ba? I(asi labag na )'un.

Abhoud:

Sa

ano? Peace process?

Tom:

Sa peace process.

Abhoud: Ang problema kasi sa peace process is both the government and the MILF are keeping to their heat. Para bang nagsusugal na anobatalaga? Di pa nila pinapalabas kung ano talaga ynn. Okay, we have the Tripoli agreemerit, three main agenda na dapat pagisipan. No. 1- security is fine, second is more on rehabilitation and development and third l'un ancestral domain. Tapos na )'ung dalawa, ).ung pangatlo na ang dapat pag-uusapari. Yung ancestral domain. But discussion and agreement on the three does not end the problem kasi may political issue na ire-resolve. So matagal na proseso ito. Now only they
are doing that is because many believe but the peace-building is pang building blocks ba na paunti- unti. Working on the other. I think that what I call the incremental approach to peace-building. Ganyan ang background niyan. So ano ang gusto ng MILF, we do not know. Ano ang gusto ng government. We also do not know. But we want to end what now. Ano ba masasabi diyan eh yrrn better attack this. Mas madali.

ASM: Amenable kaya yung mga armed group

diyan?

Abhoud: I think, mas madali eh. Alam mo ang Moro ay madakng kausapin. Di ba? Basta sincere ka lang, di ba? Basta wag mo lang sabihin sa kanya na ).ung kalilimutan mo 1,rlng
pzgka- independent, wag lang sabihin y.un. May chance p^ t^yo kahit di tayo nagbabarllan, may tsansa tayo. Madali kausapin kahit Abu Sayaff. Kahit sa media, they are called terrorist, madali kausapin. They are reasonable people.

ASM:

So kung non- negotiable 1.ung question of having a referendum.

Abhoud: Di naman non- negotiable

ASM: Ano ibig sabihin dun pag humaharap

ay armed goup. Sa kanila, sa government yung territorial integriry non- negotiabTe agad,I think. But I something which they will not. Pero kung alam na ito ng armed groups why would ther- keep on... Because but is something but I don't know they will arrive at an argument

Abhoud: What armed group being invited to talks na hindi, who will not participate in taiks. Because if vou will not participate in talking, ano ang ipo-project sa media? Mga ano yan?

ASM: I(asi

1'ung question namin ni Tom kanina p^tanghindi sumusurface yung question of independence which means kasi nga pagpunta ng armed group may kno'uv what is something but cannot be discussed.

Abhoud:

MILF kasi after 2000 war, nung si GMA, sumulat kay Mahathir, sumulat kay AbdulRakhan lltahid para humingi ng tulong. Mahathir sent a representative to Astan (?) Salamat. I think twice or thrice... IQsi I'ung intention ni GMA to consolidate her powers is magkatoon ng peace talks to show na medyo ano... The MILF is insisting on independence
Sa 35

and then the government is also insisting on the constitutional process. So I think 1,'un yata ang nagiging ano nila. Yun para makapagsimula lang, the government will not talk about

territorial integrity. The constitution. The MILF also will not talk about independence. Oo y'un, ganyan ang siruadon niyan.

ASM: They will just talk about

ceasefires.

Abhoud: Ang idea nila is if we talk about independence and constitution ay bogged down na in the beginning. Yung incremental nga... Ano ba dapat pag-usapan and then but the
issue be discussed the

last. Ganyan ang nangy^y^rt.

ASM: Where we had a forum here, there was someone, ang sabi niya is kaya daw hindi
natatapos ang giyera
sa

Mindanao is because it is a business.

side din.

Abhoud: May business

ASM:

Masyado n^m^nya:t^rrg^no y^n... It is something which siyempre )'un mapoprofit din diyan ay malalal<t
talaga is the lack

will be a hindrance

kasi

Abhoud: I think the hindrance to break thatbarier.

of political will of the people in Malacafrang

ASM: Pero if the military is invoked,

sila na ang power- broker.

Abhoud:
wala siyang

Because we always have the weak President n gag wa.

who is subservient to the military,

ASM:

So you think this

will lead into greater opportuny doing business in

arms?

Abhoud: I hope not.

that statement, about the business is because of those who actually profiting is from the miJitary side. For as long as the war is maintained, the AFP can justify its budget. There's no more active war going on in the Philippines. Sa NPA medyo subside na. Otly the MILF from time to time. Sa Sulu wala na except for the Abu Sayaff bombing certain So if 1'un, if the war stops. There's no more reason to justify a big budget for the ^reas. AFP. And AFP does not want that. Kahit papa;ano, you have this General benefitting from having thzt war, from having a bigger budget. And secondly, most of these officers once they get asigned to these areas, 100oh they get their promotions from colonel to general. And maintaining their forces thete again justifies the bigger budget. Kaya sinasabi nila its business. Once there is peace, wala na silang reason to be there.

Edil: I think

ASM: On the side, ano prng

(aughter)

sentiment ng presence ng Americans

dito?

Balikatan...

Tom:

).ung ^ng nagdadalawang- isip. Apprehension. Halimbawa nila pag nam^t^yan yan ng isang Amerikano eh tepok tayo lahat. Pangala'wa 1'ung sinasabi nila yung Amerikano papasok daw
36

Actually

sa Basilan, nung papasok p^ lang, siyempre madami

dahil marami ang mga treasures sa Basilan. At marami pang ibang haka- haka. Pero nung pumasok )ung mga amerlczno, sa umpisa talaga may mga Christian areas na sila nagwelcome talaga. Kasi relative na humupa talaga y-ung gulo kasi y,-ung kuwento nga ng ibang armed grouPs na natatakot sila kasi kahit gabi daming eroplanong lumiliapad. Maliliit at malalaking airplanes. Tapos nung pumasok y'ung mga Americano siguro dala-dala yung context kaya medyo nagsubside )'ung opposition sa presence. I(asi 1-un nga l'ung buong Santam sa circumference road niya sa tagal- tagal nung panahon napagawa mula Lamitan hanggang Maluwale. Tzlagangimpassable )-ung mga daanan. Pero nung dumating mga Amerikano nalinis na. Maganda na )-ung mga road conditions at marami pang ^ng infrastructures. I{aya nag-subside }'Lrng opposition sa presence nila. At saka siyempre nakatulong na nam^ngha prng armed groups kaya medyo humupa. I(aya relatively naging peaceful y'ung Basilan. Hanggang ngayon pa naman.

ASM: Meron din kasi nagsabi na nung dumating

ang mga Americano sa dahil nandun sila may media attention nabawasan y-ung Human rights violations ng mga sundalo, tama ba yrrn?

Ikompara natin nung nag-state of rebellion ba o lawlessness talagang nabawasan. I(asi may state of lawlessness kasi tanghalingt^p^tpwede kang kunin sa gitna ng palengke at bugbugin ng military. So kung i-compare natin, talagang medyo hrrmupa. Trp"r may srare of lawlessness nun black-out )'un e. WaIa talagang nakapagsasabi sa media. Unlike sa presence ng Amedkano fl^man talaga bumubuntot- buntot sa kanila. I{aya wala, pero
nabawasan.

Tom:

ASM: Ano ang sentiments ng mga tao

dun?

Tom: Ang mas ano pa nga dun sa- appreciate

tagal-tagal na panahon ng basic infrastrucrures...

pa nila Amerikano kaysa sa gobyerno kasi

sa

ASM:

Contrary siguro sa plano ni GMA na to endear the government ro the people. N^gttg may dichotomy na kahit they were there on behaif of the government pang natiwalaypa. Jolo...

Abhoud: Actually iba 1'ung situation. Yun sa Basilan yrrng pinag-uusapan prng Abu Sayaff. Ang image kasi ng Abu Sayaff iba. If they will go to Sulu ay ibang bagay na nun-. So dun sila takot. Kasi hindi kasi sa Basilan medyo justified pa. May media campaign against the Abu Sayaff. Ba't kung sa Sulu ibang bagay na. So medyo takot sila. Plus y.ung posirion ng Malaysia. Takot na rin ang Malaysia. I(asi malapit na in sa kanila e. S" u"g dynamic!
ganun. Ba't marami pang Amerikano
sa Basilan?

Tom: Ngayon

saZamboanga na lang. $Vala na sa Basilan. Dati ilang barko talaga

1,-un.

Abhoud: Hindi kasi one faction. Alam nila 1.ung Amerikano kasi won't stay long. Eh kung labanan nila ang mga Amerikano, the more the Americans will stay long. Factor din. ASM: Yun mga sundalong nanduon hindi
sila from Mindanao?

Tom: Meron din.

.)/

Edil: Yan din ang good thing about the integralon of the MNLF fighter with the Phiiippine Army whom they were integrated and assigned to the Moro areas. Nag-less talaga yung
as Muslim, its alley, kababayan ko ito, ka-power human rights abuses. The soldiers saw ko ito. So nag-less talaga 1-ung abuses.-So it helped how like the Sulu kung may operation ang military yung una ta\agang tumatawag pag may Tausug ba diyan? I{ung me tav/ag, di na sila matatakot. Usually kasi ranger, walang Tausug diyan kasi they go to special training mga elite, mga matagal na, so usually sila-sila lang. Pag ranger yan, usually matatakot na mga residente. And usually Frng rangefs yung nagcocommit ng abuses ngayon. Like one time Ang palabas ng media and last 1,s21 in a town may mga bata na nabehead, 1,3, 1.7 ^t27. militarl, Abu Sayaff ),runl gumawa nun pero actually mga ranger. And 1'ung ptnatay pa nun )mng tatay ng isang bata isang army soldier. So the father had to leave the service. Ibabawi na lang daw niya sa labas. So yan na )'ung n^ngy^y^rlbut this still significant improvement on human rights being of the integration.

ASM:

kasi mukhang ang concern talaga Papano yung accountability ng mga ^y ^ng accountability. - They don't make accountable out of hrs Edil: Yan talaga ang probiema with the miLitary. acts of their men. I{aya y11* Oakwood incident that was a good development for the about the bombings in Davao wete military creations. Nforos. Especially about their _ E totoo yun. Secondly, the head of Philippine Army (PA) in Sulu at that time covered up for his men rarher than say sial ang nagcommit. Let's court martiai them. Sabi ng Abu Sayaff, wa1a. Di maniniwala ang mga tao dun. And yet ang daming abuses committed. During 70s, if you read Honasan, he was assigned in Sulu at the height of the Moro war and after the Edsa revolution, he was already a star. If you re cord the interwiews may mga jars siya na may mga kuwan pa ng mag ano niya. These are documented, nakadisplay pa sa table ni1,a 6rrt'tt* the inter-view. Pinagyayabang niya. O, sino magsasabi that abuses was committed. I mean kahit tao yan, somehow you violated the right of the person.
Tinanggal mo ang tenga.

Abhoud: Yung

Pula (?) massacre hanggang ngayon--- nakakaLimutan na.

Tom: Hindi ngatalagadokumentado. Lalo nap^gPMA'erangnagkasala. Protektadoyan

ng gobyerno kasi mahal daw ang pagpapaanl.

Edil: You

isolate some people kasi you show that the justice system does not apply to you and it only applies to other people. So aiam mo yan some rights on the likes of these group of people at a lesser value. I{a''a 1'un, okay lang our soldiers commit that and they can get away with it. So somehow the peopie gets numb and out of it and would rather resort to their own means of settling the matter. And that's why this has persisted for so long. Itong mga armed conflict. \ilala magawa ang CHR.

Abhoud: \{/ala silang prosecution power

eh.

ASM:

Pero kasi

it falls under court martial eh. Independent about it.

3B

That's the benefit of having the US military here. They're strict about this matter. And the Filipino soldiers nahiya kaya ayaw ntla magpasilip ng kagaguhan sa American
soldiers.

Edil:

ASM:

I(aya yrrng American soldiers tngat na ingat naman din because the civil society nakatingin sa kanila n p^r^ngmay dadalhin silang evil doon. Laughters. . ..
yatang baril doon
sa

Abhoud: There v/as this case of an American soldier na may dala

Zamboanga City sa bangko. Naging malaking issue I'un sa media.

ASM:

\)Talang government kasi

dito...

SYA: government si Edil...

Abhoud: Edil is not talking a governmenr,

violations.

he is talking as a resident of Sulu.

Tom: Ang problema kasi wala na si Capt. Letero

Sa kanyang sa

kaya humupa na yung human rights batallion y'ung pinak ahayop sa lahat eh.

Abhoud: Ba't

Davao )'ung summary execution

talaga

_?

18

ASM: This is something na hindi pa Abhoud: Nakakahon kasi ASM: Pero

sa

^aflo

ng governmenr

ang pag-iisip ng nasa gobyerno, hindi innovative ba ang approach

military, I'm sure meron n m^n

^no

na )'ung Human Rights

39

RouNo-Tmre DrscussloN oN VoueN, Huuex Rrcrrrs eNo Isreu

SyNNreSrS INO RNCOMMENDATIONS Anparita S. Sta. Maria
Sarab L.ouY. Aniok Urdula (lYonm's) Detk Haman Nghts Center, Ateneo L.aw School

The concept of human rights is generally viewed as fundamentally secul zr; and the Universal Declaration of Human Rights (JDHR) as an instrument that could find application only to "seculaf states," and not within the framework of religion.l

With the eadier demise of Soviet Russia and its satellite states and the subsequent
9/1.1 teuonsm attack, the Muslims, in general, and Islam have been imprudendy identified as the new "enemy," regarded with suspicion, unease, and consideted a security risk. At the same time, however, there has been an outpoudng of sympathy fot Muslim women who are seen as victims of oppression and discrimination, the root cause of which is the Muslim lsligion, Islam.2

To regard Muslim women as oppressed within the context of Islam but at the same time forget that they too follow and adhere to its teachings and would continue to do so, is to utterly fal. to appreciate what these women genuinely try to fight for when they advocate for the recognition of their human rights.
\X/hile there is hearry criticism regarding the oppression of women in Islamic communities, scholady discussions by Muslim women say that there is no conflict between women's rights and the pur'an, as well as with human rights and the par'an. In fact, it is assetted that the pur'an even puts a gre t deal of ptemium on the role of women in Islamic life. However, it is in the interpretation of the Islamic teachings ot the hadcat where the conflict arises.

Within the Philippine context, the patriarchal culture which exists in non-Muslim societies is likewise very strong in Filipino Muslim communities. Thus, it is not surprising thzt, as with most Muslim countries, the interpretation of the teachings of the pur'an are made by ttre [-Jlana, who happen to be all males. The question, therefore, is who should detetmine what tights women have in the pur'an? Should the interpretation of its teachings
belong exclusively to men?

For most Muslim women, it is not only possible but actually desirable to adopt an approach where women's rights are rca)tzed within the framework of Islam. No one should ,r*-. that Muslim women would be willing to compromise their cultute and religion in the process of asserting their human rights. It should also be botne in mind that although i{uslim women may recognize th^t they suffet denial of their rights in the name of Islam, they do not necessarily see Islam as the source of their oppression. Theit dght to believe in Islam and to order theit life accotdingly must be tespected.
Conpatibte aith lslan? Tlte Itsue of the Ngltts of lYonen in Muslim Corzmanities

Riffat Hassan,Are Hunan Nghts

i

<http: / /www.16l
2

gi

ousconsultation. org/hassan2.htm>

Id.

40

The main challenge for Nfuslim women is how to deconstruct what has long been accepted as the correct interpretation of the pur'an as far as what women should or should not do, possess and enjoy. Moreover, the biggest challenge for these women is to convince the Muslim men that it is not contrary to Islam to accord equality between women and men.
has been obserwed that the dearth of Filipino women MusLim leaders is not only due to patriarchy but aiso because it disconcerts other women in the communitl' to see one of their own assume a position of p<-,wer. This produces a stumbling block in the advocacv of Filipino Nluslim women in their struggie for women's rights.

In terms of participation in governance, it

The issue of peace is also a most impelling agenda in the Nluslim woman's cause. Not onlv does the war in Mindanao mainly affect women and children, it is also the root cause why many of the women have become victims of gender-based violence. Nforeover, the massive displacement caused by the war has resulted not only to poverty but has forced manl' olt them to enrer prostiturion.

It is also widely believed that the presence of a woman in conflict situations has a sobering effect. Whether there is truth to this belief or not, it is nonetheless important that the Muslim women's voice be heard in the peace initiatives in N{rndanao. While some of them who are well-informed favor secession, a number still view the move with ambivalence due to the absence of a concrete women's agenda in the event of separation. However, many women, particularly those from the grassroots are apathetic as regards the idea of secession. This can be attributed to lack of awareness of the issues involved and the uncertainty of what a seceded territory has to offer MusLim women in terms of participation and promotion of their rights. A,{oreover, they are prtmanly concerned with the grinding poverfy that they have to deal with everyda1,.
From the round table discussion (R.TD) which was conducted on $ilomen, Human Rights and Islam, a number of issues and concerns were raised which the Philippine government should look into not only in formulatrng its policies on women in general, but also on the very urgent problem of peace and security in Mindanao and the Moro people's struggle to the right of self-determination.

1. Priority in Education - Past reports already put the literacy rate in the Autonomous Region of Muslim Mindanao (ARMN{) as one of the lowest in the country. Befween males and females, the latter have even lower rates3. This has also been a concern which was discussed in the RTD. NThile the declining literacy r^te and conrinuing deterioration of the state of education have been widespread throughout the country, they have had their worst effect on the Muslim communities. \Whatever the reasons for this, it is clear that the government should not only priontize education as a matter of national policy, but it should give special focus on Muslim women and children, in recognition of the fact that education is an indispensable requirement for empowerment and genuine participation.
r See report of the National Statistics Office, available at

<http / /www. census.gov.ph/data/pressr elease / 2003 / prO323tx.html>

:

41

- Government should devote a substantial part of its its different agencies to come up with more sexmandate resoufces to documentation and disaggregated and age-disaggregated data on statistics concerning the Muslim communities in
2. Research and Data gathering

terms of school population, labor fotce, government participation, and other factors which can provide a fair assessment of the state of Filipino Muslim women. Without adequate data, it would be difficult to measure the extent of the problems and concerns that rvill be btought to the government's attention, thereby undermining their urgency and magnitude. For instance, other than displacement, dislocation and conflict-related r,-iolence, there is not much data on violence against women and children in these communities, thus, precluding the inrtiation of efforts or programs to identify the root cause(s) of this problem and address it appropriately. Other zteas ate also worth looking into especially where discrimination is quite evident not only in the family but aiso in the workplace.

3. Evaluate effectiveness of the Shari'ah Courts and how they could be more responsive to the Muslim communities' need for redress of grier.ance. It has been pointed
out that rhere are too few who qualify as judges in this court, and hence, the lack of Shari'ah functioning courts. Furthermore, the few who do sit as judges arc all men. The most impoftant thing to consider, howevet, is how to make these courts mofe accessible to conflicting parries and how to emphasize to the Muslim sociery in general, that this is a better alternative than having to result to measufes that can lead to violence once a settiement berween and among feuding families has not been reached. 4. Education on Human Rights, Rights of W'omen and Children, Access to Justice, Participation and Governance and the importance of the Rule of Law - these are key components of empowerment and capaciry building for the Musiim women. nilhile basic education remains a top priority for the Muslim communities, there is also an urgent need to provide human rights education, so that thev can, in tutn, have a meaningful participation in decision-making which affects their Lives, especially on matters concerning peace and development in Mindanao. The government should exert extra efforts through rhe various agencies at providing opportunities for dialogues between Muslim women and men toward the end goal of arriving at renewed interpretation of the pur'an that, while remaining faithful to its teachings, will nevertheless not result to discrimination against women and work for their betterment in the Muslim sociery.
5. More meaningful dialogues

6. Inclusion of women and women's concerns in the peace Process and providing them the means of genuine participation in its de cision-making process and implementation. A concrete peace initiative is also imperative in Mindanao where the Moro women's voice could be heard; and where they could have a chance to participate in the consultations as well as in the decision-making process. It is vitai that their inputs are factored in as their peoples chart their destiny in their exetcise of their right to self-determination.

42

RouNo Tesrs Drscussrox ON WoMnN, HuueN RrcrrrseNo Isr-all Hrro AT THE Srrvnn RooM, Apo Vrnw Hornr, Deveo Crry oN Mencs 1,2004 er 2:00 p.u.

Facilitator:
RTD Maneger: Guests:

Atty. Amparita Sta. Ma"ia Atty. Sarah Lou Arriola

Ma. Teresa Dela Rosa - MSUG, Ateneo de Davao University Fedelita B. Dublin - M$fG, Areneo de Davao University Roscel Mariano - National Commission on the Role of Filipino
rilTomen

Manam Mastura - Office of the City Prosecutor, Cotabato Rossmia Coo - Ateneo de Manila University Noriana M. Acmad - Al-Mujadilah Development Foundation Erlinda S. Ola-Casan - Muslim Christian Buklod Foundation Benedict S. Jimenez - British Embassy Gill \Mestaway - British Council

L
ASM:

In behalf of the Ateneo Human Rights Center, I'd like to welcome you ro this Round Table Discussion. This is rca1)y a project of the Ateneo Center for Social Concern and Public Affairs. It is in the process of giving or
conducting five focus round table discussions, mainly because the elections are coming and there are policy concerns. \7e will probably have new policies again. These discussions are nor a continuing thing but I hope for the NCRFW, it would conrinue. They have decided to conduct the consultations on how Islarn confronts democracy. The focus is democracy, discussing leadership, human rights, civil society, participation and women. rJTe have conducted the Human Rights Round Table Discussion last December in Ateneo and, as I've said earlter we invited both men and women but unfortunately only the men came or confirmed, so it's not as if we did not see it as a women's concefn na dapat hiwalay, but as usual men lang yrrng nakanttng. So ngayon naman all women. I think that is deliberate that we wanted to discuss these issues on policy concefns on Muslim women specifically here in Mindanao and mostly with Muslim women or those devoted to working with Musfim women's issues. IQya binigyan ko kayo ng kopya of the RTD in Human Rights last December. well, more or less, follow that framework. s7e'll discuss first what is the relation of Islam and Human Rights because iro )'ung parang over-arching theme of the discussion when we talk about peace, when we talk about democracy with a gendered perspective. The first thing that we have to discuss is human rights and Islam. How do you see their relationship? Are they contradictory? Are they compatible? we already have

43

the views of the men here on human rights pero svempre they did not discuss women's rights. I(ung wala kavong questions, mofe or less, we'Il tackle first the discussions on human rights, Islam and the question of cultural relativism; and then we discuss Islam and democracy: what are women's rights, participation and how do women see their role in democratic processes and last but not the least, in Islam and peace because I think that is really m6s1 important, especiallv in Mindanao. So for the first part, I'd like to throw the discussion on vour general view on human rights and Islam and how do women's rights fit withrn the context of your situation. Let's make it not so much theoretical but contextual, kasi nga I u'ould think that the aim here is to give a policl- recommendation. That's why we really insisted and are thankful that somebody ftom NCRF\V is hete, si Roscel. I think that it is important because they are the agenc)I implementrng the CEDA\X, and the policies on \vomen. NIavbe lou would want a free-willing discussion dito sa first part. Silhen you sav is there compatibility or is there an incompatibility, why is it viewed that way? When )rou say women's rights we do not necessarily think about Mushm women right away, unless we are talking about oppression or maybe we are talktng about denial of rights. For in my limited reading, I know that it's not, so, I want to hear from you, what is really the issue there? How do you view human rights, Islam and u'ithin your context why do we have to discuss this? So maybe, Linda, if 1'es want to start...

LINDA:

\We have

to take note, that there are hidden debates and for those familiar with Islam, we really have to take note that women's rights in Islam or
Muslim women's rights in Islam must be taken in the context of the poiitical, social, economic and spiritual aspects. If we will be iooking into the pur'anic verses wherein there is a complete fundamental source of the Islamic view, women's rights are very much recognized. However, there are cases when we talk of cultural aspects that they misunderstood the fact that women, mostly Muslim women are given little recognition. \What we have tc-r take note is there are women, Muslim women who realiy do not know thefu rights. So in one of the discussions, it was proposed that indigenous explanations of what their rights are must be provided for. I'm talking about this because Muslim women at the grassroots level which compose the majority of the population, do not understand this. So there was a proposal that indigenous concepts must be very made clearer in provisions. Yes, can I ask, so when you say indigenous, let's say fot the Muslim women it is also imperative that you go back to the pur'an?
Precisely, because the pur'an is the fundamental and basic foundation for Muslims all over the world. It is a way of life, including women's rights.

ASM:

LINDA:

N{IA:

it out of par'anic principle, they take the law itself context. Instead of taking it from without referring to the pur'anic principle itself.
These people take certain laws and apply them in their lives and take

44

NANIE:

agree with both Mia and Ma'am Linda, because Islam is rcdly a legal form and basically it really prorecrs womerr. But the problem is in application. In certain Hadith, women are taken out of context. That's how they are misunderstood. Their interpretation is misunderstood and when applied, dun nagkakaroon ng problema especially with regard to women.

ASM:

Is it also true here in the Philippines because I know most of those people who are responsible or given the responsibility of interpreting rhe par'an are men? At least in Middle East, what about here in the Philippines? I mean here in Mindanao for example, is it the same situation?
Let us take the very specific example that has been a popular excuse) because of maybe a misinterpretation of the pur'anic verses-the marrying of two, three, four wives. other christian men, say they will, they wanted to marry two, three, four but they want to convert themselves to Islam. This is a wrong interpretation, because the pur'an says a man can maffv tu,'o until four wives as long as they can treat their wives justly and fairlv. Okay, but if they could not, the pur'an says, marry only one. So, it's sti1l monogamy. But others interpret it that they just put a period on the number, just to make an excuse. Money mattefs you can divide, one peso for 1'ou, one peso for you and for the others. The material thing is magnified but surely we, women, know that emotions cannot just be dir.ided equally. So the pur'an says, if you cannot meet the conditions, just marry onll' sns.

LiNDA:

BE,NEDICT: Its true ampy, first yrng ganun nga, it's a history of interpretingpar'an. so, it's natural na, no need for an interpretation. Then second, kasi dun sa last RTD, there was one y6gng man who said na wala namang issues in women's rights kasi walang nagsasalita, so I wonder kung ano )'ung status ng Muslim women ngayon?
ROSCF,I,:

Maraming nagsasalita pero there's no data telling us the status of MusLim women in Mindanao. \what we can get are statistics of Muslim women in politics.

TE,SS:

In addition lang, basing on that, I don't think it's true, because we har-e these studies from the Notre Dame Universiq'like Dr. Dannv de Guino who is now the Vice-President for Academic Affairs. They have studies specifically on N{aguindanao women about their practices more on reproductive health and family planning and also there was the Al Mujadilah Foundation also has
studies on women in relation to reproductive health and sexuality. N{a1,be, i1'5 not more focused on women involved in economic and poJitics like that, but more on reproductive health and sexuality, which could aiso cut across these
issues.

ROSCE,L:

\fle, from the government are trying to get information as to the participation of women in political, economic and social life of Muslim women in Mindanao but there is no data. our government for example, does not have data as to how much of NIushm women are actually going to schools, how
45

employed, how many are in the labor fotce, what extent is that marry ^re gender gap between men and women in musiim areas.
TESS:

I think there's also another study in relation to that kung gusto mong

malaman. Sfe have this Mindanao report done by I think the group of Irene Santiagc-r. I do not know, it just came out recently and because there was this conference of the Mindanao S7omen's Commission, something like that, and I think the NCRF\il was among of the guests during that time. We have this report and I thrnk most of the researches or most of the data were based on

government's parang data nila kinuha nung kinum-"pile" ng grupo na gumawa ng research na Frn. So, I suggest, or perhaps you have a coPy of that because there was one from NCRFW na nandun during that time.

MARIAM:

we do not think immediateiy is it that when you talk about Whv Jabout women, and I think thrs is about a virtue? First belief is called predestination, kulang ng pro-activitv. Ang natatanggap natin or pagtanggaP -, the protectors and the providers of for everything that happens. Men are women because one is stronger than other but it's not specific which one is stronger than the other, the man ot is it the woman? So, iba-iba )'ung ano noh, but I think this is the basis in which the gid starts, bata pa sya ganito na. At the start, bata pa siya, she has het father, and uncles, lolo. They are the ones protecting her. So if somebody tries to kidnap this girl, you would get into trouble with the men. If somebody tries to raPe this girl, they will take the law into their hands, they will kill you. Either you pay in blood or you pay in cash. You may r.r'affy the girl or they uzill kill you. That's because based on this, men are the protectors of women. If you want to court this girl, you have to ask permission from the parent first and then you can court her. Then if you want to marry her, you have to ask them first before you ask her. Ngayon pag kasal na, husband na png protector, based on the Hadith a woman attains herein or done na, )'-un 1'ung for husband, so evefything that a man says, follow, follow. There's even this Hadith from the prophet saying, telling "Fradula," he is the author, what is the ideal in a woman. That woman, hindi sya nagpapasok ng lalaki sa bahay nila unless her husband is there. Secondly, she has her knife in the kitchen, so if I do something wrong, then my husband is ready to use it. Ikatlo, I think it's about the food preparing for them or the food for the men. The fourth is about being attractive looking for their husband. And the third is, if you become old, anak na niya, her son v'ill take care of her, ganun 1.un. So it's Like patrtarchal, everything is like into, based on this pur'anic verse, men are the protectors of most women.

ASN{:

It is the word, if rve're going to base on the Hadith.

Yes, that's u'h),

NfARIANI:

I don't get anv complaints for rape. I get complaints for rape
magko-

from Christian womcn. Pero kung N{uslim na babae, hindi yan

complain sa fiscal. Pupunta muna siv2 5u tatay nya o kapatid nya. "Ama, nirape ako, ganun, ganun" and then his father will go to the father of that voung man, hindi siya di6i..rto dun sa voung man, dun muna sya sa father
46

and they will discuss for what they will do, either you pay in money or suffer. That's why in Dulawan, they don't have rape cases there and then they have a lot of kidnapping. In that area as long as you have the right to know the man, you can actually setde things.

ASM:

noticed kasi Mariam, even in the reports, wala akong nakikita on violence against women when you talk about Muslim women, unless it is violence based on displacement or conflict. Even the matters like to beat his daughter, it is in the pur'an. First if the wife disobeys, she gets warned. Second, the wife disobeys, you tell her. Third is to hit her lighdy but never hit her on the face. Merong specified so base on that pur'anic verse, men have the right to hit their daughrers, their wives. But I think its base on both "Taudi." I think it's more significant to base it on the norms but they want to be true to the pur'anic vefse, that's why in this legal system they will not see any complaints for tape ot acts of lasciviousness unless para )'ufig tinatawag nila honor. Like there was this one woman, she was walking along rhe corner then one barkada there slapped her burt and the man complained because the daughte r has a heart ailment. I think it is more of the injury to their own gid, so it's about honor, about their reputation, they will go rhere, they will do anything they could do. r{aya nga, that is why for example in these cases of, let say, sexual harassment or probably rape, cases becomes a famlly matter. Families do not come out _in the open to tell you, kasi mapapahiya ang allclan. That is why kasi it does not end yrrng tsismis. It will not end so if anything happens, the family will do in their own way.

MARIAM:

NANIE,:

ASM:

Is there a modern, if not modern but less traditional interpretation the one Linda was saying? She interpreted polygamy in a very different way which is very enlightening. Are there efforts to interpret some of the pur'an verses which developed those traditions in different light by the women? \x/ho should interpret u,'omen's rights as far as the pur'an is concerned? Is it the traditional men or are the N{uslim \rromen in the best position to interpret? If you follow the interpretarion of Linda emotionally you cannof really distribute it equaliy, so in the end 1,61r are not really allowed to marry four
women.

NANIE:

w1h me, it's really a heatry thing, may be a .uery difficult thing. It may be very -ng difficult for us na hindi ko alam kung anong gagawin ia utin -gu kalalakihan pag lumabas ito, when for example we affempt ro scrutinize our Hadith because it has been proven (I have the reading materials with me and has been proven that there are some Hadith n^ m y mga nakapasok that
maybe the source of why women) MusLim women are suffering kusi may mga Hadith na nakapasok that tend to enforced the biases against -o-.n bli-.". so, merong mga Hadith na existing talaga. If rve try to make some changes or challenge, this hindi ko alam kung anong gagawin sa 'rin ng mga lalaki. Linda said, "truth has just to come out, Allah is just.,'

47

TE,SS:

In relation to sexual harassment and violence against women, how would you perceive those Muslim women involved in prostitution? \X4rether we like it or not I met some in Cotabato.
Let's not use the word Muslim. Because if we use the word Muslim, they pray five times a day and then they would not go into prostitution. We will just call them maybe the Maguindanaos, Maranaos, by the tribe. Just like as we are having in the media, pag merong nagnakaw, nangholdap na Muslim, emphasized ang Muslim. Pero pag ang I{ristiyano ang gumawa, holdapers lang. So, there is categc)flzation. tilfe have to correct it. Because they are prostitutes, they are women from every tribe. met them hindi ko naman kasi alam kung Maranao. Usually kasi nagpapakllala sila by name let's say Maria, (mention visaya word) so that's why hindi nila itanong. And they are afrard na bumalik na sa kanila it's because ).un nga, tapos sinasabi dn naman rila na they are involved in prostitution because of the economic factor or nagiging biktima sila. Ang question is how would you perceive, tapos p^ano ito, let's say ano ang pwedeng gawin for them to be able na matulungan sila?

LINDA:

TE,SS:

I(asi basically when

NANIE:

Yan kasi ang ibang concerns namin. Personally, ako ttna-trzck down ko talaga Flng mga ganun, Marawi to Iligan to Cagayan to Davao. I tried to get stories from women and try to track down kung ano mla nangyayari sa kanila at kung bakit n ngyzyafl yan sa kanila. Ang gusto ko lang itanong is, ano ba )-ung mga aspirations nila, what are their wishes and aspirations? Ang isang lumabas doon in my interview with one member of the organizatton, related din ito sa peace in Mindanao, they v/ant peace to happen in Mindanao. They want, for example daw, the govefnment to have this peace talks para mawala na vung war. They want peace para ma-minimize ang mga pangyayaring yan. Because of the war, nagkaroon ng kahilapan sa family. They have to evacuate and all that, then it's usually these gids who go out to look for kabuhayan. And then, when they go out that is where they are victimized. Harassments occur or the attempt. The sad thing is walang magprotekta sa kanila.

ASM:

to ask 1.un din mga hindi lang nangyayari sa Muslim women. I think most of the women also aside from having to engage in prostitution, yung iba talaga are the victims of like trafficking or illegal recruitment and you know violence as afi ovefseas worker. Ewan ko kung mefong disaggregated data kasi usually when you talk about violations on oYerseas Filipino workers, this is by region and then probablv but J don't know if mefon ding sex disaggregated. Yung ethnical, wala rin so you don't receive any complaints for illegal recruitment, pagka-ganun kasi minsan ang consequence nun sa labas violence din, I mean physical and sexual.

I'd

also like

MARIAM:

Illegal recruitment mostly Christian, but 1'ung mga Nluslim, they dsn'1
engage.

ASM:

But there are.

48

NANIE:

I know there
on relayed

are.

I have one

it to her family but I

cousin who was also sexually harassed. She larer believe they don't know up to $rhat e\tenr

was the harassment.

MARIAM:

They will not talk about it. It's really the crime in Saudi. They don't har-e many crimes of murder but mostly about immoraliry. Bawal ang pre-madtal sex, so they think, if they do it to animals, that's the exception to the rule. If they do it man to man, that's not zina. I(aya rin siguro walang data about that becaus e the same applies what's happening in Maguindanao, Frng culture of ^gatn silence.
as

NANIE,:

ASM:

of course, the stigma of being sexually vioiated is not only the srigma casted upon indigenous or Muslim, even Christian. It is the same reason why
women, Filipino women in general, would not really complain when they are trafficked or they are violated but I guess it finds some support in the interpretation also of Islamic law rather than go to like a prosecutor.

MARIAM:
ASM:

Go to arbitration.
Yes, but what about

if the violation is there in the Middle

East.

MARIAM:

They will not prosecute anymore. Even Sarah Balabagan, she cannot come home to her town in Simway because her family does not want her anymore because she married a christian and they threatened to kill her when she's back to their place. For rhem, ir's shameful that she married a Christian.

NANIE:
MARIAM:

I think some measures have whether Muslim or Christian.

to be taken up is to protect

these women

Yung problema namafl about prostitution, some

of them were taken advantaged of during the war and in evacuation, and then of course they are evacuated. They don't have time to study, so they have no other means of livelihood, )'.un na lang, panandalian, mabilis. That's their needs, so it's really basically economic, poverty talaga. And then, their men n man, the system is supposed to protect them, but then they are ashamed of them. So itrnakwil
sila.

NANIE:
MARIAM:
N{IA:

r{aya nga Frng uri nila because of the war, hindi natin alam kung ano ba talaga ang nangyayari sa isang community.

It I

also depends upon the woman; maybe she has accepted her fate. guess it's a problem

of knowledge. Who really has the right to interpret the

pur'an?

49

ASM:

In my very limited

pur'an is the word, so it's infinite but then because it's infinite you can interpret it in so very many ways.
reading,

MARIAM:

It was of the l]lama svstem that

these ulama, they are the one's protected by

the brotherhood and they have to be the one, you have ro talk to them. The Datus, the Ulama \ an ang nirerespeto. BE,NE,DICT: Ang babae hindi pu-edeng maging datu?

MARIAM:

Hindi, even in leadership they don't want. May belief na hindi pwedeng
maging leader anq babae unless may asawa siya.

ASM:

So I think reading upon the December RTD, so you are also in agreement basically the UDHR is not really contradictory?

NANIE:

I(ung tutuusin na nga, ang nakagawian ng mga babae is even more. Kaya nga there was a Hadith na three times ang concern ng bata sa kanyang nan y.
But it's the same principle or mantle of protectiveness;

ASM: ROSCEL:

l\{erong mga rights in the pur'an but y6q have ro look at the probability to develop \r'omen in spheres, parang social. They all have to pass; we all have the equal rights in these spheres. There should be discussions on how to look into others spheres u'here women's rights are. . . for example in leadership.

NANIE,:

Yun ang pagkaka-intelpret ng mga t^o

lead.

yr-rng babae

hindi pwedeng mag

BENEDICT: Hindi ba nakalagar

babae?

sa

Qur'an 1-un? Especially stated ba

sa

pur'az bawal

y-ung

ASM:

No, it's an interpretation. It's about time that interpretation should be given second look and read in a way that involves the women.
And then be gender sensitir-e.

NANIE:
ASM:

Just convince some men and let them be the one, the agents of gender
sensitiviw. So the pur'az is used not to discriminate, but it's just the interpretation?

BENEDICT:

ASN{:
NANIE:

This interpretation has long been there, it's almost accepted as that pur'an is the...
As rheir religion.

Before kasi year 2001 and 2002, gina-grounded y'ung establishment or "Alimas," as well as students of Islamic Hadith. It's all about women and development mga series of accomplishments. It always emerges that

^flg

50

Islam is the solution to manv of our problems like for example in the ARMM. I{aya lang there's alwavs arises na kung talagang Islam is for development bakit puro poor pa rin ang mga N{ushms. If Islam is really for development then why are we not developed? Parang vun ang tanong, bakit hindi nangyayafl? Parang ma\- faith pero )-ung sa action nagkukulang sa
application. ASM:
So more or less,

in terms of interpretations, in terms of participation, medyo, do you find pare-pareho within Asia?
Similar.

MIA:
NANIE,:

In the ARMM,

naghahalo ns mixture. i(asi nag-aarai yrrng mga Ulama natin

in
NIIA:

Saudi and Egr-pt, pagdadng nila dito makikita mo

in the manner of

dressing. Makikita mo \-uns difference in the interpretation.

In

Southeast Asis, \Iusl-rms are traditionally Shaf

i.

There are different

schools of thoughr. One of them is Shaf i.

MARIAM:

Apat i an eh, Imam Shat-i'r, Hanbali, N{aliki, and Hanafi. And so, I'd like to note that during the older _qeneration, they had Arabs who drop here and the adr-isers...no\\- it's our Ulama s-ho go abroad to study and then come back, so it's not the same an\-more; this maybe is the reason whv their
interpretation \-an'.

MIA:

The methodologr of rnteqpretation likewise has to be considered. At a certarn time in histon'. modrt-icauons in methodology were made, ijtihad, or the application of cre adr-e inteqpretation/reasoning to Islamic texts, were discontinued rn irn arrempr ro preserve the way of life Muslims had at a time when it seemed threatened. This made interpretation static and Muslims clung to an Islam cn-stallized in a specific time period.

NANIE,:

I{aya nagkakaroon n-qavon ng resurgence. And then ang ibang Ulama ^yaw na nilang mag-open kumbaga sa interpretation.

ASM:

I just like to go back to \-our concern on reproductive health of N{uslim women. Gusto ko lang malaman what is the issue there? Or, ano yung nakikita niyong problema? I
think it's a taboo for them to talk, especially on related to sex but more
lately mas open sila on familv planning.

TE,SS:

MARIAM:

There should be a r,ery informative group on reproductive rights from Malaysia by its sisters in Islam. And I think it should be spread out, people should talk about it. It is more, I noticed, that basicaliv we are reallv repressed in these areas, repressed when it comes to RAJA. In N{anila, it is acceptable that people are open, here it's hidden but it is more rampant. I noticed these women from some families are doing it, they are doing it
51

secretly. I don't knorv whv it's more fampant when it's supposed to be taboo. Siguro because it is prohibited.

LINDA:
MARIAM:
ASM:

Sometimes they say, v'hat is prohibited is...

I think it should

be addressed; they should talk about it all. they're very conservative. Is

I know for CathoLics thev don't talk about "th^t" it the same for lluslims?

N,fARIAM:

rarely knou., people talk about this, even a mothef to her daughter, maybe among friends. Among their citcle of friends they rarely talk about it.

ASM:

But, I think, kasi the conception is when you talk about reproductive rights, they 21s automaticallt zeroing to contraceptives. That's not that whole concept of health, r'our health as a woman and that's why it impacts heavily on women, for erample, rvho ate in overseas workers. They don't know how to protect themselr-es. Because our concept of health is not expansive, we are huppy when u-e are not sick, you don't have a disease , you're healthy, is it the
same?

mean, of course, we are taiking about Islam, and there are commonalities befween Christian women and Muslims, Filipino NIus[ms. So I think outside the Catholic teachings or Christian teachings or the Our'a//, there is also some institution at wofk here; patriarchr-. \\-hether \-ou're Christian or Muslim, it's there. So it somehow validates all of this interpretation or whatever violations on women because outside that, er-en in culture or religion there is already institutional system which va[dates thrs.

Which brings me to the point of,

NANIE,:

Continuing vour ans\\-er, may rrrga eady attemPts kami in our advocacy on gender issues, reproductir-e health, reproductive rights and also peace. We started in our research in 1.996 with our research on reproductive health infections. In our community, we are [mited to Lanao dei Sur and Marawi City, but ure also tound out that it is also applies in ARMM. Women suffer from reproductir-e tract infections because of some beliefs and practices in the communities. Pero the feason we learned, marami ang talaga mga health concerns ng babae in the community, especially reproductive in nature. But there are aiso practices in the Islamic wa)rs that also help peopie from contracting some reproductive diseases like yung ablution naming. The ablution in itself inr,olves washing including genitals before praying, so that also helps. That cleaning portion is done five times a dav. There were also practices na hindi rin nakakatulong during menstruation. So one thing we realized is that \\romen need help in the communiry in terms of their reproductive health concerns as well as sexuality. Then we also study adolescence sexuali4'. The young, until now, are so interested in enjoying life. In addition to that, they explore drugs, sex, and prostitution. Even their boyfriends, they enjov life, but if you ask them, they don't know how to protect themselves. Even having a grouP discussion with homosexuals, thev
52

with their partners or social partners but wala sa konsepto nila yrrng heaith concern na baka magkasakit sila. Hindi nila iniisip 1,.un. They know it is Haram but for them, there is a dissonance. They know that it's not allowed, they do it. And then they claim they are NIuslims. If you were to ask them about their sex, their religion, sasabihin nila Muslim sila. So they call themselves Muslim homosexuals.
engage sex

in

ASM:

So

you say,in pur'az, homosexuality is prohibited?

MARIAM:

Yes, it's prohibited. There was this communiry of homosexuals and then according to the pur'an, Allah took that communin, shook them and slammed them on the ground. So that's the basis for the punishment in
Saudi.

NANIE:

Another more recent study is on high risk behar-ior among adolescents. Adolescents are engaged in high risk behaviors. I(asama na dun iung drugs and sex. We also found out that in interviews in the communifi-, there are ways by which we deal with harassment, violence in the communirr'. Ang isa dito is the Islamic way of the Ulama. The second is the tradiuonal means. N{ore of traditional is kasama n\-a \-ung kanyang pamtlya, sila ang magde-decide mag-usap sila on hos- to deal u-ith this kind of problem of the family, like rape or harassment or s-hater-er. $7hat we noticed eady in those interviews was, kung r-iolence against children, hindi ina-address. When it was asked u'hat the communin s-ill do kapag, let say, y-ung isang family pinapalo to the ma\ \ung kanr-ang mga anak, walang pakialam 1'ung ibang families or nerghbors kahit mamata\- man luflg anak nila sa pagpalo. Because of their beLiei in the roie of the parents na saktan ang anak kapag nagkasala ito. So in a sense, ther- don't knou, that it's would be child abuse. Hindi nila ir-on pakikialaman kasi pan sa kanila, role
)'un ng Pafents. And then, we were able to, in the AR*\III, conduct a small study also on family planning, r.iolence against \\'omen and children as well as sexual reproductir-e health and rights oi u-omen. So marami pa rin ang mga gaps kung tutuusin. Famrlv planrung hindi pa rin 1'an accepted; parang it's generallr- labeled unlslamic. -\nd then r-iolence against women and children wala pa ring masvadong data on this but actuallr'looking more closeh, in our own communities, nangr-ar-ari taiaga r-an. X{erong violence against women and children if u'e reallr- look more closelr-. And awareness of reproductive health hindi maslado. So there's still so much to do within the ARMM. I{ahit anong garvin ng parents sa kanla hindi makikialam angibang tao.

ASM:

So, you don't receive an\-complaints also on child abuse?

NANIE:

But the problem is, kailangan pa rin talaga ng education because parents are not so much educated about what is Islamic. What is supposed to be the real Islamic way of raising the children?

53

MARIAM:

we call this sexuality n man) if there's too much oppression, it can be dangerous. If there's too much repression naman, it can cause danger. So there has to be a middle ground because of the belief rhat sex is bad
influence sex is evil.

If

BENEDICT: How about legal rights? And there's this so-called Shari'ah Bars? Are they
functioning?

MARIAM:

Yes, they are functioning. There's only one judge like si Judge l(alimbo. But

the problem is, in order to be a Shari'ah Court Judge, you have to have passed the Philippine bar and you have to pass rhe Shari'ah bar. But there are

some lawJ,'ers u'ho 621, pass the Philippine bar, they're Muslims, but they didn't pass the Shari'ah bar. Some people naman pass the Shari'ah bar but not the Philippine bar. So isa din yan sa problema. Andyan na \,'ung system but kulang sa appLicants na qualified. ASM: Are there r-erv feur u'ho are both?
pass the Shari'ah bar. The Muslims, who do the bar, pass Philippine either they practice in Manila or rhey don't want ro be a judge. Even lasn,ering for example, you represent one client, they will take it personallr- against you. Wala yrrng trabaho lang, trabaho lang dito. If you're srding u-ith that family, they can kill you or they can do something.

MARIAM:

In Marau.i there are a lot who

BENE,DICT: But u'hat ii mar- demanda? Sino ang mas sinusunod? Halimbawa kung may ptoblema, Ulama ba ang pupuntahan mo?

MARIAM:

The Datus. But I noticed right now that in the city, people who cannot ger justice u'ithin the familv on sexual crimes, they go to the fiscal. So they're discovering at namumulat na sila that they can get vindicated within the
procedures.

NANIE:

But rn the communifi', it's more traditional. The Datu, the Sultan, may role din yung mga kababaihan as well as the Ulama. Meron silang methods of settling disputes in the community. But kapag naging seryoso n , th^t is when they also resort to other means. So tatlong elemento yan, they complement
each other.

MARIAM:

And by examining and discovering if they go to court, it's even better

because they

u'ill have that personal arrested. However, they fear the reprisal

on the children. ASM:

So before we end the

first topic, are there any more additional comments?

MIA:

cringe at the image Islam has. And sometimes I tell myself that we deserve it because of so much ignorance, misinterpretation and misunderstanding about our religion. I think we have to separate the cultural, the moral and the legal. I mean sometimes we forget to separate the moral
Sometimes

54

and cultural or traditional from what is actuallv the wav of life prescribed in the Qur'an. How can we sav this is hou' it should be if u'e forget to say that it's actually Muslims from thrs part of the world who interpreted it this way? And, I think universal and particular should also be separate. ASM: Yes, because it's easv to say that, the Universal Declaration of Human Rights

and Islam, are not really incompatible when we talk about principles. It's really very broad. I think there should be standards where you cannot sav that no matter what's your interpretation, it's the same. There should be a standard where violations should not be tolerated especially on women and
children.

MARTAM:

Di

it is common sense, but the problem punishment may not be constitutional? Like for example, take homosexuality, there's a provision in the anti-rape law that when you insert objects in anal or oral opening, that's rape. Pwede na yun sa ^ny homosexualiry. I think it's the same. However, it in the RPC, when you do it and nobody complained, nobody saw you, man to man you did it, there's no problem. But in Islam, the fact that you did it, you can be prosecuted. The mere fact that you did it, that is cause to put you in iail. Sa RPC, somebody has to complain.
ba when you impose a criminal law,

is the

ASM:

So somebody has to be take vour case to court. There has to be some sort witness.

of

MARIAM:

In the RPC, the

onlr- one u'ho prosecute is the victim and his family. But in Islam, you can pfosecute as long as there are four men, four witnesses with moral standing. One man is equivalent to two women with good moral standing.

ASM:

I think rve also discussed that during

the December RTD.

NANIE,:

The truth of a u'oman's testimony is only given one half the value of a mafl's testimony. .

I\IARIAM:

In inheritance,
will

a $-oman will inherit one half of what the other male sibling inherit because she already got the half when she got married.

NANIE:

because \nrn na nga, the men are the protectors and providers of women. Ang problema ngayon is men are not doing their own roles. Ano mangyayari ngayon in terms of inheritance? ^ng

And

ASM:

\il4rat about the testimony? Credibility of one half...

MARIAM:

There's no law. There's no criminal law, there's no evidence so it's not

applied here.

55

MIA:

Rules made during the decline of Islamic civilization may be partlcular to that specific time and place. The context in which those rules were made have to

be considered.

Rtr,NE,DICT: Is that in the par'an? N,IARIAM:

No, it's rn the Hadith.

The problem is that, it is taken out of context fra f\am fi. At that time when it was written, women \\.efe onl,V at home, walang kaalam-alam. hindi engaged sa business ng husband, no education and all. I{aya nung ma-feveal yung vefse na 1un, it 1-as interpreted that war,r. 11 was taken out of context. Yung mga interpretatjons, u'htch up to the present, has been carried out are s()urccs of bias against \\'omen.

NANIF,:

NIARIAN,I:

Ang magancla lang dito sa Shari'ah l2rr', the evidence that the,v use is also the same that the! use in court. The iclea behind tl-re testimony of women is that, one is a witness and then the other one is to remind the other in case of a memory lapse. This means magkaiba dau' anq role nila' Ang isa dun is reall.l' 2 real rvitness' magre-remind lu.g vtr.g isa, It does not mean that the rvoman witness is of lesser intclligence or oi lesser capability. The fact lang na kailangan mefong magremind sa kanla, but it's reall1 taken out of context. The rdea behind that vefse must re\ e21s na it rvas a way of introducing women into socretal Life' Parang begtnnins ito ng gender equali6, sa Islam. That is wh1' at that time isinal na sila even in testimon\-. Yun ang pagkakaintindi ko.
So what about no\\' na cducated na yung women?

NANIF,:

NANIE,:

MARIAM:

So l.ung Rules Rule s of Court.

of Court mas advance na. Maganda nga na ginagamit

,r'ung

BENEDICT: Pero would that be acceptable to Muslims? Pano kung she does not
the rules of cout?

accept

NANIE,:

don't even think that the Rules of Court are totally against Islam. Merong nagia-jive naman. IIav mga format lang na sinusunod.
Merong nagmention eai:.et about education. I think it would be better if MusLii are provided an education founded on an Islamic system and making peopie see that Islam can be a solution to their problem and improve their practices. But the problem now is you educate them, what kind of interpretation would you impart to them?

MIA:

ASM:

56

NANIE,:

I{asi upon analysis, kailangan talagang ire-format anl mga books and make them applicable to these dai's.

LINDA:

Actualll' there was this tertbook, ma\, writing on Religion, Social Studies, English and other subjects. It's for elementary and secondary but the textbooks wefe not disseminated. For what reason, I do not knov'. Thet' iniected Islamic values in elementan- and high schooi lessons but it rvas not disseminated. Athough, I x-as told bv one friend, who was with the grouP, that there was a great debate rn the drawing of pig in the textbooks. But in my opinion, Muslims must be educated universally. Otherwise, N{usLims wouid not know na pig na pala r-un. It happened to one of my sons when he was still in grade four. trlistake ko. So, I got a lesson. In fact, Muslim parents must have a field trip in restaurants to show the meat of a pig sa children for them to see the dtfference.
So anong books ang gtnagamit sa AR\IN{ ngavon?

BENEDICT:
LINDA:

Eh di national books. But then, thete are also teachers who can help. But univetsal teaching is r-en- much imperative. But marami pa ring a)-aw ng
picture ng pig because it is unlslamic. But knowledge is power.

1{-t

minute break

II.
ASM:
reading, I har-e stated that the concept of democracl and the attainment of peace are interconnected. Democracl' connotes partrcipation of everybedy affected or, ar leasr, u'ithin a certain territorial realm. In terms of Muslim women, I s-ould hke to tirst open a discussion of how the concept of democracy is vierved in Islam and what about women's participation in democracy. I{anina kasi it was alreadr- stated that in leadership, p^r^ng may question because you knov' s'hen r-ou sar- democratrc participation, it doesn't only denote participatron as grr ing of opinion or being consulted, it can go beyond that and of course the leadership question comes in. So maybe we can start with the concept of democracy and then the participation of women.

In my [mited

LINDA:

Actually the par'an is the root of the rights of women. The only thing that women cannot do is lead the prayer.

BE,NE,DICT: How would you define democracy?

ASM:

In the discussions in

December they were really prepared

to

define

democracy as it is popularl1'known.

BE,NEDICT: \X/here does sovereignq' reside from?

57

ASM:

Sovereignry resides in the people. Power emanates from the people.

BENE,DICT: May contrast ba with Islam ang concept na'to?

LINDA:
ASM:

As I've said, sovereignty resides above. Mankind is just the trustee.

So, ano y-ung concept ng democr^cy, is
leaders?

it

exercise through Allah's appointed

LINDA:
MIA:

Allah did not appoint leaders.

Politics is a human issue. There is no "divinity" in men, special knowledge, or special pov/ers. Leaders have no "special connection" with Allah. There is no clergy, no church, no divinity attributed to leaders.

ASM:

I{aya nga that's why Islam is against monarchy; favors trusteeship and requires consultation. I think that is the concept of democracy that we were talking about. It is also a question of some concerns raised with regard the plain meaning of the Philippine Constitution which they found quite problematic. But in general, )'ung concept of democr^cy, what the men are saying, is not really incompatible with Islam. That's why Islam cannot favor a monarchy. It favors trusteeship and consultation but of coufse pagdating sa consultation, then sino prng kino-consult? To what extent can women participate in the process? Is there a conflict again between what is stated in the par'an and what is tradition dictated by culture? Even in the Christian world, I mean in the whole Philippines, there are of course more men running the country than women. Even in the services, hati. I mean in the care services like social welfare, you find women. But in terms of course of
other agencies it is really full of men. So how should women parucipate in the democratic process? Of course there's also a question of kasi in the draft report of the NCRF\il, yung validation there was this small report saying that in terms of education in the Muslim region, they find that there are mofe men than women who are being educated. And when you participate, I think the minimum is we should at least be informed. Otherwise, how can you participate if you are not properly informed? Yun y'ung sinasabi nila as to the credibility. If you're in the house that's where I think that the testimony of a woman is only half because she iust stays there. So it follows she's not well informed. Same here. I mean, yang education level. Is it a problem and of course with factors in terms of participating in the democratic process? What is democracy?

MIA:

Islam is not against consultation. There's an Islamic concept called Shura which is consultation. In fact, the MILF conducted consultations with a cross-section of the Bangsamoro people. But democracy cannot be equated to Shura. I can imagine these concepts have different underlying
presuppositions.

58

ASM:

Having said that, of course if we look ar the commonality and the divergence, it would be the same in terms of consultation and participation. And that is the essence of democracy to be able to be consulted. To be able to be heard in matters of concerns affecting everybody and to be able to participate in the areas of decision making. So how do you find the women to fill in the matter dito. Ano 1'ung level ng participarion that is democratic? There afe women leaders.
So in leadership hindi

LINDA:
AS\I:

ito problema.

LDiDA:
AS}I:

No, in our city we have a mayot, there's a women in congress.

I cited Cory and GMA. They ran and won but behind them were the husband and the father. I think nakakabit pa rin. Dun sa mga
In
these women,

nabanggit niyong people of your city?

LTNDA;

Still, there is the shadow of man, the shadow of their husbands. Sometimes we have to look into the capability of the women who are running for this political post. But still the husbands or the gre t foref^thers are always behind that.
So 1'ung consequence siguro is how much can be attributed ro rhe patrtarchal society.

BENEDICT:
MARIAM:

For

a woman na nung kinukuha nya )'ung gusto nya, it's frowned upon. have to go in the flow. You don't have to consuk everybody.

you

ASM:

Going back to your drawing.

MARIAM:

In

terms

of participation, that's

because

if

women can run for positions

because they have consulted their husbands otherwise without the support of these men hindi sila makakaupo. And rhen rhere's a belief that y-ung babae, cage or karugan; she can only do so much if she has education. There's a

beliefna karugan or
ASM:

cage.

Does education factor in;

Yes.

in a general sense you can almost surmise education factors on whether women could really participate fully or not.

MARIAM:
i
i
I

ASM:

Meron bang favoring of men or boys as priority in education?

i
b

MARIAM:

oo

if a man is qualified they will prefer him.

ASM:

syempre, priority Frng lalaki talaga. For example, for board membership,

&

what about

1,-ung

in terms of more and more of civil society organizaions

being consulted? Are rhere more women NGOs sa inyo or CSOs?

59

LINDA: NANIE:
ASM:

CSOs in Marawi City, at saka maran'i ring books of women'

Yun na nga, so much has to be done, empowering them.

Is there a resistance with the issues been raised by the NGOs, the CSOs? Wala nzmang resistance. Yun nga lang kailangan levelling off because we afe very careful; baka magkaroon ng reactions from the main Ulama as well as other male leaders. E,specially the Ulama kasi kapag umalsa ang Ulama and they will be against the NGOs or CSOs, problema na ),'un kasi the people believe more in the religious leaders. So we're more careful in that sense. Kaya nga ang sabi nila levelling off stage muna. lfe'te careful in forming a consoftium. Mahirap yrrng kaagad-agad may consoftium ka kung iba-iba pala ang kanilan g mga paniniwala.

NANIE,:

LINDA:
ASM:

Our group is composed of all married women, beautiful women.

What rs that primary mission of your organization?

LINDA:

First objective is to pfomote sisterhood and brotherhood among Muslims. We also have the economic upliftment for the Muslim and it gives us the initiative to be one as a famtly.If you are a Christian who married a Muslim, meron ding discrimination. We formed the community where we have Christian women married to Muslims including our children and other descendants. This is to prove that we afe not a liability but assets to the community. Because other women or Chfistian women mafried to lt4.aranao or maybe Maguindanao, they feel some discrimination, hidden discrimination
others tell us.

MARIAM:
ASM:

I think

the Maranao men still are expected

to rnatryMuslim

women.

What about the Muslim women marrying to Christian? Pwede as long as the man convefts to became a Muslim. Basically, as a general tule, a woman should mrty a Muslim man. It would be better for a woman to m fry poor Muslim than a Christian pr-ince or English prince. Yun prng Hadith. So, because of that, there's a stfong fesistance in Muslim women marrying Christian men. Mostly those who marry Christian men either they run away when they get pfegnant or, when she really loves the man, fights for him and then he agrees to convert.

MARIAM:

I,INDA:

Although if we look into the definition of democracy we find, it says it's a govefnment of the people, by the people, and for youl people, it's Islamic. When you say Islamic, the rulers are obliged to do good. Lead you to
righteousness.

BE,NE,DICT: So there's no separation in the religious system?

MARIAN{:
ASM:

Yes in the MusLim socieq'. The Sultan is supposed to be the IMAN{.

From there we can go to the question of self-determination. I think that is the root cause of conflict. I mean from the RTD in December, the denial of the right to self-determination oi the Nloro people and its stake in the peace processis is a major factor. I mean, that's the end and the short of it of the discussion. Yun y-ung cause and u-hen they say self-determination it is not only political, actually cultural. So do lou agree that it is mainly the cause of
the conflict?

MARIAM:
ASNT:

Yes, ganun ta\aga.

are in agreement, the question of selfdetermination is ven imporranr. even lloro women afe in agreement with the Moro men. Self-determinadon is a very important issue rr,'hich the go\refnment should inr-est and should recognize as to how to articulate the recognition. Having said that \-ou agree u'ith the issue s of self-determination,
meron pa ring hilvalar- na issue, his-alar' na concefn ),ung v/omen,

I think the N{ushm \\-omen

N{ARIAM:

$Vala pa,

hindi pa na-s'ork out.

LINDA:

In the traditional
It

s\-stem, rf there are womerr intermediating or mediaung with the conflict, mas nalo-lo\\-er \-ung intensitl-, 1.ung tension.
has been proven alreadi- to anv n-pe, an1-where, meron talaga na stake ang babae sa peace burlding, peace resolution.

NANIE,:

where I'm right, and in my mind.

NTARIAM:

would like to quote; na ma\- isang kasabihan: I can always achieve Islam I can als-als do: Ako gusto kong magawa r,'r-rng in my heart

I{asi nag-aral na nga kami, ba't hindi pa rin kami matanggap. Er,.en in the govefnment positions, makapasok man sa top, mahuhulog yun sa pagdagdagbawas. I{ahit papanong prlrt namrng mag-aral at makibagav, parang OP pa rin; out of place pa rin. So sabi ko u,ag na lang, hiwalay na lang. F,ven yung prejudice, made-disappornt ka lang sa kanila. On the other hand a1so, it's not that I'm in favor of but on the other hand, marami rin sa ating mga trIuslims ang mav masamang ginagawa kaya pati mga Christians nagdadalawang isip na rin. Are we really good or what? I{asi maraming pangyayari sa atin na mga kasamahan natin ang may gawa. Sa akin lang 1-un. I(aya on the other hand, meron din tayong mga misgivings. But there's still discrimination. Our praying five rimes a day, fasting, in rhe Civil Service Code, it allows Muslims to come early at 7:30 and then leave at 3:00 o'clock. I{ahit yun hindi nila pinapayagan and then Fridal', our prayer, in Manila they would not allow.
61

NANIE,:

MARIAM:

BENEDICT: Hindi

nila pinapasunod y.rng policy?

MARIAM: NANIE: THESS:

Yes, it's a realtty.I(umbaga, 1.ung discrimination is so deeply ingrained and so

systematic.

Bur secession should be defined so that especially sa ating mga kababaihan, alam natin kung ano ang ating role.
V/as there any move to unify who among in your groups na at least there would be a woman na pwede nyong i-vote na you think as siya 1'ung, she can carry over )-ung perspective talaga on women? Was there a move La m gunify?

NANIE: LINDA: ASM: NANIE: ASM: SARAH: MARIAM: I-INDA: ASM:

We will be holding a congress ngayong early March. 'We will be holding congress of women and other NGOs so that we can address that issue.
That is an attempt to unify some of the women, ladies. Is this process enough that women are being consulted?

Panngcivil society is already around to obserwe yata. So

mean, not only a woman but a woman who would raise women

concefns.

Why is rhere an absence of a strong woman Muslim leader?

It would lead otherwomen to destfoy, inggit, ctab mentality.

Actually, rruth ro all, universal act ang ctab mentality, if we enter politics.
So, women are discomforted with seeing other women their not so used to being tough.

in power. Parabang

MARIAM: It brings down many womefl. ASM: MARIAM:

I
remember when you said when you passed the bar; sabi mo you were the onlv second or third Maguindanaoan? First, first Maguindanao woman na nag-aral sa Ateneo College. And then there are only three women, three Maguindanao women lawyers. \X/ala talaga masyadong nakapag-aral at kung may napag-aralan man, they will pull you down, inggit basicallY.

ASM: MARIAM:

Not because you belong to a political family.

But kumbaga nalamangan mo sila.

62

ASN{:

And you think when you separate, this concern will be addressed? Would this not be addressed in empowerment?

MARIAM:

Hindi ko pa alam pero gusto ko talagang i-try out

We will try but

1'ung Islamic state.

LINDA:
ASN{:

if we

are accredited fully'.

as

So aside from self-determination which is big in itself, what do you see other root cause of the conflict?

}IARIAN{:

The economic, they don't want N{indanao to be separate because of the rich
fesoufces.

ASM:

Let's go to the most obvious consequences of conflict kasi I think it has a heaq' impact on the women aiso, and children, and displacement, economic dislocation giving rise to poverty, outward migration and er-en prostitution. And then the development efforts or initiative programs for rr,'omen and children. Are there any, do 1'ou have an\, information or thoughts in displacement? Even in the paper, it's just generalized under families but impact on women's and children's concerns kulang na siya ng focus. It's nadislocate, 1.ung refugee naging internal refugee. Pero tapos na. Was there violence? Ano y-ung economic policy? Saan na napunta yung mga bata? Ano ng nang-y-ari sa mga babae? It's welfare. Yung na-dislocate, iapX.'an mo ng evacuation center. Yung efforts feeling ko, looking from the outside, par:ang dun lang y'r-rng nagiging commitment at saka wala rin sigurong sufficient information.
Walang national policy.
So what do vou

LINDA:
SARAH:
NTARIAM:

think about the government policy on the war?

It

should not declare war.

ASM:

Oo yrrng declaration, all out war, total war.

Maraming frmaman dun sa giyerang
y-un.

NIARIAM:
ASM:
NTARTAM:

Somebody from the mifitary was saying

business.

it will never end because it's a

ba there's money in conflict?

Yes, y'ung pag-supply ng food, ng arms.

Sa

Di

ASM:

NCRFW you were saying that it has been conducting trainings on women and Muslim women also pero napigil because of the resources.
Lack of funding. We were supposed to have that project to help ARMM. We were supposed to be having talks with ARMM.

MARIAM:
ROSCEL:

63

ASM: ROSCEL:

What kind of training was Planned?

Thiscaterstosffengtheningtheirinstitution'Itwast"qP^"-t:'1'"'l:t^l reglonal the program of the ARN''N{ orgarizewomen "t'J-tt'"i' ^itnd^into

govefnment.

ASM: ROSCEL:

in the training? What would be the topics

And then women and politics' decision Basic, general areas on women' and we were them' I think October yata siya' *ttt rted"tJ'Aft st We making. did not push through' invited by the RCpW bot things
Is this the women's desks?

LINDA:
ROSCEL:

No, it's the RCPW'

Because there were proposals no women' there are so mzny desks but

LINDA:

tirne' on wornen's desks' As of this

sa

maybe

ASM: ROSCEL:

ba yung ARMM In the local governmerlt' oo' Kasama

GAD' hindi?

na si dapat kasama sila' Since bumaba Nur si bumaba sana nga Before, bago ng Tripoli t" "g problema"bumabalik na yung issue Nur, tapos anong m^ngy^yafl' s^

Agteement. So

""gkJ;;;t t"dyo "'gk"'oo" ng problema kung nRruvrp"gu'''-'b^"''-'i.rto"t-"*:'.ig,"f ;*:f,ffi #H:t:'Hff: t'uiru"i r"'. *" - n and ;;J"g l'."ii;;il : i:i:' ffi:"ff ;'il-}T::r
e

builling transformative commutufles'

Was this training started?

ASM: ROSCEL: ASM:

Not yet' this

year'

needs ftarnework' nagkaroon ng training yung na-formulate So papanong assessment, mga ganun?

ROSCEL:

to Actuallytheconceptual'centralframeworkwasdonein-Manila.Itwaswith it's an NGO' Their track is irr'pori,i.t, pacific women Asii the central for leaders get oriented politics then helpiing women t" *t'; ;; orgatize*o*"" At that time' coufse feminine in petsp-ective' -So is'of tiat rr"to".-orr. to a new she asked us to H^nia Buy"o" Karon' one of our particiPants was conflict' so that when we to*-onitit'i" framework' the in "-td consider startedtheplanningtheframewo,k,*.wilistartbyconsultingnewleadersin the ARMM'

ASM:

Haveitreplicatedifit'ssuccessfulltosi"HaizBaynonKaron"'Federations
United Mindanauan Bangsamoro'il(omen?
64

ROSCEL: LINDA: ASM: LINDA:

Oo.

The sustainability of the project depends on the budget.

changed, nababago rin.
\Wala bang mafor plan that even

If

politicians are

if they come

and go,

it would not affect the

project?

The sincerity is very much needed in everything that we do considering the issues ofconcern.

BENEDICT: Is it true that many believe that it's okay for their leaders to steal since pera
naman yan ng impedal Manila?

MARIAM:

That's a sentiment. For them, there's no loss. The thinking is that it's a foreign government, it's a colonial power, )'un ang belief pa rin. Yun ang mind set.
grassroots?

BENEDICT: Is this among

ASM: ROSCEL: ASM:

mean, I think that's an issue raised also by the devolution govefnment.

of the local

There's no LGC in ARMM, local government code. Like one barangay they have the IRA, the allotment from national government.

It's good with the NCRFW, we have some an agency which monitors the GAD. Kasi before that, they were saying you know they don't even know
how to do it.

BENEDICT:

for a m^yor to have a new pajero and you don't have any budget for youth group?
So it's okay

MARIAM:

This is the Moro mind set. Punta ako kay mayor kainan lang kayo. Mas mabuti pang ibigay na lang sa kin )'ung pera kesa sa invest it on a road and I will not have any money. Yun ang mind set.
So, pano y'ung okay lang binigyan ka? So the point is the immediate.

BENEDICT:

ASM: MARIAM:

They would rather have the immediate. Give it to them than invest in projects like roads. I{ung ganun ka na tao, if you are a politician who implement proiects like my father, talo ka next election. Hindi ka nangungurakot, ini-implement mo sa project, talo ka.

65

BE,NE,DICT: Haiimbawa, fray nama,t^yan ako, manghihingi ako kay mayor, pero pano kung si mayor puro pajero lang binibili, okay pa ba y'un?

MARIAM:

Tanggap nila yrn, kasi Datu ).un di ba, kumbaga meron pa ring ganun na pinapractice.

ASM:

think it's also both for the majority of the Filipinos. That's why there was the time of ERAP kahit naghihirap na because of the kurakot, they don't see the connection why they are now poorer and ERAP got, well, richer. I mean the NGOs have been empowering the grassroots para maging self-reLiant. Isang kain lang ni ERAP with them, nagkamay, dis-empowered ulit, beholden ulit. Because he ate with them. Kaya nga we really need to educate.
Yes, that's why it's good that we have OCWs. They tend to see things in different light.
a

MARIAM:

ASM:

Oo, that's one thing also na I think the NGOs should see. It is good not only because there is remittance but there's also parang wider perspective of things. And maybe when they come back they won't be so disempowered. \We are used to negotiate things. \We don't tead, we ask people. You don't research when you ask people. It's really that way. Minsan pm^flg nagiging helple ss ang mga tao because of the practices. There many others who do not know their rights. ^te The government is seen as a colonial power.

NANIE,:

MARIAM:
ASM:

Is there a difference of opinion between and among the Muslims? Does it depend ba if you arc from Maguindanao or you areMaranaw?
About what? Yung sa solution sa peace issues. Does it come within the regime of Islam? I(asi meron din autonomy, di ba?
Most of the people siguro they don't even know, they don't care.

MARIAM:
ASM:

MARIAM:
ASM:

And those who care are really not sure what is being offered because there is really no information on what is in it for the women.

LINDA:
MARIAM:
ASM:

There are so many different views. There's autonomy, federaLism

secession.

and

For the meantime, federalism ang gagamitin.

But whether federalism, autonomy or secession, women's issues should be heard. And we should parttcipate. We should be more enlightened.

66

Enlightened enough to be able to conduct a meaningful consultation. To participate and be empowered enough to be brave to face all the men.
SARAH: Even in Christian families, iust to keep the peace in the family, you tow the line kapag magkaiba kayo ng political beliefs ng patriarch ng famill'. Bihira rin
ang sumusuway.

ASM:

Yung sa RTD last December, one of the recommendations is human rights education because we were talking about not only about conflict but yung mga arrested not only in times of conflict. Yung mga nasa militan, there should be more Human Rights education, and also in the areas where rampant lrrng human rights violations. Nfuch of the violation happens when they don't know what to do when thev get arrested, when they get iailed.
schools, it must reallr- start in the basic educationelementary, pre-school and high school. UNESCO sponsored this ptoject in Lanao and we are empowering schools from grade school to tertiary level tcr work on more of the basic aspects of human rights.

LINDA:

In fact from one of the

ASM:

This morning I was hstening to the radio and the Undersecretarv of DECS was saying that they conducted a study on first year students. Trvo thirds (2/3) nung first year students could not have passed the exams in grade six. It's realiy a deterioration. And now, in public schools, you see some of the students brought in by cars. It's not that these public schools cannot have rich students but it's the middie ciass who cannot afford anymore the prir.ate
schools.

BE,NEDICT: NIARIAM:
ASM:

Sa

Ateneo di ba triple ang taas dun?

Pero one out of every four is a scholar.

So maybe we can now lo to the recommendations. I think they have been articulated here and there. I vu'ant to listen to each of \,ou in )rour own areas of concern and siguro a Little dun sa NCRF\I kung ano pa ).trng magagawa nila for the N{uslim women. I{asi pag tiningnan ko lang vung website ng NCRFV/ wala eh. Very useful information kasi )'ung sa NCRF\(/. So ma,vbe 'we can start with The ss.

THESS:

from N{indanao we have started already like integrating gender into the curriculum of N{ass Communication and Communication Der,'elopment. Actually tapos na siya recently. We have launched the modules sa Cagavan kasi there are four participating universities like the Ateneo de Cagal'an, Notre Dame of Cotabato, S(/estern Mindanao State Universitt, in Znmboanga City', and the Ateneo here in Davao. And then aside from that, u'e are also starting to integrate, here on the initial level pa lang, integrating gende r again into the curriculum of Psychology in Mindanao State University in Marawi.
So parang, is it hke )rou are developing the four common modules?

I think

ASM:

67

THESS:

Yes, it's a common module among the four. And the faculties involved ate also coming from the four universities. And this time n man if you're going to Marawi, the faculty of MSU Marawi will be involved in making the modules. So aside from that, also the DS\fD here in Davao is helping.

ASM:
THE,SS:

Wala namang problema s^

mg

Deans o sa mga universities?

I{aya nga ang first step is to have consultation with the Dean tapos we will come up with a sort of memorandum of understanding or agreement. And hopefully, kasi na-launch na siya, and then meron kaming mga pretest to gauge whether it is effective or not. So far, ok naman siya. We don't have any problems or difficulties yet.
Sa College to?

ASM: THESS:

Yes sa college and then aside from that, also lung integration of gender into the curriculum of Nursing and Medicine, we've started that here in Davao. Yung Davao Medical School Foundation, it is a consortium of private schools wherein Ateneo, San Pedro College are members ng board. So basically, )'un yung aming marked pagdating sa gender mainstream'

LINDA:
THE,SS:

In MSU sino ang kausap ninyo?

Si

Dr. Berrua, with Al Mujadilah Foundation.

LINDA:
THESS:

So you are working on it? Yes, we are working.

LINDA:

Because Professor Manny Tabafro is also from the university are making moves na. Tapos na )'un but the issue is which college will implement. Fof convenience, maybe you can connect with them so that they could justify the offering of Mastet in Arts.

THE,SS:

Open pa rin.

LINDA:

Yet so many violent reactions. The chairman, the committee has to revise the curriculum. Medyo isang subiect lang, p^r^ng may resistance na.

THE,SS:

try because right now we'fe also trylng to integrate gender into the curriculum of Midwifery in Indonesia. So perhaps 1'ung experience namin in Indonesia ma-convince sila, makatulong din 1'ung
Sige lang ma'am, we'll
experience.

LINDA:
ASM:

One problem that was raised of the issue of marketability.

Is

it

an elective or required?

68

THESS: MARIAM: THESS: MARIAM: THESS:

Required siya because

it includes a malor subject. Lahat-lahat talaga

siya from

first year to fourth year.

\What about those who cannot afford it? Those who cannot afford to go to
school?

No, we don't have a progr^m for them.

Yung the one's who need it most?

Pero more on focus talaga namin is in gender reprohealth, gender and sexuality taPos ang concentration namin ngayon is more on integration ng gender into the curricuium of different universities.
So

LINDA: THESS: LINDA: THESS:

it's an integration flot

as

as a

per subiect?

Not

per subject.

Ii-integrate in one subject. What partrcular subject?

Almost all, subiects fike for example PolSci, the basic subiects like mga English, Psychology, Economics, meron na kaming mga modules. If you would like, I think ang Almojodila may copy na sila nun.
So targets mosdy is the people who are

MARIAM: ASM: THESS:

in school.

The one's enrolled in the universit) ganun.

And we don't worry we have the G.I.As in Ateneo and then we have those Muslim scholars in Ateneo and then we have thrs N'Iuslim organization also for the students. We have coordination with the Notre Dame University and
Ateneo.

ASM: THESS: ROSCEL: ASM: ROSCEL:

Maybe your scholars could develop among themselves a module for the
grassroots also.

Pero kasi depende yan sa vision, mission ng isang organizatson. More on training and advocacy and integration of gender into the curriculum.
Nasabi ko na y.r,rng project, it's actually a five year program )rung capacity building.

Until2005?

Simula lang ngayon, ngayon pa lang.

It's the Federation of

United

Mindanauan Bangsamoro \(/omen Multi-Purpose Cooperarive. It's headecl by the incumbent secretaqr of pFW.

69

ASM:
ROSCE,L:

It's Haja Baynon I{aron.

The paradigm shift of new politics to prepare societal

So it's a training of women on gender and orienting the youth about politics.

organizations, government and the NGOs. Support somebody who will espouse a women's agenda and then make them accountable for the agenda.

MARIAM:
ROSCE,L:

Ilang edad ).ung mga babae?

Adult na.

MARIAM:

I{asi kung minor, madaling ihubog. Yung adult naka-sol,id na yrrng beliefs
niya.

ROSCE,L:

\(/e're looking

funder. There are series of consultations. ^trg Last week of January they were able to meet representatives of youth organizatrons and then orient them on this paradigm shift. I don't know about the selection of the participants because we only provide the assistance to the cooperative.
perceptive. So ang UNDP y^t^

^t

men and women. Medyo transformative nga

)-ung

LINDA:

You mean you afe now in the cooperative? For all women that are members of the federations? \7e are in partnership with the federation.

ROSCE,L:

LINDA:

It is
I

federation, so

no need of cooperative who are members of

the

federation? ROSCE,L: suppose so.

MARIAM:

As educators I iust like to ask: Sino ba lung target? Na you start with y'r-rng mga hindi pa masyadong edukado, or you target those who are within schools? As educators, would you invest in someone who is fully educated na or )rung may intelligence ba or )'ung normal student na or )'ung mga ignorant talaga? \X/hich one would it be?

ASM:

on how much funding you have. Like if it's limited, like ako I'm a regalar resource speaker for the PhiLippine Judicial Academy, which means I impart additional information to iudges. But I'm saf ing always that you knorv we should conduct gender sensitivity or discuss violence against women sa judges who are not fetifable. Because you know there's no mofe fetufn of investment. They don't even believe in sensitivig, and they will retire shortly. Invest on those young iudges. If you really have an advocacy on the youth, then it's also empowerment. \We go directly to the children. But I would also train the advocates who couid muitiply, feplicate so it's a ttainer's training. And in connection with that, I'd like to, kasi we have a regional training which means there's going to be a

I think it depends

70

training of trainers on a regional level tapos it's going to be held in Ateneo in Manila. Pero the partners are the Canadtan Human Rights Foundation, the APS(/LD in Chang Mai, and Migrants' Forum Asia. It's training those who can train also within their region on migrants' rights. I(asi sabi ko, I've aheady sounded to the partners that if I find somebody who can, who is actually into that, an NGO or a possible participant from Mindanao, I will extent an invitation. For information dissemination on the migrants' rights kasi nandun na )'ung convention. Five days IUn, madami so kung makakakuh^ sana ako ng isang participant from Mindanao who can actually stay during that 5-day training and then come back and replicate it. If you have suggestions, please tell me. MARTAM: So the reality is purely limited to budget constraints. It would be better to target those who are professional, well educated. Pipili ka talaga.

ASM:

And as an NGO worker parafig you cannot spread yourself too thin. So I
think pinakamahalaga sa inyo 1'ung bumabalik pa rin, how much can women participate, meaningfully from the interpretation up to consultation.

MARIAM;

The men should be convinced siguro kasi prn naman ang leaders natin.
Sustained women participation par^ nalilipat y-rng lines.

LINDA:
ASM:

Among NGOs ngayon, ang laging naririning natin is ang mga funds are talagang for Mindanao. Pero meron din kaming naririnig na from Mindanao na hindi ninyo naman nakukuha. Tsaka, kung meron man, hindi 1-ung issue na sa tingin nila dapat paglagyan. Somebody was mentioning na they wanted to establish a PTA. Parang garlun lang kaless relevant 1-un because of all the other more important issues. Is that true, I mean sa inyong experience? Nararamdaman nyo ba yung buhos ng pera? Pera pan sa l\{indanao?
I{asi kami, we had it sa cooperative during the ERAP time. The 1 million in that Lingap sa Mahihirap Program, we had it. And now?
Maraming mahihirap, wala pa rin ngayon.

LINDA:

ASM:

LINDA:
ASM:

Hindi na-sustain?
Pilian nalang kung sino ang bubuhusan.

MARIAM:

LINDA:

And, it depends on the credibility of the person getting the fund. \When we were giving that 1 million to 5 barangays, poorest among the poor, the Buklod Multi-Purpose Cooperative, our cooperative, first thing I did, I called on the 5 chairpersons, who took into their listings of these mahihirap, mahirap sa mga pinakamahirap. Thirty families for each banngay. Sabi nung

71

isang chairman) "sa 20 dito, isa lang ang kilala ko." So, throughout the Phil-ippines pala, the same problem v/as occuring. Sa NCR, the same. So when I heard that, I requested the cooperative women in the Philippines if we can change the names. DILG pala ang naglagay ng mga pangalan. Fortunately, one of the barangays, barangay ng father-in-law ko, chairman y-ung aking brother-in-law. Among those who were listed, there were mga may two-storey houses. Hindi sila poor among the poor. So we had them changed. We requested the mayor for a change. Because I said, in the cooperative, our only capital is our credibility. \X/hat we did, pumunta kami sa mga barangay, talagang binigay namin yrrng cash dun sa mga mismong poorest among the poor. So the funding that you are saying, it depends on who we are funding. Let's not focus on sinasabing Islamic values but it is the values of the people itself. As long as you have the capacity to give, we really have to put it into y,lng sinasabi mong funding na hindi useless. Because baka hindi nare-reach out )'ung dapat mong bigyan.

MIA:

have a recommendation: I think Islamic scholarship in our country should be updated. I suggest bringing resource persons into the country and giving the Ulama and these people who control the communities more exposufe outside the country.

NANIE:

We are about to expand the popularizatton of women by Muslim laws like the CLVL and popularlzation of other laws which are related to the ARMM. Kasi of course maraming laws na walang may alam.
Oo, the acts of trafficking, qualified trafficking.

ASM:

NANIE:

All

levels, in all sectors very basic yung gender sensitiviry training. Yun nga sabi na we will be encoutaging itong development in curriculum itong gender sensitivity. Sa group namin, we have been, now at present they were serving all three (3) communities where we do a community based health program especially for women. So this is where pumapasok ).ung strengthening of CSO.
Parang )'un ang presentation sa Manila.

ASM:

Di ba there was a study on the CSO.

NANIE:

Then we also have community projects concerning women in the community and health. Pumapasok pa rin dun sa sexuality, gender sexuality and rights as well as peace issues. As I said, I noted in the tasks yrrng new research on these arguments about women, and then we try to popularize this. We will also be doing women in politics as well as voters education this March. May special focus din on reproductive health concerns. So what I mean here is that, we can expand such process in all other areas. Basically, we're focused on peace as well as women's issues in general like reprohealth and gender. So what I mean here is, it should not iust concentrate in these problems pero sana mag-expand pa 'to at saka ma-sustain in other areas. Regarding of

72

funding of in Mindanao there is really that feeling of influx of funding in

local governments in Mindanao or in the ARMM. ASM:

There is that feeling that you don't like the funding that goes through the local government or agencies. On another point yrng sinasabi kasi ni YamYam kanina )'ung sa curriculum, kasi kami sa Center, we try also to introduce electives in law school. Limited and yrn hindi sigurado I'ung clientele kasi walang siguradong estudyante prng elective pero we try. So si Sarah, she introduced yrrng law on conflict, humanitarian law and basically idine-discuss nila yrng issues sa Mindanao. Aside from introducing elective subjects related ro human rights law and humanitarian law, v/e try to replicate the internship program of the Ateneo Human Rights Center. The main purpose of the program is to mold law students to become future human rights lawyers. So we invite Law students from all over the country to join the program. Afterwards, they form their own internship in their respective schools and provinces. At least, kung sila mag-alternative lawyering, may human rights awareness na sila.
So far, Pamantasan ng Lungsod ng Maynila is replicating, Xavier University is

SARAH:

ASM:

replicating, University of San Carlos in Cebu, Palawan State Universiry are also replicating. Kailanganlangng funding so we can't get so many.

LINDA:

Just like what they did

in Masters in Peace and Development, they concentfated in Mindanao, we alteady have Xavier, Notfe Dame University, saZamboanga MSU.

SARAH:

\il/hen we teach a human rights elective like humanitarian law, we try to educate them to the nature of the conflict. Siyempre meron ding biases ang mga students. And we try to show them the issues behind the law and the politics behind it.

ASM:

Tsaka pagka-elective kasi iba yrrng, medyo relax in a sense na hindi masyadong theoretical. Sabi ko nga kasi, I teach gender and the law. This is
the only elective so far ngayon na mahalaga )'ung personal opinion. Alam mo n^man sa law, ano ngayon kung personal opinion mo, pag mahyan, mahyan. So very interesting and we also take up one session on Muslim women. Siyempre we're just starting and we're just also trying to take it in iusr one semester. It has to be gender one and two para mapfoseso ng mga
estudyante.

SARAH:

And I think, because it's law based, tulad ng armed conflict, it's very heavy.
'J7hy hear,ry?

MARIAM:
SARAH:

It's

hear,ry because

of the Geneva Conventions and a lot of Internationallzw.

73

BENEDICT:

always prioritized Muslim Mindanao. Then there arc other projects na paisa-isa, human rights project, sponsoring halimbawa majority of Filipino immigrants and also we were imparting counseling and the youth projects. Right now we just launched this new global opportunities fund. Right now there's a project we are negotiating with the UP College of Public Administration that has ro do with the DILG.

In

terms

of the British Embassy we have

GILL:

Ok, I have probably done some work which counrs in Mindanao. \X4ren I first arrived a couple of years ago, I came in and was told we could not work in Mindanao because but it's too dangerous. And I said "sorry, don't buy that one." I think working in Mindanao is part of the British Council's mission. I was very lucky today to be in Marawi within 3 months of being here; I had discussions with them, and it's about the issues, their perspectives, culture and tackling the state of education. With the strength in my resolve, we worked in Mindanao and we worked to make sure projects looks at the issues of education. A couple of trainers from the UI{ came to run a workshop on conflict management, different cultures and varying perspectives. We brought together people from academe, NGOs, students, religious leaders and other leaders and it was successful. Then last year we started looking at the education of the Ulama by working with a great member of madrasa teachers in the Marawi area.Vle were working to facilitate stronger ties and probably facllttate integration as you will, but looking at the language issue because we rcaltzed that madrasa school teachers are educators but they have problems with English. They are very good academics, very great academe people, but they have to pass those English tests. And so unless you talk about that communication mode, then we'Il have some problems with integration.
Please excuse, this is one of the reasons why there is a gap between the religious leaders with teachers and the professionals. Only a few can cross both.

NANIE:

GILI-:

Well a suggestion in one of our projects this coming financial year should be to work with your gra;mmr and with the ALIMA. That came our in the workshop we had in October in midway. This is the feedback. So that's what we put there the next financial year.In October last yea4 we were told not to go to Marawi because it's too dangerous. I love Marawi, but there was some compromise. Then we were looking on the mediations skills techniques, on how mediations could be used and together, we had two trainers, one from the UI( and one from Kenya. This woman from l(enya is from the north of I{enya, the Islamic part. She belongs to a community herself, where the Islamic people are very much a minodty. So I think that probably the participants were wondering why the British Council brought there that black I(enyan trainer. They soon rcaltzed that they share a lot in common with the situation in Marawi. Coming up very fast now, late this March we're running the workshop on conflict management. And again we're working with the academe in MSU and we will be holding seminars rn Cagayan and so again tn Mindanao Again, we invite a traim from
74

the UK who came over to work on the very first workshop and specialize in compromise technique in women. But I would really l-ike inputs from you guys and make sure that we all meet. And we want this to be the beginning of a gte^t workshop addressed to women. And alongside, it looks that way in which our communication skills and language programs work for these pefsons.

BENEDICT: Can we also invite Malaysians and Indonesians? GILL: MARIAM:

That's right, yes.
because in my line of work, we try to setde disputes. And then litigation will be shortened so I would like to learn more skills on how to mediate and how can you let people settle or get together. I'm very interested.

I'm very interested Ma'am,

NANIE:
MARIAM: GILL:

It's easy to talk about peace but the difficult part is how to work for it. But people can be trained. It can be learned.

The main trainer is going to be from the first workshop in Marawi in September 2002. So she comes with some experience now and she used to work with Muslims in l(enya. She's a very sensitive person who doesn't ever
try to lecture and she's very good. I've fust been observing what you said and it's been tremendously useful for me and will help me to inform our programs. Listening to you and seeing what your concerns are, what your frustrations are, and how strongly you feel about self-determination and your frustration has been very helpful. So again, we thank you very much. We hope we can work in hand because our resoufces are not huge. \What we believe is that our working in partnership with one another and with you, we can help to make this work well.

ASN{:

So kung wala na,I'd like to thank you very much you'd made our job very easy, very infotmative and very engaging.

75

The Development of Legal Protection For the Indigenous Population and Religious Minority Under Philippine Law. Sedfrel M. Candelaia
Kalatubo Desk Human Ngltts Center, Ateneo Lau School

This writer proposes a closer examination of the historical development of the legal prorection of the rights of our indigenous population and religious minority in order to help crystallize the concept of autonomy v'ithin the framework of the fundamental law.
autonomy as enshrined in the factors as some writets suggest, but to political response merely a fundamental law is not more importantly it is a categorical recognition of the right to self-determination of the Cordillerans and the Muslim Filipinos. An inquiry into the manner by which colonial tulers and post-colonial regimes have treated these groups will support the theory that their clamor for genuine political autonomy rests upon valid legal grounds.

It will be argued by this writer that the principle of

SPAIN IN THE PHILIPPINES: THE REDUCCION Background

three distinct groups inhabiting specific areas of the archipelago. The inhabitants of the lowlands of Luzon and Visayas were the first to be pacified by Spanish conquistadores in the 16'h cenrury. According to one Filipino historian, the population of the lowlanders would have come ro about 667,61.2 based on the figure recorded in the Relacion de las Encomiendas of
1591.

At the rime of Spanish arrlal in the islands of the Philippines, historians identified

The Spaniards called this indigenous lowland population indios, tetm also used to ^ describe the inhabitants of their colonies in the Americas. As S7illiam H. Scott wrote, "the Spaniards quickly formed their own image of the indio - a dark-skinned person wearing pants who attended mass, paid taxes, obeyed Spanish iaws, and went only to war when the government told him to do so."

On the other hand, Scott distingurshed the peoples inhabiting the mountains of the norrhern Luzon which the colonizers referred to collectively as the tibu: independientes who "obviously did not conform to the pattern of the indio." Finally, in the Southern part of the archipelago were the Moro suhanates of Maguindanao which had the most developed social orguirtulton. The lasr rwo groups of people mentioned belong to the Malay race while the lowland inhabitants were identified to be comparable with today's Negritos who form a
distinct race. Pre-hispanic settlements in the lowlands and northern Luzan were organized into small villages. In rhe case of the lowlanders, the basic social unit was called the barangal derived from the Malay term ba/angEt, meaning boat. The northern peopie of the Gran Cordillera Central according to Scott "were independent people, not that they u'ere
* This is are-print frorn the phil.

Huilan

Rights

Monitor, February- August. 1t)90. Footnotes have bcen ommitted 76

organized into independent provinces who had no tribal governments or tribal boundaries, did not fight tribal wafs or claim descent from common tribal ancestors...rather, they were villages of more or less related persons like a prehisparic barangal."

contrast, the Southern region aheady had three Muslim principalities called Sulu, Maguindanao, and Buayan. A Muslim Filipino scholar characterizes these principalities as "political entities that had developed far beyond the simple structure of the barangEt. " He attributes this cohesion to Islamic political and social institutions introduced to the native population as early as the end of the thirteenth century or the beginning of the fourteenth century. The principalities in fact covered extensive lands in other islands and maintained diplomatic and commercial ties with the sultanates of the Malay islands.
saltanates

In -

Expeditions to the Cordilleras and Moroland

The early subjugation of the predominant lowland Filipinos gave the Spaniards the much needed time and peopie to pursue the ultimate objective of redaccion or the "process...to convert pagan people...to a crvll:.zed way of life exemplified by the life of the Hapsburg Empire" aimed this time at the northern inhabitants and the sultanates in the south. Scott explained the use of the term to clarify the prevailing Spanish policy at that
time
:

"...the vetb redwcer must sometimes be translated 'convert' but other times 'subjugate' or 'civilize'. Similady, the term pacifcatton meant not merely the termination of armed resistance but the establishment of civil administration. The
of the term, and the I-ttw of the Indiet specifically proscribed the use of the words conqaista'everything having been undertaken in total peace and charity.' Such a reduction naturallv requrred the relocating of scattered tribes and semisedentanagriculturalists into settled communities u.here thel could not be reached by clergv, tribute-collectors, and road ioremen, but where effective polce po\\ier could pre\-ent tamiiv feuding, alliances rvith non-Sparush fbrces, and pressure or outright attack from independent neighbors."
Spaniards were themselves sensitive to the implications

How did the highlanders and the Nloro respond to the Spaniards? Scott argued with to the Ygolot or Igorots of the Cordilleras that their response was "more immediately obvious than the Spanish aims" as evidenced by missionary accounts and military reports covering the period of Spanish expeditions in Igorot lands.
regard

Historical accounts of early Spanish contacts with the Igorots showed that the conquistadores were lured by the gold-rich territory of the highlanders. It was only during the eighteenth century that the reduction was attempted on the east side of the Cordilleras and later from the west side. The establishment of the so-called commandancias politico-militares or zones of military occupation around the newly created provinces located near the

77

Cordilleras and in some of its parts was not without legal significance from the point of view of Spain. Scott observed that:

...in terms of colonial jurisprudence, these garrisons were both the legal and logical extension of eadier punitives sent olt in jart retibution for sucb breaches of natwral or international law
as entering Spanish territory to attack Spanisb subjects
contraband goods like tobacco. (emphasis added)

or to sell then

Scotr referred to those shordived garrisons temporarily established by commanding officers during various expeditions into the Cordilleras. Again he cited historical accounts evidencing that Spanish authorities were aware of the legal personality of the Igorots under inrernational law. In one of the expeditions resulting in the founding of a garrison, authorities in the lowlands made a decision "that a just war could be waged against the Igorots for their offenses to loyal vassals of the Crown - and that the discovery and exploitation of their gold mines would benefit everybody concerned." In another document dated 16L9 it was similarly invoked in response to a complaint that the Igorots were denying "free passage to the Ilokanos and Cagayanes" who were inhabitants of the Christian region flanking the Cordilleras. Punitive expeditions became more frequent from 1750 until miJitary occupation of a fraction of the mountain communities in the eady nineteenth century. The commandancias politico-rnilitares unltke the garrisons constituted "actual political divisions of the colony." These were established by the middle of the nineteenth century. Initially, the military governors pursued a policy of attraction as expressed by Governor-General Narciso Clavetia who established the first of rhe commandancias in the early 1870s. This policy was to shift upon the arrtval of a new Governor-General in the person of Don Fernando Ptimo de Rivera in 1880 who introduced another method of accomplishing the reduction defined in a decree of January 1.4,1.881as follows:

"All the Filipino inhabitants of the island of Luzon

shall fall under one common legislation from this date, saving only such exceptions as are established in this decree based on the differences of education, customs, needs of the different pag nraces who occupy partof its territory."

The decree required the registration of these inhabitants as subjects and pursuant to the unsubjugated races of the Aetas or mountain Igorots wete offered a policy of ^ttr^ct1on certain advantages in exchange for their voluntary submission: "...residence together; the concession of good lands and the right to cultivate them in the method they desire or which is most productive for them: maintenance for one year and clothing uPon theif zcntal submission; respect for their customs and traditions insofar as they are not opPosed to the natural law; to leave to their own will whether to become Christians or not ... to be governed
7B

in towns, their families united

by the local authorities which they themselves elect, under the direct responsibrlit)' of the authoritl' of the province or district.

Pangraph 11 of the decree provided for the "persecution and castigation of the tribe s which ignore the peace, protection, and advantages which they are being presented., ."

The mailed-fist policy of Gov. Primo de Rivera was immediately suspended upon orders from Madrid of the same year on account of stronl opposition from a faction of the advisory Council of the Philippines pointrng out that "no nation in Europe maintained such a feudal practice as Philippine-style forced labor..." Nladrid reminded the Governor then that any further expeditions in line with the policr- u'ere discordant with the Lan,s oJ'tlte Indies prohibiting "iil treatment of the Filipinos or their enforced submission to Spanish
sovereignty."

While there was evidence of increased vassalage among the inhabitants of the Cordilleras, Scott concludes that "another response [u'as] less in keeping rvith the Spanish goal of reduccion: having reached the inner limits of their mountain fastness, the Igorots began
running away to the lowlands" avoiding forced labor.

Before the Philippine revolution against Spain in 1896 there existed only four commandancias politico-militares in the pacified areas of the Cordilleras. These were subsequentl]' abolished with the ultimate defeat of Spain by the United States in 1898. Thus about three centuries of Spanish attempts to c try out the reduction achieved only a marginal level of political organizaaon in the land of the tribus indEendientes. The campaign against Moros took a more complicated route and u'as marked b)' intense military conflicts knov"'n as the "Mofo \(/afs." It is also interesting to note at the outset that the more developed political and social svstems of the Southern communities, including previous foreign relations with other European powers, required Spain to enter into a series of "treaties" with the sultans which was remarkablv absent rn the case of Spanish expeditions to the Cordilleras,
Spanish claims over the island of l\{indanao \r,'ere allegedll, based upon the Treaty of Tordesillas entered into with Portugal. But one u-riter has argued that Great Britain did not

respect these claims and instead conducted negotiations with the Sulu sultanate without Spain's participation. In the same manner he cited the fact that the consul of AustriaHungary- once acquired contract rights over North Borneo in an agreement forged u'ith the same sultanate. It thus appears from these accounts that the existing sultanates alreadv enjoyed certalfl level of international personality and independence recognized by other ^ nations, particularly the western imperial powers then in Asia.

trilipino historians are divided in their view of Spanish aims over the southern sultanates. One view su5lgests that the military expeditrons were intended to end the N{oro raids against the conquered islands of Visayas. Following this position, the acts committed by the Moros would be interpreted under international law as mere felonious attacks. The contrary view is espoused by a leading scholar in Muslim Filipino historr'' who believes that Spain had intended to crush Islam, consistent with the policy of reduction. On this premise
79

it

was concluded by one writer that the intention behind the pitatical acts was "to pteserve . . . independence from Spanish imperialism." Citing the instructions of an expedition in 1578 the same writer even suggested a subordination of the propagation of the Catholic faith to an economic end:

"From this city and island of Borney...you (Figueroa) shall go to the islands of Jolo, where you shall endeavor to reduce
that chief and his people to the obedience of his Maiesty. You shall bargain with them as to what tribute they shall pay, which shall be in peads, as they are wont to give to the ICng of Borney...you must order that...they shall obtain as many as possible, so that we, the Spaniards or Castillans may buy them;: that they must trade with us from now on."

The politic al organizanon of the sultanates was in the nature of a loose federation, it never evolved into a single state. Local leaders called datus composed the rumah bicbara but or state council which assumed the function of adopting relevant measures including the ratification of treaties entered into by the sultan.

It is essential to point out at this stage that the p^g n tribes which refused to adopt the new religion introduced by the Mohammedan Malays fled to the mountains while others remained in nearby hills. Saleeby identified those who remained in the mountains ever since as the Manobos and those close to the Muslim settlements as Tiruray Other known tribes we{e the Bilans, Tagabilis, and the Subanas.
One of the eadiest treaties between 1,645? Sultan Qudarat was defeated by the forces of General Corcuera during the latter's expedition which commenced in 1'636. From that time on the sultan's relations with Spain took a new course, eventually leading to the tre^t\J of alliance for mutual aid and protection, according to Saleeby. A similar fteary was signed by Sultan Idbad in 1.794 in which he "promised not to enter into any treaty or agreement with another power,"

peace were signed

The nineteenth cefitury saw more Spanish incursion into Motoland. More treaties of with greater concessions to the conquering forces. In the treaty of 1'837, for instance, Sultan Qudarat the Second after submttting to Spanish sovereignty carried the subordinate title of Feudatory l(ng of Tamontaka. Spain had power to appoint the sultan's successor and to regulate commerce within his jurisdiction. Again in 1BB4 another sultanate under one Idris fell into Spanish hands and the sultan signed a tre ty in which he unconditionally relinquished power over Talakuku.

It is evident from the Moro wars that the conquest of Mindanao v/as achieved only parrially and at very late stage of the Spanish colonial period, such that by the termination ^ over the Philippines in 1894 one writer opined that "the ordinary folk (in of Spain's control the south) were barely integrated with the rest of Philippine society, but (only) certain of thetr datus had found a foothold in the colonial order." He observed that these datus eventually occupied the "same position as the big landlords of Luzon and the Visayas."

80

The policy of attraction which Spain employed in its limited occupation of the Cordilletas was similady applied in regard to the population outside the garrisons and other settlements in the southern region. In fact Spain allowed the people to practice their Muslim faith and even left the datus undisturbed in their authoriry over rhe members of their community.

The Shot-Lived Philippine Republic and the Indigenous Peoples and Muslim Minority
Spain's military expeditions against the Cordillera people and the Muslim sultanares had constantly used the Christian natives in battle. Thus in the nationalist revolution against

Spain from 1896 to 1899, independence was an issue only for Christian Filipinos: the setdements in the north and south cleady remained predominantly unoccupied by the Spaniards and unsympathetic to the cause of the nationalists on account of the prejudices or distrust which had developed.
however, the speech delivered by the head of the Filipino revolutionary government, General Emilio Aguinaldo, during the ratification by the first Philippine Congress of the "Act of the Declaration of Independence" in which he referred to the Cordillera people and the Muslims

It is of interest to recall,

"...a banner...is being honored and respected throughout the Philippines. Behold this banner with three colors, three stars and a Sun, all of which have the following meaning: ...Three
stars with fue points signtfl the islands of Laqon, the VisEtas, and Mindanao ...And lasdy, the eight rays of the rising sun signify the eight provinces of Manila, Bulakan, pampanga, Nueva Ecija, Morong, Laguna, Batangas and Cavite where Martial Law was declared. These are the provinces which gave light to the Archipelago and dissipated the shadows that wrapped

her ... Bjr tbe light of the sun

the Moslems are recogniqe as m1 brotbers...

the

Aetaq

the lgorols, the Mangtans and

n,w ducendingfrom the mountains, and all of theru I

" (emphasis added)

1899 that the new Filipino government intended to integrate the territory of the Cordillerans and the Muslims into the republic. A constitutional guarantee of self-government was absent, however. It appeats that in terms of the protection of the rights of the Cordillerans and the Muslims, the Malolos Constitution made this a subject of the freedom of religion clause only.

It is evident from this speech and the provisions of the Malolos Constitution of

Spanish Policy over Native Titles

An issue which became the subiect of an important Supreme Court decision during the American regime pertained to Spanish land laws affecting the property rights of the inhabitants of even the unpacified areas of the Cordilleras and Mindanao. Ii has been suggested by one writer that the initial claim over all lands within the archipelago, made on

8i

behalf of the Spanish Crown by Ferdinand Magellan, discoverer of the Philippine islands, undelwent a number of modifications through the enactment of -n'arious land laws during the colonial period. The writer argued that at least twenty-one laws were passed from 1523 until L646" which made clear that the distribution of land rights to ioyal subjects was not to impair the rights and intere sts of the natives in their holdings."
Subsequent decrees further defined Spanish property laws particularl,v in regard to land titles. For instance, the Royal Decree of October 15,1754 according to Lynch, "stated that 'justified long and continuous possession' bv the natives qualified them for titie to their cultivated land. '$7here such possessors shall not be able to produce title deeds, it shall be sufficient if they shall show ancient possessions as valid title."'

This principle was clarifred in the royal Cedula Circular of March 3, 1,798 which provided that: "the will of the 'Crown' as expressed in various instructions, royal edicts, orders and decrees, is that the distribution of lands to conqaistadores, discor.-erers, and settlers should never prejudice the natives and their land-holdings." The Royal Decree of June 25, 1BB0 "emphasized that al1 persons in possession of real propert) were to be considered owners provided they had in good faith occupied and possessed their claimed land for at
least ten years."

The systematic registration of land trtles and deeds under Spain was instituted
through the Spanish Mortgage Law, which came into effect only on July 24, 1,893 a few years before the cession of the PhiLippines to the Americans. Essentially, the said law, according to Lynch, provided that "'owners who lack recorded title of ownership' could have their interests registered during a possessory information proceeding before informacion posesoia to qualified applications. The titula was merely a record of possession. It could be converted into a record of ownership; however, fwenty years (ater reduced to ten years) after its date of issue, if certain conditions were met." Enforcement of the Mortgage Law was attended by abuses on the part of the public officials, causing the majority of the population to not only distrust the new system but in fact ignore its application (not to mention the other fact that a considerable number of the inhabitants wefe unaware of the 1aw).

To resolve this problem, the so-called "Maura Law" or the Royal Decree of February 13,1894 was promulgated in order "to insure to the natives, in the future, whenever it may be possible, the necessary land for cultivation, in accordance with traditional usages." However as Lynch recalls, Article 4 of the decree "revealed a different purpose" as it stated
that:

"the title to all agricultural lands which were capable of adiustment under the Royal Decree of ... 1880, but the adjustment of which has not been sought at the time of promulgation of this Decree ... will revert to the State. Any claim to such lands by those who might have applied for adjustment of the same but have not done so at the above
mentioned date, will not avail themselves in any way or at any time." (emphasis added)

82

AMERICAN COLONIAL POLICY OVER THE PHILIPPINE ISI.ANDS

The Concept of Trusteeship
The Treaq'of Paris signed by the United States and Spain on December 10, 1898 formally ended the state of war between the two countries. As a result thereof Spain ceded to the United States "the archipelago known as the Philippine Isiands..." Furthermore it rvas stipulated that Spain "relinquishes ... all the ... properqr which, in conformity with law, belong to the public domain, and as such belong to the Crown of Sparn ... but the reJinquishment or cession ... can not in an),' respect impair the property or riihrs which b1 law belong to the peaceful possession of property of all kinds. . . " American colonial policy during this period was highlv influenced by what Snow ... strongly against 'imperialism' and in favor of the doctrine that'the Constitution follovrs the flag." Pursuant to this doctrine the American Government established with its new colony a relationship based upon "the conception of trusteeship implied in sovereignty." This policy found expression through the first (Schurman) Philippine Commission in its proclamation to the people of the Philippine Islands of April 4, 1899, which contained the following message:
described as "public sentiment

"The aim and object of the American Government, apart from the fulfillment of the solemn obLigations it has assumed toward the family of nations b), th. acceptance of the sol'ereignw over the Philippine Islands, is the rvell-being, the prosperiq,', and the happiness of the Philippine people, and their elevations and advancement to a position among the most civilized peoples of the world. ... to be brought about by the assurance of peacc and order, by the guaranty of civil and reLigious libertl; b). the establishment of justice; by the cultivation of letters, science, and the liberal and practrcal arts, by the enlargement of intercourse with foreign nations; by the erpansion of industrial pursuits, trade, and commerce; bv the multiplication and improvement of the means of internal communications; by the development, with the aid of modern mechanical inventions, of the great natural resources of the Archipelago; and, in a word, by thc uninterrupted devotion of the people to the pursuit of those useful objects and rcahzation of those noble ideals which constiture the higher civilization of mankind."
: -,: relations between : -:e as follows:

,r

lddrtion, the proclamation enumerated certain "regulative principles" that u,'ould govern the Filipino people and the colonial ruler. Some notable principles

The supremacy of the Uruted States must and will be enforced throughout every parr of the archipelago,
B3

"'1.

and those who resist

it

can accomplish no other end that their

own ruin.

2. The most ample liberty of self-government to the Philippine people ... compatible with be granted will the sovereign and international rights and obligation of the United States.
The civil rights of the Philippine people will 3. be guaranteed and protected to the fullest extent; religious freedom assured; and all persons shall have an equal standing before the law." A more specific bill of rights was inserted in the instructions of April 7 , 1,900 issued in favor of the first (Taft) commission, a civilian government which took over the task of the ead:.er military authorities. The same instrument formed part of the organic actof August 29,1,916 providing fot an autonomous government in the islands. The general mandate over the Philippine Islands which Pres. William Mc I(nley defined in 1899 did not actually provide for a more specific approach towards the governance of the northern tribes and the Muslims. On the contrary, while the organic law respected the free exercise of religious beliefs and recognized equality of person before the law, full integration of the indigenous population and the religious minority, or the nznChistian Filipinos became a major concern of the new colonial ruler. But as the following discussions would show, the Americans realized eady the need to adapt to the distinct situation of the non-Christian Filipinos.
The task of handling matters affecting administration of the non-Christian territories during the Taft commission was assigned to Dean C. \Torcester. After finding out the possibility of putting up a civilian government in Benguet, a former commandanciapolitico-nilitar withdrawing the said area from mllrtary control. under Spain, he immediately drafted zn ^ct A number of acts passed in 1.902 covering former townships and settlements in the Cordilleras brought the region within the national government framework through the establ-ishment of local civil governments or provinces.

To unify the existing legislation Worcester further drafted in 1905 the "special
Provincial Government Act" encompassing five ptovinces, three of which wete in the north. On the other hand, the "Township Government Act" applied to all settlements of the nonChristian tribes all around the country with the exception of the Moro Province. Three years later, Mountain Province, with seven sub-provinces, was carved out of the Cordillera territory and came under the control of an American governor. Aside from the fact that the Igorots took no paft in the insurrection, some "general principles" were cited by Worcester as having facilitated the smooth transition into political integration of the Cordillera people:

84

"I have always considered the opening up of adequate lines of communication an indispensable prerequisite to the control of any country . ..
The establishments of government, and of a decent
state

of public order, have gone hand in hand with

the

opening up of lines of communication ...

We took advantage of [the] great gatherings fcalled to bring about the settlement of old difficulties between hostile towns and they have thus proved an important factor in the establishment of peace and order ... governors and lieutenant-governors soon [found] themselves endowed by their people with powers far in excess of those conferred on them bv law ..."
cafraos) One native Ifugao writer utro ,i.r4.a out some social reforms, including the passage 1911 of Act No. 2071, prohibiting the lowlanders' exploitation of the non-Christians through slavery and other acts including "the capture of members of the minoriry groups to furnish labor for construction iobs and the exhrbition of 'primitive' tribesmen and women for commercial purposes, as had been done in fairs, carnivals, and international expositions." V/orcester himself recounted the unhappy state of non-Christian tribes living within tegularly orgamzed provinces, leading him to doubt whether the Filipinos wouid be capable of maintaining the policy his administration had observed in the non-Christian territory.

in

\What was the effect

of the creation of the townships for the non-Christian tribes?

A former Chairman of the Commission on National Integration and later, a member of the Philippine Senate, had this to say of $Torcester's poLicl,: "Having in mind the American experience with Indian minorities, Worcester introduced reservations for subdivision and sale on easy terms to landless cultural minorities. The reservations and the special provinces
facilitated supervision and control over the minorities."

Mr. Tamano distinguished the American poiicy from the "assimilationist approach" of the former Spanish authorities in that the Americans recognized "religious and cultural pluraliry" and "aimed at achieving national integration by solving the land problems of the minorities" with the intent of creating an "awareness of nationhood." The policy of the Ethnological Survey of the Philippines (formerly the Bureau of Non-Christian Tribes) under Worcester in regard to the land rights of the non-Christians necessarily reflected the new government's prevailing land registration system enacted in 1902.It did not take too long for the U.S. Supreme Court to consider the implication of the new law on the status of aboriginal tide invoked by tdbal members.

B5

In the case of Caino u. Insular Couernment of the Pbilippine Islands (212U.5. 594) al application to the Philippine court of land registration was filed by a nalive of Benguet Province in Northern Luzon sometime in 1903. The land court granted the application on N{arch 4, 1904 but the United States, appealed the matter before the Court of First Instance of the pror,.ince of Benguet. The CFI dismissed the application, and the same judgment was affirmed by the Supreme Court of the insular faovernment. The Supreme Court decision was brought before the Federal Supreme Court of the U.S. on a writ of error. Mr. Justice Oliver Wendell Holmes, speaking for the U.S. Supreme Court, considered the following pertinent
facts:

"For more than fifty years before the treaty of Paris, April 1 1, L899 . . . the plaintiff and his ancestors held the land as owners. His grandfather had lived upon it, and had maintained fences sufficient for the holding of cattle, according to the custom of the country ... His father had cultivated parts and had used parts for pasturing cattle, and he had used it for pasture in his turn. They all had been
recognized as owners by the Igorots, and he had inherited or received the land from his father, in accordance with Igorot custom. No document of title, however, had issued from the

Spanish Crown, and although, in 1893-1894, and again in 1,896-1,897, he made application for one under the royal decrees then in force, nothrng seems to have come of it . . . In 1901 the plaintiff filed a petition alleging ownership, under the mortgage law, and the lands were registered to him, that process, however, establishing only a possessory title, it is
said.

"
Islands

In contesting the title of the plaintiff appiicant, the government of the Philippine
argued that:

"Spain assumed, asserted, and had trtle to all the land in the Philippines except so far as it saw fit to permit private tides to be acquired; that there was no prescription against the Crown, and that, if there was, a decree of June 25, 1880, required registration within a limited tine to make the title good; that the plaintiffs land was not registered, and therefore became, if it was not always, public land; that the United States succeeded to the titie of Spain, and so that the plaintiff has no rights that the Philippine government is bound to tespect."

The Court relied mainly on declared U.S. policy over the administration of its new colony in rejecting the Solicitor General's contention. Mr. Holmes initially cited the fact that the government itself acknowledged that the plaintiff-applicant's tribe "was never brought under the civil or military government of the Spanish Crown" leading him to reason that "the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish laws, and which would have made his title
86

beyond question good..." Then he proceeded to distinguish the acquisition Philippines from the white setdement in North America: "the dominant purpose of the whites in America was
to

of

the

occupy the land... our first object in the internal administration of the islands is to do justice to the natives,
not to exploit their country for private
gaTn . . .."

He cited the bill of rights incorporated into the Philippine organic act which provided, among others, that "no law shall be enacted ... which shall deprive any person of life, liberty, or pfoperty without due process of law, or deny to any person therein the equal protection of the law" in order to emphasize the declared policy. Mr. Holmes interpreted the
provision as follows:

that the United States was to declare in the next breath that'any person' did not embrace the inhabitants of Benguet, or that it meant by 'property'only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom, and by long association, -- one of the
ready

"...it is hard to believe

profoundest factors own."

in human thought -

regarded as their

Mr. Holmes then turned to the other argument of the Solicitor-General invoking the Philippine government's power "to enact rules and prescribe terms for perfecting tides to public lands where some, but not all Spanish conditions had been fulfilled, and to issue patents to natives for not more than 16 hectares of pubJic lands actually occupied by the native or his ancestors before August 13, 1898." To this he replied:
"\We hesitate to suppose that it was not intended to declare every native who had not a p^per trtle a trespasser, and to set the claims of all the wilder tribes afloat ... \Whatever the law upon these points may be every presumption is and ought to be against the government ... It might, perhaps, be proper and sufficienr to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way before the Spanish conquest, and never to have been public land."

Assuming argaendo that Spanish law applied to the preseflt case, Mr. Holmes suggested that "older decrees and laws ... seem to indicate that the natives were recognized as owning some lands, irrespective of any royal grant."

wrongfully occupied by private individuals, in Mr. Holmes' opinion, could have been relied
87

Not even the decree of June 25, 1BB0 requiring the adjustment of royal lands

upon by the government to deprive the plaintiff-applicant of his land because "when the decree went into effect, the applicant's father was the owner of the land" since the decree itself provided that "for all legal effects, those who have been in possession for certain times shall be deemed owflers. For cultivated, land, fweflfy years, uninterrupted, is enough. For uncultivated land, thirty." While this judgment clearly guaranteed the land rights of non-Christian tribes in the context of the due process and equal protection clauses of the organic law of 1.902, subsequent legislation and economic policies began to undermine these rights. An Anti-Slavery Society report noted, for instance, that immediately after the passage

of the Mining Law of 1905 declaring "all public land in the Philippines to be free and open for exploration, occupation and purchase by the citizens of the United Sates and the Philippines," Igorot mining areas in Itogon, Balatoc, Antamok, Suyoc and Lepanto in
Benguet province became the subject of mirung claims appiication by American prospectors. In fact the biggest gold mining company today, Benguet Corporation, originally began with twelve mining claims applied for by one John Hasseurmann, according to the report.

Unification of Moroland Through Treaty-Making

$Torcester sav/ that while it was possible for the policy which won the highlanders to be effective with the Moros, he was convinced at one stage that the latter "must be given more than a square deal, or results will not differ essentially from those which attended the efforts of Japan to subdue the hill people of Northern Formosa, or those of the Dutch to subdue the Achinese."

American efforts aimed primarily at the integration of the Moro people into Philippine national life. But as Peter Gowing described the government policy in Mindanao from 1899 until 1920, it became evident that the task then at hand could not have been accomplished in the same manner as the Igorots couid have been treated. Three distinct stages could be identified unification with the insular government.

in the process of Muslim

Mindanao's

The Americans' immediate concern upon the cession of the Philippines was to quell the Christian Filipinos' insurrection. As an incident to the pursuit of this goal the new colonial military government through diplomatic means sought the recognition by the Sulu Sultanate of U.S. sovereignty over Joio and its dependencies, thereby insuring Moro neutrality over the conflict. Negotiation with the Sultan of Jolo was assigned to Brig. Gen. John C. Bates. A Filipino historian recalls the fundamental principle which firmed the basis of the Bates treaty;

"It is quite important the United States shall occupy the principal distributing centers of trade, to build up and develop a revenue and to supervise that development. This the Spanish treaties with foreign powers permit. Siassi should be occupied by our troops at no distant day and two or three
88

other important points. This necessitv you will keep in view in your negotiations and will shou' the Sultan the blessings which would be conferred upon his people by intelligent
establishment and develoPment.

"

ln the light of this guiding principle Bates skillfu\ engaged the Suitan of Sulu of Raiah Muda, Dato Attik, Dato Calbi, and Dato Joakanain to the following Dato Jolo, essential terms: (1) acknowledgments of U.S. sovereignw over the entire Jolo and its dependencies; (2) respect for the rights and dignities of the Sultan and his datos; (3) noninterference over Moro affairs on account of re[gion; (4) respect for religious customs; (5)
non-prosecution on account of religion; (6) U.S. authorifi' to occupy and control areas within the Jolo archipelago as public interests seem to demand; (7) consent by the Sultan to any purchase of land in the area; (B) freedom to trade u'ith anv part of the Philippine Islands; (10) suppression of piracy; (11) exclusive jurisdiction of the Sultan over crimes committed by I\foros against Moros; (12) goarantee of the right oi slaves in the Jolo archipelago to purchase freedom upon payment of the usual marker value; (13) U.S. protection to the Sultan and his subjects; (14) guarantee by the U.S. not to sell the island of Jolo or any 61hs1 part of theJolo archipelago without consent of the Sultan; and, (15) monthlv salaries to the Sultan and his datus.

Gowing argued that the initial "non-intert-erence policy" expressed in the Bates Treaq. of 1899 was not well received by the militan- authorities in general. Thus pressure was put upon the insular government to carry out the "mandate" through the introduction of basic social sewices, imposition of customs regulations, land sur-vey and exploration activities, development of infrastructure, opening of schools and the calling of a census. This change of course in handling the Moro affairs led to the rnstitutiooahzation of direct control over the N{oroland. The U.S. unilaterally abrogated the Bates agreement and instead created the Moro Province in 1903. The special province of the Moros, according to Gorving, did not enjoy the same level of autonomy as the regular provinces inhabited bi- the Christian majoriry. In fact the administrative structure resembled the Spanish commandancia set up in Northern I-uzon. Direct supervision was in the hands of the Governor-General of the insular government while key administrative positions were given to arml otficers. The datus were relegated to the position of "headmen of the remotest tribal u'ards u'ith ven' limited authority.

Direct control over the Moro Province became the second stage of American unification strategy for the Moros. It was at this stage that Christian settlers from the northern part of the archipelago were encouraged to join the Americans in the expioitation of natural resoufces in Moroland. Non-Muslim municipalities were also organized to serve as "models" for communiry life. The imposition of some taxes such as the head and road tax, export and important duties on Moro foreign trade and property taxes on N{oros residing in organized municipalities served to achieve the Amencan goal of making the N{oro Province administratively unified to the insular government. Accommodation of Isiamic laws, customs and institutions was further welcomed "provided they did not conflict with the basic principles of American law."

89

Moro reaction to the new "policy of direct rule" was briefly described by Gowing
follows:

as

"From the Muslim standpoint, 'to develop' and 'to civlltze' seemed to mean the imposition of strange laws and infidel customs. Laws against slavery threatened the politicoeconomic structure of traditional society. Provincial and district governments, whose officials issued decrees enforced by troops, undermined the power and status of traditional Muslim leaders. By-passing Muslim courts and refusing to recognized customary judicial functions of the headmen offended Muslim sensitivities. The collection of the cedula and other taxes was disliked because the payment was made to a foreign, infidel government. The Muslims resenred the parceling out of land which they had occupied ftut not tilled) for centuries, to foreigners and Christian Filipinos. They also resented the licensing of foreign vessels to fish the waters of Moroland. The Muslims suspected that the American ambition 'to educate' them meant to inculcate Christian teachings and Christian values through the public education system."
Moro armed resistance to American direct rule in Mindanao was put to an end by one General Perishing (following the campaigns by Gov. Leonard \Wood and Gen. Bliss), thus paving the way for an experiment in civilian control and the subsequent reorganization of the Moro Province into the Department of Mindanao and Sulu (1914-1920). Participauon by Filipino officials in the governance of the region increased during this period, as a result of the latter's lobby for "Filipinizatton" in preparation for self-government.
The Department of Mindanao and Sulu, however, became obsolete by 1,920 with the rapid development of seven provincial governments and the integration of administrative structures of Mindanao and Sulu into the jurisdiction of the bureaus and agencies of the Insular Government. Thereafter, Moto affairs were handled by the Insular Government through the Bureau of Non-Christian Tribes (BNCD in the Department of Interior.

The task of Gov. Frank Carpenter during the brief existence of the Department of Mindanao and Sulu, including the Filipino officials under his supervision, was to carry out a new mandate in Moroland called "the policy of attraction." An assessment of the Department's performance revealed that a "genuine humanitarian concefn" for the Moros was exemplified by increased government services and the appointment of native Moro representatives to the Philippine Legislature. Gowing concluded that "the Department accomplished what it was established to do: it laid down the foundations in Mindanao and Sulu for an enduring edifice of economic, political and even solidarity with Luzon and the Visayas."

90

Eady Constitutional Regimes and the "National Cultutal Minorities"

On November 15, 1935, the Commonwealth Government of the Philippines was established under a constitution reflective of American constitutional traditions and jurisprudence. A unitary form of government was mandated by the 1935 Constitution having the effect of abolishing the special provinces under the American regime. Philippine formal independence from the United States occurred, however, only on July 4, L946. The 1935 Constitution continued to be operative until the adoption of the 1973 Constitution.
The protection of the rights of non-Christian Filipinos was guaranteed within the context of the equaLity and free exercise of religion clauses of the 1935 Constitution consistent with the previous American policy. Inherent in the constitutional guarantees was an expectation that the non-Christian Filipinos would be integrated rnto the majority population by parucipation in a western oriented poJrtical process and economic development. Distrust for traditional structures of decision-making naturally developed in the minds of the Filipino officials. As the following discussion would show, the early policy of the Commonwealth Government illustrates this immediate observation. But the initial approach did not prove effective partrcularly in the case of the Moros. Instead, a policy of integration of "national cultural communities' \t"'as developed in response to the politrcal unrest which resulted from the disregard for the traditional government of the Moroland.

Initial Policy Over the "Non-Christians"

The President of the Philippine Commonwealth, Nlanuel Luis Quezon, expressed his concern for the piight of "non-Christians" by promoting the socio-economic and political advancement of these communities, particularly Mindanao and Sulu. In carrying out these tasks he abolished the Bureau of Non-Christian Tribes and put in its place the office of the Commission of Mindanao and Sulu. Justifying this mo\re before the First National Assembly, President Quezon explained that "considering the marked adr.'ancement in the civilization and general progress of the inhabitants of the special provinces, the so-called non-Christian problem has been reduced to one of solidification and development." Unlike his colonial predecessor, he did not recognize the necessity of retaining the Moro traditional government in the integration of Moroland. The President cited the following reasons: gives the impression that there is a dual government for the Moros - one erercised by the appointed or elected officials of the Government and the other by the datus rnd sultans. It perpetuates the overlordship exercised through the ages by these datus and sultans over the sacup,who on this account, continue to be, tnfact slaves of their sultans and darus as they were under the Spanish regime. The Government is duty bound to protect the common people in the other provinces and regions of the Philippines, from the control or .rploitation of those Moros and Christian Filipinos, whether they fs called sultans, datus, le aders or bacenderor or caciques who would exploit or abuse them."

"... It

91

Policy of National Integration Upon formal independence after the Second World \War, the relationship between the central government and the so-called non-Christian tribes gradually became defined within the conceptual framework of "national integration" of the national cultural
communities.

An early indication of the new policy was the approval of Republic Act No. 394 on June 18, 1949 providing that "divorce amonl Moslems residing in non-Christian provinces shall be recognized and governed by Moslem customs and practices." This eventually became a part of the new Civil Code of the Philippines which was promulgated in 1950. Article 6 of the same Code also recognized the function of customary law in the setdement of disputes by stating that "...when there is no law exactly applicable to the point in contfoversy, the customs of the place shall be obserwed." In compliance with Article I of the Universal Declaration on Human Rights staung that "all. human beings are born free and equal in rights," the Philippine Congress enacted Republic Act No. 1888 on June 22,1,957 for the purpose of giving e ffect "in a more rapid and complete manner the economic, social and political advancement of the non-Christian Filipinos or national cultural minorities into the body politic."
The CNI apparently failed in its task to promote the interests of the maiodry of the members of the national cultural minorities since it "had never gone beyond being a source of gSaft, sinecures, and scholarships for a feu, elite Muslim and Igorot politicians." It may also be pointed out that the concept of development for the benefit of the national cultural minorities undermined indigenous social, economic and political structures as it imposed the standards of the dominant population. Furthermore, the systematized attempts to deprive the tribal groups of their traditional economic base through the resettlement programs proved detrimental to the maintenance of the cultural identity; while increased economic activity in the ancestral domain of se'u'eral national cultural minorities was mainly oriented in favor of the local and multi-national enterprise who were granted generous terms in their lease agreements over public lands.
Pursuant to the mandate of the 1987 Constitution that Congress shall enact organic autonomous regions of the Cordilleras and Muslim Mindanao, regional consultative commissions were created to propose drafts for consideration by the national enumetated by the 1987 legislators. The guidelines for the contents of the organic acts ^re as follows: Constitution

acts

for the

"Sec. 18.... The organic act shall define the basic structufe of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law furisdiction consistent with the provisions of the Constitution and national laws. Sec. 20. \X/ithin the territorial iurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

92

(1) Administrative organizations; Q) Creaion of sources of revenue; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (B) Preservation and development of the cultural heritage; and, (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region;

Sec.21. The preservation of peace and order within rhe regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of rhe regions shall be the responsibility of the National Governmenr.,, CONCLUSION

It has been observed that apart from the legal and political problems involved in the resolution of the indigenous issues in our country, the more fundamental problem according to Bishop Francisco Clavet, SJ. may be the issue of ethnicity. He argued that the "problem of ethnicity - which is really a problem of cultural differences among tribal minorities as a whole and the Christian (and Muslim) majorities - is something that can not be solved by legislation. Deep historical prejudices are involved, not of the maioriry groups only but also of the tribal minorities themselves. It is basically a problem of education and information and building up pride in a people's cukural identiry."
It is hoped that the threatened democratic space which we continue to experience
today could be availed of to peacefully resolve these issues.

93

MusrruS7ounN

oNt

CsNrnn Slecn

Sanira Ali Gutoc Associate Editor, The Bangsamaro.Com

A MusLim women's movement?

Muslim women's movements have come of late due not to Islam's tenets but to its late evolution. From fast-talking lawyers in the Middie East to the feminist Sisters in Islam in Malaysia, women and gender advocates are slowly seeping into their respective communities' consciousness. The delay in a Muslim women's "lib" has an explanation. Islam came oniy

more rhan 500 hundred years after Christianiry thus postmodern issues as sexuality, lesbianism or women as pdests/ulama have yet to turn up in discourse. Muslim nations have only recently emerged from colonial rule; most are only a few decades old as independent
entities, thus, the lateness of civil socieq, formations
as

women's gfoups.

Explains a theorist, Akbar Ahmed, there exists an intellectual time wa{p between Muslims and the West. So while postmodernism is already seen by some in the West as pass6, yesterday's clich6, the Muslim intellectual continues to grapple with stale issues contained in modernism. [Ahmed :1992) The focus on women, Islam and democracy is of import as 9-11 and European ncial dynamics make Muslim women and the r.'eil the symbols of resistance and identity. The phenomenon of migration has stirred the politics of cultural assertion such as in France, which banned the use of veil in schools.
globahzaaon - interlocking of cultures, pervasiveness of media and juxtaposition of people, 9-11 has redrawn some divisions with a "$(/e" v. "They" language' More information did not really mean a global village. Some terrorism could still be done and in a shocking scale as that of attacking the \forld Trade Center. Those who claimed \X/ere responsibility as aired by Osamaa were cheered on by Muslims of other nationalities. the Crusades being revived when Bush said, "you are either with us or against us" while Osama called on all Muslms to fight (the WesQ? To these two classic characters, there were

In the

face

of

no

gte,y areas,

human rights had to be sacrificed.

In the Philippines, the story was the same. The Abu Sagraf was also generalizing the word Muslim to be cast alongside value-laden words as "terfofist", "febel" and "ctiminal". Moro" human rights groups were complaining. Government under the then Estrada Administration said pulverize the rebels and the military cast a flag on a mosque and ate pork in it too.

Osama bin Laden, Saudi phiianthropist turned revolutionary, accused of masterminding the defining 9-11, Wodd Trade Center CIfTc) Attack 5 described as a band or bandit group of youths calling for an Islamic state and operating in Sulu province (formerly in Basilan province) formerly led by a charismatic preacher Abdurajak Janialani ., term to describe the thirteen ethno-linguistic cultural groups amoflg Muslims; historically evolved from being derogatory (when Spaniards called uncivilized natives as Moros and described events ie moro-moro) to a poLitical tefm as used by [beration fronts to one used by some in the academe;
a

94

In the face of these, peace initiatives were being set up, primarily led bv \\:omen. $7omen in the South were debunking the stereotypical male-dominated images of men as pttmary actors in society. Some would even argue that Muslim communities here are matitarchaL Educated women were stirring the peace movement. Thus, we saw efforts being awarded. In the local scene, Tabang Mindanaw's Baicon Cayongcat-Macataya, became Dove awardee for Peace for her rehabilitation work. On an international scene, harian Shirin Ebadi, was awarded the Nobel Peace Pize and listed as one of TIME,'s Influential People, for being one of her country's fitst woman judges and promoter of legal reforms and human rights.
Women

in the MusLim wodd afe the newest

actors

in

contemporary Islamic

religiosity. Beyond the veil, what have rhey to say? Drowned Voices

The picture of Muslims in media is not enlightening. They are usually the angry protesters, the victimized Palestinians, the rebel Moro Islamic Liberation Front IMILF], the terrorist Osama. Media image of being victim, being defiant alongside men, behind their men in mosques, are what we see of the women. Rate are they intellectual or successful. If they are vocally anti-convention such as writer Taslima Nasreen,T they invite censorship.
Rarely do we see public figures amongst them get air time. If they do such as in British Broadcasting Corporation, it is to defend negative acts of their co-religiorusts as NOT representative of their faith. The Muslim voices of learning and balance whether in politics or among the dynamic, are drowned by those advocating violence and hatred. Sadly, Muslims of this age zre reacttonary and are not crearive.

Howevet, the Muslim wodd is just too large to pigeonhole

in

certain monolith

images. There is secular Turkey, cosmopolitanMalaysia and monarchic Saudi Arabia. There is hard-core Hashim, postmodern Rushdie, athletic Muhammad Ali. Elites and radicals within Muslims states are opposing; and yet, the way of life of one billion of humaniry across fifty (50) Muslim states and communities all across continents cannot just be ignored.

One recent phenomenon to note is the so-called and misunderstood Islamic fundamentalism which has swept much of the Muslim world in general and the Arab wodd in particular. Arab despait and disunity in the Middle East, poverty, angsr, and helplessness characterize much of the Muslim wodd. Iran's Islamic revolution found legitimacy in the idealist's yearning for Islamic governments to be set up. Amidst the development failure of Muslim-led governments (including the Autonomous Region for Muslim Mindanao [ARMM), the goal of the fundamentalists is "to go back to the basics (of the pur'an)." Many Muslims see the reawakening as a reassertion of their identity and a return to their roots, an alternative to seculat materialism. Islamists acknowledge that religion and politics are one. The nation-state, though a secular entiry is a natural creation and thus the acceptance of the Moto National Liberation Front MNLtr] and the MILF of a Bangsamoro Islamic state (though the latter has accepted autonomy).

Pakistani writer and author whose books were protested to for being anti-Muslim by Muslims in her country.

95

Unlike the radicals, most Islamist leaders call for full and equal participation of women in society. "Male jealousy is just one aspect of mascul,ine capricious tendencies which inculcate the myth that women, by nature, suffer from excessive incapacity." (Iurabi: 1,993)
What fundamentalists fail in is to incorporate scientism and recognize that Islam is a religion of reason and Muslims must improve their own condition at a grassroots level. The key to revival of Islam is mass education, democratic reforms, establishment of women's rights, reinterpretation of Islamic values and professionalization.
Should the West fear the Green Peril?8

Is there really a clash of civilizations?e

The dialogue befween two cultures Islam and the West and Christianity has to start. Media cannot define the agenda; neither can the West.

in fact has developed many positive values of Islam free consultative government, dignity to the individual, free enterprise, co-existence.

Shared values abound. The rVest

Mutual prejudice has to be acknowledged. Just as there has grown a media of Muslims in the West so there is a \Western stereorype in Muslim minds. In particular, America, the powerful dynamo of the contemporary world culture, repels as it fascinares Muslims. For some it is Utopia, which has attracted Muslim migration; for others,
srereotype

it is the embodiment of evil, indeed the Great Satan.

the \West by accepting the begins exercise of self-determination in the world, it is imperative that the changed global realities - that Islamists (which can be the MILF, in the local setting), many of who are repressed as political parties, will be long-term players in the future of many MusJim nations.

To prevent the further radicahzation of the Islamic movement and facllitate

Muslims themselves must also acknowledge the need for tolerance and respect for diversity. The pur'an in fact urges Muslims to seek a political order based on peaceful cooperarion and mutual respect and warns them against placing religious solidarity over covenanred rights and principles of justice. During the Prophetic period, the pact of Madina established a multi-religious and political community based on a set of universal principles.

Coined a term ro describe the "Islamic threat;" after the Cold \Var, the unipolar power United States, sees Islamic firndamentalism as the threat of the new age e phrase made popular by Samuel Huntington in his controversial essay, The Clash of Civilizations to describe the conflicts of this age as that between cultures and civilizations
8

96

Crisis of the Mindlo

There seems to be ^n inconsistency between what is supposedly Islamic empowerment of women and its interpretation and implementation. Ulama across the countries have differing views. Divorce in Islamic law for instance requires differing numbers of witnesses as a requisite in different countries. Other countries ailow arbitrary divorce from the husband. Others offer strict conditionalities.
Islam itself is not a uniform religion and has interacted with the socio-political and economic conditions of a particular time and geographic location in order to ensure its
survival and power.

Islam's stagnation as a pfogressive force was partly due to the abrupt halt to free and independent thinking by Islamic leaders centuries ago. The Arab culture's primary influence on Islam's expansion have also disrupted the growth of feminism and even maintained a patiarchal hegemony. Sadiy, religion was used even by governments to deny women human rights to participation when during the Prophet's time, women debated the Prophet and aided in battles. Reflective of uiama control of pur'anic interpretation is in Christianity too as Islamic Studies professor Carmen Abubakar quotes Sister Mananzan - "The subordination, discrimination, exploitation, oppression of women, varying in kinds and degree but cutring across class, race, creed and nationality. It is an ideological, structural and global question. It has been going on from one generation to another because of three important socializing forces or institutions namely: education, religion and mass media." Of these three institutions, Sister Mananzan focused on the role of religion particulady Christianity which she claims has used the Bible to "justify the subordination and discrimination of women, and yet women, not men are the most constant believers in the Bible or God's wofd."11

Rrght to Have Rights

Muslim women can be a force to reckon with. While their numbers are increasing, the ratio 4:1 is used to justify polygamy, because there are more women than men.

In theory, distributive and retributive justice do not distinguish

The pur'anr? verses jusrify:

berween the sexes.

"To men there is a right in what they have earned, likewise to women there is a right in what they have earned." I(oran IY,32 :

d bv AbdulHamid AbuSulal'man, rector of the International Islamic Universitl [IU) Malaysia to clescribe crisis in the \Iuslim u'odd - "change must come from within, on the basis of the belie fs and r.alues of the T-':rmah. Re form must begin with intellectual reform, especially with the development of disciplined and
use -:.re

:',

s:-:nauc methodologl for thought based on rational principles and approaches that incorporate Islamic

:3Ctr\-eS."

r-:r1:::.: t -1 \LsIn

rl:rie,J r-' Social \\ eliare Usec. tbr }tusLim Aflarrs Omera Lucman in her paper, \\-omen in Islam, presented \-oudr Sunnit held at the ,\sian Insdrute of Jlanagement i\I\f\. \Iakati Cin-

other." I(oran

"And their Lord answered them: Verily I will never cause to be lost the labor of any of you, be you a male or a female - the one of you is as the

III,

195

"\Thosoever of you, be it male or female, does a righteous deed, and has faith, we shall assuredly give him (or her) a goodly life, and We shall recompense them their wage, according to the best of their deeds." I(.oran

XVI,97

Equal in Faith S7omen's equality with men is a birthright. Freedom and rights are a responsibility, according to the concept that persons afe agents of God and "viceregents." Accotdingly, only the enlightened arc free and can be entrusted with responsibiliry for self-governance and duties to others.

Equality of obligations to learn is gleaned in the Prophet's saying: "Seeking knowledge is obligatory for every Muslim male and female." Knowledge is extolled as a virtue and power, giving birth to the Islamic principle of oneness, tawhid, "Enjoin what is good, and forbid what is wrong." Tolerance is a negative permission of evil. The true essence then of the advise is to "seek knowledge of the true, the good and the beautiful leads to a commitment to the good, the true and the beautiful."
Modern Muslim?
Has the time of the rebirth of a dynamic Islam come?

Are the Following questions not relevant? Does

a

Muslim laugh? Can a woman enter showbiz? Should we talk about sex?

We ask: How does a religious civilization like Islam, which relies on a defined code of behavior and traditions based on a holy book cope in an age wtr-ich self-consciously puts aside the past and exults in diversity? (Ahmed: 1992)
The discourse must start.

A Muslim democrat and Muslim women's rights are certainly new concepts but not in Islamic literature. Free will a basic concept in Islam gives a believer the leeway to choose
his path. Read, the first revelation and commandment to the Prophet, mandates learning and travel to seek knowledge, a certainly liberating instrument.
\rVomen as Peace Catalvsts

Participation in the political process and winning a maiority of votes by itself may nor be enough to bring the needed changes in the political, economic and social systems of

9B

the Muslim countries. Mass education and better economic opportunities will certainly help. This holds especially true in the ticklish and sometimes divisive issue of self-determination. \ff1-rere economic deprivation is prominent, advocates might best probably plan for a genuine Islamic order rather than a territorially-defined state, and rhus attract Chdstian ry-pulhy.

Women can play a role in bridging gaps of communication, borne of centuries of mistrust. They can veef a militarist solution to focus on basic services as priority. In current civil society formations, women have a niche in playing lead roles. Development work needs women.
Is politics also an answer?

Cetainly Muslim women voted as presidents or heads in predominantly Muslim countries as in South Asia or provinces in the PhiJippines are not really products of an enlightened populace. Many are so voted because of their affiliations to rh;ir husbands or parties and not because such public figutes espouse a women's of progressive agenda. In Muslim communities, to vote for a woman is also an issue exemplified recently by an antiGloria Macapagal Arroyo fatral2 among some ulama. Their school of thought utg.,.r that if there are qualified men, women cannot thus be voted as heads or can they? A nuanced discussion details how women can be voted as legislators rather than executives because the latter require more physically demanding tasks that would take the mother away from home.
thesis, that women make bettef peace negotiators as experienced in Lanao, where conflicts and tension subside because of the soothing initiatives olit, *orn..,

It is the writer's

rido (feud) settlers. It used to be that "brave" women were noted as rebels, fighting alongside their men. Women's role in the movement cannot be discounted wlth iti involvement in the Moro National Liberation Front ( 4NLF) with the Bangsa Bai.13 But now, the post-conflict stage requires human resource and bureau cratlc capacrti.r - thus led
by the ARMM's Regional commission for the Bangsamoro \women (RCB$0.14

Muslims who want to influence policy and image-making. Their fault lies in not writing stories, in making their success stories unheard, peace efforts that remain undocumented and in being plain fence-sitters or at the extreme) suicidal (remember the Palestinian reenager who blew herself up?)

recommend that women involve in media and communications. Reaching out must be from within and without -democratic discourse from among Muslims and engaging the non-Muslims. The Muslim world has no active presence on- powerful "socializing and agenda-setting" instruments as CNN or MTV. Protest is pass6 at least for

It is also strongly

1996 newly-created line agency under the ARMM headed by a woman and composed of some women associated with the MNLF; geared towards promotion of women's issues
1a

group of religious leaders led by activist ulama (preacher) Jamel Yahya issue<l a religious edict calling on Muslims not to vote for Gloria MzcapagarArroyo during the recent 2003 elections 13 The women's front in the Moro National Liberation Front (X4NLF) oiganized in the 70s in Lanao del Sur province; refer to MIS thesis of Elin Capal, Women in the Bangsamoro Siruggle, Universiry of the philippines,

12 a

99

Several Muslim women conferences such as the Muslim Women Peace Advocates Workshop/Conference inZamboznga City (2003)1s have affirmed the following messages:

No to war as a policy and affirming peace Moroself-determination Empowerment of women

As a non-contestable idea, peace is the most viable option open to conflicting parties - the government and the MILF and even the CPP. As to what path and methodology to be taken, women should lead the discussions. Then maybe self-determination becomes understood.

References and sugested books

Ahmed, Akbar, "Postmodernism and Islam," Roudedge, London,

1,992

Mernessi, Fatima, "'Women and Islam: An Historical and Theological Enquiry, Blackwell Publishers, Oxford, 1991

Tibi Bassam, "The Challenge of Fundamentalism: Political Islam and the New Wodd
Disorder," University of California Press, 1998
Choudhury, Masudul,"Reforming the Muslim Wodd," Columbia University Press 1998

Lucman, Omera, "W'omen in Islam," paper delivered during the Muslim Youth Summit, Asian Institute of Management, December 2003
Turabi,

Dr. Hassan Abdalla Al, "Sfomen in Islam and Muslim Society," $uly 13, 2004) <http:/ /wrnrr.soundvision.com /Info/women /turabi3.asP>.

ls held on Dec. 9-13, organized by the Asian

Institute of Management through senior US Institute of Peace

fellow Amina Rasul

100

Islam and Muslims: A Few Observations

Rossmia Coo
College of

Isknic

Rtuealed Knowledge and Haman J'denns

I n tematio n al I s lamic U niuerci lt, Ma /a1 s ia

I can only share my observations as an individual; I speak not for Islam or Muslims. begin with this disclaimer because if you really wanred to know about Islam or Muslims, scholarly works have been written on the subject that you ought to consult rathet than amateurs like me. And may I warn you that one book might not be quite enough for an understanding that only teeters on the flimsiest edge of profundiry because diverse viewpoints produced by different intellectual movements liter the study of Islam and Muslims.

The local or global Muslim question is complex; that some people would have the audacity to reduce it to territory or some other single facror is baffling. The Muslim condition is an intricate web of factors that make for challenging studies in social science. There is no simple explanation of the Muslim condition and you would do well to take every simple explanation not with gr^ln of salt, but a bucketful.

You would understand, then, the difficulty of writing this piece. I have no choice but to direct you to the library and ask that you read the work of people light years wiser and more knowledgeable than I am. That is, of course, if you wanted to form a faft optnion of your Muslim brethren. If not, I hope you suspend judgment until you do so because an appreciation of Muslims based on recent headlines and prevailing media reporrs is nor an
appreciation at all. Choose your books and scholars carefully because even their observations and analyses are informed by certain preconceptions or experiences p^rttcular to a specific

time and place. Alas, this brings me to my own observations about Islam and Muslims, which are *y own very limited reading and personal experience.

gready influenced by

\X4rat is Islam? Many Muslim scholars will readily tell you that Islam is not a religion, but a deen. Although deen, a Qur'anic concept, is often literally translated as re/igion, scholars Iike Ahmet Dar,'utoglu warn that the semantic gap between the term re/igon and deen creates a "misimagination". Religion, it seems, is too limited a word for deen. It would lead to a definition of Islam, Davutoglu notes, "within the semantic context of the \Western conceptual fiamework", subjecting your understanding of Islam to the language and concepts of a different paradigm, which would nor be an undersranding at all.

of ritualistic worship like bowing or prostrating in prayer or performing the pilgrimage in Makkab or Mecca. Certainly, deen encompasses that, but the concept definitely extends beyond ritual to cover most every form and practice in human life from oral hygiene to building civilization. As one writer puts it, Islam as a deen covers "the entire gam.rt of
existence".

Louay Safi aptly translates deen as "a set of beliefs and values that guide actual forms and practices". You might mistake the phrase forms and practices to man the and practices forns

101

Note that these forms and practices are not atbitrary, but guided by a set of beliefs and values contained in the pur'an and Sunnab (the way the Prophet Muhammad, peace be upon him, lived his life). Principles are set forth in the pur'an and an example of the tianslation of those principles into existennal rcaltry is in the Sunnah. Thus was Islamic ctvtltzatton built; the very forms and practices -political, cultural, social, economic, legal that made Islamic civilization what it v/as emerged as Muslims translated the principles contained in Islamic revelation into a living reality; a way of life; a deen.
Forms that emerged from Islamic civthzatron were the Klsilafah (Caliphate), the'alim (alana), the madrasal, the Sultanates, and the Arabesque in art and architecture, to name but a few. Practices such as shara (consultation), giving qakah (alms), orwearingthe satr (veil) are three examples among many. These forms and practices were guided by Islamic principles, but as much as they were or are, Muslims are not necessarily consistent in such forms or practices. The danger in viewing such forms and practices aPart from history is thus upput..rt because forms and practices are not immune to historical context. Judging a ..itri.r form or practice, then, requires considering historical context so that the universal principle is not confused with its particular expression in form or practice during a specific time, in a specific place.
expression in form or practice of a universal principle in Islam is mistaken for the universal principle itself. For instance, one Muslim lady thought that the only permissible garments for a Muslim woman to wear arc 'ttadittonal' garb -

I often find that the particular

clothes that were designed during a specific time, in a specific place. There is the sha/war khameeqfrom the geographical area now known as Pakistan, the jubba from Arabia, and the malong from the southern Philippines. These garments were conceptualized with the principle of modesry in mind, but that principle was interpreted in different ways in different p^ttr of the world. None is less Islamic than the other because they are all particular expressions of the same principle. Since that is the case, why would a flew design today that adher"s to the same Islamic principle of modesty be any less valid than those that were
designed ages ago?

think Islam is often misjudged this way. Islamic principles are identified with the particular forms and practices and the judgment of those forms and practices becomes the judgment of the Islamic principle. Again, forms and practices are not immune to context while universal Islamic principles are. Forms and practices during the rise and climax of a necessarily different from forms and practices during the civilization, for instanc e) ^re anyone have an identical assessment of the Caliphate during decline of a civlltzation. Could Islamic civtltzattonal ascent and the Caliphate during Islamic civilizational dec[ne? Cetainly, the different periods in Islamic history posed different challenges to such an institution and the insritution was necessarily dynamic in responding to the different challenges through time and space until it could respond no mofe when it collapsed in 1'924.

error in identifying particular forms and practices with the principle. The Caliphate was an institutionahzatson of the concePt of Khilafah. That the itrstitntiol no longer srands says nothing about the principle that guided its creation; rathet, it speaks of the ..rrr..rt inabiliry of Muslims to translate the principle into a living, working t.ulity. And this inabiliry speaks volumes, in turn, about the state of Islamic civilization, but that is an entirely seParate discussion.

It is then

easy

to

see the

102

Care should therefore be taken in the examination of the forms and practices of Muslims because they may ot may not be true to Islamic principles. til4:ren did such forms and practices crystallize? Was it during Islamic civilizational ascent or descent? Are they open to interpretation or not? \ff4eat conditions necessitated such a form or practice? How did that form or practice change over time and space, if at all? These are some of the questions that I would consider when examining Muslim life. One cannot take a snapshot of Muslim civilization now and conclude that this is Islam. As much as the universal needs to be distinguished from the particular, the ideal needs to be distinguished from the actuaT. There is infinitely more to say, but I am past my word limit. Let me conclude with the thought that not everything is as it seems. Behind the much-maligned image of Islam and Muslims lurks a substantial civilization - one that, believe it or not, promises humanity the gift of genuine peace.

103

EMPO\(/E,RING THE PEOPLES: USE, OF FORCE IN THE EXERCISE, OF THE RIGHT OF SELF-DE,TERMINATION
Maruin V. Mnangkal,
Atenea I ttw S'choa/, Clast 2005

I. INTRODUCTION
self-determination of peoples is considered as one of the "most important and most obscure principles of contemporary internatlonal law and practice."16 The right of self-determination is highly significant in international law because it justifies the "most far-reachttg political realignments in recent international history, those associated with the collapse of imperialism and the post-Wodd \Var II movement toward colonial independence."lT As a result, the principle has been widely accepted as a main principle of international law.

The right

of

Unfortunately, the right of self-determination of peoples can be interpreted and in reahty, is interpreted in numerous ways due to the lack of a particular interpretation. Such variety of interpretations resulted in the confusion surrounding the said right. Even the United Nations failed in providing concrete guidelines that would delineate the actual scope and application of the right of self-determination of peoples. The thrust of this thesis is to determine the scope and limitations of the right of self-determination, particulady with regard ro rhe permissible means that can be used by the peoples in the exercise of the said right.

A. BACKGROUND OF THE STUDY

1.

Ifistorical Background
a. Post World War

The historical development of the right of self-determination would reveal its emergence in public international law from a vague principle to a recognized right. The modern concepr of the right of self-determination entered international politics at the end of Wodd War I. Following the War, many witnessed the dismantling of several large nation states, such as the Ottoman and Austro-Hung rlan empires. The various minority grouPs that broke away from the larger nation states developed nationalistic aspirations of their own. The principle emerged as the leading principle in European territorial settlement.ls
During the said post \World War I era, the right of self-determination was also considered as the foundation of international peace to address the possibility of continued
conflict befween the newlv formed states.
16

CHARLES BEITZ,POLITICAL THEORY AND INTE,RNATIONAL RE,LATIONS 92 (1'979) IheTeiNaftET

Id.

BEITZ]
17 18

\(/ENT\flORTH OFUATE,Y_KODJOE, THE, PzuNCIPLE OF SE,LF.DETERMINATION IN

INTERNATI ONAL LAW 6 9 (197 7). lh ere i n afn r OFUATEY-KODJ OEI

r04

According to U.-f. President lVoodrow lVilson: "self-determination was afl imperative principle of action..."te In his speech in the U.S Congress in February 1.1.,1918, he said:
fP]eoples are not to be handed about from one sovereignty to another by an international conference or arr undertaking between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self-determination" is not mere

^ phrase. It is an imperative principle of action which statesmen will

henceforth ignore at their peril.20

Thus, the main thrust of the allied powers during the said period is the idea of liberating nationalities from alien rule, which is the principle of national liberation, which was also considered, during that time, synonymous with the right of self-determination.2l
ends, the allied powers developed two key systems that would protect the right of self-determination of peoples, namely: the Minoities Protection S-ystem and the l-eague of l{ations Mandate Slstem.

In pursuing such

i. Minorities Protection System

Under this system, the allied powers were to guarantee to some national minorities a measufe of autonomy in consonance with the idea that "the requirements to selfdetermination might be met by assuring autonomy and self-government to every people as a component member of a regional federation."t2 lts objective is to assure non-discrimination towards the minorities and the preservation and development of their national culture and '23,lt consclousness.-' Ihis was meant to apply only to all known national minorities. However, the mere existence of a minoriry nationality did not impose on the state "an obligation to accept to adopt a system of guarantees of the rights of minorities."" The obLigation existed only in situations where historical and other circumstances suggested that the minoriry was Iikely to be oppressed."

The rights that were granted to the national minorities and should be guaranteed by the state were in fwo categories. The first category of rights is that "members of all nationalities, including minorities, were entitled to full rights of citizenship (and option) including rights to life, liberty, and religious freedom, and complete equality of all citizens, irrespective of nationalitv, with respect to civil, legal, and political rights."2r'
le
20

http: / / faculty.lls.edu/manheim/ns/cumming.htm OFUATEY-KODJOE, tilpra flote 3, at75 citingRay S. Baker and \Iilliam e. Dodd, eds., The Pablic Paper

oJ

Yol. 1 180 (1927). 2lOFUATEY-KODJOE, silpra note 3, ar76-77. 22 Id., at85, citing OSCARJANO!flSKY, NATIONALITIES AND NATIONAL MINORITIES flX/ITH SPECTAL REFERENCE TO EAST-CENTRAL EUROPE) 107 (1945). 23 OFUATEY KODJOE, sllprd note 3, at 85.
IYoodrdw lVilson,
24

Id.

2;f )
26

Id.,at85-6.

105

The second category of rights guaranteed under this system are "the right to the free languages in a variety of situations, including before the courts and in their own charitable, education, and religious and social institutions, which they had a right to orgatize and control at their own expense, and where they form a 'considerable proportion of the population,' with the aid of an 'equitable share' of public funds."2t Further, the national minorities also has the right to instruct their children in their own language in areas where they form a considerable proportion of the population.28
use

of their

ii.

League of Nations Mandate System

The League of Nations Mandate System was based on the concepts of trusteeship and tutelage. These rwo concepts implied that "the rule over backward peoples should be viewed as a trust undertaken by an imperial power for the development of those people toward maturity and independence."2e
According to the League of Nations Covenant, "the mandate system applies to some specified colonies and territories...which are inhabited by people not yet able to stand by themselves under the strenuous conditions of the modern wofld."30

The system's ultimate purpose therefore was to secure the development of peoples who are not yet able to stand by themselves by placing them under the trust and tutelage of more advanced nations acting as mandatories on behalf of the League of Nations.3l The mandate system was envisioned as merely a "provisionary system designed to enable populations which, politically speaking, are still minors to educate themselves so as to anive one day at full self-government."32 Further, "according to the intent of the mandate system, people of the territory were supposed to be ready to emerge from the wardship status into maturity when they showed themselves as being capable of standing alone. The mandate system was not only a system of establishing the status of the peoples of the mandated territory but was also a system that contemplated and eventual and prescribed change in
their status."33

b. In the Era of Decolonization i. Allied Foreign Policy in Post World War

II

The era of decolonizatton is the period after the Second \Wodd War up to the present time. The right of self-determination was again reintroduced by the allied powers at the end of \X/odd Sfar II and was considered as the main component of the allied program for a stable international order.3a The purpose was primarily to solve the conflicting

21 28 2e
3t)

Id.,at86 citinglNls L. CLAUDEJR., SWORDS INTO PLOUGHSHARES

Id.

166 (1964).

OFUATEY-KODJOE, rtlpra note 3, at 88.

Id., at 89.
Id.

31

t2
33 3a

ld., at90 cirtngPermanent Mandates Commission, Minules,YlI, at 202.

OFUATEY-KODJOE,
Id.,ar97.

ruPra note 3, ar91..

106

territorial problems that plagued continental Europe as the result of the war. In conjunction with this, United States President Franklin D. Roosevelt and British Prime Minister'Winston Churchill signed, in August, 1941,the Atlantic Charterwhich states that "they desire ro see no territorial changes that do not accord with the freely expressed wishes of the people
concerned...they respect the right of allpeopks to choorc theforn of gouernment ander which they wish to liue; and thel wish to see souereign igbts and self-gouernment restored to those who baue been forciblt d Eri ue d of th e n..fitahcs supplied] "3s

The signing of the Adantic Charter and its acceptance by the Declaration of the United Nations sealed the status of self-determination as one of the main principles of allied posrwar policy."
The allied postwar policy not only reintroduced the concept of self-determination in public international law but also extended its scope to all peoples, including the colonies outside Europe. Thus, the Adantic Charter embodied recognition of the right of colonial peoples to independenc.." However, they still continued the system of trusLeship arguing that the "trusteeship is based on the recognition of the right of self-determination; it is a method of making it operationally possible for a group to exercise its acknowledged right of self-determination by developing its capacity to do so...it is the motivating pdnciple by which a group is prepared for political maturity, indicating that it has acquired the capacity to exercise its right of self-determination."tt Thrls, trusteeship is not an abrogaaon of the right of self-determination of peoples but it merely delayed the exercise of the said right for the well being of the people s themselves.

ii.

The United Nations

On December 10, 1952, the United Nations, through the General Assembly, issued General Assembly 648 (VII), which provisionally approved the idea that a territory may attatn a full measure of self-government by one of the three ways, namely:

4 b) .)

the attainment of independence; the attainment of other separate systems of self-government; and the free association of a territory with other componenr parts of rhe merropolitan or other countrv.lq

The issuan.. United Nations General Assembly Resolution 648 signaled the ", beginning of the step-by-step decolonization of the different territories under trusteeship. Just a few days after Genetal Assembly Resolution 648, the General Assembly adopted another resolution based on the report of the Human Rights Commission, whereir the incorporation of the right of self-determination was endorsed.at'

35

Id.,at98

361d.

3'Id.
38

Id., at 101,.

3eId., aaId.,

at 11,5. at 1,17.

107

Finally, in 1959, the General Assembly adopted Resolution 1541 (X\|, otherwise known as the Declaration on the Granting 0f Independence to Colonial Countries and Peoples which decreed for the end of the trusteeship system on the sole condition that such is the free choice of the dependent peoples themselves.o' The principle contained in this resolution has been re-affirmed in succeeding United Nations resolutions regarding the right of selfdetermination.

2. International fnstruments Recognizing tbe Rigltt of Self-Determination

The right of self-determination has been declared in other international treaties and instruments, is generally accepted as customary international law and even forms part of jas
cosent

Article 1 of the United Nations Charter specifically states: [Alrticle 1. The purposes of the United Nations ^rei...

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take othef appropriate measufes to strengthen universal peace.o'
Article 73 of the Charter further provides:

[A]rticle 73. Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interest of the inhabitants of these territories Me pmlmounq and accept as a sacred trust the obligauon to promote to the utmost, within the system of international peace and securiry established by the present Charter, the wellbeing of the inhabitants of these territories, and to this end:
(a) To ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

(b) To develop self-government, to take due account

of the political

aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular citcumstances of each territory and its peoples and their varying stages of advancement...a3

General Assembly Resolution 1514 or the "Declaration on the Granting of Independence to Colonial Territories and Peoples," the General Assembly absolutely recognized "[t]hat all peoples have an inalienable right to complete freedom, the exercise of

In

al Id., at 1,20.

a2United Nations Charter, Art. 1 (2). a3United Nations Charter, 4n.73.

108

the sovereignry and the integrity of their national territory..."a4 Thus, the General Assembly of the United Nations, in the said resolution, declared that "rhe subiection of peoples to alien subjugation, domination and exploitation consrirures a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impedimenr to the promotion of wodd Peace and cooperation."4s It further provides that"allpeoples have the right of self-determination; by virtue of that right they freely determine their potiticat status and freely pursue their economic, social, and cultural developmenr."lb To emphas tze the primacy of the right of self-determination, the United Nations even deilared that "inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence."aT

The status of the right of self-determination as a fundamental and an inalienable right was affirmed in the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights. According to Common Article
1

ofboth covenants:
Article
1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development.
44

u.N. GAOR, 15'h Sess., Supp. No.

16, at 66,

u.N. Doc. A/

4694 (1960).

The fuil texr srates;

inalienable right to complete freedom, rhe exercise of their sovereignry and the integriry of their nadonal territory, Solenn1 proc/ains the necessity of bringing to a speedy and unconditional end to colonialism in all its forms and manifestations; And to this end
Dec/ares

[7] he C en era / As sem b /1 : Conuinced that all peoples have an

thzt:

promotion of wodd peace and cooperation. 2. All peoples have the right to self-determination; by virtue of that right they freelv determine their political status and freely pursue their economic, social and cultural development. _ 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for
delaying independence.

The subjection of peoples to alien subjugation, domination, and exploitation consritutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the

1.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to erercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 5. immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories g,hich have not )ret attained independence, to transfer ail powers to the peoples of those territories, rvithout any conditions or reservations, in accordance with their freely expressed witl-and desire, without any distincdon as to face, creed, or colour, in order to enable them to enjoy complete independence and freedom. 6. Any attempt aimed at partial or total disruption of the nationai unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7. All States shall ohserve faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equaliry, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peopies ,nd ,t"i, territorial integriry.
:.
1'.

Id. Id.

1- r)

109

for their own ends, freely dispose of their natutal wealth and resources without prejudice to anv obhgations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
AII peoples may,

2.

responsibiliq,' for the administration of Non-Self-Governing and Trust Territories, shall promote the reahzatton of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.a8
1988, The United Nations, "deeply concerned of the continuation of acts or threats of foreign military inten-ention and occupation that afe thfeatening to supPfess or have already ,.rppt"rres rhe right to self-determination of and increasing number of sovereign peopl.i and nations"oe and "expressing grave concern that as a consequence of the of srrch actions, millions of peoples have been and are being uprooted ftom their p.rrirt..r." ^h,r-., as refugees and dispiaced persons, and emphasizing the urgent need for concerted international action to alleviate their condition,"5(' re-affirmed "the universal realtzatton of the right of all peoples, including those under colonial, foreign, and alien domination, to selfcietermination, is a fnndamental condrtion for the effective guafantee and observance of human rights and for the preservation and promotion of such rights."sl

3. The

States Parties to the present Covenant, including those having

In

The protection of such right is underscored by the fact that the "dght of selfdeterminatior. i, , right which reflects the impotance given to communities, collectives and families in many societies and the general inherent communal quality of humans. The purpose of the pfotection of this right is to enable these communities, as communities, to ptorp.r und transmit their culture as weil as to participate fully in the political, economic and r".irt process, this allows the distinct chatacrer of a community to have this character reflected in the institutions of government under which it lives. It also forms pat of the empowering process of human rights. Thus the right ptotects people from being subiect to oppr.ssion-by subiugation, domination or exploitation because, as the African Charter makes clear, 'nothing-shall ]ustif,v the domination of a peopie by another"'5' It is the ultimate expression of nationai sovereignry, thus: "...every nation qwa cohesive and distinct sociai ,r.rit is inherently seized of the quality of 'national sovereignty.' This 'national sovereignty' is the quintessence of what constitutes a nation, both spiritually and materially; it corresponds to rhe sum total of those inalienable rights of a given human group, which stamp it as a nation. This core element rs the source from which flow ali secondary rights-that accompany this 'national rdentity'- inter alia the right to political, economic and cultural autodeterm ination.""
Supp' Intemationa/ Couenant an Ecanomic, J'orial, and Cuhura/ Kights, annex to G.A. Res 2200,21 U.N. GAOR (1960, A/6316 doc' Nght:, U.N. Politica/ and 071 Ciuil Cauenailt No. 16 (1966),Article 1; See also lnternational
+s

Article 1. 4e U.N. Doc. A/RES43/10 (1988).

50 51
52

Id. Id.

http: / /q,'wlv.eleves.ens.fr/nome/b1ondee1 /law'html

110

B. STATEMENT OF THE PROBLEM

The obscurity of this the principle of self-determination lies on its various interpretations. Although the U.N Charter is the most important document embodying this principle, it has limited information about the extent and limits of the said principle.st One problem that this poses is when and in what situations would this principle apply. According to Cbarlet Beitq
While self-determination derives its importance from its role in the justification of colonial independence, it derives its obscurity from attempts to use it to jusrfy other international realignments. In the mid-nineteenth century, the principle was formulated (..g., by Mazzini) to iustify the unification of such fragmented nations as Italy and Germany. Early in the twentreth century, it was appealed to by Woodrow \Wilson, among others, in negotiations over the post-\ilorld War I boundaries in Europe and the settlement of coloniai claims. Lenin relied on the principle to promote opposition to colonial regimes, and in his polemic with Bukharin,
Luxembutg, and others to characterize nationalism as a revolutionary force in the age of imperialism. More recently, the principle has been invoked in support of the struggles of oppressed racial majorities (in Rhodesia and South Africa) for self-rule. It has been appealed to in criticism of the effects on poor countries of private foreign investment and multinational corporate activity. What may become another period of international realignment has been signaled by the demands of ncial and cultural minorities within established states for re cognition as indepe ndent peoples under this
principle.s5

This lack of particular interpretation also poses the problem of methodology or the permissible means under international law in the exercise of the right of self-determination. One such question is whether or not peoples may use force in the exercise of their right of self-determination. This thesis makes a modest contribution in giving light to the said query.

C. SIGNiFICANCE OF THE, STUDY

The right of self-determination is perhaps the most invoked right in conremporary international relations. According to Ven tworth Ofu alE -Ko djoe:

fFlor the past two decades, it has been the batde cry of colonial peoples in their struggle to extricate themselves from European imperial domination and to "emerge" into full political sovereignty and participation in international affaus. But this has not been the only process in which the right of self-determination has been invoked. Even now, there are groups all over the wodd, and in such divergent circumstances as Bangla-Desh,
everywhere
S3OFUATEY-KODJOE, :ilpra note 3,at 45. s4 CHRISTOPHER O. QUAYE, LIBITRATION STRUGGLES IN INTERNATIONAL LAnfl 213 (1991).
5t
fhercinaJter

QUt\YE]
1.,

BEITZ, raprd note

at94.

111

Northern Ireland, Quebec, and southern Sudan, who are involved in serious conflicts that arc linked with the principle of self-determination...Many of these conflicts have led to a widespread breakdown of public ordet and bloody confrontations that have come dangerously close to civil war.'u

Most of these violent conflicts, if not all of them, are the result of the lack of concrere guidelines in the exercise of the right of self-determination of peoples under international law. Even the United Nations have found it difficult to identify the actual scope and limitations of such right and, sadly, even added to some of the confusion surrounding the right of self-determination through the use of vague tefms that afe open to
various interpretations.

The purpose of this thesis is to bridge the gap between the various and often conflicting interpretations regarding the exercise of the right of self-determination, more
specifically, with regard to the permissible means with which the right can be exercised.

This study is also very significant in the Philippine context for the reason that the Philippines is also facing its own liberation struggle from the Bangsa Moro. The Bangsa Moro are invoking their right of self-determination as the iustification for their armed struggle against the Philippine Government. Although the said issue is not the principal topii of this thesis, nevertheless, the proponent will discuss the liberation struggle of the Bangsa Moro/Moro Islamic Liberation Front, but only briefly, to show the relevance of this thesis in the Philippine setting.

D.

SCOPE AND

LIMITATION

discussed above, the right of self-determination is a complex principle in internarional law due to its varying interpretations. Its actual scoPe and application is still a topic for academic debate not only in universities but also in the United Nations and in the International Court of Justice.

As

This thesis shall not discuss all the issues concerning the right of self-determination but shall only dwell on the issue of whether the use of force by peoples in self-determination struggles is permissible under international law. Self-determination struggles will be limited to a*o kinds, namely: self-determination strugles against colonialism and non-colonialisn selfdetet%lination strugles. The non-coloniaLism self-determination struggles would only focus on the struggles 6y p"opl.r against oppressive governments, i.e. governments that are committing genocide against the minorities.

After the Introduction in Chapter I, the right of self-determination will be discussed more exhaustively in Chapter II of this thesis. The discussion will include the various theories regarding the right of self-determination and its apphcation in international law through roin" oith. .ur., decided by the lnternational Court of Justice that involves the said ri ht. It will be followed, in Chapter III of this thesis, by a brief discussion on the status
56OFUATEY-KODIOE, supra note 3, at
1.

r12

of the use of force under international law. Chapter IV will be concerned with the principal topic of the thesis, which is the use of force by the peoples in the exercise of their right of self-determination. Finally, the conclusion and recommendations of the proponenr will be discussed in Chapter V. To show the relevance of this thesis in the Phiiippine serting, rhere will be a brief discussion concerning the armed struggle of the Moro Islamic Liberatron Front. However, it must be noted that this thesis is not about the Bangsa Moro struggle for self-determination. As such, the proponent shall only make use of and shall be limited ro the general information available with regard to the struggle of the Bangsa Moro and such discussion shall not be extensive. The liberatiofl struggle of the Bangsa Moro is a proper topic lor another thesis.
E. DEFINITION OF TERMS

In this thesis, the following terms shall be used:

a.

Right of Self-Determination - the right of cohesive national groups to choose for themselves a form of political organizatton and their relation to other groups. The choice may be independence as a state, association with other groups in a fedetal state, or autonomy, or assimilation in a unitary state.s? (This right shall be more exhaustively discussed in Chapter II of this thesis)
Peoples

b.

c.

-- national cohesive groups with distinguishing

characteristrcs (i.e. history,

language, ethnicity and have a territorial claim to land.st

II. THE RIGHT

OF SELF-DETERMINATION

A. VARIOUS THEORIES ON

THE RIGHT OF SELF-DETERMINATION

lhe p/ebiscite tbeory,.

In international public law, there are three competing theories on self-determination,

namely: tbe national equalifii tbeory, tbe national deterruinism lheory, and last1,

1.

National Equality Tbeory

The National Equality Theory was the theory advocated by some of the mrnority nationalities of east and central Europe and the Russian Bolsheviks.se The main rhrust of this theory is that States have equal sovereignry and should be free from any external control in shaping its own history. According to one of its advocates, Joseph Stalin: "The right of self-determinatron means that a nation can its life according to its own will. It has ^rr^flge the right to aff^nge its life on the basis of autoriomy. It has the right to enter into federal

57IAN BROWNLIE, PRINCIPLES OF PUBI-IC INTERNATIONAL BROSyNT-rEl 58http: / / faculry.lls.edu/manheim/ns/cumming.htm 5eOFUATEY-KODJOE, sapra note 3, at 29.

LA\\'

599 (5,r' ed. 1998) .lhereinafier

t1.3

relations with other nations. all nations are equal."6t'

It

has a right to complete secession. Nations are sovereign and

As can be inferred from the above statement, this theory basically only gives the right of self-determination only to States and not to the people mainly due to the fact that it is based on nationality defined on the basis of common territory. Further, it also restricts the exercise of the right of self-determination. According to this theory, the said right can only be used bt' territories under imperial control of another nation, either "oppressed nationality or cr-,k-,nies.t'1
2. National Deterrninism Tbeory

This theory follows the rule "one nation, one state." It is based on the notion of nationality as an ethnic communiry,o'u congregation of persons having the same blood ot ethnic background. This theon' defined national self-determination as "the right of each nationality to constitute an independent state."('3 This means that not only that each nation should form a state but should also be ethnically homogeneous. This has been the theory advocated by the German Nazi government and the main thrust of its foreign policy. It is the only theory that did not have any advocates after the Second Wodd War due to the notoriety it had acquired as a result of the use that the German Nazis had made of it in their
expansionist aggression.t'o

3. Plebisci.te Tbeory
Advocates

of this theory

believe that the nation is the state. According

to

this

theor,v, the idea of self-determination is the continuing political consent of the inhabitants of a state;('5 national self-determination simp\'means self-government, which is the "realization

poLitical ideal of freedom."66 Thus, within the nation, which is also the state, the people have the right to decide collectively all matters affecting the state and the nation. To

of the

the adherents of this theor|, the theory of national determinism is totally unacceptable. According to them: "To claim, therefore, that every nation must form an independent state is to substitute for true self-determinism a very different thing, which could rather be cailed national determinism."6T

('ttld.,

at29

ciringJOShF STALIN, ]\{ARXISN{

AND THF, NATIONAI- AND COLONIAL QUESTION

19

(1e36).
rilp rd note 3, at 30. at 36. 63 ld., at 3(1. (,a Il., at 42. According to ()fuate,v-I{odjoe: IA]n example of an implied denunciation of rhe national detemtinisnt ptittciple is found in the report of the discussions in Committee 2 of Commission 1 of the San Francisco Confercnce concerning the principle of self-determination. ln presenting the report N{r. Zeinedienne, the rapporte ur of the committee, stated that, according to the understanding of the Committee, "...the essential element of thc principle in <luestion is a free and genuine expression of the u'ill rif the people, u'hich avoids cases of alleged expression of the popular u'i11, such as those used for their ou.n ends b1' Germanv and ltalv in later vears..." Ur'.r*(ll() Documents, Vol. 6, Doc. No.944I/1/34(1) flune 13,1945). 6i( )FUATEY-K()DJ()E, silPm note 3, at 31..
6r

()FUATEY-KODJ()E,

('2Irl,.

66

Id.

('-

Id.,at32 citin3C.A. N{(I(IARTNEY, NATIONAL STATES AND NATIONAL NIINORITIES

100.

114

B.

DEFINITION OF THE RIGHT OF SELF.DETERMINATION

The right of self-determination has been defined, basically, as "the right of cohesive national groups ('peoples') to choose for themselves a form of political organizatton and their relation to other groups. The choice may be independence as a state, association with other groups as a federal state, or autonomy, or assimilation in a unitary state."('8

"right of the peoples to determine their own political destiny; this might mean incorporation iflto state, or some measure of autonomy within a state, or somewhatlarger degree of freedom in a federation, a commonwealth or a union; or it might mean complete independence."('o
Professor Eagleton defines the right

of self-determination

as the

Such definition, however, does not justify nor fully comprehend the magnanimity and complexiry of the said principle in contemporary international law and politics.

According to lV en tw o rth Ofu ateyKo tl o e:

Over the years, the right to self-determination has been claimed by diverse groups, in a variety of situations, and for the sake of rcaltzing such apparently contradictory and incompatible aims that it has seemed as if the principle could not possibly be defined. Nowhere is this problem more in evidence as

it is in the United Nations,

bewildered.'('

where the concentration and telescoping of diplomatic activity has led to such rapid-fire advancement of contradictory claims and counterclaims that observers have often been left quite

One element that is open to various interpretations is the element of "peoples" or who is entitled to exercise the right of self-determination. With regard to colonies, international lawyers and furists unanimously that colonial categories of trust territories ^gtee and non-self-governing territories are entitled to the exercise of the said right, as clearly enunciated in General Assembly Resolution 1.51.4 or the "Declaration on the Granting of Independence to Colonial Territories and Peoples." Horvever, with regard to non-colonial cases, authoritative writers differ in their views. According to Dr. Hans Ke/sen, the right of self-determination must be interpreted in the light of Article 1,, paragraph 2 of the Unite d Nations Charter. It is in Dr. I(elsen's view
that:

The term "nation" in the formula of the Preamble probably means states; the term "peoples" in Article I, paragraph 2, may have a different meaning, for in its connection with self-determination it may not mean the state; the population. Self-Deternination of tbe people usaalj designates a pinctple of interua/ poliry, the pinciple of demoratic gouemmenl. However, Article 1,, paragraph 2, refers to relations among states. Therefore, the term "peoples" 166-in
68BRO\ilNLIE, supru note 42. 6eOFUATEY-KODJOE, rrlpra note 3, at 45.
10

Id., at 2.

115

connection with "equal rights"-means probably states, since have equal rights according to general international law...

only

states

That the Purpose of the Organtzaaon is to develop friendly relations among states based on respect for the principle of self-determination of the "peoples" does not mean that friendly relations among States depend on the democratic form of government, and that the purpose of the Organization is to favor such form of government. This would not be compatible with the principle of "sovereign equality" of the Members; not with the principle of non-intervention in domestic affaks...If the term "peoples" in Article 1, paragraph 2, means the term "nations" in the Preamble, then "tt/f determination of tbe peoplef in Article , paragraph 2, can on/1 mean souereignry of tbe
1

states.1l

Thus, based on Dr. I(elsen's interpretation, the right of self-determination can only be pursued solely by States. This view is shared by Sinha. According to Sinha: "A state's obligation under international law may find its counterpart in another state's right, but not in the right of a people...It is either a state or the community of states forming the United Nations which can seek performance of a state's obligation to accord self-determination to its people, not the people of that state...\Xtrat is involved here in terms of international law is the international obligation of a state and not the right of its people."72 However, critics would dismiss this view of I{elsen and Sinha mainly because of the fact that from state practices and United Nations resolution on the subject matter are "abundantly clear that the object of the principle is non-states."73 Further, according to /. Crawford: "...the right of self-determination, vested in a particular people, is a right against the State which presently administers and controls the people...it is also no doubt a right against other goverflments...it follows...that the right of self-determination, where it exists, is not vested in any government but is vested in the people concerned.To

This view is shared by the other two schools of thought in interpreting "peoples." Howevef, that is where their common interpretation ends.

On the one hand, one school of thought-the Liberalists, would adopt a liberal approach in interpreting "peoples." This goup interprets the principle of self-determination with greater latitude and considers it to be enioyable by all peoples, whether within or
without states. According to the liberal view:

The beneficiaries of the right are the people themselves, within a defined territory, not the territory to which they belong. The right to selfT1OFUATEY KODJOE, rapra note 3, at 42 citing HANS KELSEN, THE IAnfl OF THE UNITED NATTONS s1-2 09s0). '2QUAYE, ylpra note 39, at 277 citingSrnhz, Self-Deterwination in Intemational Law and it Applimbili4t to the Peoples, Res Baltica 256-57 (1968) quoted in SECESSION: THE LEGITIMACY OF SELF-DETERMINATION 23 (I-. Buchheit ed. 1978). 73QUAYE, srpra note 39, at 218. T4MARTIN DIXON AND ROBERT MCCORQUODALE, CASES AND MATERIALS IN

INTERNATIONAL LAW 250 (1991). fhereinafterDlXoN AND MCCORQUODALEI

r1,6

determination is the right of the people-not of a non-representative rulerfreely to determine their political status and to pufsue their economic, social, and cultural developments without discrimination. The proponents of the equation viz. peoples-nations-st^tes, of the view that self-determination ^re of peoples only means sovereignty of States and it does not postulate any democratic form of government. The major premise of the theory is that States alone have equal rights and the Charter grants specific rights only to States and not individual human beings or groups of them. The basic foundation of this theory, it is submitted, is erroneous because it ovedooks the preamble of the Charter, enumerating the ends to be achieved, which provides tnter alta, for "the equal rights of men and women and of all nations large and small." As a matter of interpretation, the use of the word "and" is very significant. In other words, on a national plane, the nation must be based on equal rights of men and women.t'
Chowdhury, a proponent

of this liberal view, adds:

The application of the principle, however, is not confined to colonial or trust territories. It is of universal application. It would therefore also apply to territories which are technically independent but wbose peoples do not enioy full governmental powers. The fact that the principle is of universal application is further strengthened by the provisions of Principle 5 of the 1970 Declaration. ..It provides that the defense against secession or dismemberment of the territorial integrity or poLitical unity is only available to those "sovereign" and independent st^tes clilducting themse/ues in conp/iance with the principles of equal rights and self-determination of peoples as described above and thas possessed of a gouernmenl representing the whok peopler belonging to the territory without distinction as to race, creed, or color.' [emphasis suppliedl It is tberefore dfficalt to contend that an independent State can with impunlyt denl representatiue gouernment to its peoples and 1et clain that it has in good faitlt
imp
le mented tb
e

princip le of

se

lf-deternination.l

On the other hand, another school of thought- the Conseraatiues, would adopt a restrictive approach, "equating 'peoples' with colonial peoples and arguing that the right ceases to exist as soon as a colony attains independence."TT The argument is based on the premise that self-determination emerged in international law only as a rule of decolonization and "[]ts formularion and application in international law preclude any definition of 'peoples' broader than colonies."78
751d.,
161d.

at 279.

Id., at 218 T8KAREN KNOP, DIVE,RSITYAND SELF_DE,TERMINATION IN INTE,RNATIONAL LA!7 54 (2002). fhereinaJterI{NOP]. Karen I(nop further adds in her footnote 14: "[A]lthough the argument for. 'colonies only' interpretation of self-determination varies from author to author, the most common steps of the argument are (1) self-determination was not recognized in international law prior to the development of a right of self-determination for colonies; (2) when the right of self-determination did enter international law, it was formulated in such a way as to deny the right to any peoples other than colonial peoples; (3) the principle of ati pasidelisi, which preserves existing boundaries upon independence, reinforces the principle of territorial
71

t17

According to Emerszn, a proponent of this view, the liberal view on the intetpretation of "peoples" is one verging on the meaningless.tu He further adds that the liberal approach is a "declaration of an extreme liberation o( even anarchistic variety, authorizing any group which designates itself as a people to disrupt the existing poliry and set up a new one which meets their desires."8(' Thus, in his interpretation, "self*determination has meaning only if the peoples to whom it applies arc, by some form of consensus, specifically identified in advance, and that the place, the time, and the circumstances under which it is applied are all similarly pinned down."8t J. Crawford gives light on why some writers adopt this conservative view on the right of self-determination. According to him:

fl]irst of all, the right to self-determination, vested in a particular people, is a right against the State vrhich presently administers and controls that peoplefor example, a right against the colonial gor-ernment concerned. It is also, no doubt, a rtght against other governments, which may be by assistance to the colonial regime, through acts of inten'ention on their part or in any other ways impede the exercise of the right to self-determination of the people concerned. But the primary impact of the right against the government of the State in question, and one of its main effects is to internationalize key aspects of the relationship between the people concerned and the State, represented by its government. Indeed it is precisely for that reason that some writers oppose the extension of the principle of self-determination beyond colonial and quasi-colonial situations, since there is no justification in their view for elevating the relationship between the whole population of a State and its government to the international level.82
Further, according
Boutro.r-Cha/i:

to former Secretary-General of the United Nations,

Boulrot

if

every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation; and peace, securitl and economic well-being for all would become even more difficult to achieve.8s

integriry for newly-independent states by prohibiting any exercise of self-determination by groups within the state; and (4) the interpretation of the right of self-determination as lmited to co]onial peoples is consistent u'ith post-Wodd War II practice because few if any of the new states to emerge from processes other than decolonization were the result of unilateral secession, and this precedent was far ourweighed by the iack of international support for the numerous other attempts at secession." TeQUAYE, rapra note 39, at 218 cttingR. EMERSON, SELF-DETERMINATION REVISITED IN THE ERA OF DECOLONIZATION 1.36-37 (Occasional Papers No. 9 Center for International Affairs, Harvard Universiq) (Dec. 1964). sttqUAYE, silpra note 39, at 21.8.
811d. 82 DIXON AND MCCORQUODALE, silpra note 59, at 250, citingJ. Cravrford, of Peoples: Some Conclusions 164, 165 fl. Crawford ed. 1988).

The

Nght

of Peaples,

The Rights

srSotirios Zachheos,

5'ecession and

Sel;t'-Dennnination-The Ca:e of Clprus,Justice Pending: Indigenous Peoples and

Other Good Causes, Essays in Honour of Erica Irene A. Daes 275, 276 (Gudmundun Alfredson and Maria
Stavropolou eds., 2002)

118

Judge Wildhaber
even though the right

also be interpreted as remedial

distinguishe d J udge Wildhaben

of self-determination is limited to decoloni zatlon, such right should for certain human rights abuses. According to rhe

of the European Court of Human Rights is of the opinion that

Until recently in international practice the right to self-determination was in pr^ctical terms identical to, and indee d restricted to, a right to decolonisarion. In recent yeafs a consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and fl,agrandy violated or if they are without representarion at aLl. or arc massively under-represented in an undemocratic and discriminatory way. If this description is correct, then the right to self-determination is a tool which may be used to re-establish international standards of human rights and
democracy.to

C. SECESSION AND THE RIGHT OF SELF-DETERMINATION

Secession is defined as "the act of withdrawing membership in a group."ss Under international law, secession is understood as an act of peoples, most frequenily from the minoriry, of separating fiom the established governmenr of pzr.ent state and establishing ^ their own state independent for that of the parent state. A number of publicists agree tha; secession is included in the right of self-determination since it includes the righl of the peoples to choose for themselves their form of government or politic al organtzation and such choice can be independence as a state or assimilation in another state.86

Howevet, even though secession is included in the right of self-determinarion, publicists also concede that there is no general right to secede. In international law, the right of self-determination is and should be balanced with the protection of the territorial int.giiry of states. According to PaulJ. Magnarella87: Although the exercise of self-determination can include secession from an existing state and the creation of a new one, it also includes other less dramatic choices. The uN General Assembly's 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States explains that implemenration of the right to selfdetermination need not conflict with the territorial sovereignty Lr political unity of a state. The Declaration provides rhat a people exercising their right of self-determination may choose to form a federation with an .*irtirg ,tut.,
84KNOP, sapra note 63, at73-4 citingLoizidou v. Turkey (A,{erits), European Court of Human Rights, 18 December 1996 (1997) 1 8 Human Rights LJ 50, 59 (concurring opinion of Judge Wildhaber, loiried by;udge Ryssdal). In his academic capacity, see L. Wildhaber, Temtoiai Motlifmtioni aniBreakups in Fileral Stans,33Canadian Yearbook of InternationalLaw 41, a2 Q995); L. wildhaber, Expert Report (nprron re Senession of paebeq [1998] 2 SCR 217 (1998) 37 ILM 1340), reprinted in Bayefsky, Itstons L,earnetl at 64-5. See also kferenrc Secesion of puebec,285-6 (SCR), 1372-3 (L\,D. 85Black's Law Dicrionary, at L351.

re

86BROV\ILIE,

supra note 42. 87PaulJ. Magnarella is a member

of the AAA Committee of Human Rights, Universiry of Florida.

119

integration into an existing State as an autonomous region, or^ "any other political status freely determined by a people" short of secession.ss Thus, secession, in general, cannot be exercised by the peoples in furtherance of their right of self-determination especially if the national government of the said state effectively represenrs the whole population, including the minorities, and are considered to be conducting themselves in conformity with the principle of equal rights and selfdetermination of peoples.o" must be noted however that the territorial integrity of states are far from being immutable. The general rule that secession is not an internationally guaranteed right grants certain exceptions under ex[reme situations. Hurst Hannurn, fot instance, has stated:

It

demand for secession m y ripen into a right deserving of international support where massive human rights violations, approaching perpetrated against a gfoup or region on a the scale of genocide) ^re such circumstances, where there is no likelihood

First,

discriminatory basis. Under of a change in the attitude of the central government (or where the maforiry population supports the repression), secession may be the only effective remedy for the besieged group. Although supporting secession raises setious questions regarding possible outside intervention, it can be morally and politically justified if the undedying abuses are sufficiently grave...However, it is important to underscore that such an exception is based primarily on the need to alleviate human suffering and punish governments for Persistent violations of human rights, not on acceptance of the impossible equation of one nation to one state.

second exception might accept a right to secession and independence if reasonable demands for local self-government or minority rights have been arbitrarily rejected by the central government, even without accompanying
large-scale violence.'u

Hence, only under these extreme circumstances can peoples be authorized to secede from a pafent state in furtherance of their right of self-determination.

D. APPLICATION

OF THE RIGHT OF SELF-DETERMINATION IN

INTERNATIONAL LAW

88PaulJ. Magnarella, TheNghtoJ.\'elf'Detennination

o;f

Pnples; For ful1 rext,iee

a
0-f

http:/Twww.aaanet.ore/committees/cfhr/doc

self deter.htm; For an expanded treatment of this topic with

Self Detennination o;f

relevant bibliography, ieaders are referred to: PaulJ. Magnarella, The EuoluingNght Intligenaas Peoples, St. Thomas Law Review, v. 14, n.2, 425-47 (2001)'
8e

Id.

eoHurst Hannum, A Pinciplett Response to Ethnic Self-Determination C/ains,Junce Pending: Indigenous Peoples -Errryr i.r Honour of Erica Irene A. Daes 263, 270 (Gudmundun Alfredson and and Other Good Causes, 2002) eds., Maria Stavropolou

120

The writer will now sur-vey some of the significanr cases decided by the Inrernarional Court of Justice using the principle of self-determinarion. This discussion is very important because it will give a clearer picture of how the right of self-determination is applied and what it really means to the international community. 1.

Namibia

Cnseet
Case, the

in Namibia norwithstanding the fact that the former's mandate over the latter was aiready terminated and that the Security Council already adopted Resolution 276 which declared
South Africa's presence in Namibia illegal.

advisory opinion of the Internarional Court of Justice was sought regarding the legal consequences for States of the continued presence of South Africa

In the \lanihia

with the right of self-determination of the Namibian peoples, the ICJ held that South Africa was under obligation to withdraw its administration in Namibia.n' ludge Ammoun's dictum in the case regarding the right of self-determination was veq,- powerful
Line

In

and full of emotion. According to the distinguishe d Judge Announ:

recognize that the right of peoples to self, determination, before being written into charters that were not granted but won in bitter struggle, had first been written patnfully, with the blooci of the peoples, in the finally awakened conscience of humanity...If an1, doubts remained on this matter [of the right to self-determination] is the minds of the States Members of the United Nations, they would nor have resolr.'ed ro proclaim the legitimacy of the struggles of the peoples-and more specifically the Namibian people-to make good their right ro selfdetermination. If the right is still not recognized as a judicial norm in the practice of a few rare States of the writings of certain even rarer theoreticians, the attitude of the former rs explained by their concern for their traditional interests, and that of the latter by a kind of extreme respect for long-entrenched postulates of classicai international law. Law is a living deed, not a brilhant honours-list of past writers whose work of course compels resPect but who cannot, except for a few great minds, be thought to have had such a vision of the future that they could always see beyond their own times.e3

Indeed one

is bound to

2. Western Sabara Casen'

In the Western Sahara Case, the advisory opinion of the ICJ, through a resolution by the General Assembly, was sought regarding certain questions affecting the legal status of
e1I-egal Consequences

of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Securitv Council Resolution 276 (1910),1971 ICJ 1.6;5'ee a/sa the official rvebsite of the
Tnternational Courr of Jusrice.
e2ld.
e3Id.

http://*'-*'-*.icj cij.org/icjwu'u'/idecisions/isummaries/inamsummary7l0(r21.htm
n 94.

e4\(/estern Sahata Case, 1975 ICJ Rep 12; See a/so the offlcialw-ebsite of the International Court of |ustice, http / /v"rwv.ic j -ci j.org/iciwwrv/iHVNi/ihr.mlrame.htm
:

121

the \il/estern Sahara, to which Spain, Maudtania, and Algeria asserted sovereign rights.es This case was in connection of the decolonizats.on of the Western Sahara from the Spanish regime in conformity of General Assembly Resolution 1514 Q(9. Morocco argues that at the time the rWestern Sahara was colonized by Spain, the said territory v/as part of the Sherifian State of Morocco while Maurtt^ni^ argued that the territory formed part of the Bilad Shinguiu.e6 Thus, it was incumbent for Morocco and Mauritania, in order that their claim for corrective \Western Sahara to determine their future political iustice to prevail over rhe right of the sratus by their own freely expressed will, they had to establish that their legal ties to \)Testern Sahara were of such nature as to affect the exercise of self-determination and that the effect

was

to

require rhe return

of their territory regardless of the will of the territory's

populauon.eT

and Mauritaria that although the right of selfdetermination is of paramount importance, such right cannot be exercised if it is tantamount

It is the contention of both Morocco

as an "^ttempt at the partial or total disruption of the national unity and the territorial -ountry."e8 It is in this light that both States argued that the prohibition on the integrity of a disruption of territorial integrity includes the protection of past territorial integrity, thus' they continue to argue, that contemponry international law gave the festofation of their precolonial territorial integrity precedence over the right of Western Saharan population to selfdetermination.ee According to arguments of Morocco, in cases where an internationally recognizecl state, such as Morocco, is dismembered by colonization, as Morocco was by the colonization of \Western Sahan by Spain, the principle of territorial integrity outweighed the principle of self-determination such that the pre-colonial state can be made whole again.t"" Mu.rritunia, for its part, was less categorical and relied instead on a contextual determination of self-determination. According to Jean Salmon, arguing for Mauritania, self-determination
is:

an ensemble of complex rules that gives an important place to territorial integrity; the ureight of one factor or another depends on a whole series of
sociological, economic, political, legal, and historical elements. These factors are not dead. They live and, as in a kaleidoscope, their mixture can be upset

at eachmoment.l':r1
According to rhe advisory opinion of the ICJ, any existence of "legal ties" between tJ7estern Sahara in the States party to the case should not affect the decolonizztton of the accordunce with the exercise of the right of self-determination of the people of Western Sahara although the said inhabitants, during the time of its colorization were primarily nomadic tribes. With regard to the procedural aspect of determining whether the peopies concerned should be consulted, the Court opined that " ...the validity of the principle of
e5ld.

e61d.,n85.
e7Western Sahara, saPra

n75.

note79.

.1d.
ee

n6.

Id. 1(xx(Oral Argument

of Ren6-Jean Dupuy" (26 June 1975), \(estern Sahara, ICJ Pleadings, vol. IV, fl 140, at 158rupra note 63, at 159. I<NOP, 7-/ at ciled in 101('Oral Argument ofJean Salmon" (4July 1975, \Western Sahara, ICJ Pleadings, vol. IV, f] 31'0,at332 as
translated
/21

I{NOP, silprd note 63, at 160.

122

self-determination, defined as the need to pay regard to the freely expre ssed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory..."102 The Court further said that:

The right of self-determination leaves the General Assembly a measure of discretion with respect to the forms and procedures by which the right is to be realtzed...As to the future action of the General Assembly, various possibility exist, for instance, with regard to consultations between the interested States, and the procedures and guarantees required for ensuring a free and genuine expression of the will of the people.lo3

In a separate opinion, Judge Dillard said that it "is for the people to determine the destiny of the territory and not the territory the destiny of the people. Viewed in this perspective it becomes almost self-evident that the existence of ancient 'legal ties' of the kind described in the Opinion, while they may influence some of the projected procedures for decolonization) can onfi haue a tangential ffict in the altimate choices ayailabk to tbe people [italics
supplied]."10a

3. Frontier Dispute Case (Burkina Faso u. Republic of Mali)105

This case involves a teffitotl^l dispute between Burkina Faso and the Republic of Mali, both formerly French colonies, concerning a 30O-kilometer strerch of land composing their common frontier, which was thought to be rich in mineral resources. After the decolonization of the said countries by France, both countnes tried to unanimously control the common frontier separating them. To settle the issue amicably and without further violence, the parties sought the opinion of the Court, among others, on the question of whether the concept of uti passidelzsro6 should still be followed notwithstanding the supremacy of the right of self-de termination in de coloni zation cases. According to the Court:
The Judgment considers rhe question of the rules applicable to the case, and seeks to ascertain the source of the rights claimed by the Parties. It begins by

noting that the characteristic feature of the legal context of the frontier determination to be undertaken by the Chamber is that both States involved derive their existence from the process of decolonization which has been unfolding in Africa during the past 30 years: it can be said that Burkina Faso corresponds to the colony of Upper Volta and the Republic of Mali to the colony of Sudan (formerly French Sudan). In the preamble to their Special Agreement, the Parties stated that the serdement of the dispute should be
1021d.

l03Western Sahara stlpra note 79, at 36-7 as cited in KNOP, tapra note 63, at 164. , lo4Western Sahara, rupra note 79. l05Frontier Dispute Case @urkina Faso v. Republic of Mali), 1986 ICJ Rep 554; See also the official website the International Court ofJusrice,

n64_161.

of

http://www.icj-cij.org/icjwww/icases/iHVM/ihvm isummaries/ihvm isummary_19861222.htm. 106under international Law, Uti posside,/zi is used to signify that the parties ro a rreary are to retain possession of
what they have acquired by force during the war.

123

"based in particular on respect for the principle of the intangibility of frontiers inherited from colonizatton", which recalls the principle expressly stated in resolution AGH/Res. 16 (i) adopted in Cairo in July 1964 at the first summit conference following the creation of the Organtzanon of African Unity, whereby all member States "solemnly . . . pledge themselves to respect the frontiers existing on their achievement of national
independence ."1"t

The Court opined that in this case, the principle of

ati possidetis

is not in conflict with

the principle of self-determination. According to the Court:

luti possidetis) conflicts outright with another one; the right of peoples to self-determination. Infact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consol-idate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples...Indeed, it was by deliberate choice that African States selected, among all the classical principles, that of uti possidetis.t"s

At first sight this principle

4. European
Yugoslaaia'@

Communi.ti.es

Arbitration Commission Opinion

No. 2 on

The opinion of the European Communities for Peace in Yugoslavia Arbitration Commission was sought by the Republic of Serbia concerning the question of whether the Serbian populations in Croatra and Bosnia-Herzegovina had the right of self-determination. Serbia based its question on the pre-Wodd War II concept of self-determination under the theory of national determinism-that every ethnic nation should have its own state.11() The Arbitration Commission held that the right of self-determination of peoples could never justify changes to the frontiers existing at the time of independence. According to thc Arbitrauon Commission:
The Commission considers that international law as it currently stands does not spell out all the implications of the right of self-determination.
However, it is well-established that, whatever the circumstances, the right of self-determination must not involve changes to existing frontiers at the time

r0lFrontier Dispute Case, supra note 90, 19. !f

r)\Id.,n 25.

10eC<rnference

on Yugoslavia, Arbitration Commission Opinion lJo. 2 (1992) 1loKNOP, tapm note 63, at 1.68.

31,

ILM

1,497.

124

of independence
otherwise.111

(ati possidetisluris) except where the States concerned agree

However, the Arbitration Commission upheld the entidement of the Serbian population in Croatia and Bosnia-Herzegovina to minoriry rights within the state, a right of identity and a right to self-determination that gave them the right to choose their communiry beyond the state through nationality. In effect, the Arbitration Commission indicated that the right to choose one's community might include the right to choose one's nationaliry, where that right could be recognized by agreement befween the states concerned.ttt

This opinion of the EC Arbitration Commission was not without its criticson the part where it opined that Serbian populations in Croatia and BosniaHerzegovina m^y choose Serbian nationality but still remain within the territory of the said
especially countries.

According to critics, the Arbitration Commission had confused the collective right of self-determination with an individual's right to choose his nationaliry.ttt Furrher, the critics add, the Arbitration Committee ovedooked the fact that as a result of such election of nationaliry, "a Serbian community living in Croatia or Bosnia territory while opting for Serbian nationality, the right of option would not prevent Croana or Bosnia-Herzegovina from realigning identity with the state by requiring those who opted, to leave the territory."rro

5. East Timor Case (Portugal u. Australia)tls

in East Timor, brought the proceeding against Australia over the 11 December 1989 Timor Gap Treaty or rhe Trcaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian province of East Timor and Northern Australia. The ffeaty
as a former administering power

In this case, Portugal,

"established a provisional. anangement for the exploration and exploitation of the resources of the undelimited part of the continental sheif between Australia and East Timor."l1r'

It is quite interesting to note that in this case, both State parties used the principle of self-determination to support their respecting opposing arguments. On the one hand, according to Portugal, by negotiating, concluding, and impiementing rhe ffeaty, Australia had infringed the rights of self-determination of the people of East Timor and permanent sovereignty over their natural feso.rrces."t
On the other hand, Australia argued that Portugal lacked the legal standing to bring the case to the ICJ based on the fact that Portugal was no longer the administering power
lllConference on Yugoslavia, supra note 94. 112 K}JOP, !ilpra note 63, at 169-71.
t13ld., at 1,86.
1141d.

Timor (?ortugal v. Australia) ICJ Reports 1,995. See the official website of the International Court of for full text; http://www.icj-cij.org/icjwww /icases/ipa/ipaframe.htm. Justice
116East

115East

Timor, supra note 100, at 98.

1I'tr)

125

when the case was brought since it left East Timor in 1975 and an "administering power no longer in control of a non-self-governing territory did not have automatic standing as tfustee for the territory's inhabitants."l18 Since there was no aPParent support from the East Timorese for the action of Portugal, Australia further argues that, in accordance with the right to self-determination, Portugal needed to be the people's chosen and authorized repfesentative of the case.

The case, by a vote of fourteen to two, was dismissed by the ICJ for the reason that "in order to decide the claims of Portugal, it would have to fule, as a prerequisite, on the lawfulness of Indonesia's conduct in the absence of the State's consent."lle However, it also ruled that Portugal has no legal standing to bring the case in representation of the East Timorese without prior consultation with and consent from the latter. Accordrng to Judge Vereschetin,in his separate opinion, Portugal had a "duty to consult the leaders or representatives of the people before submitting the case to the Court on its that it would be a mistake to assume that "the people, whose right of selfbehalf. .."t2" ^td determination lies at the core of the vzhole case, have no role to play in the proceedings."t'r

In his dissenting opinion, Judge ad hoc Skubiszewki granted iegal standing to Portugal based on the fact that the E ast Timor case was exceptional because "the interest of the East Timorese people which Portugal sought to protect in the case was so self-evident as to make consultation to them unnecessary."ttt According to Jadge J'kubisrywski:

During the proceedings, both Parties invoked the interests of the East
Timorese people, but they presented us rr,'ith little or no evidence of what the actual wishes of the people rvere. Be that as it may, I think that the Court can base itseif on certain elementary assumptions: the interest of the people ate enhanced when recourse is made to peaceful mechanisms, not to military intervention; when free choice, not incorporation into another State brought abour essentrally by the use of force; when the active participation of the people is guaranteed in contradisuncuon to arrangements arrived at by some States alone with the exclusion of the people andf or the United Nations Members who accepted 'the sacred trust' under Chapter XI of the Charter.l23

E. ANALYSIS OF THE The

CASES

cases discussed solidified the universal character of the right of selfdetermination of peoples. According to the International Cout of Justice in the Easl
Timoy'z'case:
llsReplique du Gc,,uvernement de 1a Republique Portugaise, EastTimor, pt. II, c. 8, at237-48,18.01-8.17 as cited KNOP, sapra note 63, at202. rleFast Timor, rllpra fiote 100, at 105.
12t)1d.,

rlz

12rId.,

^t 135. ^t t22ld.,^t237 38.

1211d.,

13J

^t

240.

126

Portugal's assertion that the right of peoples to selfdetermination, as it evolved from the Charter and from United Nations practice, has an etga zmnes character, is irreproachable. The principle of selfdetermination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court; it is one of the essential principles of contempof ary international law. 2o
1

In the Court's view,

However, the exercise by the peoples of their dght of self-determination does not to the establishment of their own independent state. Integration in another state is also considered as an exercise of the right of self-determination of peoples if such integration is the free choice of the peoples concerned. The operative act, therefore, is that it must be a free^choice by the peoples. This has been highlighted by the Court in the case of Burkina Fasot2u wherein the Court gave due credence t" th. ,rol.rniary agreement by the different Aftican states, during the decolonizattonperiod, to maintain the staius qrro with regard to colonial boundaries so as to ensure stability in the African region. Such choice, as enunciated in the case of Western Saharat" can only be considered as a free choice if it is in consonance with General Assembly Resolution 1541 which specifies that integration constitutes an exercise of the right of self-determination only where it is "the result of the freely expressed wishes of the territory's peoples acting with iull knowledge of the change in their status, their wishes having been expressed through informed and democratic process, impartially conducted and based on universal adult suffra gr."t" This free choice by the peoples was also given weight by the Court in the case of East Timoy'2e wherein the Court denied legal standing to Portugal in filing the case against Australia in behalf of East Timor for failure to consult with the peoples of East Timor.
necessarily amount

Further, the right of self-determination of peoples is not an absolute right. Such right should also be balanced with another significant principle of international law, which is the territorial integrity of states. This would explain why the inrernational communiry maintains the stand that there is no general right to secede. This is evident in the Conference on Yagoslauia' Arbitration Commission Opinion I\0. 2130 wherein the Arbitration Commission enunciated that the right of self-determination of peoples, in general, cannot justify changes to existing frontiers of states and it cannot disrupt the territorial integrity of states.

III.

USE OF FORCE

in the

Before discussing the principal question of whether peoples are allowed to use force of their right of self-determination, a discussion on the principle of use of force is not only necessary but also very significant. This chapter shall dwell, briefly, "lb.it on the status of the principle of the use of force in international public law.
exercise
12'+East

Timor, sapra note 1,00.

t2.Id.,11 27.

l26Frontier Dispute Case, supra note 90 rr'\X/estern Sahara, supra note 79. IrEGA Res. 1541, Principle \lII(a) as cited in KNOP, rupra nore 63, at 66. ireEast Timor, stpra note L00.
:rtr

Frontier Dispute Case, supra note 90.

127

A. USE OF FORCE UNDER TRADITONAL INTERNATIONAL I-AW

Prior to the General Treaty for the Renunciation of \,)Var of 1.928, wars or use force in general were in fact considered as a lawful instrument of national policy. As stated by Oppenheim in 1922: "It always lies within the power of a State...to gain political or other advantages over anothef, not mefely by the employment of force, but also by direct fecourse to waf. rrll1
According to Oppenhein:

In the absence of an international organ for enforcing the law, war was a
of self-help for giving effect to claims based or alleged to be based on InrernationalLaw. Such was the legal and moral authority of the notion of war as an atm of the law that in most cases in which waf was in facts resofted to in order to increase the power and the possessions of a State at the expense of others, it was described by States in question as undertaken for the defence of alegal right. This conception of war was intimately connected with the distinction, which was established in the formative periods of
means

InternationalLaw and which never became entirely extinct, between just and unjust war.ttt B. PRE-UNITED NATIONS of Nations, whose prrm ry purpose was to foster peace befween Covenant, the system of collective security rested, essentially, its states, was formed. Under "on rhe notion of disarmament (Art. 8), pacific setdement of disputes and oudawry _of war (Arts. 1i-15), a collecrive guarantee of the independence of each member (Art. 10)."13' The League of Nations also provided for sanctions in cases of acts of aggression by one memberstate against the other thus ending the notion of war as a valid foteign policy under international law. Under Article XVI of the Covenant:

In

191,9, the League

Article XVI. Should any of the High Contracting Parties break or disregard its covenants under Article XII, it shall ipso facto be deemed to have committed afl act of war against all other members of the League, which hereby undertake immediately to subiect it to sevefance of all trade or financtal relations, the prohbition of all intercourse befween their nationals and the nationals of the covenant breaking State, and the prevention of all financial, commercial, or personal intercourse befween the nationals of the covenant breaking State and the nationals of any other State, whetlrer a member of the League of not.134

l31LoUIS HENKIN, RICHARD CRA\yFORD PUGH, ET. AL.,INTERNATIONAL I,A!(: CASES AND MATERIALS 664 (2"aed. 1987). lhereinafterHENKlNl
r32Id.

t33li., a1 668_69.
13ald.,

at 669.

r28

The GeneralTreaty for the Renunciation of \War of 1928 or the I{ellogg-Briand Pact constituted the background to the formation of customary law in the period prior to the United Nations Charter.l3s According ro rhe said treaty:

Article I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.
Article II. The High Contracting Parties that the settlement or solution ^gtee of all dispute s or confLicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific
means.t'u

since only

This treaty is considered, before Wodd War II, as of almost universal application four States in the international community as it existed were riot bound by its

provisions.l3T

C. USE OF FORCE UNDER

THE UNITED NATIONS

7. General

Probibition against tbe Use of Force

Under modern international public law, the use of force is not favored. According judgment to the of the International Military Tribunal in the Nuremberg Trials: "To initiate a war of aggression...is not only as international crime; it is the supreme international crime differing only from other v/ar crimes in that it contains within itself the accumulated evil of the whole."138

In the United Nations Charter, there is a general prohibition against the use by Member-States. According to Article 2(4) if the U.N. Charrer:
A11 members

of force

shall refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.l3e

Under the above-mentioned provision of the U.N Charter, use of force by States is prohibited, whether amounting to war or not.140 Such prohibition is considered as a customary de of jus cogens chancter and an obligation erga omnerin international public larv. According to the International Court ofJustice in the Nicaragwa Case:

135BROWNLIE, sapra note 42, at 698.

r36Id.
t31

Id.

'38HENKIN, rapra note 11,6, at 672. lseunited Nations Charter, Art.2(4) 140DJ. HARIUS, CASES AND MATERIALS ON INTERNATIONAL LA\)fl 863 (4'h ed. 1991)
HARRTSI.

fbereina;l'rer

129

that in the practices of States the application of the rules in questions should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolute rigorous conformiry with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally be treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in way prima facie incompatible with a recognized rule, ^ by appealing to the exceptions or justifications but defends its conduct contained within the rule itself, then, whether or not the State's conduct is in fact iustifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.1a1
Judge Setle-Canara concurred with the judgment of the Court "the non-use of force as well as non-intervsntien-the latter as a because he believes that corollary of equaiiry of States and self-de1sffnin2tis1-are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of

It is not to be expected

In a separate opinion,

customary international law which impose obligations on all States."1a2

However, the Charter does not provide opening it to various interpretations.

According to
Schachten

for the exact definition of force

thus

Admittedly, the article does not provide clear and precise answers to all the questions raised. Concepts such as "fofce," "thteat of force," or "political independence" embraces a wide range of possible meanings. Their application to diverse circumstances involves choices as to these meanings and assessments of the behavior and intentions of various actors. Differences of opinions are often likely among even among 'disinterested' observers; they are even more likely among those involved or interested. But such divergences are not significantly different from those that arise with respect to almost all general legal principles.la3
Assembly Aggression. Definition of Resolution 331,4 or the adopted United Nations General Assembly According to the said resolution:

To clarify Aracle2(4) of the U.N. Charter, the United Nations General

141Miiitary and Paramilitary Activities (I'{icaragua v. United States), 1986 I.CJ. 14 Sune 2D,n 186. t42ld. as cind irJOAQUIN G. BERNAS, SJ., AN INTRODUCTION TO PUBLIC INTERNATIONAL

LA\7

370 Q002). fhereinafterBERNAsl l43HENKIN, sapra note 1.16, ar 678.

130

Article

1. Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.. .
Article

3. Any of the following acts, regardless shall...qualify as an act of aggression:

(^)

of a declaration of war,

The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or annexation by the use of force of the territory of another State or part thereof; @) Bombardment by the armed forces of a State against the territory of another State or the use of any v/eapons by a State against the territory of
another State;

(c) The blockade of ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, marine and air fleets of another State; (.) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or ^ny extension of their presence in such territory beyond the termination of the agfeement; (fl The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for pelpetratingan of aggression against a third State; (g) The^ct sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 1aa
The 1970 Declaration on Principles of International Law further elaborated Article 2@ of the U.N. Charter. Under the 1970 Declaration, "Firstly, wars of aggression constitute a crime against peace for which there is responsibility under international law. Secondly, states must not threaten or use force to violate existing international frontiers (including demarcation or armistice lines) or to solve international disputes. Thirdly, states are under a duty to refrain from acts of reprisals involving the use of force. Fourthly, states must not use force to deprive peoples of their right to self-determination and independence. And fifthly, states must refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state and must not encoufage the formation of armed bands for incursion into another state's territory."1t5

laald.,

at 685.
(2'd

l45N,{T\LCOIM N. SHA!7, INTERNATIONAL LAIT

ed. 1986).

fhereinaflerSHAVr]

131

It must be noted that Article 2(4) does not only cover the use of force but also covers the threats of force as well. According to the advisory opinion of the ICJ in the
L,egalilt of the Threat or(Jse of NaclearWeapons Case''u'

In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any
State violating their territorial integrity or political independence. \W4rether a

certain events occur is or is not a "thteat" within Article 2, pangraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, pangraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not to follow certain political or economic paths. The notions of "thteat" and "use" of force under Article 2, pangraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal-for whatever reason-the threat to use force itself in a given case will likewise be illegal.laT

signaled intention to use force

if

2. Exception to tbe Probibiti.on a.geinst tbe Use of Force

Like all general rules, the prohibition against the use of force also has its exception. Such exception is also clearly granted under the United Nations Charter. Article 51 of the U.N. Charter specifically states that "nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain Thus, Article 51 of the Charter preserves the eadier international peace and security customary international law right of self-defense.

a. Scope of the Right of Self-Defense

The scope of the right of self-defense rs a gray area in internationallaw for the past fifty years. Publicists differ on the interpretation of the scope of the right of self-defense under Article 51 of the Charter.

One school of thought-the Liberal Approach, would interpret the said provision liberally, thus making the right of self-defense available beyond the tight to respond to an armed attack on a state's territory. Proponents of this liberal view argue, "First, that Article
ra6

t47Id,147.

Legahq of the Threat or Use of Nuclear Weapons, I.CJ. Reports (1996).

l4rJunited Nations Charter, Art. 51 states that: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence is an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and securiry. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace

and securiry."

r32

51 of the UN Charter, through its reference to 'inherent' right of self-defence, preserves the eadter customary international law right to self-defence. The Charter does not take away pre-eristtng rights of states without express provision. Second, they argue that at the time of the conclusion of the Charter there was a wide customary law of self-defence, allowing the protection of nationals and anticipatory self-defence."'4e

The other school of thought-the Res,zictiue Approach, follows the restricted interpretation of Article 51. Publicists who adhere to the restrictive view argue "that the meaning of Article 51 is clear; the right of self-defence arises only in an armed attack occurs. This right is an exception to the prohibition of the use of force in Article 2(4) and therefore should be narrowly construed. The limits imposed on self-defence in Article 51 would be meaningless if a wider customarv law right to self-defence survives unfettered by these restrictions. Moreover, they claim that by the time of the Charter customary law allowed only a riarrow right of self-defence."150
Such doctrinal differences, however, exist only in academic debate due to the fact that in Practice, "states making their claims to seif-defence try to put forward arguments that will avoid doctrinal controversy and appeal to the widest possible range of states."to'

b.

Requirements of the Right of Self-Defense

i.

duty to report to the U.N. Security Council

Given that the United Nations Charter aims not only to limit but also to centraL.ze the use of force under United Nations control,ls2 the right of self-defense, aithough sanctioned by the Charter and considered as customary international law, is not an absolute right. The primary limitation in the exercise of such right is that it is merely a temporary right. A state may only exercise the right of self-defense only unttl the Security Council "takes measures necessary to maintain international peace and security."1s3 As such, the United Nations Secudty Council plays a vital part in regulating the right of states to selfdefense.

To highlight the nature of the right of self-defense as only a temporary right, Artrcle 51 obJigates the member*state to immediateiy report to the Security Council the measures taken by it in the exercise of its right of self-defens..tt* Thus, giving the Se curity Council the right to decide when the dght of self-defense terminates. The duty to report actions in selfdefense to the Security Council is of great importance that "the absence of a report may [s

IleCHzuSTINE GRAY, INTERNATIONAL LA\(/ AND THE USE OF FORCE 86 (2000).

GRA\I.
1501d.

fhereinafter

(1963); RIFAAT, INTERNATIONAL AGGRESSION: A STUDY OF 1s1GRAY, il.lpra note 134, at 87 .

1521d.,

^t86-7

citingBRO\X'NLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES

THE LEGAL CONCEPT

(1979).

at
Id.

93.

\53See supra
154See

note 133.

133

one of the factors indicating whether the State in question was itself convinced that it was 55 acting in self-defence."1

ii.

existence of an armed attack

The exercise of the right of self-defense presupposes that an armed attack has occurred, as clearly expressed by Article 51.1s" However, such armed attack must be a violation of Article 2(4) of the Charter.ttt Thrrs, for one State to use force against another "on the ground that the State has committed a wrongful act of force...is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack."'58 In the Nicaragua case,the ICJ relied on the Defnition of Agression to elucidate the meaning of armed attack.lse According to the ICJ:
There now appears to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action bv regular armed forces across an international border, but also the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which catry out armed force against another state of such gravity as to amount to (inter alia) an actual armed attack conducted bv regular forces, or its substantial involvement therein...The Court sees no reason to deny, that in customary la'uv, the prohibition of armed attacks may apply to the sending b)' stut. of armed ^ bands to the territorv of another state, if such an operation, because of its scale and effects, u'ould have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not belier.e that the concept of "armed attack" includes not only acts b1'armed bands u.here such acts occur on significant scale, but also assistance to rebels in the form of the provision of weapons or other logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to inten-ention in the internal or external affairs of other states.l('(' Hence, an armed attack falLing short of an "armed attack" within the interpretation of Article 2(4) would notgive rise to the lau,ful exercise of the right of self-defense under the Charter.l6'
155

Nicaragua , rilpftt note 126,1200.

1'6 See supttt

note 133 for full text of Article 51. ls7Nicaragua, stlpranote126, I190;S'eealso GR\Y, rllpranote1.34,at96;S'eea/sa HARRIS, supranote125,at
87.
lssNicaragua, :apw note 126, 1211,. 15ecfu\Y, rapra note 134, at 97 r('0Nicaragua, il.tPranote126,11103-04;\'eealsaBERNAS,

silpranote127,at372-74;.SeealsaNIichelleAnnU.

opinion in the Nicaragaa Case, aless restrictive meaning of "armed attack" was suggested by Sir Robert Judge Jennings. According to him: "It mav readily be agreed that the mere provision of arms cannot be said ro amount to an armed attack. But the provisions of arms may, nevertheless, be a very important element in what might be thought to amount to armed attack u.here it is coupled with other kinds of involvement. Accordingly, it seems to me to say that the provision of arms, coupled with 'logistical or other

Jtan, Te$ing

the Legali4, af the

Attack

on

Afghaniftan, 47 Ateneo LJ . 499, 528 (2000)

16rIn his dissenting

134

iii.

compliance with the requirements of necessity and proportionality

Part of the basic core of self-defense is that its exercise must be necessary and proportionate.tu' These limitations, though not present in the U.N. Charter, are part of customary international law.163 The tu'o-fold requirements were formulated as eady as the Caraline Case.too According to the Caro/ine Case, necessiqr of self-defense means "instant, or,'erwhelming, Ieaving no choice of means, and no moment for deliberation."l65 Thus, actions in furtherance of self-defense must be "justified by the necessity of self-defence, must be limited by that necessity, and kept cleady within it."166 The requirement of proportionality is met if the forcible measure adopted by the aggrieved state is "proportionate to the seriousness of the attack and justified by the seriousness of the danger."167 The requirements of necessity and proportionality as limits on the exercise of the right of self-defense were reaffirmed in the llicaragua Case and the Advisory Opinion on the
Legali4t oJ'tbe Threat or(Jse of Nuc/earWeapons.l68 These twin requirements of necessiry- and

proportionality are also considered as the minimum test by which to determine whether the use of force does or does not constitute self-defense.tt'n It aiso helps states distinguish unlau'ful reprisals from iawful self-defense.170

support' is not armed attack is going much too far...This looks to me neither realistic nor just in the v'otld where power struggles are in everl- continent carried on by destabilization, interference in civil sttife, comfort, aid and encouragement to rebels, and the like...In this situauon it seems dangerous to define unnecessatily stricdy the conditions for lawful self-defence, so as to lear.e a large area u'here both forcible response to force is forbidden. .." J'ee HARzuS, stlpru note 125, at 881 .
162GIir\Y, silpranote134,at105. SheexplainsinfootnoteT8that"[s]omeu,ritershaverejectedtheselimitson self-defense as not estabLished in customary international larv: Kunz, Indiuidaal and Callectiue .lef-Defense in Atiile 51 of tbeCbateraf the U l41 AJIL(1947),Delivanis, l"tL.egitintedeJenseendraitinlemalianalpwb/icnodeme(1,971)." 163Gfu\Y, rilpra note 1,34, at 106. 16The Caroline Case arose out of the Canadian Rebellon of 1937 rvherein, the American shtp Caroline, carrying rebel troops to support the rebel groups in Canada fighting against the British, was ftred upon by the British while moored in the American Port of Schlosser. Trvo American nationals were killed in the incident and N{cleod, a British subject rvas arrested in the United States on charges of murder and arson arising out of the incident. The British government sought the release of Mcleod, by justifying its act as a right of self-defense . 165J'ie HAIUUS, supra note 1,25, at 895.
t66r
161

Id. 996. ^t 168J'/rGIlr\Y, ttlpranote134,at106. Footnote82states: "[T]heCourtwenton atpar. 143 torefusetodecide the issue whether the effects of any use of nuclear weapons would be so serious that it could not constitute a necessary and proportionate measure. It said: [C]ertain states have in their written and oral pleadings suggested that in the case of nuclear weapons, the condition of proportionalifv must be evaluated in the light of still further factors They contend that the very nature of nuclear weapons and the high probability of an escalation of nuclear exchanges, mean that there is an extremely strong risk of devastation. The risk factor is said to negate the possibiliry of the condition of proportionaLitv being complied with. The Court does not find it necessary to embark upon the quaLification of such risk; nor does it need to enquire into the question rvhether tactical nuclear weapons exist which are sufficiently precise to lmit those risks: it suffices for the Court to note that the very nature of nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind bv States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionalifi. l6eGRAY, raprd note 134, at 107.

135

IV.

IN THE EXERCISE OF THE RIGHT OF SELF. DETERMINATION

USE OF FORCE

This chapter shall now on the principal que stion of whether force may be employed by peoples in the exercise of their right of self-determination. Most publicists would agree that Article 2(4) and Article 51 of the U.N. Charter, although still authoritative, could no longer be considered as a comprehensive code on the use of force under international law. As can be noted, the said provisions ate "very much a response to the Second Wodd War and are accordingly directed to inter-state conflict."171 The present realiry is that most conflicts now are not intef-state conflicts.
Since 1945, inter-state conflicts have become less and less frequent while civil wars, armed conflicts for national liberation and struggles for self-determination have become commonplace. Presumably, such non-international conflict would not easily fit within the framework of Article2 (4) and Article 51 since, as stated, it only envisions the use of force in inrer-state conflicrs. However, publicists agree that the interpretation of principles enunciated in the said articles of the U.N. Charter ate, just like any international customs, not stagnant and had undergone a complex process of evolution to such an extent as to accommodate the use of force in wars of national liberation and struggles for selfdetermination.

A. HISTORICAL CONTEXT
'War, some states, such as France and Portugal refused to abide with the decoloruzation process planned by the triumphant Allied powers. The refusal of these states resulted in massive violent actions from the peoples of their colonies who demanded independence from the colonial powers. France encountered violent independence movements in Tunisia, Morocco, and Algeria and recognized their independence. In the same vein, the British Empire was hastened out of Malaya, I{enya, and Cyprus and the Nethedands out of Indonesia. Portugal was also forcibly driven out of India.t" Norwithstanding the eruption of this wave of violence, the Securiry Council failed to adopt any decisive resolution on the matter due to internal divisions within its ranks. On the one hand, India, the USSR, Sri Lanka (formerly Ceyion), and Liberia argued that the issue could be seen as one of colonial,ism and therefore the continued occupation of the colonies by the coionial power is, in itself, a breach of the U.N. Charter. On the other hand, the colonial powers-Portugal, the United I{ingdom, France, and the United States-argued that such violence amounts to the illegal use of force to settle territoriai disputes.lt3

At the conclusion of the Second \X'odd

The formal claim by newly independent states and sociaList states for a legal right under international law not only for self-determination but also for national liberation
llold. citingFeder, Reading the LII\ Chafter Connotatiue!: Toward A New Defnit)on oJAnued Attar,, 19 New York Universiry Journal of International Law and PoLitics 395 (1987); HIGGINS, THE DEVELOPMENT OF

INTERNATIONAL LA!fl THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS

(1

201

e63). 45.

1]1KNOP, tapra note 63, at 3.

r12ld.,
1.131d.

^t

1,36

movements to use force in furtherance of their struggles and for third states to aid them bv also using force was made in the late 1960s as a response to Portugal's refusal to give independence to Guinea-Bissau, Angola, and Mozambique, South Africa's occupation oi Namibia and perpetuation of apartheid, and the declaration of independence by a white minority government in Rhodesia.lTa However, predictably, colonial powers and \Western states resisted such claims. General Assembly resolutions and Security Council resolutions not only failed to cleady resolve the issue on the use of force by national liberation movements and struggles in the exercise of the right of self-determination but also even added to rhe confusion

surrounding the said issue. The first General Assembly resolution on the right of the colonies to self-government, Resolution 1514 (1960) or the Declaration oa the Granting of Independence to Colonial Peoples, made no mention on the use of force.ttt Subsequent resolutions of the General assembly used ambiguous terms regarding the said subject mater. Resolution 2105, adopted n 1964 as a response to the denial of self-determination bv Portugal, South Afuica, and Rhodesia, "recognizes the legiumacy of the rtrug/e by the peoples under colonial rule to exercise their right of self-determination and independence and invites all states to provide material and moral assistance to the national liberation movements in colonial territodes femphasis supp/iefl."116 The apparent ambiguiw in thrs resolurion is the interpretation of the word "struggle." Some states would interpret the word "struggle" as armed struggle while other states, particulady the colonial powers and the United Srates, interpreted it as a peaceful struggle and opposed any "express asserrion of the right of a people in international law to use force to pufsue self-determination."177
The Fiendlr Relations kesolution (1970), instead of focusing on the conrroversial right of peoples to use force in the exercise of their right of self-determination, focused on the duq' of states not to use force against peoples with the right of self-determinarion.ttt A direct statement on the right of peoples to use force was avorded in order to achieve consensus. On the positive note, this resolution debunked aneariter notion thatArticle 2(4) of the Charter only proscribes the use of force by one state against another state and as such, use of force by states to prevent any act of self-determination of pe oples would be valid.tte

One General Assembly resolution that would have shed iight on the issue was rhe I9B1 Declaration on the Inadnusibilifir of Inleruentioa, Resolution 36/I03, which expressly srated

1t4Id.
175-laa I{NoP, v/pra fiote 63, at l]6KNOP, rapra note 63, ar 46.

45.; J'ee also supra note

29

fot full rext of

the resolution.

I-- I)
118

^t lTesome publicists maintain that use

Id.,

46_7.

rule in the Charter which forbids the use of force. This rule forbids the use of force in international relations, in relations berween States but sets no prohibition as far as cir,'il war is concerned: the constituted govefnment is therefore free to repress insurrection and commits no unlarvful act when it uses force against insurgents." J'aa QUA\G, silpra note 39, at 267 .

of force by a state to suppress an internal disturbance. In the words of Ronzitti: "()ne section of the doctrine purporting to demonstrate that repression b), the incumbent government in the course of a u.ar of national lberation is ]awful, starts from the premise-which is correct per se-that Article 2 pare. l is the only

Article 2(4) is only applicable to inter,state conflicts and does nor exrend to rhe

i.e.

137

that right and duty of states to support self-determination included the right of these peop]-e.s to -^g. both political and armed struggle. Sadly, said resolution did not secure .o.tsensrrs."u

This continued practice of the use of ambiguous terms and the adamant refusal of
the United Nations General Assembly and the Security Council to issue a direct resolution to re solve the issue of the use of force resulted in a stalemate regarding the said issue.

According to Karen Knop:

The drafting history of the general "law-making" resoiutions on the use of force reveals the continuing disagreement belween states; consensus was attained only at the price of ambiguiry. Resolutions deiiberately masked the differences berween states. The arguments as to the legaliry of the use of force in pursuit of self-determination took different forms; there was no clear focus to the legal debate leading to this or to other resolutions. Sometimes, the issue was framed in terms of Article 2(4): the use of force by a people with the right of self-determination was not covered by the prohibition in Article 2(4) and states had the right to assist them in their struggles. An alternative focus was that colonialism was in itself an unlawful use of force, amounting to aggression and a breach of Article 2$); tf so, the people were said to have the right to use force in self-defence, not just in response to violent repression but in order to drive out the colonial power.tt'

B. USE OF FORCE IN SELF-DETERMINATION STRUGGLES

1. Self-Detertnina.tion
Argument

Str-uggles Against Colanial:ism-Tbe Self-Defense

self-determination struggles against colonialism, the international community is more inclined to permit the use of force by the strugglers against the colonial power. This is based mainly on the Self-Defense Argument tnvoked by the strugglers.
Argumenris founded on the premise that colonialism itself is a breach of customary, inteinatio.rul lu*, particularly, Art 2(4) of the United Nations Charter.rs2 As such, the use of force is justified as a means of self-defense for the protection of the people of countrl, in consonance with Art. 51 of the United Nations Charter.183

In

The

Self-Defense

ltro

KNOP, saprLt ri,ote 63, at 48. 1811/. |ls1ys1'er, I{aren I{nop also argues that "[t]he extension of the right to self determination outside the colonial conrext in the break up of the USSR, Yugoslavia, and Czechoslovakia has not brought u'ith it any state

support for the use of force for this end. There is no suPport lor the right to use force to attain-selfde te rmlnation outside rhe context of decolonization or illegal occupation. Still less is there any suPPort by states lor the right of ethnic groups to use force to secede from existing states. But when claims to secession, or even to m()re limited autonomv, are met rvith forcible repression, as rn cases of Itosor.o, the Chechens, and the I{urds, the use of force against a people mav strengthen its case for self-determination." J'rr I(NOP, tapra note
63, at 50.
ht2J'ee
183

\'ee sa?rd

rilpra note 1.24 for full text of Art. 2 para. 4. note 1 33 for full text of r\rt. 5 1 .

138

Howevef, some publicists would argue that the strugglers against colonialism are not entided to invoke Art. 51 of the Charter since non-state entities are not envisioned by the said provision. According to Dugard:

The most serious objection to the proposed new right is that it has nothing to do with self-defense as it is traditionally understood or as it is described in Article 51. Self-defense is the right of one State acting individually, or the right of several States acting collectively . ..A sine qua nzn for such a right is "an aggressor State" and a "victim State"...In the case ofself-defense against colonial domination this necessary requirement is absent. It is possible to identify the aggressor State [the colonial power] but it is not possible to identify the victim State...As there is no unlawful use of force against another State the question of self-defense does not arise.tt'
Such argument, as further analysis of Art. 51 would show, is unsustainable. Firstly, nothing in the said provision of the Charter can be construed to mean that only States have the right of self-defense. Although Art. 51 contain the phrase "against a Member" of the United Nations, such phrase cannot and should not be construed literally. According to Chistopherpuay:

the expression were construed literally to urge that nonstates do not have the right to self-defense, would it not also mean that states that are not members of the United Nations are excluded from those forbidden to use force? Considering the commitment of the United Nations to maintain international peace by insuring that both members and nonmembers comply with the purposes and principles of the Charter, and that the use of force, whether by or against a member, nonmember, or nonstate may pose threats to peace, it is difficult to see any logic in the argument that nonstates are not entitled to the right of self-defense .185 Second, it must be remembered that the promotion of human rights and selfdeterminatron of all peoples are important objecuves of the Untied Nations and since the right of self-defense is basically a right to protect oneself, "[t]o accept the notion that the international community has assumed the commitment to maintain peace through these universal principles and yet contend that non-states are not eligible to pursue the right of self-defense, to say the least, contfadictory."'ot'

If

Lastly, the right of self-defense is characterized as an "inherent" right under international law. "Since statehood is a status that emanates from certain conditions, it seems inconsistent to consider states to have inherent right of self-defense when individuals-the elements to which the states owe their hollowed status-cannot exercise

it."ttt
ts+qUAYE, r'upraflore39,ar2T6ritingDugard,'I'heOryaniqatianafA;fiicanUnilt,1y1 5oTonia/isn:AnInquiryintoilte & COMP. L.Q. 157, 172 (1967).
18'1d.,
1861d.,
t8-

Pka of \'elf-Defensefor tbe Use af Force in Emdiration of Ca/ania/isnt,INT'L

^t

27 6-77

at 277.

Id.

139

Further, under international law, in times of war, an armed uprising inside the occupied teritory is not forbidden.l8' Si.rc. a colony is, basically, merely an occupied territory of a colonial power, such rule can be applied to self-determination struggles against colonialism. Thus, the strugglers can use force in order to repel the colonial power in the same way, as an armed uprising is permissible in occupied territories in time s of war.
Resolutions on selfdeterminatisn-lyhsllrer adopted by the Securiry Council, the General Assembly, the Economic and Social Council, any of the specialized agencies, or in advisory opinions of the International Court of Justice-reite rate the notion that struggles for self-determination are legitimate.lsn Otr. such resolution is United Nations General Assembly Resolution 3103 or the Basic Principks of the Legal Status of Conbatants StruglingAgainst Colonial and Alien Domination and Racist Regimes.t"" The said resolution enjoined the authorities to which the strugglers are directed to apply the laws of war and the Geneva Conventions.tnt According to its point 3:

It is also important to note that virtually all United Nations

The armed conflicts involving the struggles of peoples against colonial and aLien domination and racist regimes are to be regarded as international armed conflicts in the sense of the 19-19 Geneva Conventions, and the legal status envisaged to apply to the combatants in the 1949 Geneva Conventions and other international instruments is to apply to the persons engaged in armed strugpile against colonial and alien dominatton and racist regimes.tn'
This is very significant because it more or less offers support for the use of force by the strugglers. The Geneva Convention can only be invoked by lawful combatantstu3 to an armed conflict and is not available to unlas'ful combatants. By affording to the strugglers the lawful combatant status, the Untied \ations practically legitimized armed struggle in the exercise of the right of self-determinadon of peoples. This view has been reiterated in Article 1(a) of Additional Protocol I to the Geneva Convention which states that:

The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and ahen occupation and against racist regimes in the exercise of their right of selfdeterminarion, as enshrined in the Charter of the United Nations and the
VON GLAHN, LL\\'AIIONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LA!fl 698 (5'h ed. 1986). lhereinaJterGLLHN)
18e

T88GERHARD

1e0U.N.

manifestation...isacrimeandthat colanialpeoplnhauetheinherentighttostruggleb1
againtt colonial Pon,ers and alien doruination in exercise of their

GAOR, Resolution 3101 (XXVIII), 28'h Sess., 0973). The pertinent provision reads in part: Assembly...Reaffirming that the continuation of colonialism in all its forms and General [!]he
a// necessarymeansattheirdiqosal

QUAYE, tilpra note 39, at 281.

ight

of self-denrnination...femphasis

:applndl

Recalling numerous appeals of the General Assembly to the colonial Powers and thosc occupying foreign territories aswell as to racist regimes...to ensure the application to the fighters for freedom and selfdetermination of the provisions of the Geneva Conr.ention relative to the Treatment of Prisone rs of 'War,of 1.2 August 1,949 , and the Geneva Convention relative to the Protection of Civilian Person in Time of War of 12 August 1949. 1q|Id.' 5'?e a/.ra QUAYE, rap,a note 39,at284. 1e2 U.N. GAOR, Resolution 3101 (XXVIII),28'h Sess., (1973). le3Under the Geneva Conventions and it Additional Protocols, lau'ful combatants are the armed forces or the armed component of a party to the armed conflict.

1.40

Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United
Nations.'ea

2. Non-Colonialism Self-Detenttination

Struggl.e s

In non-colonialism self-determination struggles, the right to use force of peoples in the exercise of their right of self-determination is not clearly delineated unlike that of selfdetermination struggles against colonialism. The international community is more hesitant to grant authority to national liberation armies in non-colorua[sm struggles to use force because it might open the floodgates for secessionist movement to proliferate and the United Nations is more inclined to protect the territorial integrity of States. However, based on the observation of publicists such as H. Wilson, the growing trend is towards the granting of the use of force in the exercise of the right of self-determination in non-colonial cases. According to H. lYilson:
The authority of national liberation movements to use force is not agreed upon as a matter of international law. Such authority is actively supported by the newly independent states and the Eastern Bloc but has never been accepted by established government confronung a liberation movement or by the Western States. Practice in the U.N., particularly the Declaration on Principles of International law and the Declaration on Aggression, both adopted without a vote, does not resolve the fundamental differences of opinion over the status of national liberation movements and the extent of their authority as m tter of law. However, the trend over the last four ^ decades and since 1960, in particular, has been toward the extension of authofify to use fofce to national liberarion movements.tnt
Further analysis on United Nations resolutions, both in the General Assembly and in the Security Council, regarding the granting of authority to use force in self-determination struggles against colonialismtno would show that such resolutions also impliedly granted authoriry to the use of force in non-colonialism self-determination struggles.

In the said resolutions, the United Nations applauded the struggles of national liberation movements against the colonial powers and upheld the legitimacy of their struggles. It is very significant to note that in ali these struggles, the use of force is virtually an essential element. The national liberation movements concerned are engaged in armed struggles against the colonial government. Though one can argue that since these
reaProtocol Additionai to the Geneva Conventions

of

12 August 1949, and Relating

to the Protection of

Vicdms of International Armed Conflicts (1977) fut.1,(4). Ie5DIXON AND MCCORQUODALE, Mpra r'ote 59, at 499-500.
te6i.e.:General Assembly Resolution 34/94 and 36f 68 concerning the Implementation of the Granting of Independence to Colonial Countries and Peoples, which states that the General Assembly "affirms once again its recognition of the iegitimacy of the struggle of the peoples under colonial and alien domination and independence by all the necessary means at their disposal." For South Afica, Resolutions S/282 of 1.970 and s/473 of 1980 which states that the Securiry council recognizes "the legitimacy of the struggle of the oppressed peopleof SouthAfrica." SeealsoSecurityCouncilResolutions s/403of 1977,Sl445andS/448of 1919;\'eealso QUAYE, rapra rrcte 39, at 282.

1.41

resolutions only covef colonial stfuggles, it cannot be said to apply to non-colonial cases. However, "it is impossible to apply the resolutions solely to the colonial cases because riot only do all the provisions accept the view that self-determination is a universal right to be exercised by alJ. people, but they emphasize the need to observe democratic and humanitarian values without any discdmination against any class of people in any given
soclerv.
'
t>191

Further, according to Christopher puay: First, virtually all the resolutions suggest that the "evil" which the strugglers are directed is sustained only by fslss-2n instrument that is so brutally employed against the strugglers that it kills or maims them, or if they are lucky, causes their incarceration with little possibility that they may be released and be able to resume their struggles...Since such brutality knows no distinction between a peaceful demonstration and an armed struggle, and since it wouid be ludicrous as ureil as hypocritical to expect an unarmed person to fight against an armed oppressor, it is difficult to see any substance in the argument that the resolutions support the liberation movements but at the same time disapprove of the only means by which such movements can be pursued. Second, most of the resolutions mince no words in commending successful liberation movements...If their silence on the use of force is the main basis for the argument that the resolutions do not sanction the use of force by liberation moyements, then, ProPno uigore, the'rc failure to condemn the use of force in liberation movements also lead to the conclusion that the use of force b1' liberation movements is legitimate.le8

As discussed above, a common basis for the said resolutions in acknowledging the legitimacy of the armed struggles was that the colonial governments concerned ate engaged in acts of atrocities against the peoples of their colony. It must be noted that colonial governments are not the only ones capable of committing such atrocities uPon peoples. Even the government of a sovereign state is, as witnessed by history, also capable of committing acts of atrocities against its own peoples especially in countries which are ethnically diverse. It is therefore very difficult to contend that a government of an independent State can, wirh impunity, blatantiy deny the fundamental human tights to its p"opl", and commit acts of violence against them. A case in point would be that of the fate tf Aibanian I{osovars in l{osovo.tee 6t such, the peoples who are victims of these atrocities
trrqUAYE, sllpra note
).eBId.,

39, at 282.

at 284.

lee Based on rhe account of Lar.v School: []n Jonathan I. Charney, a Professor of Law in Vanderbilt University the case of I{osovo, the Albanian I{osovars had obtained a degree of autonomy in their province within the Socialst Federal Republic of Yugoslavia (SFRD After the demise of the SFRY, the pederal Republic of Yugoslavial took unilateral steps to eliminate that autonomy and took draconian steps against the Albanian I{oiovars. For several years nevefiheless, the Albanian Kosovars tried all peaceful means at their disposal to seek an accommodation. These efforts were rewarded only with gfeater suppression by the Serbs in control o{ the FRY. This led ultimately to the foundation of the Kosovo Liberation Army (I{LA) that only then sought independence from the FRY and used violence to seek that goal. Those efforts $'ere met with violence and gr."i.. suppression by the FRY. After the efforts of the United Nations and NATO appeared to ail to resolve ti-r. ctiri., NATO unilaterally rook actir-rns to protect the Albanian I{osovars. This ultimately resulted in a UN

142

to defend themselves through the use of force in furtherance of their right of self-determination in the same manner as peoples are authori zed to use force against colonial governments in the exercise of the said right.
have a right

Finally,

it

must also be remembered that the right

of

self-determination

is of

universal application. All peoples, whether under colonial regimes or not, have the inherent

right to self-determination. Being a right fundamental to all peoples, there should be no exception as to its application and exercise. The upholding of the legitimacy of armed liberation struggles in colonial cases should also therefore be seen as upholding rhe legitimacy of armed struggles of peoples in non colonial cases against their oppressive governments who are curtailing their basic human rights since such armed struggle, as in the case of liberation struggles against colonialism, also involves the defense and the exercise of their right to self-determination because "the subordinate peoples became in effect the internal colonies of the States."'00

V. ANALYSIS AND CONCLUSION

A. RESOLVING THE PRICIPAL QUESTION

The right of self-determination is ever more relevant in the present than when it was conceptualized and immortakzed almost a century ago. In this day and age, the right of selfdetermination of peoples has become the battle cry of all liberation armies across the globe. Based on this thesis, a number of conclusions can be fotmulated.

First, the right of self-determination cannot be invoked by all minorities of a stare. Such right can only be invoked by peoples or national cohesive groups bound by a distinguishing characteristic such as ethnicity, language, or history and such peoples have a tetritorial claim on land. Mere difference in ideology by the minority uis-i-uis with that of the majoriry will not entitle the said minodty to rhe right of self-determination.
Second, the right of self-determination of peoples is a universally guaranteed right. The eryo omnes character of the right of self-determination of peoples is beyond question. This has been enunciated by the International Court of Justice whether in resolving disputes

or in giving its advisory opinion and various international insrruments such as rhe United Nations Charter, General Assembly Resolution 1.514 or rhe "Declaration on the Granting of Independence to Colonial Territories and Peoples,"t01 International Covenant on Economic, Social, and Cultural Rights2o2 and the International Covenant on Civil and Political Rights,203
Security Council sanctioned occupation and administration of I(osovo that operated as if I{osovo u.as a de facto independent of the FRY. .frr http://www.law.vanderbilt.edu/ journal / 34,02 / charney.html 200 Dr. Sachithanandam Sathananthan, Exnrna/ Se/f-Detenninatian, Intemal De-calaniutian antl Conflict Preuentian, a paper Presented at the seminar on Self-Determination and Conflict prevenrion sponsored bv Centre UNESCC) Etxea UNESCC) Centre of the Basque country Palais de s Nations, Geneva, March 22-23,1,999; for full texr, rra http: / /www. sangam. org/ANALYSIS/external_selldetermination.htm zotJ'zpyo note 29. 2t2Supra note 33.
2031 d.

t43

and other United Nations resolutions affirming and re-affirming the right
determination of peoples.
.

of

self-

I-astly, though the right of self-determination of peoples is a universal right, it is not all encompassing. Such right must still be balanced with other principles of international law, particulady with regard to the protection of the territorial integrity of states. The exercise of the right of self-determination of peoples does not necessarily mean that the said peoples

should form an independent state. Integration with another state is considered a valid exercise of the right of self-determination if such was an informed and free choice of the peoples concerned. Further, giving effective representation to the peoples by the central government and protecting the human rights of such peoples means that the central government is giving due re spect to the right of self-determination of peoples. It is in this light that the international communiq generallr' frowns upon secession. Although secession can be considered as part of the right of self-determination, there is no general right to secede from a pafent state. Peoples can only invoke their right to secede under very restricted and extreme circumstances such as when the central government is committing massive human rights violations against the said peoples.
exercise of answers on the subiect, study exhaustive after an thesis, this their right of self-determination, the querf in the affirmative.

In resolving the question of u'hether the peoples can use force in the

The use of force bv peoples tn the exercise of their right of self-determination is within the framework of the Uruted Nations Charter. As previously discussed, Article 51 of the United Nations Charter accommodates the right of the peoples to protect themselves or to use force as a means of self-defense against colonial governments andf ot oppressive govefnments committing acts of atrocities against the said peoples since such acts are, by ihemsel.res, breaches of customan' international law and the United Nations Charter. This view has been strengthened by various United Nations Resolutions on self-determination g2sss-whsther it be from the United Nations General Assembly or the Security Councilupholding the legitimacy of armed hberation struggles.
However, in posting the view that force can be vaLidly use by peoples in the exercise of their dght of self-determination, such authority should flot be used as ^ P^n ce to all selfdetermination struggles. The use of force by the peoples in the exercise of their right of selfdetermination is not without its limitattons.

The first and foremost limitation in the use of force by the peoples in furtherance of their right of self-determination is that it can only be considered legitimate if it is in the form of self-defense againsr oppressive governments who are thwarting the basic rights and the very existence of the peoples concerned. Although the right of self-determination is fundamental to all peoples, the right to use force in the exercise of the said right is not available to all peoples. Such authofity is granted only under extreme circumstances such as when the central government is committing genocide or other human rights atrocities against the said peoples.

of force can only be taken as a means of last resort. There must be a "bona fide exhaustion of peaceful methods of resolving the dispute between the government
Second, the use

r44

and the minoriry grouP claiming an unjust denial

use good offices

of self-determinarion, including efforts to of other states and intergovernmental organizations."'04

B. APPLICABILITY OF INTERNATIONAL HUMANITARIAN I.AW As discussed previously, self-determination struggles can be classified inro
namely, rwo,
se/f detennination strugles against colonialism and non-colonialism self-denrruination struggles.

With regard to self-determination struggles against colonialism, such armed hostilities are governed by Additional Protocol I of the Geneva Convention.2os Unlike the first kind however, non-colonialism self-determination struggles cannot be governed by Additional Protocol I of the Geneva convenrion. Accordingto Dietrich schindkr.
Let us first deal with the concept of war of national liberation as envisaged in Article 1(4). The term "war of liberation" is narrowed down in several respects by this provision. In the fimt place, the wars of liberation are confined to struggles against "colonial domination," "aliefl occupation,, and. "tacist regimes." All other kinds of wars of liberation are excluded, such as wars of secession and struggles against oppressive regimes. Hence, not every insurgent party which deems itself a liberation movemenr can refer to Article
1(4).'ou

Non-colonialism self-determination struggles is therefore governed by Additional Protocol II of the Geneva Convention which "applies to all armed conflicts which are not covered by article 1 of the Protocol Additional to rhe Geneva Convenrions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts grotocol q and which takes place in the territory of a High Contracdng Party between its armed forces and dissident armed forces which, under responsible command, exercise such control over a part of its territory as to enable them to_ c^rry out sustained and concerted miJitary operations and to implement this Protocol."2o7
However, Additional Protocol

not been time for it to harden into customary law, therefore, only states that ratified or acceded to it are bound by the said Additional Protocol. In cases where the state parry ro the armed hostilities is not a signatory to Additional Protocol II, the applicable International Humanitarian Law provision to non-colonialism self-determination -slruggles is therefore Common Article 3 of each of the four Geneva Conventions which extends a minimum of humanitarian protection to the parties involved in non-international armed conflict.
According to Common Article 3:

II

is only a newly created convention, and there has

2Oahttp:

//www.law.vanderbilt.edu/ journal / 34-02 / charney.html note 179. 206Dietrich Schindler, The Dffirent Tlpu of Arned Conflictt Anoruling to tbe Geneua Conuentiou antl protocols, Academie de Troit International, 163 Recuei.l des Cours 125, 13i (1979). 207 Protocol Additional to the Geneva Convention s of 12 August 1949, and Relating to the protection of victims of Non-International Armed Conflicts @rotocol rr), (1977),Art. 1(1).
2osSupra

1.45

of armed conflict not an international chatacter occuring in the territory of one of the High Contracting Parties, each Party to the conflict

In the

case

shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, of any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on face, colour, reiigion or faith, sex, birth, wealth, or any other
similar criteria.

To this end the follorvrng acts are and shall remain prohibited ^t ^ny time and in any place whatsoever with respect to such persons: (^) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and tortufe; taking of hostages; 0) ourrages upon personal dignity, in particular, humiliating and (.)

(d)

the carrylng out of executions wrthout previous iudgment pronounced by a regulady constituted court affording all the iudicial guarantees which
are recognised as indispensable by civilized peoples.

degrading treatment; the passing of sentence s and

(2) the wounded and sick shall be coilected and cared for."" APPLICATION OF THE STUDY UNDER PHILIPPINE CONTEXT

C.

The Philippines, like any state composed of different peoples from different ethnic background, is facing its own separatist armed struggle, partjculaily from the Bangsamoro peoples, and its armed component, the Nforo Islamic Liberation Front O4ILD'

The Bangsamoro ("the Moro People") is the generic name for the thirteen ethnolinguistic Mr',slim tribes in the Philippines v'hich constitute ^ qlrafir.r of the population in Minda.ruo in the Southern Phiiippines. Thev number from 5-6 million and are found in every maior isiand of the country. Ther, share a distinct culture, speak different dialects, and arc vaied tn their soctal formation but share a common belief in Islam. This is a uniung
faclor amonl the different groups."'u
are three major groups on the bases

Of the 13 groups, there

of population and their

leadership. These are the Maguindanaons (the people of the flooded plains), the Maranaos
\Wounded and Geneva Convention I for the Amelioration of the Condition of the of the Condition of the Ameloration for the II Convenlion (1949); Geneva Sick in Armed Forces in the Field TTI relative Convention (1949); Geneva at Sea Forces Armed of the Members and Shipwrecked Sick Wounded, to the Treatment of Prisone rs of \ilar (9a\; Geneva Convention IV Relative to the protection of Cultural
208

Common Article 3

of

property in the Event of Armed Conflict (1949). 20ehttp' /ww$/.philso1.nI/ solcon/ Guiamel-95'htm /

146

(people living around the lake), and the Tausogs (people of the current). These major groups have rallied the support of the Bangsamoro in their struggle for self-determination.2l"

The Moro Islamic Liberation Front, representing the Bangsamoro peoples, is no engaged in an armed struggle against the government of the Philippine Republic. According to them, such struggle is in furtherance of their right of self-determination. They claim that they are entided to an independent Bangsamoro state. It is their position that the Bangsamoro territory was illegally and immorally annexed when the United States of America granted the Philippines independence inJuly 4,1946. Further, they alleged that the central government of the Philippine Republic is committing acts of atrociaes against their people. According to Shiekh Salamat Hashim:

of pages will be needed to write the inhumane atrocities and heinous crimes and massacres perpetrated by the barbarous Armed Forces of the Philippines and its Militia against the Bangsamoro Muslims. One example is the notorious Manili massacre where seventy-nine Musfim men and women were killed at point-blank range inside a mosque. Besides this is the barbarous Tacub Massacre where sixry innocent Muslims were ordered by a unit of the AFP to lie down then shot at them until they were all killed. There is the infamous Colongcolong massacre where more than seven hundred Muslims, men and women, including children, were massacred by the barbaric Armed Forces of the Philippines. There is also the New Pasi massacre of nineteen innocent Musl-ims and the Tago-ig massacre of ten school gids plus their teacher.
Perhaps hundreds

Moreover, hundreds of thousands of Muslim houses, mosques, and Islamic schools were deliberately burned by Philippine authorities. In addition, their farms, orchards, and pother sources of livelihood were destroyed by the AFP and its militia. In short, a genocidal war is being
launched against the Muslims.211 Based on these general facts, the question to be resolved now is whether the Moro Islamic Liberation Front is justifred in using force in furtherance of the right of selfdetermination of the Bangsamoro peoples.

Applying the basic principles of the right of self-determination under international law established in this thesis, the answer would be in the negative.

It is without question that the Bangsamoro peoples are entitled to the right of selfdetermination. Such fact is beyond question. However, having the right of selfdetermination does not entitle the peoples to automatically use force in the exercise of the exercise of such right nor does it necessadly mean that they are entitled to an independent state. As what have been emphasized in this thesis, the right of self-determination does not exist in a vacuum; such dght must be balanced with other equally important principles of international law, such as the maintenance of peace and order and the protection of
2raId.
2
1

t http / /www
:

fas.

org/ np / w o rId / p ara/

doc

/ ph2.

htm

147

territorial integrity of states. It is in the balancing of these rights that certain limitations were developed to guide the peoples in the exercise of their right of slef-determination.

One such limitation is that force can only be resorted to by the peoples in the exercise of their right of self-determination as a last fesort and under extreme circumstances such as when the centfal government is committing massive human rights violations against
the said peoples.

With regard to the claims of the Moro Islamic Liberation Front, there is not enough that would tend to show that the government of the Philippine Republic is engaged in proof systematic acts of atrocities or committing massive human rights violations against the Bangsamoro peoples. The alleged human rights violations committed by some elements of the Armed Forces of the Philippines can be considered as isolated cases. Though such human rights violations need to be addressed and should not be ovedooked, unfortunately, this would not justify the use of force by the Moro Islamic Liberation Front in furthetance of the right of self-determination of the Bangsamoro peoples.
Further, the Moro Islamic Liberation Front cannot also claim that the Bangsamoro peoples are not effectively represented in the central government. The granting of autonomy in Muslim Mindanao within the framework of the Philippine Constitution would belie this claim. The creation of the Autonomous Region of Muslim Mindanao wherein the Muslim peoples are allowed to govern themselves and let their rich culture flourish in cooperation in the central government can be consideted as sufficient compliance of the Philippine Government under international law in respecting the right of self-determination of peoples. Hence, although the Bangsamoro peoples have the right of self-determination, the Moro Islamic Liberation Front is not iustified, based on the general facts, to use force in the exercise of the right of self-determination.

1,48