GOLD
1. FILLING IN THE GAPS
Peace is finally coming to Muslim Mindanao, but unless the POLICY on land is clear and succinct, peace may just as well be so fragile, ready to break anew into scattered pockets of conflict.
The Organic Law on the Bangsamoro Region in Muslim Mindanao does guarantee that (vested) property rights will be respected.
For those unjustly dispossessed of their territorial and proprietary rights, “customary land tenure will be recognized”. And, where property can no longer be restored, there will be “adequate reparation collectively beneficial to the Bangsamoro people”.
Indigenous peoples rights shall be respected.
While these are motherhood statements on how to deal with land issues as sources of sustained livelihood and yet the root of historical grievances, the overarching development strategy remains to be a gray area.
The CAB and its Annex to Normalization are devoid of any strategic mechanism that tackles land issues in all aspects of normalization. To address the land tenure claims within the Transitional Justice and Reconciliation framework, TJR should cut across all phases of normalization in order to prevent a clash of already dysfunctional institutional arrangements. The lofty and dramatic language used in the framework agreement poses a clear and potential danger – when rhetoric does not match actual practice. The agreement becomes a jumping board for high expectations that fall flat on the ground, and another rupture of conflict(s) will thus be imminent.
Another jurassic challenge is the maze of multi-layered, conflicting and inconsistent policies in land management
and land administration of different land- related executive agencies, the overlapping jurisdictions and authorities of judicial and quasi-judicial bodies involved in resolving land disputes as provided under various laws through time.
Our current formal justice system (statutory law) recognizes individualized property rights regime. Not much priority is given to utilizing customary justice mechanisms even while there are existing enabling laws to which they can be anchored to. Customary laws may be acknowledged and accommodated in settling land-related disputes within the realm of the IPRA (.e.g, for indigenous peoples) and the property rights regime under Shari’a law (e.g., for Muslims).
Raising the Bar of TJR Consciousness (ARRT)
Acknowledgment and Accountability:
Accountability within the TJR concept does not only mean dealing with the past; it equally relates to ensuring that
“truth prevails in the present and that justice can still happen in the future”. This means that assessing how grievances over land distribution and access to natural resources in the peripheries triggered armed conflict is as relevant as pursuing accountability for human rights and humanitarian law violations occurring during these periods of conflict. This involves mapping the assertions of Moro identity and the justice claims of indigenous peoples in Mindanao and understanding the crux within which violence committed by State and non-state actors converge. Transitional justice means ensuring that victims ought to have a seat at the table, in all aspects of normalization so that their experiences of injustices are
“acknowledged and repaired“. (Carranza,
2014)
Respect and Recognition:
TJR as a framework transcends boundaries dictated by cultural and societal norms. Molding the mindset in the local context implies an inclusive process of participation and consultation of those marginalized due to gender, tradition/culture, or economic and social circumstances.
Initiatives to address specific needs of local communities and victims based on the participation of women and the vulnerable sectors as all as indigenous (tribal) and religious (e.g., Islam) values of justice and conflict resolution can be a healing balm to treat the wounds of injustices and lead towards reconciliation.
Re-establishing Relations:
Localizing transitional justice mechanisms also involves affirming communities’ distinctive concepts of memory, trust, forgetting, forgiving and healing as concrete steps towards reconciliation in Mindanao.
Trust. It cannot be gainsaid that the government’s commitment towards an effective implementation of transitional justice policies heightens stakeholders’ trust towards the state and reinforces the rule of law. In contrast, implementation drawbacks may threaten the government’s legitimacy, creating barriers towards normalization, with the potential threat of destabilization looming and the recurrence of victimization of those affected by the conflict. Transitional justice provides some space for truth-seeking as part of the healing process.
Conceptual Framework
Given however the vast expanse and interweaving issues arising out of the decades-
Figure 1. Modified DWP Framework with focus on access to justice.
long armed conflict in Mindanao, the author focused on the Access to Justice mechanism and the Role of the Judiciary in its mandate on the administration of justice in the region.
The author submits that the access to justice mechanism covers two (2) quadrants of the DwP Framework as the delivery of justice impacts on the non-recurrence or recurrence of a conflict-affected region. Unarguably, peace and order as part of normalization or conflict transformation can only be guaranteed when the rule of law prevails in a just and humane environment. Culled from the Access to Justice mechanism, the study goes into a more specific yet complex issue of land dispossession as one of the root causes of legitimate grievance and historical injustice that triggered the protracted armed struggle in Mindanao.
This diagram illustrates the conceptual framework of this research. The gaps and challenges on the land dispute resolution justice systems in the BARMM and the impact in relation to the Judiciary under its access to justice shall be analyzed. By using relevant literature, studies, the effects on the normalization phase structure in the BARMM shall be examined in consonance with the opinions of selected participants who are experts in these related fields through interviews and focus group discussions shall be determined. Implications to national security will also be discussed using the data available. Proposed mechanisms or structural reforms on coordination and governance will be verified based on interviews and FGDs.
From the analysis of the available
literature and other information culled in the course of gathering data on the ground, the author propounds that with the institutionalization of the transitional justice and reconciliation principles as part of the normalization phase, which to the author’s mind, is a novel conflict transformation
initiative in the country, the Judiciary should not only be a passive observer or a final arbiter in the administration of justice. Rather, the Judiciary should step up to the plate and be more proactive if it is to address deep-seated causes of long-standing conflicts and contribute to a more durable peace in the region.
METHODOLOGY
This study’s conceptual definition of transitional justice and reconciliation is based on the Joinet-Orentlicher framework (see Figure 10) as adopted by the Transitional Justice and Reconciliation Mission for the Bangsamoro region (Bleeker, 2016).
The research involved document analyses through the review of available literature. The initial assessment of the author was tested by further data gathering and validation by conducting interviews of experts, based on their academic and experiential contributions, and small focus group discussions of identified stakeholders thus gaining the perspectives from the ground.
The results served as personal insights to support or critique the comparative analysis of this study.
Available data from agencies (administrative and judicial) involved in land management within the BARMM were likewise examined within the context of access to justice. This research utilized a qualitative method because the findings of this study were interpreted using the available summary of interviews gathered and analysis as supported by other relevant literature in order to determine the implications of the Judiciary’s role in the administration of justice involving land disputes within the context of national security under the BARMM’s normalization phase.
This research determined and analyzed the challenges of normalization particularly on the transitional justice mechanism in relation to land disputes as one major conflict affected area like the BARMM. Thus, this descriptive research method was utilized as part of the environmental scanning of the BARMM coupled with the analysis of available results of the key informant interviews and focus group discussion.
The findings thus served as a platform for crafting recommendations or policies within the access to justice framework of the transitional justice paradigm to better address the political, socio-economic and security challenges in the implementation of the normalization process in the BARMM.
Instruments and Methods of Research This research determined and analyzed the challenges of normalization particularly on the transitional justice mechanism in relation to land disputes as one major conflict affected area like the BARMM. Thus, this descriptive research method was utilized as part of the environmental scanning of the BARMM coupled with the analysis of available results of the key informant interviews and focus group discussion.
The findings thus served as a platform for crafting recommendations or policies within the access to justice framework of the transitional justice paradigm to better
address the political, socio-economic and security challenges in the implementation of the normalization process in the BARMM.
Description of Respondents
The target participants for this study were local representatives and high-ranking officials assigned in the Bangsamoro regions as well as individuals who are in close relation or has knowledge and functions of the Bangsamoro Transition Authority.
Academic experts on Mindanao, particularly on the BARMM, and officials from the justice and legal sector, the BARMM Transition Cabinet, Office of the Presidential Adviser on the Peace Process who have relevant information on the administration of justice in the region were consulted . Other representatives from the security sector, and a representation from the Muslims, IPs and Christian living in the area and from the NGO or civil society sector were likewise invited to share their perceptions of the normalization process or transition process within the context of transitional justice and in relation to land disputes in the region.
Data Gathering
This study reviewed official documents retrieved from various government offices and websites. These documents were culled from primary and secondary sources constituting the 1987 Constitution, executive orders, laws, terms of reference, agreements, thesis and other similar dissertations and other related literature. Contents of these references were analyzed in relation to the problem statement and research questions.
The Transitional Justice and Reconciliation is a novel concept incorporated in the country’s peace process. Thus, related studies on the peace process, DWP framework and other related literature, both internationally and locally sourced were evaluated.
Interviews, written interrogatories and focus group discussions of the key informants, academic experts and other stakeholders (civil society) were undertaken.
Data Analysis
The information and insights gathered from various sources were collated, processed and analyzed. Results were tabulated and validated using the appropriate qualitative method that provided the answers to the research problem. The results of the document analyses, interviews and focus group discussion were then compared and analyzed to come up with substantial data findings and recommendations.
Research Analysis
This qualitative research sought to obtain substantial data to explain the complexities and realities of the land problem in conflict-related communities particularly in the BARMM and how it translates to the continuum of historical grievances and injustices with the hope of carving the path towards sustainable peace in the region. This is the very essence of transitional justice and reconciliation.
The data in this study was largely collected through the conduct of online interviews and written questions and answers (e-mail) from a wide range of stakeholders/
target participants, not only from a local perspective but also from the international view point . Verification of these data was done through comparison with available literature and also by the participants themselves as part of the process. Further validation was also conducted by the author after the interviews through follow up questions and additional documents shared by the participants in the course of the interviews. The final analysis of the data was then carried out by the author.
Be that as it may, while the pandemic posed some challenges and opportunities in data gathering, the guide questions and the technology of participation through online tools were significant factors in successfully facilitating the discussions.
Thus, it can be said that, in spite of the limitations of this study, the results present an incisive landscape of the intricacies of the land problem throughout the history of the BARMM region. The study reveals the peculiar challenges and a roadmap for judicial governance amidst ethnoculturally heterogeneous communities in the region.
Undoubtedly, a major take-away of this data gathering phase is the resilience of people to be hopeful, optimistic and empowered to give their strong support towards a peaceful transition.
The results of the discussions by the key informants were qualitatively analyzed using the judicial (access to justice) lens of peacebuilding and conflict-resolution theoretical concepts infused within the Transitional Justice and Reconciliation framework. The analysis is contained in the succeeding paragraphs of this chapter. It concludes by answering the research questions and objectives as indicated in Chapter 1 through further explanations of the proposed theoretical framework discussed in Chapter 2. Further, it illustrates the application of the author’s modified theoretical framework (MODIFIED DWP Framework with focus on ACCESS TO JUSTICE) through its proposed institutionalization within the normalization phase during the transition period of the OLBARMM.
The Transitional Justice and Reconciliation framework serves as a reference tool on promoting access to justice as a means for conflict transformation under a rule of law regime. Supreme Court Associate
Justice Marvic Leonen would aptly elaborate by infusing the Constitutional principle of social justice by stating the “rule of just law”
(emphasis ours).
Within the author’s MODIFIED version of the DWP/TJR framework, access to justice entails rights and obligations of all stakeholders to ensure that the “victims”
(e.g., marginalized, displaced) are entitled to some form of justice – reparation, restitution, etc.) and the corresponding obligation (of duty bearers) to enforce these rights and provide the remedies. TJR, in this sense, is not just top to bottom. It involves alignment and coordination, vertical and lateral, of all stakeholders, to ensure that the rule of (just) law and good governance are respected. This is the rationale of the WHOLE OF SOCIETY approach in good governance as a durable solution towards conflict transformation/
sustainable peace.
From the perspective of the State (OPAPP) and the MILF panel, the Comprehensive Agreement on the Bangsamoro (CAB, for short) and its Normalization Annex are in the implementation process in all phases of the normalization/desecuritization.
Decommissioning, with its certain challenges, have been initiated and is duly monitored.
Interestingly, or to a certain extent, a matter of serious concern, the TJR component of the Normalization Annex is practically not moving at all. Civil society is manifesting its frustration that national and regional initiatives on TJR have not at all materialized given that the BTA 3-year transition timeline is about to expire in the year 2022.
Quo vadis?
Others interpret that the ball is on the panel that introduced TJR as a negotiating condition for peace and therefore that leadership should champion its actual
implementation. Another alleges however that prudence dictates that TJR as the last phase of the Normalization Process, and given the 3 year timeline to expire by 2022, should best be left off for the next administration to implement. In other words, it goes to the “backburner”. The author is mindful of the politics of governance revealed through the justifications made by the actors involved. However, if one takes a thorough look at the Normalization Annex, the author humbly argues that the TJR component was erroneously conceptualized as a “stand alone” program. This could be the reason why it could not take off, or that the implementors find it challenging on how to implement programs under the TJR component.
Transitional Justice and Reconciliation is a concept, a framework, a mindset, a norm, a principle. It is not a “program”. It is a mechanism intended to be incorporated in all phases of the Normalization process – from security, socio-economic development programs, confidence-building initiatives and down to the “TJR programs upon the recommendation of the TJRC”.
TJR in general, as a framework, as a norm towards conflict-transformation and sustainable peace, is CROSS-CUTTING.
It must be intertwined and interrelated in all phases of normalization. Thus, the TJR mechanism in the socio-economic development programs is to provide for access to basic services (housing, health, education, livelihood and even land). TJR mechanism in the security phase would mean reintegration of former rebels into the State’s security sector either as local law enforcers or in the government armed forces. Another TJR mechanism that is gender-sensitive and culture sensitive is to reintegrate former women rebels into the government’s
security sector .These are but a few concrete illustrations of programs applying the TJR framework.
Also, a review of literature and as validated during interviews and FGDs, the key to a sustainable TJR mechanism is TRUST. This is a significant value-added component of a successful TJR initiative.
Trust, while an abstract concept, simply imparts a sense of security. It is part of confidence building. Trust is an essential building block towards sustainable peace.
From the lens of the justice system, a peaceful settlement of a dispute is always secured on trust.
An emerging trend on transitional justice is geared towards gender-sensitivity and culture- sensitivity. Related literature and interviews reveal the need and the demand to “deconstruct traditional power relations” in order to nurture inclusion and social harmony in the BARMM.
(Cagoco-Guia, 2019).Admittedly, nurturing changes in cultural mindset to enhance gender power relations is as crucial now as the BTA lays its groundwork for good regional governance.
Civil society advocates a call for a shift of what is perceived to be a “traditionally feudalistic and patriarchal” set up in order to conform with international guiding principles of social justice.
They stress that gender must be integrated into all aspects of the transition process. Data validates that the role of women as peace negotiators is intertwined with gender justice in Islam practice. To illustrate, interviews and literature similarly reiterate that the Quran and fundamental principles of Islam support gender justice, but patriarchal societies diminished this.
(Tikmasan, 2014). The implementors of reform are often in the shadows, especially if they are women. TJR is the oil that drives the engine of gender-balance, so to speak.
Effective use of TJR tools involves a
well-defined scope, participatory in character, resilient and locally contextualized, if it paves the way towards reconciliation and to make good on the promise to address the legitimate grievances of the Bangsamoro nation, rectify historical injustices and redress for human rights violations (Domes, 2014).
As revealed during the data gathering, a whole of society approach brings out new voices into the transitional justice platform, manifesting the desire to be more context-responsive by the use of local, community based “traditional” or indigenous or culturally-driven mechanisms towards conflict/dispute resolutions. This TJR strategy appears to be more relevant and accessible to local populations, particularly to the grassroots who more often than not, are unaware, either intentionally by authorities with their own agenda, or inadvertently for lack of access to education and empowerment channels, of existing “western” or state-driven mechanisms. Lessons from other countries that were confronted with similar land-related issues of overlapping claims, marginalization, internal displacement and other injustice linked to access to land may be useful (Carranza, 2014).
To reiterate, there is no such thing as one size fits all TJR mechanism. Each societal environment customizes transitional justice to address the needs of its constituents. Yet, a contextualized or localized TJR intervention, especially in a highly volatile and complex issue of land tenure is not simply synchronizing global models to peculiarities of a certain locality. It demands innovation, creativity, proactiveness, bargaining powers, problem-solving coupled with TRUST.
This brings the author to the very essence of TJR. Trust is the main driver towards conflict transformation and sustainable peace.
But that entails a deeper soul searching by all stakeholders.
Narratives, literature and discourses by key informants reveal common sentiments of mistrust, suspicion and betrayal, or generally negative perceptions of the other group(s).
The TJR framework deals with truth-telling.
Some call for evidence to demand justice --a sense of accountability for injustices can be compromised, as some would claim, owing to the age or the emotional burden of the “victim”
who could hardly testify.. or because simply they have no “real evidence” as required under statutory law such as written document to prove ownership.
If a solution is rendered, then it is seen as a salve (gamut), a medication for the pains that the violence and conflicts have inflicted through the years with most dating back from the time of the Ilagas onwards, except for Tedurays, who want to go back as far as 1901 when the first homesteaders encroached on their lands.
(Castillo, 2014) For some, fear prevails that truth-telling may lead to potential conflicts.
“We are not always open about what we went through because it might be used as a “weapon”
against us, manifesting fear that what they say may bring further harm (Castillo, 2014).
But how far can one go back and recall the trauma, to tell the truth, to be able to heal and to forgive and to demand some form of accountability? As some key actors would argue, there has to be some cut-off in order to maintain the rule of law.. vested rights must be respected and recognized.
All told, TRUST , as the author understands it to be within the purview of TJR, must be forward looking, with historical injustices to be forgiven through the healing and accountability agreed upon by the stakeholders, with the common desire for normalization of relationships so that future generations do not suffer the recurrence of violence or conflict.