Notes on the Republic of the Philippines and Moro Islamic Liberation Front MOA on Ancestral Domain

August 7, 2008

Preliminary Notes:

In my OBLICON Class, I remember one classmate asking our professor what “Innominate Contracts” mean, I no longer recall what our professor answered.  What stuck to my mind was the etymology of the word, which roughly translated to “without a name” or contracts without a name or anonymous contracts as opposed to those contracts which have names like Contract of Sale, Contract of Lease, Employment Contract, etc.  A classmate also asked whether a memorandum of agreement takes the form of an innominate contract and our professor said yes. 

 Applying above, this Memorandum of Agreement then is a contract if agreed upon and signed by both parties, becomes a binding document to both parties.  As provided for by Article 1307 of the Civil Code of the Philippines,

Innominate contracts shall be regulated by the stipulations of both parties, by the provisions of Titles I and II of this Book, by the rules governing the most analogous nominate contracts, and by the customs of the place.

Aside from this specific provision which explicitly states on how innominate contracts are governed, there is also an implicit rule we learned in Constitutional Law I which says that, every contract must always confrom with statutes and with the fundamental laws of the land which is the Philippine Constitution. 

 The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) herein referred to as the “Parties” to this Agreement.

Terms of ReferenceThe context of referents follows:The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines;

The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998;

The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001;

The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001;

The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996;

Republic Act No. 6734, as amended by R.A. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”;

ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments; and

Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understanding, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.

What is very obvious in the discussion of context of referents is its non-reference to the Constitution as the over-all legal framework of the of the MOA.  The absence of reference to the Constitution, however, does not and will not preclude the Court from reviewing the constitutionality of the agreement because as I said earlier, it is an implied rule that every contract must conform with the Constitution. 

Have agreed and acknowledged as follows:

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