On 14 October 2008 the Supreme Court of the Philippines declared a draft agreement between the Moro Islamic Liberation Front (MILF) and the Philippines government unconstitutional, effectively ending any hope of peacefully resolving the 30-year conflict in Mindanao while President Gloria Macapagal-Arroyo remains in office. The Memorandum of Agreement on Ancestral Domain (MOA-AD or MOA), the culmination of eleven years' negotiation, was originally scheduled to have been signed in Kuala Lumpur on 5 August. At the last minute, in response to petitions from local officials who said they had not been consulted about the contents, the court issued a temporary restraining order, preventing the signing. That injunction in turn led to renewed fighting that by mid-October had displaced some 390,000.
The immediate task now is to prevent escalation and discourage the government and local officials from plans to arm civilians. Interested governments and donors should press both sides to keep existing ceasefire mechanisms in place, while quietly urging a return to talks. They can also take steps now to build or strengthen the institutions that a post-conflict Mindanao will need, even if peace seems a long way off.
The MOA was an extraordinary document intended as a roadmap for a so-called Comprehensive Compact or final peace treaty. It acknowledged the Muslims of Mindanao, the Bangsamoro, as a First Nation and laid the groundwork for setting up a Bangsamoro Juridical Entity (BJE) as their homeland. The BJE's relationship with the central government was defined as "associative", suggesting almost-equals. This, and the definition of ancestral domain, the territory to be included in the BJE, were the most controversial parts of the agreement. The revelation of the planned geographic scope led outraged local politicians, whose land would be affected and who had not been consulted during the negotiations, to demand an injunction. President Arroyo's opponents and potential successors after the 2010 elections also saw political advantage to be gained from condemning the MOA.
Once the injunction was granted, the president and her advisers announced the dissolution of the government negotiating team and stated they would not sign the MOA in any form. Instead they would consult directly with affected communities and implied they would only resume negotiations if the MILF first disarmed.
In the past when talks broke down, as they did many times, negotiations always picked up from where they left off, in part because the subjects being discussed were not particularly controversial or critical details were not spelled out. This time the collapse, followed by a scathing Supreme Court ruling calling the MOA the product of a capricious and despotic process, will be much harder to reverse.
While the army pursues military operations against three "renegade" MILF commanders - Ameril Umbra Kato, Abdullah Macapaar alias Bravo, and Aleem Sulaiman Pangalian - who attacked villages in North Cotabato and Lanao del Norte after the August injunction, the likelihood of full-scale war engulfing Mindanao seems low. Neither side has the resources to engage in sustained combat, and the generally moderate MILF leadership said after the 14 October ruling that it would not order its forces into battle. A few other individual commanders, however, could conclude that the strategy of pursuing peace had failed and join the "renegades". Another possibility is that some of the few dozen foreign, mostly Indonesian, jihadis in Mindanao could decide to undertake retaliatory action, since Kato and Bravo have assisted them in the past. A major urban bombing could turn trigger a much wider conflict.
Looking ahead, if and when peace talks resume, the government will have to do a better job of heading off potential spoilers, through consultation or co-optation, and delivering what it promises. The MILF will have to show more backbone in dealing with errant commanders.