Position Paper on the use of nom de guerre "Mohagher Iqbal"

16 April 2015

During the various Committee hearings of both Houses of Congress on the Mamasapano Incident and the Bangsamoro Basic Law (BBL), the issue on the use of an alias or aliases by Moro Islamic Liberation Front (MILF) Peace Panel Chairman Mohagher Iqbal, and how it would affect the validity of the peace process, came up. It cannot be denied that the question has a legal, as well as a political context, but

there is a perception that the question, more than its legal significance, is also now being exploited in the news and social media by way of undermining a basic foundation of the peace process. Lost in the discussion is the elementary premise that the use of an alias and nonprosecution for such use, at least while the peace process is alive and ongoing, has basis in the very nature of the peace process and the initial agreements entered into to set the stage for the holding of peace talks, viz., the agreement on safe conduct and security guarantees for the benefit of the negotiators and other high officials of the rebel organization, in this case the MILF.

1. Historical backdrop on the use of noms de guerre and other aliases

It is without question that the necessities of revolution and underground rebel movements generated a common practice among revolutionaries and rebels of using noms de guerre (war names). This practice has its origins in ancien regime France, where war names were adopted by new recruits, and which had an official character, being the predecessor of identification numbers. A nom de guerre was mandatory for every soldier. In daily life, these aliases replaced the real family names.

During World War II, it was popular among American expeditionary force members, such as those who fought in Europe and the Pacific, to adopt war names, to the point that real birth names were forgotten, and comrades-in-arms would only know each other by their war names. The same goes for Filipino rebels during the Japanese occupation, whose sacrifice can never be questioned merely because they used aliases in order to evade identification of their family members by the Japanese Kempeitai and their Makapili agents.

To illustrate further, our own national hero, Jose Rizal, was born Jose Protasio Rizal Mercado y Alonso Realonda. Upon enrolling at the Ateneo Municipal de Manila, Rizal dropped the last three names that make up his full name, on the advice of his brother, Paciano Rizal, and the Mercado-Rizal family, thus rendering his name as “Jose Protasio Rizal". Of this, Rizal writes: My family never paid much attention [to our second surname Rizal], but now I had to use it, thus giving me the appearance of an illegitimate child!" This was to enable him to travel freely and disassociate him from his brother, who had gained notoriety with his earlier links to GomBurZa.

Today, no Filipino would be able to immediately identify Jose Mercado as their national hero. But this does not mean that he is not our national hero, or that he did not write the Noli Me Tangere and the El Filibusterismo, or that he did not sacrifice his life for his country or, most importantly, that he was not the First Filipino, or the greatest among us who ever lived, all simply because he did not use his real name.

2. Law on use of aliases

Article 178 of the Revised Penal Code provides:

Article 178. Using fictitious name and concealing true name.

The penalty of arresto mayor and a fine not to exceed 500 pesos shall be imposed upon any person who shall publicly use a fictitious name for the purpose of concealing a crime, evading the execution of a judgment or causing judgment.

Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a fine not to exceed 200 pesos.

On the other hand, Republic Act No. 6085 regulating the use of aliases provides that:

Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was baptized for the first time, or, in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: xxx.

Sec. 3. No person having been baptized with a name different from that with which he was registered at birth in the local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use.

While the commission of the offense penalized in Art. 178 of the Revised Penal Code is malum in se, i.e., requiring that the use of the fictitious name should be for purposes of concealing a crime, evading the execution of a judgment or causing damage, violation of the provisions of RA 6085 is a malum prohibit-urn, i.e., mere commission of the act is already deemed a criminal act punishable under said law, regardless of the motivations of good faith of the malefactor in the commission of the offense.

In the case of MILF chief negotiator Mohagher Iqbal, he can be deemed to have violated the provisions of RA 6085 if the use of the alias "Mohagher Iqbal" is not as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice. The use of a nom de guerre in a rebel organization in times of rebellion is not one of the authorized uses pseudonyms under RA 6085, although it may be deemed as a crime incidental to, or in furtherance of, the crime of rebellion, so as to be absorbed in a criminal charge for rebellion. At the same time, assuming that the use of the alias “Mohagher Iqbal" was authorized pursuant to the provisions of RA 6085 laying down the requirements for the use of pseudonyms, there is still a violation if the person using the same represents himself in any public or private transaction or signs or executes any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use.

It is alleged that the person known as Mohagher Iqbal, in using an alias during the peace talks with the government, has committed the criminal acts penalized under Art. 178 of the Revised Penal Code and RA 6085, and that there are, indeed, indications that he has used an alias outside of the purview of RA 6085. The clear issue here, therefore, is whether or not Mohagher Iqbal, as chief MILF negotiator, can be criminally prosecuted for either his past or present use of his alias in violation of Art. 178 of the Revised Penal Code or RA 6085.

This position paper seeks to answer this question based on the theory that, in the same way that the MILF negotiators cannot be searched, restrained, or otherwise seized for rebellion as an agreed assurance for their safety and security while engaging in peace talks with the government, they also cannot be restrained or seized, or otherwise deprived of their liberty for other criminal offenses committed in furtherance of, or incidental to, the crime of rebellion, including the crime of illegal use of aliases, at least throughout the duration of the peace talks, and until they are either: (a) given general amnesty, as the positive end-point of the peace talks; or (b) once again hunted down as rebels in the event of a resumption of hostilities, as a negative and unfortunate eventuality.

3. Use of noms de guerre is part of government concession on safe conduct and security guarantees of MILF negotiators

For purposes of the peace negotiations with the MILF which started in 1997, the MILF negotiators, much like the other rebel negotiators and consultants of the National Democratic Front-Communist Party of the Philippines-New People's Army (NDF-CPP-

NPA), the Moro National Liberation Front (MNLF), the Cordillera People's Liberation Army (CPLA), and the Rebolusyonaryong Partido ng Manggagawa-PilipinasJex Boncayao Brigade (RPP-ABB), were allowed by the Philippine government the courtesy of continuing with the use of their revolutionary names or noms de guerre, as a matter of safety guarantee and personal security during the peace negotiations, where they surface in the legal arena at the risk of exposing themselves and their families. Any further pre-condition for the peace talks from the Philippine government to the NDF-CPP-NPA, MNLF, MILF, CPLA, or RPP-ABB negotiators to first reveal their real names would be selfdefeating in the negotiations since, by the very nature of the peace talks with rebels, the government deals with individuals who have been operating outside of the law for a long time, and to require them to suddenly expose themselves and reveal their personal circumstances would be putting forth an unreasonable pre-condition in the pursuit and conduct of any peace talks.

In the first place, these people have no guarantees that the peace talks would be successful, and that failure would already mean exposure of their identity and that of their families. Thus, for them, the risk of entering into peace talks under such highly uncertain circumstances, without any compensating guarantees, might be too high to successfully induce or encourage them to consider entering into negotiations with the Government, even if they would otherwise have been inclined to attempt or consider it.

4. Identity of Mr. Iqbal does not only consist of his birth name, but of his other personal circumstances already known to the government since 1979.

There are degrees on the revelation of identities in peace talks with these various rebel individuals, depending on the public face of the rebel figure. On the part of the officials of the MILF Central Committee, including Mr. Iqbal, the government has been notified of their real names when they were issued Philippine passports by the Department of Foreign Affairs (DFA). This, in itself, can already be considered as an act of good faith and a confidence-building measure on the part of the MILF officials as leaders of a rebel organization formerly sworn to seceding from the very Republic, to which they now seek inclusion with the acquisition of Philippine passports. Rebel leaders are really not known for applying, being issued, and possessing genuine and authentic Philippine passports.

This is not to say that, before such a gesture of good faith from the MILF leaders, their identities were completely unknown to the government. Said MILF officials have been with the MILF for years, if not decades, and their identities as members of the MILF Central Committee capable of representing the MILF in peace negotiations have, of course, been ascertained by government before the initiation of peace talks. It is not as if these people came from nowhere and are impostors posing as MILF leaders in place of the actual MILF officials. The personal history of the MILF officials behind the noms de guerre has been known to the government intelligence agencies since the MILF broke away from the Moro National Liberation Front (MNLF) in the late 1970s, and, as such, their status and positions in the MILF is already a matter of a long-established fact insofar as the government is concerned.

5. Allowing the MILF negotiators continued use of their noms de guerre is the government's confidence-building measure in the holding of peace talks, rather than the other way around.

The very logic and nature of rebel leaders surfacing for peace talks make the continuous use of aliases unavoidable for purposes of moving forward and making possible the conduct of negotiations. Otherwise, there will be no peace negotiations possible with any rebel group for that matter, in the same way that no peace negotiations is possible if the government continues to arrest and detain rebel negotiators and leaders for political crimes of rebellion, insurrection, or sedition while calling for peace talks. No rebel organization will trust or believe that the government is sincere in peace talks if it keeps on arresting their negotiators, leaders and representatives for committing rebellion or any offense or crime incidental to rebellion, including the use of war names and aliases.

This is also why Mohagher Iqbal, and all other rebel negotiators and consultants from the NDF-CPP-NPA, MNLF, MILF, CPLA, or RPP- ABB who use aliases, cannot be effectively prosecuted as a result and practical effect of the agreement on safe conduct and security guarantees, at least while the peace process is alive and ongoing, for the crime of using fictitious name and concealing true name under Art. 178 of the revised Penal Code or for the crime of illegal use of aliases under Republic Act No. 6085, because one of the guarantees of the government to the rebel negotiators before they agree to even start engaging in any peace talks is safe conduct, including freedom from seizure, detention, restraint, or harassment of their persons throughout the duration of the peace talks.

There is also the tacit understanding that, in exchange for a cessation of hostilities, the government defer from prosecuting rebel leaders or members for past acts of rebellion and other crimes incidental thereto, with the possible end in view of granting them a general amnesty upon the conclusion of a comprehensive peace agreement, subject of course to the UN Secretary General's Guidance Notes on Transitional Justice with regard to human rights violators and those guilty of violations of international humanitarian law as laid down in the Rome Statute.

Thus, precisely, the actual norm in peace negotiations with rebel organizations is the government allowing negotiators of rebel organizations to continue using their noms de guerre as part of confidence-building measures, instead of the other way around, i.e., government demanding MILF negotiators to first publicly disclose their birth names before the holding of negotiations, or to do so during said negotiations. On the other hand, if the government were to demand disclosure of the negotiators' birth names after it had already agreed to non-disclosure as a sign of government's good faith, the same constitutes the opposite of a confidence-building measure, which the government cannot realistically pursue without exhibiting the inability to live up to its commitments to the most basic political pre-conditions for the holding of the peace negotiations.

6. The use of noms de guerre incidental to the crime of rebellion cannot effectively be prosecuted as a result and practical effect of the GPH-MILF agreement on safe conduct and security guarantees

The implied suspension of prosecutorial action against the MILF negotiators and consultants includes the prosecution for the use of war names and aliases incidental to any membership or leadership in a rebel organization, which is otherwise penalized under our laws, in very much the same way that rebellion, insurrection and sedition are crimes that are not actively pursued for prosecution during the peace talks as a measure of good faith of the Government. In the meantime, the application of these laws are suspended for the benefit of peace negotiations and peace talks as common conditions of civility and measures of building trust between the government and the non-state actor capable of showing good faith and willingness to engage the government in a peace process.

According to the GRP-MILF Agreement on Safety and Security Guarantees signed in Cotabato City on March 9, 2000, the government"extends safety and security guarantees to MILF members who are directly and principally involved in the GRP-MILFPeace Talks". Furthermore:

xxx [t]hese MILF members, for the duration of the peace talks, shall not be restrained, searched, seized, and harassed on their persons or property in connection with their participation or involvement in the peace talks, except in cases of commission of common crimes such as crimes against persons, chastity, property and other similar offenses. Appropriate identification cards shall be jointly issued by the GRP and MILF Peace Panel Chairmen to MILF members covered by this agreement.

This agreement effectively binds the government to refrain from arresting and prosecuting rebel peace negotiators. Without this guarantee of government restraint on legal action against rebel negotiators throughout the duration of the peace talks and, instead, if the government continues to prosecute rebel negotiators for the commission of acts incidental to rebellion, including the use of war aliases, no right-minded rebel will ever negotiate with the government, unless his plain intent is to surrender unconditionally. Peace negotiations presuppose a give-and-take situation of compromises. The imposition of unilateral terms by a party connotes a situation of unconditional surrender, of which the peace negotiations are not.

Consequently, the demand of some quarters of Congress on the Executive Branch to reveal the birth name of Mohagher Iqbal, or any other MILF negotiator using a nom de guerre, might be construed as a violation of the terms of the 2000 GRP-MILF Agreement on Safety and Security Guarantees proscribing the harassment of MILF negotiators. As such, the Executive Branch, including all the Departments under the President as Chief Executive, if it complies with this demand of Congress, might be deemed as reneging on a pre-condition of good faith on its part that is necessary for the holding of peace negotiations, i.e., the government guarantee upon which the MILF has based assurances on the safety and security of its members directly engaged in the peace talks.

7. Cabinet and Executive officials cannot contravene standards of compliance with the GPH-MILF agreements without the express consent of the Chief Executive.

Since the government, acting through the Chief Executive, has given these assurances to rebel negotiators in exchange for their free and voluntary participation in the peace talks, any violation of this assurances affects the very foundation of MILF's consent to engage in the peace talks. It is therefore in the highest interest of the Chief Executive to preserve whatever assurances were promised by his officials in the GPH Peace Panel for the giving of such consent. Any official of the government, especially cabinet officials, are bound by such commitments and assurances. The latter cannot exercise discretion on this matter without the President's express consent, and without violating his trust and confidence.

The default position of the Executive branch, being the representative of the government and the State in peace talks, on matters that affect the government's sworn obligations and assurances under the peace terms entered into with the MILF, is to comply with the same in good faith. Thus, any action of any cabinet or executive official that would, in any apparent manner, contravene this standard of compliance has to be expressly authorized by no less than the Chief Executive. This is for the reason that any apparent contravention of the standards of compliance with the terms on safety and security guarantees directly affects the President's ability to assure the MILF that the GPH is capable of living up to its end of the agreements, thus also undermining his authority and superior responsibility over all government officials under his direct control and supervision. In short, executive officials, who are under the direct control and supervision of the President, are also bound to respect and observe the safety and security terms that were guaranteed by the Executive Branch. They cannot divulge information, in apparent contravention and violation of these guarantees, without the express permission of the President himself.

Cabinet and executive officials do not have the inherent power or authority to digress from the terms of a peace agreement entered into by their principal. All their power and authority emanate from the President. They simply do not have the discretion to second guess the President's position on matters that affect compliance with his commitments and assurances to the MILF under the peace agreement. Absent any express instructions or orders from the President, no cabinet or executive official can presume to have the discretion over such matters without acting beyond the scope of his agency as an alter ego of the President.

8. Identity of contracting parties is not an essential requisite in the validity of contracts

As to the legal issue of the use of an alias in contracts, of which a peace agreement is but a species, Art. 1318 of the Civil Code of the Philippines lays down the essential requisites of a valid contract as 1) consent of the contracting parties; 2) object certain which is the subject matter of the contract; and 3) cause of the obligation which is established. Note that the Civil Code does not include identity of the contracting parties as one of the essential requisites of a contract.

At the same time, Art. 1409 of the Civil Code of the Philippines describe void and inexistent contracts as the following:

1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;

2) Those which are absolutely simulated or fictitious;

3) Those whose cause or object did not exist at the time of the transaction;

4) Those whose object is outside the commerce of men;

5) Those which contemplate an impossible service;

6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained;

7) Those expressly prohibited or declared void by law.

Nowhere in these provisions does it provide that the use of an alias by an otherwise existing real or juridical person renders a contract void or inexistent. On the other hand, identity in the execution of contracts is a vitiating factor only in the establishment and determination of the actual consent of the real party to the contract. Thus, Art. 1390 of the Civil Code provides that only contracts where one of the parties is incapable of giving consent; or where consent is vitiated by mistake, violence, intimidation, undue influence, or fraud, are considered voidable, but not invalid or void, and are always subject to ratification by the affected party.

In the case of the peace talks with the MILF, the authority of the person known as Mohagher Iqbal to represent the MILF is established and determined. His capacity to give consent to the peace agreement in behalf of the MILF is without doubt. At the same time, the peace agreement is not vitiated by any condition that would demonstrate mistake, violence, intimidation, undue influence, or fraud. The use of Mohagher Iqbal as an alias by the Chairman of the MILF Peace Panel does not constitute either mistake or fraud, as rebel negotiators invariably  are not compelled by the government during the peace talks to use their registered birth names as a sign of good faith, safe conduct, and consideration for their personal security and that of their family. Again, even assuming that the use of an alias by Mohagher Iqbal constituted mistake or fraud, it only makes the peace agreement voidable, but only if the GPH renounces the same on such basis, and does not opt to ratify it.

9. Use of an alias does not exempt the party using the same from performing the obligations he entered into.

Finally, the use of an alias does not give the one using the alias the power to deny all that he represented himself to be and all acts that he

represented to have been executed by him. Quite the contrary, representation of such kind is governed by a distinct principle in law known as estoppel, as adopted in the Rules of Court on evidence as Conclusive Presumptions under Section 2, Rule 131, to wit:

Section 2. Conclusive presumptions. - The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it;

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a)

Conclusive presumptions mean that they are non-rebuttable. The person estopped or the tenant is not allowed to present any evidence contrary to what he said or represented to be. They are not allowed by the court to present any evidence to show otherwise. And there are only two instances of conclusive presumptions in law, and estoppel is the first.

Regardless of whatever name the person known as Mohagher Iqbal used in signing the peace agreements, he is conclusively presumed, BY LAW, to have entered into the same and cannot, at some future time, be allowed by any court of law to falsify it.

10. Performance of obligations in peace agreements is more of a political, rather than legal issue.

In the end, whether or not either party performs its obligations under the terms of the final peace agreement is not a matter of legality, but politics. Either party can choose to renege on its obligations, at the risk of losing its goodwill to the other party and the international community. If either the GPH or the MILF violates the peace terms, the matter will not go to courts, as the MILF will not simply recognize the authority of Philippine courts to mediate and exercise jurisdiction over a purely political issue of the government and a non-state actor dealing with each other.

Rather, performance of each other's obligations is a matter of continuing trust and good faith, with violations dealt with upon mutual agreement of the parties. In this manner, a peace agreement digresses from the legal framework of ordinary private contracts which are susceptible of court jurisdiction.

Whether or not the GPH or the MILF perform their obligations in good faith largely remain a question of political will, upon the assumption that either party would not have negotiated the terms of an agreement without any intention of honoring all that they have agreed upon. This is the basic premise of negotiations between the government and rebel organizations willing to amicably settle a long-running armed conflict that has cost both sides more than they are willing to continue to suffer, for the benefit of mutual gain in terms of social cohesion, political stability, and economic development.

This is the larger context of peace-building and conflict resolution that cannot be bound by ordinary legal parameters. Some quarters would now wish to impose these legal parameters upon the government and the MILF by calling for the application of Philippine penal laws on the members of the MILF's peace panel while the peace talks are still ongoing, despite the established premise that the most inherent and essential pre-condition to any peace negotiations is government restraint on any legal action against rebel negotiators that would prevent them from freely performing their role as such, specifically restraint, detention, seizure, and harassment of their persons. This is neither building goodwill nor confidence in the peace talks, it is reneging on earlier commitments that the rebel negotiators can surface and talk peace with the government without being harassed and threatened with all sorts of legal action.


15 April 2015, City of Manila.

                                                                                                                                                                                                                                                                                                                                  Submitted by:

                                                                                                                                                                                                                                                                                                                                  LEILA M. DE LIMA (sgd)                                                                                                                                                        Secretary of Justice

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