Why the IMT mandate ends on December 8, 2010 (and not in February 2011)

The mandate of the International Monitoring Team (IMT) will end 15 days from today.

Some people say that the mandate should end in February 2011 because the current Malaysian contingent arrived in Mindanao in February 2010. There may be good reasons to wish that the mandate of the IMT ends at a latter date but that has no basis at all.  I need not stress that the continued stay of the IMT, without a new agreement, beyond December 8, 2010, will have serious constitutional, legal, security and diplomatic repercussions.

The mandate will end by December 8, 2010, because the the Terms of Reference of the International Monitoring Team (TOR) dated 9 December 2009 signed in Kuala Lumpur says so:

“The term of the mandate of the IMT shall be 12 months except the Civilian Protection Component (CPC) which shall remain in place and continue to perform its functions should the IMT cease to operate. Extension of the term of mandate may be considered on a year-to-year basis upon the request by both GRP and MILF.”

Intention of the Parties.

I was part of the negotiations for the TOR dated 9 December 2009. The GPHL and MILF intended the IMT’s mandate to be reckoned from the date of the signing of the TOR, i.e. that it should end by December 8, 2010, unless renewed by the parties. The parties intended a clear end date for the IMT (as they always have). There was no discussion that it be reckoned to some determinable and “movable”  future date, i.e. the arrival of the Malaysian contingent.

Previous Conduct.

Looking at how the parties dealt with this issue of end of mandate will reveal that they have always reckoned the end of mandate on a written agreement – the date of signing of the TOR or even a Joint Statement. The point is that it is always a fixed date.

Thus, for example, on August 27, 2007, the TOR of the IMT (TOR dated 27 August 2007) was signed by then GRP Chair Rodolfo Garcia and MILF Chair Mohaqer Iqbal. This was actually an amendment of the previous TOR signed in 2005. The TOR dated 27 August 2007 had a similar provision that stated the term of mandate was for “12 months”. This signed TOR was accompanied by a Joint Statement of even date where it was made clear that the parties “reached a consensus to request Malaysia, Brunei, Libya and Japan to extend the tour of duty of their respective contingents to the IMT for another 12 months ending August 2008.” This 1-year extension was then affirmed during a call by the panel chairs to then Malaysian Deputy Prime Minister and Defense Secretary (now Prime Minister) Dato Sri Mohd Najib bin Tun Abdul Razak on November 15, 2007.

Sometime before the end of the mandate on August 27, 2008, the Panels experienced difficulties on the discussions on the ancestral domain aspects. The developing situation on the ground prompted then Malaysian Deputy Prime Minister (now Prime Minister) Najib to announce to media on April 24, 2008, that a “phased withdrawal” of the Malaysian IMT contingent will start on May 10, 2008. Eventually, 29 Malaysian IMT personnel were flown back to Kuala Lumpur, leaving behind the Head of Mission (Maj. Gen. Yasin), his Deputy and 11 Malaysians. It may be good to know that the Malaysian contingent headed by Maj. Gen. Yasin was deployed to Mindanao only on September 16, 2007 or almost a month after the TOR dated 27 August 2007 was signed.

Following the MOA-AD event of August 5, 2008 and knowing that the term of mandate of the IMT will end on August 27, 2008, the Malaysian Chief Facilitator called for an Executive Session in Kuala Lumpur on August 27, 2008, to discuss precisely the extension of the IMT. Here is the clear proof of what I am saying: the end of the term of mandate was reckoned from the date of the TOR despite the fact that the actual deployment happened months later.

Upon the request of the GRP and MILF Panels, the Malaysian Government eventually agreed to a 3-month extension of the IMT from August 27, 2008 or up to November 30, 2008. This decision was announced on the same day by Malaysian Foreign Minister Rais bin Yatim in a press statement.

On November 27, 2008, the 3 month extension of the term of the IMT ended and Malaysian Foreign Minister Rais Yatim issued a Statement saying that “Malaysia is suspending its participation in the IMT upon expiry of its mandate. Malaysia’s participation in the IMT will cease as scheduled on November 30, 2008.” Thus, the remaining Malaysian contingent left Mindanao on the said date.

Considering the aforementioned, it could be said that the “expiration” of the IMT mandate has always been a fixed date – either based on the TOR, a Statement or an executive agreement. The parties never envisioned a movable date or worse, a date subject to the sole will of the IMT.

Furthermore, the records of the negotiations will show that never has there been an instance where the mandate of the IMT was reckoned from the date of deployment. There were “turnovers” or deployments of of new IMT missions midway through a term (e.g. the IMT contingents headed by Maj. Gen. Zulkifeli and Maj. Gen Soheimi) which did not affect or alter the term of the mandate of the IMT.

Taking the case for instance of Maj. Gen. Yasin, who was Head of Mission from September 16, 2007, to November 2008, his contingent’s deployment happened several weeks AFTER the signing of the TOR dated August 27, 2007. In this case and despite the delayed deployment, the parties still reckoned the term of mandate from the date of signing of the TOR: August 27, 2008.

The present IMT.

The deployment of the current IMT headed by Maj. Gen. Baharom is similar to that of Maj. Gen. Yasin. The current TOR was signed December 9, 2009, and yet they were deployed only sometime in February 2010. But the end would be the same: the mandate of the current IMT will end on December 8, 2010, or exactly 12 months based on the TOR. There should be no doubt about that. The only way that the IMT can legally stay beyond December 8, 2010 is if the GPHL and MILF renew the mandate before it expires. Until this happens, the IMT will have to leave by December 8, 2010 or 15 days from today.

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