Bangsamoro: Three future bones of contention

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Second of four parts

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Continuing the analysis of the Bangsamoro accords from legal and political standpoints, this second part of the article spotlights three major provisions on power-sharing, geographic coverage, and wealth-sharing. Below are abridged excerpts from the 200-page special report on the Bangsamoro pact by the Center for Strategy, Enterprise & Intelligence (CenSEI), which may be obtained by emailing report@censeisolutions.com.

On the first issue, the Framework Agreement on the Bangsamoro (FAB) said: “The relationship between the central government with the Bangsamoro government is asymmetric.” This provision is repeated in the Annex on Power-Sharing, Part 1.1:

“The relationship between the central government and the Bangsamoro government is asymmetric. This relation is reflective of the recognition of the Bangsamoro identity and their aspiration for self-governance. This makes it distinct from the regions and other local governments.”

The FAB and its annexes do not provide a precise description of what “asymmetric” is. Government peace panel chair Miriam Coronel-Ferrer explained what it is not: “a ‘mixed’ system that is precisely neither straightforward, symmetrical federal, or outright, highly-centralized unitary.”

So what exactly is ‘asymmetric’?
Constitutionalist Fr. Joaquin Bernas writes that he does “not know what this [term]is meant to hide.” He suspects “asymmetric” is being used to avoid the “associative” relationship rejected by the Supreme Court as unconstitutional in the 2008 MOA-AD case, because “in international practice, the ‘associated state’ arrangement has usually been used as a transitional device of former colonies on their way to full independence.”

The Office of the Presidential Adviser on the Peace Process website says: “The autonomous regions for Muslim Mindanao and the Cordillera contemplated in the Constitution partake of this special and distinct status and can thus be described as asymmetrical.” Thus, for the OPAPP, “asymmetric” seems to be nothing but another word for autonomy.

But is it so for the Moro Islamic Liberation Front (MILF), which believes “the status quo is unacceptable”? If not, then the government just forged a pact in which a fundamental principle—the relationship between itself and the envisioned Bangsamoro—is not understood by the other party in the same way. That would be like a landlord and a tenant signing a lease, but not agreeing exactly what a lease is.

In cases questioning the FAB, the government needs to spell out to the High Court what “asymmetric” means, particularly as negotiated with the MILF. Suggestions of independence must be avoided, and the Bangsamoro must strictly adhere to the “autonomous region” referred to in Section 15, Article X of the Constitution. And the MILF had better not object too loudly over such an interpretation.

Where is the Bangsamoro?
The FAB clearly sets the core territory of the Bangsamoro, which understandably includes the present ARMM territory. What arouses interest, however, is the automatic inclusion of Cotabato City, Isabela City, six municipalities in Lanao del Norte, and 39 barangays in North Cotabato. Plus any areas contiguous to the current ARMM if their governing councils or at least 10 percent of voters petition to join the Bangsamoro.

The six Lanao del Norte municipalities and 39 North Cotabato barangays had voted for inclusion in the ARMM during the plebiscite held under the 2001 ARMM Expansion Act, but their respective provinces did not muster enough inclusion votes.

On the other hand, Cotabato City and Isabela City both rejected inclusion, yet are included the Bangsamoro land. And municipalities or barangays bordering the ARMM would also be incorporated even if only one in every ten voting residents agrees. That doesn’t sound democratic, and it may be unconstitutional.

In a Senate hearing, Zamboanga City Congressman Celso Lobregat warned that including those non-ARMM municipalities and barangays in the Bangsamoro violates the Constitution, specifically Section 10 of Article X. It states: “No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite.” That’s 50 percent of votes plus one, not 10 percent.

If Congress so legislates, the Bangsamoro Basic Law could include provisions amending the Local Government Code to allow modes of inclusion in the new region as provided in the Framework Agreement. But that doesn’t mean people in affected areas would just accept incorporation, especially if only one-tenth of them favor it. Thus, if and when the Basic Law creating Bangsamoro and setting out its territory is put to a plebiscite in affected areas, a good portion of the envisioned region may still opt out.

Whose land is it anyway?
Last July, three days after the MILF walked out of peace talks in Kuala Lumpur, the peace panels signed the Annex on Revenue Generation and Wealth Sharing. It would raise the Bangsamoro’s share of state revenues above those for the ARMM. Under the Annex, the current 50-50 mineral revenue sharing between the national government and the ARMM is retained only with regard to uranium and fossil fuels like petroleum, natural gas, and coal.

For other metallic minerals, the Bangsamoro share would be 75 percent, and for non-metallic resources like timber, all will go to the Bangsamoro. And its regional legislature is allowed to defer remittance of the national government share of revenues for a “limited” but unspecified period.

Unlike revenue sharing, which Congress can adjust by legislation, exploitation of natural resources and ownership of land is a constitutional matter. Section 2, Article XII incorporates the regalian doctrine as a core charter principle: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.” And that sole state is the Republic of the Philippines.

MILF chief negotiator Iqbal revealed that this was the most contentious issue in the wealth-sharing talks. The regalian doctrine, he stressed, “is the reason why we lost our lands in Mindanao, because our lands are controlled by the state.” In the end, the Annex was silent on the regalian doctrine.

Like “asymmetric” relations and territorial scope, the regalian doctrine looks set to stir controversy in the future. And on Wednesday, we look at the biggest potential bone of contention in the Bangsamoro Agreements: disarmament.

(Part 1 on the constitutionality of establishing Bangsamoro was published last Friday. For the full report on the peace agreements, email report@censeisolutions.com.)

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