• Meanwhile, back at the Mindanao peace talks . . .

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    sadianSuffering from Napoles fatigueThe nationwide agitation over pork barrel corruption got at least one risk consultant asking about political stability. Well, if public outrage over the Priority Development Assistance Fund of Congress looks bad, there’s an even more worrisome and potentially violent issue that must be delicately resolved—or else: the transition to the Bangsamoro entity under a final peace accord with the Moro Islamic Liberation Front.

    If Bangsamoro doesn’t happen and the MILF deal falls through, the resulting frustration and anger among Muslim rebels could re-ignite war in Mindanao and even attacks in Metro Manila. Which is why clearing obstacles to the Framework Agreement and its annexes, including the constitutional issues, is crucial to lasting peace in the land.

    Anticipating the need for Charter change, framers of the 2012 Framework Agreement on the Bangsamoro gave the Transition Commission pushing implementation the power to “work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties.”

    Negotiators evidently remembered the Arroyo administration’s Memorandum of Agreement on Ancestral Domain, the Framework’s precursor. The MOA-AD was declared unconstitutional because of its “commitment” on behalf of the government to deliver provisions requiring Charter change—something the Executive branch could not do on its own.

    What exactly is about the envisioned Bangsamoro that may require amendments? Look at Article I, Section 1: “The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the ARMM.” Judge Soliman Santos, an authority on the Mindanao peace process, finds this the “most significant consensus point substance-wise,” requiring a “qualitatively higher form of self-determination/self-governance than the level of the ARMM.”

    The Constitution allows for “autonomous regions in Muslim Mindanao and the Cordilleras,” but creating an entity to “replace” the ARMM arouses suspicion. Philippine Council on Islam and Democracy (PCID) Director Amina Rasul observes that “the previous MILF demand for a sub-state in place of the present autonomous region was poisoned from the first, as the term evoked visions of an independent Bangsamoro nation within the Philippines.”

    This may be why the Supreme Court rejected the botched MOA-AD, which introduced an “associative” relationship between the Philippine government and the abandoned Bangsamoro Juridical Entity. Section 4 of Aquino’s Framework Agreement states that “the relationship of the Central Government with the Bangsamoro Government shall be asymmetric.”

    Constitutionalist Fr. Joaquin Bernas, one of the framers of the 1987 Constitution, says he does “not know what this is meant to hide. . . . Could it be that the framework is just avoiding the term ‘associative’?” Exactly, argues former Arroyo chief of staff and ambassador Rigoberto Tiglao, “the term ‘asymmetric’ is the Aquino administration’s clumsy attempt to go around the term ‘associative.’” But it still may not work, he contends, since “asymmetric” also “assumes the existence of states.” Hence, it also suffers the same defect that led to the MOA-AD’s demise.

    One solution: revise Article X of the Constitution and categorically classify the Bangsamoro as a “sub-state,” or a “federated state,” or an “associative state,” or whatever name they want to call it.

    The Framework Agreement also arouses constitutional issues on the Bangsamoro’s proposed form of government, its expanded Shari’ah justice system, and most importantly, its armed force. Section 18, Article X of the Constitution allows for “special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws.” As to the highly sensationalized wealth-sharing annex of the Framework Agreement signed in July, there seems to be no charter obstacle, since dividing state revenues is placed by the Constitution in the hands of Congress anyway.

    The Framework states that the Bangsamoro government shall be ministerial, with its chief executive coming from and accountable to the legislative assembly. Bernas believes this “really makes no problem because, while the Constitution specifies a presidential form of national government, it does not have the same prescription for local governments.” He noted that “Metro Manila had a ‘commission form’ of government which was neither prescribed nor prohibited by the 1973 Constitution.”

    While taxation is actually a matter that does not require constitutional amendments since Congress can simply expand the powers/rights of the ARMM/Bangsamoro by mere legislation, the exploitation of natural resources and ownership of land is an entirely different matter.

    Section 2, Article XII incorporates the regalian doctrine as one of the core principles in the Constitution, asserting: “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 State is none other than the Republic of the Philippines.

    For the MILF, the regalian doctrine is unacceptable because they trace their marginalization from this “traditional system of owning lands.” Its chief negotiator Mohagher Iqbal revealed that the most contentious issue in the wealth-sharing talks was not the percentages of revenues for the national government and the Bangsamoro, but the application of the regalian doctrine to the Framework Agreement.

    The regalian doctrine “is the reason why we lost our lands in Mindanao, because our lands are controlled by the state. Our sultanates, our leaders, they all lost their lands because what we were following then was the traditional system of owning lands.” In the end, no reference in the final draft was made regarding the regalian doctrine.

    With this fundamental controversy swept under the rug by the peace panels, this could be cause for serious worry and future conflict. Perhaps the government can concede an amendment to accommodate MILF beliefs regarding land ownership, but it is highly doubtful that the Constitution would drop the regalian principle.

    One of the most controversial issues surrounding the Framework Agreement is the disarmament of the MILF rebel force and the creation of a Bangsamoro police force. Article X of the Constitution allows regional police to take over peace and order. But Section 21 clearly states: “The defense and security of the regions shall be the responsibility of the National Government.”

    The charter also provides for only “one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.” Moreover, the Constitution makes it clear: “The President shall be the Commander-in-Chief of all armed forces of the Philippines. . .”

    No room there, it seems, for a Bangsamoro army handling overall security, plus regional law enforcers separate from the Philippine National Police, with both regional forces beyond the authority of the President. If the peace agreement envisions such armed units, then charter change would again be needed.

    Clearly, despite the hoopla over a year ago, much patience and effort will be needed even just on the legal front before lasting peace under a final pact comes to Mindanao.

    (Based on The CenSEI Report on constitutional revisions for the peace process, available with legal and other online research through report@censeisolutions.com.)

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    1. What happens if and when the people do not ratify the constitutional amendments required by the Framework Agreement in respect to the disposition of natural patrimony and the creation of armed forces outside of the control of either the national police commission or the Commander-in-Chief of the AFP? I do not believe the supposed popularity of the incumbent president alone would suffice to sway the people particularly, the Christians not only in Mindanao and Palawan bul also elsewhere in the country into approving such amendments. A wider and more serious conflict could ensue due to frustrations over a failed Framework Agreement.