• The Bangsamoro pact: Silencing Mindanao’s guns

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    Third of four parts

    After the first part of this article last Friday assessed the constitutionality of the Framework Agreement on the Bangsamoro (FAB) and the recent Comprehensive Agreement on the Bangsamoro, the second instalment on Monday touched on three potentially contentious issues of power-sharing, geographic area, and sharing natural resources and taxation.

    In the Annex on Wealth Sharing, the big sticking point was the one that was deliberately not mentioned: the regalian doctrine vesting the state with ownership of all public domains and resources, as clearly stipulated in the Constitution. The Moro Islamic Liberation Front (MILF) saw this as the root of the subjugation and dispossession of Mindanao’s indigenous peoples, the Bangsamoro cited in the peace accords.

    There is another contentious unmentionable in today’s third part of this article based on the 200-page special report on Bangsamoro by the Center for Strategy, Enterprise & Intelligence (CenSEI). There is nothing about incorporating the Bangsamoro police into the Philippine National Police, the only police force allowed in our country, controlled by the President as Commander-in-Chief, as well as the National Police Commission. (For the CenSEI report on the Bangsamoro Agreement, email report@censeisolutions.com.)

    The Bangsamoro police, the PNP and the AFP
    The FAB states: “The police system shall be . . . responsible to the central government and the Bangsamoro government.” But that may not be enough to comply with the constitutional provision on one national police under presidential and Napolcom control.

    Even more constitutionally contentious is the FAB provision stating: “In a phased and gradual manner, all law-enforcement functions shall be transferred from the Armed Forces of the Philippines (AFP) to the police force for the Bangsamoro.” This may run counter to at least two key charter sections.

    First, Article II, Section 3 stipulates: “The Armed Forces of the Philippines is the protector of the people and the State.” Removing from the AFP all law-enforcement functions may prevent it from protecting people in the Bangsamoro in situations where only the Bangsamoro police would be allowed to intervene. That may violate the military’s express duty to safeguard the populace.

    Even more legally problematic may be the President’s power under Article VII, Section 18, to “call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.” Countering the last two threats is arguably not a law-enforcement function; stopping lawless violence definitely is. So unless the charter is changed, removing all law-enforcement functions from AFP units in the Bangsamoro would deny the Commander-in-Chief an express power under the Constitution. Hence, it could well be unconstitutional.

    The threat of secession
    Besides relinquishing law-enforcement functions, the armed forces would also reduce deployment in the Bangsamoro in a manner “consistent with a normal and peaceful life.” Thus, AFP bases, troops and armaments would shrink from the current level needed to contain the MILF rebellion. That could very well leave the Bangsamoro police as the largest armed force in the region.

    Over a year ago, this column expressed grave concern about the prospect of the region’s police becoming its main security force, which could be further augmented by former Muslim rebels rearming, as they did in last year’s Zamboanga City siege.

    “If that happens,” the November 5, 2012, article wondered, “is there a danger that the Bangsamoro police could be used to support a move by the region to break away from the Republic? The nation would then face the nightmarish prospect of invading a land defended by legitimate security elements—a situation that could qualify as belligerency under international law.

    “If a self-administered Bangsamoro declares independence and defends itself with its police, that could match conflict conditions set out in a Military Law Review journal article, ‘The Concept of Belligerency in International Law’: ‘the existence of civil war within a state, beyond the scope of mere local unrest; occupation by insurgents of a substantial part of the territory of the state; a measure of orderly administration by that group in the area it controls; and observance of the laws of war by the rebel forces, acting under responsible authority.’

    “If a status of belligerency is recognized, the article continues, ‘third party States assumed the obligations of neutrality regarding the internal conflict and treated the two parties to the conflict as equals—each sovereign in its respective areas of control.’ Plus: rebels were accorded prisoner-of-war status, and their vessels could conduct searches at sea and dock in ports of countries that recognize their breakaway state, among other privileges.”

    One might add to the 2012 column: If a breakaway Bangsamoro republic gains recognition from foreign governments, including Muslim states, then it could very well claim to be not just a separatist insurgency, but an independent nation resisting invasion by a longtime subjugating power.

    Clearly, the issues of Bangsamoro police control and the law-enforcement functions and future deployment of the Armed Forces of the Philippines need to be carefully and categorically delineated in terms that would not only comply with the Constitution, but more important, preclude a Bangsamoro breakaway.

    This very real possibility of secession should command the attention of every Filipino, especially lawmakers who will deliberate the Bangsamoro Basic Law, as well as Supreme Court justices pondering the constitutionality of the Framework Agreement. Proponents and inhabitants of the future Bangsamoro, too, for if today’s laudable peace efforts lead to future war, it won’t be good for harmony and development in Mindanao.

    Decommissioning the rebellion
    One way to ensure that separatist conflict would not recur is to disband and disarm rebel units in a verified and irreversible manner. Thus, the FAB states: “The MILF shall undertake a graduated program for decommissioning of its forces so that they are put beyond use.” Notably, the responsibility and task of disarming rests on the rebels alone.

    Overseeing the decommissioning process and timetable would be a Independent Decommissioning Body with four local experts and three foreign ones from different countries. In monitoring the retrieval, inventory and storage of MILF weapons, the IDB operates in confidentiality. Thus, the Philippine government shall have to go on faith that with IDB oversight, rebel arms and troops are indeed being “put beyond use.”

    Ultimately, of course, the best way to avoid future conflict is to address its causes. How well the Bangsamoro accords would help resolve the roots of rebellion will be discussed on Friday.

    (Part 1 on the constitutionality of Bangsamoro was published last Friday, and Part 2 on power sharing, geographic area, and taxation and resources this past Monday. For the full CenSEI report on the Bangsamoro agreements, email report@censeisolutions.com.)

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