• Will the Bangsamoro agreement work?

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    First of three parts

    The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM).
    — Framework Agreement on the Bangsamoro

    Working with other groups and sectors, the two parties shall ensure the establishment of a new Bangsamoro political entity that will protect individual and collective rights, and be truly democratic, representative of the diversity of the populace, and accountable to the communities therein.
    — Comprehensive Agreement on the Bangsamoro

    Is the Bangsamoro Agreement unconstitutional?

    Senator and former judge Miriam Defensor Santiago, along with many columnists and commentators, are saying so in the week after the much-celebrated signing of the Comprehensive Agreement on the Bangsamoro on March 27 in Malacañang Palace.

    Among issues being raised are the creation of a Bangsamoro “substate” which could secede from the republic, and the exclusive grant of police and other powers to the envisioned entity which the Constitution reserves for the national government.

    Moreover, there is the express assurance that Bamgsamoro would be created, as seen in the above-quoted provisions of the Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement on the Bangsamoro (CAB). This despite the inability of the Executive branch, which is the only government entity covered by the agreement, to pass the law needed to abolish and replace the ARMM.

    These legal challenges in implementing the CAB, the FAB, and its four annexes and one addendum, is the subject of the coming Special Report by the Center for Strategy, Enterprise & Intelligence (CenSEI) to be published next week. Complimentary copies of the full report may be ordered at report@censeisolutions.com.

    Running more than 200 pages, including texts of all the Bangsamoro accords and annexes, the CenSEI study, titled Will The Bangsamoro Agreement Work?, also analyzes political issues to be addressed in implementing the pact. There are also chapters on the history of Muslim insurgency and the peace process in Mindanao, and the interests and involvement of foreign nations and international institutions in the pact.

    Lastly, the final article poses the question: Will the Bangsamoro Agreement help solve Mindanao’s big problems? Plainly, if the deal doesn’t do much to alleviate the worst poverty in the country, the proliferation of private armies and criminal groups, including the Abu Sayaff; the endemic corruption and inefficiency in local governance, and woeful lack of infrastructure, then it would be difficult for peace to take root and flourish.

    Did the pact make commitments beyond Aquino’s power?
    Excerpts of the report will run in this column next week. For starters, we look at what is perhaps the most basic: Did the Executive branch of government make commitments beyond its constitutional authority, thus binding other branches to undertake actions in violation of their prerogative and independence?

    If so, that would be against the Constitution. As Senator Santiago said in her recent speech to Gordon College graduates in Olongapo, “the Executive branch had no power to bind the two other branches—Legislative and Judicial.”

    And some critics argue that government negotiators representing President Benigno Aquino 3rd may have indeed made commitments beyond what the Executive is empowered to do by agreeing with the Moro Islamic Liberation Front (MILF) that “the Bangsamoro shall be established” and “the two parties shall ensure the establishment of a new Bangsamoro political entity.”

    The same issue of the Executive making commitments beyond its constitutional power led to the 2008 Supreme Court decision striking down the Arroyo administration’s Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 (MOA-AD).

    Lessons from the MOA-AD ruling
    In that decision, certain provisions in the MOA-AD were deemed to be not in agreement with the Constitution and, therefore, would require charter amendments for them to be implemented. Among these provisions are the “associative” relationship between the national government and the Bangsamoro Juridical Entity envisioned in the Memorandum, and the powers to be accorded to the BJE.

    Penned by then-Associate Justice Conchita Carpio Morales, now the Ombudsman, the 30-page ruling pointedly cited the MOA-AD’s commitment to undertake changes in existing legislation needed to implement agreed provisions, to wit:

    “Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws “shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework.” . . .

    “Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President’s authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the ‘consensus points’ found in the MOA-AD. Hence, it must be struck down as unconstitutional.”

    While some lawyers may read the phrase “upon effecting the necessary changes to the legal framework” as a condition for implementing the agreement, the 9-6 majority decision, however, saw the phrase as a term or commitment acceded to by the government and thus, “a virtual guarantee” of needed changes in legislation — which the Executive branch did have the power to deliver.

    To make its ruling even clearer, the High Court cited the language of the 1996 peace accord with the Moro National Liberation Front: “While the MOA-AD virtually guarantees that the ‘necessary changes to the legal framework’ will be put in place, the GRP-MNLF final peace agreement states thus: ‘Accordingly, these provisions shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law.’ ”

    Analyzing the FAB
    A full analysis of this legal issue as it pertains to the MILF accord is set forth in the first and main chapter of the CenSEI report on the Bangsamoro Agreement. Certainly, there are categorical statements like the ones quoted at the start of this article, in the FAB and its annexes, which may lead some legal minds to conclude that the Executive went beyond its constitutional authority in agreeing to those provisions.

    On the other hand, there are also specific references especially in the annexes outlining legislative and electoral processes mandated in the Constitution and other laws. Among them are the mandates for the Bangsamoro Transition Commission envision in the FAB to draft constitutional amendments, if required, and for the President to submit to Congress the draft Basic Law establishing Bangsamoro.

    These provisions could be cited as acknowledging the constitutional prerogatives of both Congress and the electorate in implementing the pact. Of course, there is no guarantee how the Supreme Court would rule on the issue, already the subject of at least three petitions against the Framework Agreement.

    Plainly, the march to lasting peace is far from over.

    (Part 2 on the legal and political issues in the Bangsamoro Agreement will be published on Monday. For the full report on the peace pact, email report@censeisolutions.com.)

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