The Bangsamoro Framework: An Assessment Written by RICARDO SALUDO The ides of October marked a milestone in the peace process

between the Philippine government and Muslim secessionists as the leaders of the countrys largest rebel group, the Moro Islamic Liberation Front (MILF), walked through the halls of Malacaan Palace to sign a Framework Agreement with government representatives for the creation of a new Bangsamoro political entity that would replace the Autonomous Region in Muslim Mindanao (ARMM). Amid the hyped-up signing ceremonies, The CenSEI Report looks deep into the innards of the new so-called mother agreement and compares it with past pacts to see if it is truly the roadmap toward lasting peace, and not just another turn in the long and winding journey. And crucial to this assessment are three overarching issues: Do the Framework Agreement and the final peace accord abide by the Constitution? Will the planned governance system advance true democracy and progress in Mindanao? Will the directly affected areas accept the new arrangements and work for its success? Every peace accord must necessarily build on past agreements that both the government and the rebels have largely accepted and even implemented. That is true even with the Framework Agreement, despite its explicit and sweeping declaration that the present Autonomous Region in Muslim Mindanao (ARMM) implementing existing peace agreements, was a failed experiment. The long road to peace Over the past three decades the Philippine government had forged a number of agreements with Muslim secessionists. The most significant was the Muammar Qaddafi-sponsored Tripoli Agreement of 1976 between the martial-law administration of Ferdinand Marcos and the Moro National Liberation Front (MNLF) headed by its chairman Nur Misuari. Until mid-October, the Tripoli Agreement stood out as the framework for negotiations with Muslim rebels. The administration of Corazon Aquino later on took over the task of implementing the Tripoli pact under the 1987 Constitution, which mandated the creation of an autonomous region in Muslim areas of Mindanao. Implementing this constitutional provision, Congress enacted the ARRM Organic Act (Republic Act 6734) calling for a plebiscite in thirteen provinces and nine cities claimed by the MNLF as part of the historical extent of Bangsamoro. Despite administration support for autonomy, only the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi voted to be included in the ARMM. As the administration of Fidel Ramos inked the Final Peace Agreement with the MNLF in 1996, exploratory talks with the breakaway MILF was also started. In 1999, the peace process collapsed as Ramos successor, Joseph Estrada, adopted an all -out war strategy. After Estrada was ousted in 2001, the administration of Gloria Macapagal-Arroyo reached out to all rebel groups, separatist and communist and forged a ceasefire with the MILF nearly a decade ago, which has held despite brief periods of fighting. Seven years of on-and-off talks with the MILF finally reached a breakthrough when the Arroyo government announced a draft Memorandum of Agreement on the Ancestral Domain Aspect of the Tripoli Agreement (MOA-AD), scheduled to be signed in August 2008. But the Supreme Court declared it unconstitutional for portions that justices believed to be creating a separate state and promising constitutional amendments which the government negotiators and even the President could not guarantee. No need forcharter change? Will the Framework Agreement fall prey to the same constitutional issues of breaking off part of the Republic and promising legislation that the Executive was not empowered to commit? The Framework Agreement and the final pact it aims to forge must comply with Philippine law. Section 18, Article 10 of the Constitution explicitly vests Congress alone with the power to create an autonomous region subject to approval by affected communities by plebiscite. For Bangsamoro to replace the ARMM, Congress needs to abrogate the ARMM Organic Law. In addition, creating the new entity must not require constitutional amendmentsa MOA-AD requirement that led to its voiding. Notably, the Framework Agreement did not explicitly call for constitutional amendments. It merely provides for the drafting of the Bangsamoro Basic Law and the creation of a Transition Commission to draft and roll out measures implementing the final peace accord.

Perhaps the most important political aspect of the Framework Agreement is Article 1, Section 1, which says that: 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). This has reference to Decision Point No. 1 of the Decision Points agreed by government and MILF negotiators in April. The provision, according to leading peace process luminary Judge Soliman Santos, is the most significant consensus point substance-wise as it would lead to a qualitatively higher form of self -determination/self-governance than the level of the ARMM. How much more is the subject of further talks on the final peace accord. Notably, right after the Decision Points were announced, MILF chief negotiator Mohagher Iqbal said that: The Muslim sub -state in essence is a form of federal state. One question then is whether the Constitution provides for a federal state in asymmetric relationship with the national government, as the Framework also stipulates. If the charter doesnt, then any explicit commi tment to the MILF for the establishment of Bangsamoro as understood by Iqbal, could be challenged as illegal. (Excerpt from The CenSEI Report on the MILF Framework Agreement, available with legal and other online research through report@censeisolutions.com.) Belmonte does what Noynoy orders everytime. As Noynoy, his peace adviser and chief negotiator do not want to have the 1987 Constitution amended for the inclusion of the Bangsamoro to replace the existing Autonomous Region of Muslim Mindanao (ARMM), Belmonte says there is no need for Charter change to create the Bangsamoro, as a mere resolution from Congress is more than sufficient to create this new political entity. This was already done to create the ARMM, he added. Maybe so, but there is, however, a big problem with this incumbent Congress resolution creating the Bangsamoro or the New Political Entity (NPE). Congress could do that then, for the ARMM, because the 1987 Constitution had already declared that t here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras... within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. (Article X, Section 15) and tasked Congress to come up with a law to flesh this out. As pointed out by Prof. Harry Roque of the University of the Philippines,In Province of North Cotobato vs GRP Peace Panel, t he Supreme Court admonished the Arroyo administration that all negotiations for peace must be within the framework of the Constitution. No one, according to the court, has the power to commit to amend the Constitution to make it conform to any agreement, Roque said. This is precisely what is wrong with the Framework Agreement even without the annexes because Noynoy and his peace adviser and chief government panel negotiator, Marvic Leonen, want the 1987 Charter to conform to their FA and later its annexes, if they ever come to light, instead of the agreement or a peace pact conforming with the provisions of the Constitution. The problem is that nothing in that FA with the MILF conforms with the present Constitution, such as an assymmetric relationship (i.e, a state within a state), a ministerial government (ie. parliamentary), wealth and power sharing, territories, control of resources over land, sea and air, free from Commission on Audit as the Bangsamoro is to have its own independent audit and its own police force, all of which do not conform to the Charter. Any which way it is cut, Noynoy and the MILF have agreed to have an Islamic state within the Philippine state, which is not only unconstitutional but highly treasonous on the part of Noynoy. Roque cited the Memorandum of Agreement on Ancestral Domain (MoA-AD) signed in 2008 but which was struck down by the SC as not being a document that can bind the Philippines under international law. The same Charter decreed, in the same Article, Section 18, that Congress shall enact an organic act for each autonomous region, and only two autonomous region have been precisely cited by the Charter: The ARMM and the Cordilleras. Neither Congress nor the President of the Republic has been empowered by the Constitution to eliminate the ARMM and replace this with the creation of the Bangsamoro. Neither Congress nor the President can amend the constitutional provisos through a mere congressional resolution or a Framework Agreement and a peace accord. Even arguing that additional autonomous regions can be created, the Bangsamoro is a different kettle of fish, because it replaces an existing autonomous region and all lands now under the ARMM will be transferred to the NPE, which is the MILF, under the guise of Bangsamoro. More territory in fact is planned to be added. How then can Congress create the Bangsamoro without abolishing the ARMM, as it will no longer be in existence? Through a resolution? It should also be pointed out that it was the sovereign Filipino people who had ratified the 1987 Constitution, flawed as it is and it should be the Filipino electorate that has that right to amend this proviso, if, in the first place, the Filipino people want to abolish the ARMM and approve the creation of the Bangsamoro, as planned by Noynoy and his FA, with no annexes to boot. The matter of the creation of the Bangsamoro is not just the choice of the Filipino electorate in these proposed territories for the NPE, but the entire Filipino electorate, in Luzon, Visayas and Mindanano.

The RP-MILF framework agreement (1) By Fr. Joaquin G. Bernas S. J. There is much rejoicing over the framework agreement reached between the Philippine government and the Moro Islamic Liberation Front about achieving peace in Muslim Mindanao. There is justification for the rejoicing mainly because we have overcome the stalemate that resulted from the rejection of the 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD) by the Supreme Court, and the parties have agreed to stop fighting for now. The central issue of that 2008 failed process was the extent of the presidents power in pursuing the peace process. That iss ue is still alive. If the framework, like the MOA-AD, is challenged before the Supreme Court, once again the Court will have a big task to perform. As the prefatory statement of the Court in 2008 said, It must uncompromisingly delineate the bounds within which th e President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively. Some of the issues that arose from the 2008 MOA-AD may also be found in whatever final form the new peace agreement will take. The framework agreement is not yet the peace agreement. It is an agreement to work toward the formulation of the peace agreement. The very first section of the framework already announces the eno rmity of the challenge: 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). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012. The rejected status quo has its root in Article X of the 1987 Constitution, and in the organic act giving life to the current ARMM, a work of Congress. And as the organic act itself says: Any amendm ent to or revision of this Organic Act shall become effective only when approved by a majority of the votes cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. It is therefore clear that Congressboth as a statutory body and, if necessary, as a constituent assembly will be needed in the formulation of the final form of the peace agreement. The framework is an unfinished document. As the final provision says: The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year. What will be achieved by the end of the year, that is, by the end of next December, if at all, cannot yet be the peace agreement itself but the guidelines to be followed in formulating the substance of the peace agreement. The framework itself in its present form, notwithstanding widespread jubilation, already poses some procedural challenges and hints at the constitutional issues that may arise. A major procedural part of the framework itself will be the formation of the powerful Transition Commission. The composition of its membership can be a delicate issue. Will the Moro National Liberation Front have a role? The Transition Commission will make the preliminary draft of the substantive changes that the agreement proposes to achieve. What are the substantive issues already reflected even from the current framework which the government may have to defend or clarify? First, the framework says that the form of government shall be ministerial. The parties still have to clarify what this means. The framework says that the relation between the Bangsamoro and the central government shall be asymmetric. What does this mean? Is it different from the associative relation rejected by the Court in 2008 as having no place in the Constitution? The framework recognizes the Bangsamoro identity of those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood together with their spouses and descendants. But the freedom of choice of other indigenous peoples shall be respected. Will those who are not indigenous Moros be happy to be identified as Moros? The framework says that the provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties. Does this mean that Congress, in the formulation of the Basic Law, may not reject any agreement of the parties? And what about the Constitution?

The framework says that the Bangsamoro shall have a just and equitable sha re in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upo n by the Parties. Does this mean the curtailment of the power of Congress, contained in the Constitution, to determine the local government share in the proceeds of natural resources in the area? The determination of the components of the Bangsamoro territory will surely be a contentious issue as it was in 2008. These are some of the potential issues already reflected in the framework today. Will this administration succeed before Mr. Aquino steps down at the end of his presidency?

The RP-MILF framework agreement (Part 2) There was big hoopla at the signing of the Framework Agreement on the Bangsamoro between the Philippine government and the Moro Islamic Liberation Front last week. I found that somewhat amusing because one of the clearest characteristics of the agreement is its lack of clarity. It leaves so much unsaid. As the agreement itself says, The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year. So what did the parties really agree about beyond agreeing to continue working? Moreover, what will be achieved by the end of the yearthat is, a little over two months from nowwill not yet be the peace agreement itself but the guidelines to be followed in formulating the substantive provisions of the peace agreement. The full peace agreement will be the Basic Law formulated by Congress and approved in a plebiscite by the constituent units. Year 2016 seems to be the target. Let me now comment on some possible constitutional issues which need elaboration. The ministerial concept has been criticized. I have no problem with it even if I dont know what is exactly meant by it. I guess it can mean either a Cabinet form or a parl iamentary form of government. Whatever it is, it 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. We might recall that Metro Manila had a commission form of government which was neither prescribed nor prohibited by the 1973 Constitution. More crucial is the envisioned relationship between the central government and the Bangsamoro government. It is called asymmetric. Again I do not know what this is meant to hide. Could it be that the framework is just avoiding the term associative found in the Memorandum of Agreement on Ancestral Domain (MOA-AD) of 2008? If this is the case, we have to recall what the Supreme Court said of that relationship. The Court rejected it as having no place in the Constitution. Of course, the 2008 Court was referring to specific provisions of the MOA-AD containing the associative principle. We do not yet know what the current Court might say since we have not yet been told what the framework means by asymmetric relationship. Central to the formulation of the Basic Law will be the role of Congress. It is Congress that will enact the Organic Act for the autonomous region. The shape of Congress that will enact the Basic Law will be affected by the coming national elections. The senatorial and congressional campaigns, especially in regions that will be affected by the desired Bangsamoro Basic Law, will have to take into consideration the sentiment of voters in those areas. In framing the Bangsamoro Basic Law, the main guide should be the Constitution. This is not clearly reflected in the framework. The framework says that the provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties. Simi larly, it says that the Bangsamoro shall have a just and equitable share in the revenue s generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties. This seems to mean that Congress, in the formulation of the Basic Law, must accept any agreement of the parties. This seems to make Congress a rubber stamp for whatever the agreement wants. Again, this needs clarification. The framework recognizes as possessing the Bangsamoro identity those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood together with their spouses and descendants, but adding that the freedom of choice of other indigenous peoples shall be respected. This is the same as the provision in the MOA -AD.

Will this satisfy those who are not indigenous Moros? Both the MOA-AD and the framework lump together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, including Palawan. More acceptable is the provision of the current Organic Act which distinguishes the Bangsamoro people (that is, those who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions) and other tribal peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community. Another contentious issue will be determination of the areas that will be part of the Bangsamoro territory. What the framework proposes is larger than the Autonomous Region in Muslim Mindanao territory today. This will require a plebiscite as prescribed by the Constitution. Next there is the powerful Transition Commission. Will the Moro National Liberation Front be given a role? These are some of the potential issues already reflected in the current shape of the framework agreement. Other issues will arise from the final form of the framework when it is completed at the end of next December. Everyone will be waiting for that final framework agreement. It can either increase or diminish the volume of the current chorus of jubilation.

A Framework with missing Agreements By Raul C. Pangalangan One does not rise to a standing ovation for a trailer even before the movie is made, lest unrealistic expectations spoil the actual viewing. Similarly, the Framework Agreement with the Moro Islamic Liberation Front is a milestone for sure, but unrestrained hype may well derail peace in the end. The Framework says little but the public has been conditioned to believe it says everything. What will happen when our people check under the hood and discover whats not there? Most importantly, the key Framework provisions each refer to an Annex that does not exist. This is not about missing footno tes but goes to the heart of a peace pact: What will be in the Annex on Power Sharing, Annex on Wealth Sharing, and Annex on Transitional Arrangements? How exactly will power and wealth be shared in the future? There can be no just and lasting peace unless we agree on these. When the Framework was first published online, I thought the missing annexes would soon follow. After all, the Supreme Court struck down the Memorandum of Agreement on Ancestral Domain in 2008 because, among other grounds, it lacked transparency. But the Framework signing has come and gone, and it is clear that those annexes still do not exist. Even worse, each annex is declared to form part of this Framework Agreement. How can we consent in advance to terms that do not exist and retroactively write them into the Framework? This was the Supreme Courts point exactly in 2008. Analyzing what is in the Framework itself, I am concerned that the Bangsamoros relationship to our constitutional bodies rem ains unclear. For example, the Framework treats constitutional accou ntability for funds as a triviality. The government peacemakers website highlights that the porous auditing of Autonomous Region in Muslim Mindanao funds has been a real pain. Of the 850 million pesos allocated for infrastructure projects in ARMMs 2010 budget, not one construction budget (sic) was completed. It adds that 90 percent of ARMMs funding was allocated to Personnel Services and until now, that money has not been accounte d for, suggesting an orgy of ghost employees. To say that the ARMM ha s little to show for these funds is to be too kind. Then why does the Framework now virtually exempt the Bangsamoro from the Commission on Audits reach? It says that the Bangsamoro may create its own auditing body *for+ funds generated from external sources. Were talking about a lot of funds here, given US, EU and Muslim countries exuberance. The Agreement then mentions the COAs power but limited only to funds he ld by any government instrumentality, including GOCCs. This language is so slippery. It purports to affirm COA jurisdiction but it furtively lays the basis for the Bangsamoro government to access foreign funds without independent audit, while limiting the COA to locally generated funds. Worse, the term instrumentality is actually limited by the Administrative Code merely to regulatory agencies, chartered institutions *like state universities and colleges+ and GOCCs, and excludes all the Cabinet departments and their bureaucracies. In sum, the Bangsamoro gets a free pass to the expected bonanza from gung-ho foreign sponsors and, if the negotiators have their way, without even having to amend the Philippine Constitution.

Yet the Constitution is explicit that the COA shall have the power to examine, audit, and settle all accounts *of+ t he Government, or any of its subdivisions, agencies, or instrumentalities and *n+o law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever. Surely that includes the new autonomous political entity called t he Bangsamoro and its inhouse auditing body. Even more sinister, notice a strange clause that occurs not once but twice in the Framework: The Bangsamoro rulers may block grants and subsidies from the Central Government. Say that again, please? Spurn manna from heaven? Why not, if the manna from abroad is more bountiful, and along the way, the better to strengthen the Bangsamoro governments hand versus its component units, and weaken Manilas hold. The COA exemption and the Bangsamoro veto over Manilas funding are not the only mysteries in the Framework. Sen. Miriam Defensor-Santiago insists that the Framework needs constitutional amendments because of the Bangsamoro shift to a ministerial and federal system of government. Sen. Panfilo Lacson asks whether the Bangsamoro will have a separate police force. Former Solicitor General Estelito Mendoza asks whether the Framework is even subject to the Constitution, which merits only one passing mention. Last week, I pointed out the mischief in the term asymmetric to describe the relation between the Central and Bangsamoro governments. If theyre not equal, then whos above and whos below? The COA exemption demonstrates one ominous asymmetry: Foreign funds are COA-exempt, while local funds held by lowly instrumentalities are not. Dont get me wrong. We all want peace, and we must do right by our Muslim countrymen. But an overplayed agreement referring t o nonexistent annexes is a shaky foundation for peace. Carving out a regional auditing body defies the historical record and is akin to setting the fox to guard the chicken coop. After Edsa 1, the Filipino people thought hard and wrote down all their promises to future generations in our Constitution. In 2012, this covenant cannot be unraveled by unwritten promises. Let us instead be sure that all our vows for peace to Muslim and Christian alike are made crystal-clear before we place them alongside our Constitution.

The Framework Agreement is unconstitutional

By Atty. Harry Roque Jr. I have devoted a good part of my professional life to the dissemination of the law applicable in armed conflicts international humanitarian lawbecause of a firm conviction that humanity should be insulated from all the adverse consequences of warfare. This conviction though is borne of the reality that all should respect the law while we have not attained the ideal, which is the elimination of all forms of armed conflicts. I join hence the rest of the nation in the hope that the recently signed Framework Agreement on Bangsamoro Political Region will pave the way for lasting peace in resource-rich Mindanao. This notwithstanding, peace, according to the Supreme Court, must take place within the confines of our Constitution. It is in this framework that I have read the agreement and now express grave reservations that it may not pass the test of judicial scrutiny. To begin with, the fact that it contemplates the establishment of the Bangsamoro Political Region in lieu of the Autonomous Region in Muslim Mindanao already makes it constitutionally infirm. This is because the ARMM, despite all its deficiencies, was the entity mandated by the sovereign people to usher in the regime of autonomy in Mindanao. Much as we would prefer the much-heralded Bangsamoro, the fact is unless the Constitution is amended, the Bangsamoro would not have any constitutional anchor to justify its existence. This is primarily why the framework appears to be constitutionally doomed. In Province of North Cotobato vs. GRP Peace Panel, the Supreme Court admonished the Arroyo administration that all negotiations for peace must be within the framework of the Constitution. No one, according to the Court, has the power to commit to amend the Constitution to make it conform to any agreement: The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution.

There too is the thorny issue of the territory of the Bangsamoro. True, the area constituting the territory of the Bangsamoro appears to be nominally smaller than what was contained in the MOA-AD. But this need not be the case because after the recital of what constitutes the territory of the Bangsamoro, there is a provision that it is without prejudice to other contiguous areas from being included where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion. Residents of Zamboanga City and Palawan: beware. Your areas may still be included. Then there is the issue of the Bangsamoro having maritime and other territories as if it were an independent state. In the MOA-AD, it was stipulated that the Bangsamoro Juridical Entity would have its own internal waters and territorial seas that according to the UNCLOS should only pertain to states. This provision appears to be adopted anew in the Framework Agreement except that it would be spelled out in the allegedly non-existing Annex on Wealth and Power Sharing. The Framework Agreement also contains a section on basic rights, which appears to be the counterpart of the Bill of Rights. Most noteworthy is the fact the rights of women in Bangsamoro is now limited to political participation. Is this intended to make womens rights in Mindanao consistent with those enjoyed by their counterparts in Saudi Arabia, Yemen, Iran, Iraq? And whatever happened to the prohibition on torture and other cruel, inhumane and degrading forms of punishment? Again, is the intention to embrace the practices of Islamic countries that provide for beheadings, chopping of body parts, and other similar forms of treatment? The Agreement also states that the Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. Unless there is a distinct Islamic form of accounti ng, the perception is that this provision is only intended to legitimize the systemic plunder by the local Muslim elite of the scale and scope that has happened and is still happening in the ARMM. In other words, this is still dole in exchange for peace. Further, there is the issue of the relationship between the Republic and the Bangsamoro described in the agreement as asymmetrical. To the credit of the negotiators, this is a departure from the relationship of association, which was struc k down by the Supreme Court as violating the sovereignty of the Republic. But what they fail to understand is that any other relationship between the national government and the Bangsamoro that deviates from the unitary form of government is equally constitutionally repugnant. The Bangsamoro, under our form of government, should only be entitled to exercise powers that are endowed to it by Congress. Full stop. Any other form of relationship will surely suffer the same fate as the MOA-AD. The final point to be made is courtesy of Mssrs. Nur Misuari and Umbra Kato that is, the shootings in Mindanao will still continue. And while the agreement has assured some of its negotiators lucrative appointive posts and the Muslim elite unprecedented pork in Mindanao, the reality is that IHL, the lex specialis where there is an armed conflict, would still be the applicable law in Mindanao. Professors Note Stumbling Blocks To Framework Agreement By BEN R. ROSARIO October 18, 2012, 6:36pm niversity of the Philippines professors yesterday said the Framework Agreement on the Bangsamoro between the government and the Moro Islamic Liberation Front face a number of stumbling blocks including constitutional issues. Speaking to the media during the Usaping Balita News Forum, lawyer Harry Roque, professor of the UP College of Law, said there is no way the creation of Bangsamoro will not require amendments to the Constitution. Together with Fidel Fababier, another UP professor, Roque underlined the many constitutional and legal issues that could provide the stumbling blocks for the realization of the peace pact. Roque said that under the Constitution, it is the Autonomous Region for Muslim Mindanao and the Cordillera Autonomous Region, not the Bangsamoro region, that has been granted autonomy. He reminded signatories of the Framework Agreement that the relationship between the central government and Bangsamoro cannot be asymmetric because Philippines is a unitary state not a federal government, thus the relationship is hierarchal. Roque said possible legal confrontations may erupt on issues judicial powers, territorial expansion, Islamic accounting and women rights.

He aired fears that if the Bangsamoro will exercise authority over the Shariah justice system, the Supreme Court will be pus hed out of the picture although the Constitution vests sole judicial power on the High Court. It is not true that the Constitution will not be amended, we have to amend it, Roque said. He explained that in amending the charter, the question of Bangsamoro will be submitted to Filipinos, not just those covered by its territory, thus, this would guarantee a truly democratic process. Questions on the auditing and procedures of accountability may also be raised as a legal question since the Bangsamoro, under the agreement, may create its own auditing body. The prohibition of torture and death penalty, reading of Miranda rights and womens rights should be imposed whether or not t hose to be affected are Muslims or Christians. Plunder is plunder whether one is a Christian or a Muslim, explained Roque. Under equal protection clause of the Constitution, dapat similar ang treatment, bakit mababago para lamang sa Bangsamoro? According to Roque, the provisions for expansion of territory and giving the Bangsamoro its exclusive right over territorial waters are likewise controversies that should be studied carefully in order not to spoil what government has already accomplished towards achieving peace.

SC Declares GRP-MILF MOA-AD Unconstitutional The Government and the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The GRPMILF agreement is the result of a formal peace talks between the parties in Tripoli, Libya in 2001. The pertinent provisions in the MOA-AD provides for the establishment of an associative relationship between the Bangsamoro Juridical Entity (BJE) and the Central Government. It speaks of the relationship between the BJE and the Philippine government as associative, thus implying an international relationship and therefore suggesting an autonomous state. Furthermore, under the MOA-AD, the GRP Peace Panel guarantees that necessary amendments to the Constitution and the laws will eventually be put in place. Is the said MOA-AD constitutional? ANSWER: No. The SC ruled that the MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence, it said. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. Justice Santiago said, among others, that the MOA-AD contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines territorial sovereignty. She further said that had the MOA-AD been signed by parties, would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions, and armed forcesThe sovereignty

and territorial integrity of the Philippines would have been compromised. (GR No. 183591, Province of North Cotabato v. Republic, October 14, 2008) Notes: In this case, The Court explained that the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA 7160, and RA 8371. EO No. 3 is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. RA 7160 (the Local Government Code of 1991) requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. RA 8371 (the Indigenous Peoples Rights Act of 1997) provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent (FPIC) of the Indigenous Cultural Communities/Indigenous Peoples. (GR No. 183591, Province of North Cotabato v. Republic, October 14, 2008) PROVINCE OF NORTH COTABATO v GRP The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. 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 [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law." Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,[181] also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly

addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances. The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso. Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit: 40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had `conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests` (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied) Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States. In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a

formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law. The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.[184] Respondents, however, may not preempt it in that decision. SUMMARY The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic

Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional , for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.