The Bangsamoro Framework Agreement | Social Institutions | Society

A Paper Presentation at the UCCP Cosmopolitan Church Forum, Taft Avenue, Manila, November 19, 2012.

A CRITIQUE OF THE FRAMEWORK AGREEMENT ON BANGSAMORO
By Perfecto R. Yasay, Jr.
Former SEC Chairman

INTRODUCTION The Muslim rebellion in Mindanao has cost the nation tremendous losses in terms of human lives, resources and properties not to mention missed opportunities for growth and the political instability it wrought. For this reason its causes must be swiftly and deftly identified so that enduring solutions can be employed and healing of the wounds of strife and building from the ruins of conflict can begin in earnest. The purpose of negotiation is not merely to end hostilities but to achieve the objective of peace, which is to unite our people and empower them to work together in attaining their hopes and dreams. However, the road to peace is often laden with political landmines, stumbling blocks and barriers that include hidden agendas, conflict of interests, incompetence, mistrust, insincerity, deceit, ignorance, and gullibility - that can impede and undermine our efforts. They must first be eliminated. Furthermore, a settlement pursued beyond the bounds of the Constitution and laws will be irresponsible and futile. It is crucial that the course of action we take and the stipulations that we make must submit to the rule of law. BACKGROUND OF THE PEACE PROCESS The 1996 Final Peace Agreement between the Philippine Government (GRP) and the Moro National Liberation Front (MNLF) was intended as a sustainable accord
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that could have completely ended the armed struggle not only because of the dedication and perseverance of the respective representatives of the parties in reaching an honorable solution that served the overriding ends of unity and solidarity for all Filipinos, but also because it resolutely affirmed and upheld the sovereignty and territorial integrity of the Republic of the Philippines under the Fundamental Law. The Agreement aimed to achieve the purposes and goals of regional autonomy constitutionally created and authorized, initially through the provisional authority of the Southern Philippines Council for Peace and Development, or SPCPD and thereafter by the permanent government envisioned for the Autonomous Region in Muslim Mindanao [ARMM]. The Agreement called for amendments to Republic Act 6734 otherwise known as the Organic Act of ARMM for the establishment and organization of a governing structure, and on March 31, 2001, Republic Act 9054 supplanted the original implementing law. RA 9054 conferred upon the Regional Legislative Assembly powers for application in the area of autonomy except the following matters: foreign affairs; national defense and security; postal service; coinage and fiscal and monetary policies; administration of justice; quarantine; customs and tariff; citizenship; naturalization, immigration and deportation; general auditing, civil service and elections; foreign trade; maritime, land and air transportation and communications outside the autonomous region; and patents, trademarks, trade names and copyrights. These functions were also acknowledged and fully listed in the 1996 Final Peace Agreement as reserved for National Government. It is unfortunate that the full implementation of RA 9054 has been deferred, if not derailed under the guise of an overriding national necessity. In fact, the postponement of the ARMM elections last year was decried in private gatherings and coffee shop small talks as a ploy of the Administration and its political allies to recapture influence and consolidate control over the electoral votes that would
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come from Muslim Mindanao to assure victory of select candidates in the senatorial and presidential elections of 2013 and 2016, respectively. This delay enabled P-Noy to advantageously replace officials appointed by former President Gloria Macapagal-Arroyo and handpick his trusted people as provisional administrators of ARMM to set the stage for negotiations with MILF to proceed without hindrance and to pave the way for the eventual substitution of RA 9054 in accordance with the terms of a new peace agreement. With the recent disclosure of the draft Framework Agreement on Bangsamoro, the details of which are being finalized in three (3) integral Annexes, it is now clear that the effectivity of RA 9054 for the full establishment of the Autonomous Region in Muslim Mindanao will soon be terminated. And yet RA 9054 is still the basic law for the implementation of the constitutional mandate for ARMM, whether or not the peace agreement with MNLF was reached or terminated. Even as this 1996 accord has been touted by the President as a failed agreement, there is no compelling justification for suspending the provisions of the Constitution pertaining to regional autonomy and strictly complying with the implementing law. REASONS FOR THE FAILURE OF THE 1996 PEACE AGREEMENT Before proceeding to elaborate on the significant features of the Framework Agreement on the Bangsamoro allow me to summarize my own assessment of the principal causes of the failure of the 1996 Final Peace Agreement, as follows:
1.

The fractious leadership within the Muslim community. Thus, in 1977 Hashim Salamat and his forces bolted from the MNLF and formally organized the Moro Islamic Liberation Front 1984. The MILF uncompromisingly demanded independence for all Muslim regions and opposed the MNLF’s moderate and conciliatory approach in accepting Government’s offer of autonomy consistent with the Constitution in 1987. The MILF also refused to accept the GRP-MNLF peace accord and took an

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armed offensive precisely to signal their rejection of the status quo for Muslim regional autonomy.
2.

The widespread corruption and incompetence that rocked the MNLF leadership in the administration and governance of ARMM; The inappropriate inclusion of Malaysia as head of the international monitoring team overseeing the ceasefire agreement between GRP and MILF despite its ulterior motive. Malaysia openly supports MILF for keeping mum about the Philippine claim to Sabah, which is openly championed by the MNLF. In return, Malaysia has been aggressively pressuring the Philippines to negotiate a peace agreement with MILF for the creation of Bangsamoro; The abandonment of the 1996 Final Peace Agreement and the commencement of negotiations with MILF; The ascendancy of partisan and narrow political considerations to either retain or regain the upper-hand of influence over Muslim Mindanao through the collaborative efforts of corrupt national officials, politicians, military and police elements and the controlling clan elders, local dynasties and warlords in the provinces, cities and municipalities encompassed by ARMM. The tragic consequences of this shameful arrangement include the mass execution of entire families and political opponents in Maguindanao and the extensive fraud, spurious votes and fictitious returns that regularly enabled numerous candidates to cheat their way to important elective posts.

3.

4.

5.

Indeed, the intricate power play for dominance and control of Muslim Mindanao by and between the MNLF, MILF, local political dynasties, warlords, corrupt government officials and politicians and the convergence of all the other foregoing factors averted both GRP and MNLF to make good on their deliverables under the Final Peace Agreement and inevitably leading to its collapse.

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The Framework Agreement on the Bangsamoro is obviously a take-off from the aborted Memorandum of Agreement on Ancestral Domain [MOA-AD] brokered by Malaysia in 2008, but struck down by the Supreme Court as unconstitutional. Substantively, the Framework Agreement is not any different from its predecessor, and perhaps, the reason that there is no petition for review questioning its legality is the government negotiators assurance that this document is still a draft – not executory, which by its terms cannot be unilaterally enforced until work on further details in the Annexes would be completed by the end of the year. Without impugning his integrity, competence and qualifications, it would be necessary and significant for all to know that the chief negotiator of the government panel, being the favorite choice of the President, leads the short list of candidates to the Supreme Court that may eventually decide the legality of any concluding instrument supplementing the details of Bangsamoro in the context of the Framework Agreement. GENERAL OBJECTIONABLE POINTS The following points reflect the over-all disconcerting features of the Draft Framework Agreement:
1.

It conveniently fails to uphold and defend the supremacy of the Constitution, and overlooks inviolate provisions on sovereignty and territorial integrity. The model of autonomy contemplated for the Bangsamoro contradicts the concept of and exceeds the legal parameters for autonomous regions established by the Constitution and its implementing law. Among other things, it requires entrenching the electoral system of Bangsamoro with distinct attributes not appropriate for our presidential system but more resembling the ministerial or parliamentary mold of neighboring federated States like Malaysia.

2.

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3.

The Framework Agreement seeks the abolition of ARMM and requires the formulation of another Basic Law for Bangsamoro as the new Autonomous Political Entity that will govern all the territories it encompasses. It is not clear whether this will be provisionally implemented prior to any enabling constitutional amendment. Oddly, it seeks future amendments to the Constitution that will confirm the legality of the Framework Agreement instead of the Framework Agreement conforming to the existing provisions of the Constitution. KEY UNLAWFUL PROVISIONS IN THE FRAMEWORK AGREEMENT

4.

The Joint GPH-MILF Draft Framework Agreement has reduced the 13 reserved powers of the State under RA 9054 to only 6. And yet, what remains are inherent powers of National Government that cannot be relinquished by simple agreement of the Parties without prior constitutional authority. Let me focus on the following key powers that are expressly granted to Bangsamoro: a). The Framework Agreement provides expressly and impliedly that police and internal security will devolve as the sole responsibility of Bangsamoro: expressly, because the Agreement states that all law enforcement functions shall be transferred from the Armed Forces of the Philippines to the Police force of Bangsamoro; and impliedly because the Agreement acknowledges that “defense and external security” is the power of Central Government with the word “national” to qualify “defense”, as appearing in the RA 9054 being omitted. Problematic in this regard is that armed struggle, and other similar forms of organized violence and lawlessness as a method for the redress of grievances is unlawful and directly affects national security. In fact, the conflict in Muslim Mindanao, which is an internal security matter, has unquestionably demonstrated this point.

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Notably, the power of the State over National Defense and Security used in RA 9054 is not ceded to the regional autonomous entity. Still, the Framework Agreement cleverly substitutes the phraseology in the implementing law with the words “defense and external security”, thereby limiting Central Government’s duty to just protecting the nation from outside security perils similar to foreign invasion, occupation or attacks, excluding the suppression of internal security threats, like the MILF rebellion or communist insurgency and other similar uprisings. Under the 1996 Final Peace Agreement police and internal security was not granted to ARMM. In fact, former qualified combatants of MNLF who chose to do so were integrated and assimilated into the Armed Forces and the Philippine National Police as part of Phase I of the implementing structure and mechanism of the accord. The National Government continues to wield its supervision and control over the AFP and the PNP under the law as an vital component of national defense and security. b). The Administration of Justice is also a critical function that is not intended by the Constitution and the ARMM Organic Law to be surrendered by the National Government, except minor offenses, commercial transactions, personal property matters and family relations covered under Sharia law and exclusively involving Muslims. Speedy justice and the strict enforcement of laws under a uniform system must be administered in a manner consistent and in accordance with the unvarying and strict standards and requirements of due process and equal protection under the Bill of Rights. This responsibility is reserved by the Fundamental Law to the State and cannot be left as the exclusive jurisdiction of any local government. The Administration of Justice under the 1996 Peace Agreement left untouched the 13 reserved powers under RA 9054. However, in enumerating the powers of the Central Government, the Framework Agreement removed the administration of justice and expressly recognizes the supremacy of Sharia Law that will be made applicable to all Muslims. And yet, it also provides for the establishment of judicial bodies under a Justice System covering all inhabitants of Bangsamoro.
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This means that two different structures and norms of justice will be established that will be applicable to Muslims and non-Muslims. Obviously, this duality of system and standard for the administration of justice cannot work under the fundamental principle in the Bill of Rights that no one shall be denied equal protection under the law. c). Under the Constitution all lands, waters, minerals, energy and other resources, marine and wildlife and forests of the public domain belong to the State. The exploration, development and utilization of all these resources shall be under the full control and supervision of the State. Whether the concept of just and equitable sharing of wealth under the Framework Agreement of all revenues generated from these natural resources allow the Bangsamoro exclusive control and supervision over their exploration, development and utilization is at the very least, ambiguous. However, there are express provisions granting the Bangsamoro the power to develop a comprehensive program for the sustainable development, conservation and utilization of natural resources that would seem to sustain the view that control and supervision over these matters has been ceded from the Central Government. If media reports of the proposed formula on wealth sharing are to be believed, 75% of revenues from the exploration, development and utilization of natural resources will be apportioned to the MILF while the remaining 25% will go to the Central Government. d). The Basic Law creating the new regional political entity that will abolish and replace ARMM and supplant RA 9054 will be formulated by the Bangsamoro people through a Transition Commission to be created by Presidential Order. Upon the passage of this Basic Law by Congress and its ratification by the qualified voters within the autonomous territory, the interim Bangsamoro Transition Authority will start performing its functions. It will be replaced upon the election and assumption of the members of the Bangsamoro

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Legislative Assembly and the organization of the Bangsamoro government in 2016. Since this measure will be formulated by Bangsamoro and thereafter presented as an urgent bill to be certified by the President, it is not clear whether Congress would merely act as a rubber stamp over the proposed Basic Law and not risk violating the Framework Agreement. It appears, whether or not amendments to the Constitution are approved and ratified by the Filipino people mandating the abolition of ARMM, that the Bangsamoro Transition Authority will assume its responsibilities and the ministerial form of government in the Bangsamoro will also be effective in accordance with the time table provided in the Framework Agreement and its Annexes on Power and Wealth Sharing, Transitional Arrangements and Normalization. e). The Framework Agreement ignores the basic premise that under Sharia Law government and religion are so interwoven and inconsistent with the enshrined principle of the separation of the Church and State and the nonestablishment of any religion and the free exercise thereof under the Constitution. By agreeing to the establishment of a System of Justice founded upon supreme Sharia Law to be administered by the Bangsamoro, which is an instrumentality of the State, the prohibition in the Constitution is violated even if the Framework Agreement provides that the religious preference of others will be respected. PREPARING BANGSAMORO FOR SEPARATION If for any reason in the future the peace agreement with MILF should fail the way the MNLF pact collapsed and hostilities should resume even more intensely, it would arguably be much easier for Bangsamoro and its territories to be annexed as one of the Federated States of Malaysia, than for Muslim Mindanao and Sulu and its adjacent islands including Palawan to be restored back fully as part of the domain of the Philippines.
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Under the Framework Agreement it only takes 10% of the population of any contiguous area outside the core of Muslim Mindanao to opt by petition ratified by a simple majority of its inhabitants to be part of Bangsamoro. Conversely, one can only surmise with horror and repulsion the situation when the majority of the constituents of Bangsamoro will decide in a referendum to secede from the Republic of the Philippines. Are we not now facilitating this situation to happen as a consequence of Government’s commitments under the legally untenable provisions of the Framework Agreement? What are the safeguards that this cannot happen? At the onset, paragraph I(4) of the draft document establishes that the relationship of the Central Government with the Bangsamoro Government shall be asymmetric – the antonym for symmetric. In its plain and ordinary usage symmetry suggests similarity, correspondence, equality, harmony and balanced proportion in the correlation of parts of a structure. Because of this synchronization in relationship, the assimilation of differences in race, culture, values and tradition into the system becomes natural and predictable. An asymmetric affiliation, on the other hand, is dysfunctional, divisive, impaired and abnormal, making assimilation extremely difficult if not impossible. Thus, by intending and keeping the relationship of Government and the Bangsamoro asymmetric, we are in fact deliberately carving out a chunk of a territory and political unit of the Republic of the Philippines that will have the capacity and facility of breaking-off when the relationship inevitably fails. But this is precisely the problem with ‘putting the cart in front of the horse’ where the parties carelessly disregard constitutional and other legal and practical obstacles and proceed to pre-empt the will of the people in the ratification of changes in order to validate an otherwise illegal Agreement. As former Department of Interior and Local Government Secretary Rafael I. Alunan III empathically puts it, “We cannot rush to reach an accord that ignores the need to

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fully protect our national foundations and the vital pillars of national security. This will only lead to more violence and troubles in the future.” NEGOTIATING IN GOOD FAITH AND TRANSPARENCY What happens then if the majority of the Filipino people will reject the amendments? Will there be a resumption of hostilities? Would playing up the threat of war should the amendments be disapprove be tantamount to subverting the will of the people? Should this happen could not the MILF claim that the Philippine Government reneged on its commitments under the Framework Agreement, and use this argument as the compelling justification for secession? I believe that negotiating a sustainable or lasting peace in Mindanao requires both sides to lay their cards on the table with utmost sincerity and transparency without prejudice to the paramount national interest and welfare of all Filipinos. On one hand, Government representatives and officials must remain loyal and faithful to the Constitution and laws they have sworn to uphold and defend and be circumspect in making commitments that cannot be delivered otherwise we could find ourselves in a much worse situation than before, like jumping from the frying pan into the fire. The MILF and all of our Muslims brothers and sisters should also understand that sovereign powers of the Republic of the Philippines cannot be compromised and its territorial integrity dismembered. Indeed, our religious differences but common belief in a merciful and beneficent God should enable us to stand proud, united as Filipinos before the rest of the world, earnestly working for the well-being of a seamless nation enriched, strengthened and empowered by the best of its diverse cultural heritage and traditions. Thank you and God bless and save the Philippines.

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