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PEACETALK: The Framework Agreement on the Bangsamoro and (the Question of) Charter Change

“If such a law [the Bangsamoro Basic Law] can be
accommodated within the existing framework of the
Constitution, then that would greatly simplify matters.
But if it will entail amending the Constitution, as it
most likely will, we hope the nation will calmly
consider the possibility and not reject it out of hand.”
—  Randy David, “The long journey to peace”
Philippine Daily Inquirer, 10/11/12, p. A14

The question of charter change has been raised, and rightly so, about the breakthrough 2012 Framework Agreement on the Bangsamoro (FAB) between the Philippine Government (GPH) and the Moro Islamic Liberation Front (MILF).  While some raise this understandably as a question of constitutionality, I prefer to look at it as a question of constitutional amendments.  The question can be, as it has been, posed this way:  Can the new autonomous political entity called the Bangsamoro, which will replace the “failed experiment” Autonomous Region in Muslim Mindanao (ARMM), be established without a constitutional amendment?  This we proceed to address in the spirit of Robert F. Kennedy’s famous quote “there are those who look at things the way they are, and ask why… I dream of things that never were, and ask why not?”

From Framework to Comprehensive Agreement

Before proceeding to address that constitutional amendment question, it must be noted, as many others have, that the FAB signed on 15 October 2012 is not yet the final comprehensive compact or peace agreement that is supposed to be “completed… by the end of the year” (FAB, IX.2).  The FAB makes reference to four-still-to-be-adopted Annexes on Power Sharing (III.1, second par.), Wealth Sharing (IV.6), Transitional Arrangements and Modalities (VII.2), and Normalization (VIII.9)  — each of which “shall form (a) part of this Agreement.”

Another Inquirer columnist, law professor Raul C. Pangalangan, has questioned this by asking “How can we consent in advance to terms that do not exist and retroactively write them into the Framework?”  The point is well taken, considering the oft-repeated saying that “the devil is in the details.”  We might like the framework, but not necessarily like certain details, and there will/should still be many and important details to follow.  Presumably, these details would all fall into place under the framework.  But whether or not they all actually or strictly do, the important thing is that they are all mutually agreed by the parties.  Prof. Pangalangan’s concern may just be overtaken by a certain scenario in the road map and in this way solve itself.

A published GPH (not joint GPH-MILF) primer on “Frequently Asked Questions About the Framework Agreement on the Bangsamoro” (hereinafter “GPH primer”) says that “The Framework document and the Annexes all together will constitute the comprehensive agreement.”  In other words, if that GPH primer is correct on this point (or is concurred in by the MILF), once the FAB is fully completed with those four Annex parts of it, this completed FAB would itself be transformed into the comprehensive agreement.  So, it would not be as much “retroactively writing” the detailed terms into the FAB, as it would be prospectively writing them into the comprehensive agreement. If the latter goes beyond the FAB for the better, then there should be no problem with this, as long as it is mutually agreed.

Framework or interim agreements are not really written in stone.  The famous saying from the Northern Ireland peace process is “Nothing is final until everything is final.”  (The baseball equivalent of this is “It’s not over till it’s over.”)  Frameworks can change over time until a final peace agreement.  In the history of the GRP/GPH-MILF peace negotiations, there have been at least three earlier framework agreements before the present one:  the General Framework of Agreement of Intent of 27 August 1998, the Agreement on the General Framework for the Resumption of Peace Talks dated 24 March 2001, and the long-time then “mother” Tripoli Agreement on Peace of 22 June 2001.

Incidentally, it was the GRP-MILF “Declaration of Continuity for Peace Negotiation (sic)” of 3 June 2010 which first referred to “an agreed framework which shall be negotiated by the Parties.”  This has now come to pass by way of the FAB.  The said “Declaration of Continuity” refers to a comprehensive or final peace agreement as the “Comprehensive Compact.”  For some reason, this latter term is not used in the FAB even as it makes a point about being “consistent with all agreements of the parties,” though this consistency guideline is used in relation to the provisions of the Bangsamoro Basic Law (BBL).

More importantly in terms of substance or content of the envisioned Comprehensive Compact, the said “Declaration of Continuity” provides for “Agreed upon texts and signed instruments on the cessation of hostilities and security arrangements guidelines and development initiatives and rehabilitation guidelines to be subsequently incorporated in a comprehensive text of the compact agreement.”  Presumably (though it seems one can never really be sure in these peace negotiations), this continues (pun intended) to be a term of reference for the comprehensive agreement envisioned in the FAB.

A Fundamental Question re the Framework Agreement

To go back now to the question at hand of charter change arising from the FAB, this question is really, to use the words of the famous Marcos-era Solicitor General Estelito P. Mendoza, “simply fundamental.”  The question is fundamental not only in terms of the fundamental law but also in terms of the substantive content of the new autonomous political entity Bangsamoro and of the road map leading to it.  Atty. Mendoza’s particular fundamental question is:  Whether the FAB is subject to the provisions of the Constitution?  This is as close as it gets to the question of constitutionality.  But as we said early on, this writer would however rather deal with another particular fundamental question: Can the Bangsamoro entity envisioned in the FAB  be established without a constitutional amendment?  Like they say in the answers to some bar examination questions (the exams are ongoing as of this writing), “it depends.”

IT DEPENDS on whether the GPH and the MILF have the same understanding of certain key terms in the FAB.  Among these key terms are:  (1) “the status quo [that] is unacceptable” [FAB, I.1];  (2) the “Autonomous Region in Muslim Mindanao (ARMM)” that is to be replaced [FAB, I.1]; and (3) the “asymmetric” relationship of the Central Government with the Bangsamoro Government [FAB, I.4].  IF the said “unacceptable status quo” refers to the present ARMM governed by R.A. No. 9054, IF this is the ARMM that is to be replaced, and IF the term “asymmetric” can describe or apply to the relationship of the National Government with autonomous regions under the present Constitution (as GPH Panel Chairman Marvic M.V.F. Leonen was reported/quoted to have said), THEN end of discussion:  the envisioned new Bangsamoro entity can be established without a constitutional amendment.  Matters would then be greatly simplified, as Prof. David puts it in the opening quote.

BUT IF the said “unacceptable status quo” refers to the highly-centralized national unitary system of government in so far as it bears or impinges on autonomous regions under the present Constitution, IF the ARMM that is to be replaced is the autonomous region in Muslim Mindanao as framed by Art. X, Secs. 15-21 of the same Constitution, and IF the term “asymmetric” refers to the relationship of the Central Government with the Bangsamoro Government that is to have a special semi-federal status, THEN the envisioned new Bangsamoro entity cannot be established without a constitutional amendment.  The latter is definitely more challenging and difficult, but is ultimately necessary arising from the premises (the said IFs).

It behooves both parties to soon enough clarify to each other, if not yet, and to their concerned publics whether they have the same understanding of those said key terms, among others, and what this understanding is.  Without a common understanding, even on the same key terms, there is in effect no real agreement. Their common understanding on these key terms has bearing on both the ensuing content and process for establishing the new Bangsamoro entity envisioned in the FAB.  In terms of content, their common understanding has decisive bearing on the all-important details in the four Annexes of the FAB, especially the most crucial first Annex on Power Sharing “which includes the principles on intergovernmental relations,” with all these all-important Annex details supposed to be thereafter consolidated in a comprehensive agreement.  The parties’ common understanding on the key terms should also necessarily already guide the parallel work of the Transition Commission (TC) in drafting the BBL (FAB, VII.4.a) and, if necessary, in preparing proposals for a constitutional amendment (FAB, VII.4.b) – even as the two panels continue the negotiations on the Annexes and towards completing a comprehensive agreement.

In terms of process, the road map will be different from that which has been outlined or presented to the public so far IF the common understanding of the parties is that the  envisioned new Bangsamoro entity will entail amending the Constitution, whether sooner or later.  In this case, somewhere down the road there will have to be a constitutional process for a constitutional amendment for “accommodating and entrenching in the constitution the agreements of the Parties” and not just a constitutional process for enacting the BBL.  We shall further dissect the several inter-related constitutional processes later.  The more fundamental question of necessity of constitutional amendments arising from the FAB has first to be argued and resolved.

The Status Quo, the ARMM, and Asymmetric Relationship

It is evident that the GPH, especially Panel Chairman Leonen, has taken a clear position that the envisioned new Bangsamoro entity can be established without a constitutional amendment, although Chairman Leonen would often qualify this with “for now.”  The afore-mentioned GPH primer says that “The terms of the [Framework] Agreement can be made without changing the present Constitution.  Article X [Sections 15-21] of the 1987 Philippine Constitution on the creation of Autonomous Regions shall apply.”   It is not clear whether this statement, which comes from a GPH primer, is concurred in by the MILF so as to constitute a common understanding.  This is precisely among the fundamental points that have to be clarified as to whether there is a common understanding.

The MILF has not categorically echoed the GPH on the point that the Bangsamoro can be established without a constitutional amendment.  If we go by previous authoritative MILF statements in various forms, and most notably by its Draft Comprehensive Compact for an “asymmetrical state-substate relationship,” it was definitely of the view that a constitutional amendment was necessary to accommodate and entrench this.  Has this changed now that the MILF has dropped referring to a “sub-state” in favor of a “new autonomous political entity”?

It can be gleaned that the GPH basic position on the above-said three key terms is that the “status quo” refers to the present ARMM governed by R.A. No. 9054.  It does not refer to the autonomous regions under the present Constitution, nor to the national unitary system of government under this Constitution.  The “ARMM” to be replaced is only the present ARMM governed by R.A. No. 9054.  The new autonomous political entity called Bangsamoro to replace it will still be governed by  Art. X, Secs. 15-21 on autonomous regions under the 1987 Philippine Constitution, only that the term itself “autonomous region” will not be used.  The relationship of the Central Government with the Bangsamoro Government under that existing constitutional framework can still be described as “asymmetric” – compared to the symmetry involving the local governments in the other, merely administrative (not autonomous), regions of the country.

It is of course the MILF’s judgment call, in the final analysis, as avowed and increasingly recognized representative of the Bangsamoro people, whether or not to concur or agree with that GPH basic position.  But as we said elsewhere, without being “holier than thou,” is that kind of new autonomous political entity something that the MILF and its Bangsamoro constituency can live with?  Will such an entity “establish a system of life and governance suitable and acceptable to the Bangsamoro people”?  In short, will it “solve the Bangsamoro problem”?  Will it or can it be qualitatively better than the set-up provided by the 1996 Final Peace Agreement (FPA) with the Moro National Liberation Front (MNLF), which FPA was framed by the same Art. X, Secs. 15-21 on autonomous regions under the 1987 Philippine Constitution? Is it not acquiescence, just like the MNLF’s, to these unilateral constitutional provisions?

On the other hand, is a key aspect of the unacceptable “status quo” not the highly-centralized national unitary system of government that bears or impinges on autonomous regions under the present Constitution?  Is the failed experiment that is the “ARMM” only that governed by R.A. No. 9054?  What about the “ARMM” governed by  Art. X, Secs. 15-21 on autonomous regions under the 1987 Philippine Constitution, which underlies and frames R.A. No. 9054 – are these constitutional provisions not also a failed experiment that should be replaced?   As for “asymmetric,” does the spirit of this term, in the context of solving the Bangsamoro problem, not point to something more qualitative in terms of autonomy or self-rule vis-à-vis the highly-centralized national unitary system of government?   A supposedly autonomous region or political entity that is, however, very much subject to this highly-centralized national unitary system can only defeat the purpose of asymmetry which is to do social justice to the Bangsamoro people’s unique identity, history, culture, way of life and longing for self-rule.

In Bangsamoro history, it has been the highly-centralized national unitary system that provided the structural relationship for what they have called Filipino colonialism over the Bangsamoro homeland.  This pertains to no less than one of the root causes of the Bangsamoro problem.  From the Bangsamoro standpoint, short of independence and full recovery of the lost political sovereignty of their pre-colonial sultanates, there should be a significant degree of a self-determining break from the bondage, or at least a loosening of the shackles, of the highly-centralized national unitary system, even as the national sovereignty and territorial integrity of the Republic of the Philippines is preserved.

A possibly acceptable form of that qualitative break is to accord something like a special semi-federal status to the new autonomous political entity called Bangsamoro, even as the rest of the regions and the country remains unitary. This is the kind of asymmetry that does justice to the Bangsamoro problem as well as to Philippine national interest.  And this will entail amending the Constitution.  We are not necessarily speaking here of accommodating a “sub-state,” we are speaking here of providing a qualitative degree of constitutional breathing space for the Bangsamoro from the suffocating (to them) highly-centralized national unitary system.

Inter-Governmental Relations: Central and Bangsamoro

In further arguing the case for a constitutional amendment based on the FAB, we shall focus on its political aspect, including inter-governmental relations, power sharing and the Basic Law.  This is the key aspect, this is the key Annex, if we are speaking of a negotiated political settlement.  Even “the disposition of internal and territorial waters” are to be dealt with not only in the Annex on Wealth Sharing but also the Annex on Power Sharing (FAB, V.4).  The “intergovernmental fiscal board” under the part on Revenue Generation and Wealth Sharing” is explicitly made “subject to the principles of intergovernmental relations” (FAB, IV.7) which is to be included in the Annex on Power Sharing that “shall guide the drafting of the basic law” (FAB, III.1, second par.).  A discussion of certain key aspects of the key political aspect of the FAB would suffice for now to make our case for a constitutional amendment, without even discussing yet the need for this arising from the other aspects like economy, patrimony, natural resources and wealth sharing as well as policing and internal security.

Let’s take up first the aspect of inter-governmental relations.  The issue of the “asymmetric” relationship of the Central Government with the Bangsamoro Government is necessarily a part of those relations.  As already discussed, depending on the parties’ common or mutually agreed understanding of “asymmetric,” it may or may not entail amending the Constitution.  Just an additional note: the FAB uses the term “Central Government,” while the present constitutional provisions on autonomous regions use the term “National Government.”  This may not just be a difference in semantics but may rather indicate a semi-federal or unitary relationship, respectively. Incidentally, “Central Government” rather than “National Government” was also the term used in the aborted 2008 GRP-MILF Memorandum of Agreement on Ancestral Domain (MOA-AD) and some anti-MOA-AD commentators then attacked this particular choice of terms, among others, as “unconstitutional” or contrary to the unitary system of government under the Constitution.

While we are at it, the particular inter-governmental relationship provided for in that MOA-AD was an “associative” relationship between the Central Government and the Bangsamoro Juridical Entity (BJE) “characterized by shared authority and responsibility.”   Still another Inquirer columnist, constitutionalist Fr. Joaquin G. Bernas, Jr., has asked, is “asymmetric” different from the “associative” relation rejected by the Supreme Court in its 2008 Decision on the MOA-AD “as having no place in the Constitution”?   A close reading of that Decision in the case of  Province of North Cotabato vs. GRP Peace Panel, 568 SCRA 402 (2008) will, however, show that the said “associative” relationship was not necessarily precluded because “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 [way] it wants…”    The only caveat or guideline for government peace negotiators is not to commit or guarantee constitutional change in usurpation of constituent powers, and to conduct the necessary public consultations and information dissemination on proposed agreements.

Following the GPH primer position that “Article X [Sections 15-21] of the 1987 Philippine Constitution on the creation of Autonomous Regions shall apply” to the envisioned new Bangsamoro entity, there is already definitive Supreme Court jurisprudence, particularly in Kida vs. Senate, G.R. No. 196271, October 18, 2011, on the autonomous region’s relationship to the National Government.  In the very rationale for the Kida Decision upholding the constitutionality of R.A. 10153, the sense is one of almost automatic or blanket subordination of regional autonomy to national policies and concerns:  “In other words, the autonomy granted to ARMM cannot be invoked to defeat national policies and concerns.  Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it;  the regional autonomy granted to the ARMM cannot be used to exempt the region having to act in accordance with national policy mandated by no less than the Constitution.”

Furthermore, the Kida Decision states:  “In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio [an empire within an empire] in the relationship between the national and the regional governments.”  It goes on to state that “while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence.  The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination.”

Speaking of the Constitution, the Kida Decision specifically points out that:  “The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions.  The terms of these sections leave no doubt on what the Constitution intends – the idea of self-rule or self-government, in particular, the power to legislate on a wide array of social, economic and administrative matters.  But equally clear under these provisions are the permeating principles of national sovereignty and  the territorial integrity of the Republic…”  In other words, the foregoing guidance would apply to the new Bangsamoro entity (even if no longer called “ARMM”),  if established within the existing constitutional framework.

Inter-Governmental Relations:  Bangsamoro and Local

The afore-said Kida Decision also ruled that “autonomous regions are considered one of the forms of local governments” and that “the ARMM is a local government unit just like provinces, cities, municipalities, and barangays.”  This implies that the terms of reference for the governance of the new Bangsamoro entity would be not just the BBL (per FAB, II.1) but also the constitutional provisions on autonomous regions and on local government, their supporting jurisprudence and even the Local Government Code.  These are all part of the existing constitutional framework that would bear on any new autonomous political entity established within that framework, the preferred path of the GPH.   Again, the question is:  is this kind of inter-governmental relationship something that the MILF and its Bangsamoro constituency accept and can live with?  If the answer to this is “No,” then constitutional change is indicated.

Aside from the inter-governmental relationship of the Central Government with the Bangsamoro Government, there is also the matter of the inter-governmental relationship of the the Bangsamoro Government with the “constituent [local government] units” (LGUs) within its territory (FAB, I.3, first par.).  The FAB then provides that “The authority to regulate on its own responsibility the affairs of the constituent units is guaranteed within the limit of the Bangsamoro Basic Law.  The privileges already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the Bangsamoro local government code.”  (I.3, second par.)  Subject to further legal study, how would the Bangsamoro Government’s  “authority to regulate on its own responsibility the affairs of the constituent units,” which is “guaranteed within the limit of the BBL,” relate to the constitutional mandate of the President of “general supervision over local governments”?

Is “regulation” the same as or different from “general supervision”?  If it is the same, then no problem, the President can even delegate such general supervision/regulation to the Bangsamoro Government.  It will be recalled that former President Arroyo had issued Administrative Order (A.O.) No. 273-A in December 2009 delegating general supervision over the ARMM to the Department of Interior and Local Government (DILG), in the aftermath of the Maguindanao Massacre.  But if “regulation” is of a qualitatively higher authority than “general supervision,” then perhaps constitutional change is again indicated.  Still another Inquirer columnist, former Chief Justice Artemio V. Panganiban, has referred to the Bangsamoro Government’s  “authority to regulate on its own responsibility the affairs of the constituent units” as “a new layer of governance.”  Will this “new layer of governance” diminish the privileges already enjoyed by LGUs  not only under existing laws but also existing constitutional jurisprudence and practice vis-à-vis the State policy that “ensure[s] the autonomy of local governments?  Can the Bangsamoro local government code alter, modify or reform existing constitutional jurisprudence and practice on this?

Power Sharing:  Of Lists and Competences

Much attention has been given by the current GPH-MILF peace negotiations to the matter of power sharing.  And rightly so.  Some would consider this the core of a negotiated political settlement, power being the essence of politics.  The listing and de-listing of various governmental powers so as to allocate those which are reserved, exclusive, concurrent, shared and residual to the Central/National Government and to the sub-national governments is a familiar enough constitutional discourse in designing or framing what is called the “charter of government.”   The FAB attempts to do no less, albeit preliminarily listing only the Central Government’s presumably reserved or exclusive six power areas (III.2, first par.), and leaving the rest to the Annex on Power Sharing.  This perhaps best illustrates how crucial the Annexes of important details will be, and perhaps that the hardest negotiations are just ahead of us, notwithstanding the FAB breakthrough.

The FAB states that “This list [of Central Government powers] is without prejudice to additional powers that may be agreed by the Parties.” (III.2, second par.)  The thing is there are constitutional provisions and jurisprudence that bear on this matter.  The afore-said Kida Decision clarified the reserved powers of the National Government vis-à-vis the enumerated powers of the autonomous regions under Sec. 20, Art. X of the 1987 Constitution.  The reinstatement of the earlier removed Sec. 17, Art. X [“All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.”] was made by the framers in order to “make it clear, once and for all, that these are the limits of the powers of the autonomous government.  Those not enumerated are actually to be exercised by the national government.

Only enumerated  under Sec. 20, Art. X are legislative powers of autonomous regions over:  “(1) Administrative organization;  (2) Creation of sources of revenues;  (3) Ancestral domain and natural resources; (4)  Personal, family, and property relations;  (5) Regional urban and rural planning development;  (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the region.”

The obvious question is, can the negotiating parties agree on the Central Government’s reserved powers in a way that diminishes the Kida pronouncement that “Those not enumerated [under Sec. 20, Art. X of the 1987 Constitution] are actually to be exercised by the national government.”?   If the answer to this is “No,” as is likely in the case of the GPH, then constitutional change is again indicated.

The enumerated legislative power of autonomous regions under Sec. 20, Art. X over “(9) Such other matters as may be authorized by law for the promotion of the general welfare of the region” has potential for more expansive legislative powers of autonomous regions – but is of course also expressly “subject to the provisions of this Constitution and national laws” by the same Sec. 20.  Regional laws are subject not only to the Constitution but also to national laws, in a practically blanket manner, precisely as a function or feature of the unitary system of government.

One particular area of governmental powers relevant to the whole question of constitutional amendments that we are discussing is judicial power, also relevant to inter-governmental relations.  This deserves a fuller discussion but we shall for now just note at least three likely areas of contention involving the FAB’s provisions on Shari’ah (III.3).  First is the expansion of the jurisdiction of Shari’ah courts over cases, given Sec. 18, Art. X of the Constitution mandating that “”The organic acts shall provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.”  Second is the Bangsamoro “competence over the Shari’ah justice system,” given the constitutional mandate that “The Supreme Court shall have administrative supervision over all courts and the personnel thereof” and its traditional supremacy in the judicial review of final judgments and orders of lower courts. Third is the “supremacy of Shari’ah… only to Muslims,” given the traditional supremacy of the Constitution in the Philippines.   Do not mistake me, to be clear, these points are not raised, or to be misinterpreted, as questions of constitutionality.  The FAB’s provisions on Shari’ah may in fact indicate the right thing to do for Bangsamoro self-governance but they would appear to entail amending the Constitution.

Basic Law and the Constitution

The FAB provides that “The Bangsamoro shall be governed by a Basic Law.” (II.1)  Those who worry about “the lack of any mention of the Constitution” need not worry too much because the draft Bangsamoro Basic Law (BBL) is supposed to be “certified as an urgent bill by the President” (FAB, VII.7).  It would thus be endorsed to Congress for enactment as a law, more precisely a “Basic Law.” As an act of Congress, the law will perforce be governed by the Constitution.  Under this scheme evidently imagined by the GPH, the Basic Law would be the equivalent of the organic act for an autonomous region, with the Transition Commission (TC) as the equivalent of the regional consultative commission (RCC), under Sec. 18, Art. X of the Constitution.

The BBL “shall be formulated by the Bangsamoro people and ratified by the qualified voters within its territory” (FAB, II.4) but its actual enactment as a law shall be by Congress.  The appointive TC would appear to stand as the de facto representative of the Bangsamoro people in formulating the BBL, although 7 of its 15 members would be selected by the GPH, with 8, including the Chairman, to be selected by the MILF (FAB, VII.5).  It is the Congressional action that will the tricky part, with no assurance that the draft BBL submitted by the TC would be faithfully adopted by Congress, given its plenary powers as the sovereign national legislature.  The experiences with the several RCCs for Muslim Mindanao and for the Cordilleras, as well as with the implementation of the 1996 FPA with the MNLF, do not inspire too much confidence along this line. Would the political will of a trusted and popular President be enough to ensure the right result?  Or would the urgent bill be at the mercy of political dynamics?

This may (or may not) be water under the bridge as far as the BBL being formulated by the Bangsamoro is concerned but, in the MILF Draft Comprehensive Compact, the proposal was for a “Constituent Assembly of the Bangsamoro People” to adopt or enact the BBL.  This would actually be the ideal legislative process, enactment by a Bangsamoro constituent assembly of its own organic charter as a signal act of self-determination.  But this, if still pursued, would obviously entail amending the Constitution.

The above-quoted FAB provision that “The Bangsamoro shall be governed by a Basic Law” is an understatement, if it will be established without a constitutional amendment.  We already noted several times the GPH primer position that “Article X [Sections 15-21] of the 1987 Philippine Constitution on the creation of Autonomous Regions shall apply” to the envisioned new Bangsamoro entity.  The afore-cited Kida Decision more precisely indicated what would be the governing (the Bangsamoro) constitutional framework to be “the Constitution and its established supporting jurisprudence” (bold-face type supplied) which is not limited to the jurisprudence on autonomous regions and on local governments, but includes the whole caboodle of constitutional jurisprudence.

In other words, whatever agreements on “power-sharing and wealth-sharing between the Central Government and the Bangsamoro Government, if these are agreed within the existing constitutional framework, then such power-sharing and wealth-sharing would still be subject to the Constitution, its “permeating principles,” and “its established supporting jurisprudence.” Thus, any listing of “exclusive powers” of the Bangsamoro Government would not necessarily be fully controlling in itself nor would it stand alone in isolation from any relevant constitutional jurisprudence.

According to the FAB, “The Basic Law shall reflect the Bangsamoro system of life” (II.3).  It is already of public knowledge that integral not only to that system or way of life but also to the very identity of the Bangsamoro is their religious belief of Islam.  Part of this belief is that “religion is not separate but rather integral to every aspect of life: prayer, fasting, politics, law, and society.”  So why impose on them a “secular political unit” hewing to the constitutional principle of  “inviolable separation of Church and state”?  Why insist, as the GPH primer does, that “The Bangsamoro government will be a secular government where basic rights of all will be protected” as if that cannot obtain in a non-secular or even Islamic government?

As for the much-inquired “ministerial form” of government of the Bangsamoro (FAB, I.2, first par.), we have once said before that it is precisely that: “form,” not substance.   Of course, form can also be important, even as substance is generally more important.   We fully agree with Chairman Leonen that this ministerial form for the Bangsamoro government can be accommodated within the existing framework of the Constitution.  His explanation that “there is nothing there [in Article X, Sections 15-21 thereof that] says a ministerial form of government in an autonomous area is prohibited.”  We thus demonstrates working “within the flexibilities of the existing Constitution,” or what he calls “thinking out of the box, but within the Constitution.”

But as then Justice Minita Chico-Nazario had to say in her Dissenting Opinion in the Province of North Cotabato case:  “It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao still remained to be elusive under its present terms.  There is the possibility that the solution to the peace problem in the Southern Philippines lies beyond the present Constitution.  Exploring this possibility and considering the necessary amendment of the Constitution are not per se unconstitutional…”   Even the majority Decision therein had this to say along the same lines:  “If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation.”   This is the clear context of the discourse for the negotiating parties “to think out of the box” –  of the Constitution.

It is good, therefore, that the FAB itself allows for such thinking out of the box of the Constitution, not only through certain substantive provisions in the FAB discussed above, as we said subject to a common understanding to that effect by both parties, but also through certain mechanisms and rights:

— the second function of the TC “to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements” (FAB, VII.4.b)

—  the “directly enforceable” and “guaranteed” basic right of all citizens residing in the Bangsamoro “to seek constitutional change by peaceful and legitimate means” (FAB, VI.1.f)

Two Possible Basic Road Maps for Constitutional Amendments

What is to be done?  To recapitulate, it behooves both parties to soon enough clarify to each other, if not yet,  and to their concerned publics whether they have the same understanding of certain key terms in the FAB like “status quo,” “ARMM” and “asymmetric,” and what this understanding is. Their common understanding on these key terms has bearing on both the ensuing content and process for establishing the new Bangsamoro entity envisioned in the FAB.  Such a common understanding would lead to either of two fundamental tracks:  that the Bangsamoro can be accommodated within the existing framework of the Constitution OR that it will entail amending the Constitution.  IF it is the former track, the road map for this has already been largely outlined to the public.  BUT if it is the latter track, there could be at least two possible basic road maps:  (just on the sequence of the BBL and the constitutional amendments, without any more mentioning and detailing the other steps, the political requirements and prospects)

[1]  Pass the BBL first under the existing constitutional framework which includes the highly-centralized national unitary system of government, then at some later opportune point, including after some experience with that first BBL, introducing whatever still necessary constitutional amendments (Con Am), especially as may be indicated by that experience.  [hereinafter “ConAm RoadMap 1”]

[2] Introduce the necessary constitutional amendments first so as to enable or accommodate the best possible BBL with some “insulation” from the unitary system of government.  [hereinafter “ConAm RoadMap 2”]

ConAm RoadMap 1 has been actually hinted at or at least opened up as a future possibility by Chairman Leonen when he says “we see no necessity for now to amend the Constitution” (underscoring supplied)   For him and the GPH Panel, it is likely a question not only of political timing (including 2013 mid-term electoral considerations) of the Aquino administration but also of already having something more doable (like legislation, compared to a constitutional amendment)  in place and to show soon enough for the momentum and lead time of the whole peace process before the end of its term in 2016.  Perhaps, the sense is that whatever necessary amendment will just take care of itself in the future, not earlier than the 2013 elections.  By whatever opportune future time, the experience with the first BBL may better indicate the need for and content of the constitutional amendments to be introduced.  Note, however, the “trial period” of about 25 years for the ARMM before it was declared a “failed experiment.”

ConAm RoadMap 2 is the more logical approach if there is a common understanding of both parties that the optimally desired BBL, especially its key features, will entail amending the Constitution. Aside from the necessity of a constitutional amendment to enable or accommodate a qualitatively higher degree of self-governance than that under the existing constitutional framework, such an amendment would entrench or guarantee that new and better arrangement, would indicate the sharing between two peoples of the sovereign act of constitution-making, and would thereby correct the unilateral character of the existing constitutional provisions on autonomous regions. But it is also the admittedly more difficult approach, as the political requirements are higher for charter change.

While ConAm RoadMap 2 is more difficult and may take longer, it may also ultimately be the “cleaner” or smoother path that avoids so many possible roadblocks or obstacles down the “shortcut” but rocky road to peace where the BBL is first passed under the existing constitutional framework.  Let me explain.  Introducing the necessary constitutional amendment that would enable or accommodate the optimally desired BBL is like cutting the proverbial Gordian knot.  It would be the key link in that whole process, facilitating whatever remaining necessary ensuing legislative, executive, administrative and even judicial measures.

Otherwise, the BBL and other supposedly implementing legislation, passed under ConAm RoadMap 1 without first the enabling constitutional amendment, may end up only putting in place inadequate or even inappropriate measures that would then only complicate the problem.  Inadequate because these legislative measures cannot rise above the level of their constitutional source of low-intensity self-determination.   Worse, the Bangsamoro can get stuck in the quicksand of an existing legal framework that is almost alien, if not also hostile, to it.  The more one struggles in this quicksand, the more one sinks into and gets engulfed by it.  Still another Inquirer columnist, journalist John Nery, has found the FAB to be “thoroughly soaked in the waters of constitutionalism, Philippine-style.”

But whether it be ConAm RoadMap 1 or ConAm RoadMap 2, of course more so with the latter, it is best that the TC, and for that matter independent civil society peace organizations, work purposively on proposals to amend the Constitution for the purpose of enabling or accommodating a new Bangsamoro self-governing entity worthy of the name.  These proposals must be ready for any eventuality or opportunity like a constitutional convention (ConCon) or constituent assembly (ConAss), that arises, as often happens unplanned or unmapped on the long journey to peace. Fellow travelers on this journey should also be ready to fork into or link up with other imperatives for charter change, not necessarily peace process-related, which may be moving on their own independent and parallel roads.  Indeed, there may be more than just two roads to take towards the necessary charter change (ChaCha) for peace.  Give peace a CHA-CHAnce!

[MindaViews is the opinion section of MindaNews. PeaceTalk is open to anyone who wishes to share his/her thoughts on peace in Mindanao. Soliman M. Santos, Jr., A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb);  Member, Integrated Bar of the Philippines, Camarines Sur Chapter.  He has been a long-time Bicolano human rights and IHL lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer esp. for and on the Mindanao peace process, with several books on this, inc. The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001; with 2nd printing, 2009), where he has long made the first full argument for charter change for that peace process.  He is presently Presiding Judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, both in Camarines Sur]


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