The RP-MILF framework agreement (1)

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 president’s power in pursuing the peace process. That issue 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 the 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 enormity 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 amendment 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 Congress—both 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 share 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 upon 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?