President Aquino called the Autonomous Region in Muslim Mindanao a failed experiment. Yet, the organic act governing the ARMM is one of the most carefully drafted statutes in our legislative history. We cannot say the same of the documents creating the Bangsamoro, which are riddled with uncertainties and apparently acceded to by the government in an effort to appease a fractious element in Muslim Mindanao.
Here are our misgivings.
There is no stated process in the Framework Agreement for the repeat or amendment of the Bangsamoro. This is in contrast to the ARMM organic act which allows for changes upon approval of two-thirds of Congress. We hope that the omission can be corrected in the Bangsamoro Basic Law which is still to be drafted. What if, at some future time, it becomes necessary to change or modify the setup of the Bangsamoro? We shudder to think of the impasse that will follow if there is no accepted mechanism for amendment.
The devolution of powers in the ARMM is subject to the principle that the region remains an integral and inseparable part of the national territory of the Philippines. That is why the ARMM organic act is specific in requiring the regional governor and other officials to take an oath of allegiance to defend the Constitution and the laws of the Philippines. The Framework Agreement makes no reference to an oath. It
only says that the Bangsamoro must be consistent with its provisions. Is the Moro Islamic Liberation Front making a statement that it will not concede to anything more than what is contained in the Framework Agreement?
General supervision
The presidential power of general supervision over local governments mandated in the Constitution got lost on the way to the negotiating table. While the regional governor and other local officials of the ARMM are expressly placed under the authority of the president, the Bangsamoro documents are again silent on this. This can be a big problem later. Unless his/her authority is conceded in the Framework Agreement, a future president might not have the guts to discipline the chief minister of the Bangsamoro or any of the members of his/her cabinet, although the demands of the service might require it.
There are several offices in the national government whose authority under the Constitution needs to be upheld in the Bangsamoro documents. For one, the Constitution states that there shall be one police force to be administered and controlled by the National Police Commission. But the Framework Agreement says that the Bangsamoro shall have primary responsibility over public order and safety and that all law enforcement functions of the national government shall be transferred to the Bangsamoro police force. Which is which now? In the ARMM organic act, the regional police force is definitely under the Napolcom, to preserve the concept of one national police force.
There is no more audit of the funds of the Bangsamoro, although, as a political subdivision, it should be under the Commission on Audit, just as the Shariah courts are under the certiorari jurisdiction of the Supreme Court. These are all constitutional prescriptions. But the Framework Agreement now says that the Bangsamoro shall have competence over the Shariah. Compare this to the ARMM organic act which expressly subjects the Shariah to the original and appellate jurisdiction of the Supreme Court.
Then there is the question of separation of church and state. This is a cardinal principle in our system of government ensuring the secular nature of our society. It is in our Bill of Rights, and the ARMM organic act recognizes it. But not the Framework Agreement. Following the principle of inclusio unius est exclusio alterius, and in the name of culture the promotion of which is one of its exclusive powers under the Framework Agreement, the Bangsamoro may well declare Islam someday as an official religion.
It is true that certain fundamental rights of non-Muslims are protected in the Framework Agreement. But it is one thing to announce them and another to ensure their implementation if the appropriate mechanisms are not in place. As an example, the Commission on Human Rights is supposed to have under the Constitution jurisdiction in the Bangsamoro. But, with supreme irony, the Framework Agreement says that the Bangsamoro may organize its own human rights body. The status of women, in particular, needs more attention. Considering the uneven development of women’s rights in Muslim countries, it behooves us to lay down the specific ways by which they can seek redress of their grievances. We need to say, for example, that special courts will be created to pass upon complaints of human right violations in the Bangsamoro.
Basic defect
We see more anomalies. Suffice it to say that they are all symptomatic of a basic defect. What is fundamentally wrong is giving the Bangsamoro powers and a status that are already beyond the notion of an autonomous region in the Constitution.
The Bangsamoro will have financial independence through its power to create its own sources of revenue, control natural resources and contract loans. Through trade with Asean countries, it will achieve a certain measure of international recognition. It will be beyond the auditing controls of the national government. It will be self-governing, as the President has given up his power of general supervision over it. It will have its own police force, and conceivably a militia and reserve force which it can mobilize into an army at any time.
The Bangsamoro has become what is known in international law as a state-like community. We know from history how semi-sovereign states eventually acquire the status of independent states, like Bulgaria and Romania, which were once under the suzerainty of Turkey.
The final question is asked: Will the creation of a substate in our land only be a prelude to secession? If this dreaded day comes, the dismemberment of the republic will be the only legacy of the Aquino administration that future generations will remember.
Mario Guariña III is a former associate justice of the Court of Appeals.