Sen. Miriam Defensor-Santiago is right. The peace agreement between the Aquino administration and the Moro Islamic Liberation Front over a piece of territory they call the Bangsamoro is illegal. No matter how hard President Aquino tries, he cannot hide the fact that the deal crafted under his direction runs afoul of our fundamental law. The constitutional infirmities stick out like a sore thumb.
Many objections have been aired against the Comprehensive Agreement on the Bangsamoro (CAB). Due to space constraints, we will confine ourselves to a discussion of the powers given to the Bangsamoro.
First, the CAB provides for a ministerial form of government for the Bangsamoro under which, we presume, following the pattern of its benefactor-state Malaysia, an assembly shall be chosen by an electorate, with an executive branch composed of the chief minister and other ministers coming from the assembly. We ask: How will this jibe with Sec. 18 of Article X of the Constitution which states that the basic structure of the government for the region shall consist of an executive branch and legislative assembly, both of which shall be elective and representative of the constituent political units? The message of Sec. 18 is loud and clear. Like the US Constitution, our fundamental law is guaranteeing to an autonomous region a republican form of government, whereby the chief executive is elected by the people at large, not simply by an assembly of his peers.
Second, with the vesting in the Bangsamoro of a whopping 58 so-called exclusive powers, the exercise of which is beyond review by Congress, the CAB has effectively dismantled the unitary system of government under our Constitution. Note that Sec. 20 of Article X of the Constitution states that the organic act of an autonomous region like Muslim Mindanao shall provide for legislative powers subject to the provisions of the Constitution and national laws. This means that Congress can add to, modify, amend, or even set aside any legislation enacted by the Bangsamoro. This is what a unitary government is all about. But the CAB does away with this.
Third, the executive power of general supervision over autonomous regions mandated by Sec. 16 of Article X has been compromised. Mr. Aquino gamely surrendered the authority of his office when he allowed the CAB to pass his scrutiny granting the Bangsamoro the power to create, manage and regulate on its own responsibility the local bureaucracy and other units in its territory.
Fourth, the powers of other constitutional agencies have been curtailed as well. Among the agencies affected are the Supreme Court, whose jurisdiction over the Shariah courts have been transferred to the Bangsamoro (FA, III, 3, Annex to Power Sharing, III, 40); the Commission on Audit, which has lost its power to examine and audit the accounts of the Bangsamoro (FA, IV, 5); the National Police Commission, with respect to the Bangsamoro police force and its law enforcement functions (FA, VIII, 6, Annex on Power Sharing, II, 14); and the Commission on Human Rights, whose powers and functions can be overlapped by human rights bodies that the Bangsamoro may create on its own (Annex to Power Sharing II, 5).
Fifth, by excessively favoring the Bangsamoro over the other regions, the CAB violates the equal protection of the laws guaranteed by the Bill of Rights of the Constitution. Sec. 1 of Article III states that no person shall be denied the equal protection of the laws. The clause ensures what Justice Stanley Matthews of the US Supreme Court referred to as a pledge of the protection of equal laws. Of course, the provision does not impose a literal equality on all things to which it applies, but if ever there are distinctions, they must have a rational basis and be not entirely arbitrary.
For a time, we were willing to give the Aquino negotiators the benefit of the doubt when they agreed to make a special case of the Bangsamoro. But after listening lately to what one of his negotiators said over station dzRH, we know better. In answer to the question why the Bangsamoro should have control of all its mineral resources while the other regions do not, she said the other regions could also petition the national government to take control of the resources within their territories. To borrow the words of Senator Santiago, this is beyond ridiculous. What will the Bicolanos or Cebuanos do if the national government does not heed their request—engage in rebellion like the MILF?
Senator Santiago has a choice word for the kind of entity created by the CAB. It is a substate, which is only a breath away from being an independent state. The problem is that the conflict with the MILF was internationalized when Malaysia was allowed to broker the negotiations. Unwittingly, we have opened our southern backdoor to the influence of a foreign power and sacrificed the Sabah claim of the Sultanate of Sulu, an issue over which many Muslim Filipinos have died.
It is unbelievable that so defective an agreement as the CAB could pass muster in the eyes of our countrymen. We think we can find some insights in the cautionary tale of the emperor’s new clothes. In this ancient tale, an emperor was deluded by his tailors into believing that they had a wonderful new outfit for him. Feeling that he should show his attire to his people, he announced that he would parade before them in his new clothes. In truth he had no clothes on. The people nonetheless believed that he was attired, mesmerized as they were by his authority, and they began praising him for something that was not there.
In a sense, Mr. Aquino is the emperor in the tale. The people still love and trust him to the point that they accept as gospel truth what he says or does. He should, at least, clean up the mess he created before the people wake up to the grim reality.
Mario Guariña III is a former associate justice of the Court of Appeals.