THE Supreme Court recently issued a temporary restraining order to prevent the Arroyo government and the Moro Islamic Liberation Front (MILF) from signing the memorandum of agreement on the Bangsamoro ancestral domain issue in Malaysia. The MOA signing would have paved the way for the resumption of formal peace negotiations between the government and the MILF panels.
But the MOA, which has been kept from public knowledge, has come under fire from critics who have raised the issue of its constitutionality. The agreement calls for the creation of a new state, a Bangsamoro Juridical Entity (BJE), out of an expanded Autonomous Region in Muslim Mindanao (ARMM) that would, among others, have full authority to develop and exploit natural resources within its delineated territory. The BJE would also have its own institutions, including civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions.
Both the government and MILF, however, defended the agreement as being a product of 10-year discussions, and one that has passed the legal scrutiny of experts.
In this and a succeeding post, we publish essays written by Atty. Soliman Santos Jr., a Bicolano human rights lawyer who provides his own perspective on the issues assailing the unsigned MOA on ancestral domain as a long-time peace advocate and legal scholar. Soliman argues that if a real and lasting solution to the Bangsamoro problem is to be achieved, the negotiated political settlement must have to go beyond the framework of the Constitution.
Negotiating beyond the Constitution, not unconstitutional
THE unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) is being assailed now for being unconstitutional because some of its provisions admittedly go beyond the framework of the 1987 Philippine Constitution. We beg to disagree that this is necessarily unconstitutional. To seek constitutional change and reform (e.g. a shift to federalism) has not been usually treated as unconstitutional, except it seems when it has to do with the Moro question. In fact, it is even normal for peace processes, as shown by the experience of many countries, to seek and effect constitutional change and reform as needed for a negotiated political settlement.
A peace process may seek from the very start to eventually achieve constitutional reform, among other reforms, as is the case in the GRP-National Democratic Front (NDF) peace negotiations, per The Hague Joint Declaration of 1 September 1992. Or a peace process, especially at the government end, may see the need for constitutional change only towards the later part of the process, when questions of implementation start to be grappled with.
In the case of the GRP-MILF peace negotiations, it started in 1997 with the MILF’s single talking point: “To solve the Bangsamoro problem.” It was only 11 years later, in 2008, that the GRP side saw that the emerging ancestral domain aspect of a still to come “just, lasting and comprehensive solution to the Bangsamoro problem” would already entail changes in the existing legal, including constitutional, framework. And now, in the MOA-AD, the MILF in effect recognizes or acknowledges this “existing legal framework” albeit with a view to some key changes.
It is to the credit of the GRP side that it is now willing to effect constitutional change as needed as part of an overall solution to the Bangsamoro problem. After all, as a number of legal and scholarly studies have long pointed out, the Philippine Constitution of 1935, 1973 and 1987 have all been part of the problem in so far as these have framed the structural relationship between the Philippine state and the Bangsamoro people. This is a colonial-type structural relationship which does injustice (this word used by Cotabato Archbishop Orlando V. Quevedo) to the Bangsamoro identity, way of life and longing for self-rule.
The framework and provisions of the 1987 Philippine Constitution, including its provisions for an Autonomous Region in Muslim Mindanao (ARMM), and its overarching application to the 1996 GRP-Moro National Liberation Front (MNLF) Final Peace Agreement (FPA), have been proven by 12 years of experience, to be inadequate in terms of effectively and qualitatively restructuring that relationship in a way that helps solve the problem. Thus, the effort in the GRP-MILF peace negotiations to frame a qualitatively better and higher degree of self-determination for the Bangsamoro people (not just the MILF) short of independence or secession (the last upper limit for the GRP). The MOA-AD is an important part of the process of this effort but it is not yet the Comprehensive Compact (final peace agreement).
These are peace negotiations, not surrender negotiations, between two sides, which simply have different frameworks, if not world views. As the MILF and for that matter the NDF have often said, what point is there to these negotiations if their side will just accept the framework of the Philippine Constitution? This Constitution represents to them precisely the system that they are fighting to overthrow or separate from. It is the inherent character of peace negotiations of this sort to seek and find mutually acceptable common ground, usually somewhere in between the respective minimum and maximum positions of the parties. In the MOA-AD, the MILF (like the MNLF before), has clearly come down from a maximum position of independence for the whole of Mindanao, Sulu and Palawan as the Bangsamoro homeland. This should help place the MOA-AD in perspective in terms of who is really giving and taking in the overall, including historical, scheme of things.
But if the Philippine Constitution is the definitive framework of the GRP side, how can the GRP Peace Panel agree to provisions, such as those in the MOA-AD, which go beyond the existing constitutional framework and provisions? The quick simple answer is that it is because the Constitution itself allows for a process of amendments or revisions, to be among its constitutional processes.
To illustrate this, we cite two examples, one each, from the peace negotiations with the NDF and with the MNLF. First, in the GRP-NDF Breukelen Joint Statement of 14 June 1994, there is this paragraph: “The GRP Panel reaffirms its position that the GRP commitment to Constitutional processes…does not mean it will cite the GRP Constitution as a basis for rejecting what otherwise would be just and valid proposals fore reforms in society. If it is shown in fact that certain provisions of the GRP Constitution hinder the attainment of genuine reforms, the GRP Panel is willing to recommend to GRP authorities amendments thereto. In this context, it is clear that the GRP’s adherence to constitutional processes does not constitute the imposition of the GRP Constitution as framework for the peace talks.”
Second, there was this GRP position during its 1992-96 peace talks with the MNLF: “…that is not to say, however, that the Constitution is an inflexible and static document. It is a living constitution with built-in procedures for its amendments or revision, that will bring back to the people for approval such amendments or revision, to meet the needs and aspirations of the Filipino people…Any agreement which runs counter to the provisions of the Constitution or goes beyond its framework, needs to go through the tedious process of amending or revising the constitution, through a proposal made by a constitutional convention called by Congress or a proposal made by Congress by itself acting as a constituent assembly or a proposal by people’s initiative; and approval or ratification of the proposal by a majority of the votes cast in a plebiscite conducted throughout the Philippines.” This was, however, not really tested then because the negotiated political settlement with the MNLF did not go beyond the framework of the Constitution — the implication is that it could have, albeit through a tedious process.
But the peace talks with the MILF is another matter, with much indications that the negotiated political settlement this time must go beyond the framework of the Constitution, if it is to be a real and lasting solution to the Bangsamoro problem. The GRP Peace Panel, as an extension of the President and Chief Executive, must be given the necessary leeway and support — political, moral, technical, legislative and judicial — to negotiate this difficult terrain of effectively resolving an armed conflict of four decades already this year, counting from the 1968 Jabidah Massacre.
Atty. Soliman Santos Jr. graduated cum laude from the University of the Philippines with a degree in A.B. History. He obtained his law degree from the University of Nueva Caceres. He has a Master of Laws from the University of Melbourne in Australia. He is author of the following books: The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).