Experts debate legality of Bangsamoro pact

In the celebratory wake of the Comprehensive Agreement on the Bangsamoro, some adverse commentary has questioned its legality and constitutionality. Sen. Miriam Defensor Santiago's has only been the loudest.

The peace process with the MILF is following a tight two-year timeline reckoned from the signing of the Comprehensive Agreement on the Bangsamoro (CAB) last March 27 to the May 2016 presidential elections, which is expected to include the polls for the “ministerial” Bangsamoro Assembly.

Should a serious legal challenge to the constitutionality of the CAB be mounted in the coming months, that timeline could be derailed.

Former dean of the College of Law of the University of the Philippines Merlin M. Magallona has warned that the Agreement "may have to submit the test of its final validity to the power of review of the Supreme Court."

"This conditionality would be the price the Framework Agreement may have to pay in avoidance of the fundamental law," he said in a special issue of the Integrated Bar of the Philippines (IBP) Journal.

Magallona questioned the constitutionality of the power sharing provisions of the CAB.

Magallona specifically asked the following:

• Does the Agreement...entail a transfer of the sovereign powers of the people to the contractual arrangement between the Parties?
• By its commitment to empower the Transition Commission to propose amendment to the Constitution, has the Central Government departed from the Supreme Court’s directive in the (Memorandum of Agreement on Ancestral Domain) MOA-AD case that it has no authority by itself to propose such amendment?
• Does the Framework Agreement envisage that its principle on power relations...be incorporated into the Constitution by necessary amendment? This gives the impression that the Agreement operates over and above the Constitution.
• Will the President have the discretion to make changes in the Basic Law as a bill prepared by the Transition Commission before he certifies it as urgent?

Thus far, there are three sets of meticulous legal commentary on the Framework Agreement on the Bangsamoro (FAB), the centerpiece of the CAB and mother document of the four CAB Annexes:

- A November 2013 comparative analysis of the Memorandum of Agreement on Ancestral Domain and the FAB by Dean Sedfrey M. Candelaria of the Ateneo Law School;

- A December 2012 special issue of the IBP Journal containing articles by legal luminaries Nasser A. Marohomsalic, Merlin M. Magallona, and Soliman M. Santos, Jr.

- A 2009 Ateneo Law Journal article by Atty. Soliman M. Santos Jr. entitled “Constitutional Challenges of Philippine Peace Negotiations."

Add to these three the findings of a survey, Learning from the MOA-AD, by Elmelyn S. Hayudini and Judith M. de Guzman published by the Notre Dame of Jolo College in January 2013.

Constitutional questions

Magallona's commentary intersects with the views Senator Santiago recently expressed in a speech given in Olongapo.

Santiago alleges unconstitutional executive overstretch.

She said the Philippine government's agreement with the Moro Islamic Liberation Front is unconstitutional because:

• the government panel and the Aquino administration "misrepresented" themselves as the Philippine government and went beyond its authority;
• the entity that will replace the Autonomous Region for Muslim Mindanao is a "substate," not provided for in the 1987 Constitution, and will have powers that "diminishes" the sovereignty of the Philippine government; and
• the agreement gives the government's "consent" to amend the Constitution.

"In negotiating for the government, I am afraid that the executive branch not only exceeded its powers, but may have infringed upon the powers of the legislative branch." Santiago said.

She said the CAB seems to "facilitate the secession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea."

The chairman of the Senate committee on constitutional amendments said "the Agreement not only reduces the sovereignty of the central government, but also provides that in the future, such sovereign powers as have been reserved may be further increased, provided the Bangsamoro agrees."

Santiago also took issue with CAB stipulation that the Bangsamoro political entity will have "exclusive jurisdiction over natural resources."

The senator has other points against the "substate" nature of the Bangsamoro as contemplated in the CAB.

In response, government panel chair, Professor Miriam Coronel-Ferrer, said in a statement that they were "ever mindful of the President's instructions that any agreement we must conclude must be within the framework of the 1987 Constitution."

Coronel-Ferrer also said they "will be seeking a meeting with the Honorable Senator and other legislators to extensively discuss the different provisions in the CAB and to allow for a deeper understanding of the context and substance of the documents."

Insights of legal eagles

Other legal experts view differently the provisions Senator Santiago and Atty. Magallona question.

In the IBP Journal special issue, Atty. Marohomsalic acknowledges that "the existence of the Bangsamoro Autonomous Government in southern Philippines within the Philippine State is a case of political asymmetry. So does the presidential form of the Philippine Government and the ministerial form of government sought for the Bangsamoro Government under the FAB."

He added that "another instance of incongruency" is the allocation of powers between the national government and the Bangsamoro government.

"But this legal issue was anticipated by the 1987 Constitutional Commission that drafted the Constitution," Marohomsalic said.

He argued that the sultanic system that prevailed in the past of Muslim Mindanao "hewed closely" to the United Kingdom's ministerial and parliamentary system.

"In fine, the proposal for a ministerial form of government for the Bangsamoro measures up to constitutional regulation even as it carries on the legacy of the past," according to Marohomsalic.

He also sees the additional powers to the Bangsamoro as consistent with the policy of decentralization or subsidiarity enshrined in the Constitution.

Ateneo Law School Dean Candelaria said the powers enumerated in the MOA-AD and the FrameWork Agreement are different.

"The MOA-AD described the relationship as 'associative' while the FAB characterized it as 'asymmetric' wherein the Central Government has reserved powers with the Bangsamoro exercising exclusive powers and shared concurrent powers to be enjoyed by both," Candelaria said.

"In the North Cotabato case, the Supreme Court struck down the MOA-AD concept of an associative relationship," he noted.

Dean Candelaria also made these key observations:

• There is a marginal distinction between the contemplated entities under both agreements. It is clear, however, that both agreements intended to replace the existing Autonomous Region in Muslim Mindanao;
• Unlike the MOA-AD, the FAB elaborated on the basic rights and freedoms of the constituents in the Bangsamoro;
• the FAB dispenses with the references to ancestral domain but retained the concept of vested property rights; and
• the grant of territorial waters to the BJE may be allowed considering that it is akin to the grant of municipal waters to local government units and rights over waters within ancestral lands of the indigenous peoples, which are culled from the internal waters of the Philippines.

The Ateneo Law School dean also clarified that in a peace agreement, the use of the word "treaty" may not necessarily involve sovereign status.

He explained that "the concept of treaty may be used in a domestic sense."

"In the case of Canada, treaty simply means an agreement between people. The Government of Canada and the courts understand treaties between the Crown and the indigenous peoples to be solemn agreements that set out promises, obligations and benefits for both parties," Candelaria said.

He further expounded that in the Canadian setting a treaty "means a negotiated agreement between a First Nation and the Central Government that spells out the rights of the First Nation with respect to lands and resources over specified areas."

Candelaria also cited the Treaty of Waitangi of the Maori people in New Zealand as another example of treaty in a domestic sense.  — HS, GMA News