ANALYSIS 2: The Constitution and the Bangsamoro question

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“It is the duty of the government to seek a just, comprehensive and enduring peace with any rebel group but the search for peace must always be in accord with the Constitution. Any search for peace that undercuts the Constitution must be struck down. Peace in breach of the Constitution is worse than worthless.” (Chief Justice Reynato Puno)

President Aquino said in his televised speech that the “the ARMM is a failed experiment. Many of the people continue to feel alienated by the system, and those who feel that there is no way out will continue to articulate their grievances through the barrel of a gun. We cannot change this without structural reform.”

There can be no other more direct indictment of a system than this. Not only did the President refer to the people’s alienation but also to the system itself. But if the present Autonomous Region of Muslim Mindanao (ARMM) is a structural failure and there must be “structural reform”, we must then know what precisely is the present structure of the ARMM and, if there is really something wrong, and then ask ourselves what sort of direction should the reform have.

The legal structure of the ARMM is governed by Republic Act No. 9054. Its preamble decrees that the system will be truly reflective of the ARMM people's aspiration but it shall be “within the framework of the Constitution and national integrity, as well as the territorial integrity of the Republic of the Philippines.” There is nothing wrong with that structural premise.

But, as discussed in my previous article ANALYSIS | Issues and Questions on the 'Bangsamoro' Framework Agreement, the Framework Agreement entered into by the GRP and the MILF does not contain a similar categorical expression of recognition of the 1987 Constitution like in the ARMM law. Neither does it contain any clear inference relaying the same message. And considering that our own 1987 Philippine Constitution provided exactly the same standards in the creation of the autonomous region in Mindanao and Cordillera, why then was such important declaration omitted? It would have been very easy to insert such unequivocal expression of recognition if both sides truly agreed to it. Instead it contained the provision that “the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.” Surely, the Constitution could not be on a par with merely the “agreement of the Parties.”

So the question to be asked is: will there be a deviation, whether minor or major, from these basic constitutional mandatory premises in the Bangsamoro Basic law? What then could be reformative “structurally” from the standpoint of the 1987 Constitution? Or do we have to accept that indeed there must be a change in the Constitution?

With respect to political subdivisions, the present ARMM Law provides that its political system must be “consistent with the Constitution and in accordance with the provisions of Republic Act No. 7160, the Local Government Code of the Philippines.” There seems to be nothing wrong with this also. Our own 1987 Constitution imperatively provides that the President of the Philippines exercises general supervision over all local governments and that only the Congress is exclusively tasked with coming up with a local government code (which has been done already in Republic Act No. 7160) and thereby only Congress can modify it.

Reading the Framework Agreement, there is nothing expressly stated on the aspect of supervision of the President as mandated by the Constitution. But as to the powers of the local governments, the GRP and the MILF expressly agreed that “the privileges already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the Bangsamoro local government code.”

There is thus an empowerment granted to the Bangsamoro’s legislative body to make changes. This is not necessarily bad, but the question is what then could be reformative “structurally” in the existing executive system of political governance where there are governors, vice-governors, mayors, vice mayors and councilors and where the President of the Philippines has been imperatively mandated to have supervision over them? To what extent can the changes legally go beyond or even against the Local Government Code of the Philippines and the 1987 Constitution? In short, what is the structural form better than the ARMM but still within the Constitution? Or will that reformed-structure only exist extra-constitutionally?

The ARMM Law is a finished product. The Framework Agreement is just a preparatory and incomplete one. It is understandable therefore that the Framework Agreement is replete with statements and references to the future mutual agreement of the parties. Thus, the Framework Agreement provides the following:
 
1.) In so far as the constitution of the Bangsamoro is concerned, the framework stated that “the provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties” and for the Transition Commission “to work on the drafting of the Bangsamoro Basic Law with provisions consistent with all agreements entered and that may be entered into by the Parties.”
 
2.) With respect to the powers of the Philippine Government as the “Central Government,” it provides a list and then followed by the statement stating, “this list is without prejudice to additional powers that may be agreed upon by the Parties.”
 
3.) As to revenues and taxes, the framework stated: “Consistent with the Bangsamoro Basic Law, the Bangsamoro will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties.”
 
4.) As to sharing of wealth, it provides “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.” (RGWS)
 
5.) Also as to sharing of revenue and wealth, the framework provides that “the details of revenue and wealth-sharing arrangements between the Central Government and the Bangsamoro Government shall be agreed upon by the Parties. The Annex on Wealth Sharing shall form part of this Agreement.”
 
Reference to the mutual “agreement of the parties” may look explainable as there are substantial things still to be decided. But Section 4(b) Article Vll of the Framework Agreement near the end of the document relating to the powers of the Transition Commission reveals a more significant underpinning. It provides that the Transition Commission has the power, among others, to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements.

The implication is clear. It would appear that the reason the Framework Agreement, unlike the ARMM Law, does not make a categorical statement of adherence by MILF to the present 1987 Constitution is because, as a group, it does not in fact adhere to it at the present time. And the MILF may have reasons for it which the GRP acknowledges. We must know these reasons and why the GRP agreed. The sovereign people have the right to know. We are still in the dark about that.

Quite revealingly, however, in the above-quoted Article Vll 4(b) of the Framework Agreement, the fundamental law of our land is referred for the first and only time merely as the “Philippine Constitution” without any reverence at all and which, according to the Framework Agreement, must accommodate and entrench “the agreement of the Parties” in the “constitution.” Moreover, the parties did not state that such accommodation must be done in accordance with the said Philippine Constitution but, significantly enough, it must be done “without derogating from any prior peace agreements.” Importance is expressly and preferentially made on “prior peace agreements”.

The “hidden” stipulations in this Framework Agreement therefore are those contained in the “prior peace agreements” which, in effect, are made as integral parts of the Framework Agreement, but whose contents are not expressly revealed in the Framework itself. The Government must likewise release these “prior peace agreements” to the public for a complete understanding of the totality of the Framework Agreement. What are the stipulations in these “prior peace agreements” which are so sacred that it cannot be subjected to derogation or, in simple terms, which are unchangeable and therefore must be followed? This is not to imply that the present GRP and MILF negotiators are deceptive but, as the late US President John F. Kennedy said, “sincerity is always subject to proof.”

As we have learned in the North Cotabato et al vs. GRP Negotiating Panel et al, (G.R. NO. 122156 October 14, 2008 ) where the Supreme Court declared as unconstitutional the MOA-AD initiated by then President Gloria Macapagal Arroyo, we must be wary about this very clever maneuver of including parameters in an agreement by mere reference to “prior peace agreements” but without knowing the content of the referenced-document. It may mean, as in the MOA-AD case, disaster. In the MOA-AD case, the Supreme Court summarized a crucial stipulation that has a great bearing on the case, thus,

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulatedtimeframe to be contained in the Comprehensive Compact.

When the Supreme Court examined these ”prior agreements” which cannot be changed, they contained stipulations which, in effect, included the constitution as within the term “legal framework” and also that the President made guarantees to amend this “legal framework. This was struck down as void for being repugnant to the Constitution providing that only Congress was the sole branch of government that can officially initiate constitutional amendments.

This is not therefore a case where the agreement of the parties must abide by the highest law of the land, namely the 1987 Philippine Constitution. It is the other way around: the Philippine Constitution must be adjusted to conform to the agreement of the parties which must be accommodated. This is drastic considering that,

a constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. (Manila Prince Hotel vs. GSIS 267 SCRA 408).

Accommodating the agreement of both the GRP negotiating panel and the MILF may indeed go beyond the 1987 Philippine Constitution and may be void (unless a change in the Constitution is ratified by the whole Filipino people). But what else could be a reformed structure other than one necessarily going outside the present Constitution? For instance, if the Bangsamoro is to be given the power to control the natural resources within its jurisdiction, how can this be done without amending Section 2 Article 12 of the 1987 Constitution which relevantly provides that “the exploration, development, and utilization of natural resources shall be under the full control and supervision of the State”?

Also under the ARMM Law (Republic Act No. 9054), there appears to be nothing wrong with the following provision stating that,

consistent with the Constitution and existing laws, the Regional Assembly may enact laws pertaining to the regional economy and patrimony that are responsive to the needs of the region. The Regional Government may not lower the standards required by the central government or national government for the protection, conservation, and enhancement of the natural resources. (Article 12 Section 1 of the ARMM Law).

If the ARMM is to be replaced together with the above-quoted structural paradigm on the exploitation of natural resources, what could possibly be the new “reformed” structure in line with the Framework Agreement to be worked out by the MILF and the GRP different from the above-quoted ARMM framework but, at the same time, in accordance with Section 2 Article 12 of the 1987 Constitution?

On the other hand, if the resulting “reformed structure” is within the mandate of the 1987 Philippine Constitution, would it not just be “business as usual”? Would it not be the same ARMM only with a different name and new personalities? If this is the case, is the problem ultimately rooted not in the structure but on the personalities that work within the structure?

Amending the Constitution is not necessarily bad. But such fundamental change implies a revolution of sorts. Both sides must lead this peaceful revolution of the hearts and minds and way of thinking of their respective constituents. They must not be unreasonably obstinate.

I believe everyone wants the President to succeed here. And as I said in my previous article, he must get all the encouragement, inputs and suggestions he needs. But it must be a reciprocal attitude. The President must likewise be open. I still believe that President Benigno Aquino III was voted by the people not because he is particularly a genius, but because he is basically an honest person. But honesty alone will not make the peace process successful. There must also be hard work and keen awareness of the reservations of different sectors of society and finally addressing them in the best way he can, both legally and politically.

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