DAVAO CITY (MindaNews / 3 April) – The Comprehensive Agreement on the Bangsamoro (CAB) between government (GPH) and the Moro Islamic Liberation Front (MILF) is “unconstitutional,” Senator Miriam Defensor-Santiago said but government peace panel chair Miriam Coronel-Ferrer maintains that the agreement is “within the framework of the 1987 Constitution.”
“I regret that, after my preliminary studies, I have concluded that the Framework Agreement on the Bangsamoro is unconstitutional,” Santiago, chair of the Senate Committee on Constitutional Amendments, said before proceeding to deliver her graduation speech at the Gordon College in Olongapo City on April 2, six days after the CAB was signed in Malacanang on March 27. A copy of her pre-graduation speech pronouncement has been posted on the Senate website.
“Miriam is not the Supreme Court,” Guiamel Alim, executive director of the Cotabato City-based Kadtuntaya Foundation and a member of the Council of Elders of the Consortium of Bangsamoro Civil Society, told MindaNews.
Santiago said the CAB, which contains 12 agreements including the October 15, 2012 FAB and its annexes, “apparently contains provisions very similar to those contained in the (GPH-MILF’s) Memorandum of Agreement on Ancestral Domain (MOA-AD) which the Supreme Court declared as unconstitutional.”
“Both the MOA-AD and the Bangsamoro Agreement appear to facilitate the secession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea,” she said.
The Supreme Court’s ruling on the already initialed MOA-AD in 2008, however, acknowledged that that the MOA-AD is “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001.”
“Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original,” the Supreme Court ruled.
Santiago, a former judge and law professor at the University of the Philippines, said she could be removed as chair of the Senate Committee on Constitutional Amendments but stressed that “while I am chair, it will be extremely difficult to convince me, as a student of constitutional law, that the Bangsamoro Agreement respects the Philippine Constitution. On the contrary: The Agreement violates the principle of constitutional supremacy.”
Within framework of 1987 Constitution
Santiago cited four reasons why she thinks the Agreement is unconstitutional: that the agreement is between the executive branch of government alone and the MILF: that what is being granted is “not a mere autonomous region… but a substate;” that it “diminishes the sovereignty of the Philippine Government by listing what are the powers that the central government can retain;” and that it “embodies the consent of the executive branch to amend the Philippine Constitution in order to accommodate the Agreement.”
In a four-paragraph statement e-mailed by the Office of the Presidential Adviser on the Peace Process at 8:01 p.m. on April 2, government peace panel chair Miriam Coronel-Ferrer, a professor Political Science at UP, described Santiago as a “brilliant professor and an expert in Constitutional Law” and appreciates her “insights and opinions” on the CAB but assured her “and the public that through every stage of the negotiations, we remained ever mindful of the President’s instructions that any agreement we must conclude must be within the framework of the 1987 Constitution, and accordingly, the roadmap set by the CAB leads to Congress as the established lawmaking institution.”
MILF peace panel chair Mohagher Iqbal, concurrent chair of the Bangsamoro Transition Commission, sent no reply when asked to comment on Santiago’s pronouncement.
The GPH peace panel in the three-year old Aquino administration has repeatedly said it conducted due diligence on the Constitutionality of the agreements as well as consultations, to ensure the agreement will not suffer the fate of the already initialled MOA-AD whose formal signing in Kuala Lumpur on August 5, 2008 was aborted following the issuance of a temporary restraining order by the Supreme Court on August 4, on the petition of the Province of North Cotabato.
No such petition greeted the announcement in the second week of March that the CAB would be signed on March 27. As of April 2, there has been no report that a case has been filed before the Supreme Court, questioning the constitutionality of the CAB.
“We 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,” Ferrer said.
Ferrer said they are waiting for the Bangsamoro Transition Commission to finish drafting the Bangsamoro Basic Law which the President will certify as urgent when submitted to Congress.
“The Bangsamoro Basic Law, as enacted by Congress, shall serve as the organic act for the autonomous region in Muslim Mindanao provided for in the 1987 Constitution,” Ferrer said.
Santiago argued that “only one of the three branches of government – the executive branch, consisting of the Office of the President acting through a peace panel of negotiators – represented the government” in the peace negotiations with the MILF.
“The executive branch alone does not represent the Philippine Government. Thus, the executive branch, in negotiating the Agreement had no power to bind the two other branches – legislative and judicial. 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,” she said.
“When the executive branch misrepresenting itself as the Philippine Government enters into an agreement with the rebel group, the result is not a mere autonomous region as provided for by our Constitution, but a substate. Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a substate,” Santiago added.
The Supreme Court in the same ruling on the MOA-AD said “the President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.”
Santiago noted that the CAB not only “attempts to redefine the sovereignty of the Philippine state” but also provides “that in the future, such sovereign powers as have been reserved may be further increased, provided the Bangsamoro agrees.”
“It will therefore be the Bangsamoro which will determine what should be the remaining sovereign powers of the central government,” Santiago added.
She cited six points why she believes the Bangsamoro will be a substate: the powers of the central government shall be determined by the Agreement, “thus turning Bangsamoro into a substate;” that the Autonomous Region in Muslim Mindanao “will be abolished by mere agreement with the MILF, which is not surprising if you consider that the Bangsamoro has become a substate;” that the Bangsamoro is allocated “all powers exercised by the national government over local government units; that although the Constitution provides that natural resources belong to the state, “in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources;” that the Annex on Power Sharing gives to Bangsamoro so-called ‘exclusive powers,’ “which is defined as a tautology, as ‘powers or matters over which authority and jurisdiction pertain to the Bangsamoro government;’” that the Bangsamoro shall be under a ministerial form of government while the rest of the country will operate under a presidential form of government; and that the CAB provides as one of the functions of the Bangsamoro Transition Commission, to “work on proposals to amend the Philippine Constitution for the purpose of amending and enriching (sic) in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.”
“Say again?! Wh a – a – a – t?! The Agreement embodies the consent of the executive branch to amend the Philippine Constitution in order to accommodate the Agreement! This is beyond ridiculous,” Santiago said.
The FAB provides that aside from drafting the Bangsamoro Basic Law, the BTC can “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.”
EO 120 on the Bangsamoro Transition Commission, issued by President Aquino on December 17, 2012, provides the following tasks of the Commission, in accordance with the FAB: “draft the Bangsamoro Basic Law with provisions consistent with the 2012 Framework Agreement on the Bangsamoro; whenever necessary, to recommend to Congress or the people, proposed amendments to the 1987 Philippine Constitution…”
The Senate and House of Representatives issued resolutions in support of the EO. Senate Resolution 922 expressed “support to the 2012 Framework Agreement on the Bangsamoro with the Moro Islamic Liberation Front (MILF) and its Implementation, Including the Creation of the Bangsamoro Transition Commission through Executive Order (120).”
Records posted on the Senate website show that Resolution 922 was introduced by Senator Teofisto Guingona III with all senators present as co-authors, including Santiago.
Senate President Franklin Drilon and House Speaker Feliciano Belmonte attended the signing rites of the CAB on March 27.
Marvic Leonen, Dean of the UP College of Law who was appointed government peace panel chair in July 2010 told MindaNews during his last round of talks with the MILF in November 2012 that the ARMM can be abolished by another law with a plebiscite.
“After the plebiscite, the ARMM will no longer exist. What will be (in place) will be the Bangsamoro. Of course, in the process, the ideas that were presented at the negotiating table were simply those of the negotiations kaya there was agreement that the Transitory Commission may raise the possibility of Constitutional amendment pero proposed lang. Walang commitment ng government that it will pass. The commitment of government that it will be acted upon depends on its value… It’s the same power given to any citizen or any group of citizens,” Leonen told MindaNews on November 16, 2012.
Leonen was named Associate Justice of the Supreme Court a few days later. (Carolyn O. Arguillas/MindaNews)