COMMENT: Bridging the Historic Chasm (3) II. Looking into the FAB (2 as Framed)

GENERAL SANTOS CITY (MindaNews/27 October) — As earlier noted, the 15-stage implementation of the FAB appeared to have been drawn on the presumption that the Bangsamoro as aspired by the Moros can be established hitch free within the remaining half of the Aquino III administration. With the transition deemed satisfactorily completed, the Bangsamoro Transition Authority (BTA) will hand over a Bangsamoro government perceived as stable to the first regular Bangsamoro legislative assembly elected in 2016.

However, the FAB as agreed and framed is not really hitch free. There are contentious and potential issues in the FAB provisions — as affirmed by both Parties — and possible conflicts in the passage of the Bangsamoro Basic Law (BBL) from the Transition Commission (TC) through the Congress and the plebiscite — as well-intentioned critics see it — that can upset the 15-stage implementation plan.

Four Annexes

To complete the FAB, the negotiation of four annexes has to be done by the end of 2012; otherwise, the TC, even if already constituted, cannot start drafting the BBL. These are Annex 1 on Power Sharing (III. 1); Annex 2 on Wealth Sharing (IV.6); Annex 3 on Transitional Arrangement and Modalities (VII.2); and, Annex 4 on Normalization (VIII.9).

The FAB has provisions basically similar to those of the MOA-AD in its original or reframed versions. It is not just coincidental that the four annexes in the FAB are also provided in the MILF Draft Agreement 2011 that in early 2011 the MILF Panel presented to the Aquino Government Panel. That Draft has annexes on power sharing, on the reformation of the text of concepts and principles in the MOA-AD, on wealth sharing, on administration of justice, on policing and security, on reconciliation and normalization.

As seen in the “GPH-MILF Decision Points on Principle” (“Decision”) and in the FAB, the MILF has made compromises but has essentially stuck to its position enunciated in its original talking point, “How to Solve the Bangsamoro Problem”. This eventually evolved into the June 22, 2001 Tripoli Agreement on Peace which spawned the MOA-AD. While the Supreme Court ruled the MOA-AD as unconstitutional it recommended its renegotiation or revision to carry out the objectives of the TAP.

In reframing the MOA-AD, the MILF maintained its proposed political settlement within the principle of the right to self-determination. It revised the language and form of the MOA-AD in Draft 2011 which it expanded into a Comprehensive Compact. Since there were matters not in the regular provisions but essential to the Agreement, the annexes were provided as part of the Agreement.

With the annexes on hand for reference, adoption or revision, the MILF panel must be about ready for the November and December negotiations. The Government panel is now drafting its proposed annexes (OPAPP Website, October 22).  OPAPP Secretary Teresita Quintos-Deles expects to complete the negotiations as scheduled. The MILF is as optimistic (Luwaran Editorial October 15-31). However, it could be asked: What if the Parties fail to overcome the contentious issues which they have anticipated? 

“Devils in Details”

There are provisions of the FAB in which both Parties fully agree in principle but in their details “devils” may lurk. They can slow down the TC in drafting the BBL. There will be compromises that may not be to the liking of the members of the Congress or may invite the intervention of the Supreme Court.

Excluding Miscellaneous (IX), only Basic Rights (VI) appears to be “devil-free”. Of the seven others, Establishment of the Bangsamoro (I) and Basic Law (II) seem to be most “devil-infested”. The annexes may either expel some “devils” from the remaining five parts or invite more.

The signing of the FAB and the formation of the TC do not establish the Bangsamoro. As agreed, regular officials of the ARMM will be elected in the May 2013 election and the ARMM will continue to exist until abolished upon the promulgation of the BBL. Whether Bangsamoro can be established by the end of the Aquino III presidency will depend on how “devil-free” is the drafting of the BBL Bill, its passage through the Congress and its ratification.

This question should not be ignored: Can the ARMM be abolished by merely enacting the BBL providing for the repeal of R.A. 9054 that amended R.A. 6734 according to the GRP-MNLF Final Peace Agreement of 1996? This will abrogate the 1996 FPA. What if Nur Misuari or another aggrieved party asks the Supreme Court to stop the implementation of the BBL?

This is going ahead in the discussion. Let’s go back to the details and the devils.

However, let us keep this in mind: The Parties were able to seal the FAB late in the evening of October 6, 2012 after the MILF had accepted the Government panel chair’s option “to focus on what we can agree upon rather than [on] the fundamental differences” – obviously, with the understanding not to ignore the “fundamental differences”. Some of these differences will soon be resolved in the “annexes” and more during the drafting of the BBL.

Bangsamoro

“Part I: Establishment of the Bangsamoro” has five key provisions. “Part II: Basic Law” with four key provisions complements (I). They refer to Key Points 1, 2 and 4 of the “Decision”. However, on closer examination, they could have originated from “Concepts and Principles” of the MOA-AD.

“Bangsamoro” as the name of the “new autonomous political entity (NPE)” to replace the ARMM is “devil-free”. That was also an option as the likely ultimate name of the “Bangsamoro Juridical Entity (BJE)” in the MOA-AD had the Comprehensive Compact materialized – “Bangsamoro State” or “Bangsamoro” only.

That “Bangsamoro” is a recognition of the “Bangsamoro identity and the legitimate grievances and claims of the Bangsamoro people” (“Decision” 1) is embedded in past framework agreements dating back to 1997 and in the MOA-AD.

The key clause “the status quo is unacceptable” in both the FAB (I.1) and “Decision” (1) has been agreed in principle. But do the parties have the same interpretation? From official statements and documents, it can be inferred that to the Aquino government, “status quo” only refers to the ARMM; however, to the MILF, it refers to the unitary system of government in the Philippines.

As the reason for the establishment of Bangasamoro, the key clause is vital to the drafting of the BBL – the key to the interpretation of many provisions of the FAB. Legal minds opine that reference of the key clause to the unitary Philippine government will need amendments to the 1987 Constitution before the BBL can be implemented.

Which interpretation will prevail?

Scan the FAB

The FAB has the answer. It retains Bangsamoro as part of the Republic but makes it distinct from the other political components of the Republic and allows it exceptions from the unitary government of the Republic.

In (I.2) “The government of the Bangsamoro shall have a ministerial form” with “an electoral system suitable to a ministerial form of government” to complement it. In (I.4) “The relationship of the Central Government with the Bangsamoro Government shall be asymmetric”. These make the Bangsamoro government distinct from that of the other political components of the Republic.

Under R.A 9054, the constituent provinces and municipalities of the ARMM are under the Department of Interior and Local Governments. Recently, the ARMM was divested of its autonomy and placed under the DILG. In (I.3), this authority is solely vested on Bangsamoro: “The authority to regulate on its own responsibility the affairs of the constituent units is guaranteed within the limit of the Bangsamoro Basic Law”.

Other provisions concur with “I. Establishment of the Bangsamoro”.

“Part II: Basic Law provides that the BBL “shall be consistent with all agreements of the Parties (2)” and “shall reflect the Bangsamoro system of life …(3)”. The phrase “all agreements of the Parties” must be referring to pre-Aquino III agreements – the same stipulation in Key Point 3 of the “Decision”. In some of these agreements, the unitary system is tacitly rejected. Besides the FAB and the “Decision”, there are no agreements between the Aquino Government and MILF.

It is also provided that the BBL “shall be formulated by the Bangsamoro people and ratified by the qualified voters within the territory (4)”. This is an assurance that (II.3) will be properly interpreted and whatever the all-Moro 15-member TC (VII.5) will see fit for the Bangsamoro will not be “vetoed” by the non-Moro majority.

“Part VII: Transition and Implementation”, particularly (4.a), concurs with (II.2 and 3). One function of the TC is most significant (4.b): “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 prior peace agreements.” This is a long-standing proposition of the MILF.

The “unacceptable status quo” refers more to the unitary government of the Republic than just to the ARMM. The FAB considers amending the constitution if necessary. This has not escaped legal minds and other critics that entrenching the “ministerial” form of government and the “asymmetrical” relation between the Central Government and Bangsamoro will violate the 1987 Constitution – the assurance to the contrary of Government Panel Chair Marvic Leonen notwithstanding.

During his recent briefing at the House (The Philippine Star, October 24, 2012), Leonen was questioned about this departure of Bangsamoro from the unitary government of the Republic. Expect the Congress to finely comb the BBL bill for constitutional and other infirmities – culled, revised and re-written like the RCC draft of R.A. 6734 and the 1996 FPA when amending R.A. 6734. What if the 16th Congress “mangles” the BBL bill and fails to pass it within its term?

Transition

“Part VII: Transition and Implementation” is “life or death” to the Bangsamoro. It spans the entire road map. A careful reading of Part VII would reveal that the real transition begins and ends with the Bangsamoro Transition Authority (BTA) covering a short segment of the so-called three-year transition period.

From the formation of the TC to the ratification of the BBL is in reality the pre-transition period. There is no Bangsamoro in transition yet; the ARMM with its regular officials elected in May 2013 will be in place until abolished upon the creation of the BTA as provided in the BBL. The TC only prepares the transition mechanism and coordinates with the Bangsamoro Development Authority and the Bangsamoro Leadership and Management Institute in development of communities independent of the ARMM.

It is only upon the creation of the BTA that the ARMM is abolished and the Bangsamoro starts its transition (VII.8, 9 and 10). As planned the transition ends “in 2016 upon the election and assumption of the members of the Bangsamoro legislative assembly and the formation of the Bangsamoro government (VII.10)”

Here are speculative questions: (1) Can the TC draft the BBL in six months from its formation in December 2012 to June 2013 for submission to the16th Congress? (2) Can the 16th Congress enact the BBL during its first session so it can be ratified in the second half of  2014? Under this time frame, the BTA can have at least one and a half years – January 2015 to June 2016 — to entrench the Bangsamoro. What if the time frame collapses?

Only by a miracle can the Bangsamoro stand on its own feet in one and a half years. President Aquino III cannot help it after June 30, 2016. Can a provision be included in the BBL enjoining the next administration to continue giving the Bangsamoro the needed assistance?

As the euphoria during the signing of the FAB wanes, the hard work begins.”

(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at [email protected].)

(Next: III. Strategic Compromise)

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