PEACETALK: Legal and constitutional limits of what Government can offer the MILF by Bong Montesa

QUEZON CITY (MindaNews/11 February) — The end goal of peace negotiations is a peace agreement. While the road to peace may be circuitous, still the end goal is the same – a peace agreement.

Peace negotiations between the Government and the Moro Islamic Liberation Front (MILF) started this week in Kuala Lumpur. The MILF submitted its draft comprehensive compact and Government promised to study and respond to the proposals. While the contents of the new MILF comprehensive compact draft are still confidential, we can be sure, based on over 14 years of negotiations, that the MILF will be negotiating for nothing less than an agreement that would radically alter the relationship between the Filipino and the Bangsamoro people, nothing less than an agreement that would require constitutional change.

The MILF, in their public statements, has characterized their new draft comprehensive compact as:

“A formula of peace through the exhaustion of all democratic remedies to solve a homegrown sovereignty-based conflict, which, following the same approach, other similar global sovereignty-based conflicts have also been successfully resolved, such as in South Sudan and Northern Ireland;

“A proposal to correct and solve the one-sidedness or imbalance of totality of relationship between Filipinos and Moros, the former continue to be rulers and sole decision-makers, while the latter as mere second class citizens without any role in national decision-making;

“Provides for an asymmetrical state-substate relationship, wherein powers of the central government and state government are clearly stated, aside from those powers they jointly exercise, which are also defined in this draft.”

Again since the aim of peace negotiations is a peace agreement, it might be good to inquire into the legal and constitutional “limits” or the “scope of authority” of the President (and his negotiators).  The practical question is this: at the end of all these negotiations, can the President (and his peace panel) enter into an agreement that will require amending or revising the Constitution?

This question is important because the answer will determine how the peace panel will deal with proposals from the MILF that require constitutional change. The quality of conversation in the negotiating table will be influenced by whether, in the end, there can be an agreement on matters requiring constitutional change or not. It goes to the heart of the matter. Thus:

“May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions, which the present laws allow?”

The Supreme Court in Province of North Cotabato (G.R. No. 183591, October 14, 2008) addressed this question squarely. According to the Court:

“From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed with certainty.

Since under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what Marcos did in Sanidad but for their independent consideration of whether these recommendations merit being formally proposed through initiative.

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It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.”

The limits of what Government can negotiate and offer are clear as outlined in Province of North Cotabato. At the end of the day, after all the tough negotiations, if there are matters, which would require constitutional change, the President (and his negotiators) cannot sign any such agreements. The President (and his negotiators) can only agree to recommend these proposed amendments or revisions either to Congress, to a Constitutional Convention or the people themselves through the process of initiative. The President (and his negotiators) cannot enter into any agreement that would “guarantee” amendments or revision. To do so, in the words of Province of North Cotabato, would “amount to authorizing the usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.”

These then are the legal and constitutional limits of what Government can offer the MILF:
1. If allowed by present Constitution and laws, agree to implement.
2. If requires the enactment of a new law, agree to recommend to Congress.
3. If requires amendment or revision of Constitution, agree to recommend proposed amendments or revisions to Congress, or to a Constitutional Convention or the people through initiative. (MindaViews is the opinion section of MindaNews.  Lawyer Camilo “Bong” Montesa was Assistant Secretary for Peacemaking at the Office of the Presidential Adviser on the Peace Process. For five years, he was legal and strategy advisor of the government peace panel negotiating with the MILF).

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