The Memorandum of Agreement (MOA) hammered out by government negotiators and the Moro Islamic Liberation Front is riddled with so many legal and constitutional flaws and political obstacles, it’s no wonder the administration of President Gloria Macapagal-Arroyo wanted to keep it under wraps for as long as it could. But now that its full details have filtered out, what remains a puzzle is how President Arroyo and her panel of negotiators could have agreed to terms so patently disadvantageous as to make the whole pact unacceptable to the Filipino people.

Firstly, the MOA expands the area of autonomy from the present Autonomous Region in Muslim Mindanao to places whose inhabitants never had any inkling that they could be part of a virtually new state called the Bangsamoro Juridical Entity. Even from the purely practical standpoint of government administration, there is little to recommend the inclusion of many tiny communities spread all over the southern Philippines, from the Zamboanga Peninsula in the south to Palawan Island in the southwest.

Secondly, so many provisions in the MOA violate the Constitution that it might as well have been written by people who either have not read the fundamental law or simply chose to ignore it. As Philippine Daily Inquirer columnist Raul Pangalangan, former dean of the University of the Philippines College of Law, has pointed out [read column below], the Constitution lists only nine functions that can be devolved to the region of autonomy, and these do not include the conduct of foreign relations and the establishment of a separate financial system. And yet the MOA would grant the proposed Bangsamoro government powers to “enter into any economic cooperation and trade relations with foreign countries”; “open trade missions in foreign countries”; and participate in international meetings, like those of the United Nations and the Association of Southeast Asian Nations. In addition, the Bangsamoro Juridical Entity (BJE) can set up its own banking system and financial institutions.

In defining ancestral domain, the MOA covers not only the areas owned or claimed by indigenous peoples, like the “lumad” who do not belong to the Islamic faith, but also the territorial waters. Pangalangan noted that control over internal waters and the territorial sea is vested in a sovereign state, making the BJE even more like one.

Given all these unconstitutional and objectionable provisions, why did the government panel, obviously with the consent of the President, approve the MOA? The Moro Islamic Liberation Front now says it doesn’t feel bound by the restrictions of the Constitution or by any decision of the Supreme Court. However, everyone in the administration agrees that the MOA would have to pass scrutiny by the Court and get Congress’ nod to go into operation. But how can the administration get the Court to put its imprimatur on provisions that are clearly in violation of the fundamental law? And how can it expect Congress to cooperate when even its allies are up in arms over it, especially those who come from areas that are proposed for integration in the Bangsamoro homeland? Has the administration become so confident of its influence over the courts and its hold on Congress that it believes it can make the two other branches bend according to its wishes, even to the extent of trashing the Constitution and cooperating in the partition of the country?

Those who cannot conceive of the administration committing treason see a different reason for the approval of the MOA. In their view, the MOA’s ultimate objective is not peace but keeping Ms Arroyo in power. If Congress can be persuaded to help amend the Charter to put the MOA into operation, it can also be convinced to slip in another amendment that would allow Ms Arroyo to hang on to power, most likely through a shift to a parliamentary system.

As if that is not bad enough, another scenario gaining currency casts the administration in an even more devilish light. In this scenario, the MOA was deliberately designed to self-destruct as soon as it was announced, precisely because of its many constitutional flaws and unacceptable features. Having smelled victory and now feeling betrayed and frustrated by the MOA’s rejection, the Moro Islamic Liberation Front starts making trouble, giving Ms Arroyo a good excuse to declare martial law.

Far-fetched? Past experience has shown that Ms Arroyo can be crafty, even devious, when her political survival is at stake. While it may be unkind to think that she can be so reckless and irresponsible, it is for her to disprove such suspicions. She can begin by firing her peace adviser and peace negotiators and repudiating the pact they tried to foist upon a worried people.

Editorial

* From the Philippine Daily Inquirer. First Posted 03:58:00 08/09/2008.

Passion For Reason: Sellout to MILF, or a setup for Charter change?

By Raul Pangalangan

MANILA, Philippines—That the proposed Bangsamoro Juridical Entity will have powers inconsistent with the Philippine Constitution—that much is obvious. Indeed, that is why it can be put into place only when it is approved by the people in a plebiscite.

The next issue is whether our negotiators can agree to submit such proposals to a plebiscite. In effect, they are merely proposing Charter change, which is allowed by the Constitution. To the extent that they promised to do so in an agreement, at worst they were giving conditional consent, subject to ratification by their principals.

The real problem then is whether we are simply being maneuvered into revising the Constitution, where the purported object is to engage our Muslim brethren but the hidden agenda is to enable Gloria Macapagal-Arroyo to remain in office beyond 2010. Thus seen, the proposed agreement is the cleverest maneuver. Charter change, despite several fits and starts, couldn’t get off the ground and was finally junked by the Supreme Court. Now suddenly it enlists the cause of Muslim self-determination in Mindanao and—voila!—the lost cause gains new adherents and builds fresh momentum.

The incompatibilities with the Constitution are legion. One, the 1987 Constitution uses the term “autonomous region in Muslim Mindanao” while the pact uses the term “Bangsamoro Juridical Entity” covering a much larger area. The term is at best amorphous, at worst evasive.

“Juridical Entity” is the most generic lawyer-talk for any legal body vested with rights and powers, of which the most pedestrian example is the corporation. Avoiding the term “autonomous region in Muslim Mindanao” is understandable. One, that name is already being used (that’s what the ARMM stands for) and it will only confuse people. Two, to say, for instance, “Expanded ARMM” might only exacerbate political passions on either of the battlefields. And three, given that the MILF is a rebel group, understandably they would steer clear of any implicit submission to the Constitution of the enemy.

What I wonder about is: Sure, let’s use another name, but why the bland neutral sounding “Juridical Entity”? The reason, I venture, is that any other term is too loaded for either side. “Bangsamoro State”? As if we couldn’t even be more hysterical than we are right now, as in “Arroyo became president to preside over the dismemberment of the Republic.” “Bangsamoro Region”? Well, maybe it’s the MILF’s turn to be outraged, as in “My uncle fought in a war, and all he got for me was this T-shirt!”

Two, the agreement, to its credit, uses the concept of “ancestral domain” to characterize the Bangsamoro people’s right to their territory and its resources. Ancestral domain is a claim reserved for what international law calls “indigenous peoples” (or IPs) and what our Constitution calls “indigenous cultural communities.” The very first lines of the agreement say that the Bangsamoro people includes “all Moros and all indigenous peoples of Mindanao.” For sure, there are genuine IPs in Mindanao, and they are certainly entitled to their ancestral domains, but Muslim Filipinos might be difficult to call as IPs, unless we classify Islam as an indigenous religion. My guess is that this is the most acceptable and least provocative of concepts. The alternatives lie on either extreme: on one hand, the “Bangsamoro peoples’ right to self-determination” (incendiary language for Manila) and, on the other, the Article 27 nondiscrimination rights of “ethnic, religious or linguistic minorities” (too mild for the MILF, understandably, given several centuries’ history of exclusion and dispossession).

Third, the agreement, again rather creatively, extends ancestral domain claims to maritime zones, and adopts the language of the Law of the Sea. At this point, we sail into stormy waters. Control over internal waters (like lakes and rivers) and the territorial sea (in international law, a band of sea within 12 nautical miles around the coastline) is vested in sovereigns, and our Juridical Entity is starting to appear like a state!

Finally, the Constitution lists only nine items that may be devolved to the autonomous region, and says that any powers not delegated are deemed retained by the national government. Among those reserved powers are foreign relations and finance. Contrast that to the powers of the Juridical Entity: “to enter into any economic cooperation and trade relations with foreign countries”; “open trade missions in foreign countries”; the right to “participat[e] in [Philippine official missions and delegations] in international meetings …, e.g. ASEAN meetings and … the United Nations”; and develop its own “financial and banking” institutions.

I agree with lawyer and peace activist Soliman Santos, who published his master’s thesis in Melbourne, “The Moro Islamic Challenge: Constitutional Rethinking,” that constitutional reform is a legitimate enterprise, especially when warring groups talk peace. “To seek constitutional change (e.g., a shift to federalism) has not been usually treated as unconstitutional, except it seems when it has to do with the Moro question.”

But equally legitimate are our concerns about the bona fides of both sides to the agreement. The pact includes profit-sharing arrangements on the expected windfall from natural resource exploitation. Anybody who knows the record of both Malacañang and of the ARMM in the able and honest disposition of the public wealth should be frightened. The pact requires constitutional change (deliberately, I venture) and we are rightly uneasy that the genuine and historic grievances of Muslim Filipinos are being used for the cheap workaday politics of greed and ambition.

* Philippine Daily Inquirer. First Posted 00:58:00 08/08/2008.