Aquino’s Gambit

Posted on April 29, 2014

By: Al Labita

The looming scenario looks dreadful.

Should President Aquino’s push to create a Moro state fizzle out, history would be unkind to him.

At the rate criticisms are heaped on his substate-for-peace deal with the separatist Moro Islamic Liberation Front (MILF), Aquino may likely end up on self-imposed exile in Malaysia, his chief backer in peace talks with the rebel group.

Since the deal was inked last month, it has drawn a barrage of flaks, likening it to a sellout of part of Philippine territory, apparently Aquino’s way to put an end to decades of a bloody secessionist movement in the resource-rich region, the country’s second largest island next to Luzon.

Questions on constitutionality are hounding the envisioned Bangsamoro (Islamic state). These center on the time-honored Constitutional ban on the creation of a state within a state, a provision Aquino appears to have glossed over in pushing the proposed law

What legal experts find revolting, however, are certain provisions virtually diminishing the government’s sovereign powers, relegating some of them to Bangsamoro.

Specifically, they refer to the creation of the Bangsamoro Transition Commission (BTC).Composed of government and MILF representatives, the BTC would work on amending the 1985 Philippine Constitution, the basic law of the land.

Ridiculous

“This is beyond ridiculous,” said Senator Miriam Santiago in a press statement. .“Say again?! Wh a – a – a – t?!”

Santiago, widely regarded as a Constitutional expert, is the first senator to call the so-called peace pact unconstitutional.Overall, she described the Malaysia-backed PH-MILF deal as an attempt to redefine the country’s sovereignty.

Like other legal experts, she questioned the provision in the agreement providing that the powers reserved to the central government will depend upon further negotiation with the MILF.

“Thus, the agreement diminishes the sovereignty of the Philippine government by listing what are the powers that the central government can retain,” the former regional trial court judge said.

In gist, the agreement not only reduces the sovereignty of the central government, but also provides that in the future, such sovereign powers as have been reserved may be further increased,provided the Bangsamoro agrees.

Replacing ARMM

“It will therefore be the Bangsamoro which will determine what should be the remaining sovereign powers of the central government,” Santiago, a member of the International Court of Justice, said.

Bangsamoro, planned to be a new region with wider political and economic powers, will replace the graft-ridden Autonomous Region in Muslim Mindanao (ARMM).

Santiago, chairperson of the Senate committee on constitutional amendments, hinted that she will not support the proposed Bangsamoro Basic Law which, if passed in Congress, will be subject to a plebiscite for approval or disapproval by the public.

“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,” Santiago said.

Some groups are poised to question soon the deal before the Supreme Court, despiteassurance by the government and MILF that the proposed Bangsamoro law would comply with the Constitution without the need to amend it.

But on closer look, the PH-MILF pact contained provisions similar to those of the earlier scuttled Memorandum of Agreement on Ancestral Domain (MOA-AD).

Supreme Court

That deal was supposed to be inked between the government of then President Arroyo and the MILF, but in October 2008, the Supreme Court struck it down as unconstitutional because it sought to establish a state within a sovereign state.

Under the MOA-AD, the existing five-province ARMM would have been expanded by more than 700 additional villages, subject to a plebiscite.

The proposed new entity then, to be called the Bangsamoro Juridical Entity, would have had its own police and military force and its own judicial system, among others.

“Both the MOA-AD and the Bangsamoro Agreement appear to facilitate thesecession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea,” Santiago warned.

Natural Resources

Although the Constitution provides that natural resources belong to the state, in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over them.

Similarly, the pact’s annex on power sharing gives Bangsamoro “exclusive powers,” defined as powers or matters over which authority and jurisdiction pertain to the Bangsamoro government.

The accord also provides that only the Bangsamoro shall be under a ministerial form of government, while the rest of the country will operate under a presidential form of government.

Pundits say that in allowing itself as signatory to the deal with the MILF, Malacanang may have infringed upon the powers of the legislative branch.

As it appears, the agreement should not have identified the executive as the “Philippine government.”

The reality is 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 talks with the MILF.

It may also be argued that the executive branch alone does not represent the Philippine Government, a fact that the MILF may have just shrugged off to speed up the signing of the accord for its own sake alone.

Simply put, the executive branch, in negotiating the agreement with the rebel group, had no power to bind the two other branches – legislative and judicial — to the controversial deal.

By all accounts, the executive “misrepresented” itself as the government, an error in judgment on Aquino’s part for which he will pay a costly political price – the likelihood of ending up in exile in neighboring Malaysia.