VIEW: Trade-offs in the Bangsamoro pact

Manila (Philippine Daily Inquirer/ANN) - The Moro Islamic Liberation Front (MILF) swamped the Philippine government negotiation panel in the talks over the scope of the autonomy of the Bangsamoro substate, with comprehensive demands on power-sharing, as though the MILF was dictating the terms of the political settlement of peace in Mindanao.

A close reading of the paper presented by Profesoor Miriam Coronel Ferrer on the talks left me wondering whether the MILF was negotiating from a position of strength or deemed itself the victor in the Moro secessionist wars for nearly 40 years.

The Moro wars in the Philippines have been a protracted guerrilla war stalemate that produced no decisive victory for either side. The outcome of the negotiations between the government and the MILF-the Framework Agreement on the Bangsamoro-was determined more by the costs of the conflict on the people of Mindanao, the economic costs to the nation, and the dislocation wrought on political stability than by the toll on the lives of combatants. From this context, we are able to make sense of the Framework Agreement on the Bangsamoro when examining the concessions made by either side in the negotiations.

According to the paper under review, by the 31st exploratory talks in September 2012 only a few items remained unresolved. Among the major issues were those involving internal security or policing and territory.

"The MILF had wanted their list of core areas for the NPE (new political entity) 'delivered'-that is, without need for a plebiscite seeking concurrence for the affected constituents," the paper said. "They wanted to have jurisdiction over internal security or the police force. Both demands were rejected by the government panel as blatantly unconstitutional: The 1987 Constitution required a plebiscite to define the areas for inclusion in an autonomous region and stipulated a single civilian police force."

The government panel was confounded by "a novel feature" of the MILF proposal for a ministerial form of government for the Bangsamoro entity under which the chief minister would be elected by the Assembly. The paper said that, currently, the governor of the Autonomous Region in Muslim Mindanao (ARMM), vice governor and members of the Regional Legislative Assembly are directly elected based on plurality.

This innovation appeared to be a new political beast to the government panel, whose members are long used to the forms of the unitary presidential system. The MILF pitched a model cut out of the European parliamentary system, under which elected parliamentary deputies elect the prime minister. This was too much of a departure from the norms of the presidential system, and the panel had to refer it to President Benigno Aquino.

According to the paper, the president "was open to the idea but wanted to ensure its constitutionality." The president asked the Department of Justice for an opinion. The Department of Justice "at first questioned but later upheld the viability of the proposal."

The panel also consulted constitutional experts, including former Supreme Court justices. They scrutinised the constitutional provision stating that "there shall be an elected executive and legislative for the autonomous government".

The paper said: "Noting that the executive is likewise elected in a ministerial form, albeit indirectly, the government was convinced it stood on constitutional grounds and agreed to this MILF proposal."

This departure from the existing electoral practices in electing officials from top to bottom, except during the Marcos dictatorship, is unexplored territory full of land mines that can explode in the face of Aquino's experiment on a political settlement to buy peace with the MILF.

This arrangement opened the way for possible challenges to its constitutionality before the Supreme Court, the jealous guardian of the nation's sovereignty. Let us not forget that the high court struck down in 2008 as unconstitutional the Memorandum of Agreement on Ancestral Domain (MOA-AD), that President Gloria Arroyo's administration was set to sign with the MILF. The high court emphatically declared that the MOA-AD was a flagrant act of "dismembering" the republic.

Not content with this concession, the MILF, however, pressed the demand that it be given jurisdiction over the electoral exercise in the Bangsamoro. According to the Ferrer paper, the MILF argued that "this should be part of their autonomous rights and that since terms are not fixed, the Commission on Elections might not be supportive of irregular electoral calendars".

The government panel countered that "while the Bangsamoro assembly will legislate the specifics of their electoral rules including scheduling electrons as needed, the administration of the electoral process cannot but be under the independent constitutional body that is the Comelec".

Another contentious concern was the relationship between the local government units and the Bangsamoro entity under which the former would be placed. For the most part, the MILF "focused on the nature of the autonomous relationship with the central government".

According to the paper, the MILF argued that the current ARMM has no effective control of local government units. It pointed out that LGUs in fact enjoy more funds from their Internal Revenue Allotment, which is their guaranteed income source. On the other hand, the regional government has to haggle for its annual appropriations, the bulk of which goes to personnel.

The government panel "insisted that rights already devolved to the LGUs under the 1991 Local Government Code should not be diminished." It warned that a "radical overhaul of this system will cause insecurities in the ranks of the LGU power-holders and create opposition to the peace agreement."

(To be concluded)

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