MANILA, Philippines - The initial peace deal between the government and the Moro Islamic Liberation Front (MILF) is written in "slippery language" and its "missing annexes" raise constitutional issues.
This was raised by Raul Pangalangan, former dean of the University of the Philippines College of Law, in his Inquirer column on October 18. But Benedicto Bacani, former law dean of Notre dame University in Cotabato City and a lawyer himself, sought to clarify these concerns in an open letter to Pangalangan. (Editor's note: We erroneously wrote earlier that Bacani is a member of the government peace panel. We regret the error.)
Pangalangan criticized the “slippery language” of the deal's provisions on two aspects: the auditing of foreign funds, and the power of the proposed Bangsamoro entity to “block grants and subsidies from the Central Government.” (Pangalangan was named Inquirer publisher today, Monday, October 22.)
He also said that the Framework Agreement refers to annexes that do not exist, noting that this same situation was the main basis used by the Supreme Court in declaring as unconstitutional the Memorandum of Agreement on Ancestral Domain (MOA-Ad) between the government and the MILF in 2008.
“When the Framework was first published online, I thought the missing annexes would soon follow. After all, the Supreme Court struck down the Memorandum of Agreement on Ancestral Domain in 2008 because, among other grounds, it lacked transparency. But the Framework signing has come and gone, and it is clear that those annexes still do not exist,” Pangalanan wrote.
Section III (1) of the agreement mentions an “Annex on Power-sharing” between the Central Government and the Bangsamoro Government. Section IV (6) mentions an “Annex on Wealth Sharing” while Section VII (2) notes an “Annex on Transitional Arrangements and Modalities” and Section VIII (9) includes an Annex on Normalization.
But Bacani explained that the Framework Agreement and the annexes are two separate sets of documents and the framework only serves as a guide for the succeeding details that will help form the more comprehensive agreement targeted to be completed at the end of the year.
“It is therefore premature to speak of consent at this stage,” he said.
The head of the government peace panel is Marvic Leonen, who, like Pangalangan, had also served as dean of the UP College of Law.
Although Bacani said he agreed with Pangalangan that “unrestrained hype” promoting the Framework Agreement as already a done deal might have a negative impact on the peace process, he sought to correct some misconceptions raised by Pangalangan’s column.
“I never doubted your commitment to Mindanao peace from all the fora and meals we shared where we had the opportunity to exchange our views on this issue. But I feel compelled to correct misconceptions that would have been created by some points you raised in your column,” Bacani wrote in his blog.
Pangalangan also criticized the agreement’s “slippery language” concerning the Commission on Audit’s (COA) jurisdiction over Bangsamoro funds generated from “external sources,” saying that the provision implies that the Bangsamoro region can have access to foreign funds even without having to undergo an independent audit.
Section IV (5) of the agreement states: "The Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This shall be without prejudice to the power, authority and duty of the national Commission on Audit to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality, including GOCCs (Government-owned and controlled corporations)."
“The Agreement then mentions the COA’s power but limited only to funds held by “any government instrumentality, including GOCCs,” Pangalangan said.
Citing examples of auditing lapses in the Autonomous Region in Muslim Mindanao (ARMM), such as the failure to complete projects out of the 850 million peso-budget allocated for infrastructure projects in ARMM in 2010, Pangalangan warned of the dangers of the provision.
“In sum, the Bangsamoro gets a free pass to the expected bonanza from gung-ho foreign sponsors and, if the negotiators have their way, without even having to amend the Philippine Constitution,” Pangalangan wrote.
Such a set-up could even be unconstitutional, according to Pangalangan, as the Philippine Constitution says that the COA shall have the power to audit “all accounts [of] the Government, or any of its subdivisions, agencies, or instrumentalities” and “[n]o law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever.”
Bacani however said he believes the provision does not strip the COA's powers over foreign funds, explaining that the word “government instrumentality” as used in the Framework Agreement is but a generic term that includes all government agencies in the Bangsamoro.
“The annexes should be able to clarify this provision in the framework but I see an opening for two complementary accounting or auditing systems in the Bangsamoro— one by the COA and the other by a regional oversight designed to promote accountability for locally generated and foreign funds consistent with Bangsamoro culture and values system. An example perhaps is an auditing system that invokes the Islamic tenets of accountability and honesty in the affairs of government,” he said.
Bacani also noted that Pangalangan completely misread the provisions on “block grants,” which Pangalanan thought to mean that the Bangsamoro will have the power to reject grants and subsidies from the Central Government.
Section IV (7) defines the Bangsamoro’s fiscal autonomy as “the generation and budgeting of the Bangsamoro’s own sources of revenue, its share of the internal revenue taxes and block grants and subsidies remitted to it by the central government or any donor."
Bacani clarified that the provision on “block grants” does not mean that the Bangsamoro has the power to decline grants and subsidies from the national government but instead refers to “grants in block” appropriated by Congress to the ARMM annually. - Rappler.com
Read the full text of the Framework Agreement between the Philippine government and the Moro Islamic Liberation Front (MILF) on the establishment of the new autonomous political entity, Bangsamoro, that will replace the Autonomous Region in Muslim Mindanao (ARMM).
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