‘Bangsamoro deal illegal, creates substate’

Ayee Macaraig

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‘Bangsamoro deal illegal, creates substate’
Senator Santiago, a constitutional law expert, says the peace pact creates the Bangsamoro as a substate instead of a mere autonomous region, and 'appears to facilitate' its secession

MANILA, Philippines – Senator Miriam Defensor Santiago voiced her objection to the final peace agreement between the government and the Moro Islamic Liberation Front (MILF), calling it unconstitutional. 

Just days after the historic signing of the peace accord, Santiago said that the deal creates the Bangsamoro as a substate instead of a mere autonomous region, and “appears to facilitate” its secession. 

In a graduation speech at the Gordon College in Olongapo City, the senator said that the agreement violates the principle of constitutional supremacy and diminishes the government’s sovereignty.

Santiago is the first senator to call the deal unconstitutional, ahead of congressional debates on the Bangsamoro, a region with wider political and economic powers that will replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro Transition Commission (BTC) is the body crafting the bill creating the region.

Santiago said she was “incensed” by the provision in the agreement specifying the following function of the BTC: “To work on the proposals to amend the Philippine Constitution for the purpose of amending and enriching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.”

“Say again?!  Wh a – a – a – t?! The Agreement embodies the consent of the executive branch to amend the Philippine Constitution in order to accommodate the Agreement!  This is beyond ridiculous,” said Santiago on Wednesday, April 2, in a copy of her speech that her office released.

The constitutional law expert said that the Bangsamoro agreement also “attempts to redefine the sovereignty” of the Philippines.

“The Philippine Constitution provides for the powers of the state. The Constitution is supreme. The Agreement reserves to the central government the exercise of so-called ‘reserved powers,’ which are described as powers ‘retained by the central government.’ Thus, the Agreement diminishes the sovereignty of the Philippine government by listing what are the powers that the central government can retain.”

Santiago also questioned the provision in the agreement providing that the powers reserved to the central government will depend upon further negotiation. She cited the following provision: “This list is without prejudice to additional powers that may be agreed upon by the parties.”

The senator then said, “Thus, 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.  It will therefore be the Bangsamoro which will determine what should be the remaining sovereign powers of the central government.”

The chairperson of the Senate committee on constitutional amendments hinted that she will not support the Bangsamoro Basic Law, which will formally create the Bangsamoro.

“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.

She added that there are groups that will question the deal before the Supreme Court this week or next week. 

Santiago’s statement comes after Senate President Franklin Drilon and the government and MILF peace panels reiterated their assurance that the Bangsamoro law will comply with the Constitution, and will not require charter change.

The two panels signed the Comprehensive Agreement on the Bangsamoro on March 27 aimed at ending decades of armed conflict in Mindanao.

‘Same as illegal MOA-AD’

Santiago said that after making a preliminary study of the agreement, she found that it has provisions similar to those of the Memorandum of Agreement on Ancestral Domain (MOA-AD), which the Supreme Court declared unconstitutional during the Arroyo administration. The ruling then triggered fresh fighting in parts of Mindanao.

“Both the MOA-AD and the Bangsamoro Agreement appear to facilitate the secession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea,” Santiago said without elaborating. 

Santiago said the following provisions of the Bangsamoro agreement show that the region will be a substate:

  • The powers of the central government shall be determined by the Agreement, thus turning Bangsamoro into a substate.
  • The Autonomous Region for Muslim Mindanao, which is provided for by the Constitution, will be abolished by mere agreement with the MILF, which is not surprising if you consider that the Bangsamoro has become a substate.
  • Allocation to the Bangsamoro of all powers exercised by the national government over local government units.
  • Although the Constitution provides that natural resources belong to the state, in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources.
  • The Annex on Power Sharing gives to Bangsamoro so-called “exclusive powers,” which is defined as a tautology, as “powers or matters over which authority and jurisdiction pertain to the Bangsamoro government.”
  • 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.
  • The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the Transition Commission which at present is reportedly drafting the Bangsamoro Basic Law.  One of the functions of the Transition Commission is as follows: “To work on proposals to amend the Philippine Constitution for the purpose of amending and enriching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.”

‘Executive infringing on Congress power’

Santiago also said the executive branch infringed upon the powers of the legislative branch in negotiating the agreement with the MILF. She said the agreement should not have identified the executive as the “Philippine government.”

“The reality is that only one of the 3 branches of government – the executive branch, consisting of the Office of the President acting through a peace panel of negotiators – represented the government.  The executive branch alone does not represent the Philippine Government.  Thus, the executive branch, in negotiating the Agreement had no power to bind the two other branches – legislative and judicial.”

Santiago said the executive “misrepresented” itself as the government. “Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a substate.”

Panel head proposes meeting with Santiago

Government chief negotiator Miriam Coronel-Ferrer said the peace panel would rather schedule a meeting with Santiago rather than address her criticisms in bits and pieces. 

“We all know that the honorable senator is a constitutional expert. We appreciate her insights and opinions,” Ferrer said.

“Perhaps it would be more ideal if we can sit down and discuss the different comments she has made and have that kind of dialogue where we can extensively talk about the substance of the documents. We are requesting a meeting with her and other legislators who may wish to engage us in that kind of discussion,” Ferrer said.

Ferrer maintains that the Bangsamoro peace agreement is constitutional and does not create a substate. 

“Nothing in the process talks about constitutional change. The only reference is for the Bangsamoro Transition Commission – one of their functions is to submit recommendations for constitutional amendments,” Ferrer said. 

“If you see the roadmap, it follows the regular legislative process. A new organic act for the Bangsamoro will be crafted – a process precisely contemplated in the Constitution. And the President has made it clear – we should do this without the need for constitutional change,” Ferrer said. 

Ferrer also noted the term “substate” is not mentioned in the peace agreement. 

“You will not find the word substate in any of documents. What you have are the features of the autonomous region, all of these are guided by the powers under the Constitution,” she said. – with a report from Angela Casauay/Rappler.com


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