If we create a Bangsamoro “substate”, what constitutional provisions would need revising?

Now that the House of Representatives and the Senate have agreed in principle to adopt a bicameral constituent assembly as a mode of amending the Philippine Constitution (limited at this point to the “economic provisions”), it is a good time to think about charter change to accommodate the Moro right to self-determination. In my view, charter change to bring peace to Mindanao is, in the fullest sense of the word, an “economic provision”.

“Constitutional change” in relation to the negotiations Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) is an amorphous idea. It means everything, anything and nothing. Thus, we need a “bill of particulars”. Since the present draft of the MILF and the GPH are held in secret and not revealed to the public, we cannot say for sure what they contain. So if information is denied us, we speculate.

If we take the provisions of the “initialed yet unsigned” MOA-AD document as articulating a specific form of a “substate”, what are the specific constitutional provisions that would require amendment if we are to implement it?

I can make my own list but a list has been drawn already by the Philippine Supreme Court. It is a good and interesting list. From the perspective of Supreme Court Justice Antonio T. Carpio, he sees 35 constitutional provisions that need amendment in case the provisions of “initialed yet unsigned” MOA-AD (assuming it is a particular type of “substate”) are implemented. In his concurring opinion in the landmark case of Province of North Cotabato, he lists the following:

“Clearly, under the MOA-AD, the Executive branch assumes the mandatory obligation to amend the Constitution to conform to the MOA-AD. During the oral arguments, Atty. Sedfrey Candelaria admitted that the implementation of the MOA-AD requires “drastic changes” to the Constitution.[12] As directed by Justice Antonio T. Carpio, Atty. Candelaria undertook to submit to the Court a listing of all provisions in the Constitution that needed amendment to conform to the MOA-AD.[13] In their Memorandum dated 24 September 2008, respondents stated: “In compliance with the said directive, the constitutional provisions that may be affected, as relayed by Atty. Sedfrey Candelaria, are the following — Sections 1, 5, 18, 20 and 21 of Article X under Local Autonomy.”[14]This listing is grossly incomplete. A more thorough scrutiny shows that the “drastic changes” are amendments to the following provisions of the Constitution:

  1. Article 1 on the National Territory.[15] During the oral arguments, Atty. Sedfrey Candelaria stated that this provision would have to be amended to conform to the MOA-AD.[16]
  2. Section 3, Article II on the role of the Armed Forces of the Philippines as “protector of the people and the State.”[17] Under the MOA-AD, the AFP’s role is only to defend the BJE against external aggression.[18]
  3. Article III on the Bill of Rights. The MOA-AD does not state that the Bill of Rights will apply to the BJE. The MOA-AD refers only to “internationally recognized human rights instruments”[19] such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.
  4. Section 1, Article VI on the Legislative Department.[20] Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall “build, develop and maintain its own institutions” [21]like a legislature whose laws are not subordinate to laws passed by Congress.[22]
  5. Section 1, Article VII on executive power.[23] Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.[24]
  6. Section 16, Article VII on the President’s power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments.[25] All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE’s own basic law or constitution.
  7. Section 17, Article VII on the President’s control over all executive departments.[26] The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE.
  8. Section 18, Article VII on the President as “Commander-in-Chief of all armed forces of the Philippines.”[27] Under the MOA-AD, the President will not be the Commander-in-Chief of the BJE’s internal security force. The BJE’s internal security force will not be part of the AFP chain of command.
  9. Section 21, Article VII on the ratification of treaties and international agreements by the Senate.[28] This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.[29]
  10. Section 1, Article VIII on judicial power being vested in one Supreme Court.[30] Since the BJE will have “its own x x x judicial system,”[31] the BJE will also have its own Supreme Court.
  11. Section 2, Article VIII on the power of Congress to define and apportion the jurisdiction of lower courts.[32] Under the MOA-AD, Congress cannot prescribe the jurisdiction of BJE courts.
  12. Section 5(2), Article VIII on the power of the Supreme Court to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts.[33] Under the MOA-AD, the BJE will have its own judicial system. Decisions of BJE courts are not reviewable by the Supreme Court.
  13. Section 5(6), Article VII on the power of the Supreme Court to appoint allofficials and employees in the Judiciary.[34] This power will not apply to courts in the BJE.
  14. Section 6, Article VIII on the Supreme Court’s administrative supervision overall courts and their personnel.[35] Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.
  15. Section 9, Article VIII on the appointment by the President of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council.[36] This provision will not apply to courts in the BJE.
  16. Section 11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts.[37] This power will not apply to judges in the BJE.
  17. Section 1(1), Article IX-B on the power of the Civil Service Commission to administer the civil service.[38] Under the MOA-AD, the BJE will have “its ownx x x civil service[39] The Civil Service Commission will have no jurisdiction over the BJE’s civil service.
  18. Section 2(1), Article IX-C on the power of the Commission on Elections to enforce and administer all election laws.[40] Under the MOA-AD, the BJE will have “its own x x x electoral system.”[41] The Commission on Elections will have no jurisdiction over the BJE’s electoral system.
  19. Section 2(1), Article IX-D on the power of the Commission on Audit to examine and audit all subdivisions, agencies and instrumentalities of the Government.[42] Under the MOA-AD, the BJE can “build, develop and maintain its own institutions[43] without limit. The BJE can create its own audit authority. The Commission on Audit will have no jurisdiction over the BJE or its subdivisions, agencies or instrumentalities.
  20. Section 1, Article X on the political subdivisions of the Philippines.[44] A new political subdivision for the BJE will have to be created.
  21. Section 4, Article X on the power of the President to exercise general supervision over all local governments.[45] Under the MOA-AD, this provision will not apply to the BJE.
  22. Section 5, Article X subjecting the taxing power of local governments to limitations prescribed by Congress.[46] Under the MOA-AD, the BJE shall have “its own x x x legislation.”[47] The BJE’s taxing power will not be subject to limitations imposed by national law.
  23. Section 6, Article X on the “just share” of local government units in national taxes.[48] Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis-à-vis other local government units.
  24. Section 10, Article X on the alteration of boundaries of local government units, which requires a plebiscite “in the political units affected.”[49] Under paragraph 2(d) on Territory of the MOA-AD,[50] the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite “in the political units affected,” which should include all the barangays within a city, and all municipalities within a province.
  25. Section 15, Article X on the creation of autonomous regions within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines.[51] This will have to be revised since under the MOA-AD the BJE has all the attributes of a state.
  26. Section 16, Article X on the President’s power to exercise general supervision over autonomous regions.[52] This provision will not apply to the BJE, which is totally independent from the President’s supervision.
  27. Section 17, Article X which vests in the National Government residual powers, or those powers which are not granted by the Constitution or laws to autonomous regions.[53] This will not apply to the BJE.
  28. Section 18, Article X which requires that personal, family and property laws of autonomous regions shall be consistent with the Constitution and national laws.[54] This will not apply to the BJE which will have its own basic law or constitution.[55]
  29. Section 20, Article X on the legislative powers of autonomous regional assemblies whose laws are subject to the Constitution and national laws.[56]This provision will not apply to the BJE.
  30. Section 21, Article X on the preservation of peace and order within autonomous regions by the local police as provided in national laws.[57] Under the MOA-AD, the BJE shall have “its own x x x police[58] to preserve peace and order within the BJE.
  31. Section 2, Article XII on State ownership of all lands of the public domain and of all natural resources in the Philippines.[59] Under paragraph 3 on Concepts and Principles of the MOA-AD,[60]ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD,[61] the Bangsamoro people are the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples inMindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao , Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions.
  32. Section 9, Article XII on the establishment of an independent economic and planning agency headed by the President.[62] This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency.
  33. Section 20, Article XII on the establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas.[63] Under the MOA-AD, the BJE will have its own financial and banking authority.[64]
  34. Section 4, Article XVI on the maintenance of “a regular force necessary for the security of the State.”[65] This provision means there shall only be one“Armed Forces of the Philippines” under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have “its own x x x internal security force[66] which will not be under the command and control of the President.
  35. Section 5(6), Article XVI on the composition of the armed forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable.[67] This will not apply to the BJE’s internal security force whose personnel will come only from BJE areas.
  36. Section 6, Article XVI on the establishment of one police force which shall be national in scope under the administration and control of a national police commission.[68] The BJE will have “its own x x x police[69] which is aregional police force not administered or controlled by the National Police Commission.”
Of course, this view of Justice Carpio is premised on the idea that creating a substate would need a line-by-line, provision-by-provision type of retail amendment. But it is possible however to think also of other means of revising the Constitution without necessarily going into such a tedious manner. The whole Constitution as we know it today can be changed entirely. The Constitution is a living document. Its primary purpose is not to be permanent but to secure for its people peace, development and happiness.

MILF proposal is designed to keep the country intact, not dismembered

The MILF proposal is designed to make sure that the country is not dismembered. Its purpose is to make sure that national integrity and national territory is preserved. This is the clear common ground of both the Philippine Government and the MILF.

But we do miss the obvious. We miss the things right in front of our very noses. Why? Perhaps because precisely it is how our minds are designed. We are constantly on the look out for what is complex. We are enamored by complex solutions and the more complex articulation of these complex solutions. If a solution is too obvious, our minds dismiss it right away as way too simple to be of any value. If it is too obvious, it must not be that important or effective.

Why do miss the point that the MILF proposal seeks to preserve the national integrity and territory of the Philippines? Because the MILF use big, threatening words that immediately strike fear and anxiety in the hearts and minds of the super majority and which, in turn, is stoked and fanned by individuals and organizations that profit from the conflict in Mindanao. The word “substate”, for example, is a word that sounds like “state” and triggers fear of Muslim domination and rule. Judging by the reaction of people to the proposal, everyone has a strong opinion on it. My question: how many of the political pundits, commentators, op-ed writers, radio talk show hosts, politicians, government officials, “twitter” revolutionaries and the population at large have seen or read the details of this so-called “substate” proposal? None. Zero. Nil. Why? Because only the GPH negotiating panel has seen it. Yet despite the clear ignorance, many people have strong opinions on it.

Clearly, both the GPH and MILF panels need to rethink this policy of confidentiality. Why keep the initial documents (GPH’s “3+1” and MILF’s “substate” proposals) secret when it would benefit the negotiations if these were made public. If the parties continue to deprive the public of information about what these proposals really contain, the prejudices and the biases of the people will supply the details.

Lastly, negotiations they say is all about “trade-off” – you give up something valuable, important, an advantage, something that you possess dearly and the giving up of which diminishes you – all for a higher purpose. The MILF, based on their proposal, gave up its demand for independence and seeks a solution that corrects the imbalance of the political relationship between the Filipino and the Bangsamoro under one Philippine citizenship, one Philippine flag and one Philippine territory. They are seeking the exercise of genuine self-determination within the context of one Philippines. Giving up the demand for independence is risky for any revolutionary secessionist group as the demand for independence is a source of power, myth and mobilization. Such decision opens the organization to internal splits and thus weakens it in the long run.

What is not clear to me however in this initial exchange is what the Philippine Government, in its “3+1” proposal, gave up?

“Autonomy” in the eyes of GPH and MILF

The problem with big words like “autonomy” is that it can be broad enough to cover everything and anything and thus, is not a big help in trying to solve a problem like the internal armed conflict in Mindanao between the MILF and the Philippine Government. The logic has been that since “independence” and “integration” (being two extremes in a continuum of relations between peoples) are not on the table then there must be “common ground” in that space between the two which is then labeled as “autonomy”.

In these negotiations, “autonomy” has to be further defined in order to clarify the challenges ahead and to “close the gap”. Looking at the positions of the parties, the real boundary is still the Philippine Constitution and this is where the discussion of the parties should focus. The difference between what the MILF and the Government want is in the kind of “autonomy”. The Government is offering an autonomy that fits the present Philippine Constitution. The MILF, on the other hand, wants a set-up that is cannot be put in place without amending the Philippine Constitution. This is the reason for the present difficulties in the negotiations.

Perhaps the way to do it is to first discuss the features of the “autonomy” that will respond to the problems without any preconditions or prior limitations as to what can be discussed. No idea should be prohibited. To do this, the parties need to park the concept of the “Constitution” and proceed to design “autonomy” they seek. The Constitution can then be examined when the design is almost complete and in discussing the implementation of the design.

Amend the Constitution to accommodate Moro rights and aspirations

We need to amend the Constitution to accommodate Moro rights and aspirations. One of the blocks to a comprehensive political settlement with the MILF is the present Philippine Constitution (as currently designed and structured) which deprives the Bangsamoro people of their fundamental right to meaningful and effective self-determination. Thus, when the Government says that charter change is not a priority (although in the same breath, it says that peace is a priority), it is a cause for concern. It means that Government has not yet fully appreciated the reality that a viable political settlement requires, as a minimum, amending the present Constitution. It also means that the Government have other urgent issues on its mind, i.e. fighting corruption, eradicating poverty, achieving MDGs, etc. and peace in Mindanao is just one of those issues. Clearly, the challenge is not to set aside these equally vital concerns but to put the issue of peace negotiations with the MILF as a primary concern on the table together with these other concerns. Will the Philippines ever experience peace and development without solving the internal armed conflict in Mindanao?

Based on their history and public pronouncements, it is clear that the MILF will only sign an agreement that would radically alter and restructure the present unequal relationship between the Filipino people and the Bangsamoro people and that would require amending the Philippine Constitution. For them, a viable peace agreement would essentially require new arrangements that recognize the Bangsamoro people as a distinct, separate yet equal to the Filipino people, acknowledge historical injustice, allow the Bangsamoro people to freely determine their political status, pursue their political, economic, social and cultural goals, and manage and dispose natural resources within their domains while, at the same time, being citizens of the Philippines. All of these are not be possible under the present Constitutional setup. We need then to amend the Constitution to allow and accommodate new “rule sets”. To be not open to amending the Constitution is to close the possibility of signing a peace agreement with the MILF.

While it is true that the issue of charter change is a Pandora’s box that could potentially set free other “misfortunes”, i.e. unnecessary distraction, shift to parliamentary system, an opportunity for political adversaries to consolidate and return to power, opening up foreign ownership of natural resources and wealth, allow foreign military bases, etc., But that would be telling half of the story, opening Pandora’s box of charter change will also set free hope – hope for peace in Mindanao, peace in our land. ###

Negotiating self-determination

In negotiating self-determination agreements, there will be a need to mint new words to capture new arrangements. The traditional logic is to think of a big word like “autonomy”, “self-rule” or “self-determination” and then pattern the agreement to hew closely to these boxes of “concepts”. The task would then be to cut off or reject anything that does not belong to the box of “autonomy” or “self-rule”. I am reminded of the exercise that my niece, who is in Grade 1, is “forced” to do: select the one that is unlike the other. Well, this is might be harmless when one is in Grade 1 but the consequences are dire when this kind of thinking is extended to peace negotiations.

Do the reverse. First describe and agree on the arrangements, structures, processes that you want to happen and then name it. Design and creation is the first act. Naming is the second act.

When an agreement is made on the design and it is time to name it, the parties need not be limited to the usual words which are inadequate anyway – being formed in a state of relative ignorance or in a different context. The parties need to invent new words to capture the essence of new design.

Thus, in the future, instead of “autonomy” (which has a lot of unnecessary baggage) or “substate” (which evokes fear of being a heartbeat away from becoming an independent State) it will be a must for the parties to use new words, words like “co-governance”, “co-determination”, “self-reliance arrangements”, “parity government”, “mutual governance”, “shared governance”, “freedom arrangement”, “shared power-shared responsibilities”, etc.

Imagination is the only limit and the lack of it being the greater tragedy.

Open the doors of the Constitution

The way forward for the peace negotiations between the MILF and Government is through the consideration of options and alternatives beyond the contemplation of the present 1987 Philippine Constitution.

Past and present Government offers, from Cory Aquino to Gloria Arroyo and even to the recent submission by the Government panel, i.e. enhanced ARMM, integration, massive economic development, cultural-historical acknowledgment, were and are premised on the assumption that the values and interests of the Moros can be accommodated within the Philippine Constitution. The MILF has consistently responded to these proposals with a NO.

If negotiations (and not force) is the route to peace, then Philippine Government will have to open its doors to solutions beyond the present Constitution. Government cannot avoid it. There is a universe of possibilities waiting to be discovered and all that is required is the courage and the compassion to open the windows and for Government to create its aggiornamento.

2 big elephants in the GPH-MILF peace talks

Dominant idea.

The parties can profit if both of them discuss the “dominant idea” that organizes their thinking on the matter. The dominant idea, of course, has been called a lot of names in the past, i.e. the big elephant in the room, the black sheep sibling whom nobody introduces to friends, the glass ceiling, the invisible line, etc. The dominant idea is the idea, usually unexamined and uncritically accepted as a given, that organizes everyone’s thinking and perception- how they characterize the problem and the solutions that they propose. The dominant idea is about how participants look at things.

What is the dominant idea for both the Government and the MILF? What is the idea that lies at the bottom of their proposals? The dominant idea is the same for both, albeit viewed from different perspectives: The 1987 Philippine Constitution.

The Government’s big elephant: No amendment to the 1987 Philippine Constitution

For the Government (and it might be a good thing for them to lay bare their reasons one of these days), a peace agreement with the MILF is possible as long as it does not include amending the 1987 Philippine Constitution. The present Constitution provides the limits (as far as substance is concerned) of what they can offer the MILF. It is not hard to see this. The Eleven Characteristics of the Government Proposal is replete with allusions to said limits:

“The proposal works with what is available and doable within the next few years.

“The proposal shows government’s awareness of the extent of the legal and political powers of the President.  However, it is also a political document that is intended to cause public discussion that can support future debates, when it becomes necessary, in other constitutional forums such as the legislature and the courts.

“This proposal takes this history into consideration but avoids simplification of the solutions for a complex and myriad problem.  The Autonomous Region for Muslim Mindanao (ARMM) may have been a failed experiment in the past; but the current proposal is based on a more balanced understanding of whether its past failure was due to its structure and the systems that it spawned or the quality of the past national or regional leadership.

More importantly, the silence or the lack of statement by the Philippine Government on the possibility of amending the 1987 Philippine Constitution, when such has been a central issue of the negotiations for the past 14 years, is most eloquent proof that the 1987 Philippine Constitution (or making sure that there is no talk of amending it) is a dominant idea.

Making sure that the Philippine Constitution will not be amended is the big elephant in Government’s thinking. Reading the Eleven Characteristics, one gets the sense that everything is being done in good faith to respond to the aspirations of the MILF as long as it is, in substance, within the 1987 Philippine Constitution. In fact, there seems to be lack of opening even in the possibility of discussing charter change.

The MILF’s big elephant: Amend the 1987 Philippine Constitution

For the MILF, an essential element of any future agreement should include amending the 1987 Philippine Constitution. This has been a consistent message since the beginning. The MILF have rejected from the start any and all Government proposal that seeks to implement only what is allowed by present laws or by the 1987 Philippine Constitution, including an enhanced and better functioning ARMM. The succession of Chief Negotiators can attest to this consistency: Dureza, Ermita, Afable, Garcia, and Seguis.

The 11 General Features of the MILF Comprehensive Compact Draft is also replete with proof that they are looking at nothing short of an arrangement that necessarily implies amending the 1987 Philippine Constitution:

“The MILF proposal provides for an “asymmetrical state-substate relationships, wherein powers of the central government and state government are clearly stated, aside from those powers they jointly exercise, which are also defined in this draft.

“It is a formula of peace through the exhaustion of all democratic remedies to solve a home-grown sovereignty-based conflict, which, following the same approach, other similar global sovereignty-based conflicts have also been successfully resolved, such as in South Sudan and Northern Ireland.

“It is a proposal to correct and solve the one-sidedness or imbalance of totality of relationship between Filipinos and Moros, the former continue to be rulers and sole decision-makers, while the latter as mere second class citizens without any role in national decision-making.

The Two Elephants: Constitution and Independence

Actually there were two big elephants in the room when the negotiations started and these two blocked the negotiations. Negotiations could not even start at all with those 2 big elephants present in the room.  Thus, the need to park first the 2 big elephants in order for negotiations to begin. The 2 big elephants were: the 1987 Philippine Constitution and Independence.

Both parties agreed, for purposes of peace talks, not mention the two big elephants so that negotiations can begin. And negotiations did begin, flourished and progressed. But I guess since the negotiations is nearing its completion and the discussion is now on the substantive matters, the parties need to revisit the 2 big elephants.

To be fair, the MILF has already dealt with the dominant idea, the big elephant called Independence and in its place, aspires for the highest form of autonomy under Philippine citizenship. The question now is what to do with the other elephant called 1987 Philippine Constitution? Philippine Government cannot continue to ignore it. An answer is needed.