UNSOLICITED LEGAL MEMO FOR THE TRANSITION COMMISSION & THE GPH-MILF PEACE PANELS
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An unsolicited legal memo for the Transition Commission and the GPH and MILF peace panels on the Transition Commission's work on constitutional amendments
Naga City, 24 March 2013
The Annex on Transitional Arrangements and Modalities (ATAM) provides the following as regards what is generally seen as the secondary function of the Transition Commission (TC):
I.D.Work on Constitutional Amendments
The TC shall work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreement of the Parties whenever necessary without derogating from any prior peace agreements. (underscorings supplied)
The same pareho provision is found in the ATAM’s II.6.[d] as regards what “procedures shall be observed… in relation to the TC’s task of working on the drafting of the Basic Law and the proposals to amend the Philippine Constitution.” It is also the basically same pareho provision found in VII.4.b under part VII on “Transition and Implementation” of the source 2012 Framework Agreement on the Bangsamoro (FAB).
But it is not the same corresponding provision of Sec. 3.b among the “Functions” of the TC under Executive Order No. 120 (EO 120) constituting the TC:
Whenever necessary, to recommend to Congress or the people proposed amendments to the 1987 Constitution. (underscorings supplied)
This provision is less restricted than that of the FAB and its ATAM. It only mentions “whenever necessary,” it does not mention “for the purpose of accommodating and entrenching in the Constitution the agreement of the Parties” nor does it mention “without derogating from any prior peace agreements.” Which should then prevail as governing provision for the TC’s work on constitutional amendments – EO 120, Sec. 3.b or FAB, VII.4.b and its ATAM, I.D. & II.6.[d]?
In addition, EO 120, Sec. 3.b mentions what would mainly come under what the ATAM refers to as “procedures [that] shall be observed… in relation to the TC’s task of working on… the proposals to amend the Philippine Constitution,” namely: “to recommend to Congress or the people proposed amendments.” (underscorings supplied) This reflects the procedure for proposing amendments to the Philippine Constitution before their adoption by a constituent assembly (either Congress itself or a constitutional convention) or a people’s initiative, all subject to ratification by a majority of the electorate in a plebiscite called for the purpose (per Art. XVII on “Amendments or Revisions” of the Constitution).
The ATAM speaks of what “procedures shall be observed… in relation to the TC’s task of working on the drafting of the Basic Law and the proposals to amend the Philippine Constitution” but actually lays down the road map only for the Basic Law track but not for the Constitutional Amendments track. The new Bangsamoro ministerial government to be established with the qualification into office in 2016 of its duly elected officials, as outlined in the ATAM, is seen as a government to be established under the Basic Law, not one established under constitutional amendments. One would wonder therefore: where do the necessary proposed constitutional amendments that the TC could recommend come in?
Let’s go back to the above-quoted and underscored provision of the FAB, VII.4.b and its ATAM, I.D. & II.6.[d] on the TC’s work on constitutional amendments, especially if this provision rather than EO 120, Sec. 3.b would be the governing provision for that work. The key words “accommodating and entrenching” as well as “the agreement of the Parties” and “prior peace agreements” have to be clarified and teased out further. “Accomodating” connotes allowing something that is presently not allowed under the existing constitutional framework. “Entrenching” connotes putting something on the level of the Constitution so as to strengthen its legal position to the highest level, such that it cannot be defeated by mere statutory laws or acts of Congress, much less by new executive orders of any new presidential administration. “The agreement [singular] of the parties” presumably refers to the FAB or the expected comprehensive agreement that ensues from it. “Prior peace agreements [plural]” presumably refer to all those which preceded the FAB or the comprehensive agreement.
It may however be asked: is there any “agreement of the Parties,” including “prior peace agreements,” that are outside or not allowed under the existing constitutional framework such that they have to be “accommodated” in the Constitution? If we take the FAB, which is the current governing framework to solve the Bangsamoro problem, the GPH will definitely say that it is within the existing constitutional framework, “inclusive of the flexibilities therein” but still inside that box. Former GPH peace panel chair Marvic Leonen called it “thinking out of the box, but within the Constitution.” The GPH peace panel, under the mandate and instructions given it by President Aquino, could enter only into agreements which in its view were within the existing constitutional framework. Of course, for the GPH, it is its Supreme Court (SC) which would have the final say, in [a] proper case[s] filed, on the [un]constitutionality of a peace agreement. Several such cases against the FAB have been filed in the SC, and more are expected to be filed against the expected comprehensive agreement, but it remains to be seen what the SC ruling would be.
If we take the 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD), this is considered outside the box of the existing constitutional framework, per conservative reading of the SC Decision in the MOA-AD case, Province of North Cotabato vs. GRP Peace Panel (568 SCRA 402). But as the MOA-AD was “declared CONTRARY TO LAW AND THE CONSTITUTION,” the GPH definitely considers it null and void, and not a “prior peace agreement,” in the first place not having been signed but only initialed, thus not even consummated as an agreement.
IF there is no “agreement of the Parties,” particularly the FAB or the expected comprehensive agreement that ensues from it, that is outside or not allowed under the existing constitutional framework, what then is there still to accommodate in the Constitution when it is already allowed as it is? Accommodation in the Constitution is only “necessary” for something outside that box, not for something already within its existing framework. And to entrench something that is already within the existing constitutional framework would not give any value added. On the contrary, it will make out-of-the box autonomous arrangements more difficult to allow. The MILF’s concern for entrenchment is understandable, i.e. having a constitutional guarantee for non-reversal by Congress or a new President of the peace agreement/s. But why entrench these further if they are anyway already within the existing constitutional framework? Doing so would only make much more difficult the accommodation of a qualitatively higher degree of self-governance than that provided by the existing constitutional provisions on autonomous regions (Art. X, Secs. 15-21).
It is these same pareho existing constitutional provisions on autonomous regions – and not just Republic Act No. 9054 (RA 9054) – which underpin what is already mutually agreed to be the “failed experiment” that is the Autonomous Region in Muslim Mindanao (ARMM). The ARMM that should be “replaced” is not only the ARMM under RA 9054 but also the ARMM under the existing constitutional provisions on autonomous regions. These provisions are themselves only part of the broader existing constitutional framework which in turn underpins the “unacceptable status quo” of a highly-centralized national unitary system of government that impinges qualitatively on the Bangsamoro people’s right of self-determination. There can be no truly “asymmetric relationship of the Central Government with the Bangsamoro Government” under this existing constitutional framework. “Asymmetric” is a matter of substance, not semantics. As long as the existing constitutional framework is not changed in order to accommodate a qualitatively higher degree of Bangsamoro self-determination, then there will be no truly “new autonomous political entity.”
Whatever power-sharing and wealth-sharing arrangements are agreed in the FAB and its Annexes, these will all be -- as far as the GPH peace panel views it and is ensuring it -- within the existing constitutional framework, which the GPH is certainly more familiar with than is the MILF (which must thus study well its implications). And because this framework consists not only of constitutional provisions, like those on autonomous regions, but also its established supporting jurisprudence, those power- and wealth-sharing arrangements arising from the FAB are subject to such existing constitutional jurisprudence. This would most notably include the relatively recent SC Decision in Kida vs. Senate (G.R. No. 196271, October 18, 2011) which deals, among others, with: [1] the autonomous region as a local government; [2] the autonomous region’s relationship to the national government (including to the Constitution and its supporting jurisprudence); [3] the extent of powers of autonomous regions; and [4] the ARMM as the constitutionally-mandated solution of the Bangsamoro problem. Only a qualitative change in the existing constitutional provisions on autonomous regions would be able to disengage or disentangle the “new autonomous political entity” from such supporting constitutional jurisprudence on autonomous regions.
All told, this is why the TC’s secondary function of drafting the proposals to amend the Philippine Constitution is just as strategically important as, if not more so than, its primary function of drafting the Basic Law. So, there should be a road map not only for the Basic Law track but also for the Constitutional Amendments track. Along with these, there should be a road map too for achieving Bangsamoro unity (starting with unity of the MILF-FAB track and the MNLF-1996 FPA track) as a goal itself of the peace process and no less than part of solving the Bangsamoro problem. Understandably, both the GPH and the MILF have calculated that the Basic Law track would be more feasible to achieve with President Aquino’s term up to 2016 and that it would be better to have the Basic Law in place by then as a building block for moving forward rather than having nothing in place and to show. “One step at a time,” as the two current panel chairs often put it.
But even the best of road maps, like that of the FAB, cannot anticipate everything – like the most recent Sabah crisis and its fallout on the peace process (the two issues cannot be wishfully treated as, or pretended to be, separate from each other). One cannot anticipate when the opportunity for constitutional change would present itself. But those concerned, including especially the TC, should be ready when it does. And better still, the opportunity for constitutional change should also be proactively worked on. Working on proposals to amend the Constitution should therefore cover not only the substantive proposed amendments but also the strategic and tactical plan for getting them introduced and approved by a constituent assembly and ultimately by the people. Such a plan, especially in its strategic aspect, should not be limited to President Aquino’s term up to 2016. Getting the support of whoever is the President, especially if he is particularly popular (like President Aquino currently), is practically indispensable to get and keep the ball rolling on charter change initiatives.
The work on constitutional amendments is supposed to start with the TC but it may also need to start with the two peace panels. If the TC follows the less restricted EO 120, Sec. 3.b., then it can recommend proposed amendments as long as “whenever necessary.” If the TC follows the more restricted FAB, VII.4.b and its ATAM, I.D. & II.6.[d], then its proposed amendments must be not only “whenever necessary” but also “for the purpose of accommodating and entrenching in the Constitution the agreement of the Parties” and “without derogating from any prior peace agreements.” But what if, as discussed above, none of the peace agreements, especially the FAB and the expected comprehensive agreement, contain provisions that are outside the existing constitutional framework? What is there then to accommodate and amend? What is to be done in such a situation, knowing that it is “necessary” to change the existing constitutional framework? There may be two fallbacks for this:
-- follow instead the less restricted EO 120, Sec. 3.b. and thereby recommend proposed amendments “whenever necessary,” with what is necessary to be determined by the TC’s best lights, with the best possible inputs, not necessarily limited any more to the parameters of the FAB or the comprehensive agreement (this is also “out-of-the box”)
-- operationalize the FAB, VII.13 whereby “The Negotiating Panel[s] of both Parties shall continue the negotiations until all issues are resolved…” This need not be limited to implementation issues and could include negotiations and agreements on out-of-the-box arrangements, i.e. those outside the existing constitutional framework, when these become necessary to fully and more effectively solve the Bangsamoro problem because prior negotiations and agreements had been limited within the existing constitutional framework, basically at the GPH’s instance. In this scenario, the expected comprehensive agreement arising from the FAB may not be the final (as in ultimong last) peace agreement, as there appears to be a fallback for possible supplemental agreements to deal with unresolved issues, e.g. on normalization and on new constitutional arrangements. Not only may such unresolved issues need more time for negotiation and agreement, but also the soonest conclusion of a comprehensive agreement may be imperative to proactively help tip the balance of the current political situation arising from the Sabah crisis and its fallout on the peace process.
Negotiating the unresolved issues “out of the box” is not a problem for the MILF peace panel, as it is a problem for the GPH peace panel, under the mandate and instructions given it by President Aquino to negotiate only within the existing constitutional framework. The GPH peace panel therefore, at some point, has to be allowed by President Aquino to think “out-of-the box,” starting with the panel’s own duty to recommend this to him as a necessary measure. As it is, the afore-mentioned SC Decision on the MOA-AD actually allows the panel to “think outside the box,” thus (at 568 SCRA 402, 504-505):
… If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation….
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision….
This is no less part of the existing constitutional framework that guides or should guide the negotiating mandate of the GPH peace panel.
It is true that just and lasting peace for the Bangsamoro does not rest on charter change alone. Much of it is based on building the socio-economic foundation, including health, education and livelihood (as in Sajahatra Bangsamoro), inculcating a new development and governance ethos, developing institutions, and transforming armed movements into viable political parties, and so on. But the core solution is still political. The MILF itself says so as much, in “what we perceive to be the Bangsamoro problem.” Thus its overriding call for a negotiated political settlement. What it does not say enough is that this must also be a negotiated constitutional settlement -- if it is to learn the main lesson and shortcoming of the GRP-MNLF peace negotiations, if it is to be qualitatively different and higher than the 1996 FPA, if it is to decisively solve the Bangsamoro problem. This is because the Constitution is actually a big part of the Bangsamoro problem. But it can also be part of the solution through a correct constitutional amendment.
ADDENDUM(3/25/13, slightly revised 4/6/13)
1. To sum up the case for (the TC’s) work on constitutional amendments, its importance is really not only to [a] “accommodate” a qualitatively higher degree of Bangsamoro self-determination than that allowed under the existing constitutional framework, and [b] “entrench” such new self-governance arrangements so that there is a constitutional guarantee against their easy reversal by Congress or a new presidential administration. Constitutional amendments also [c] correct the unilateral character (even from the MNLF viewpoint, though they acquiesced to it) of the existing constitutional provisions on autonomous regions, and [d] actualize/realize the sovereign act of constitution-making between two peoples, Filipino and Bangsamoro, in true “parity of esteem.”
2. There this statement in the MILF website Luwaran Oct. 16-31, 2012 editorial “Please don't annotate!” that “Never mind, the legal niceties, because accommodation of the proposed Basic Law into the Constitution is part of the bargain; in fact, it is one of the responsibilities of the Bangsamoro Transition Commission.” I don’t know if you can really “never mind” the “legal niceties,” especially if those “legal niceties” are the existing constitutional framework which inexorably keeps impinging itself into the peace negotiations because it is the guiding framework of one negotiating party, the GPH. The statement that “accommodation of the proposed Basic Law into the Constitution is part of the bargain” (underscoring supplied) is highly questionable or doubtful, given that such commitments or guarantees were precisely disallowed for any GPH peace panel or even President to make by the above-cited SC Decision on the MOA-AD. There is in fact in the text of the FAB no commitment or guarantee on “accommodation of the proposed Basic Law into the Constitution,” there is only the TC mechanism “To work on proposals to amend the Philippine Constitution…” (underscoring supplied). EO 120 which created the TC pursuant to the FAB speaks of a function only “to recommend to Congress or the people proposed amendments…” (underscoring supplied).
In any case, the Basic Law cannot but be within the existing constitutional framework on at least two counts:
a. Under the ATAM, I.C. and II.6.[a], the drafting of the Basic Law shall be “in accordance with the provisions of the FAB” and “using as bases the FAB and its annexes.” But as discussed above, the FAB and its Annexes, or the ensuing comprehensive agreement, are all within the existing constitutional framework, as in fact the road map does not provide for prior constitutional amendments.
b. Congress cannot and will not pass a Basic Law unless it is within the existing constitutional framework, aware that it could be stricken down as unconstitutional by the Supreme Court in [a] proper case[s] filed therein.
And this brings us back to our point in the earlier above discussion, why still accommodate and entrench into the Constitution a Basic Law that is anyway already within its existing framework? The main point of constitutional amendments is to enable going beyond that box.
3. While we have spoken in the earlier above discussion of the Basic Law track and the Constitutional Amendments track, they are not necessarily being counter-posed against each other. They can in fact be seen as complementary parallel tracks. They can also be seen as successive phases: a Basic Law phase first and then later a Constitutional Amendments phase, OR even vice-versa – a Constitutional Amendments phase first, followed by a Basic Law phase. There are of course other imperatives for charter change that might overtake the peace process.
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Soliman M. Santos, Jr. is a long-time Bicolano human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer especially for and on the Mindanao peace process, with several books on this, among them The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001; with 2nd printing, 2009), Dynamics and Directions of the GRP-MILF Peace Negotiations (AFRIM, 2005), and In Defense of and Thinking Beyond the GRP-MILF MOA-AD (AFRIM, 2011). He is presently Presiding Judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, both in Camarines Sur.