Sellout to MILF, or a setup for Charter change?

That the proposed Bangsamoro Juridical Entity will have powers inconsistent with the Philippine Constitution—that much is obvious. Indeed, that is why it can be put into place only when it is approved by the people in a plebiscite.

The next issue is whether our negotiators can agree to submit such proposals to a plebiscite. In effect, they are merely proposing Charter change, which is allowed by the Constitution. To the extent that they promised to do so in an agreement, at worst they were giving conditional consent, subject to ratification by their principals.

The real problem then is whether we are simply being maneuvered into revising the Constitution, where the purported object is to engage our Muslim brethren but the hidden agenda is to enable Gloria Macapagal-Arroyo to remain in office beyond 2010. Thus seen, the proposed agreement is the cleverest maneuver. Charter change, despite several fits and starts, couldn’t get off the ground and was finally junked by the Supreme Court. Now suddenly it enlists the cause of Muslim self-determination in Mindanao and—voila!—the lost cause gains new adherents and builds fresh momentum.

The incompatibilities with the Constitution are legion. One, the 1987 Constitution uses the term “autonomous region in Muslim Mindanao” while the pact uses the term “Bangsamoro Juridical Entity” covering a much larger area. The term is at best amorphous, at worst evasive.

“Juridical Entity” is the most generic lawyer-talk for any legal body vested with rights and powers, of which the most pedestrian example is the corporation. Avoiding the term “autonomous region in Muslim Mindanao” is understandable. One, that name is already being used (that’s what the ARMM stands for) and it will only confuse people. Two, to say, for instance, “Expanded ARMM” might only exacerbate political passions on either of the battlefields. And three, given that the MILF is a rebel group, understandably they would steer clear of any implicit submission to the Constitution of the enemy.

What I wonder about is: Sure, let’s use another name, but why the bland neutral sounding “Juridical Entity”? The reason, I venture, is that any other term is too loaded for either side. “Bangsamoro State”? As if we couldn’t even be more hysterical than we are right now, as in “Arroyo became president to preside over the dismemberment of the Republic.” “Bangsamoro Region”? Well, maybe it’s the MILF’s turn to be outraged, as in “My uncle fought in a war, and all he got for me was this T-shirt!”

Two, the agreement, to its credit, uses the concept of “ancestral domain” to characterize the Bangsamoro people’s right to their territory and its resources. Ancestral domain is a claim reserved for what international law calls “indigenous peoples” (or IPs) and what our Constitution calls “indigenous cultural communities.” The very first lines of the agreement say that the Bangsamoro people includes “all Moros and all indigenous peoples of Mindanao.” For sure, there are genuine IPs in Mindanao, and they are certainly entitled to their ancestral domains, but Muslim Filipinos might be difficult to call as IPs, unless we classify Islam as an indigenous religion. My guess is that this is the most acceptable and least provocative of concepts. The alternatives lie on either extreme: on one hand, the “Bangsamoro peoples’ right to self-determination” (incendiary language for Manila) and, on the other, the Article 27 nondiscrimination rights of “ethnic, religious or linguistic minorities” (too mild for the MILF, understandably, given several centuries’ history of exclusion and dispossession).

Third, the agreement, again rather creatively, extends ancestral domain claims to maritime zones, and adopts the language of the Law of the Sea. At this point, we sail into stormy waters. Control over internal waters (like lakes and rivers) and the territorial sea (in international law, a band of sea within 12 nautical miles around the coastline) is vested in sovereigns, and our Juridical Entity is starting to appear like a state!

Finally, the Constitution lists only nine items that may be devolved to the autonomous region, and says that any powers not delegated are deemed retained by the national government. Among those reserved powers are foreign relations and finance. Contrast that to the powers of the Juridical Entity: “to enter into any economic cooperation and trade relations with foreign countries”; “open trade missions in foreign countries”; the right to “participat[e] in [Philippine official missions and delegations] in international meetings …, e.g. ASEAN meetings and … the United Nations”; and develop its own “financial and banking” institutions.

I agree with lawyer and peace activist Soliman Santos, who published his master’s thesis in Melbourne, “The Moro Islamic Challenge: Constitutional Rethinking,” that constitutional reform is a legitimate enterprise, especially when warring groups talk peace. “To seek constitutional change (e.g., a shift to federalism) has not been usually treated as unconstitutional, except it seems when it has to do with the Moro question.”

But equally legitimate are our concerns about the bona fides of both sides to the agreement. The pact includes profit-sharing arrangements on the expected windfall from natural resource exploitation. Anybody who knows the record of both Malacañang and of the ARMM in the able and honest disposition of the public wealth should be frightened. The pact requires constitutional change (deliberately, I venture) and we are rightly uneasy that the genuine and historic grievances of Muslim Filipinos are being used for the cheap workaday politics of greed and ambition.

Raul Pangalangan, Passion for Reason, Philippine Daily Inquirer