It is laudable that the GRP panel which negotiated the MOA-AD decided to go public and make available the official copy. I got mine last night from Gen. Rodolfo Garcia, the panel chairman. It is also laudable that they opted to open the whole thing to public discussion. Now, for an initial reaction.
During the current imbroglio regarding the GRP-MILF memorandum of agreement on ancestral domain, a major point of contention that often comes up is the constitutionality–and hence the mandate–of the government negotiators. Critics contended that there is no such constitutional mandate and that the agreement (and those who negotiated, including presumably the president) violates the constitution. The proponents, on the other hand, defended their actions–averring that constitutional and legal processes have been followed and that the Executive has the mandate to negotiate.
Who is correct? On its face, I would accept the legal arguments used by the proponents. Peace negotiations, by nature, contemplate even changes to the constitution, if so required to achieve just and lasting peace. Numerous international examples abound regarding this. It is also correct when they say that the agreement may still go through legal (and constitutional) processes by way of possible review by Congress, Supreme Court, and through plebiscites (if requiring constitutional change and, for citizens in proposed Bangsamoro Juridical Entity-BJE). The MOA-AD will also be subject to the formal negotiations on the “comprehensive compact” final agreement.
Politically, the process the Executive department and its government negotiators went through to arrive at the MOA-AD is wrong, fraught with danger, divisive, and ultimately, may result in the rejection of the agreement and even a return to war. I would call it politically unconstitutional.
Apart from specific provisions in the MOA-AD that can be questioned, the basic federalist framework of the agreement (yes, it is federalism, whatever the hem and haw of the negotiators) is its Achilles heel. Federalism is a general state system, in the same level as its opposite–the present unitary Philippine state system. It is a system whereby separate local sovereign states agree to unite (or federalize). Based on a voluntary agreement to give up certain powers and authorities to the central federal government, this state system allows these local states to choose whether to remain in the federation or to go independent–they are sovereign states.
Autonomy arrangements, envisioned and allowed by the 1987 constitution for the Moro people, Cordillera people, and–as local autonomy–for local governments, are on a quite different level. They cover only governance of local affairs (self-government, local government). They do not touch questions of state rule or its basis such as military affairs, foreign affairs, or monetary affairs.
The MOA-AD acknowledges this formally by stating that these affairs are still with the central government. This is true, even for federalized states. The reason here is that these three are the raison d’etre for creation of a unified state, in strengthening its capability to maintain its existence in the community of states.
However, in the same breath, the MOA-AD, among other authorities, granted the BJE its own “internal” security force, the right to be represented in Philippine foreign missions and, on its own, send and receive trade and economic delegations, and review, amend or cancel the “central” government’s mining and other economic contracts. These authorities are authorities of a sovereign state and, under the 1987 constitution, can only be exercised by the Philippine state.
The only scenario for the implementation of the MOA-AD is for the Philippine state to convert itself into a federal republic of at least two or more states, including the BJE. The MOA-AD therefore assumes that this will be so, and in the near future.
Is federalism a “done deal” in the Philippines? If this is so, then the question of constitutionality of the MOA-AD will not be politically controversial. Then, constitutional reform would be the order of the day. However, I don’t think the critical mass for such a radical shift in our state system has been reached–the national discussion has just barely begun on it.
Aside from this, the president–as the main proponent–does not have anymore the political capital to push for it. There is also the constant public suspicion that GMA is just riding on the federal issue to retain power beyond 2010. At the moment, if a snap vote will be taken on a shift to federalism, it would lose by a big margin.
The 1987 constitution–and its autonomy framework–is still the political mandate given by our people up to the present for negotiating the Moro peace question. I am not speaking of the ARMM–this particular concoction, I think, does not do justice to the constitutional intent and framework of Moro autonomy.
It is in this sense that I dub the MOA-AD constitutionally violative–the government negotiators, including the president, overstepped their political mandate. They should have made sure of the federalist framework for their negotiation before they entered into it. At the least, the political leaders and parties–whether ruling or opposition–should have been consulted first as well as the major stakeholders such as the churches, media, private sector, and civil society. Failing this, they should go back to the negotiation table.
There is little doubt that the MOA-AD and its BJE will not gain political support among the majority Filipinos because of its federalist underpinning. Nor, conversely, can it be made an argument for the federalization of the Philippine state.
The MILF and the Bangsamoro people’s struggle, at this stage, have not yet won the right to a sovereign state. A key ingredient for this is the acceptance by the rest of the Filipino people of such a state. Unfortunately, the MOA-AD is a premature document in this regard.