JILP Online Forum

Of Great Fears and Greater Hopes: The GPH-MILF Framework Agreement on the Bangsamoro

By: Celeste Marie R. Cruz[*]

Prologue

Peace and economic development have long remained elusive to the conflict-torn region of Muslim Mindanao in the Philippines. Since the late 1960s, the Conflict in Mindanao, led by a secessionist independence movement of the Islamic minority in a predominantly Catholic country,[1] has led to an enormous loss of life and suffering, claiming an estimated 120,000 lives and displacing more than 2 million people.[2] The ongoing peace process between the Government of the Republic of the Philippines (GPH), under President Benigno Aquino III, and the Moro Islamic Liberation Front (MILF) reached a significant milestone with the signing of the Framework Agreement on the Bangsamoro[3] (Framework) last October 15, 2012. The Framework seeks to establish a “federal” type of sub-state in the said region[4] that is currently under the jurisdiction of the Autonomous Region in Muslim Mindano (ARMM).

The ARMM itself is actually the product of a decades-long peace process between GPH and the MILF’s “mother” group, the Moro National Liberation Front (MNLF).[5] The 1976 Tripoli Agreement between the Philippine government, under then-President Ferdinand E. Marcos, and the MNLF formalized the idea of an autonomous arrangement for Muslim Mindanao within the confines of the Philippine state.[6] Thereafter, the 1987 Constitution of the Philippines specifically mandated the establishment of an autonomous region in Muslim Mindanao,[7] and in 1989, the Philippine Congress passed the Organic Act establishing the ARMM.[8] In 2001, the same Organic Act was even amended “to strengthen and expand” its provisions,[9] as part of the terms of the final peace agreement between the Philippine government, under then-President Fidel V. Ramos, and the MNLF.[10] However, after the MNLF officially relinquished the struggle for the independence of Muslim Mindanao through the 1976 Tripoli Agreement, the MILF was formed by dissenting MNLF members to resume their separatist struggle, and thus to continue the armed conflict leading up to the current peace negotiations.[11]

In the interest of peace, but perhaps also due to the region’s vast natural resources (including energy and minerals with an estimated value of one trillion U.S. dollars[12]) and its strategic location for shipping interests,[13] the international community has a keen interest in the success of this peace process.[14] However, despite its merits as a step closer towards peace, the Framework is merely preparatory in nature and is not yet the actual peace agreement.[15]As explained by acclaimed constitutionalist Fr. Joaquin G. Bernas, S.J., the Bangsamoro Basic Law (BBL) itself—to be passed by the Philippine Congress and approved in a plebiscite by the concerned constituent units—will be the full peace agreement with the MILF.[16]

 

New Political Body

The Framework declares that the new Bangsamoro political body (BG) shall be established to replace the ARMM. It also plainly declares that its form of government shall be “ministerial,”[17]—without further elaboration—but it is being explained to be parliamentary by the GPH and representatives of MILF to the media.[18] It shall be governed by the BBL,[19] succeeding the Organic Act that established the ARMM.[20] Its territory shall be composed of the present geographical area of ARMM plus at least 12 other municipalities.[21]

Interestingly, the Framework also expands the definition of the “Bangsamoro” people or identity to include all descendants of original inhabitants of Mindanao, Sulu, and Palawan Islands, at the time of colonization, and that they shall have the right to identify themselves as Bangsamoro by ascription or self-ascription.[22] Under the ARMM’s Organic Act, the Bangsamoro people are defined as Filipino “citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions.”[23] Hence, Fr. Bernas opines that the more specific definition of the Bangsamoro identity under the ARMM Organic Act is more “acceptable” considering that the Framework consolidates the identities of other indigenous peoples of these islands, who may not be of the Islamic faith, with the Bangsamoro.[24] The expanded definition under the Framework is a sweeping generalization, considering that in the island of Mindanao alone, there are around 18 non-Muslim indigenous ethnic groups, collectively known as the “Lumad,” with a population of approximately 9 million.[25] However, in the current territory of the ARMM, the Lumads are clearly a minority, numbering around 60,000—accounting for 2% of the population, while the Muslims’ approximate number of 2.5 million account for 90%.[26]

 

Novel Features of a Framework

The Framework itself is incomplete, as its four “Annexes” on its Articles on “Power Sharing,”[27] “Wealth Sharing,”[28] “Transitional Arrangements and Modalities,”[29] and “Normalization”[30]—aimed to be completed by the second quarter of 2013—will contain crucial details that were purposely left out by the Parties.[31] Thus, the Framework’s tentative nature makes it somewhat premature for legal scrutiny, considering that its legality under the Philippine Constitution would hinge on the upcoming details. However, despite this lack of detail, there are features of the Framework that patently differ from those of the current Organic Act.

The Framework declares the GPH-BG relationship to be “asymmetric,”[32]—without explicitly stating which party is favored by such asymmetry—with the former having “reserved powers,”[33] encompassing, among others, common market and global trade,[34] and defense and external security.[35] BG shall have “exclusive powers” and “concurrent powers” to be shared with GPH.[36] Considering that the GPH retains powers over foreign policy, the regulation of the whole Philippine economy, and national defense, it is reasonable to conclude that the GPH is favored by this assymetric relationship, in line with its sovereignty over the whole of the Philippines including the autonomous region, but with certain concessions of power to the BG limited to the latter’s regional territory.

However, the Framework removes the Central Government’s exclusive powers under the ARMM Organic Act[37] over matters such as national elections, and transportation and communications.[38] These, along with the expansion of both the autonomous territory[39] and jurisdiction of the Shari’ah or “Muslim” courts,[40] appear to constitute the decisive differences between ARMM and the BG—marking a real and further shift in power away from the Central Government and towards the regional government.

On Wealth Sharing,” the most notable feature of the Framework is the BG’s power to create its own auditing body, without prejudice to the authority of the national and constitutionally-created Commission on Audit (COA).[41] However, while this appears to be consistent with BG’s goal of fiscal autonomy, such an unprecedented structure would entail a massive jurisdictional and logistical challenge. Under the ARMM Organic Act, the auditing function is explicitly under the exclusive domain of the Central Government,[42] and the COA never had to share its general auditing authority with that of an equivalent or similar body from any regional government—autonomous or not. Moreover, if the BG auditing body’s authority would be without prejudice to that of the COA, the existence and operation of the new body might only serve as both additional bureaucratic red-tape that hampers effective public service and as venue and opportunity for graft and corrupution.

Additionally, there could be a cause for concern with the Framework’s implicit promise for an even larger share in the revenues of natural resources exploitation in favor of the BG. While the Framework only explicitly states that the BG “shall have a just and equitable share”[43] thereon, this is arguably a pre-text for the renegotiation of the current revenue sharing arrangement under the ARMM Organic Act.[44] While an increased share from such revenues is indeed congruent with the BG’s goal of fiscal autonomy, it likewise increases the likelihood and stakes for graft and corruption—one of the problems that has long beleaguered the region’s current autonomous government. Moreover, considering the still-fragile relationship between the MILF and the GPH, the small and remote risk that the potentially huge sums involved here may be used by the leaders of the proposed federal sub-state to finance a secession in the future should still be diligently assessed and prepared for. Hopefully, these concerns would be adequately addressed in the upcoming Annex thereon.

On “Transitional Arrangements and Modalities,” the Framework calls for the creation of an independent 15-member Transition Commission,[45] which shall draft the BBL.[46] However, the Framework provides no qualifications for their appointment. Moreover, Executive Order No. 120,[47] which constituted the said Commission, funded the same with an initial allocation of 100 million pesos—an amount which is arguably excessive for its purposes. Thus, the Commission’s composition and funding could, again, become a delicate and highly politicized issue with the potential to replicate the same concerns (i.e., corruption and inequitable representation) that led to MILF’s dissatisfaction with the present ARMM.

Finally, the Framework defines “Normalization” as the means through which “communities can return to conditions where they can achieve their desired quality of life, which includes the pursuit of sustainable livelihoods and political participation within a peaceful deliberative society.” The Framework provides that it will achieve this through (among other measures[48]) the decommissioning of the MILF’s armed forces,[49] and the establishment of “a program for transitional justice to address the legitimate grievances of the Bangsamoro people, correct historical injustices, and address human rights violations.”[50] Unfortunately, the Framework only provides this one-sentence provision on transitional justice and does not appear to make the latter a centerpiece program of its overall normalization plan for the region.

However, the promised Annex could still deliver sufficient details that would lay the foundation for a comprehensive and feasible program to be integrated in the BBL, so that all the greivenaces, injustices, and human rights violations that have caused the longstanding conflict in Mindanao may finally and comprehensively be addressed. Otherwise, these grievances, if left uncheck and unresolved, will simply become the seeds for a new conflict in the future. Arguably, the lack of a transitional justice mechanism in the ARMM Organic Act may have been a foreshadowing of the latter’s failure—moving forward with a detailed autonomous government structure, but without a system to deal with the underlying and unique inequities and injustices that the Bangsamoro people and others concerned in Mindanao have suffered throughout the conflict.

Nonetheless, considering that the ARMM Organic Act does not contain any analogous provision for transitional justice or any similar mechanism, the Framework’s inclusion of the same—regardless of its currently limited form—is already praiseworthy for its innovation and due diligence in covering a sensitive and vital matter.

Many residents of Mindanao—Bangsamoro and non-Bangsamoro alike—have been killed, displaced, and impoverished by the decades-long conflict.[51] Thus, it is plain to see that effective normalization may comprise both the essential first step and the continuing effort required for the succesful implementation of the peace agreement.


Challenges Ahead

Aside from the legal and administrative concerns, among the difficulties facing the success of the current peace process are: (1) the Philippine-Malaysia territorial dispute over the eastern part of Sabah refueled by the recent occupation of one of its towns by the alleged royal armed forces of the Filipino Sultanate of Sulu,[52] and (2) the upcoming Philippine Congressional and local elections in May 2013.

The first challenge is material considering that Malaysia is the key mediator between GPH and MILF and Sabah is one of the 13 member states of Malaysia. On February 11, 2013, an armed group of around 400 individuals arrived in the town of Lahad Datu in Sabah. This group was sent by one of the claimants to the throne of the said Filipino Sultanate of Sulu to assert the latter’s 100-plus year claim to the territory. Prior to the formation of the Malaysian Federation in 1963, Sabah, which was formerly known as North Borneo, has long been claimed by both countries. The Philippines is claiming the territory based on the heritage of the said Sultanate, which claims that Sabah was only leased to the British North Borneo Company that administered the area on behalf of the British Empire.[53]

Hopefully, this territorial dispute would not negatively impact Malaysia’s role as mediator. Fortunately, even if Malaysia decides to withdraw its support in the ongoing peace process, other countries that have expressed support for this cause—such as the United States, Japan, Australia and other Muslim-majority coutries—can still intervene, take up Malaysia’s role, and help ensure its success. As for the parties themselves, the said dispute has not affected their determination to push through with the peace process, with GPH and MILF representatives explicitly assuring the media that the Sabah crisis will not derail their efforts.[54] However, with this part of the history unfolding by the day, one can only hope that the GPH will soon achieve the aspired balance in handling the issues of peace process, territorial sovereignty and national integrity. This balance is likewise necessary in order to reduce the risk of disinterest—iif not distrust—tto the peace process, not only of the MILF, Malaysia and/or other stakeholders, but of the Filipino Muslims themselves.

On the other hand, since the BBL needs enactment by Congress, its eventual composition will affect the opinions and choice of the voters in the BBL’s plebiscite, if not the passage of the BBL itself. For the BBL to be properly realized, however, the party of the incumbent administration of the GPH should not just concentrate on supporting the campaign of its Congressional candidates, who are, by default, supportive of the current peace process. Instead, it should focus more on actively campaigning for the Framework itself and their draft BBL, its virtues and its long-term benefits for the entire country, beyond partisan politics.

Despite its flaws, the Framework could still prove to be a historical milestone. As it is, the Framework is already a precious, elusive step closer to finally achieving peace in Mindanao. It should therefore be capitalized upon and carefully followed through with utmost diplomacy, intelligent legal scrutiny, reasonable politics, and cautious optimism, all of which will be necessary in the drafting of the forthcoming Annexes and the appointment of key personnel, especially in the Transition Commission. Thus, the Annexes should not only follow the structure of the Framework, but also the confines of the Philippine Constitution and principles affirming the Philippine state’s sovereignty over the whole of the Philippine territory, including Muslim Mindanao. Otherwise, all these efforts could simply be struck down as unconstitutional by the Philippine Supreme Court exercising its power of judicial review.

________________________

* Celeste Marie R. Cruz obtained both her Management-Economics and Juris Doctor Degrees from the Ateneo de Manila University, Philippines. She is a member of the Philippine Bar and is currently pursuing her Traditional Master of Laws Degree at NYU School of Law as a recipient of the Hauser Global Scholarship. She worked for three years as an associate of SyCip Salazar Hernandez Gatmaitan, the Philippine’s biggest and leading law firm. Afterwards, she moved to the public sector as a Director of the Senate of the Philippines’ Oversight Committee on Public Expenditures. She is a professorial lecturer (on study leave) at the De La Salle-Far Eastern Universities MBA-JD Program in Manila, Philippines. At NYU Law, she is a graduate editor of the Journal of International Law and Politics and an awardee of the Thomas M. Franck Scholarship for International Law, as well as of the Transitional Justice Leadership Program Scholarship.

1 Office of the Presidential Adviser on the Peace Process, Brief Background on the Moro Struggle (June 6, 2011, 17:38), available at http://opapp.gov.ph/milf/brief-background-moro-struggle [hereinafter OPAPP]; see also Philippine Religion (March 24, 2013), available at http://www.globalsecurity.org/military/world/philippines/religion.htm.

2 Simon Tisdall, Philippines Moves Close to Historic Peace deal with Islamist Rebels, Guardian (Feb. 13, 2013), available at http://www.guardian.co.uk/world/2013/feb/13/philippines-peace-deal-islamist-rebels.

3 Framework Agreement of the Bangsamoro (Oct. 15, 2013), available at http://www.opapp.gov.ph/sites/default/files/Framework%20Agreement%20on%20the%20Bangsamoro.pdf [hereinafter Framework Agreement].

4 Christina Mendez, Miriam: Bangsamoro deal requires Cha-cha, The Philippine Star (Oct. 8, 2012), available at http://www.philstar.com/headlines/2012/10/08/857436/miriam-bangsamoro-deal-requires-cha-cha.

“The senator pointed out that under the agreement, the creation of a substate, as in a federal state, is contrary to what is in the Constitution which mandates that all other local government units (LGUs) will be treated as LGUs of our presidential form of government.”

5 OPAPP, supra. note 1.

“The MILF was formed in 1977 when Hashim Salamat, supported by ethnic Maguindanaos from Mindanao, split from the Moro National Liberation Front.”

6 See Id.

7 Section 1, Article X, 1987 Philippine Constitution:

“The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.”

8 Republic Act No. 6734, “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao” (Aug. 1, 1989), as amended by Republic Act No. 9054 (2001) [hereinafter R.A. 6734].

9 Republic Act No. 9054, “An Act To Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled “An Act Providing for the Autonomous Region in Muslim Mindanao” (March 31, 2001) [hereinafter R.A. 9054].

10 OPAPP, supra note 1.

11 GlobalSecurity.Org Profile on MILF (Feb. 27, 2013), available at http://www.globalsecurity.org/military/world/para/milf.htm. “The MILF was formed in 1977 when Hashim Salamat, supported by ethnic Maguindanaos from Mindanao, split from the Moro National Liberation Front.”

12 Tisdall, supra note 2.

As cited, per a 2006 cable from the US Embassy in Manila, published by WikiLeaks, the energy and mineral resources in MILF-controlled areas of Mindanao could be worth up to $1 Trillion.

13 See Id.

The seas of Mindanao, Malaysia, and Indonesia are an important part of the global shipping route, as explained by Simon Tisdal.

14 Tisdall, supra note 2.

“That is why ambassadors of the United States, Japan, Britain, Australia and some other important, including Muslim-majority countries, were so eager and happy to be in Kuala Lumpur on August 5, 2008 to witness the formal signing of the MOA-AD by the Philippines and the MILF.”

15 Framework Agreement, supra note 3, Article IX(2).

“The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.”

16 Fr. Joaquin G. Bernas S. J., Sounding Board, The RP-MILF Framework Agreement (1)” , Philippine Daily Inquirer (Oct. 15, 2012), http://opinion.inquirer.net/38792/the-rp-milf-framework-agreement-1.

17 Framework Agreement, supra note 3, Article I(1) and (2).

18 Office of the Presidential Adviser on the Peace Process, FAQs on Framework Agreement of the Bangsamoro (Feb. 16, 2013), available at http://www.gov.ph/the-2012-framework-agreement-on-the-bangsamoro/#faqs;  Dean Tony La Viña, The Bangsamoro Transition, Manila Standard Today(March 16, 2013), available at http://manilastandardtoday.com/2013/03/16/the-bangsamoro-transition/.

19 Framework Agreement, supra note 3, Article II.

The BBL “shall reflect the Bangsamoro system of life and meet internationally accepted standards of governance” and “shall be formulated by the Bangsamoro people and ratified by the qualifed voters within its territory.

20 R. A. 6734, supra note 8.

21 Framework Agreement, supra note 3, Article V.

It also has additional provision for expansion of the territory via plebiscite.

22 See id. Article I(5).

“The Parties recognize Bangsamoro identity. Those who at the time of conquest and colonization were considered natives or inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood shall have the right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of other indigenous peoples shall be respected.”

23 R.A. 9054, supra at note 9, Section 3(b), Article X.

24 R.A. 9054, supra at note 9, Section 3(b), Article X. Fr. Joaquin G. Bernas S. J., Sounding Board, The RP-MILF Framework Agreement(2)” , Philippine Daily Inquirer (Oct. 22,2012), available at http://opinion.inquirer.net/39200/the-rp-milf-framework-agreement-part-2.

25 International Crisis Group, The Philippines: Indigenous Rights and the MILF Peace Process, Asia Report N°213 (Nov. 22, 2011), available at http://www.crisisgroup.org/en/regions/asia/south-east-asia/philippines/213-the-philippines-indigenous-rights-and-the-milf-peace-process.aspx.

26 Id.

27 Framework Agreement, supra note 3, Article III(1).

This is intended to contain the details on “intergovernmental relations” and the BBL drafting.

28 See id. Article IV(6).

29 Framework Agreement, supra note 3, Article VII (1) and (2).

This is intended to address the parties’ mutual recognition of “the need for a transition period and the institution of transitional mechanisms.”

30 See id. Article VIII(9).

This is intended to provide details on the timetable for the graduated decommissioning of the MILF’s combat forces such that “they are put beyond use.”

31 Tisdall, supra note 2.

“Teresita “Ging” Quintos Deles, presidential adviser on the peace process, and Miriam Coronel Ferrer, chair of the government’s negotiating panel, interviewed in Manila, agreed there was a sound basis for optimism. ‘The road map on the table is real. I don’t get a sense that it will break down now. The annexes [to last October’s framework agreement] will be completed by March at the latest,’ Deles said. The transition commission would probably be unveiled this month.”

32 Framework Agreement, supra note 3, Article I(4).

GRP is also referred to as the “Central Government.”

33 See id. Article III(1).

34 Framework Agreement, supra note 3, Articles III(2)(c).; See also R.A. 9054, supra note 9, Article IX, Section 11.

Articles III(2)(c), Framework Agreement of the Bangsamoro provides that the ARMM’s power to enter into economic agreements already allowed under the ARMM Organic Act, shall be transferred to the Bangsamoro.

Article IX, Section 11 of R.A, 9054, meanwhile, provides:

“Economic Agreements Subject to the provisions of the Constitution, the Regional Government shall evolve a system of economic agreements and trade compacts to generate block grant for regional investments and improvements of the regional economic structures which shall be authorized by law enacted by the Regional Assembly. Pursuant to specific recommendations of the Regional Economic and Development Planning Board, the Regional Government may assist local government units in their requirements for counterpart funds for foreign-assisted projects.”

35 Framework Agreement, supra note 3, Article III(2) (a) to (f).

Other “reserved powers” of the Central Government are: foreign policy, coinage and monetary policy, citizenship and naturalization, and postal service.Also, such powers are “…without prejudice to additional powers that may be agreed upon by the Parties.”

36 See id. Article III(1).

These powers are to be found in the various provisions of the Framework or to be fleshed-out in the Annexes.

37As defined in Article IV, Section 3, R.A. 9054; See R.A. 9054, supra note 9, Article IV, Section 3.

38 R.A. 9054, supra note 9, Article IV, Section 3.

The exception also includes patents, trademarks, tradenames, and copyrights, quarantine, maritime, land and air transportation and communications.

39 Framework Agreement, supra note 3, Article III (3).

40 See id. Article V (1).

41 Framework Agreement, supra note 3, Article IV (5).

42 R.A. 9054, supra note 9, Article IV, Section 3(j).

43 Framework Agreement, supra note 3, Article III (3), Article IV(4).

44 R.A. 9054, supra note 9, Article IX, Section 9.

Under Article IX, Section 9 of R.A. 9045, the total collections from the taxes imposed on natural resources are distributed as follows: 35% to the province or city; 35% to the ARMM Regional Government; and 30% to the National Government.

45 Framework Agreement, supra note 3, Article III (3), Article VII(5).

It shall be composed of 15 Bangsamoro members with 7 selected by the GPH and the other 8 selected by the MILF.

46 See id.Article VII(4).

The Transition Commission is also tasked to “work on possible proposals to amend the Philippine Constitution for accommodating and entrenching” therein the agreements of the GPH and MILF.

47 Dated 17 December 2013.

48 Framework Agreement, supra note 3, Articles VIII(3), (6) and (7).

It also includes provision for the transfer of law enforcement functions from the GPH’s military to a professional Bangsamoro police force and the disbandment of private armies and other armed groups, respectively.

49 See id. Article VIII(5).

50 Framework Agreement, supra note 3, Article III (3), Article X(12).

51 Tisdall, supra note 2.

52 News Analysis: Standoff in Sabah could derail peace process in Mindanao, The Philippine Star (Feb. 16, 2013), http://www.philstar.com/headlines/2013/02/16/909935/news-analysis-standoff-sabah-could-derail-peace-process-mindanao.

53 Frialde, Mike, Sultanate of Sulu wants Sabah returned to Phl, The Philippine Star (Feb. 23, 2013), available at http://www.philstar.com/headlines/2013/02/23/912045/sultanate-sulu-wants-sabah-returned-phl.

53 Jose Carlos L. Maningat, Sabah crisis won’t derail Bangsamoro peace process – MILF (March 13, 2013), available at http://www.thepoc.net/breaking-news/politics/18028-sabah-crisis-wont-derail-bangsamoro-peace-process–milf.html.

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