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.