Negotiating beyond the Constitution
In response to my previous blog post on the Bangsamoro Juridical Entity (BJE), someone pointed me in the direction of this article by Atty. Soliman Santos Jr., who is of the opinion that negotiations beyond the framework of the Constitution are not (necessarily) unconstitutional. The issues raised by this BJE situation have gotten me thinking lately, and this article deserves a lot of consideration. With all due respect to Atty. Santos and all other like-thinking minds, I have some points of disagreement.
The basic premise on which Atty. Santos predicates his arguments, as I have paraphrased and interpreted, is this: The government is empowered by the Constitution to negotiate, especially when this means improving the quality of life and situation of peace of a people. And if the matters contemplated by the negotiation necessarily involve the possibility of the government moving for amendments to the fundamental law of the land, this is not necessarily unconstitutional, because it is precisely because of the need for change that the negotiations are happening. This is well within the recognized framework of the Constitution, which is a living document that provides avenues for its own revision and amendment.
I agree that the government of the Philippines (GRP) is given power to negotiate and work for peace by the Constitution. That's pretty self-explanatory. I also agree that the GRP can lead advocacy for making changes to the Constitution, which it can properly do in the framework that the Constitution provides.
But what I feel is missed by Atty. Soliman in making his points is this: In matters of negotiation, the question necessarily arises as to how you treat or view the other party. And in the context of this situation, in its negotiations, how does the GRP treat the other party to the proposed Memorandum of Agreement on Ancestral Domain (MOA-AD), the Moro Islamic Liberation Front (MILF)? More importantly, how does the GRP view the MOA-AD that it is negotiating with the MILF? Finally, what must we consider regarding the peace process and the MOA-AD, particularly within the framework of the Constitution?
Is it possible that the MOA-AD be treated as a treaty? In my opinion, no. The definition of what a treaty is is quite clear. Article 2 of the 1969 Vienna Convention on the Law of Treaties clearly defines what a treaty is: "... an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." A treaty is necessarily an agreement between states, which are defined by the Montevideo Convention cited in my earlier article. By the clear definition of what a treaty is, the MOA-AD cannot be treated by the GRP as a treaty, right? Not necessarily. There is one possible exception: If the GRP already recognizes the MILF as the representative of a separate, independent, and sovereign Bangsamoro state, then the MOA-AD can be called a treaty (or at least a draft of it), and the negotiations are cloaked with the mantle of diplomatic negotiations. Is this why the GRP has suddenly been invoking executive privilege? Is this is a negotiation with a sovereign power that it feels has yet to be concluded that might be covered by executive privilege?
But what would that mean? That would mean the Philippines has already lost the territories occupied by this Bangsamoro state. In fact, it might even mean the Philippines NEVER had these states in the first place. But that seems absurd, because why would the GRP then be negotiating for the creation of a state within a state if the state already exists? Is this some sort of concession by this separate state? The idea seems bizarre, to say the least.
Let's assume for the sake of argument, then, that the MOA-AD is not a treaty. What is it then? It appears to be, quite simply, a document embodying the results of political peace processes. It is a mere contract, perhaps given color by international law, between the GRP and the MILF. The question may now be how does the GRP view the MILF? What is its official position on the MILF? This is no longer very clear.
Let us now consider the negotiation process. Atty. Santos points out that the MOA-AD is being "assailed now for being unconstitutional because some of its provisions admittedly go beyond the framework of the 1987 Philippine Constitution." He then says that this is not necessarily unconstitutional, because to seek constitutional change and reform (as seems inevitable when we examine this situation) is not unconstitutional. A peace process is not necessarily unconstitutional. In fact, in the MOA-AD, he says, the MILF even recognizes the framework of the Constitution. This is why the MILF, it is said, is not even pushing for the upper limit, which is independence or secession, but rather, the creation of a "state within a state." But the current structure, it is said, does injustice to the Bngsamoro identity, way of life, and longing for self-rule. The current structure of having autonomous regions, Atty. Santos writes, has been inadequate.
I agree that seeking constitutional change and reform is not necessarily unconstitutional. I agree that a peace process is not unconstitutional. I am encouraged by the fact that the MILF recognizes that there is a constitutional framework. In fact, I agree with Atty. Santos when he says that the peace talks with the MILF are a special matter, "with much indications that the negotiated political settlement this time must go beyond the framework of the Constitution, if it is to be a real and lasting solution to the Bangsamoro problem." That is true. Any change that will resolve the matter, especially one creating the BJE, will need to see changes to the Constitution and its framework.
It appears to me that the question of unconstitutionality is not one that pertains to whether or not we need constitutional change in order to achieve peace. The question is whether or not, within the framework of the Constitution, the manner by which such a peace process is pursued is proper or not. It is true that the Constitution has provisions that allow for its change through amendment and revision, and it is also true that the Constitution is a living, not static document. Does this mean the GRP can negotiate a process, and then make commitments, qualified by being subject to its pursuit of all legal means, including amending the Constitution in case the Constitution does not allow such commitments?
Let's examine the key commitment: the creation of a BJE within the greater Philippine state, a "state within the state." To the present Constitutional set-up, this is an alien concept. The framers of our present Constitution were clear in their deliberations when they said that the Philippines was not being turned into a federal state. Rather, the autonomous regions were instead created. It is this solution that the framers wrote into the Constitution.
And what is the significance of this? Let us recall that the Constitution was ratified by the Filipino people, and at that time, even people in Mindanao, and yes, the territories covered in the ARMM, participated in that process. I do not have the precise statistics that will establish definitively that the Bangsamoro people boycotted this process. (What I do know, however, is that the MILF boycotted the process that eventually created the ARMM (by law), and instead continued with armed struggle.) In short, it is the sovereign will of the Filipino people, which I assume at that point in time was meant to include the Bangsamoro people as a significant part, that ratified the Constitution and created the GRP as we have it. The operative framework is therefore one of one Filipino people contemplating one Philippines with one territory as defined by the Constitution.
The GRP is created within this framework. It is therefore created with the framework as a limit to what it can and cannot do. Its powers are limited by the Constitution, by the express will of the people.
The negotiations themselves are not unconstitutional. They fall precisely within the Constitution's framework. What is questionable, however, is the GRP's making commitments to establish a BJE, with it taking the necessary steps, including charter change if necessary.
I am of the humble opinion that the GRP cannot make such commitments without the express mandate of the Filipino people who created it. The framework of the Constitution, which includes a framework for amendment and revision, appears to require first the necessary constitutional change that will accommodate the possible federation of the republic and the creation of states within the Philippine state. In short, the fundamental flaw of the negotiations, and of the MOA-AD, is that the GRP seems to have made promises that it was never empowered to make. This is especially true if one considers that the GRP must at all times be conscious that it is working for one Filipino people, one Philippines. Thus, the GRP must have first worked for the necessary consultation among the people, and for the necessary constitutional change, and achieved it, even before it could make the promises to the MILF that a BJE would be created.
Why? One, the Constitution contemplates a unitary republic. Two, the Constitution currently contemplates one Filipino people living within one Philippines, not subdivided into little states, but one State which happens to have autonomous regions as what the Filipino people have deemed in their sovereign will as the acceptable solution to the questions or "problems" of having to accommodate indigenous peoples with their own culture and identity, peoples which it nevertheless contemplates as Filipino. Note also that that the expansion of the ARMM into the BJE will mean an expansion that will mean a substantial inconsistency with rights of non-Bangsamoro people who are currently living (in some instances rather peacefully) with the Bangsamoro. Any change to the Constitution will have to take rights which are currently vested into account. Naturally, a possible response is that these people never had any right to take what could not have been theirs in the first place.
Unfortunately, and I admit that this is a rather conservative take on things, the Filipino people (including the Bangsamoro) seem to say otherwise, when viewed in the context of the Constitution. This operative fact, inconsistent as it is with the perspectives of some, has the weight of the sovereign Filipino people behind it! Is this oppressive and unjust? Perhaps, perhaps not. But that is precisely the political and legal question that needs to be answered, and which I submit can only be properly answered by the Filipino people pursuant to a proper process, as outlined by the Constitution. In short, the Filipino people, yes, including the Bangsamoro, seem to need to decide on charter change and decide on federation or the creation of states within the Philippine state before the creation of a BJE, as a new solution to an old problem, can be promised by the GRP to the MILF as representatives of the Bangsamoro.
I will of course be responded to by those who say that no promise yet exists, no commitment on the part of the GRP legally exists yet, as the MOA-AD was not signed. That's precisely the point. It appears that signing the MOA-AD will be an act that is, on its face, given the present Constitutional set-up, an unauthorized, unconstitutional act by the GRP, because it is not empowered by the Constitution, as of yet, to make such promises. That's why the Supreme Court should prohibit the signing of the MOA-AD as it is. It's not because we do not want peace or do not believe our Muslim brothers and sisters deserve the solution promised by the BJE.
We want peace, and yes we want to be able to work with the Bangsamoro people to achieve that peace. But that does not mean we can throw caution to the wind, put the cart before the horse, and promise what we probably aren't allowed to promise yet. The Bangsamoro deserve a proper solution to the situation, not something like a contractual commitment or promise that appears (at least to me) as rushed, half-baked, and as of the moment, patently unconstitutional. They deserve more than an empty promise, or a promise that is actually shadowed by the political darkness concerning our present government. This is the only way we can have any real peace, or what we hope will be a lasting solution to this long-standing debacle.
The basic premise on which Atty. Santos predicates his arguments, as I have paraphrased and interpreted, is this: The government is empowered by the Constitution to negotiate, especially when this means improving the quality of life and situation of peace of a people. And if the matters contemplated by the negotiation necessarily involve the possibility of the government moving for amendments to the fundamental law of the land, this is not necessarily unconstitutional, because it is precisely because of the need for change that the negotiations are happening. This is well within the recognized framework of the Constitution, which is a living document that provides avenues for its own revision and amendment.
I agree that the government of the Philippines (GRP) is given power to negotiate and work for peace by the Constitution. That's pretty self-explanatory. I also agree that the GRP can lead advocacy for making changes to the Constitution, which it can properly do in the framework that the Constitution provides.
But what I feel is missed by Atty. Soliman in making his points is this: In matters of negotiation, the question necessarily arises as to how you treat or view the other party. And in the context of this situation, in its negotiations, how does the GRP treat the other party to the proposed Memorandum of Agreement on Ancestral Domain (MOA-AD), the Moro Islamic Liberation Front (MILF)? More importantly, how does the GRP view the MOA-AD that it is negotiating with the MILF? Finally, what must we consider regarding the peace process and the MOA-AD, particularly within the framework of the Constitution?
Is it possible that the MOA-AD be treated as a treaty? In my opinion, no. The definition of what a treaty is is quite clear. Article 2 of the 1969 Vienna Convention on the Law of Treaties clearly defines what a treaty is: "... an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." A treaty is necessarily an agreement between states, which are defined by the Montevideo Convention cited in my earlier article. By the clear definition of what a treaty is, the MOA-AD cannot be treated by the GRP as a treaty, right? Not necessarily. There is one possible exception: If the GRP already recognizes the MILF as the representative of a separate, independent, and sovereign Bangsamoro state, then the MOA-AD can be called a treaty (or at least a draft of it), and the negotiations are cloaked with the mantle of diplomatic negotiations. Is this why the GRP has suddenly been invoking executive privilege? Is this is a negotiation with a sovereign power that it feels has yet to be concluded that might be covered by executive privilege?
But what would that mean? That would mean the Philippines has already lost the territories occupied by this Bangsamoro state. In fact, it might even mean the Philippines NEVER had these states in the first place. But that seems absurd, because why would the GRP then be negotiating for the creation of a state within a state if the state already exists? Is this some sort of concession by this separate state? The idea seems bizarre, to say the least.
Let's assume for the sake of argument, then, that the MOA-AD is not a treaty. What is it then? It appears to be, quite simply, a document embodying the results of political peace processes. It is a mere contract, perhaps given color by international law, between the GRP and the MILF. The question may now be how does the GRP view the MILF? What is its official position on the MILF? This is no longer very clear.
Let us now consider the negotiation process. Atty. Santos points out that the MOA-AD is being "assailed now for being unconstitutional because some of its provisions admittedly go beyond the framework of the 1987 Philippine Constitution." He then says that this is not necessarily unconstitutional, because to seek constitutional change and reform (as seems inevitable when we examine this situation) is not unconstitutional. A peace process is not necessarily unconstitutional. In fact, in the MOA-AD, he says, the MILF even recognizes the framework of the Constitution. This is why the MILF, it is said, is not even pushing for the upper limit, which is independence or secession, but rather, the creation of a "state within a state." But the current structure, it is said, does injustice to the Bngsamoro identity, way of life, and longing for self-rule. The current structure of having autonomous regions, Atty. Santos writes, has been inadequate.
I agree that seeking constitutional change and reform is not necessarily unconstitutional. I agree that a peace process is not unconstitutional. I am encouraged by the fact that the MILF recognizes that there is a constitutional framework. In fact, I agree with Atty. Santos when he says that the peace talks with the MILF are a special matter, "with much indications that the negotiated political settlement this time must go beyond the framework of the Constitution, if it is to be a real and lasting solution to the Bangsamoro problem." That is true. Any change that will resolve the matter, especially one creating the BJE, will need to see changes to the Constitution and its framework.
It appears to me that the question of unconstitutionality is not one that pertains to whether or not we need constitutional change in order to achieve peace. The question is whether or not, within the framework of the Constitution, the manner by which such a peace process is pursued is proper or not. It is true that the Constitution has provisions that allow for its change through amendment and revision, and it is also true that the Constitution is a living, not static document. Does this mean the GRP can negotiate a process, and then make commitments, qualified by being subject to its pursuit of all legal means, including amending the Constitution in case the Constitution does not allow such commitments?
Let's examine the key commitment: the creation of a BJE within the greater Philippine state, a "state within the state." To the present Constitutional set-up, this is an alien concept. The framers of our present Constitution were clear in their deliberations when they said that the Philippines was not being turned into a federal state. Rather, the autonomous regions were instead created. It is this solution that the framers wrote into the Constitution.
And what is the significance of this? Let us recall that the Constitution was ratified by the Filipino people, and at that time, even people in Mindanao, and yes, the territories covered in the ARMM, participated in that process. I do not have the precise statistics that will establish definitively that the Bangsamoro people boycotted this process. (What I do know, however, is that the MILF boycotted the process that eventually created the ARMM (by law), and instead continued with armed struggle.) In short, it is the sovereign will of the Filipino people, which I assume at that point in time was meant to include the Bangsamoro people as a significant part, that ratified the Constitution and created the GRP as we have it. The operative framework is therefore one of one Filipino people contemplating one Philippines with one territory as defined by the Constitution.
The GRP is created within this framework. It is therefore created with the framework as a limit to what it can and cannot do. Its powers are limited by the Constitution, by the express will of the people.
The negotiations themselves are not unconstitutional. They fall precisely within the Constitution's framework. What is questionable, however, is the GRP's making commitments to establish a BJE, with it taking the necessary steps, including charter change if necessary.
I am of the humble opinion that the GRP cannot make such commitments without the express mandate of the Filipino people who created it. The framework of the Constitution, which includes a framework for amendment and revision, appears to require first the necessary constitutional change that will accommodate the possible federation of the republic and the creation of states within the Philippine state. In short, the fundamental flaw of the negotiations, and of the MOA-AD, is that the GRP seems to have made promises that it was never empowered to make. This is especially true if one considers that the GRP must at all times be conscious that it is working for one Filipino people, one Philippines. Thus, the GRP must have first worked for the necessary consultation among the people, and for the necessary constitutional change, and achieved it, even before it could make the promises to the MILF that a BJE would be created.
Why? One, the Constitution contemplates a unitary republic. Two, the Constitution currently contemplates one Filipino people living within one Philippines, not subdivided into little states, but one State which happens to have autonomous regions as what the Filipino people have deemed in their sovereign will as the acceptable solution to the questions or "problems" of having to accommodate indigenous peoples with their own culture and identity, peoples which it nevertheless contemplates as Filipino. Note also that that the expansion of the ARMM into the BJE will mean an expansion that will mean a substantial inconsistency with rights of non-Bangsamoro people who are currently living (in some instances rather peacefully) with the Bangsamoro. Any change to the Constitution will have to take rights which are currently vested into account. Naturally, a possible response is that these people never had any right to take what could not have been theirs in the first place.
Unfortunately, and I admit that this is a rather conservative take on things, the Filipino people (including the Bangsamoro) seem to say otherwise, when viewed in the context of the Constitution. This operative fact, inconsistent as it is with the perspectives of some, has the weight of the sovereign Filipino people behind it! Is this oppressive and unjust? Perhaps, perhaps not. But that is precisely the political and legal question that needs to be answered, and which I submit can only be properly answered by the Filipino people pursuant to a proper process, as outlined by the Constitution. In short, the Filipino people, yes, including the Bangsamoro, seem to need to decide on charter change and decide on federation or the creation of states within the Philippine state before the creation of a BJE, as a new solution to an old problem, can be promised by the GRP to the MILF as representatives of the Bangsamoro.
I will of course be responded to by those who say that no promise yet exists, no commitment on the part of the GRP legally exists yet, as the MOA-AD was not signed. That's precisely the point. It appears that signing the MOA-AD will be an act that is, on its face, given the present Constitutional set-up, an unauthorized, unconstitutional act by the GRP, because it is not empowered by the Constitution, as of yet, to make such promises. That's why the Supreme Court should prohibit the signing of the MOA-AD as it is. It's not because we do not want peace or do not believe our Muslim brothers and sisters deserve the solution promised by the BJE.
We want peace, and yes we want to be able to work with the Bangsamoro people to achieve that peace. But that does not mean we can throw caution to the wind, put the cart before the horse, and promise what we probably aren't allowed to promise yet. The Bangsamoro deserve a proper solution to the situation, not something like a contractual commitment or promise that appears (at least to me) as rushed, half-baked, and as of the moment, patently unconstitutional. They deserve more than an empty promise, or a promise that is actually shadowed by the political darkness concerning our present government. This is the only way we can have any real peace, or what we hope will be a lasting solution to this long-standing debacle.
posted by mikosamson at 10:59 AM
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