Power sharing

The recent signing of the “Annex on Power Sharing” of the Framework Agreement on the Bangsamoro (FAB) is a significant milestone in the elusive search for lasting peace with the Moro Islamic Liberation Front (MILF).
Birth pains. In the words of Prof. Miriam Coronel-Ferrer, the chair of the Philippine negotiating panel, the “laborious document” was carried “in our wombs” for 16 months, and “after the labor pains, we heaved our collective sigh of relief.”
Indeed, the most difficult part of any negotiation to end an armed conflict with secessionist undertones is the determination of what powers to cede to the rebels who are fighting to rid themselves of the clutches of the government and to rule themselves freely.
The major difficulty lies in the fact that rebels do not usually recognize the legitimacy of the government and the Constitution overarching it. Hence, their demands are not circumscribed by what can be granted under such a Constitution. On the other hand, government negotiators are necessarily limited by the Constitution. They are duty-bound to conform their actions and commitments to it.
Otherwise, should they stray beyond its parameters, all their grand intentions and “laborious” pains would be for naught because the Supreme Court will strike down the peace agreement they labored for, as it did when it voided, in North Cotabato vs Republic (Oct. 14, 2008), the Memorandum of Agreement on Ancestral Domain (MOA-AD) entered into by the administration of President Gloria Macapagal-Arroyo with the MILF in 2008.
Constitutional supremacy. Aware of this constitutional danger, our negotiators, I think, have been careful in wording the FAB and its annexes so as not to imply or hint of any grant of independence or right of secession. They have avoided any covenant similar to the Machakos Agreement of 2002 which gave the people of South Sudan “the right to self-determination, inter alia, through a referendum to determine their future status.”
Or one similar to the Good Friday Agreement of 1998, which provided that “…upon a referendum of the people of Northern Ireland, the province [of Northern Ireland] may secede from the United Kingdom and join Ireland.”
Neither did they include separation of the Bangsamoro, as Malaysia did to Singapore in 1965.
Quite the contrary, the FAB and the Annex on Power Sharing recognize the sovereignty of the Philippines, its Constitution and its legal processes. In fact, the annex merely detailed the “particular competencies and authorities of the Central Government and the Bangsamoro Government which shall serve as guide in the drafting of the Basic Law” that shall govern the Bangsamoro people and territory.

Essentially, the annex delineated the governmental powers into three: 1) “Reserved powers” that are retained by the “Central Government,” 2) “Concurrent Powers … shared between the Central Government and the Bangsamoro Government,” and 3) “Exclusive Powers” over which “authority and jurisdiction pertain to the Bangsamoro Government.”

Perusing the annex, I got the impression that this delineation of powers is more akin to a federalized parliamentary government like that of Malaysia, which by the way is the official facilitator of the MILF peace process.
Accordingly, the Bangsamoro government, as provided in the annex, will be “ministerial” in structure to be headed by a chief minister who will be elected by the Bangsamoro Assembly to be “composed of at least 50 members whose district, party-list, reserved seats and sectoral constituencies shall be provided in the Bangsamoro Basic Law” to be enacted by Congress.
Governmental harmony. That the annex requires this basic law to be passed by Congress is significant in two ways. First, it connotes the underlying supremacy of the Constitution, quite a refreshing departure from the Sudanese and Irish peace models I mentioned above, which by the way resulted in the creation of an independent South Sudan that eventually declared war on Sudan, its parent-state.
Second, it means that before the peace process can be deemed to have been completed, the Bangsamoro basic law should first be passed by Congress and approved by the President. Hence, any constitutional challenge to the FAB and its annexes may be premature until such passage and approval, because it is the basic law that will create and govern the Bangsamoro, not the FAB and its annexes.
As I said, the annex envisions a ministerial government for the Bangsamoro, which is common in a federalized parliamentary government like Malaysia. How this can be harmonized with the centralized presidential type of government in the Philippines would be quite a hurdle, both conceptually in the basic law and practically in its implementation.
Indeed, a deeper study is needed to intertwine these two contrasting types of democratic governance, if the cherished peace must endure. After all, as pointed out by Ateneo Law Dean Sedfrey Candelaria in his recent lecture as one of the 10 holders of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, “a peace agreement, no matter how well crafted, remains vulnerable to the constant test of public scrutiny at every stage of its implementation.”
More on Dean Candelaria’s thesis later. Meanwhile, let me say my best wishes for the completion of the fourth and last annex on normalization, which Professor Ferrer believes can be signed by February. May our people be gifted with lasting peace as the New Year dawns.
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