Salient Provisions of the CAB between the Philippine Government and the MILF and how they differ

from the provisions of the 1996 Peace Agreement between the Philippine Government and the MNLF Prof. Miriam Coronel Ferrer Philippine Bas Association Luncheon Fellowship 19 February 2014, Fairways Room , Manila Golf and Country Club

Greetings of peace to the officers, board of trustees, council of advisers, members and guests of the Philippine Bar Association led by its president, Atty. Beda G. Fajardo, Secretary Deles, Your Excellencies and the members of the diplomatic corps. Please continue to enjoy your lunch. There will be a lot to chew on as I go on. You know, Ive always had this impression that when lawyers speak before lawyers, they often start with lawyer-jokes. Who would be interested in doctor-jokes, anyway, maliban na lang kung yung doctor ay abogado rin. Para naman matuwa kayo, naghagilap po talaga ako sa aking ala-ala ng isang joke told over the dinner-table by my late father Dean Antonio Coronel. Mahilig po kasi siya sa mga jokes katunayan ang bestselling books niya ay di yung serious law stuff but his joke book collections. But nothing came to mind. Except this one: a half-joke, half-defense before his questioning children --that I distinctly remember. Eto po ang tanong niya. What he asked, is the difference between criminal lawyers and corporate lawyers? Ang sagot: Corporate lawyers where there from the beginning; on the other hand, criminal lawyers like him -had nothing to do with the crime. No offense to the corporate lawyers here, as I believe most of you are, but this definitely is his best defense for taking the cudgels for the high-and-mighty so-accused. Today, on the occasion of your luncheon fellowship, you provided me with an innocuous title for a presentation. Pero alam ko naman na, the real challenge you have thrown me is that I come here with the best defense ever for the FAB and its four Annexes, the Annexes on: [show slide on the components of the CAB] Transitional Arrangements and Modalities, Revenue Generation and Wealth Sharing, Power Sharing, Normalization,

and the Addendum on Bangsamoro Waters and Zones of Joint Cooperation that altogether will constitute the CAB. You want me to put up the best defense that would keep us out of jail, or condemnation, when history catches up and is able, with the benefit of hindsight, to better judge us. I accept and will commence with my task in the most efficient and prudent way. In this task, I again draw wisdom from the inscribed words that my father had put on a wooden carving of a horse fight.

It goes like this: A law suit is like a horse fight. The less the neigh, the more the bite. So, I will provide a brief, concise overview of an otherwise long and technical set of documents that was the product of a much longer process. Para sa gayon ay, mahaba ang ating panahon para sa cross-examination mamaya. And on that count, you are welcome not only to cross-examine me here but the other members of the GPH panel here with me today former Agriculture Secretary Senen Bacani, Undersecretary Yasmin Busran Lao, and ex-officio member of the panel, Secretary Mehol Sadain of the National Commission on Muslim Filipinos. Also, alternate member Usec Chito Gascon who has just been appointed to sit in the Human Rights Claims Board with the rank of appellate court justice? *** To continue Many aspects of the FAB and the two Annexes particularly, on wealthsharing and powersharing pertain to the creation of the Bangsmoro political entity that will replace the Autonomous Region in Muslim Mindanao. Anong klaseng hayop ba itong Bangsamoro na itatayo natin? Many have unduly feared that it shall be a separate state. Such fears miss the whole point of the peace negotiation: that we have negotiated precisely to avoid the break up of the state and to keep the whole country together. In other words, an essential part of the work of your peace panel and the panels that came before us, was precisely aimed at convincing the erstwhile Moro separatists, that their struggle for the right to selfdetermination can be substantially realized , and their distinct cultural and historical identity as Bangsamoro acknowledged, within the framework of the Philippine Republic. We secured this in fact early on. In February 2011, in the 11-point statement read by MILF Panel Chair Mohager Iqbal during formal talks, they asked for Filipino citizenship with a Bangsamoro identity. Nonetheless, it is true that constitutional issues continued to confound the process. The MILFs modified demand in lieu of the controversial Bangsamoro Juridical Entity in the scrapped MOA-AD of 2008 was for a Bangsamoro substate enjoying an asymmetrical relationship with, and parity of esteem vis--vis the national state. Regardless of the terminology, what the MILF had wanted was something akin to a federal state vested with wide powers rather than a subordinated relationship vis-a-vis the central government. They wanted the law creating the substate to be made by the Bangsamoro themselves. Moreover, the law, as they envisioned, should be entrenched in the constitution as an amendment or appended to it in order to secure it from being tampered by acts of Congress. To be met, the demands would have required charter change (cha-cha) or constitutional amendment (con-am). From the beginning, President Aquino made clear that changing or amending the constitution was not his priority. The President feared that any move to amend the constitution would open the Pandora s Box for other contentious agenda and derail his focus on good governance. Thus, the talks were bedeviled at the onset on the most fundamental matter as to how to restructure the relationship between the national government and the Bangsamoro. It became the main bone of contention inside and outside the negotiating table in the first 18 months of Aquinos term the period under the chairmanship of my predecessor, now associate justice of the Supreme Court, Marvic Leonen (who left the panel in November 2012 upon his appointment).

In fact, the more vocal civil society groups supported the call for cha-cha to meet the Bangsamoro demands for self-determination and even derided the Government panels 3-for-1 proposal which they felt was way below the MILFs demands. MILF Panel chair Mohager Iqbal described the disparity as that between heaven and earth. Eventually, this fundamental difference was resolved with the symbolic agreement that the new political entity shall be called The Bangsamoro without need for words like substate, state, juridical entity, on the one hand, or autonomous region/government appended to it, on the other hand; and that a Bangsamoro Basic Law shall be passed by congress with the end view of electing a regular Bangsamoro government in the May 2016 election. The road map to get to this end game -- the new Bangsamoro by 2016 -- is described in the FAB and further elaborated in the first Annex, the one Transitional Arrangements and Modalities that was signed in February 2013. The road map, as set out, follows the process required in passing new legislation in Congress. Obviously, the signing of the agreements in themselves would not realize the Bangsamoro. Legislating the organic act - which we have referred to as the Bangsamoro Basic Law -- is a power that only Congress can effect -- unless recourse is made through peoples initiative an option we had actually floated to them but they did not pick up. That the MILF agreed to take this legislative track is the hard part of the bargain. The MILF acceded to it in the name of national peace. We hope that people would at the very least acknowledge this pragmatism and, secondly, that this pragmatic step that the MILF have taken was only possible because of their trust in President. Aquino III. *** Some critics insist that the Bangsamoro in the signed documents is still the substate as originally conceived when we began negotiations in 2010. The substate word has been unjustly demonized. As in any demonized term, it sticks like rugby and can be stretched thinly and flimsily while still wet. Even as it dries, it clings to the skin when rubbed. This, when in fact a substate can only mean being a sub or a part of the state in the subnational sense, in the same way that a subset as we learned from grade school math can only mean being part of a bigger set. We have already dismissed the first level of this accusation, when we said at the onset, that independence was never on the negotiating agenda of the government, and that the whole idea of negotiation was precisely to keep the country intact. Any remaining notion of a substate can only mean a set up within the Philippine state. This brings us to the second level of the oppositors claim: that the Bangsamoro, being a substate, is NOT the autonomous region contemplated in the Constitution. Specifically, that the powers that have been enumerated in the signed documents go beyond what is possible in a unitary set-up. A good number of countries in the world today consider themselves neither unitary nor federal. Spain has a a host of autonomous regions with their own basic laws. UK has its different countries/nations/devolved administrations (England, Scotland, Wales, Northern Ireland). But neither Spain nor UK are federal states, nor are they unitary states. Markku Suksi writes, in the case of Europe: If states that include one or several autonomous entities are counted together with the number of federal states, the result at least in Europe is that the regular text-book example of state, the entirely monolithic unitary state, finds itself in a minority and is no longer the prime example of a state. Obviously, there are so many existing possibilities to structure a relationship between government and its multiple constituencies that a binary system of political ordering (federal unitary) can no longer accommodate.

Notably, our constitution did not explicitly say that we are a unitary state. In fact coming from a highly centralized state under martial rule where the Executive branch was able to wield wide powers both formally and informally contravening the principle of separation of powers of the three braches of government and the democratic process of electing our local government officials the crafters of the 1987 Constitution took pains to devolve powers through principles like local autonomy, decentralization and autonomous regions that it ensconced in Article X, On Local Governments. To be sure, the members of the Constitutional Commission in 1986 grappled with adopting a federal system of government. But in the end, they settled for this unique animal so unique it may be set up only in two parts of the country in the Cordillera and in Muslim Mindanao. They called this animal autonomous region. We find this resolution in Art X, Sec. 15: There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Regardless, other critics say that the structure of government and the powers enumerated in the Powersharing Annexes partake of the nature of a federal state. Proof to such claim is the concept introduced in the signed document of an asymmetrical relationship between the Bangsamoro and the Central Government. Much ado has been made about this other term, asymmetry which by the way is not a legal nor constitutional term. Rather it is a concept drawn from the discipline of politics. It represents a mixed system that is precisely neither straightforward, symmetrical federal, or outright, highly-centralized unitary. The book, Substate Governance through Territorial Autonomy, A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (2011) written by the Finnish professor I quoted earlier, Markku Suksi, provides us with a survey of such asymmetrical arrangements with countries like China, with Hong Kong, Macau and Tibet; Finland, with Swedish-speaking Aland; Indonesia, with Aceh (and also West Papua and Yogyakarta) as examples. Another claim put forward to argue culpable violation of the constitution is the list of powers enumerated in the Powersharing Annex: reserved, concurrent and exclusive. Reserved powers are powers or matters over which authority and jurisdiction are retained by the Central Government Concurrent powers shall refer to the shared powers between the Central Government and the Bangsamoro Government Exclusive powers shall refer to powers or matters over which authority and jurisdiction pertain to the Bangsamoro Government

Is there anything in this definition and the list of powers that violate the constitution? Does the granting of exclusive powers to the Bangsamoro effect its separation from the state? Not so, in many ways. Exclusive powers, which are exercised within the Bangsamoro territorial jurisdiction, may be clipped by the reserved powers of the Central Government, which are exercised in the whole country, including the Bangsamoro. For example, regulation of trade, banking and finance inside the Bangsamoro may have been devolved but this matter is governed by national fiscal and monetary policies, foreign treaties and conventions our country has entered into, foreign policy, customs and tariff laws all reserved powers of the Central Government. Clipping of the powers of the Bangsamoro can very well be justified by these reserved powers. But then what we envision here is a democratic relationship based on mutual respect or parity of esteem as public officalss and leaders vested with their respective authorities.

Moreover, when the exercise of the Bangsamoro Governments powers impacts outside of the territorial jurisdiction of the Bangsamoro, it is understood that the neighboring LGUs and the Central Government can take the appropriate action again, based on the respective powers vested on them. This is fairly well understood in that the president, as provided for in the Constitution, shall exercise general supervisory powers over of the autonomous region as provided in Art. X, Sec. 16: The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. Let met cue you here to the difference in the nature of the supervisory power of the President over the AR and that over the other LGUs, as is evident in a similar provision with regards to LGUs: Art. X, Sec. 4: The President shall exercise general supervision over local governments. In the case of autonomous regions, supervision is for a specific aim. In LGUs, supervision was not delimited, and would therefore imply supervision even over administrative matters. This difference which the less discriminating eye may miss is very consistent with the special, asymmetrical status of autonomous regions. Finally, the Constitution itself grants the parameters for the autonomous jurisdiction of the autonomous regions when it said that these regions shall have the following legislative powers, subject of course to the Constitution and national laws (of course, national laws may also be qualified by the forthcoming BBL in so far as the Bangsamoro is concerned, as is the nature of a special law). Art. X, Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1)Administrative organization; (2)Creation of sources of revenues; (3)Ancestral domain and natural resources; (4)Personal, family, and property relations; (5)Regional urban and rural planning development; (6)Economic, social, and tourism development; (7)Educational policies; (8)Preservation and development of the cultural heritage; and (9)Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region All so-called exclusive powers listed in the Annex on Powersharing fall under any one of this category, not to mention that fairly encompassing category of matters for the promotion of the general welfare of the people in the region. In fact, many of these powers actually were already given to the ARMM. However, the utter lack of initiative of its Regional Legislative Assembly, the weak governance, and its misaligned resources, many of these powers for examples, the power to enact its own indigenous peoples rights act and civil service code and to expand Shariah courts including appellate courts were never exercised. Moreover, the set of intergrovernmental mechanisms and principles provided for in the WS and PS Annex could help ensure harmonization of laws, programs and policies; and minimum common standards to be employed. With due regard to special needs of a special entity whose major feature is being the home of more than three million Filipinos, an overwhelming majority of whom are Muslims, certain powers drawing from this culturalreligious tradition are envisioned for the Bangsamoro, such as in relation to: hajj and umrah awqaf and charitable trusts hisbah office for accountability as part of the Shariah justice system

Contrary to what others say that the signed documents have cut into legislative powers of Congress it is very clear that the agreements are political in character. They commit the President to support such initiatives in Congress. Nothing in the process takes away the power of Congress to legislate. In fact, only in so doing, can the Annexes be put into effect. As spelled out and as set forth as to how the new institution can be achieved through a law that shall be certified as urgent by the President, and deliberated and passed by Congress the Bangsamoro by 2016, or by whatever name it shall be called, cannot but be the autonomous region contemplated in our constitution. This -- without prejudice to other features that may be introduced in the future through constitutional reform. Translate: As to how this can be done, the constitution itself provides the means. *** We all know that matters of state are foremost matters of politics rather than law. Over and above law, is the matter of peace and justice which, to go back to the Greek classics, constitute the reason for being of the polity or of the state. Stretching forward to the Enlightenment period, peace and justice, likewise, are the ends of the social contract. The crafters of the 1987 Constitution, thanks to the progressive people from the different sectors that then President Corazon Aquino appointed to the Constitutional Commission, reiterated these noble ends in various provisions under the articles on the national economy and patrimony, social justice and human rights, and local government, notably: On NATIONAL ECONOMY & PATRIMONY (Art. XII, Sec.1) The goals of the national economy are a more equitable distribution of opportunities, income and wealth... On SOCIAL JUSTICE & HUMAN RIGHTS (Art. XIII, Sec. 1) The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. On LOCAL GOVERNMENT(Art. X, SEC. 7) Local government shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law... Never mind the criticism that the Constitution is too wordy and lofty. Thanks to the crafters, and to all those who fought with their sweat and blood during martial law, whose ideals became a moving force in the crafting of the new constitution, we have been given the flexibility to realize a more equitable order, correct historical injustices, and redistribute both wealth and power from those who have traditionally captured these resources to those who have been at the receiving end socially, politically, economically and culturally in the last 100 years. Many of the wealth-sharing provisions affirmed in the CAB documents are actually already found in the 1991 Local Government Code and the Organic Act of the Autonomous Region in Muslim Mindanao (Republic Act 9054, amending RA 6734), the latter having been drawn from the 1996 Final Peace Agreement between the Government and the Moro National Liberation Front. In addition, the Annex on Revenue Generation and Wealthsharing provides for more measures that can considerably increase the resources of the Bangsamoro. Some of the notable features are: the automatic release and appropriation of an annual block grant for the Bangsamoro, in lieu of a budget allocation secured annually under the General Appropriations Act the devolution of four national taxes to the region, in addition to the taxes already devolved to the ARMM under Republic Act 9054, namely, capital gains tax, donors tax, estate tax and documentary stamp tax the increase in the share from national taxes collected in the region, from 70 to 75 percent

the increase in the share from government revenues collected from mineral resources, metallic and non-metallic (and retention of the 50-50 share from government revenues from fossil fuel).

The intent is basic: to foster fiscal autonomy, without which political autonomy cannot be realized. And by the way, there is an interesting provision in the Wealthsharing Annex that states that revenues from new taxes and government income from natural resources shall be deducted from the annual block grant after four years of the Bagsamoros regular operation. That the MILF envisions the Bangsamoro to be less and less dependent on the national government and to eventually attain fiscal autonomy can be gleaned from this novel provision on deductions from the annual block grant. Such a scheme and intent are not found in the earlier agreement with the MNLF. *** Let me now get to the last portion of this presentation: In what other ways is the CAB different from the 1996 GRP-MNLF Peace Agreement? For lack of time, I will run down the most important differences. 1. Structure of government The CAB provides for ministerial form of government where people vote for parties on the basis of which the seats in the legislature will be allocated and where the legislature in turn elects the Chief Minister. The envisioned Bangsamoro assembly shall have at least 50 members in order to ensure a broad spectrum of representation through district, reserved and party list seats. In addition to the Cabinet to be formed, there shall be the Council of Leaders made up of the Chief Minister, provincial governors, city mayors and sectoral representation to ensure cooperation and coordination vertically. Can such a different government structure be possible? Yes, considering that the Constitution in Art X, Sec 18 precisely provided that the structure of government for the autonomous region shall be provided by law and that law will be the forthcoming BBL. 2. Bangsamoro Waters and Zones of Joint Cooperation The CAB provides for a new legal construct called Bangsamoro Waters alongside the construct called municipal waters and the internal waters to refer to Philippine waters. This BMW shall extend from the 15km municipal waters to another 7.224 kilometers for a total of 12 nautical miles from the low water mark of the coast. As envisioned, it shall form part of the territorial jurisdiction of the Bangsamoro political entity (in contrast, jurisprudence is not very clear whether or not municipal waters are part of the territory of the municipality). In addition, the CAB provides for the Zones of Joint Cooperation on parts of the Sulu Sea and the Moro Gulf whereby the Bangsamoro and other indigenous peoples in the adjoining provinces, and residents of the Bangsamoro (indigenous or not) shall be given preferential fishing rights, consistent with Art XIII, Section 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. 3. Reduced geographic coverage of the plebiscite Although the CAB provides for a water-based jurisdiction, the CAB actually significantly reduced the prospective coverage of the Bangsamoro in deference to the provinces and cities that have objected to the MOA-AD and already voted against inclusion in the past two plebiscites for the ARMM in 1989 and in 2001, with the exception of Cotabato City and ISabela City, which are lodged within two component provinces, Maguindanao and Basilan, respectively. Both cities shall be asked to go through the plebiscite again.

In lieu of the past extensive coverage, the creative compromise arrived at is in the form of the provision whereby by LGU resolution or a petition of at least 10 percent of the resident-voters, the unit may be considered for inclusion in the plebiscite, or afterwards in the Bangsamoro political entity. Many have the wrong notion that the resolution or 10-percent petition already effects the inclusion rather it only makes the plebiscite possible. In all, inclusion shall be based on the consent of the governed. 3. Decommissioning of MILF forces (weapons, combatants and installations) The Annex on Normalization provides a comprehensive approach that would return former combatants and conflict-affected communities to productive, peaceful lives. It involves socioeconomic interventions and reconciliation measures. The security aspect alone is made up of several elements disbandment of private armed groups, decommissioning of MILF combatants and weapons, redeployment of the AFP as the security situation improves, and transitional security arrangements that will see the Armed Forces of the Philippines, the Philippine National Police and MILF forces collaborate to keep peace on the ground. In contrast, no clear-cut comprehensive decommissioning was provided for in the FPA other than the integration of some 7,000 MNLF combatants or their kin into the AFP and the PNP, which required the turning in of a weapon for every one taken into the force. Other differences with the GRP-MNLF FPA: A shorter transition phase in the form of the Bangsamoro Transition Authority created as part of the law, not the Southern Philippine Council for Peace and Development that was instituted by Executive Order; A host of mechanisms that would see through the implementation, including the Third Party Monitoring Team, the Independent Decommissioning Body, the Joint Normalization Committee, and the Transitional Justice and Reconciliation Commission.

Will abolishing the ARMM and passing the Bangsamoro Basic Law negate the GRP-MNLF FPA? No, because even the MNLF have argued that RA 9054 failed to embody certain provisions in the FPA. All of the items that the MNLF have identified as missing can all be introduced in the BBL. If there is any negation, it is the negation brought about by the return to the use of violence, such as what happened in September 2013 in Zamboanga City. If there is any negation, it is the failure to provide good leadership and statesmanship when the opportunity was given. In any case, both the GPH and the MILF see the CAB in a continuum a continuum spurred by the Bangsamoro struggle for meaningful autonomy, and the whole, unfinished business of reforming and strengthening our institutions and consolidating democracy in our country. Such a continuity is reflected in one stand-alone provision in the Powersharing Annex which reads: *** In all, we have before us a rare opportunity to rebuild our institutions in that part of Mindanao through a democratic process based on genuine empowerment, and not patronage. The MILF is the biggest armed challenger to the Philippine state today. It is also the most organized, although largely concentrated in certain areas. The permanent ceasefire that will be secured with the political settlement will bring about economic development for the people in the country ranked lowest in the human development index, and contribute to our overall wellbeing as a nation. To get there would not be easy. The problems are complex, the stakeholders many and fractious, there are

too many armed groups, weapons proliferate, development takes time, old habits die hard, we don't know who the next president will be, and so on. But to be sure, under this administration, the political will is there, and now, more than ever, the peoples desire for peace is strong. Pwede itong mangyari. Kaya itong gawin. We count on your support Maraming salamat po sa inyong lahat.