Plsr Vol2 Issue1 Final

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PHILIPPINE

LAWSOCIETY

REVIEW

VOLUME 2 NO. 1SEPTEMBER 2013

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EDITORIAL BOARD

Editor in Chief Florin T. Hilbay

Board of Editors Dean Pacifico A. Agabin

Dean Raul C. Pangalangan

Editorial Staff

Emerson S. Baez Aileen T. Estoquia

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TABLE OF CONTENTS Note from the Editor1 The Creation of the Bangsamoro: Issues, Challenges, and Solutions Antonio LaVia...3 A Perspective on Human Rights Lawyering in the Philippines: A Conversation with Attorney Romeo Capulong Gill H. Boehringer.........45 An Assessment of the Implementation of Republic Act No. 9344 or the Juvenile Justice and Welfare Reform Act by Local Government Units in Luzon Michelle San Buenaventura-Dy............................................. .74

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NOTE FROM THE EDITOR

LAW IS AN enterprise burdened by the weight of time. We look ever backwards in order to glean authority that would guide the present. Part of laws cachet lies in its claims to relevance and permanencethat the strictures we contemplate and commit to paper will transcend human limitations. And yet, rarely do lawyers look beyond the moments contests to contemplate the laws historical roots and its ramifications into the future.

For this issue of the Philippine Law and Society Review, we seek to breach the temporal divide with articles that take a longer view of the law. At the time of writing, almost a year has passed since the signing of the historic Bangsamoro Framework Agreement. Despite this early victory, negotiations remain a protracted process, with both sides expressing their frustration. Dean Antonio La Vias The Creation of Bangsamoro: Issues, Challenges, and Solutions, a survey of the Agreements historical precedents and the past failures of the peace process, is a timely reminder of what is at stake in each difficult, tentative step to peace, particularly in the light of the recent chaos in Zamboanga involving the Moro National Liberation Front (MNLF).

The late Romeo Capulong was a human rights lawyer even before the label became fashionable. Many take on the mantle of pubic lawyering as if it were a chic accessorya ticket to raise ones public profile for a more lucrative private practice, or a rewarding official appointment. But Ka Romy was the genuine article; he made it his lifes work to represent those who have the least. Gill Boehringers interview with Ka Romy is at once a memoir of a life well-lived, and a field guide for lawyers interested in following a great mans example.

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Lastly, An Assessment of the Implementation of Republic Act No. 9344 or the Juvenile Justice and Welfare Reform Act by Local Government Units in Luzon presents the results of a large-scale empirical study conducted by the University of the Philippines Law Center and the Department of Social Welfare and Development. The study goes beyond the confines of the legal and jurisprudential text to see how the law operates in the field, and presents recommendations on how the law may continue to serve its objectives in the future.

Often, the law manifests itself as a constant stream, to be grasped and dealt with in the oppressive present. It is our hope that this issue and other future issues of the PLSR can invite students of the law to explore its more vibrant environs.

FLORIN T. HILBAY Editor in Chief

PHILIPPINE LAW AND SOCIETY REVIEW

THE CREATION OF THE BANGSAMORO

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The Creation of the Bangsamoro: Issues, Challenges, and Solutions

ANTONIO LAVIA

I. OVERVIEW

DECADES OF WAITING and failed experiments failed to dampen the earnest desire of the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF)1 to forge a new peace agreement, the Bangsamoro Framework Agreement, which was signed on October 7, 2012.2 This historic agreement provides for a roadmap towards comprehensive peace in Mindanao. In referring to it, President Benigno Aquino III paraphrased the famous words of Neil Armstrong, the first man to land on the moon, in saying that the country and Mindanao has not only taken a step forward but a giant leap for peace.

The Bangsamoro Framework Agreement provides for a

transition from the Autonomous Region in Muslim Mindanao (ARMM) to the New Autonomous Political Entity (NAPE) known as the Bangsamoro, which both parties agreed to create under the Decision Points on Principles signed last April 24, 2012.3 This is a breath of fresh air considering that the often interrupted peace 1 A Muslim secessionist group which has pushed for the independence of Mindanao for decades. Its claims are largely grounded on the historical rights of the original Muslim inhabitants in the island. 2 Available at http://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdf (last accessed September 23, 2013). 3 Available at http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012 (last accessed September 23, 2013).



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process, initiated by several administrations, seems to have been dragging interminably for a very long time. At times it gave the impression that the differences between the parties were simply insurmountable and the problem in Mindanao incapable of a peaceful solution, while the sufferings of the Mindanaoans became more unbearable as warring factions continued to engage in armed confrontation. This landmark peace pact will hopefully silence the guns and give the inhabitants in the conflict areas their well-deserved peace and prosperity after years of warfare.

The Bangsamoro Framework Agreement is characterized

as the mother agreement, a roadmap containing a set of principles and values that would guide the process for the final political settlement with the MILF. As such, the details will be worked out in future negotiations between the parties. The resulting agreements will then be attached as annexes to form integral parts of the agreement.

II. PRECEDING AGREEMENTS

Numerous episodes of failed peace negotiations underline the difficulty of coming up with a peaceful solution to the conflict in the South. It is a complicated process that attempts to resolve centuries-long historical injusticesfrom colonization, annexation of the Moro homeland, numerous government policies that led to the minoritization of the indigenous peoples in the region, and other unjust practices and policies by the State which are being perpetuated up to the present. This same history of injustice created deep-seated bias, prejudice, and animosity among all stakeholders, including the State, indigenous minorities, and the Christian communities in the Mindanao. The conflict is marked by the sheer density of interests, such that no simple model of solution could be proposed.



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The Tripoli Agreement of 19764 listed 13 provinces to be included in the formation of an autonomous government in Mindanao. It was not, however, properly implemented because of differences in the interpretation of the form of autonomy. The problem of implementation was compounded by former President Ferdinand Marcos himself who held a referendum which seemed to indicate opposition to the inclusion of certain provinces. Marcos never implemented the agreement as envisioned. Instead, he used the dual strategies of co-opting traditional Muslim leaders and encouraging MNLF leaders to go back to the fold of the law through the offer of government perks and government largesse. Essentially therefore, the roots of the conflict remained unaddressed.

During the administration of former President Corazon Aquino, however, the Autonomous Region in Muslim Mindanao (ARMM) was finally created on August 1, 1989 through the enactment of Republic Act No. 6734, otherwise known as the ARMM Organic Act, in pursuance with the constitutional mandate to provide for an autonomous region in Muslim Mindanao.5 This law was further amended by R.A. 9054 in 2001. Again, ARMM was comprehensively repudiated by the Bangsamoro after it proved to be a model of failed governance. At present, the ARMM is but a vehicle by traditional politicians for political aggrandizement, failing as it does to create social and economic impact on the lives of the Muslims and the indigenous peoples in the South. The hostilities continued.

4 Available at http://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdf (last accessed September 23, 2013). 5 Sec. 15, Art. X, 1987 Constitution.



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On January 20, 1994, the Joint Guidelines and Ground Rules for the Implementation of the 1993 Interim GRP-MNLF Ceasefire Agreement6 was signed. It mandated the government to authorize MNLF forces to carry their firearms within MNLF-identified areas, and for the government forces to carry firearms only in the performance of their official functions.

On September 2, 1996, the Final Peace Agreement was signed during the presidency of President Fidel Ramos.7 The agreement skewed closely to the Tripoli Agreement and provided for transitional political and economic structures towards a new regional autonomous government by 1999. It also provided for the integration of about 7,500 MNLF combatants into the military and police. However, the agreement was met with stiff resistance from Christian leaders and groups who saw it as a dangerous precedent. Gradually, the agreement died a natural death when it was overtaken by events which shifted focus away from it.

But perhaps the lowest point in the countrys quest for peace in the region involved the fiasco on the Memorandum of Agreement on the Ancestral Domain (MOA-AD)8, which was initialed on July 27, 2008. The formal signing of the agreement was aborted when the Supreme Court issued a temporary restraining order and subsequently declared the agreement unconstitutional.9

6 Available at http://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdf (last accessed September 23, 2013). 7 Available at http://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdf (last accessed September 23, 2013).. 8 Available at http://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdf (last accessed September 23, 2013).. 9 Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951, October 14, 2008.



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The MOA-AD had provided for the creation of the Bangsamoro Juridical Entity (BJE), which had authority and jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro, defined as the present geographic area of ARMM. These are the areas of Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Also included were the municipalities and the barangays in Lanao del Norte, North Cotabato, Zamboanga City, and Iligan City that voted for inclusion in the ARMM in the 2001 plebiscite.

As to local governance, the relationship between the Central Government and the BJE was that of association, which means that both shared authority and responsibility. The provisions of the MOA-AD vested BJE with the status of an associated state, a concept that is not recognized under our present Constitution. It ran counter to the national sovereignty and territorial integrity of the Republic. Much of the present controversy revolved around this issue.

The Court also ruled that the peace panel committed grave abuse of discretion when it failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.10

With respect to the indigenous cultural communities and indigenous peoples (ICCs/IPs), the Court held that the MOA-AD failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act [Indigenous Peoples Rights Act of 1997], which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. The IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. 10 Ibid.



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Apart from being irreconcilable with the Constitution, the

Court also said that the agreement contravened R.A. No. 9054 or the Organic Act of the ARMM, which clearly delineated the terms Bangsamoro and Indigenous People as separate and different from each other. However, the MOA-AD lumped the two as one and the same.

Likewise put into question was the Presidents power to conduct peace negotiations. The petitioners argued that this power was not explicitly mentioned in the Constitution, but the Court held the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.11 Why the Bangsamoro is different from the BJE. Unlike the MOA-AD which generated a massive uproar of protest by inhabitants in the affected areas, spearheaded by the local executives and other Christian communities, and which reverberated throughout the archipelago, there is a universal acceptance and support to the Bangsamoro Framework Agreement among Christian and Muslims alike. With the new agreement, there is no significant objection against the proposed governance arrangement, either in Congress or by the international community, which has expressed its unqualified support to the agreement.12 Even the breakaway Muslim armed groups such as the Bangsamoro Islamic Freedom Fighters (BIFF)13,

11 Ibid. 12 See http://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subdued (last accessed September 23, 2013). 13 See http://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-with (last accessed September 23, 2013).



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which previously launched terrorist activities following the scrapping of the MOA-AD, have decided to assume a wait-and-see attitude.

One of the main objections pointed out by the Supreme Court in declaring the MOA-AD unconstitutional was the failure of the Presidential Adviser on the Peace Process to carry out the pertinent consultation process as mandated by Executive Order No. 3, RA 7160 or the Local Government Code of 1991, and RA 8371, otherwise known as the Indigenous Peoples Rights Act of 1997. The Court observed that the furtive process by which the MOA-AD was designed and crafted ran contrary to and in excess of its legal authority, and amounted to a whimsical, capricious, oppressive, arbitrary and despotic exercise of authority.14 The Court further said that it illustrated a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

This time guided by the October 2008 decision, the GRP and MILF committed to work together in order to ensure the widest acceptability of the Bangsamoro Basic Law drafted by the Transitory Commission and the core areas mentioned in the previous paragraph, through a process of popular ratification among all the Bangsamoro areas for their adoption. Additionally, they stipulated that an international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate, and in conformity with international standards.15

Under the new agreement, the proposed Transition Committee, composed mostly of citizens of Bangsamoro descent, will draft a proposed basic law creating the Bangsamoro region which will replace the ARMM. The Bangsamoro Basic Law will be crafted in consultation with members of Congress. Once it is passed, a plebiscite will be conducted, to be participated in by the

14 Supra note 8. 15 Paragraph 2, Art. V, Supra note 2.



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people who will be affected by the new Bangsamoro entity. The extensive process of public consultation under the new agreement is much unlike the MOA-AD which was shrouded in secrecy. The Court had also emphasized in its October 2008 decision that the MOA-AD went beyond the bounds of the 1987 Constitution and the laws. According to the Court, the problem was not only the specific provisions of the agreement, but the very concept underlying them, such as the associative relationship envisioned between the GRP and the BJE. The Court said that the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

On the other hand, the Framework Agreement does not call for a new identity like the BJE which must be created outside the flexibilities of the present constitution. As understood in the new Framework Agreement, the State continues to exercise sovereign powers, without prejudice to the inclusion of other powers which may in the future be agreed upon by the parties, including defense and external security, foreign policy, common market and global trade, and the like. These same powers are also granted to the State by the ARMM Organic Law. Again, much like the ARMM under R.A. 9054, the Bangsamoro entity shall also be granted judicial and revenue-generation powers, and a just and equitable share in the fruits of national patrimony.

All transitional processes will be undertaken within the

bounds of the Constitution and pertinent laws of the Philippines. All told, the Bangsamoro is not a separate political entity; its territory will remain part of the Philippines and its inhabitants part of the Filipino nation. The powers granted to it are within the concept of autonomy, nothing more. Clearly, this is a radical departure from the MOA-AD which contemplated a BJE akin to a sub-state, thus implying a move towards independence. For obvious reasons, the State cannot allow the violation of the national integrity provisions of the Constitution.



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As clarified by the Chief Negotiator of the Peace Panel, now Supreme Court Justice Marvic Leonen, the commitments made by the government are within the parameters of the Constitution, or within the flexibilities of the existing Constitution. He added that while part of the powers of the 15-member Transition Commission will be to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the parties whenever necessary without derogating from any prior peace agreement, there is no commitment there that such a proposal is going to be acted upon by Congress.16 As envisioned, the Bangsamoro will not infringe the Constitution since it will merely replace the ARMM, the creation of which was mandated by the Constitution and Republic Act 9054.

Even the ministerial form of government, which to many may not be a familiar concept, does not necessarily call for a constitutional amendment since it merely relates to the provisions of autonomy which is still within the constitutional framework. Again as explained by Leonen, it is akin to a parliamentary government where genuine political parties will dominate and try to capture seats that are allocated maybe to various geographical areas or probably representing certain sectors17 and from which they select their chief minister, but stressed that they would still be under the supervision of the President.

Clearly, the Bangsamoro is not the BJE. Both the GPH and the MILF would have been extremely conscious of the MOA-AD fiasco and averse to running the risk of engaging in extensive negotiations only to come up with an agreement that will fail judicial scrutiny because it violates the Constitution. Nonetheless,

16 See http://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiago (last accessed September 23, 2013). 17 Ibid.



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we shall see whether the Basic Law that will be passed by Congress is compatible with the Constitution.

III. TEXTUAL ANALYSIS OF THE BANGSAMORO FRAMEWORK AGREEMENT

A. THE BANGSAMORO

The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012. (I. Establishment of the Bangsamoro, par. 1) What is Bangsamoro? Essentially, the Parties to the

agreement have agreed to establish a new autonomous political entity to be known as the Bangsamoro. But what does Bangsamoro mean? Bangsamoro is a combination of two words Bangsa and Moro. Bangsa is a Malay term for people or nation and Moro is a Spanish term after the Afro-Berber Moors who were expelled during the Reconquista from the Iberian Peninsula in 1492. The contemporary Bangsamoro is of recent vintage, having been first used in the early 1970s when the Top 90 Muslim youth who underwent military training in West Malaysia formed a secessionist organization known as the MNLF, which had a standing army called the Bangsa Moro Army.

While the term Moro is originally a pejorative term borne out of racial and religious prejudice, it came to refer to the people mainly from Sulu, certain parts of Mindanao, and Palawan who share a common Islamic faith, ethos, and beliefs.



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In time, Bangsamoro evolved from an ethno-linguistic terminology into one referring to a legal and political entity. It reflects the Muslim peoples struggle for equality and self-determination. The newly signed Framework Agreement is thus an attempt to heal the wounds from centuries of discrimination, prejudice, bigotry, and dispossession of a peoples historical birthright and restore to them the dignity that they truly deserve.

While some might have serious misgivings about the use

of the term nation of the Moros because it may be construed as a tacit refusal to relinquish aspirations for independence, the adoption of the term must be seen not as assertion of independence, but as a response to the desire of the Bangsamoro people for peace, freedom founded on parity of esteem, and equal treatment for their identity, ethos, and aspirations.

Replacing the ARMM. President Aquino branded the

ARMM as a failed experiment and justifiably so.18 Official abuse and corruption may be endemic in the country, but there is a nagging perception that it is more systemic and severe in the ARMM. Since its establishment in 1991, a total of P123.6 billion has been allocated to the ARMM, yet the region remains one of the poorest and most underdeveloped in the country.19

Corruption, lack of state capacity in dispensing basic

services and needs, and weak state institutions undermine governance. Corruption is not necessarily unique to Mindanao, but conditions unique to Mindanao help exacerbate the problem: the proliferation of armed groups, political warlordism, the Muslim secessionist movement, and extreme poverty. Poverty and a lack of economic opportunity leave communities vulnerable to dependence on political warlords for income and sustenance.

18 See http://www.gov.ph/2012/10/07/speech-of-president-aquino-on-the-framework-agreement-with-the-milf-october-7-2012. 19 See http://rp1.abs-cbnnews.com/nation/09/26/11/senators-ask-how-will-armm-spend-p124b-budget.



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Money lost to corruption could have been spent on basic education, primary health care, and alternative livelihood initiatives in grassroots communities in Mindanao. The Ampatuan Massacre on November 23, 200920 is a tragically visible example of how warlordism and corruption has imperiled good governance in Mindanao.

Reactions to the ARMM are mixed at best. The inability of the ARMM to deliver basic services has been attributed to its overdependence on the Central Government for budgetary support. As with most local government units, the ARMMs Internal Revenue Allotments are often tied to political considerations. This practice is most accentuated in the case of Mindanao.

In its Audit Performance Summary Report, the Commission on Audit, in its investigation of more than 61,000 government agencies in 2011, highlighted anomalies that mostly occurred in the 2007-2009 period. Based on the report, the biggest items were P1.862 billion in cash advances to two government treasurers in Maguindanao province and P1.123 billion in payments to spurious suppliers in ARMM. According to the COA report, the P1.123 billion for public works went to suppliers and contractors with no documents or used fake ones.

The same report also indicated that certain individuals

made P1.86 billion in cash advances, with one encashment amounting to P98.25 million in one day, despite a rule that all payments must be in checks.21 Up to 98 percent of its P20 billion annual budget went to personnel services.

20 See http://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timeline (last accessed September 23, 2013). 21 See http://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coa (last accessed September 23, 2013).



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Shortages, unaccounted public funds, and disregard of normal accounting procedures remain serious accountability concerns. The extent of corruption in the ARMM was best described by Senator Franklin M. Drilon, who said that there were a lot of ghosts in ARMM: ghost employees, ghost teachers, ghost students, ghost internally displaced persons, ghost voters, ghost contractors, ghost gasoline stations, and many more." He was referring to the fictitious and non-existing persons and transactions used to cover up various anomalies in the region.22

The ARMM also failed because of seriously defective

organizational setup and faulty bureaucratic practices. In his book, Benedicto Bacani points out some of the illegal and unethical practices ailing the ARMM bureaucracy: 23

The Regional Governor holds office in the Manila

Liaison Office. He only comes to the ARMM office in Mindanao to act as tour guide for foreign visitors.

Those who desire the signature of the Regional Governor has to spend a fortune in going to Manila.

Heads of agencies/departments are always traveling to Manila.

Overlapping of appointments. Illegal termination under the guise of Absence

without Leave (AWOL). Difficulty in exercising the contempt power of the

Civil Service Commission. Multiple positions being held by top officials of the

ARMM. High percentage of employees with administrative

cases. 22 See http://www.senate.gov.ph/press_release/2012/0911_drilon1.asp 23 BENEDICTO BACANI, BEYOND PAPER AUTONOMY: THE CHALLENGES IN SOUTH PHILIPPINES 79 (2004).



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National government approved plantilla positions versus locally created positions (appointment by political patronage). Poor records management. Unstable peace and order situation. ARMM areas are widely dispersed and non-

contiguous. Mismanagement of funds and resources. Indiscriminate resort to the Ombudsmans

processes. Many 15-30 employees (where employees

only come to the office to collect their salaries on the 15th and 30th day of the month).

An important challenge therefore for the Bangsamoro is to

ensure that there will be no repeat of the failed ARMM experiment. Ultimately, the success or failure of the Bangsamoro is contingent on its ability to improve the lot of the people within its territory, and the first critical step is to institutionalize accountability and transparency in governance, evolve an effective and efficient bureaucracy that will deliver goods and services to the people, and guarantee that public funds go where they should be. In this regard, institutions within the Bangsamoro must be made compatible with the peculiar cultural and demographic conditions of the place. B. MINISTERIAL FORM OF GOVERNMENT

The government of the Bangsamoro shall have a ministerial form. The Parties agree to entrench an electoral system suitable to a ministerial form of government. The electoral system shall allow democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties.



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The electoral system shall be contained in the

Bangsamoro Basic Law to be implemented through legislation enacted by the Bangsamoro Government and correlated with national laws. (I. Establishment of the Bangsamoro, par. 2)

The provinces, cities, municipalities, barangays

and geographic areas within its territory shall be the constituent units of the Bangsamoro. The authority to regulate on its own responsibility the affairs of the constituent units is guaranteed within the limit of the Bangsamoro Basic Law. The privileges already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the Bangsamoro local government code. (par. 3)

The relationship of the Central Government

with the Bangsamoro Government shall be asymmetric. (par. 4)

Constitutional Amendment? The Bangsamoro will adopt a ministerial form of government.24 Under this set-up, representatives will be elected to the assembly, which will then elect its leader called the Chief Minister. This arrangement is touted to reduce the overdependence of the Bangsamoro Government on the Central Government and avoid the problems that befell the ARMM.

Be that as it may, what is in a ministerial form of

government that makes it different from the government set-up under the present ARMM? Will it be a case of the same dog with a different collar? How will this form of government be more

24 Section 2, Article I of the Framework Agreement.



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effective, more accountable, and more responsive than the present ARMM, which has a regional governor and regional legislative assembly? These must be explained and clarified to the public in order to inspire a renewed hope and trust in the new system of government.

The failure of the ARMM to deliver basic services is also

attributed to its overdependence on the Central Government with respect to budgetary support. This is why the negotiating parties decided to replace it altogether with the Bangsamoro. The Bangsamoro relationship with the Central Government is also asymmetrical; that is, it takes a different form from the existing relationship between the Central Government and other local government units.

However, even though the relationship between the

Central Government and the Bangsamoro Government is asymmetrical in character, the government panel insists that the establishment of the Bangsamoro will not require constitutional amendment. The panel argues that while the Constitution calls for an autonomous region in Muslim Mindanao, it does not specify the kind of autonomous government that should be established, which means that it is broad enough to include a ministerial form. Leonen said that Article 10 of the 1987 Constitution, which contains the provisions on autonomy,25 does not prohibit a ministerial form of government in an autonomous area. 26

To some, this may be stretching a bit the Constitutional

provisions on autonomy. An Organic Law that provides for a ministerial form of government and an asymmetrical relationship can open itself up to constitutional attack since it runs counter to

25 The provisions on autonomy are found in Sections 15, 16, 17, 18, 19, 20 and 21, Ibid. 26 See http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012 (last accessed September 23, 2013).



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the unitary presidential setup mandated by the 1987 Constitution. Nonetheless, the parties themselves acknowledge the necessity of a constitutional amendment by including, as one of the functions of the Transitory Commission, to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements. 27

The Transition Commission may discuss and propose

constitutional change, but ultimately the decision rests on Congress. Will constitutional change pass muster in Congress? Should Congress decide that amending certain provisions of the Constitution is necessary, how soon can this be done? What mode will be used? Will it be through constituent assembly or constitutional convention? Will amendment or revision be done before 2016 when the nation goes to the polls to elect the next president? How will the constitutional process affect the timetable for the implementation of the Comprehensive Agreement?

To change or not to change the Constitution is a

fundamental and inevitable question that Congress, the President, and the negotiating parties will have to face. In Province of North Cotabato vs. GRP Peace Panel,28 the Supreme Court warned that no one has the power to commit to amend the Constitution to make it conform to any agreement: The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents almost consummated the act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.

The repercussions of a repeat of the MOA-AD fiasco are

simply too dire to contemplate. It will dissipate whatever

27 Par. 4(b), Art. VII, Bangsamoro Framework Agreement. 28 Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951, October 14, 2008.



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goodwill and trust that the negotiating parties have nurtured over the years and drive the MILF to more radical measures.

Be that as it may, this author proposes several legal

avenues that may be explored as means of territorial re-arrangement. This includes:29

a. Adopting a type of contemporary constitutionalism - Contemporary constitutionalism espouses the view that the Constitution is a form of accommodation of cultural diversity, following the conventions of mutual recognition, consent, and cultural continuity. The concept is further derived from treaty constitutionalism, similar to the case between the Aboriginal peoples of North America and the British Crown who negotiated as equal, self-governing nations, fostering relations of protection and interdependency. Santos (2001) also puts forth the system of one country, two systems, such as the current set-up between Hong Kong and China.

b. Through the Local Government Code - Even though the areas specified by in the Framework Agreement are included in the core territory, a plebiscite must be conducted for their formal inclusion into the Bangsamoro. The LGC contains the following:

Sec. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a

29 Antonio G.M. La Via and Pauleen Gorospe, Prospects for the Formation of The Bangsamoro, MINDANAO HORIZONS, Vol. 5.



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majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comely) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

Furthermore, RA 9054 includes the following:

Any amendment to or revision of this Organic Act shall become effective only when approved by majority of the votes cast in the plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.

c. Other means for territorial rearrangement without

conducting a plebiscite are identified by Donato (2008):

In any case, it is important to note that the constitutional and statutory requirements for the delimitation and realignment of territory may substantially and materially differ, depending on whether the purpose is for national government administration (at the regional level), local government jurisdiction (at the same regional level), or constitution of a component state in a larger federal state again (at the equivalent regional level)



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(a) For purposes of exercising national executive functions at the regional level, provinces and cities may be covered, without need for any plebiscite, at the reasonable discretion of the President through the issuance of an executive order, or by action of Congress through legislative enactment, subject only to appropriate justification based on geography and demography

(b) For purposes of establishing a local government unit at the regional level, the inclusion of provinces or cities must be approved by the people affected in a plebiscite conducted in accordance with the 1987 Constitution

(c) For purposes of constituting a component state under a federal set-up, the necessary amendments or revisions to the Constitution must be approved by the requisite majority of all the people in a plebiscite for the purpose.

Aside from this, as stated in the Organic Act of 2001, the Bangsamoro can enact its own local government code and administrative code in accordance with the Constitution.

d. Section 18, Article X of the 1987 Constitution states that in establishing a local government unit at the regional level, the inclusion of provinces or cities must be approved by the people affected in a plebiscite conducted in accordance with the 1987 Constitution.



23

Real Autonomy. ARMM leaders complain that the devolution of powers by the national agencies is selective and slow.30 It is selective because what has been devolved are the personnel of line agencies and not the budget allocation for the projects of ARMM which is still being controlled by the national government. This arrangement resulted in a very large bureaucracy but with no budget to finance its projects. There can be real autonomy only if the Bangsamoro is granted substantive devolved powers that on its own and with minimal support from the national government will enable it to perform its mandate of promoting peace and development within its territory. This means a rationalized bureaucratic structure adequately empowered to effectively perform their mandate. As provided, the privileges already enjoyed by the local government units under existing laws, primarily that provided by the Local Government Code, shall not be diminished unless otherwise altered, modified, or reformed for good governance, pursuant to the provisions of the Bangsamoro local government code. In other words, the devolved powers already granted to LGUs which may in the future become part of the Bangsamoro will not be diminished but will continue to be enjoyed by them, subject to modification by the Bangsamoro local government code when necessary to improve the delivery of government service. C. THE BASIC LAW

1. The Bangsamoro shall be governed by a Basic Law. 2. The provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties. 3. The Basic Law shall reflect the Bangsamoro system of life and meet internationally accepted standards of governance.

30 Supra note 23 at 42.



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4. It shall be formulated by the Bangsamoro people and ratified by the qualified voters within its territory.

The Bangsamoro will be governed by a Basic Law to be passed by Congress and ratified by qualified voters of the affected areas in a plebiscite. Again, this underscores the fact that there is an ardent attempt by the parties to comply with the processes provided by the existing Constitution.

It would be more informative if the phrase consistent with all

the agreement of the Parties is fully explained, which the author believes will be adequately clarified in the ensuing negotiations. Do these refer to the annexes that are yet to be negotiated by the parties? Or do they refer to prior agreements, if any? These agreements of the Parties must be fully explained to the public for us to better judge their social and legal acceptability. Why the emphasis on the agreements of the parties, which appear on different parts of the Framework Agreement, rather than the Constitution? While there is no reason to doubt that the Constitution is the cornerstone of the Framework Agreement, it would dispel vagueness and suspicions if the agreement and its annexes would clearly spell out categorically the primordial role of the fundamental law in the Bangsamoro.

D. POWERS OF THE BANGSAMORO

1. The Central Government will have reserved powers, the Bangsamoro Government shall have its exclusive powers, and there will be concurrent powers shared by the Central Government and the Bangsamoro Government.

The Annex on Power Sharing, which includes the principles on intergovernmental relations, shall form part of this Agreement and guide the drafting of the Basic Law.



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2. The Central Government shall have powers on:

a. Defense and external security b. Foreign policy c. Common market and global trade, provided

that the power to enter into economic agreements already allowed under Republic Act No. 9054 shall be transferred to the Bangsamoro

d. Coinage and monetary policy e. Citizenship and naturalization f. Postal service

This list is without prejudice to additional powers that may be agreed upon by the Parties. 3. The Parties recognize the need to strengthen the Shariah courts and to expand their jurisdiction over cases.

The Bangsamoro shall have competence over the Shariah justice system.

The supremacy of Shariah and its application shall only be to Muslims.

4. The Bangsamoro Basic Law may provide for the power of the Bangsamoro Government to accredit halal--certifying bodies in the Bangsamoro.

5. The Bangsamoro Basic Law shall provide for justice institutions in the Bangsamoro. This includes:

a. The competence over the Shariah justice system, as well as the formal institutionalization and operation of its functions, and the expansion of the jurisdiction of the Shariah courts;

b. Measures to improve the workings of local civil courts, when necessary; and

c. Alternative dispute resolution systems.



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6. The customary rights and traditions of indigenous peoples shall be taken into consideration in the formation of the Bangsamoros justice system.

This may include the recognition of indigenous processes as alternative modes of dispute resolution. We recall that the Bangsamoro Juridical Entity (BJE) of the

MOA-AD was adjudged to be a sub-state, and contemplated to have an associative relationship with the Central Governmenta strange animal insofar as the present Constitution is concerned. The legality of the whole concept of the proposed sub-state however becomes tenuous because what is specified in the 1987 Constitution is an autonomous region, not a sub-state or a juridical entity. It requires a significant overhaul of the Constitution which must be amended and ratified by the Filipino people since it envisions a federal system of government.

The Bangsamoro, on the other hand, according to Leonen,

will function well within the strictures of the 1987 Constitution. It will be governed by a statute to be passed by Congress, and will not be independent from the national government, which shall continue to exercise non-negotiable specified powers such as foreign policy, defense and external security, coinage, and citizenship. The list of powers to be exercised by the Central Government is not exclusive since, as provided, the parties may in the future agree on additional powers should they find the need to do so. Nonetheless as envisioned, the State shall continue to determine the policy directions on certain critical aspects of governance which the Bangsamoro legislative assembly cannot encroach upon. This underscores the fact that while the Bangsamoro is fully autonomous in character, it still forms part and parcel of the Philippine Republic.

As provided in Sections 3-6 in Art. III of the Framework

Agreement, the Bangsamoro will have competence over the



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Shariah justice system. The supremacy of the Shariah and its application shall only be to Muslims. The Basic law shall also take into consideration the customary rights and traditions of indigenous peoples in the formation of the Bangsamoro justice system.

This is in recognition of the multi-ethnic character of the

region comprised of the Lumad communities, the Islamized Moros or Bangsamoro, and the settler communities and their descendants. The first two are largely the indigenous inhabitants of the region; the latter are 20th century migrants from Luzon and the Visayas. According to the 2000 census, the Lumad, made up of more than 30 ethno-linguistic groups, comprise about 8.9 percent of the total Mindanao population, while the population of Bangsamoros 13 Islamized ethno-linguistic groups is approximately 18.5 percent of the regions inhabitants.31 Thus, the Sharia justice system and integration of customary laws are essential components of indigenous conflict resolution mechanisms. The adoption of culture sensitive educational environment will be responsive to the unique demographics of the area.

According to both parties, based on existing laws, the

Sharia courts, created specifically for the effective administration and enforcement of the Code of Muslim Personal Laws, have limited jurisdiction and needs to be expanded. It must be stressed that the Sharia courts is subject to the administrative supervision of the Supreme Court and shall remain part and parcel of the judicial system of the country.

31 Rudy Rodil, Mindanao: A Historical Overview, in CHALLENGES TO HUMAN SECURITY IN COMPLEX SITUATIONS at 15 (Merlie Mendoza & Victor Taylor, eds. Asian Disaster Reduction and Response Network 2010).



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E. REVENUE -GENERATION AND WEALTH -SHARING

1. The parties agree that wealth creation (or revenue

generation and sourcing) is important for the operation of the Bangsamoro.

2. Consistent with the Bangsamoro Basic Law, the Bangsamoro will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties. This power shall include the power to determine tax bases and tax rates, guided by the principles of devolution of power, equalization, equity, accountability, administrative simplicity, harmonization, economic efficiency, and fiscal autonomy.

3. The Bangsamoro will have the authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from the Central Government.

Subject to acceptable credit worthiness, it shall also have the authority to contract loans from domestic and foreign lending institutions, except foreign and domestic loans requiring sovereign guaranty, whether explicit or implicit, which would require the approval of the Central Government.

4. The Bangsamoro shall have a just and equitable share in

the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water,



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covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.

5. The Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This shall be without prejudice to the power, authority and duty of the national Commission on Audit to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality, including GOCCs. 6. The details of revenue and wealth sharing arrangements between the Central Government and the Bangsamoro Government shall be agreed upon by the Parties. The Annex on Wealth Sharing shall form part of this Agreement. 7. There shall be an intergovernmental fiscal policy board composed of representatives of the Bangsamoro and the Central Government in order to address revenue imbalances and fluctuations in regional financial needs and revenue--raising capacity. The Board shall meet at least once in six (6) months to determine necessary fiscal policy adjustments, subject to the principles of intergovernmental relations mutually agreed upon by both Parties. Once full fiscal autonomy has been achieved by the Bangsamoro then it may no longer be necessary to have a representative from the Central Government to sit in the Board. Fiscal autonomy shall mean generation and budgeting of the Bangsamoros own sources of revenue, its share of the internal revenue taxes and block grants and subsidies remitted to it by the central government or any donor.



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8. The Parties agree that sustainable development is crucial in protecting and improving the quality of life of the Bangsamoro people. To this end, the Bangsamoro shall develop a comprehensive framework for sustainable development through the proper conservation, utilization and development of natural resources. For efficient coordination and assistance, the Bangsamoro legislative body shall create, by law, an intergovernmental body composed of representatives of the Bangsamoro and the Central Government, which shall ensure the harmonization of environmental and developmental plans, as well as formulate common environmental objectives. The successful implementation of this provision is critical

for two reasons. First. To avoid a repeat of ARMM which failed because of the inability of the local governance to generate significant income from local sources that would redound to the benefit of its inhabitants. According to estimates, ARMM was able to generate only about 5% of its income from local sources, while its remaining income come from the national government. This overdependence on the Central Government is the reason why, despite being granted devolved powers, the ARMM continues to be plagued by the ills of the patronage system.

Second. To rectify the historical wrongs that engender land

disputes in the South. After everything has been said and done, ultimately, the basic problem that underlies the conflict in Mindanao is control of the land, and by extension, the rich natural resources found therein. To the Bangsamoro, an acceptable political solution is to rectify what they perceive as historical wrongs committed against them by Christian-dominated colonial and post-colonial governments and restore to them the lands which are theirs by historical right.



31

In the Framework Agreement, the Bangsamoro will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties. Moreover, it shall have the authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from the Central Government. It shall also have a just and equitable share in the revenues generated through the exploration, development, or utilization of natural resources obtaining in all the areas and territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.

These same powers are also granted to local government

units under the Local Government Code. Insofar as the Bangsamoro is concerned, the details, such as the formula for revenue-sharing, will be threshed out by the parties themselves, subject to the limitations set by the Constitution and existing laws.

In formulating the annexes for revenue-sharing, the parties

must pay special attention to the following constitutional provisions, inter alia:

Each local government unit shall have the power to

create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.32

Local governments 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,

32 Section 5, Art. X, 1987 Constitution.



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including sharing the same with the inhabitants by way of direct benefits.33

All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.34

The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain35 and,

The provisions on Autonomous Regions.36

In a separate article, the author discusses some of the potential flash points related to the matter of disposing resources in the Bangsamoro territory.37

33 Section 7, Art. X, Ibid. 34 Sec. 2, Art. XII, Ibid. 35 Sec. 5, Art. XII, Ibid. 36 Sections 15-20, Art. X, Ibid. 37 Supra note 29.



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Resource-rich areas are always objects of contention, especially in their management. There are two that could be potential sources of conflict within the Bangsamoro territory. Tuminez (2008) identifies the Liguasan Marsh as a source of possible disagreement. The Liguasan Marsh is a 45,000-hectare marshland occupying parts of Maguindanao, North Cotabato, and Sultan Kudarat. The marsh is said to hold large deposits of oil and gas which will bring much needed revenue for the region. Tuminez also cites the Sulu Basin, another haven of oil and gas reserves, as a potential source of conflict.

Aside from economic motivations, certain

political interests are also attached to the management of resources. In the past, many provinces and districts were created in order to ensure that such resources remain in the hands of political elites. Most of these families also took advantage of the legitimizing mechanisms of the state to acquire and strengthen their conglomerates.

For accountability, the Bangsamoro may create its own

auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This local system of accountability may be adopted over and above the exercise by the Commission on Audit its power, authority, and duty to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality.

The principal objective of this article is to achieve full fiscal

autonomy defined therein as the generation and budgeting of Bangsamoros own sources of revenue, its share of the internal revenue taxes, and block grants and subsidies remitted to it by the



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central government or any donor. The success of this arrangement will be gauged on whether the Bangsamoro is able to attain fiscal autonomy without relying so much on the largesse of the national government, and whether it is able to harness the resources within its territorial jurisdiction to better the lot of its constituents. F. TERRITORY

1. The core territory of the Bangsamoro shall be composed of: a. The present geographical area of the ARMM; b. The Municipalities of Baloi, Munai, Nunungan,

Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite;

c. The cities of Cotabato and Isabela; and d. All other contiguous areas where there is a

resolution of the local government unit or a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro as mentioned in the next paragraph.

2. The Parties shall work together in order to ensure the widest acceptability of the Bangsamoro Basic Law as drafted by the Transitory Commission and the core areas mentioned in the previous paragraph,



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through a process of popular ratification among all the Bangsamoro within the areas for their adoption. An international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate and in conformity with international standards.

3. Areas which are contiguous and outside the core territory where there are substantial populations of the Bangsamoro may opt anytime to be part of the territory upon petition of at least ten percent (10%) of the residents and approved by a majority of qualified voters in a plebiscite.

4. The disposition of internal and territorial waters

shall be referred to in the Annexes on Wealth and Power Sharing.

5. Territory refers to the land mass as well as the

maritime, terrestrial, fluvial and alluvial domains, and the aerial domain and the atmospheric space above it. Governance shall be as agreed upon by the parties in this agreement and in the sections on wealth and power sharing.

6. The Bangsamoro Basic Law shall recognize the

collective democratic rights of the constituents in the Bangsamoro.

The core territory of the Bangsamoro consists of: a) the

present geographical area of the ARMM; b) the Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite; (c) the cities of Cotabato and Isabela (previously



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not included in the ARMM); and, (d) all other contiguous areas where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.38

At present, ARMM is composed of the provinces of Basilan

(except Isabela City), Lanao del Sur, Maguindanao, Sulu, and Tawi-Tawi. Previously, it included Shariff Kabunsuan until July 16, 2008 when the Supreme Court declared unconstitutional the "Muslim Mindanao Autonomy Act," which created the province. By virtue of Republic Act 9054, passed in 2001 for the expansion of the ARMM, Marawi City (situated within Lanao del Sur) and the province of Basilan (excluding Isabela City) joined the ARMM.

The territory envisioned under the Framework Agreement

is much smaller than that proposed by the MOA-AD which included around 735 Muslim majority areas and Special Intervention Areas of around 1,500 villages. Nonetheless, it is also important to clarify the term contiguous because this may spell whether certain areas will or will not be included in the Bangsamoro. While the term contiguous ordinarily means adjacent, in the context of the Framework Agreement, does this refer to include only landlocked areas, or does it also contemplate even those separated by narrow bodies of water? G. BASIC RIGHTS

1. In addition to basic rights already enjoyed, the following rights of all citizens residing in the Bangsamoro bind the legislature, executive and judiciary as directly enforceable law and are guaranteed:

38 Article V, Bangsamoro Framework Agreement.



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a. Right to life and to inviolability of ones person and dignity; b. Right to freedom and expression of religion and beliefs; c. Right to privacy; d. Right to freedom of speech; e. Right to express political opinion and pursue democratically political aspiration; f. Right to seek constitutional change by peaceful and legitimate means; g. Right of women to meaningful political participation, and protection from all forms of violence; h. Right to freely choose ones place of residence and the inviolability of the home; i. Right to equal opportunity and non-discrimination in social and economic activity and the public service, regardless of class, creed, disability, gender and ethnicity; j. Right to establish cultural and religious associations; k. Right to freedom from religious, ethnic and sectarian harassment; and l. Right to redress of grievances and due process of law.

2. Vested property rights shall be recognized and respected. With respect to the legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenure or their marginalization shall be acknowledged.

Whenever restoration is no longer possible, the

Central Government and the Government of the Bangsamoro shall take effective measures for adequate



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reparation collectively beneficial to the Bangsamoro people in such quality, quantity and status to be determined mutually.

3. Indigenous peoples rights shall be respected.

4. The Central Government shall ensure the protection of

the rights of the Bangsamoro people residing outside the territory of the Bangsamoro and undertake programs for the rehabilitation and development of their communities. The Bangsamoro Government may provide assistance to their communities to enhance their economic, social and cultural development.

Basic Rights. Note that the rights listed in the Agreement are

in addition to the rights already enjoyed by the people. Worth mentioning are certain rights that are explicitly articulated in the new Agreement which may not be found in Art. 3 of the 1987 Constitution. These include the right of women to meaningful political participation and protection from all forms of violence, and the right to freedom from religious, ethnic, and sectarian harassment. The latter right is significant considering the ethno-linguistic diversity in the region which may be susceptible to religious intolerance.

Also significant under this article is the provision which guarantees respect for vested property rights and recognition of the legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, and customary land tenure or their marginalization, including those of the indigenous peoples.

As previously intimated, the problem in the South is deeply

rooted in land conflicts. The much-lauded Indigenous People's Rights Act (IPRA) Law of 1997 recognizes the rights of indigenous



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people to their ancestral domain. While IPRA provided a measure of protection against unlawful evictions of indigenous peoples from their territories, yet it is far from being the silver bullet to the land ownership issues confronted by the Lumad.

Further, the implementation of IPRA poses serious challenges

due to overlaps with other laws, such as environment and natural resources and forestry laws and the provisions on resource access and tenure. In the midst of budgetary constraints, the effective enforcement of its provisions is basically contingent on the internal capacities of the indigenous communities and the extent of external support given to them.

While the rights of indigenous peoples and vested property

rights shall be recognized and respected, non-Muslims may entertain serious misgivings because the corresponding Basic Law will be drafted by an all-Bangsamoro Transition Committee. Nonetheless, future negotiations between the GRP and the MILF must therefore seriously keep in mind existing laws on land tenure, including IPRA. A good starting point is to disaggregate the land claim disputes and their underlying causes, and define with more clarity the legal parameters of the Bangsamoro homeland, ancestral domain, indigenous peoples rights, land titles, vested rights, and some other concepts and principles like innocent purchaser in good faith, the conflicting interpretation of which continue to spawn land disputes in the Land of Promise land disputes which, if not legally settled, are more often than not, resolved through the barrel of a gun.

G. TRANSITION AND IMPLEMENTATION Under this article, the following shall take place:

Creation of a Transition Commission to work on the drafting of the Bangsamoro Basic Law.



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Passage of the Basic Law into law by Congress Upon promulgation and ratification of the Basic Law,

which provides for the creation of the Bangsamoro Transition Authority (BTA), ARMM is deemed abolished.

All devolved authorities shall be vested in the Bangsamoro Transition Authority during the interim period. The ministerial form and Cabinet system of government shall commence once the Bangsamoro Transition Authority is in place.

The Bangsamoro Transition Authority will be immediately replaced in 2016 upon the election and assumption of the members of the Bangsamoro legislative assembly and the formation of the Bangsamoro government.

H. NORMALIZATION

The Parties agree that normalization is vital to the peace process. It is through normalization that 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 aim of normalization is to ensure human

security in the Bangsamoro. Normalization helps build a society that is committed to basic human rights, where individuals are free from fear of violence or crime and where long-held traditions and value continue to be honored. Human insecurity embraces a wide range of issues that would include violation of human and civil rights, social and political injustice and impunity.



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The MILF shall undertake a graduated program for decommissioning of its forces so that they are put beyond use. In a phased and gradual manner, all law enforcement functions shall be transferred from the Armed Forces of the Philippines (AFP) to the police force for the Bangsamoro.

As stated, the aim of normalization is to ensure human

security in the Bangsamoro. The police system in the Bangsamoro shall remain to be civilian in character, accountable under the law for its action, and responsible both to the Central Government and the Bangsamoro Government, and to the communities it serves. At this stage, the MILF will undertake a graduated program for decommissioning of its forces. In a phased and gradual manner, all law enforcement functions will be transferred from the Armed Forces of the Philippines (AFP) to the police force for the Bangsamoro. The article also provides a commitment by both to work towards the reduction of arms and control of firearms in the area and the disbandment of private armies and other armed groups.

Normalization will certainly be difficult. For centuries, the South has been a haven for lawless elements and a hotbed of armed rebellion spawned by years of economic and political marginalization and injustice. Armed groups operating outside the law abound, and so do unlicensed firearms which do not only proliferate but are too accessible. The challenge is not only how to establish a professional police organization that will restore peace and order in the region but also how to prevent the reemergence in the future of similar armed groups that will instigate and wage another rebellion against the established system.

For starters, there is a need to reach out to existing armed

Muslim groups, including Nur Misuaris MNLF and the BIFF, both of which refuse to recognize or are lukewarm about the Agreement between the GPH and MILF. To fail is not an option.



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Without peace and security, there will be no investments, local or foreign; without peace and security there will be a breakdown of governance which can only bode a repeat of the ARMM misadventure; without peace and security, what is certain is the perpetuation of the perennial poverty which will breed more despair and trouble in the South. Neutralizing and disarming armed groups and lawless elements in the region will take a while, but with determination, it is doable.

In the end, normalization can only be had if all

stakeholders are able and willing, and with utmost sincerity and genuine desire, work together towards this goal.

IV. CONCLUSIONS

One thing that should be kept in mind in future negotiations are the commitments made during previous agreements including those made in the Tripoli Agreement signed on December 23, 1976 between the GRP and MNLF, and the Final Agreement on the Implementation of the 1976 Tripoli Agreement signed on September 2, 1996.

It would be ironic indeed if governing the Bangsamoro

becomes untenable only because of the re-emergence of disgruntled Muslim armed groups like the MNLF and BIFF who might feel left out and totally ignored by the whole process. Did the Framework Agreement totally abrogate the Tripoli Agreement and 1996 peace agreement, or does the new agreement merely serve to complement the previous one? Or is the just concluded agreement a reboot of the 1996 peace agreement considering the pronouncement by the President that the ARMM was a failed experiment? How may the MNLF and other armed Muslim factions with legitimate grievances take part in the peace process?

Other equally important considerations include the

protection and preservation of existing rights of the indigenous



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peoples and Christian communities within the Bangsamoro who may, rightly or wrongly, feel apprehensive about the whole process. How will the parties prevent the Bangsamoro from deteriorating into another ARMM in terms of accountability of its public officials? How will Bangsamoro attain full and genuine autonomy?

A holistic and comprehensive approach to the Moro

problem is a must in order to achieve a settlement that is truly final and enduring; one that will bring a lasting peace in the troubled South. A piece-meal solution will simply not do; it will only create a different crop of disgruntled groups that will sow more troubles in the future and negate whatever gains thus far achieved.

Without doubt the newly signed peace accord is a historic

political document. Despite almost insurmountable differences, the two parties focused on their commonalities to arrive at a mutually agreeable peaceful solution to the Bangsamoro problem. It is significant that after several decades, the MILF, the largest armed group representing the Bangsamoro people, has finally relinquished its desire to secede and establish a separate State. With this new agreement, MILF has finally decided that even with autonomy the aspirations of the Muslim people can be achieved as long as it is genuine and responsive to the needs of their people.

Of course, the conduct of the coming negotiations will be

long and hard. Surely, the devil is in the details. Assembling the nuts and bolts may yet prove more difficult than drafting the mother agreement itself. The Framework Agreement is but a roadmap, a blueprint of sorts that must be fleshed out in the forthcoming negotiations. Along the way, disgruntled groups, those whose entrenched interests are threatened and those who feel left out, will register their objections or even repudiate the whole process altogether. In the end, the key to success of the Bangsamoro is the unqualified support of all stakeholders



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including the national government, Muslims and non-Muslims in the region, the MILF and other armed groups, the Lumads, and the local government units - in order to give peace a chance.


A PERSPECTIVE ON HUMAN RIGHTS LAWYERING

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A Perspective on Human Rights

Lawyering in the Philippines: A Conversation with

Attorney Romeo Capulong

GILL H. BOEHRINGER* Atty. Romeo Capulong was a co-founder and Director of the Public Interest Law Center (PILC) for many years in Manila, Philippines. He was also the founder of the National Union of Peoples Lawyers, also in the Philippines, and Ad Litem Judge for the International Criminal Court for the former Yugoslavia. He died on September 16, 2012. This conversation took place at the PILC office in August 2008. GB: I would like to get the benefit of your long experience in law to get a clearer understanding of progressive lawyering in the Philippines. RC: To discuss progressive lawyering properly, we must always keep in mind the concrete conditions at a specific time in a specific country.

* Gil H. Boehringer is Former Dean of Macquarie Law School, Macquarie University in Sydney, Australia, and Former Director of the Center for the Critical and Historical Study of the Common Law.



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GB: And we must consider the cultural traditions in and outside the legal system, and as they interact? RC: Yes, those traditions are both important. While we have a long history of progressive lawyering of a sort, what we have today is the resultant, the offspring of that historical experience. First, the specific experience of the past and how it is understood; and second, the response of the people to the specific conditions they confront in the present. GB: There seems to be a number of different modes of progressive lawyering arising from that experience. RC: Yes. There are various terms that we use which suggest different understandings or emphasis: progressive lawyering, alternative lawyering, peoples lawyering, human rights lawyering, legal aid lawyeringwhich can be public (Public Attorneys Office under the Department of Justice), or pro bono from law firms, or through community organizations. GB: And of course, public interest lawyering. RC: Yes, that is our rubric. We started about 20 years ago, institutionalizing it in the PILC. In my view, all of the types of lawyering we have mentioned are subsumed under the broad concept of lawyering in the public interest. The modus operandi is of course differentiated across a broad spectrum. GB: Could you say something here about the traditional practice of law in this country? RC: There could be a lot said. But let me make it succinct without comprehensively covering the subject. When we talk of traditional or mainstream legal practice, we are aware of several things, from logic, and from our experience.



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First, as members of a profession, they are in a position to make very significant amounts of money. Therefore, it is not surprising in an individualistic and competitive economic system such as what exists now, that they are driven by money.

Second, like other professionals, indeed people with education generally, they are mis-educated. They are not taught that they have a duty, a calling, especially in view of their important position in the social-political structure, to use their knowledge and skills to help others in a common struggle for social justice. GB: I suppose that for the most part, they have little understanding of and less interest in such a struggle, nor how a lawyer might contribute. RC: In this country, perhaps unlike Australia or some other advanced capitalist country, even the privileged class, including those in the profession of law, cannot be unaware of the very widespread social injustice which exists. They also cannot be unaware of the continuing struggle to rectify the injustices. This is so precisely because important parts of the struggle are waged in the courts and by lawyers, singly or acting in concert with others, such as legal and other activists, to bring about change in the conditions which create injustice. GB: So in such a context, some lawyers, or intending lawyers, come to a point where they must decide what is the proper direction in which to take their career, or their life. RC: Some, a small minority, do make a choice to put their expertise to good use in the struggle. GB: I suspect there is an increasing number here making that choice. The worsening conditions for the mass of people, and the overt resistance to a corrupt regime would likely appeal to some



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of the idealistic young law students and graduates of your many law schools. And there seems to be institutional structures for them to work within.

Even in a country like Australia, there are significant social injustices which bring an increasing number of young lawyers into what we might generally call community lawyering. When I arrived in that country in late 1974, there was a very small sector of such law work. And there was a great deal of burnout, as there were so few and so much to be done. It was almost impossible to make a career of it. But today there are about 250 community legal centers and a number of other modes of community lawyering, so there is now a career structure and more are making the choice to go in that direction. RC: Here, there is a great deal of public interest lawyering, and there certainly are many more young people who have become involved than when I began legal practice years ago. This is, of course, the result of the accumulated experience of our people and the present socio-political, economic conditions in which our youth are coming to maturity. Of course it must be said that there are different degrees of commitment to the struggle of the people. This is always true, of course. If you ask for 100% of their time lawyering in that way, it would be a tiny minority. At this Center, that is what we do and have done since it was established in 1986. GB: How would you sum up the work of the Center? RC: Our fundamental task is, through our legal work, to raise the awareness of the people, especially the poor. Which of course is about 70% of our nearly 90 million population! GB: Awareness of what in particular? RC: Of the nature of the system we live in. We might say, the structures we are enclosed in.



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GB: So that there is a political awareness that injustice is not just due to some incompetent or even corrupt individuals. RC: Yes, and that is a difficult task here where the media makes a lot of noise about one scandal after another. There are big profits to be made in that. But we try to show the systemic nature of the corruption which is so pervasive in our society. And, taking another current issue, we reveal and explain the increasing militarization of our government institutions and programs. GB: Yes, I have looked at that a little. Mrs. Arroyo is surrounded by military and ex-military personnel, and many important positions and programs are under the direction of military types. RC: We try to show the people that the present conditions, in which exploitation is massivethe rich growing richer, the poor growing poorercalls forth repression. And that leads to many of the incidents such as extra- judicial killings and disappearances, in which we are asked to lead the legal challenge against what are largely government operations. Such anti-people attacks are mainly aimed at those who are active in trying to organize and protect the people from extensive violation of their rights as workers and as citizens. GB: And in so doing you also will be exposing the injustices which exist in, or flow from, the legal subsystem? RC: Yes, the legal system is tilted against the poor and exploited. But that does not mean we do not try to win victories in legal struggles. People learn from defeats, as it can lead to a deeper understanding of the system, including the government and the judiciary, when justice is refused in the face of a clear case which demands it. But they also learn from victories! GB: In what way?



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RC: Because the victories do not come easily, and normally come from popular mobilization. GB: As Marx demonstrated in his discussion of the struggles over the Factory Acts which brought some reforms to the conditions of English workers. He was quite positive about such mobilization. RC: In our struggles, we emphasize the importance of popular mobilization. This is crucial, especially in the circumstances here where not only are we fighting on the terrain of the State, but our opponents do not hesitate to deploy intimidation, harassment, and even deadly force when challenged.

We work closely with the people, normally in groups, and this provides an opportunity for us to explain the nature of the law, its contradictory and problematic nature. And of course, we leave them no illusions about the general reflection in the law of societys dominant interests. GB: I have read some of your speeches to various groups in which you make these points, even to the Integrated Bar of the Philippines! Which suggests that the contradictions in law run deeply throughout the legal system here, including within the legal profession.

I also noted in a seminar on law and social justice at the College of Law at the University of the Philippinesthere were academics and lawyers, human rights and other social activists, and client groups from various sectors such as trade unionists, peasants, and fisherfolk. It must be a very exciting, with very dangerous milieu in which to work, and rewarding. RC: There are rewards other than financial, and our young lawyers and paralegals do find their work highly satisfying.



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GB: So an important part of your work is demonstrating how popular mobilization produces the leverage within the law which occasionally makes it tilt in the direction of the people. RC: Yes. Even under the Martial Law of the Marcos regime, when the tilt w

Plsr Vol2 Issue1 Final

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Transcript of Plsr Vol2 Issue1 Final