Bangsamoro at any price

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Back in 2008, the Supreme Court gave one of the most important judicial decisions ever in the history of our Republic. As penned by Associate Justice Conchita Carpio-Morales in the North Cotobato case, the Memorandum of Agreement on Ancestral Domain violated the Constitution, creating as it does “a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, [the Bangsamoro Juridical Entity] is a State in all but name as it meets the criteria of a State.”

As I wrote then (“The MOA and of good intentions,” BusinessWorld, 31 October 2008): “The MOA essentially begins with acknowledgments from the government of the Bangsamoro rights. Then it goes on to identify the Bangsamoro as the natives, Muslim or not, of Mindanao, including Palawan and Sulu at the time of colonization, their descendants, whether mixed or of full blood, and their spouses. The MOA then designates the territory of the Bangsamoro as the land -- as well as waters, airspace, and atmospheric space -- embracing the Mindanao-Sulu-Palawan geographic region. The Bangsamoro Juridical Entity is mandated to have jurisdiction over those areas, including ‘territorial waters,’ as well as the use of resources. Finally, the BJE is free to enter into any economic cooperation and trade relations with foreign countries, establish trade missions in other countries, and enter into environmental treaties. With that, our government almost got away with allowing a group of people to dismember our Republic and to have another State carved out away from us.”

Contrary to what most people think, sovereignty is not a requirement in order for an entity to become a State. As provided for under the 1933 Montevideo Convention, the elements of a State are only the following: people, territory, government, and the capacity to enter into relations with other States. As with the MoA-AD then and as it is now with the Framework Agreement on the Bangsamoro announced last Sunday, all four elements have been acquired by the Bangsamoro. This is an entity that potentially could get portions of OUR territory, OUR resources, and OUR people.

That it has the elements of “people” and “government” are seen from the provisions of Art. I.1 and I.2 of the Framework. Thus, the “Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM).” Also, 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.”

One very significant provision is Article I.5, which betrays the Bangsamoro “people’s” desire to be dis-affiliated from Filipinos and indicates continued use of the quite discredited (under international law) “First Nation” argument: “The Parties recognize Bangsamoro identity. Those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood shall have the right to identify themselves as Bangsamoro by ascription or self-ascription.”

That it has the element of “territory” can be seen from the provisions of Article I above, as well as Article V, particularly Article V.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.”

That it has the “capacity to enter into relations with other States” can be seen in Article III.2.c, whereby the Bangsamoro has “the power to enter into economic agreements.”

That the Bangsamoro and the Philippine government has an “asymmetric” relationship means nothing. When the Framework Agreement takes effect, the Bangsamoro can at any time claim the status of being a State as it has -- with the complicity of our government -- acquired all the elements of one. It has all the powers of a State: police powers, taxation, and eminent domain. It even has its own executive, legislative, and judicial branches of government.

And the clincher why we know the Bangsamoro is a State is because not once under the Framework Agreement do we see the Bangsamoro subject to the Constitution.