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.
