Bangsamoro: an Islamic State?

was my Trade Tripper column in the recent weekend issue of BusinessWorld:

CONGRESS HEARINGS on the Bangsamoro Basic Law (currently House Bill 4494) were held in Congress two weeks ago, with retired Supreme Court Justice Vicente Mendoza grabbing the headlines. According to the expert constitutionalist, the power of the President “cannot be diminished, modified or qualified,” and yet the Basic Law “can make the strict enforcement of national laws within the Bangsamoro territory difficult to secure as law enforcement may have to take account of the local customs of the people. I believe House Bill 4494 is beyond the power of Congress to pass.”

On the question of “asymmetry,” Justice Mendoza goes on to say that the Basic Law “cannot be justified on the ground that the relation of the central government and the Bangsamoro government is asymmetric. The question is precisely whether the Bangsamoro Basic Law is not contrary to the Constitution because of such a relationship between the two governments. This relationship cannot justify the recognition of the right of the Bangsamoro people to self-determination, to chart their political future without impairing the sovereignty and territorial integrity of the Philippines.”

Which is what this column has been saying all along. The word “asymmetric” means nothing. All four elements of a State have been granted to the Bangsamoro at the conclusion of the Comprehensive Agreements on the Bangsamoro (CAB). That it has the elements of “people” and “government” are seen from the provisions of Articles 1.1, 1.2 and 1.5 of the Framework Agreement. That it has the element of “territory” is seen from the provisions of Article 1, as well as Article 5, particularly Article 5.1. That the fourth and final element is also already acquired by the Bangsamoro can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement, whereby the Bangsamoro has “the power to enter into economic agreements.” The Basic Law tried to tone down the language (particularly on the last element), but the fact is that the Basic Law itself points out that it should be read and interpreted in conformity with the CAB.

Which leads to this other point: the argument that people should not worry as the planned Basic Law fixes the infirmities in the CAB is inane -- for two reasons: (a) the Basic Law cannot “fix” (amend) the express provisions of the CAB, and (b) the Basic Law is only applicable to those who admit themselves Filipinos and subject to the Constitution.

Some argue that the remedy is for the CAB (and the Basic Law) to be declared unconstitutional by the Supreme Court. But that is being lazy. Why rely on the Supreme Court when Congress itself can take the responsibility of rejecting the Basic Law?

The fact is, the government, by agreeing to terms in the CAB like “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” and the unwitting use of the term “self-determination” (which technically under international law means “secession”), and the participation of other States in the process (e.g., Malaysia) has arguably elevated the CAB to the level of an international instrument. And it is in the nature of international agreements that they are not to be thwarted by local laws (including the Constitution).

As to allowing Malaysia’s “witnessing” of the CAB, this is an eccentric move on the part of the government. After all, common sense would ask: is it prudent to have the one country we are contesting Sabah with to participate in the creation of a juridical entity that will have jurisdiction over certain portions of Philippine territory?

The Department of Foreign Affairs is likely to insist that the CAB is not an “internationalized” document, a position that would be believable if it weren’t for the fact that it is the DFA -- not the Department of the Interior -- talking about the Bangsamoro.

What is undeniable is that the Bangsamoro has been granted all the powers of a State: police powers, taxation, and eminent domain. It even has its own executive, legislative, and judicial branches of government. At this point, for the Philippines to refuse “recognition” is inutile. As of March 27, all the Bangsamoro needs to do is declare that is is a new State. No recognition is required from other states (as recognition is not an element for statehood). And even then, at least for political reasons, it is not farfetched to believe that the countries thanked in the “acknowledgement” portion of the Comprehensive Agreement would readily give that recognition.

And the Moro Islamic Liberation Front (MILF) has been disingenuous whenever the issue of secession crops up. The telling point was that on the same day (Sept. 25) when the MILF’s chief negotiator Mohagher Iqbal testified before Congress and declared reassuringly that “the Bangsamoro will not be a separate state” from the Philippines, a congressman tried to amend the draft Basic Law by adding a non-secession clause. This was immediately rejected by members of the House sympathetic to the Bangsamoro.

Well, if it looks like an Islamic state, it probably is.