CAB and BBL: The two towers

my Trade Tripper column in the 17-18 April issue of BusinessWorld:

I have been saying it repeatedly. But it apparently needs saying as directly as possible: in a perfect world, handshakes would be sufficient to make an agreement. But as things can go wrong and oftentimes will, responsible people work to craft agreements (and laws) as precisely and carefully as possible to protect the interests of the parties concerned.

From that perspective, one then understands that a reading of the Comprehensive Agreement on the Bangsamoro (CAB, and its related agreements) and the present drafts of the Bangsamoro Basic Law (BBL) lead to the rational conclusion that these are not in the interests of the Philippines.

Or to put it even more bluntly: the CAB effectively serves to provide a semblance of legal cover to the Moro Islamic Liberation Front’s claim to statehood, while the BBL aims to supply the resources and implementing wherewithal to carry out that claim.

Again: all four international law elements of a State have been granted to the Bangsamoro in the CAB. That it has the elements of “people” and “government” are seen from the provisions of Articles I.1, I.2 and I.5 of the Framework Agreement. That it has the element of “territory” is seen from the provisions of Article I, as well as Article V, particularly Article V.1. The fourth element, the capacity to enter into international agreements, can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement. All without a word that such agreements are to be made subject to the Philippine Constitution.

The CAB also provides police powers, taxation, and eminent domain. It even gave executive, legislative and judicial branches of government. At this point, for the Philippines to refuse “recognition” to the Bangsamoro is inutile. Nothing is stopping the MILF from declaring anytime that they are now the “Bangsamoro” 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.

Worse, 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,” and the participation of other states in the process arguably elevated the CAB to the level of an international instrument.

As for the words “self-determination,” I have always cautioned that such “right” is usually granted by international law to counter the regretful effects of colonialism or foreign military occupation. International law professor Antonio Cassese points out that self-determination (as opposed to mere “internal self-determination,” referring to local autonomy, and economic and social development) is not available to “religious, cultural or linguistic minorities.”

So the MILF would not have qualified for such a right under international law. Which is well and good because self-determination under international law essentially means “secession.”

Unless, of course, it is voluntarily granted by a government through formal agreement. Unfortunately, the CAB and BBL are full of references to the Bangsamoro’s right to “self-determination.”

Hence, the significance of the MILF’s insistence that the CAB is an international (“executive”) agreement: because effective international agreements generally cannot be thwarted by local laws and institutions (including the Constitution) at the international level.

Even if Congress produces a BBL conforming to the Constitution, the MILF can disregard that by saying that such a BBL does not comply with a binding international agreement that is the CAB. This also weakens any possible pronouncement by the Supreme Court because the MILF would likely argue that it has international personality and not within the coverage of Philippine jurisdiction.

To reiterate: As of March 27 last year (the signing of the CAB), all the Bangsamoro needs to do is declare that it is a new state. Why it hasn’t is an interesting question. But certainly, if a BBL (in its present form) passes, then that would provide the MILF with the legal cover to receive funding, resources and legitimacy both from the government and from international donors.

And if, after a few years, for some reason, perhaps due to some fault (imaginary or real) committed by the Philippines, the Bangsamoro decides to detach from the country, the MILF has the CAB’s legal cover providing it with the elements of statehood, which it can use to gather support from other countries (perhaps Malaysia, which participated in the CAB’s signing).

It’s not too late: Congress can make a law terminating the CAB, which the President is duty-bound to enforce (Article VII, Section 17). Or it can have the CAB classified as a treaty and turned down by the Senate.

Either way, it could open up the opportunity for Congress to make a law not exclusive for any single group but one that can be best described as a comprehensive law for an all Mindanao peace and development.