The Bangsamoro's international law gambit

my Trade Tripper column in the 13-14 March issue of BusinessWorld:

It has long been my position that whatever draft Bangsamoro Basic Law is passed by Congress, it would ultimately be inutile for the reason that there exists the quite unconstitutional Comprehensive Agreement on the Bangsamoro (which, along with the Framework Agreement and other related agreements, shall hereafter be referred to as the CAB). Or put another way: the debate about the Basic Law’s constitutionality is a false flag, a distraction.

To repeat: our government, by agreeing to terms in the CAB like “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” “internal waters,” “core territories,” and the unwitting use of the term “self-determination” (which under international law is essentially “secession”), contributed to elevating the CAB to arguably an international agreement.

Also, allowing Malaysia’s “witnessing” of the CAB is definitely eccentric. Aside from bolstering the internationalization of the CAB argument, it also raises questions of prudence: Malaysia, after all, is contesting our ownership of Sabah.

Then there is the Department of Foreign Affairs’ leading role in this issue. Autonomous local governments have always been under the Department of the Interior and Local Governments. This is so even for other countries: Native American issues were placed under the United States Department of the Interior; for a time, the Northern Ireland issue was under the United Kingdom’s Home Office. There was no reason why the same thing could not have been done relative to the Bangsamoro. This is not a mere administrative question. The consequence is the public signal that our government sees the Bangsamoro as a “foreign affairs” issue.

And it does not help that a number of Constitutional Commission members to the 1987 Constitution issued a January 2015 statement expressing support for the “creation of the Bangsamoro Autonomous Region” and that it “can become part of international law” upon “its acceptance by the community of nations.” Why should such a “region” need acceptance by other countries? This is a purely internal matter about and between Filipinos.

But then, the Moro Islamic Liberation Front (MILF) clearly viewed the CAB as an international agreement. Reacting to a statement of Senator Miriam Defensor-Santiago that the CAB needs Senate approval, MILF Vice-Chairman Ghazali Jaafar disagreed, saying in a phone interview with GMA News that the nature of the agreement that the MILF signed with the government is an “executive agreement.”

Now the difference between an executive agreement and a treaty is that the latter requires Senate approval (executive agreements do not). But this must be emphasized: under both international law and Philippine law, an “executive agreement” is an international agreement.

What is the significance of this? Huge.

It renders any effort on the part of Congress to “fix” the Basic Law futile. Because it is in the nature of international agreements that they are not to be thwarted by local laws and institutions (including the Constitution).

So even if Congress does produce a Basic Law that conforms to the Constitution, the MILF can disregard that by saying that such a Basic Law does not comply with a binding international agreement that is the CAB.

This also reduces any eventual pronouncement by the Supreme Court as irrelevant. Because any ruling the Supreme Court has is only applicable within the territory and jurisdiction of the Philippines.

Besides, the MILF can also argue (by logical extension) that it has international personality and not within the coverage of Philippine jurisdiction.

As to a possible counter-argument that the MILF agreed for the CAB to go through Philippine constitutional processes before it becomes effective, it must be remembered that the MILF’s stated position is that it understood “it was negotiating with the totality of the Philippine government or ‘whole government,’ especially since, among other reasons, the commander-in-chief powers of the President allow him to bind the whole of government, including its different branches.” (See the Dec. 29, 2014, letter of MILF Chairman Al Haj Murad Ebrahim to the House ad hoc committee on the Basic Law.)

In other words, the MILF has taken the position that it acted upon our government representation that the Executive speaks for the other two branches, and thus the contra-constitutional CAB is effective upon signing.

Thus, this: if the Basic Law doesn’t conform to the contra-constitutional CAB, the MILF now has the diplomatic and international law cover to seek foreign assistance (whether it be international organizations or tribunals or countries) in “correcting” the Philippines’ alleged violation of an international obligation.

All these explain why the Constitution is barely mentioned in the CAB (just once, and only to bizarrely say that the Constitution should be amended to conform to the CAB).

Interestingly, the Basic Law (if passed as currently drafted) will be the only Philippine law ever that is subject not only to the Constitution but also to “international law,” “system of life prescribed by [Muslim] faith,” and “harmony with our customary laws, cultures, traditions.”

To be charitable, the CAB doesn’t seem well thought through.