This article was originally published online in Newsbreak with the title 'Real Autonomy: The terms of the peace agreement should be in the Constitution' on January 28, 2007. It appeared in print in the 4th quarter 2006 issue of IAG's Autonomy & Peace Review with the title 'Charter Change for Mindanao Peace'.  

The 1976 Tripoli Agreement could have settled the Moro rebellion in the southern Philippines except for one thing. The Moro National Liberation Front (MNLF) did not agree with the Philippine government’s position that the Filipino people, through a plebiscite, should decide which territories should be part of the Moro autonomous region.

Fast forward three decades later, and the same stumbling block remains. The current negotiations between the government and the Moro Islamic Liberation Front (MILF) reached an impasse on the same question of subjecting to the constitutional process the delineation of areas that will form part of the prospective Bangsamoro Juridical Entity.

The chief complaint of the MNLF in the enforcement of the 1996 accord is that R.A. 9054, which is the enabling law of the agreement, is a watered-down version of the pact. Government contends that the peace agreement cannot be adopted in toto in the enabling law because some of the pact’s provisions may violate the Philippine Constitution.

The autonomous region cannot be given control over natural and mineral resources in the region because it would violate the constitutional regalian doctrine that public lands and natural resources belong to the State. The region cannot be permitted to have its own police force because the Constitution says that there is only one national police. It cannot be granted bulk funds that can be allocated by the region’s legislative assembly because the power of the purse is exclusively given by the Constitution to Congress. The separation of Church and State in the Constitution blocks Islamic governance because it does not make the distinction. And the list goes on.

In sum, no real autonomy is possible because the Constitution appears to place too many obstacles to a meaningful Moro self-determination.

To its credit, the Arroyo administration seems to have learned from the lessons of past peace negotiations. The government is now employing a new tack in its talks with the MILF by exploring its outer limits. It hopes this approach will support, not inhibit, Moro self-determination.

The government is reportedly anchoring big political concessions to the MILF on international treaties, particularly the International Covenant on Civil and Political Rights and the United Nations Declaration on the Rights of Indigenous Peoples, both of which recognize the right of all peoples and minority groups to self-determination.

These rights include the right to freely determine their political status; the right to freely pursue their economic, social and cultural development; the right to freely dispose natural wealth and resources; and the right to autonomy or self-government in internal and financial affairs. It is legally feasible to invoke international treaties as bases for allowing greater self-determination to the Moro people since our constitution recognizes treaties as part of Philippine laws.

Even so, the government is taking a big gamble in liberally interpreting the Constitution to accommodate the demands of the MILF. Article X of the Constitution enumerates the powers of the autonomous region in Muslim Mindanao, which the charter considers as the system for self-governance for Muslims in the Philippines. By listing down the powers of the autonomous region, this provision has taken away the flexibility of autonomy (which may be agreed upon in peace negotiations) as an effective vehicle for self-determination.

Needless to say, the government must be ready to answer a constitutional challenge for reconfiguring the vehicle for Moro self-determination outside Article X. If the constitution does not help but instead poses an obstacle to a sustainable solution to the Moro rebellion, perhaps it is time to “constitutionalize” the terms of the peace agreement with the MILF (and that with the MNLF). In doing so, the negotiated formula for putting closure to the Mindanao conflict acquires constitutional status, ensuring effective and sustained compliance of its terms by the parties.

But this is not an easy task. First, there must be national support not only for the peace agreement but also for entrenching its terms in the Constitution. Second, the MILF, which does not recognize the Philippine Constitution, must agree that part of the transition to greater self-determination is to make the agreement part of the charter. This requires trust on the part of the MILF that the government will really get the agreement into the Constitution during the period of transition.

With government’s negative track record in implementing past peace agreements, the MILF will most probably accept the plan only when backed with a strong guarantee from strong foreign governments that it will be carried out.

One proposal does not need to wait for a peace agreement to be concluded. Constitutionalist and peace advocate Soliman Santos suggests that a catch-all provision be included in the Constitution that will grant constitutional status to any peace agreement with the Moro people in the future. Another proposal is to amend Article X to strengthen autonomy in Muslim Mindanao.

These proposals, unfortunately, do not resonate in the current charter change debates. For a time, the shift to a federal system has been touted as a solution to the Moro problem. When federalism was eventually dropped for a stronger push for the administration-backed shift to a parliamentary system, the opportunity to resolve the Moro problem via charter change got lost.

Constitutional accommodation for Mindanao peace does not only mean a shift to a federal system, which does not appear likely to happen in the near future. Our nation’s leaders must realize that there is a wide range of constitutional options, which are less ambitious yet more are viable and effective in addressing the root causes of the Moro problem.

Former law dean of Notre Dame University, Benedicto R. Bacani, is the current executive director of the Institute for Autonomy and Governance. Follow him on Twitter @bbacani. Visit his blog here.