–Anna Su, S.J.D. Candidate, Harvard Law School,
A new Framework Agreement between the Philippine government and the Moro Islamic Liberation Front was signed with much rejoicing and fanfare last October 15. To be sure, the Framework Agreement is not yet a peace agreement. In fact, a significant chunk of the agreement concerns the formulation of the necessary transitional steps towards such a final peace deal. After the most recent peace attempt was rejected by the Supreme Court in 2008 however, the new agreement is a welcome and rather promising step in the right direction.
What does the new Framework Agreement say and how is it different from the aborted Memorandum of Agreement (MOA) of four years ago? A few commentators have already raised important questions on the particulars of the agreement. For example, how different is the new political entity from the previous Bangsamoro Juridical Entity (BJE)? Is such an arrangement well within the parameters set by the current Constitution? The fact that the Philippine Constitution is not mentioned anywhere in the text of the new agreement, except that the Transition Commission has the function of formulating proposals to amend it (VII)(4)(b), has already raised some red flags. In addition, what does it mean to say that the relationship between the central government and the Bangsamoro government will be asymmetric? How is that different from the “associative” relationship in the previous MOA?
These are very important questions and each requires a detailed answer. But before we get lost into the trees, it is important to take a long and hard look at the forest.
Religion and self-determination are at the heart of the agreement. The puzzle involves creating a political and institutional arrangement that will facilitate the self-determination of the Moro peoples and yet still affirm Philippine unity. In other words, to put talks of secession to rest once and for all. In the new agreement, there is an outright recognition that the status quo is unacceptable. But what kinds of alternatives are the non-Moros willing to accept?
In the case of Province of North Cotabato v. GRP panel (October 14, 2008), the Philippine Supreme Court struck down the MOA for various constitutional violations, among them, the lack of public consultation leading to the agreement (violation of Article III, Sec. 7 – right to information on matters of public concern); that the concept of association as it is understood in international law is not recognized by the Constitution; and finally, that the BJE as envisioned in the MOA runs counter to the national sovereignty and territorial integrity of the Philippine Republic.
For the purposes of this post, I will focus on the notion of asymmetry in political organizations. If the new setup is to pass constitutional muster, and more importantly, to give effect to aspirations of self-determination of Filipino Muslims, it is important to come up with a good definition of an asymmetric relationship, that is not the already-rejected “associative” relationship defined in the MOA. The Court used the definition of Keitner-Reisman that “[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.” The mention of the word “states” immediately (and perhaps understandably) triggered the alarm bells of secession on the part of the Court, leading it to reject the constitutionality of this relationship.
In the new Framework Agreement, asymmetric was taken to mean as follows: given a unitary setup, the Central government shall have the powers on: (in addition to reserved and concurrent powers)
- Defense and external security
- Foreign policy
- Common market and global trade
- Coinage and monetary policy
- Citizenship and naturalization
- Postal service
The Moro entity, on the other hand, shall have exclusive powers concerning its Sharia-based judicial system (which applies only to Muslims), the creation of its own sources of revenues and to levy taxes, fees and charges; it also has the authority to receive grants and donations from both domestic and foreign sources and to contract loans from domestic and foreign lending institutions except those requiring sovereign guaranty, among others.
This is not a tricky setup in federal arrangements. But in unitary states, it’s difficult to draw the line. In a sense, the current system in the Philippines is already asymmetrical. There currently exists an Autonomous Region on Muslim Mindanao (ARMM) (along with another autonomous region in the northern part of the country) which was constitutionally created during the 1986 drafting process. The ARMM is however the very embodiment of a failed experiment in autonomy and decentralization, so short of a constitutional amendment, the asymmetry sought in the new agreement could just be of a different degree, rather than kind. The examples which immediately comes to mind would be China vis-à-vis Hong Kong and Spain vis-à-vis its Basque and Catalan regions.
Asymmetry seems inevitable insofar as accommodating minority aspirations are concerned. But do they work differently in unitary and federal contexts? And does it effectively rule out any “steps” towards secession? In the Philippine context, the devil just might be in the details.