GENERAL SANTOS CITY (MindaNews / September 12) - Recapitulation: In sum, people (Bangsamoro: Consensus 1), territory (Bangsamoro homeland: Consensus 2), resources (ancestral domain and ancestral lands: Consensus 3), governance (self-governance as Bangsamoro right: Consensus 4), and the authority and jurisdiction of the autonomous government (the Bangsamoro Juridical Entity: Consensus 5) contemplated in the “Concept and Principles” strand of the MOA-AD are all contained in Article X, Sections 15 to 21 of the 1987 Constitution.

The only difference: Those elements of the Muslim autonomy are defined more comprehensively in “Concepts and Principles” than in Article X. Obviously, this comprehensiveness – spelled out in details in the next three strands — set off the alarm, opposition and protests on the issue of constitutionality. Pressured, President Arroyo rejected the MOA-AD.*

*[The turn-around of the Arroyo government – rejecting its own baby, the MOA-AD, and changing its peace process policy – has created an issue of constitutionality vs. the peace process. We will take this up in our concluding discussions.]

Territory

The consensus on “Territory” covers (1) the core and expanded geographical areas of BJE (Consensus 1, 2.a-e, 5); (2) the inland waters, territorial waters and lands (Consensus 2.f-g, 3); (3) what to do with territorial waters (Consensus 2.h-k); political subdivisions (Consensus 4).

Article I of the 1987 Constitution defines the “national territory” as “consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas”. And more:” The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines”.

Consensus 1 of “Territory” states: “The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.  However, delimitations are contained in the agreed Schedules (Categories or maps of Category A and Category B geographical areas). (Italics supplied)

Compare Article I with the italicized portions of Consensus I. This is the ground for critics and opponents of MOA-AD to charge the agreement of granting the MILF more than allowed by the Constitution. The following should be noted:

First: While Consensus 1 copies Article I, Consensus 2.f-g draw the demarcation lines of the BJE internal and territorial waters.  Neither R.A. 6734 nor R.A. 9054 defines the territory of the ARMM aside from the component provinces and cities; however, the ARMM map once displayed at the Office of the Governor showed demarcation lines.

Second: As implied in R.A. 6371 (the Indigenous Peoples Rights Act of 1997), the right to ownership of land is limited to the land surface only.  In the MOA-AD, the territorial rights granted the MILF exceeded the limits reserved for the state only.

Third: Because of these, the MOA-AD is deemed unconstitutional. Those who are unaware of, or who disregard Map A and Map B, conclude that the MILF is claiming the entire Mindanao, Sulu and Palawan.

A relevant question is: If by the above the MOA-AD is unconstitutional, will the peace process justify measures to remedy the unconstitutionality?

Core Area

In Consensus 2.c, six municipalities of Lanao del Norte – Baloi, Munai, Nunungan, Pantar, Tagoloan and Tankal – are included in the ARMM as the core area of BJE because they “voted for inclusion in the ARMM during the 2001 plebiscite”. There has been no protest from Lanao del Norte.  Yet, it should be asked: Is this unconstitutional?

They should have been realigned with Lanao del Sur as part of the ARMM in 2001. The provided-clause of Article X, Section 18, Paragraph 2 states: “… provided that only provinces, cities and geographical areas voting favorably in such plebiscite shall be included in the autonomous region”.  Perhaps, a few more barangays could have been included. (bold ours).

However, Congress deliberately revised Section 18 in Article II, Section 1(1) of R.A. 6734: “There is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution.” (bold ours)

Compare the bold-faced texts in the two quoted provisions above: “geographical areas”, which could mean municipalities or barangays, has been omitted in Article II, Section 1(1) of R.A. 6734. The same has also been omitted in Article II, Section 1 of R.A. 9054 that amended R.A. 6734 according to the 1996 GRP-MNLF Final Peace Agreement.

Has Congress the power to revise the Constitution in enacting laws? Are acts inconsistent with such laws but consistent with the original provision/s of the Constitution unconstitutional?

Categories A and B

Consensus 2.d proposes the inclusion of 735 barangays deemed contiguous with the ARMM through a plebiscite “within twelve (12) months following the signing of the MOA-AD. The proposal may have become academic but it has not lost its political interest; this or a similar proposal may be revived in pursuit of the peace process. So it is with Consensus 2.e.

Any imputation of unconstitutionality on Consensus 2.d and Consensus 2.e is off the mark since the Category A and B geographical areas are to be asked in a plebiscite their option to join or not to join the BJE – those in Category A, 12 months, and those in Category B, 25 years after the signing of MOA-AD.

The only question which is more of an enigma but not on constitutionality is the ambiguity of the MILF position. While in both consensus points “plebiscite” is provided, this position — by its language and statements outside of the MOA-AD — is unclear whether the MILF will accept unfavorable results of the plebiscite.  A clearly stated position would calm down the doubts.

There are two reactions from the concerned areas that enhance the tension. First, these areas voted NO in the 1989 and 2001 ARMM plebiscites, why ask them again to or not to join the BJE – a new name for the ARMM? Second, the geographical areas listed are – a significant number of them — not predominantly Muslim.

These should not be a source of tension. Concerning the first, a NO in the past plebiscites is not certain to be NO in the next. Give those who may want to change the chance to. Regarding the second, each barangay should have been followed by statistical facts: population showing Muslim-Christian percentages; numbers of YES and NO in the 2001 plebiscite.

Territorial Waters

Relative to the territorial waters, as well as the internal waters, their impact on the peace process should be more important than constitutionality. The Constitution should be a tool of the peace process not an obstacle.  As it was already pointed out, if constitutional amendment has been proposed to attract foreign investors, why not do the same for the peace process?

One paramount question is this: If foreign investors are welcome to develop the country’s natural resources, why are the Muslims unwelcome to own portions of those resources and to cooperate with the state in developing them?

Is their ability to carry out the activities enumerated in 2.i(1)(2) doubted? If so, help them develop their skills and with funds since they have expressed their intention to explore, utilize and do other activities to make productive their ancestral domain and lands.

In their articles on “Ancestral Domain, Ancestral Lands and Agrarian Reforms”, R.A. 6734 (XI) and R.A. 9054 (X) define lands and other resources of the ancestral domain and direct their development but sketchily compared to the consensus points of Territory of the MOA-AD. Is sketchiness constitutional and comprehensiveness unconstitutional?

Political Subdivisions

Consensus 4 states: “All territorial and geographical areas … may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions…” Obviously, this very general provision is subject to more discussions as to how the subdivisions would be done.

Section 2, Article VII of R.A. 6734 is more specific: “The Regional Assembly may create, divide, merge, abolish or substantially alter boundaries of any municipality or barangay in accordance with the criteria laid down by existing law subject to approval by a majority of the votes case in a plebiscite in the political units directly affected.”

R.A. 9054 (Article VI, Section 19) lengthily amended this to include provinces and cities which inclusion the Supreme Court recently declared unconstitutional.  This gives a clue on how constitutional or unconstitutional Consensus 4 would be even if the power to form and constitute, per se, is not unconstitutional.

(To Be Continued)

(”Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of
MindaNews. Mr. Diaz is the recipient of a “Lifetime Achievement Award” from the Titus Brandsma for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You may e-mail your comments to patpdiaz@mindanews.comThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it ).