BJE and the question of independent statehood

Is the Bangsamoro Juridical Entity (BJE), proposed in the unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD), a sovereign independent nation-state separate from the Philippine state?  Will it mean the territorial dismemberment of the country?  These are among the worst fears about the MOA-AD and its BJE splashed or aired over the Philippine media.  Let us try to “tackle this issue in an intelligent and dispassionate manner,” guided by truth, reason and justice.

Under the terms of the MOA-AD, the BJE is clearly not a sovereign independent nation-state separate from the Philippine state and, therefore, whatever territory pertains to it would not constitute dismemberment of the country.  We shall deal more with statehood rather than territory here.  It is not enough to recall the old political science or Philippine political law definitions of the state and its four essential elements of people, territory, government and sovereignty, then say that since the BJE seems to have all these, ergo it is a “state,” and then raise hell about it as if there were a declaration of war.

Other juridical entities (if I may also use the term), including my city of Naga and province of Camarines Sur, easily have elements of people, territory and government, so it is usually sovereignty or a certain level of it, that makes the difference between statehood and non-statehood.  This refers to sovereignty that is independent of external control, that has absolute power to govern, unlimited power to make laws, as manifested by power to make and change the fundamental law, which usually resides in the people.  Then also international recognition.  Sovereignty at the country level has traditionally been deemed absolute and indivisible but this notion has changed over several centuries due to both external and internal entities that countries have to deal with.

Anyway, long before there was a Philippine state in the 20th Century, there were already in these islands sovereign independent nation-states that were the sultanates of Sulu and Maguindanao, beginning in the 15th and 17th Centuries, respectively.  The relevance of this is indicated in the MOA-AD, “Concepts and Principles,” paragraph 4, with the Parties, to their credit, reaffirming certain historical truths:  “Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw.  The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense.”

But that was of a time past.  By the early 20th century, such historical sovereignty of the Moro sultanates was lost and since then never recovered, first under the American colonial regime and then under the newly independent Republic of the Philippines.  The Moro liberal fronts of the past four decades have sought to regain that lost sovereignty for the Bangsamoro people, initially through armed struggle against the Philippine government.  The negotiated political settlement of that armed conflict and its roots in sovereignty and related issues is what the peace negotiations are all about.  The settlement reached with the Moro National Liberation Front (MNLF) since 1996, resulting in a new Autonomous Region in Muslim Mindanao (ARMM), has proven to be inadequate.  Thus, the subsequent and ongoing negotiations by/with the MILF for a higher and better form of self-governance or self-determination for which the GRP usually draws the line at independence or secession.

That the BJE under the MOA-AD is not independent and separate from the Philippines is perhaps best shown by the characterization of their proposed restructured relationship as “associative” in several provisions, notably those under “Governance:”

“4.  The relationship between the Central Government and the BJE shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in a Comprehensive Compact.  A period of transition shall be established in a Comprehensive Compact specifying the relationship between the Central Government and the BJE.” (italics and bold face mine)

“5.  In the context of implementing prior and incremental agreements between the GRP and MILF, it is the joint understanding of the Parties that the term ‘entrenchment’ means, for the purposes of giving effect to this transitory provision, the creation of a process of institution building to exercise shared authority over territory and defined functions of associative character.”  (italics and bold face mine)

Shared authority and responsibility connote “shared sovereignty.”  If sovereignty is to be shared by the Central Government and the BJE, then they are necessarily not independent and separate from each other.  The MOA-AD speaks of a transition, presumably to what would be the final political status of the BJE, but what this might be is still subject to negotiations of the Comprehensive Compact.  Ordinarily, there are three general options for self-determination, or more precisely for a Non-Self Governing Territory to reach a full measure of self-government, indicated in UN General Assembly Resolution 1541 (XV) of 1960 (admittedly quite dated):

1. Emergence as a sovereign independent State;
2. Free association with an independent State; or
3. Integration with an independent State.

In the MOA-AD at least, the choice for the BJE appears to be the “free association” option, not the “sovereign independent State” option.  The “integration” option is basically what the Bangsamoro people have had under the Republic of the Philippines.  Note how the autonomy (which is not only in the form of the ARMM) and federalism options are not mentioned here, which doesn’t mean these are not viable options.  Both the GRP and MILF are well aware, in particular, of the federalism option but the concept they preferred to use for the BJE, at least for the period of transition, was an “associative relationship.”  Apart from “shared authority and functions,” the specifics of this relationship have yet to be determined in the Comprehensive Compact.

Parenthetically, some have questioned the terminology “Central Government,” saying this is proper only for a federal set-up.  But it was the terminology used in the1976 Tripoli Agreement, one of the terms of reference (TOR) for the MOA-AD.   And the mention in that TOR of the 1976 Tripoli Agreement, 1996 GRP-MNLF Peace Agreement, Republic Acts Nos. 6734, 9054 and 8371 are in fact indications of a non-independence option in the MOA-AD.  These legal instruments in turn make their own references to the Philippine Constitution (Attn: those looking for something along this line).

Aside from the provisions of the MOA-AD, UNGA Resolution 1541 contains these concepts or principles about free association, so that we might have some idea of this self-determination arrangement short of independence:

“(a)  Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes.  It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.”

“(b)  The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people.  This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.”  (italics mine)

So, much depends really on “the terms of the free association agreed upon.”  This precisely is what the GRP and MILF are in the process of doing, with such terms to be found in the MOA-AD and more importantly for finality and detail, the Comprehensive Compact.    We do not have any more space here to discuss examples of free association, and can only mention a few associated states of the U.S. which are of some familiarity to Filipinos:  the Commonwealth of the Philippines from 1935-46; the Federated States of Micronesia, Palau, and the Marshall Islands;  Puerto Rico and Northern Mariana Islands.  Some of these later emerged as a sovereign independent State (notably the Philippines), others stayed as associated states of the U.S.  All of them, even non-independent states like Puerto Rico, can participate as such in the Olympics, which is really the truer “United Nations.”

To sum up, the BJE under the MOA-AD is neither independent nor a full-fledged state.  Given “shared authority and responsibility,” it may be safer to refer to it as a “semi-state” or “quasi-state.”  Being sub-national in its territory, we might also call it a “sub-state.”   This might jibe with the general notion that free associated states are usually smaller minor partners to larger major partners, e.g. an existing independent State or the former colonial power.  But again, the terms of the free association agreed upon can provide for a more equitable relationship between peoples or nations which are ideally sovereign equals.  The MOA-AD seems to be going in this direction, which is just as well for redressing historical grievances and imbalances.  Perhaps, a best effort at an “associative relationship” should be made and be given a chance — before all concerned consider other options.

Atty. Santos is a Bicolano human rights lawyer, peace advocate, legal scholar;  A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb);  author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).

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