Negotiating beyond the Constitution, not unconstitutional

Soliman M. Santos, Jr. is a human rights lawyer, peace advocate, legal scholar. He is the 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). This article was published in Business World’s Yellow Pad column on August 18,2008, pages S1/4 to S1/5.

The unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) is under attack now for being unconstitutional, because some of its provisions go beyond the framework of the 1987 Philippine Constitution.  We beg to disagree that this is necessarily unconstitutional.  To seek constitutional change and reform (e.g. a shift to federalism) has not been usually treated as unconstitutional, except, it seems, when it has to do with the Moro question.  In fact, it is normal for peace processes, as shown by the experience of many countries, to seek and effect constitutional change and reform as needed, for a negotiated political settlement.

A peace process may seek from the very start to achieve constitutional reform, as in the case of the GRP-National Democratic Front (NDF) peace negotiations, as seen in The Hague Joint Declaration of 1 September 1992.

The peace process may also see the need for constitutional change only towards the later part of the process, when questions of implementation start to be grappled with. The GRP-MILF peace negotiations started in 1997 with the MILF’s single talking point: “To solve the Bangsamoro problem.”  Only in 2008 did the GRP side see that the emerging ancestral domain aspect of a still-to-come “just, lasting and comprehensive solution to the Bangsamoro problem” would need changes in the existing legal, including constitutional, framework.  The MOA-AD, recognizes this “existing legal framework” albeit with a view to some key changes.

The GRP side is now willing to effect constitutional change as needed as part of an overall solution to the Bangsamoro problem. As some legal and scholarly studies have long pointed out, the Philippine Constitutions 1935, 1973 and 1986 have all been part of the problem in that they have framed the structural relationship between the Philippine state and the Bangsamoro people. This is a colonial-type structural relationship which does injustice (this word used by Cotabato Archbishop Orlando V. Quevedo) to the Bangsamoro identity, way of life and longing for self-rule.

The framework and provisions of the 1986 Philippine Constitution, including its provisions for an Autonomous Region in Muslim Mindanao (ARMM), and its overarching application to the 1996 GRP-Moro National Liberation Front (MNLF) Final Peace Agreement (FPA), have proven to be inadequate in  effectively and qualitatively restructuring that relationship in a way that helps solve the problem.  Thus, the effort in the GRP-MILF peace negotiations to frame a qualitatively better and higher degree of self-determination for the Bangsamoro people (not just the MILF) short of independence or secession (the last upper limit for the GRP).  The MOA-AD is an important part of the process of this effort, but it is not yet the Comprehensive Compact (final peace agreement).

These are peace negotiations, not surrender negotiations, between two sides which have different frameworks, if not world views.  As the MILF has often said, what point is there to these negotiations if their side will accept only the framework of the Philippine Constitution? This Constitution represents the very system that they are fighting to overthrow or separate from.  It is the inherent character of peace negotiations of this sort to seek and find mutually acceptable common ground, usually somewhere in between the respective minimum and maximum positions of the parties.

In the MOA-AD, the MILF (like the MNLF before), has clearly come down from a maximum position of independence for the whole of Mindanao, Sulu and Palawan as the Bangsamoro homeland.  This should help place the MOA-AD in perspective, in terms of who is really giving and taking in the overall, including historical, scheme of things.

But if the Philippine Constitution is the definitive framework of the GRP side, how can the GRP Peace Panel agree to provisions, such as those in the MOA-AD, which go beyond the existing constitutional framework and provisions?  The answer is that the Constitution itself allows for a process of amendments or revisions.

We cite two examples, from the peace negotiations with the NDF and with the MNLF.

First, in the GRP-NDF Breukelen Joint Statement of 14 June 1994, there is this paragraph:  “The GRP Panel reaffirms its position that the GRP commitment to Constitutional processes… does not mean it will cite the GRP Constitution as a basis for rejecting what otherwise would be just and valid proposals fore reforms in society.  If it is shown in fact that certain provisions of the GRP Constitution hinder the attainment of genuine reforms, the GRP Panel is willing to recommend to GRP authorities amendments thereto.  In this context, it is clear that the GRP’s adherence to constitutional processes does not constitute the imposition of the GRP Constitution as framework for the peace talks.”

Second, there was this GRP position during its 1992-96 peace talks with the MNLF:  “… that is not to say, however, that the Constitution is an inflexible and static document.  It is a living constitution with built-in procedures for its amendments or revision, that will bring back to the people for approval such amendments or revision, to meet the needs and aspirations of the Filipino people…. Any agreement which runs counter to the provisions of the Constitution or goes beyond its framework, needs to go through the tedious process of amending or revising the constitution, through a proposal made by a constitutional convention called by Congress or a proposal made by Congress by itself acting as a constituent assembly or a proposal by people’s initiative; and approval or ratification of the proposal by a majority of the votes cast in a plebiscite conducted throughout the Philippines.”

This was, however, not really tested then because the negotiated political settlement with the MNLF did not go beyond the framework of the Constitution—the implication is that it could have, albeit through a tedious process.

But the negotiated political settlement that results from peace talks with the MILF this time must go beyond the framework of the Constitution, if it is to be a real and lasting solution to the Bangsamoro problem.

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