philippine law and society review

7/27/2019 Philippine Law and Society Review

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EDITORIAL BOARD

Editor in ChiefFlorin T. Hilbay

Board of EditorsDean Pacifico A. Agabin

Dean Raul C. Pangalangan

Editorial StaffEmerson S. BaezAileen T. Estoquia


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TABLE OF CONTENTS

Note from the Editor1

The Creation of the Bangsamoro:Issues, Challenges, and Solutions

Antonio LaVia...3

A Perspective on Human Rights Lawyeringin the Philippines: A Conversation withAttorney Romeo CapulongGill H. Boehringer.........45

An Assessment of the Implementation of RepublicAct No. 9344 or the Juvenile Justice and WelfareReform Act by Local Government Units in Luzon

Michelle San Buenaventura-Dy............................................. .74


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NOTE FROM THE EDITOR

LAW IS AN enterprise burdened by the weight of time. We lookever backwards in order to glean authority that would guide thepresent. Part of laws cachet lies in its claims to relevance andpermanencethat the strictures we contemplate and commit topaper will transcend human limitations. And yet, rarely dolawyers look beyond the moments contests to contemplate thelaws historical roots and its ramifications into the future.

For this issue of the Philippine Law and Society Review,we seek to breach the temporal divide with articles that take alonger view of the law. At the time of writing, almost a year haspassed since the signing of the historic Bangsamoro FrameworkAgreement. Despite this early victory, negotiations remain aprotracted process, with both sides expressing their frustration.Dean Antonio La Vias The Creation of Bangsamoro: Issues,Challenges, and Solutions, a survey of the Agreements historicalprecedents and the past failures of the peace process, is a timely

reminder of what is at stake in each difficult, tentative step topeace, particularly in the light of the recent chaos in Zamboangainvolving the Moro National Liberation Front (MNLF).

The late Romeo Capulong was a human rights lawyer evenbefore the label became fashionable. Many take on the mantle ofpubic lawyering as if it were a chic accessorya ticket to raiseones public profile for a more lucrative private practice, or arewarding official appointment. But Ka Romy was the genuinearticle; he made it his lifes work to represent those who have theleast. Gill Boehringers interview with Ka Romy is at once a

memoir of a life well-lived, and a field guide for lawyersinterested in following a great mans example.


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Lastly, An Assessment of the Implementation of Republic ActNo. 9344 or the Juvenile Justice and Welfare Reform Act by LocalGovernment Units in Luzon presents the results of a large-scaleempirical study conducted by the University of the PhilippinesLaw Center and the Department of Social Welfare andDevelopment. The study goes beyond the confines of the legal andjurisprudential text to see how the law operates in the field, andpresents recommendations on how the law may continue to serveits objectives in the future.

Often, the law manifests itself as a constant stream, to be

grasped and dealt with in the oppressive present. It is our hopethat this issue and other future issues of the PLSR can invitestudents of the law to explore its more vibrant environs.

FLORIN T. HILBAYEditor in Chief


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PHILIPPINE LAW AND SOCIETY REVIEW

THE CREATION OF THE BANGSAMORO

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The Creation of the Bangsamoro:Issues, Challenges, and Solutions

ANTONIO LAVIA

I. OVERVIEWDECADES OF WAITING and failed experiments failed todampen the earnest desire of the Government of the Philippines(GPH) and the Moro Islamic Liberation Front (MILF) 1 to forge anew peace agreement, the Bangsamoro Framework Agreement,which was signed on October 7, 2012.2 This historic agreementprovides for a roadmap towards comprehensive peace inMindanao. In referring to it, President Benigno Aquino IIIparaphrased the famous words of Neil Armstrong, the first manto land on the moon, in saying that the country and Mindanao has

not only taken a step forward but a giant leap for peace.

The Bangsamoro Framework Agreement provides for atransition from the Autonomous Region in Muslim Mindanao(ARMM) to the New Autonomous Political Entity (NAPE) knownas the Bangsamoro, which both parties agreed to create under theDecision Points on Principles signed last April 24, 2012. 3 This is abreath of fresh air considering that the often interrupted peace

1 A Muslim secessionist group which has pushed for the independence ofMindanao for decades. Its claims are largely grounded on the historical rights ofthe original Muslim inhabitants in the island.

2 Available athttp://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdf(last accessed September 23, 2013).3 Available athttp://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012(last accessed September 23, 2013).
http://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdfhttp://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdfhttp://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdfhttp://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdfhttp://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://opapp.gov.ph/resources/gph-milf-decision-points-principles-april-2012http://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdfhttp://pcdspo.gov.ph/downloads/2012/10/20121007-GPH-MILF-Framework-Agreement.pdf


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process, initiated by several administrations, seems to have beendragging interminably for a very long time. At times it gave theimpression that the differences between the parties were simplyinsurmountable and the problem in Mindanao incapable of apeaceful solution, while the sufferings of the Mindanaoansbecame more unbearable as warring factions continued to engagein armed confrontation. This landmark peace pact will hopefullysilence the guns and give the inhabitants in the conflict areas theirwell-deserved peace and prosperity after years of warfare.

The Bangsamoro Framework Agreement is characterized

as the mother agreement, a roadmap containing a set ofprinciples and values that would guide the process for the finalpolitical settlement with the MILF. As such, the details will beworked out in future negotiations between the parties. Theresulting agreements will then be attached as annexes to formintegral parts of the agreement.

II. PRECEDING AGREEMENTSNumerous episodes of failed peace negotiations underline thedifficulty of coming up with a peaceful solution to the conflict inthe South. It is a complicated process that attempts to resolvecenturies-long historical injusticesfrom colonization, annexationof the Moro homeland, numerous government policies that led tothe minoritization of the indigenous peoples in the region, andother unjust practices and policies by the State which are beingperpetuated up to the present. This same history of injusticecreated deep-seated bias, prejudice, and animosity among allstakeholders, including the State, indigenous minorities, and theChristian communities in the Mindanao. The conflict is markedby the sheer density of interests, such that no simple model ofsolution could be proposed.


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The Tripoli Agreement of 19764 listed 13 provinces to beincluded in the formation of an autonomous government inMindanao. It was not, however, properly implemented because ofdifferences in the interpretation of the form of autonomy. Theproblem of implementation was compounded by former PresidentFerdinand Marcos himself who held a referendum which seemedto indicate opposition to the inclusion of certain provinces.Marcos never implemented the agreement as envisioned. Instead,he used the dual strategies of co-opting traditional Muslim leadersand encouraging MNLF leaders to go back to the fold of the law

through the offer of government perks and government largesse.Essentially therefore, the roots of the conflict remainedunaddressed.

During the administration of former President CorazonAquino, however, the Autonomous Region in Muslim Mindanao(ARMM) was finally created on August 1, 1989 through theenactment of Republic Act No. 6734, otherwise known as theARMM Organic Act, in pursuance with the constitutionalmandate to provide for an autonomous region in MuslimMindanao.5 This law was further amended by R.A. 9054 in 2001.Again, ARMM was comprehensively repudiated by theBangsamoro after it proved to be a model of failed governance. Atpresent, the ARMM is but a vehicle by traditional politicians forpolitical aggrandizement, failing as it does to create social andeconomic impact on the lives of the Muslims and the indigenouspeoples in the South. The hostilities continued.

4 Available athttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdf(last accessed September 23, 2013).5 Sec. 15, Art. X, 1987 Constitution.
http://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Tripoli-Agreement-December-23-1976.pdf


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On January 20, 1994, the Joint Guidelines and GroundRules for the Implementation of the 1993 Interim GRP-MNLFCeasefire Agreement6 was signed. It mandated the government toauthorize MNLF forces to carry their firearms within MNLF-identified areas, and for the government forces to carry firearmsonly in the performance of their official functions.

On September 2, 1996, the Final Peace Agreement wassigned during the presidency of President Fidel Ramos.7 Theagreement skewed closely to the Tripoli Agreement and provided

for transitional political and economic structures towards a newregional autonomous government by 1999. It also provided for theintegration of about 7,500 MNLF combatants into the military andpolice. However, the agreement was met with stiff resistance fromChristian leaders and groups who saw it as a dangerousprecedent. Gradually, the agreement died a natural death when itwas overtaken by events which shifted focus away from it.

But perhaps the lowest point in the countrys quest forpeace in the region involved the fiasco on the Memorandum ofAgreement on the Ancestral Domain (MOA-AD)8, which wasinitialed on July 27, 2008. The formal signing of the agreement wasaborted when the Supreme Court issued a temporary restrainingorder and subsequently declared the agreement unconstitutional.9

6Available athttp://opapp.gov.ph/sites/default/files/Interim%20GRP-

MNLF%20Ceasefire%20Agreement%20(1993).pdf (last accessed September 23,2013).7 Available athttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdf (last accessed September 23, 2013)..

8 Available athttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdf (last accessed September 23, 2013)..9Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951,October 14, 2008.
http://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdfhttp://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdfhttp://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdfhttp://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93-Ancestral-Domain-August-5-2008.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://pcdspo.gov.ph/downloads/2012/10/Final-Peace-Agreement-MNLF-September-2-1996.pdfhttp://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdfhttp://opapp.gov.ph/sites/default/files/Interim%20GRP-MNLF%20Ceasefire%20Agreement%20(1993).pdf


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The MOA-AD had provided for the creation of theBangsamoro Juridical Entity (BJE), which had authority andjurisdiction over the ancestral domain and ancestral lands of theBangsamoro, defined as the present geographic area of ARMM.These are the areas of Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Also included were themunicipalities and the barangays in Lanao del Norte, NorthCotabato, Zamboanga City, and Iligan City that voted forinclusion in the ARMM in the 2001 plebiscite.

As to local governance, the relationship between the

Central Government and the BJE was that of association, whichmeans that both shared authority and responsibility. Theprovisions of the MOA-AD vested BJE with the status of anassociated state, a concept that is not recognized under ourpresent Constitution. It ran counter to the national sovereigntyand territorial integrity of the Republic. Much of the presentcontroversy revolved around this issue.

The Court also ruled that the peace panel committed graveabuse of discretion when it failed to carry out the pertinentconsultation. The furtive process by which the MOA-AD wasdesigned and crafted runs contrary to and in excess of the legalauthority, and amounts to a whimsical, capricious, oppressive,arbitrary and despotic exercise thereof.10

With respect to the indigenous cultural communities andindigenous peoples (ICCs/IPs), the Court held that the MOA-ADfailed to justify its non-compliance with the clear-cutmechanisms ordained in said Act [Indigenous Peoples Rights Actof 1997], which entails, among other things, the observance of thefree and prior informed consent of the ICCs/IPs. The IPRA doesnot grant the Executive Department or any government agencythe power to delineate and recognize an ancestral domain claimby mere agreement or compromise.

10Ibid.


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Apart from being irreconcilable with the Constitution, theCourt also said that the agreement contravened R.A. No. 9054 orthe Organic Act of the ARMM, which clearly delineated the termsBangsamoro and Indigenous People as separate and differentfrom each other. However, the MOA-AD lumped the two as oneand the same.

Likewise put into question was the Presidents power toconduct peace negotiations. The petitioners argued that thispower was not explicitly mentioned in the Constitution, but the

Court held the President's power to conduct peace negotiations isimplicitly included in her powers as Chief Executive andCommander-in-Chief. As Chief Executive, the President has thegeneral responsibility to promote public peace, and asCommander-in-Chief, she has the more specific duty to preventand suppress rebellion and lawless violence.11

Why the Bangsamoro is different from the BJE. Unlikethe MOA-AD which generated a massive uproar of protest byinhabitants in the affected areas, spearheaded by the localexecutives and other Christian communities, and whichreverberated throughout the archipelago, there is a universalacceptance and support to the Bangsamoro FrameworkAgreement among Christian and Muslims alike. With the newagreement, there is no significant objection against the proposedgovernance arrangement, either in Congress or by theinternational community, which has expressed its unqualifiedsupport to the agreement.12 Even the breakaway Muslim armedgroups such as the Bangsamoro Islamic Freedom Fighters (BIFF)13,

11Ibid.12 Seehttp://www.gmanetwork.com/news/story/278370/news/nation/world-

welcomes-phl-milf-peace-deal-politicians-mnlf-subdued (last accessedSeptember 23, 2013).13 Seehttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-with(last accessed September 23, 2013).
http://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subduedhttp://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subduedhttp://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subduedhttp://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subduedhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/269168/opinion/blogs/biff-ndash-a-new-force-to-reckon-withhttp://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subduedhttp://www.gmanetwork.com/news/story/278370/news/nation/world-welcomes-phl-milf-peace-deal-politicians-mnlf-subdued


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which previously launched terrorist activities following thescrapping of the MOA-AD, have decided to assume a wait-and-see attitude.

One of the main objections pointed out by the SupremeCourt in declaring the MOA-AD unconstitutional was the failureof the Presidential Adviser on the Peace Process to carry out thepertinent consultation process as mandated by Executive OrderNo. 3, RA 7160 or the Local Government Code of 1991, and RA8371, otherwise known as the Indigenous Peoples Rights Act of1997. The Court observed that the furtive process by which the

MOA-AD was designed and crafted ran contrary to and in excessof its legal authority, and amounted to a whimsical, capricious,oppressive, arbitrary and despotic exercise of authority.14 TheCourt further said that it illustrated a gross evasion of positiveduty and a virtual refusal to perform the duty enjoined.

This time guided by the October 2008 decision, the GRPand MILF committed to work together in order to ensure thewidest acceptability of the Bangsamoro Basic Law drafted by theTransitory Commission and the core areas mentioned in theprevious paragraph, through a process of popular ratificationamong all the Bangsamoro areas for their adoption. Additionally,they stipulated that an international third party monitoring teamshall be present to ensure that the process is free, fair, credible,legitimate, and in conformity with international standards.15

Under the new agreement, the proposed TransitionCommittee, composed mostly of citizens of Bangsamoro descent,will draft a proposed basic law creating the Bangsamoro regionwhich will replace the ARMM. The Bangsamoro Basic Law will becrafted in consultation with members of Congress. Once it ispassed, a plebiscite will be conducted, to be participated in by the

14Supra note 8.15 Paragraph 2, Art. V, Supra note 2.


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people who will be affected by the new Bangsamoro entity. Theextensive process of public consultation under the new agreementis much unlike the MOA-AD which was shrouded in secrecy.

The Court had also emphasized in its October 2008 decisionthat the MOA-AD went beyond the bounds of the 1987Constitution and the laws. According to the Court, the problemwas not only the specific provisions of the agreement, but the veryconcept underlying them, such as the associative relationshipenvisioned between the GRP and the BJE. The Court said that theconcept presupposes that the associated entity is a state and

implies that the same is on its way to independence.

On the other hand, the Framework Agreement does notcall for a new identity like the BJE which must be created outsidethe flexibilities of the present constitution. As understood in thenew Framework Agreement, the State continues to exercisesovereign powers, without prejudice to the inclusion of otherpowers which may in the future be agreed upon by the parties,including defense and external security, foreign policy, commonmarket and global trade, and the like. These same powers are alsogranted to the State by the ARMM Organic Law. Again, much likethe ARMM under R.A. 9054, the Bangsamoro entity shall also begranted judicial and revenue-generation powers, and a just andequitable share in the fruits of national patrimony.

All transitional processes will be undertaken within thebounds of the Constitution and pertinent laws of the Philippines.All told, the Bangsamoro is not a separate political entity; itsterritory will remain part of the Philippines and its inhabitantspart of the Filipino nation. The powers granted to it are within theconcept of autonomy, nothing more. Clearly, this is a radicaldeparture from the MOA-AD which contemplated a BJE akin to asub-state, thus implying a move towards independence. Forobvious reasons, the State cannot allow the violation of thenational integrity provisions of the Constitution.


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As clarified by the Chief Negotiator of the Peace Panel, nowSupreme Court Justice Marvic Leonen, the commitments made bythe government are within the parameters of the Constitution, orwithin the flexibilities of the existing Constitution. He added thatwhile part of the powers of the 15-member TransitionCommission will be to work on proposals to amend thePhilippine Constitution for the purpose of accommodating andentrenching in the Constitution the agreements of the partieswhenever necessary without derogating from any prior peaceagreement, there is no commitment there that such a proposal is

going to be acted upon by Congress.16

As envisioned, theBangsamoro will not infringe the Constitution since it will merelyreplace the ARMM, the creation of which was mandated by theConstitution and Republic Act 9054.

Even the ministerial form of government, which to manymay not be a familiar concept, does not necessarily call for aconstitutional amendment since it merely relates to the provisionsof autonomy which is still within the constitutional framework.Again as explained by Leonen, it is akin to a parliamentarygovernment where genuine political parties will dominate andtry to capture seats that are allocated maybe to variousgeographical areas or probably representing certain sectors17 andfrom which they select their chief minister, but stressed that theywould still be under the supervision of the President.

Clearly, the Bangsamoro is not the BJE. Both the GPH andthe MILF would have been extremely conscious of the MOA-ADfiasco and averse to running the risk of engaging in extensivenegotiations only to come up with an agreement that will failjudicial scrutiny because it violates the Constitution. Nonetheless,

16 Seehttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiago(last accessed September 23, 2013).17Ibid.
http://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiagohttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiagohttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiagohttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiagohttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiagohttp://newsinfo.inquirer.net/285476/charter-change-next-peace-step-santiago


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we shall see whether the Basic Law that will be passed byCongress is compatible with the Constitution.

III. TEXTUAL ANALYSIS OF THE BANGSAMOROFRAMEWORK AGREEMENT

A. THE BANGSAMORO

The Parties agree that the status quo is unacceptable andthat the Bangsamoro shall be established to replace theAutonomous Region in Muslim Mindanao (ARMM). TheBangsamoro is the new autonomous political entity (NPE)referred to in the Decision Points of Principles as of April2012. (I. Establishment of the Bangsamoro, par. 1)

What is Bangsamoro? Essentially, the Parties to theagreement have agreed to establish a new autonomous politicalentity to be known as the Bangsamoro. But what does Bangsamoromean? Bangsamoro is a combination of two words Bangsa and

Moro. Bangsa is a Malay term for people or nation and Moro is aSpanish term after the Afro-Berber Moors who were expelledduring the Reconquista from the Iberian Peninsula in 1492. Thecontemporary Bangsamoro is of recent vintage, having been firstused in the early 1970s when the Top 90 Muslim youth whounderwent military training in West Malaysia formed asecessionist organization known as the MNLF, which had astanding army called the Bangsa Moro Army.

While the term Moro is originally a pejorative termborne out of racial and religious prejudice, it came to refer to the

people mainly from Sulu, certain parts of Mindanao, and Palawanwho share a common Islamic faith, ethos, and beliefs.


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In time, Bangsamoro evolved from an ethno-linguisticterminology into one referring to a legal and political entity. Itreflects the Muslim peoples struggle for equality and self-determination. The newly signed Framework Agreement is thusan attempt to heal the wounds from centuries of discrimination,prejudice, bigotry, and dispossession of a peoples historicalbirthright and restore to them the dignity that they truly deserve.

While some might have serious misgivings about the useof the term nation of the Moros because it may be construed as atacit refusal to relinquish aspirations for independence, the

adoption of the term must be seen not as assertion ofindependence, but as a response to the desire of the Bangsamoropeople for peace, freedom founded on parity of esteem, and equaltreatment for their identity, ethos, and aspirations.

Replacing the ARMM. President Aquino branded theARMM as a failed experiment and justifiably so. 18 Official abuseand corruption may be endemic in the country, but there is anagging perception that it is more systemic and severe in theARMM. Since its establishment in 1991, a total of P123.6 billionhas been allocated to the ARMM, yet the region remains one ofthe poorest and most underdeveloped in the country.19

Corruption, lack of state capacity in dispensing basicservices and needs, and weak state institutions underminegovernance. Corruption is not necessarily unique to Mindanao,but conditions unique to Mindanao help exacerbate the problem:the proliferation of armed groups, political warlordism, theMuslim secessionist movement, and extreme poverty. Poverty anda lack of economic opportunity leave communities vulnerable todependence on political warlords for income and sustenance.

18 See http://www.gov.ph/2012/10/07/speech-of-president-aquino-on-the-framework-agreement-with-the-milf-october-7-2012.19 See http://rp1.abs-cbnnews.com/nation/09/26/11/senators-ask-how-will-armm-spend-p124b-budget.


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Money lost to corruption could have been spent on basiceducation, primary health care, and alternative livelihoodinitiatives in grassroots communities in Mindanao. The AmpatuanMassacre on November 23, 200920 is a tragically visible example ofhow warlordism and corruption has imperiled good governancein Mindanao.

Reactions to the ARMM are mixed at best. The inability ofthe ARMM to deliver basic services has been attributed to itsoverdependence on the Central Government for budgetarysupport. As with most local government units, the ARMMs

Internal Revenue Allotments are often tied to politicalconsiderations. This practice is most accentuated in the case ofMindanao.

In its Audit Performance Summary Report, theCommission on Audit, in its investigation of more than 61,000government agencies in 2011, highlighted anomalies that mostlyoccurred in the 2007-2009 period. Based on the report, the biggestitems were P1.862 billion in cash advances to two governmenttreasurers in Maguindanao province and P1.123 billion inpayments to spurious suppliers in ARMM. According to theCOA report, the P1.123 billion for public works went to suppliersand contractors with no documents or used fake ones.

The same report also indicated that certain individualsmade P1.86 billion in cash advances, with one encashmentamounting to P98.25 million in one day, despite a rule that allpayments must be in checks.21 Up to 98 percent of its P20 billionannual budget went to personnel services.

20 See

http://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timeline (last accessed September 23, 2013).21 Seehttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coa (last accessed September 23, 2013).
http://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timelinehttp://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timelinehttp://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timelinehttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.manilatimes.net/index.php/news/top-stories/32622-p101-billion-lost-during-arroyo-rule-coahttp://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timelinehttp://www.gmanetwork.com/news/story/177821/news/specialreports/the-ampatuan-massacre-a-map-and-timeline


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Shortages, unaccounted public funds, and disregard ofnormal accounting procedures remain serious accountabilityconcerns. The extent of corruption in the ARMM was bestdescribed by Senator Franklin M. Drilon, who said that there werea lot of ghosts in ARMM: ghost employees, ghost teachers, ghoststudents, ghost internally displaced persons, ghost voters, ghostcontractors, ghost gasoline stations, and many more." He wasreferring to the fictitious and non-existing persons andtransactions used to cover up various anomalies in the region.22

The ARMM also failed because of seriously defective

organizational setup and faulty bureaucratic practices. In hisbook, Benedicto Bacani points out some of the illegal andunethical practices ailing the ARMM bureaucracy:23

The Regional Governor holds office in the ManilaLiaison Office. He only comes to the ARMM officein Mindanao to act as tour guide for foreignvisitors.

Those who desire the signature of the RegionalGovernor has to spend a fortune in going toManila.

Heads of agencies/departments are alwaystraveling to Manila.

Overlapping of appointments. Illegal termination under the guise of Absence

without Leave (AWOL). Difficulty in exercising the contempt power of the

Civil Service Commission. Multiple positions being held by top officials of the

ARMM. High percentage of employees with administrative

cases.

22 See http://www.senate.gov.ph/press_release/2012/0911_drilon1.asp23 BENEDICTO BACANI, BEYOND PAPER AUTONOMY: THE CHALLENGESIN SOUTH PHILIPPINES 79 (2004).


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National government approved plantilla positionsversus locally created positions (appointment bypolitical patronage). Poor records management. Unstable peace and order situation. ARMM areas are widely dispersed and non-

contiguous. Mismanagement of funds and resources. Indiscriminate resort to the Ombudsmans

processes. Many 15-30 employees (where employees

only come to the office to collect their salarieson the 15th and 30th day of the month).

An important challenge therefore for the Bangsamoro is toensure that there will be no repeat of the failed ARMMexperiment. Ultimately, the success or failure of the Bangsamorois contingent on its ability to improve the lot of the people withinits territory, and the first critical step is to institutionalizeaccountability and transparency in governance, evolve aneffective and efficient bureaucracy that will deliver goods andservices to the people, and guarantee that public funds go wherethey should be. In this regard, institutions within the Bangsamoromust be made compatible with the peculiar cultural anddemographic conditions of the place.

B. MINISTERIAL FORM OF GOVERNMENT

The government of the Bangsamoro shall have aministerial form. The Parties agree to entrench anelectoral system suitable to a ministerial form ofgovernment. The electoral system shall allow democratic

participation, ensure accountability of public officersprimarily to their constituents and encourage formationof genuinely principled political parties.


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The electoral system shall be contained in theBangsamoro Basic Law to be implemented throughlegislation enacted by the Bangsamoro Government andcorrelated with national laws. (I. Establishment of theBangsamoro, par. 2)

The provinces, cities, municipalities, barangaysand geographic areas within its territory shall be theconstituent units of the Bangsamoro. The authority toregulate on its own responsibility the affairs of theconstituent units is guaranteed within the limit of theBangsamoro Basic Law. The privileges already enjoyedby the local government units under existing laws shallnot be diminished unless otherwise altered, modified orreformed for good governance pursuant to the provisionsof the Bangsamoro local government code. (par. 3)

The relationship of the Central Governmentwith the Bangsamoro Government shall be asymmetric.(par. 4)

Constitutional Amendment? The Bangsamoro will adopta ministerial form of government.24 Under this set-up,representatives will be elected to the assembly, which will thenelect its leader called the Chief Minister. This arrangement istouted to reduce the overdependence of the BangsamoroGovernment on the Central Government and avoid the problemsthat befell the ARMM.

Be that as it may, what is in a ministerial form ofgovernment that makes it different from the government set-upunder the present ARMM? Will it be a case of the same dog with a

different collar? How will this form of government be more

24 Section 2, Article I of the Framework Agreement.


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effective, more accountable, and more responsive than the presentARMM, which has a regional governor and regional legislativeassembly? These must be explained and clarified to the public inorder to inspire a renewed hope and trust in the new system ofgovernment.

The failure of the ARMM to deliver basic services is alsoattributed to its overdependence on the Central Government withrespect to budgetary support. This is why the negotiating partiesdecided to replace it altogether with the Bangsamoro. TheBangsamoro relationship with the Central Government is also

asymmetrical; that is, it takes a different form from the existingrelationship between the Central Government and other localgovernment units.

However, even though the relationship between theCentral Government and the Bangsamoro Government isasymmetrical in character, the government panel insists that theestablishment of the Bangsamoro will not require constitutionalamendment. The panel argues that while the Constitution calls foran autonomous region in Muslim Mindanao, it does not specifythe kind of autonomous government that should be established,which means that it is broad enough to include a ministerial form.Leonen said that Article 10 of the 1987 Constitution, whichcontains the provisions on autonomy,25 does not prohibit aministerial form of government in an autonomous area. 26

To some, this may be stretching a bit the Constitutionalprovisions on autonomy. An Organic Law that provides for aministerial form of government and an asymmetrical relationshipcan open itself up to constitutional attack since it runs counter to

25 The provisions on autonomy are found in Sections 15, 16, 17, 18, 19, 20 and 21,

Ibid.26 Seehttp://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012 (last accessedSeptember 23, 2013).
http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-for-cha-cha-to-implement-framework-agreement-october-9-2012


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the unitary presidential setup mandated by the 1987 Constitution.Nonetheless, the parties themselves acknowledge the necessity ofa constitutional amendment by including, as one of the functionsof the Transitory Commission, to work on proposals to amendthe Philippine Constitution for the purpose of accommodatingand entrenching in the Constitution the agreements of the Partieswhenever necessary without derogating from any prior peaceagreements. 27

The Transition Commission may discuss and proposeconstitutional change, but ultimately the decision rests on

Congress. Will constitutional change pass muster in Congress?Should Congress decide that amending certain provisions of theConstitution is necessary, how soon can this be done? What modewill be used? Will it be through constituent assembly orconstitutional convention? Will amendment or revision be donebefore 2016 when the nation goes to the polls to elect the nextpresident? How will the constitutional process affect the timetablefor the implementation of the Comprehensive Agreement?

To change or not to change the Constitution is afundamental and inevitable question that Congress, the President,and the negotiating parties will have to face. In Province of NorthCotabato vs. GRP Peace Panel,28 the Supreme Court warned that noone has the power to commit to amend the Constitution to make itconform to any agreement: The MOA-AD not being a documentthat can bind the Philippines under international lawnotwithstanding, respondents almost consummated the act ofguaranteeing amendments to the legal framework is, by itself,sufficient to constitute grave abuse of discretion.

The repercussions of a repeat of the MOA-AD fiasco aresimply too dire to contemplate. It will dissipate whatever

27 Par. 4(b), Art. VII, Bangsamoro Framework Agreement.28Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951,October 14, 2008.


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goodwill and trust that the negotiating parties have nurtured overthe years and drive the MILF to more radical measures.

Be that as it may, this author proposes several legalavenues that may be explored as means of territorial re-arrangement. This includes:29

a. Adopting a type of contemporary constitutionalism -Contemporary constitutionalism espouses the viewthat the Constitution is a form of accommodation ofcultural diversity, following the conventions of mutual

recognition, consent, and cultural continuity. Theconcept is further derived from treatyconstitutionalism, similar to the case between theAboriginal peoples of North America and the BritishCrown who negotiated as equal, self-governingnations, fostering relations of protection andinterdependency. Santos (2001) also puts forth thesystem of one country, two systems, such as thecurrent set-up between Hong Kong and China.

b. Through the Local Government Code - Even thoughthe areas specified by in the Framework Agreement areincluded in the core territory, a plebiscite must beconducted for their formal inclusion into theBangsamoro. The LGC contains the following:

Sec. 10. Plebiscite Requirement. - No creation,division, merger, abolition, or substantialalteration of boundaries of local governmentunits shall take effect unless approved by a

29 Antonio G.M. La Via and Pauleen Gorospe, Prospects for the Formation of TheBangsamoro, MINDANAO HORIZONS, Vol. 5.


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majority of the votes cast in a plebiscite calledfor the purpose in the political unit or unitsdirectly affected. Said plebiscite shall beconducted by the Commission on Elections(Comely) within one hundred twenty (120)days from the date of effectivity of the law orordinance effecting such action, unless saidlaw or ordinance fixes another date.

Furthermore, RA 9054 includes the following:

Any amendment to or revision of thisOrganic Act shall become effective only whenapproved by majority of the votes cast in theplebiscite called for the purpose, which shallbe held not earlier than sixty (60) days or laterthan ninety (90) days after the approval ofsuch amendment or revision.

c. Other means for territorial rearrangement withoutconducting a plebiscite are identified by Donato(2008):

In any case, it is important to note that theconstitutional and statutory requirements forthe delimitation and realignment of territorymay substantially and materially differ,depending on whether the purpose is fornational government administration (at theregional level), local government jurisdiction(at the same regional level), or constitution ofa component state in a larger federal stateagain (at the equivalent regional level)


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(a) For purposes of exercising nationalexecutive functions at the regional level,provinces and cities may be covered, withoutneed for any plebiscite, at the reasonablediscretion of the President through theissuance of an executive order, or by action ofCongress through legislative enactment,subject only to appropriate justification basedon geography and demography

(b) For purposes of establishing a local

government unit at the regional level, theinclusion of provinces or cities must beapproved by the people affected in aplebiscite conducted in accordance with the1987 Constitution

(c) For purposes of constituting a componentstate under a federal set-up, the necessaryamendments or revisions to the Constitutionmust be approved by the requisite majority ofall the people in a plebiscite for the purpose.

Aside from this, as stated in the Organic Actof 2001, the Bangsamoro can enact its ownlocal government code and administrativecode in accordance with the Constitution.

d. Section 18, Article X of the 1987 Constitution statesthat in establishing a local government unit at theregional level, the inclusion of provinces or citiesmust be approved by the people affected in a plebisciteconducted in accordance with the 1987 Constitution.


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Real Autonomy. ARMM leaders complain that thedevolution of powers by the national agencies is selective andslow.30 It is selective because what has been devolved are thepersonnel of line agencies and not the budget allocation for theprojects of ARMM which is still being controlled by the nationalgovernment. This arrangement resulted in a very largebureaucracy but with no budget to finance its projects. There canbe real autonomy only if the Bangsamoro is granted substantivedevolved powers that on its own and with minimal support fromthe national government will enable it to perform its mandate ofpromoting peace and development within its territory. This

means a rationalized bureaucratic structure adequatelyempowered to effectively perform their mandate.

As provided, the privileges already enjoyed by the localgovernment units under existing laws, primarily that provided bythe Local Government Code, shall not be diminished unlessotherwise altered, modified, or reformed for good governance,pursuant to the provisions of the Bangsamoro local governmentcode. In other words, the devolved powers already granted toLGUs which may in the future become part of the Bangsamorowill not be diminished but will continue to be enjoyed by them,subject to modification by the Bangsamoro local government codewhen necessary to improve the delivery of government service.

C. THE BASIC LAW

1. The Bangsamoro shall be governed by a Basic Law.

2. The provisions of the Bangsamoro Basic Law shall be

consistent with all agreements of the Parties.

3. The Basic Law shall reflect the Bangsamoro system of

life and meet internationally accepted standards of

governance.

30Supra note 23 at 42.


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4. It shall be formulated by the Bangsamoro people andratified by the qualified voters within its territory.

The Bangsamoro will be governed by a Basic Law to be passedby Congress and ratified by qualified voters of the affected areasin a plebiscite. Again, this underscores the fact that there is anardent attempt by the parties to comply with the processesprovided by the existing Constitution.

It would be more informative if the phrase consistent with all

the agreement of the Parties is fully explained, which the authorbelieves will be adequately clarified in the ensuing negotiations.Do these refer to the annexes that are yet to be negotiated by theparties? Or do they refer to prior agreements, if any? Theseagreements of the Parties must be fully explained to the publicfor us to better judge their social and legal acceptability. Why theemphasis on the agreements of the parties, which appear ondifferent parts of the Framework Agreement, rather than theConstitution? While there is no reason to doubt that theConstitution is the cornerstone of the Framework Agreement, itwould dispel vagueness and suspicions if the agreement and its

annexes would clearly spell out categorically the primordial roleof the fundamental law in the Bangsamoro.

D. POWERS OF THE BANGSAMORO

1. The Central Government will have reserved powers,the Bangsamoro Government shall have its exclusivepowers, and there will be concurrent powers sharedby the Central Government and the BangsamoroGovernment.

The Annex on Power Sharing, which includes

the principles on intergovernmental relations, shallform part of this Agreement and guide the draftingof the Basic Law.


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2. The Central Government shall have powers on:a. Defense and external securityb. Foreign policyc. Common market and global trade, provided

that the power to enter into economicagreements already allowed under RepublicAct No. 9054 shall be transferred to theBangsamoro

d. Coinage and monetary policye. Citizenship and naturalizationf. Postal service

This list is without prejudice to additional powersthat may be agreed upon by the Parties.

3. The Parties recognize the need to strengthen theShariah courts and to expand their jurisdiction overcases.

The Bangsamoro shall have competence over theShariah justice system.

The supremacy of Shariah and its application shallonly be to Muslims.

4. The Bangsamoro Basic Law may provide for the powerof the Bangsamoro Government to accredit halal--certifying bodies in the Bangsamoro.

5. The Bangsamoro Basic Law shall provide for justiceinstitutions in the Bangsamoro. This includes:

a. The competence over the Shariah justicesystem, as well as the formal institutionalization andoperation of its functions, and the expansion of thejurisdiction of the Shariah courts;

b. Measures to improve the workings of local

civil courts, when necessary; andc. Alternative dispute resolution systems.


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6. The customary rights and traditions of indigenouspeoples shall be taken into consideration in the formationof the Bangsamoros justice system.

This may include the recognition of indigenousprocesses as alternative modes of dispute resolution.

We recall that the Bangsamoro Juridical Entity (BJE) of theMOA-AD was adjudged to be a sub-state, and contemplated tohave an associative relationship with the Central Governmentastrange animal insofar as the present Constitution is concerned.The legality of the whole concept of the proposed sub-statehowever becomes tenuous because what is specified in the 1987Constitution is an autonomous region, not a sub-state or ajuridical entity. It requires a significant overhaul of theConstitution which must be amended and ratified by the Filipinopeople since it envisions a federal system of government.

The Bangsamoro, on the other hand, according to Leonen,will function well within the strictures of the 1987 Constitution. Itwill be governed by a statute to be passed by Congress, and willnot be independent from the national government, which shall

continue to exercise non-negotiable specified powers such asforeign policy, defense and external security, coinage, andcitizenship. The list of powers to be exercised by the CentralGovernment is not exclusive since, as provided, the parties may inthe future agree on additional powers should they find the needto do so. Nonetheless as envisioned, the State shall continue todetermine the policy directions on certain critical aspects ofgovernance which the Bangsamoro legislative assembly cannotencroach upon. This underscores the fact that while theBangsamoro is fully autonomous in character, it still forms partand parcel of the Philippine Republic.

As provided in Sections 3-6 in Art. III of the FrameworkAgreement, the Bangsamoro will have competence over the


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Shariah justice system. The supremacy of the Shariah and itsapplication shall only be to Muslims. The Basic law shall also takeinto consideration the customary rights and traditions ofindigenous peoples in the formation of the Bangsamoro justicesystem.

This is in recognition of the multi-ethnic character of theregion comprised of the Lumad communities, the IslamizedMoros or Bangsamoro, and the settler communities and theirdescendants. The first two are largely the indigenous inhabitantsof the region; the latter are 20th century migrants from Luzon and

the Visayas. According to the 2000 census, the Lumad, made upof more than 30 ethno-linguistic groups, comprise about 8.9percent of the total Mindanao population, while the population ofBangsamoros 13 Islamized ethno-linguistic groups isapproximately 18.5 percent of the regions inhabitants.31 Thus, theSharia justice system and integration of customary laws areessential components of indigenous conflict resolutionmechanisms. The adoption of culture sensitive educationalenvironment will be responsive to the unique demographics ofthe area.

According to both parties, based on existing laws, theSharia courts, created specifically for the effective administrationand enforcement of the Code of Muslim Personal Laws, havelimited jurisdiction and needs to be expanded. It must be stressedthat the Sharia courts is subject to the administrative supervisionof the Supreme Court and shall remain part and parcel of thejudicial system of the country.

31 Rudy Rodil,Mindanao: A Historical Overview, in CHALLENGES TO HUMANSECURITY IN COMPLEX SITUATIONS at 15 (Merlie Mendoza & Victor Taylor,eds. Asian Disaster Reduction and Response Network 2010).


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E. REVENUE -GENERATION AND WEALTH -SHARING

1. The parties agree that wealth creation (or revenuegeneration and sourcing) is important for the operation

of the Bangsamoro.

2. Consistent with the Bangsamoro Basic Law, theBangsamoro will have the power to create its own

sources of revenues and to levy taxes, fees, and charges,

subject to limitations as may be mutually agreed uponby the Parties.

This power shall include the power to determine tax

bases and tax rates, guided by the principles of

devolution of power, equalization, equity, accountability,

administrative simplicity, harmonization, economic

efficiency, and fiscal autonomy.

3. The Bangsamoro will have the authority to receivegrants and donations from domestic and foreign sources,

and block grants and subsidies from the Central

Government.

Subject to acceptable credit worthiness, it shall also

have the authority to contract loans from domestic and

foreign lending institutions, except foreign and domestic

loans requiring sovereign guaranty, whether explicit or

implicit, which would require the approval of the Central

Government.

4. The Bangsamoro shall have a just and equitable share in

the revenues generated through the exploration,

development or utilization of natural resources

obtaining in all the areas/territories, land or water,


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covered by and within the jurisdiction of theBangsamoro, in accordance with the formula agreed

upon by the Parties.

5. The Bangsamoro may create its own auditing bodyand procedures for accountability over revenues andother funds generated within or by the region fromexternal sources. This shall be without prejudice to thepower, authority and duty of the national Commissionon Audit to examine, audit and settle all accountspertaining to the revenues and the use of funds and

property owned and held in trust by any governmentinstrumentality, including GOCCs.

6. The details of revenue and wealth sharingarrangements between the Central Government and theBangsamoro Government shall be agreed upon by theParties. The Annex on Wealth Sharing shall form part ofthis Agreement.

7. There shall be an intergovernmental fiscal policyboard composed of representatives of the Bangsamoroand the Central Government in order to address revenue

imbalances and fluctuations in regional financial needsand revenue--raising capacity. The Board shall meet atleast once in six (6) months to determine necessary fiscalpolicy adjustments, subject to the principles ofintergovernmental relations mutually agreed upon byboth Parties. Once full fiscal autonomy has beenachieved by the Bangsamoro then it may no longer benecessary to have a representative from the CentralGovernment to sit in the Board. Fiscal autonomy shallmean generation and budgeting of the Bangsamorosown sources of revenue, its share of the internal revenuetaxes and block grants and subsidies remitted to it by thecentral government or any donor.


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8. The Parties agree that sustainable development iscrucial in protecting and improving the quality of life ofthe Bangsamoro people. To this end, the Bangsamoroshall develop a comprehensive framework for sustainabledevelopment through the proper conservation,utilization and development of natural resources. Forefficient coordination and assistance, the Bangsamorolegislative body shall create, by law, anintergovernmental body composed of representatives ofthe Bangsamoro and the Central Government, whichshall ensure the harmonization of environmental anddevelopmental plans, as well as formulate commonenvironmental objectives.

The successful implementation of this provision is criticalfor two reasons. First. To avoid a repeat of ARMM which failedbecause of the inability of the local governance to generatesignificant income from local sources that would redound to thebenefit of its inhabitants. According to estimates, ARMM was ableto generate only about 5% of its income from local sources, whileits remaining income come from the national government. Thisoverdependence on the Central Government is the reason why,

despite being granted devolved powers, the ARMM continues tobe plagued by the ills of the patronage system.

Second. To rectify the historical wrongs that engender landdisputes in the South. After everything has been said and done,ultimately, the basic problem that underlies the conflict inMindanao is control of the land, and by extension, the rich naturalresources found therein. To the Bangsamoro, an acceptablepolitical solution is to rectify what they perceive as historicalwrongs committed against them by Christian-dominated colonialand post-colonial governments and restore to them the lands

which are theirs by historical right.


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In the Framework Agreement, the Bangsamoro will havethe power to create its own sources of revenues and to levy taxes,fees, and charges, subject to limitations as may be mutually agreedupon by the Parties. Moreover, it shall have the authority toreceive grants and donations from domestic and foreign sources,and block grants and subsidies from the Central Government. Itshall also have a just and equitable share in the revenuesgenerated through the exploration, development, or utilization ofnatural resources obtaining in all the areas and territories, land orwater, covered by and within the jurisdiction of the Bangsamoro,in accordance with the formula agreed upon by the Parties.

These same powers are also granted to local governmentunits under the Local Government Code. Insofar as theBangsamoro is concerned, the details, such as the formula forrevenue-sharing, will be threshed out by the parties themselves,subject to the limitations set by the Constitution and existing laws.

In formulating the annexes for revenue-sharing, the partiesmust pay special attention to the following constitutionalprovisions, inter alia:

Each local government unit shall have the power tocreate its own sources of revenues and to levytaxes, fees and charges subject to such guidelinesand limitations as the Congress may provide,consistent with the basic policy of local autonomy.Such taxes, fees, and charges shall accrueexclusively to the local governments.32

Local governments shall be entitled to an equitableshare in the proceeds of the utilization anddevelopment of the national wealth within their

respective areas in the manner provided by law,

32 Section 5, Art. X, 1987 Constitution.


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including sharing the same with the inhabitants byway of direct benefits.33

All lands of the public domain, waters, minerals,coal, petroleum, and other mineral oils, all forces ofpotential energy, fisheries, forests or timber,wildlife, flora and fauna, and other naturalresources are owned by the State. With theexception of agricultural lands, all other naturalresources shall not be alienated. The exploration,development, and utilization of natural resources

shall be under the full control and supervision ofthe State.34

The State, subject to the provisions of thisConstitution and national development policiesand programs, shall protect the rights ofindigenous cultural communities to their ancestrallands to ensure their economic, social, and culturalwell-being The Congress may provide for theapplicability of customary laws governing propertyrights or relations in determining the ownershipand extent of ancestral domain35 and,

The provisions on Autonomous Regions.36

In a separate article, the author discusses some of thepotential flash points related to the matter of disposing resourcesin the Bangsamoro territory.37

33 Section 7, Art. X, Ibid.

34 Sec. 2, Art. XII, Ibid.35 Sec. 5, Art. XII, Ibid.36 Sections 15-20, Art. X, Ibid.37Supra note 29.


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Resource-rich areas are always objects of contention,especially in their management. There are two thatcould be potential sources of conflict within theBangsamoro territory. Tuminez (2008) identifies theLiguasan Marsh as a source of possible disagreement.The Liguasan Marsh is a 45,000-hectare marshlandoccupying parts of Maguindanao, North Cotabato, andSultan Kudarat. The marsh is said to hold largedeposits of oil and gas which will bring much neededrevenue for the region. Tuminez also cites the SuluBasin, another haven of oil and gas reserves, as a

potential source of conflict.

Aside from economic motivations, certainpolitical interests are also attached to the managementof resources. In the past, many provinces and districtswere created in order to ensure that such resourcesremain in the hands of political elites. Most of thesefamilies also took advantage of the legitimizingmechanisms of the state to acquire and strengthen theirconglomerates.

For accountability, the Bangsamoro may create its ownauditing body and procedures for accountability over revenuesand other funds generated within or by the region from externalsources. This local system of accountability may be adopted overand above the exercise by the Commission on Audit its power,authority, and duty to examine, audit and settle all accountspertaining to the revenues and the use of funds and propertyowned and held in trust by any government instrumentality.

The principal objective of this article is to achieve full fiscalautonomy defined therein as the generation and budgeting ofBangsamoros own sources of revenue, its share of the internalrevenue taxes, and block grants and subsidies remitted to it by the


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central government or any donor. The success of this arrangementwill be gauged on whether the Bangsamoro is able to attain fiscalautonomy without relying so much on the largesse of the nationalgovernment, and whether it is able to harness the resources withinits territorial jurisdiction to better the lot of its constituents.

F. TERRITORY

1. The core territory of the Bangsamoro shall be

composed of:

a. The present geographical area of the ARMM;b. The Municipalities of Baloi, Munai, Nunungan,Pantar, Tagoloan and Tangkal in the province of

Lanao del Norte and all other barangays in the

Municipalities of Kabacan, Carmen, Aleosan,

Pigkawayan, Pikit, and Midsayap that voted for

inclusion in the ARMM during the 2001

plebiscite;

c. The cities of Cotabato and Isabela; andd. All other contiguous areas where there is a

resolution of the local government unit or apetition of at least ten percent (10%) of the

qualified voters in the area asking for their

inclusion at least two months prior to the

conduct of the ratification of the Bangsamoro

Basic Law and the process of delimitation of the

Bangsamoro as mentioned in the next

paragraph.

2. The Parties shall work together in order to ensurethe widest acceptability of the Bangsamoro BasicLaw as drafted by the Transitory Commission and

the core areas mentioned in the previous paragraph,


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through a process of popular ratification among allthe Bangsamoro within the areas for their adoption.

An international third party monitoring team shall

be present to ensure that the process is free, fair,

credible, legitimate and in conformity with

international standards.

3. Areas which are contiguous and outside the coreterritory where there are substantial populations ofthe Bangsamoro may opt anytime to be part of theterritory upon petition of at least ten percent (10%)

of the residents and approved by a majority ofqualified voters in a plebiscite.

4. The disposition of internal and territorial watersshall be referred to in the Annexes on Wealth andPower Sharing.

5. Territory refers to the land mass as well as themaritime, terrestrial, fluvial and alluvial domains,and the aerial domain and the atmospheric spaceabove it. Governance shall be as agreed upon by theparties in this agreement and in the sections onwealth and power sharing.

6. The Bangsamoro Basic Law shall recognize thecollective democratic rights of the constituents in theBangsamoro.

The core territory of the Bangsamoro consists of: a) thepresent geographical area of the ARMM; b) the Municipalities ofBaloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in theprovince of Lanao del Norte and all other barangays in the

Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit,and Midsayap that voted for inclusion in the ARMM during the2001 plebiscite; (c) the cities of Cotabato and Isabela (previously


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not included in the ARMM); and, (d) all other contiguous areaswhere there is a resolution of the local government unit or apetition of at least ten percent (10%) of the qualified voters in thearea asking for their inclusion at least two months prior to theconduct of the ratification of the Bangsamoro Basic Law and theprocess of delimitation of the Bangsamoro.38

At present, ARMM is composed of the provinces of Basilan(except Isabela City), Lanao del Sur, Maguindanao, Sulu, andTawi-Tawi. Previously, it included Shariff Kabunsuan until July16, 2008 when the Supreme Court declared unconstitutional the

"Muslim Mindanao Autonomy Act," which created the province.By virtue of Republic Act 9054, passed in 2001 for the expansion ofthe ARMM, Marawi City (situated within Lanao del Sur) and theprovince of Basilan (excluding Isabela City) joined the ARMM.

The territory envisioned under the Framework Agreementis much smaller than that proposed by the MOA-AD whichincluded around 735 Muslim majority areas and SpecialIntervention Areas of around 1,500 villages. Nonetheless, it isalso important to clarify the term contiguous because this mayspell whether certain areas will or will not be included in theBangsamoro. While the term contiguous ordinarily meansadjacent, in the context of the Framework Agreement, does thisrefer to include only landlocked areas, or does it also contemplateeven those separated by narrow bodies of water?

G. BASIC RIGHTS

1. In addition to basic rights already enjoyed, thefollowing rights of all citizens residing in the

Bangsamoro bind the legislature, executive and judiciary

as directly enforceable law and are guaranteed:

38 Article V, Bangsamoro Framework Agreement.


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a. Right to life and to inviolability of ones personand dignity;b. Right to freedom and expression of religion andbeliefs;c. Right to privacy;d. Right to freedom of speech;e. Right to express political opinion and pursuedemocratically political aspiration;f. Right to seek constitutional change by peacefuland legitimate means;

g. Right of women to meaningful politicalparticipation, and protection from all forms ofviolence;h. Right to freely choose ones place of residence andthe inviolability of the home;i. Right to equal opportunity and non-discrimination in social and economic activity andthe public service, regardless of class, creed,disability, gender and ethnicity;j. Right to establish cultural and religiousassociations;

k. Right to freedom from religious, ethnic andsectarian harassment; andl. Right to redress of grievances and due process oflaw.

2. Vested property rights shall be recognized andrespected. With respect to the legitimate grievances ofthe Bangsamoro people arising from any unjustdispossession of their territorial and proprietary rights,customary land tenure or their marginalization shall beacknowledged.

Whenever restoration is no longer possible, theCentral Government and the Government of theBangsamoro shall take effective measures for adequate


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reparation collectively beneficial to the Bangsamoropeople in such quality, quantity and status to bedetermined mutually.

3. Indigenous peoples rights shall be respected.

4. The Central Government shall ensure the protection ofthe rights of the Bangsamoro people residing outside the

territory of the Bangsamoro and undertake programs for

the rehabilitation and development of their communities.

The Bangsamoro Government may provide assistance to

their communities to enhance their economic, social andcultural development.

Basic Rights. Note that the rights listed in the Agreement arein addition to the rights already enjoyed by the people. Worthmentioning are certain rights that are explicitly articulated in thenew Agreement which may not be found in Art. 3 of the 1987Constitution. These include the right of women to meaningfulpolitical participation and protection from all forms of violence,and the right to freedom from religious, ethnic, and sectarian

harassment. The latter right is significant considering the ethno-linguistic diversity in the region which may be susceptible toreligious intolerance.

Also significant under this article is the provision whichguarantees respect for vested property rights and recognition ofthe legitimate grievances of the Bangsamoro people arising fromany unjust dispossession of their territorial and proprietary rights,and customary land tenure or their marginalization, includingthose of the indigenous peoples.

As previously intimated, the problem in the South is deeplyrooted in land conflicts. The much-lauded Indigenous People'sRights Act (IPRA) Law of 1997 recognizes the rights of indigenous


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people to their ancestral domain. While IPRA provided a measureof protection against unlawful evictions of indigenous peoplesfrom their territories, yet it is far from being the silver bullet to theland ownership issues confronted by the Lumad.

Further, the implementation of IPRA poses serious challengesdue to overlaps with other laws, such as environment and naturalresources and forestry laws and the provisions on resource accessand tenure. In the midst of budgetary constraints, the effectiveenforcement of its provisions is basically contingent on theinternal capacities of the indigenous communities and the extent

of external support given to them.

While the rights of indigenous peoples and vested propertyrights shall be recognized and respected, non-Muslims mayentertain serious misgivings because the corresponding Basic Lawwill be drafted by an all-Bangsamoro Transition Committee.Nonetheless, future negotiations between the GRP and the MILFmust therefore seriously keep in mind existing laws on landtenure, including IPRA. A good starting point is to disaggregatethe land claim disputes and their underlying causes, and definewith more clarity the legal parameters of the Bangsamorohomeland, ancestral domain, indigenous peoples rights, landtitles, vested rights, and some other concepts and principles likeinnocent purchaser in good faith, the conflicting interpretation ofwhich continue to spawn land disputes in the Land of Promiseland disputes which, if not legally settled, are more often than not,resolved through the barrel of a gun.

G. TRANSITION AND IMPLEMENTATION

Underthis article, the following shall take place:

Creation of a Transition Commission to work on thedrafting of the Bangsamoro Basic Law.


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Passage of the Basic Law into law by Congress Upon promulgation and ratification of the Basic Law,

which provides for the creation of the BangsamoroTransition Authority (BTA), ARMM is deemed abolished.

All devolved authorities shall be vested in the BangsamoroTransition Authority during the interim period. Theministerial form and Cabinet system of government shallcommence once the Bangsamoro Transition Authority is inplace.

The Bangsamoro Transition Authority will be immediatelyreplaced in 2016 upon the election and assumption of themembers of the Bangsamoro legislative assembly and theformation of the Bangsamoro government.

H. NORMALIZATION

The Parties agree that normalization is vital to thepeace process. It is through normalization thatcommunities can return to conditions where they can

achieve their desired quality of life, which includes thepursuit of sustainable livelihoods and politicalparticipation within a peaceful deliberative society.

The aim of normalization is to ensure humansecurity in the Bangsamoro. Normalization helpsbuild a society that is committed to basic human rights,where individuals are free from fear of violence or crimeand where long-held traditions and value continue tobe honored. Human insecurity embraces a wide range ofissues that would include violation of human and civil

rights, social and political injustice and impunity.


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The MILF shall undertake a graduated programfor decommissioning of its forces so that they are putbeyond use. In a phased and gradual manner, all lawenforcement functions shall be transferred from theArmed Forces of the Philippines (AFP) to the policeforce for the Bangsamoro.

As stated, the aim of normalization is to ensure humansecurity in the Bangsamoro. The police system in the Bangsamoroshall remain to be civilian in character, accountable under the lawfor its action, and responsible both to the Central Government andthe Bangsamoro Government, and to the communities it serves.At this stage, the MILF will undertake a graduated program fordecommissioning of its forces. In a phased and gradual manner,all law enforcement functions will be transferred from the ArmedForces of the Philippines (AFP) to the police force for theBangsamoro. The article also provides a commitment by both towork towards the reduction of arms and control of firearms in thearea and the disbandment of private armies and other armedgroups.

Normalization will certainly be difficult. For centuries, theSouth has been a haven for lawless elements and a hotbed ofarmed rebellion spawned by years of economic and politicalmarginalization and injustice. Armed groups operating outsidethe law abound, and so do unlicensed firearms which do not onlyproliferate but are too accessible. The challenge is not only how toestablish a professional police organization that will restore peaceand order in the region but also how to prevent the reemergencein the future of similar armed groups that will instigate and wageanother rebellion against the established system.

For starters, there is a need to reach out to existing armed

Muslim groups, including Nur Misuaris MNLF and the BIFF,both of which refuse to recognize or are lukewarm about theAgreement between the GPH and MILF. To fail is not an option.


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Without peace and security, there will be no investments, local orforeign; without peace and security there will be a breakdown ofgovernance which can only bode a repeat of the ARMMmisadventure; without peace and security, what is certain is theperpetuation of the perennial poverty which will breed moredespair and trouble in the South. Neutralizing and disarmingarmed groups and lawless elements in the region will take awhile, but with determination, it is doable.

In the end, normalization can only be had if allstakeholders are able and willing, and with utmost sincerity and

genuine desire, work together towards this goal.

IV. CONCLUSIONSOne thing that should be kept in mind in future negotiations arethe commitments made during previous agreements includingthose made in the Tripoli Agreement signed on December 23, 1976between the GRP and MNLF, and the Final Agreement on theImplementation of the 1976 Tripoli Agreement signed onSeptember 2, 1996.

It would be ironic indeed if governing the Bangsamorobecomes untenable only because of the re-emergence ofdisgruntled Muslim armed groups like the MNLF and BIFF whomight feel left out and totally ignored by the whole process. Didthe Framework Agreement totally abrogate the Tripoli Agreementand 1996 peace agreement, or does the new agreement merelyserve to complement the previous one? Or is the just concludedagreement a reboot of the 1996 peace agreement considering thepronouncement by the President that the ARMM was a failedexperiment? How may the MNLF and other armed Muslimfactions with legitimate grievances take part in the peace process?

Other equally important considerations include theprotection and preservation of existing rights of the indigenous


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peoples and Christian communities within the Bangsamoro whomay, rightly or wrongly, feel apprehensive about the wholeprocess. How will the parties prevent the Bangsamoro fromdeteriorating into another ARMM in terms of accountability of itspublic officials? How will Bangsamoro attain full and genuineautonomy?

A holistic and comprehensive approach to the Moroproblem is a must in order to achieve a settlement that is trulyfinal and enduring; one that will bring a lasting peace in thetroubled South. A piece-meal solution will simply not do; it will

only create a different crop of disgruntled groups that will sowmore troubles in the future and negate whatever gains thus farachieved.

Without doubt the newly signed peace accord is a historicpolitical document. Despite almost insurmountable differences,the two parties focused on their commonalities to arrive at amutually agreeable peaceful solution to the Bangsamoro problem.It is significant that after several decades, the MILF, the largestarmed group representing the Bangsamoro people, has finallyrelinquished its desire to secede and establish a separate State.With this new agreement, MILF has finally decided that even withautonomy the aspirations of the Muslim people can be achieved aslong as it is genuine and responsive to the needs of their people.

Of course, the conduct of the coming negotiations will belong and hard. Surely, the devil is in the details. Assembling thenuts and bolts may yet prove more difficult than drafting themother agreement itself. The Framework Agreement is but aroadmap, a blueprint of sorts that must be fleshed out in theforthcoming negotiations. Along the way, disgruntled groups,those whose entrenched interests are threatened and those whofeel left out, will register their objections or even repudiate thewhole process altogether. In the end, the key to success of theBangsamoro is the unqualified support of all stakeholders


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including the national government, Muslims and non-Muslims inthe region, the MILF and other armed groups, the Lumads, andthe local government units - in order to give peace a chance.


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A PERSPECTIVE ON HUMAN RIGHTS LAWYERING

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A Perspective on Human RightsLawyering in the Philippines:

A Conversation withAttorney Romeo Capulong

GILL H.BOEHRINGER*

Atty. Romeo Capulong was a co-founder and Director of the PublicInterest Law Center (PILC) for many years in Manila, Philippines. Hewas also the founder of the National Union of Peoples Lawyers, also inthe Philippines, and Ad Litem Judge for the International CriminalCourt for the former Yugoslavia. He died on September 16, 2012.

This conversation took place at the PILC office in August 2008.

GB: I would like to get the benefit of your long experience in lawto get a clearer understanding of progressive lawyering in thePhilippines.

RC: To discuss progressive lawyering properly, we must alwayskeep in mind the concrete conditions at a specific time in a specificcountry.

* Gil H. Boehringer is Former Dean of Macquarie Law School, MacquarieUniversity in Sydney, Australia, and Former Director of the Center for theCritical and Historical Study of the Common Law.


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GB: And we must consider the cultural traditions in and outsidethe legal system, and as they interact?

RC: Yes, those traditions are both important. While we have along history of progressive lawyering of a sort, what we havetoday is the resultant, the offspring of that historical experience.First, the specific experience of the past and how it is understood;and second, the response of the people to the specific conditionsthey confront in the present.

GB: There seems to be a number of different modes of progressive

lawyering arising from that experience.

RC: Yes. There are various terms that we use which suggestdifferent understandings or emphasis: progressive lawyering,alternative lawyering, peoples lawyering, human rightslawyering, legal aid lawyeringwhich can be public (PublicAttorneys Office under the Department of Justice), or pro bonofrom law firms, or through community organizations.

GB: And of course, public interest lawyering.

RC: Yes, that is our rubric. We started about 20 years ago,institutionalizing it in the PILC. In my view, all of the types oflawyering we have mentioned are subsumed under the broadconcept of lawyering in the public interest. The modus operandi isof course differentiated across a broad spectrum.

GB: Could you say something here about the traditional practiceof law in this country?

RC: There could be a lot said. But let me make it succinct withoutcomprehensively covering the subject. When we talk of traditionalor mainstream legal practice, we are aware of several things, fromlogic, and from our experience.


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First, as members of a profession, they are in a position tomake very significant amounts of money. Therefore, it is notsurprising in an individualistic and competitive economic systemsuch as what exists now, that they are driven by money.

Second, like other professionals, indeed people witheducation generally, they are mis-educated. They are not taughtthat they have a duty, a calling, especially in view of theirimportant position in the social-political structure, to use theirknowledge and skills to help others in a common struggle forsocial justice.

GB: I suppose that for the most part, they have littleunderstanding of and less interest in such a struggle, nor how alawyer might contribute.

RC: In this country, perhaps unlike Australia or some otheradvanced capitalist country, even the privileged class, includingthose in the profession of law, cannot be unaware of the v

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