Thursday, April 3, 2014

Santiago: Bangsamoro deal unconstitutional

By Maila Ager

The signing Comprehensive Agreement on the Bangsamoro INQUIRE FILE PHOTO

MANILA, Philippines – The Comprehensive Agreement on the Bangsamoro recently signed between the government and the Moro Islamic Liberation Front (MILF) was unconstitutional, Senator Miriam Defensor-Santiago said on Wednesday.

Santiago, head of the Senate committee on constitutional amendments, said the agreement violated the principle of “constitutional supremacy.”

“I regret that after my preliminary studies, I have concluded that the Framework Agreement on the Bangsamoro is unconstitutional,” she said when she spoke during the Commencement Exercises of Gordon College in Olongapo City.

Santiago said the agreement was unconstitutional for the following reasons:

First, she said, it was misleading for the agreement to identify that one party is the “Philippine Government.”

“The reality is that only one of the three branches of government – the executive branch, consisting of the Office of the President acting through a peace panel of negotiators – represented the government,” Santiago said.

“The executive branch alone does not represent the Philippine Government. Thus, the executive branch, in negotiating the agreement, had no power to bind the two other branches – legislative and judicial.”

“In negotiating for the government, I am afraid that the executive branch not only exceeded its powers, but may have infringed upon the powers of the legislative branch,” she said.

Second, when the executive branch “misrepresenting itself as the Philippine Government enters into an agreement with the rebel group,” the result is not a mere autonomous region as provided for by our Constitution, but a “sub-state,” Santiago said.

“Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a sub-state,” she said.

Third, Santiago pointed out that the Philippine Constitution is supreme and it provides for the powers of the state.

And the agreement, she said, reserves to the central government the exercise of certain so-called “reserved powers, which are described as powers “retained by the central government.”

“Thus, the agreement diminishes the sovereignty of the Philippine Government by listing what are the powers that the central government can retain. In other words, the Agreement attempts to redefine the sovereignty of the Philippine state,” she said.

The senator also noted that the agreement provides that the powers reserved to the central government will depend upon further negotiation by stating that, “This list is without prejudice to additional powers that may be agreed upon by the parties.”

“Thus, the agreement not only reduces the sovereignty of the central government, but also provides that in the future, such sovereign powers as have been reserved may be further increased, provided the Bangsamoro agrees.”

“It will therefore be the Bangsamoro which will determine what should be the remaining sovereign powers of the central government,” Santiago said.

And fourth, Santiago believes the Bangsamoro will turn into a sub-state as shown in the following provisions:

a. The powers of the central government shall be determined by the Agreement, thus turning Bangsamoro into a sub-state.

b. The Autonomous Region for Muslim Mindanao, which is provided for by the Constitution, will be abolished by mere agreement with the MILF, which is not surprising if you consider that the Bangsamoro has become a sub-state.

c. Allocation to the Bangsamoro of all powers exercised by the national government over local government units.

d. Although the Constitution provides that natural resources belong to the state, in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources.

e. The Annex on Power Sharing gives to Bangsamoro so-called “exclusive powers,” which is defined as a tautology, as “powers or matters over which authority and jurisdiction pertain to the Bangsamoro government.”

f. Only the Bangsamoro shall be under a ministerial form of government, while the rest of the country will operate under a presidential form of government.

g. The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the Transition Commission which at present is reportedly drafting the Bangsamoro Basic Law. One of the functions of the Transition Commission is as follows: “To work on proposals to amend the Philippine Constitution for the purpose of amending and enriching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.”

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