In this guest post, Asli Ozcelik and Jenna Sapiano examine the peace process in the Philippines through a constitutional perspective, drawing on their presentations at this year’s ICON-S conference at the University of Hong Kong. Jenna Sapiano, visiting research fellow at iCourts and Asli Ozcelik, doctoral candidate at the University of Glasgow, organised a panel, supported by the PSRP, on ‘Re-thinking peace and constitution-making’. The panel was chaired by Prof Vicki Jackson and Prof Christie S. Warren.
On 26 July 2018, President Duterte signed the landmark Bangsamoro Organic Law (BOL). The BOL is the outcome of the Comprehensive Agreement on the Bangsamoro (CAB), signed between the government of the Philippines and the Moro Islamic Liberation Front (MILF) on 27 March 2014.[i] The agreement ended the decades-long conflict between the government and the indigenous Moro population on the island of Mindanao; however, the four years between the conclusion of the agreement and the passage of the BOL proved challenging for its implementation. An armed attack in January 2015, known as the ‘Mamasapano incident’, in which 63 people were killed, including 44 Philippine police officers, weakened confidence in the peace process. The delays in the passage of the BOL and concerns among the critics regarding its constitutionality raised further questions, especially by the MILF.
The issue of constitutionality has been a sticking point throughout the entire peace process. The shadow of a 2008 Supreme Court decision loomed over the CAB negotiations.[ii] The decision concerned the constitutionality of an earlier peace agreement, the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The MOA-AD was initialled but not signed when the Court struck it down on several grounds of unconstitutionality and illegality. The Court found that the constitutional amendment needed to implement the agreement breached procedural requirements amounting to a ‘grave abuse of discretion’ by the Government. The Court also concluded that expanding the powers of the autonomous territory to the extent proposed in the MOA-AD conceded too much authority from the centre. Further, the Court objected to the proposed ‘association’ between the autonomous territory and the national government, suggesting it ran ‘counter to the national sovereignty and territorial integrity of the Republic.’
The armed conflict resumed shortly after the decision. When the parties initiated a new round of peace negotiations in 2011 they were mindful of a possible constitutionality challenge awaiting any future agreement. Reportedly, a former Supreme Court judge was included on the government’s negotiation team. In addition to substantive changes to the self-governance arrangement to ensure its constitutionality, the parties also adopted less forceful language on constitutional amendments. In 2016, the Court rejected unconstitutionality petitions directed at the CAB and the preceding Framework Agreement on the Bangsamoro (FAB) of 12 October 2012 as unripe for adjudication. The Court noted that they included ‘no commitment, express or implied, that the Constitution will be amended or that a law will be passed comprising all the provisions indicated in the CAB and the FAB’.[iii] The Court effectively reminded the parties that the implementation of the CAB had to respect the existing constitution by emphasising that the legislature retained full discretion to enact the implementing law, which remained subject to judicial review.
The BOL replaces the current Autonomous Region in Muslim Mindanao with the Bangsamoro Autonomous Region by 2022. The law must still be approved by a referendum, set to be held later in 2018. The new autonomous region will be granted greater political and fiscal autonomy exercised through a parliamentary government in the region. However, the final text of the BOL grants much less symbolic autonomy to the Bangsamoro homeland than proposed in the draft law, taking seriously the concern of the Supreme Court in the MOA-AD decision. In the process of drafting the BOL, the House of Representatives and the Senate made several amendments to the proposed Bangsamoro law (the proposed BBL) prepared by the Bangsamoro Transition Commission (tasked with drafting the law by then President Benigno Aquino III). As an example, the ratified BOL recognises the Bangsamoro people’s ‘right to chart their political future through a democratic process that will secure their identity and posterity’ (Preamble, the BOL) instead of their ‘right to self-determination and self-governance’ (Art IV, Section 1, the proposed BBL). The preamble no longer starts with the phrase ‘We, the Bangsamoro People and other inhabitants’. In its place the BOL begins: ‘In recognition of the aspirations of the Bangsamoro people and other inhabitants in the autonomous region in Muslim Mindanao […] the Filipino people, by the act of the Congress of the Philippines, do hereby ordain and promulgate this Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao’.
Despite these efforts to bring the BOL in line with the decision of the Supreme Court, concerns regarding its constitutionality remain. Supposedly, critics intend to challenge the law before the Supreme Court. Without an amendment to the constitution, several provisions of the BOL may risk being considered unconstitutional. However, if the July 2018 draft federal constitution adopted by the Philippines Constitution Consultative is eventually adopted with the BOL appended to it, as is suggested in the draft, the BOL’s future would be more secure.[iv]
Since 2010, negotiated settlements to intra-state armed conflicts have been in decline with an emerging turn to the favouring of military means.[v] The conclusion of the CAB in 2014 and its evolving internal implementation with the passage of the BOL are positive notes for the field of conflict resolution. Yet, the Bangsamoro peace process underscores the challenges of negotiating peace within the framework of an existing constitution and in the shadow of an apex court. It also highlights the significance of ensuring constitutional legitimacy throughout the process. If the BOL fails to be fully implemented through the necessary constitutional procedures, as in 2008 with the breakdown of the peace process, the possibility for a resumption of violence remains.
[i] For a chronology of peace agreements concluded in relation to the Mindanao conflict, see C. Bell and V. Utley (2015) “Chronology of Mindanao Peace Agreements’, Political Settlements Research Programme Briefing Paper 02. Available at: < https://peacerep.org/files/2015/10/Briefing-Paper-Philippines-Mindanao-Chronology.pdf>
[ii] The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No. 183591 (14 October 2008).
[iii] Philippine Constitution Association (PHILCONSA) v Philippine Government (GPH), G.R. No. 218406 (29 November 2016).
[iv] Philippines Constitution Consultative Committee, Power to the People Bayanihan Federalism Power to the Regions Draft Constitution for a Strong, Indissoluble Republic (9 July 2018) Art XI (D) Section 25.
[v] Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict (Main Messages and Emerging Policy Directions) (The United Nations and the World Bank 2017) 1, 6.