In February we questioned whether the newest power and wealth sharing agreement between the Philippine government and the Moro Islamic Liberation Front (MILF) over resource-rich Mindanao would ultimately be meaningful and lasting. The primary issue was the absence of inclusivity with other rebel political actors in Midanao. The MILF have now shared similar concerns, having called upon President Aquino's successor to "follow through" with perceived gains following the signing of the Comprehensive Agreement on the Bangsamoro last week.
Government negotiators admit that the Bangsamoro Framework and its four annexes are in essence a "replacement" of an older order -- the Autonomous Region of Muslim Mindanao (ARMM). Given Aquino's forcefulness and approach to ending four decades of insurgency before stepping down in 2016, we expressed doubts whether any successor would stand a better chance of achieving success. We now wonder whether the current Comprehensive Agreement on the Bangsamoro will end up being as temporary as the ARMM, and whether the Agreement over this 400-year-old issue ultimately collapse as a result of political infighting and increasing fractionalization of the rebel movement.
Three hurdles stand in its way. First, the Agreement is an outcome of an existing "transitional" Framework and requires that the Bangsamoro -- a new autonomous political entity -- must be in place by June 30, 2016, the very day President Aquino's 6-year term ends. The same Agreement obliges Congress to pass an enabling law, to be styled as the Bangsamoro Basic Law, which will be the organic statute for Bangsamoro. Assuming the legislature passes such a law, there is a second hurdle: the Basic Law must be ratified by a plebiscite of voters in 'contiguous areas', by 'political units directly affected', and in 'geographical areas' with 'common' 'characteristics', as noted under the present constitution and peace accords.
Critics point out that the Comprehensive Agreement, and the larger framework of which it forms a part, is merely a cut and paste of black letter text of constitutionally defined territory delineating "Muslim Mindanao" under the 1987 Philippine Constitution, as well as the text of the existing ARMM Organic Act. The proposed Bangsamoro "Core Territory", and the dynamics of the plebiscite that should follow, appear to be the same as the previous attempt in 1989. Definitions of core territory in this case include the same cities and municipalities which voted "No" in the 1989 plebiscite, and which opted not to join the ARMM 20 years ago.
The final territorial outcome of the Bangsamoro depends on political and electorate developments consistent with the passage of the Bangsamoro Basic Law, which assumes that the Philippine Congress can and will enact it. Yet, more parameter setting over wealth sharing, power sharing, decommissioning, and water rights will depend on the propositions of the Transitional Commission (TC), whose findings will be subject to further congressional and political scrutiny. While, in theory, the geographical outcome will ultimately depend on the will of the people, it remains to be seen whether and to what extent the TC will set parameters for 'contiguous areas', 'political units directly affected', and 'geographical areas' holding 'common' 'characteristics' and qualified to vote in the plebiscite.
Aquino wants the Bangsamoro Basic Law passed this year, and for the plebiscite to be held as soon as possible. However, despite combined congressional and presidential assurance, to date there is still no draft of the proposed Basic Law, which either the President or the TC are supposed to provide. Beyond this, there is a third hurdle -- whether the Comprehensive Agreement, Bangsamoro Framework, Bangsamoro Basic Law, and all their annexes and transitional procedures will be approved by the Supreme Court.
If indeed the text of the Basic Law is only a verbatim carry-over of the current Philippine Constitution, then the answer should be a 'yes'. Following American common law, remaining consistent with constitutional precedent is required under the Philippine system of judicial review. The framers of the current transitional peace accords were mindful of the fact that the most recent previous peace agreement with the Muslim rebels - with the same MILF now taking the reins of power - was declared unconstitutional by the Court in 2008 for attempting to bargain away ancestral domain in the name of Muslim 'self-rule'. The Supreme Court described the peace process at the time as "whimsical, capricious, oppressive, arbitrary and despotic". Fighting subsequently renewed, and MILF fighters captured several towns in the southern province of Lanao del Norte.
As the MILF has stated, "...If the new president does not follow (through), the future is truly bleak." It will take determination on all sides to make this Agreement stick. Surely, those who want to give peace a chance, including ex-rebels and ex-Islamists, will want to encourage public deliberation over the Mindanao question. The latest splinter group, the "Bangsamoro Freedom Fighters", have not as yet resorted to violence, which is a hopeful sign.
Whether this Agreement has real traction and can be duly implemented will be a front burner issue in the 2016 presidential election, and President Aquino has staked significant political capital on achieving lasting peace in Mindanao. We hope that even if this Agreement proves to be temporary - and there is, regrettably, as good chance that it will -- that at a minimum the stage will have been set to continue incremental steps toward lasting peace. The test will not truly be during the remainder of Aquino's term in office, but well beyond.
Edsel Tupaz teaches comparative law in Manila. He is a graduate of Harvard Law School and Ateneo de Manila.
Daniel Wagner is CEO of Country Risk Solutions, Senior Advisor with Gnarus Advisors, and author of the book "Managing Country Risk".
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