This is the first part of Sen. Miriam Defensor Santiago's speech at the Commencement Exercises of Gordon College, Olongapo City, today, 2 April 2014.

Bangsamoro Agreement Unconstitutional

Before I proceed to my commencement speech, I feel it is my duty, as chair of the Senate committee on constitutional amendments, to share with you my initial thoughts on the so-called Comprehensive Agreement on the Bangsamoro (CAB). It was signed last March 27 between the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF). It is supposed to end the decades-old armed conflict in Mindanao. The CAB is only five pages, but it also includes as integral parts some 12 agreements between the parties, including the 2012 Framework Agreement on the Bangsamoro.

In effect, the Agreement provides for the drafting of a Bangsamoro Basic Law which President Aquino will forward to Congress for approval. The Basic Law will define the relations of the central government, the Bangsamoro government, and the local government units.

After the Basic Law is passed, presumably by the end of 2014, a plebiscite will be held to ratify the Basic Law and particularly the so-called "core territory" of the Bangsamoro by 2015. The President will then appoint a 15-member Bangsamoro Transition Authority to govern the region. Finally, a regional parliament for the Bangsamoro with 50 seats will be elected during the national elections scheduled for May 2016.

I regret that, after my preliminary studies, I have concluded that the Framework Agreement on the Bangsamoro is unconstitutional, for the following reasons:

1. The Agreement is between the Philippine Government (GPH) and the MILF. It is 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. 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.

2. 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 substate. Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a substate.

3. The Philippine Constitution provides for the powers of the state. The Constitution is supreme. The Agreement 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.

In addition, the Agreement provides that the powers reserved to the central government will depend upon further negotiation by providing: "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.

4. That Bangsamoro will be a substate is revealed by the following provisions:

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

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 substate.

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."

Say again?! Wh a - a - a - t?! The Agreement embodies the consent of the executive branch to amend the Philippine Constitution in order to accommodate the Agreement! This is beyond ridiculous.

Finally, I make the statement after preliminary study that the Bangsamoro Agreement apparently contains provisions very similar to those contained in the Memorandum of Agreement on Ancestral Domain (MOA-AD) which the Supreme Court declared as unconstitutional. Both the MOA-AD and the Bangsamoro Agreement appear to facilitate the secession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea.

On the whole, I could be removed as chair of the Senate committee on constitutional amendments. But while I am chair, it will be extremely difficult to convince me, as a student of constitutional law, that the Bangsamoro Agreement respects the Philippine Constitution. On the contrary: The Agreement violates the principle of constitutional supremacy.