Open Letter to Dean Raul Pangalangan

Dear Raul,

I read with great interest your October 18 Inquirer column entitled A Framework with missing agreements.

I agree with your keen observation that unrestrained hype may well derail peace in the end.  In Cotabato City, the unrestrained hype has already created the wrong impression as seen in signages all over town extolling the a Bangsamoro government as if it has already been established.  In fact, the Framework Agreement is just the first in a series of stages which culminates in a plebiscite on the territory and Basic Law of the proposed new political entity.

I never doubted your commitment to Mindanao peace from all the fora and meals we shared where we had the opportunity to exchange our views on this issue.  But I feel compelled to correct misconceptions that would have been created by some points you raised in your column.

You raised the question that since the annexes are not yet appended as part of the Agreement, how can we consent in advance to terms that do not exist and retroactively write them into the Framework?

The Framework and the annexes are two sets of documents. The Framework agreement provides the parameters and principles from which subsequent details are drawn which will be annexed to this agreement. This Framework agreement with the annexes will then be signed as the “comprehensive agreement” to be completed at the end of this year.

It is therefore premature to speak of consent at this stage.

What has been agreed upon by the panels is the process by which the principles will be fleshed out, turned into a Basic Law, legislated by Congress and submitted to constituents of the identified core areas in a plebiscite.

Everyone is encouraged to participate in the public discourse on this agreement that will generate inputs for subsequent negotiations and consideration by Congress.  But to shoot it down because it is not complete is misapprehending the agreement as a set of principles and processes that have no legal effect until a comprehensive agreement is agreed upon and Congress legislates the Basic Law (that may or may not adopt all or some of the provisions of the Comprehensive Agreement) and ratified in a plebiscite.

Your column was critical about the provision in the agreement that allows the Bangsamoro to create its own auditing body and procedures for accountability over revenue and other funds generated within or by the region from external sources. You read this as a diminution of the constitutionally-granted power to the Commission on Audit to examine, audit and settle all accounts of the Government, or any of its subdivisions, agencies or instrumentalities. Since you premised your critique of this provision to the much publicized “unaccounted infrastructure and personnel funds” for the ARMM,  I reckon that you are not only concerned about the Bangsamoro as virtually being exempted from COA’s reach but you also believe that COA’s oversight is the most effective check to the excesses and corruption in the autonomous region.

From my own reading of the provision, I do not see the clipping of COA’s powers in the Bangsamoro.

The word “government instrumentality” as used in the Framework Agreement is a generic term that includes all government agencies in the Bangsamoro and does not refer only to regulatory agencies, chartered institutions and GOCCs.  While the Administrative Code does define “instrumentality” in a limited sense, the 1987 constitution, in defining the judicial power of the Supreme Court refers “to grave abuse of discretion on the part of any branch or instrumentality of the Government” as falling within its judicial power.  The generic word “instrumentality” in this constitutional provision covers all of government which is in the same sense as all of Bangsamoro government in the Framework Agreement.

The annexes should be able to clarify this provision in the framework but I see an opening for two complementary accounting or auditing systems in the Bangsamoro— one by the COA and the other by a regional oversight designed to promote accountability for locally generated and foreign funds consistent with Bangsamoro culture and values system.  An example perhaps is an auditing system that invokes the Islamic tenets of accountability and honesty in the affairs of government.

Exploring an auditing system that is suited and effective in the Bangsamoro is necessary in view of the failure of the national auditing system to check the excesses and unbridled corruption in the region.  It is ironic that you consider the COA as the vanguard against corruption in the region but the COA has been as complicit or lame as the regional government officials in identifying accountable officials that must be prosecuted for corruption.  The failure of the “ARMM experiment” as government puts it is as much a failure of the national agencies (including the COA) as that of the ARMM government.

Your column misread the provision on “block grants” from the national government to the Bangsamoro as that of the Bangsamoro having the power to block grants and subsidies from Manila.  “Block grants” refer to “grants in block” appropriated annually by congress to the the ARMM and the provision is based on Art IX, Section 2 of R.A. 9054 or the ARMM Organic Law which provides that the “Regional Government shall enjoy fiscal autonomy in generating and budgeting its own sources of revenue, its share of the internal revenue taxes and block grant and subsidies remitted to it by the central government”.  This provision in R.A. 9054 is reiterated in the Framework Agreement and refers to the same “grants and subsidies in block” from the national government. To interpret these provisions as giving the Bangsamoro the power “to block grants” from the national government is erroneous.

Let us continue this conversation that will help sharpen and refine the roadmap and generate strategies on how it can be successfully implemented.  Like your good self, I am critical of some aspects of this roadmap as you can read from an article in http://www.rappler.com/thought-leaders/14151-mixed-feelings-on-the-bangsamoro-region.  But after more than a decade of following the Mindanao peace process, I think that the Framework Agreement offers the best shot for peace given the circumstances.  The road to Mindanao peace is a long and arduous one and requires critical yet open and constructive engagement from all stakeholders.

Sincerely yours,

Benny Bacani

Former Law Dean, Notre Dame University

Executive Director, Institute for Autonomy and Governance

Cotabato City

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