Issues on the Transition Commission

It has been reported that in the next few weeks, the Executive Order creating the Transition Commission (TC) will be signed by President Aquino.  The creation of the TC has been agreed upon by the Government of the Republic of the Philippines (GPH)  and the Moro Islamic Liberation Front (MILF)  in the Framework Agreement on the Bangsamoro.  The 15-member commission will be named by the GPH and the MILF—8 members by the MILF including the Chairman and 7 members by the GPH.  The Framework Agreement provides that all members must be Bangsamoro.   The TC is to perform the following tasks:

a. To work on the drafting of the Bangsamoro Basic Law with provisions consistent with all agreements entered and that may be entered into by the Parties;
b. To work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements;
c. To coordinate whenever necessary development programs in Bangsamoro communities in conjunction with the MILF Bangsamoro Development Agency (BDA), the Bangsamoro Leadership and Management Institute (BLMI) and other agencies.

There are two emerging issues on the TC.  First is the issue of inclusiveness of the TC in membership and process. Second, whether the TC is merely a drafting commission, a deliberative or a consultative body, a technical panel, an advocacy group or some or all of the above.

The Framework Agreement provides that all members of the Transition Commission must all be Bangsamoro.  And “who is a Bangsamoro” is clearly defined in the Agreement —“Those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood shall have the right to identify themselves as Bangsamoro by ascription or self-ascription.
Spouses and their descendants are classified as Bangsamoro. The freedom of choice of other Indigenous peoples shall be respected”.

By this definition, a settler even if he or she is a resident of the Bangsamoro and/or has ascendants that have long been residents or domiciled in the Bangsamoro cannot be considered Bangsamoro. Other indigenous peoples like the Dulangan Manobo in Maguindanao have the right to choose to be Bangsamoro or assert their own group identity.

Settlers and other indigenous peoples who do not ascribe themselves as Bangsamoro will have no representation in the Transition Commission.

I understand the logic of having an all-Bangsamoro Transition Commission.  The Basic Law will govern the Bangsamoro so it is just right that drafting the law that will govern their social, political and economic life be left to them.  What I don’t quite understand is that other indigenous peoples can only be part of the Commission if they ascribe to be Bangsamoro.  Does this not render illusory the line in the Agreement that says that the freedom of choice of other Indigenous peoples shall be respected? The government has declared that there will be representatives from the Indigenous Peoples in the Commission.  The MILF said so as well.  But how can it be said that they represent other indigenous groups when their distinct identity is subsumed by the Bangsamoro identity in the Commission that must all be Bangsamoro?

It doesn’t also help tactically the cause of the FAB when groups who feel left out in the Transition Commission will have no choice but to bring their case to the Philippine Congress and to the Supreme Court—two separate branches of government where the influence of the executive branch that entered into the pact with the MILF is limited.

In constituting the Transition Commission, the MILF and the government should consider the need to make the Commission inclusive which could mean having leaders of other IPs sit in the commission as IP representatives and not as Bangsamoro. Christian settlers will not have any representation in the commission but there should be adequate mechanisms like consultations and discussions where their concerns can be heard.

The second issue is on the very nature of the transition commission.  The tasks are mixed—draft the Basic Law according to the provisions of the Framework; propose amendments to the Constitution and coordinate development projects.  With these mixed and diverse tasks, it will be a challenge for the Commission in organizing its structures and tasks.  Will the Commission just translate in legal terms the Framework agreement with all its annexes?

Yet, there is more to its mandate than drafting the Basic Law which can be done better by expert drafters. The FAB provides that the TC may also propose amendments to the Constitution in order to accommodate the terms of the Framework Agreement and the draft Basic Law.  This is where it gets problematic.  If and when the Commission propose amendments to the Constitution to entrench the terms of the agreement when it deems necessary, we will have a situation where a governmental body (The TC is one since it is created by an Executive Order) declares that one or some of the provisions of the Comprehensive Agreement are actually unconstitutional.  This declaration could effectively derail the implementation of the roadmap which by admission of a governmental body is constitutionally infirm.

The logic that since any citizen can propose amendments to the constitution, the TC can do so on its own is flawed.   The TC is no ordinary citizen’s commission.  It is a governmental body by virtue of it being created by administrative fiat, supported by congressional resolution and backed by public funding.

There will be discussions in the TC on how it will conduct its business.  Will it go around the Bangsamoro and consult people? If it will merely draft the Basic Law consistent with the FAB and the Comprehensive Agreement that could be out before the year ends, what is the point of consulting people other than raising people’s expectations when in truth, the TC is merely a rubberstamp of the negotiating parties? Will the TC be a deliberative body in which case dissenting views that may be inconsistent with the Comprehensive Agreement will have to be accommodated?

If we are to get the roadmap completed within the agreed timeline, the TC must focus its effort and resources on advocacy.  Draft the basic law according to the Comprehensive agreement and go out to communities and build support around the agreed formula.  Proposing amendments must not be its primary agenda because not only will it derail the process but could potentially lead to the collapse of the whole deal.

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