The killing of 44 members of the Philippine police over the weekend by rebels apparently affiliated both with the Moro Islamic Liberation Front (MILF) and the Bangsamoro Islamic Freedom Fighters (BIFF) raises question about the sanctity of the Bangsamoro Framework, signed between the Government of the Philippines and the MILF last year. At that time, I questioned whether the newest power and wealth sharing agreement over resource-rich Mindanao would ultimately be meaningful and lasting, and whether groups opposed to the Framework would be successful in derailing it.
The primary issue such groups as the BIFF had with the Framework was the absence of inclusivity with other rebel political actors in Midanao. The MILF subsequently shared similar concerns. 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).
President Aquino has been determined to end four decades of insurgency before stepping down in 2016, but there is now considerable doubt about whether he, or any successor, can be successful in achieving peace, given the ability of any variety of non-state actors to derail the process. I 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, increasing fractionalization of the rebel movement, and the rapidly deteriorating political will on the part of its prior supporters within the government to see it through.
Three hurdles continue to 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 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 wanted the Bangsamoro Basic Law to be passed last year, and for the plebiscite to be held as soon as possible - neither of which has occurred. As a result of the killings, Senate Majority Leader Alan Peter Cayetano and Senator Joseph Victor Ejercito -- both co-authors of the Law - and a host of other legislators have subsequently withdrawn their support for the Law. 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, Basic Law, and all their annexes and transitional procedures will be approved by the Supreme Court. This now looks increasingly unlikely, as the Court has described the peace process as "whimsical, capricious, oppressive, arbitrary and despotic".
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'.
Whether this Agreement can be duly implemented will now for certain become a front burner issue in the run up to the 2016 presidential election, particularly because President Aquino has staked significant political capital on achieving lasting peace in Mindanao. While the likelihood of its passage in the near term is rapidly dwindling, there appears to be a better than average chance that if is ever passed, the Agreement will prove to be temporary, as it will remain subject to the ability of political and rebel groups opposed to it to gain traction as a result of the direction of political winds and current events. What seems likely is that peace in Mindanao will continue to remain elusive.
Daniel Wagner is CEO of Country Risk Solutions and author of the book "Managing Country Risk".
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