President Aquino has taken some bold moves during his presidency in an effort to achieve peace regarding the decades-long dispute over autonomy in Mindanao. This week the Aquino Administration delivered a 122-page "final draft" of the proposed Bangsamoro Basic Law to the Philippine Congress. The question now is whether Congress will approve it before Aquino is constitutionally required to step down in 2016.
In February and March this year, we asked whether the "Bangsamoro Framework" -- the newest power and wealth sharing agreement between the Philippine government and the Moro Islamic Liberation Front over resource-rich Mindanao -- would be meaningful and lasting. The primary issue then, and now, centers on the question of political inclusivity. We took the view that even if the peace accord proves to be temporary, at a minimum, the stage will have been set for a peace that could last beyond Aquino's term.
Following Wednesday's submission, Aquino's allies in Congress made it clear they wished to have the law passed by the first quarter of 2015. Anti-Aquino forces indicated their intent to challenge the constitutionality of the Bangsamoro Basic Law, if enacted, at the Supreme Court. While the draft law defines the "Bangsamoro territory" as one which "shall remain a part of the Philippines", extensive provisions were made both under the Law and the Wealth Sharing Annex in favor of the Bangsamoro - the successor entity to the present-day Autonomous Region of Muslim Mindanao - to cede control over natural resources and government corporations operating in Muslim Mindanao.
Given the potentially large political capital that will be generated by a case in court, and given the near circus-like political dynamic that pervades in the Philippines, we think that a constitutional challenge will be mounted by anti-Aquino groups regardless of considerations of substance over the text of the law. If the case against Bangsamoro will be chiefly driven by partisan politics, the more fundamental question of political inclusivity of ex-insurgents will probably be sidelined.
The biggest issue for Aquino is whether he will be able to manage the terms of an inevitable political debate while he is still in power. If indeed he cannot avoid a legal collision over the Bangsamoro law, he will need to have the case disposed of, regardless of its merits, before he steps down in 2016.
Aquino must consider two things. First, the Court and its justices have been at the receiving end of his own public castigation. Aquino has been vocal about the Court's decisions having been seen as adverse to his Administration, which includes a ruling of partial unconstitutionality over the controversial "DAP" (Disbursement Acceleration Program). While Aquino had hoped to avoid personalizing his criticism, his public scolding of the Court's rulings which, in his view, are impediments to reform, may have caused precisely the sort of internal judicial politics which he wished to avoid.
For example, backfiring judicial politics characterized Aquino's most recent appointment to the Court. In a 36-page separate opinion, one of its associate justices accused Chief Justice Maria Lourdes Sereno - a former Aquino ally - of "manipulating" the nomination process at the Judicial and Bar Council (a constitutional body tasked to shortlist presidential appointments to the judiciary) ultimately to exclude Aquino's favored appointee.
The second item for Aquino to consider is the fact that in order for the Bangsamoro Basic Law to take full effect - even in the unlikely event that it will be successfully enacted by 2016 - it will still be subject to ratification by way of plebiscite involving constituent units of the present-day Autonomous Region of Muslim Mindanao. It would be well advised for Aquino to secure early the support of the electorate, especially if such support is a precondition for the new government of Muslim Mindanao to take the reins of power. Moreover, legal challenge or not, gaining the confidence of the electorate can be an outcome determinative of his own political fate and the fate of his allies after 2016.
Aquino has succeeded where all prior administrations since President Ramos - the last Philippine president before Aquino to have turned the economy around - have failed. Surely this is not the kind of Rule of Law 'legacy' which President Aquino would like to leave behind. It would be truly disappointing to have come so far to have politics scuttle the peace accords, and the best chance at peace the Philippines has seen in decades. On the other hand, if a constitutional challenge is surely inevitable, it would be well for the embattled Philippine president to begin putting in place second-best solutions to peace.
Edsel Tupaz is a public interest attorney. He teaches comparative law in 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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