End state

The wealth sharing agreement signed between government and the MILF will either open the floodgates to federalism or simply die, stillborn, on the legislative/judicial road to actualization.

The “framework” agreement signed between the two parties is just a rehash of the Memorandum of Agreement on Ancestral Domain (MoA-AD), dropping of course any reference to “ancestral domain” although retaining the applications of that concept. The MoA-AD was killed at the Supreme Court for being unconstitutional.

In place of “ancestral domain,” the MILF has frequently used the oxymoronic concept of a “substate.” It is oxymoronic because it mocks the indivisibility and absoluteness attached to the concept of national sovereignty.

The “framework agreement” recognizes some sort of “Moro homeland” with inherent “rights” requiring recognition by the Philippine state. Those rights form the basis for the agreement on wealth sharing.

At first blush, the delineation of “rights” accruing to a subnational entity runs smack against regalian doctrine inherited from the period of royal absolutism. The doctrine states that all land, the resources underneath them and the air space above them ultimately belong to the (nation) state. The state allocates whatever value derives from them to benefit the entire polity and not just a special section of it. When necessary, the state may reclaim inferior rights of private ownership such as happens when government commandeers land in the name of “eminent domain” for use as roads or public parks.

It is not clear how the “framework agreement” or the agreement on wealth sharing might be legislated without Charter change. It is not clear how the “organic act” that produced the ARMM might be easily repealed without sparking a constitutional controversy.

We are lulled into accepting the peace deal with the MILF as an inevitability even as the road to its realization is blocked by constitutional questions, complex issues regarding the limits of legislative power and open defiance of the principle of universal application attached to the rule of law.

The first line of resistance to the peace deal will likely be from Moro groups such as the MNLF who stand to be disenfranchised by the prospective agreement. These groups will argue that the original “organic act” creating the ARMM can only be displaced by way of constitutional amendment and not by ordinary legislation.

The Supreme Court will be asked to rule on that. The opposition will have constitutional tradition on its side. An organic act cannot be so easily repealed once it is done.

The second line of resistance will be from Christian communities interspersed, leopard-spot fashion, with Muslim communities in the area demarcated as the “Moro homeland.” They have expressed fear of disenfranchisement many times before and will surely do so on the evolving agreement with the MILF.

Their concerns are quite fundamental: What happens to their property rights when a “Moro homeland” is created? What happens to their political rights?

I was marginally involved in the peace negotiations with the MNLF in 1995-96. At that time, Christian leaders threatened their own secession from the Republic should anything more that “regional autonomy” be granted. The Cordillera people demanded the same autonomy arrangement.

When the plebiscite was held to ratify the “organic act” (precisely because this was a special piece of legislation), predominantly Christian communities like Cotabato City voted against inclusion in the autonomous region.

In addition, MILF-influenced communities voted against inclusion on the grounds that the autonomy was insubstantial. We can expect a repeat of this, with the MNLF-influenced communities voting against any new organic act to preserve the status quo.

The third line of resistance will be from other regional leaders who will demand that the generous terms on wealth sharing be equally applied to other regions. They will bargain for a full-scale, across-the-board constitutional revision shifting the form of government to federalism in one fell swoop.

The peace agreement with the MILF will be the last political opportunity to force national government to yield to the demand of the federalists. They see no reason why the concessions granted to the “Moro homeland” cannot be simultaneously applied to the Cebuano homeland or the Bicolano homeland or to the whole island of Mindanao for that matter.

Federalism is a potent idea in many areas of the country disenchanted with Imperial Manila. When I served on the Consultative Commission on Charter Change in 2005-06, I ran into a long debate with the federalists and sometimes felt I was the last advocate of unitary government on the floor.

My main argument against federalism at that time was the specter of a fiscal meltdown once local government units get first crack at the revenue flow from natural resource exploitation. We were not even talking then of a 75-25 sharing in favor of the local unit.

If local government units get the lion’s share of royalties from natural resources, the national government will run out of means to service the national debt. Our risk ratings will quickly shoot through the ceiling and it will be nearly impossible to refinance our debt service.

When the other republics constituting the former Soviet Union left that entity, the entire national debt fell on the lap of the Russian Federation. Fortunately, the discovery of rich oil and gas reserves saved the Russians from bankruptcy. Nothing of the same scale will save our national government once the regions are given the lion’s share of the revenue flow while the nation-state is left holding the debt bag.

There are a score of other considerations that, at this moment, make this agreement with the MILF pretty much of a pipe dream.