Written partly outside Malacanang Palace, after the signing of the Framework Agreement, and published on October 16, 2012.
It was never a constitutional issue—the lack of any mention of the Constitution in the ill-considered Memorandum of Agreement on Ancestral Domain (MOA-AD). Charges that the MOA-AD’s manifest unconstitutionality was symbolized in this blinding absence were only political, not legal. When the Supreme Court struck down the MOA-AD four years ago this month, it noted the fact in passing but excused it with a generous interpretation: “While the word ‘Constitution’ is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term ‘legal framework’ is certainly broad enough to include the Constitution.”
Is the Constitution missing from the Framework Agreement on the Bangsamoro?
The agreement the peace panels of the national government and the Moro Islamic Liberation Front (MILF) signed in Rizal Hall in Malacañang yesterday is essentially a political document; it is not only an inventory of political commitments, it is also a mutual promise to muster political support for the final output of the peace process: the Comprehensive Compact. So an off-hand comment like “This agreement slights the Constitution,” repeated often enough, can have political consequences.
(Something I did not realize until I read Conchita Carpio Morales’ comprehensive opinion on the MOA-AD again: There is a real difference between an agreement signed by the negotiating panels and one signed—as the MOA-AD would have been if the Court had not issued a restraining order—by “the representatives of the Parties,” meaning the government and the MILF themselves.)
As it turns out, the Constitution is explicitly referred to in the framework agreement. The mention, however, may not be all that musical to purist ears; the seventh section on transitional arrangements lists the three functions of the proposed Transition Commission (in item 4), including the responsibility “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.”
So the Constitution is referenced in the context of possible changes to it; not exactly a ringing endorsement of the country’s founding law, one might think. But in fact a close read of the agreement gives the strong impression—at least it does to this lay observer—of a framework that is thoroughly soaked in the waters of constitutionalism, Philippine-style. The major elements of the framework can all be traced back, and emphatically do not rise above, their constitutional source: a Transition Commission that represents stakeholders in the peace process, a Basic Law that must issue through Congress and must be ratified through a plebiscite, a transition phase that respects the existing electoral calendar, existing peace agreements, even existing monitoring arrangements.
* * *
There is another political document in the news (the newspaper’s editorial dwelt on it yesterday) where an absence is not only telling; it is damning. I mean Sen. Ralph Recto’s sponsorship speech of his ways and means committee’s much-mutated sin tax bill. As text, its approach to the art of the possible may be best described as cynical, its inventory of commitments grudging.
Recto’s speech makes clever use of statistics. “A hundred years ago, in 1912, 30% of what the government spent came from tobacco and liquor levies.” “If someone gargles a barrel of beer and pays P100 for it, P45 will go the national coffers.” “Each smoker, on the average, consumes 13 sticks a day. Nine in ten sticks were sold in sari-sari stores. Six in ten by tingi.” (Foreigners who wish to understand this Filipino custom of extreme retail can get started with a peek at “A Heritage of Smallness,” by Nick Joaquin.) “Simply put, 40 centavos of every piso one gives the yosi boy ends up in the government coffers.”
But Recto, despite having heard from the Department of Health and from antismoking advocates, has no use for statistics showing the extent of smoking’s social and healthcare costs. To be sure, he devotes five of the speech’s 150-plus paragraphs to identify the healthcare-related beneficiaries of the mutant bill, including PhilHealth premiums, regional and district hospitals, even a P100-million advocacy campaign.
But whereas he takes unusual care to describe the “ordinary folks” who consume alcohol and tobacco, and summarizes his own bill from the perspective of those same consumers as “class taxation for sinners, the 17 million who smoke and the many more who drink,” he does not have anything to say about—oh, let me see—the four major diseases caused by smoking. No wonder his administration allies feel betrayed.
* * *
A few notes about the signing of the framework agreement, which I was able to witness in Malacañang together with over 400 other guests. For many the focus of attention was the MILF chief, Murad Ebrahim, who gave a poignant speech praising both MILF founder Hashim Salamat and the many mujahideen martyrs of both the MILF and the MNLF.
Malaysian Prime Minister Najib Razak, in his Oxbridge accent, thanked his predecessors, Mahathir Mohamad and Ahmad Badawi, for their role in the peace process—a gesture not without political implications back in Malaysia.
And President Aquino praised Peace Adviser Ging Deles and chief government negotiator Marvic Leonen for their hard work, teasing them about not only having to deal with the MILF negotiators but also with “probing inquiries” from the President, among others. At that, Leonen laughed out loud, and vigorously led the applause.