Sojourn in Tokyo

[This is my forthcoming column in Catalyst. I’m posting it here because of numerous requests.]

President Aquino arrived in Tokyo at 6 p.m. Thursday, met the head of the Moro Islamic Liberation Front (MILF), Chairman Al Haj Murad Ibrahim at 8:45 p.m. at the Ana Crowne Hotel, and left for Manila at 10 a.m. Friday. By doing so, he set off a wave of speculations roiling across the nation, especially in Mindanao, where the MILF insurgency is situated. The request for the talk came from President Aquino, cutting through the usual protocols.

On its face, both sides agreed that the top-level one-on-one talk was successful. They both agreed on fast-tracking the negotiations, citing the boost the talk gave to the formal process. The MILF said in a statement that the meeting gave “a tremendous boost to the peace negotiations and in rekindling public expectation to fast-track the peace settlement.” The Chairman of the government panel, Professor Marvic Leonen, on his part said that the meeting “helps the formal negotiations between the panels on both sides.”

Professor Leonen also said that both sides “agreed that the implementation of any agreement should happen within [the term of] the current administration.” The MILF was a bit more reticent, saying only that there was “consensus that all substantive and outstanding issues discussed by both leaders will be taken up by the peace panels for deliberation on the negotiating table.”

It is inconceivable that the Philippine president will seek a personal, one-on-one meeting with the MILF chairman just for coffee talk, “getting-to-know-you,” or to merely boost the ongoing peace negotiations. This is all crap talk.

I think reading between the lines of the formal statements of both sides and subsequent pronouncements of both sides, plus a contextual assessment of the recent history of the peace talks, is more productive and can lead to an understanding of the President’s risky out-of-the-box move.

It is evident from the formal statements that the President discussed bottomlines and feet-on-the-ground options with Chairman Murad and that these were received with openness by the latter. What are these? The government side, in subsequent pronouncements, broadly hinted that it will not accept the idea of a Moro substate or any proposal akin to the ill-fated Bangsamoro Juridical Entity (BJE). There was heavy speculation last June that the President rejected the government panel’s original position, among other reasons, of resuming formal negotiations based on BJE and other major elements of the Memorandum of Agreement on Ancestral Domain (MOA-AD) which the Supreme Court already declared as unconstitutional.

The government, after the Tokyo talk, instead pointed out that the MILF has already set aside its strategic position for an independent Moro homeland and is opting for Filipino citizenship “with a Moro national identity.” It presumes that some kind of an autonomy arrangement will accommodate this position.

It is a fact that the MILF is losing ground, politically and militarily. The split by Commander Umbra Kato, who has strong ties with the late MILF Chairman Hashim Salamat, was a body blow to the MILF. The failure of the MOA-AD also weakened MILF’s political standing. It now faces an Aquino administration with a huge reservoir of political goodwill and unfettered by the sins or promises of the past Arroyo administration.

A political moment has arrived for a possible meeting point. President Aquino took the risk. Now, history will judge him whether he has the instinct of a peace warrior or the foolish imagination of a court jester.

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Political constitutionality

It is laudable that the GRP panel which negotiated the MOA-AD decided to go public and make available the official copy. I got mine last night from Gen. Rodolfo Garcia, the panel chairman. It is also laudable that they opted to open the whole thing to public discussion. Now, for an initial reaction.

During the current imbroglio regarding the GRP-MILF memorandum of agreement on ancestral domain, a major point of contention that often comes up is the constitutionality–and hence the mandate–of the government negotiators. Critics contended that there is no such constitutional mandate and that the agreement (and those who negotiated, including presumably the president) violates the constitution. The proponents, on the other hand, defended their actions–averring that constitutional and legal processes have been followed and that the Executive has the mandate to negotiate.

Who is correct? On its face, I would accept the legal arguments used by the proponents. Peace negotiations, by nature, contemplate even changes to the constitution, if so required to achieve just and lasting peace. Numerous international examples abound regarding this. It is also correct when they say that the agreement may still go through legal (and constitutional) processes by way of possible review by Congress, Supreme Court, and through plebiscites (if requiring constitutional change and, for citizens in proposed Bangsamoro Juridical Entity-BJE). The MOA-AD will also be subject to the formal negotiations on the “comprehensive compact” final agreement.

Politically, the process the Executive department and its government negotiators went through to arrive at the MOA-AD is wrong, fraught with danger, divisive, and ultimately, may result in the rejection of the agreement and even a return to war. I would call it politically unconstitutional.

Apart from specific provisions in the MOA-AD that can be questioned, the basic federalist framework of the agreement (yes, it is federalism, whatever the hem and haw of the negotiators) is its Achilles heel. Federalism is a general state system, in the same level as its opposite–the present unitary Philippine state system. It is a system whereby separate local sovereign states agree to unite (or federalize). Based on a voluntary agreement to give up certain powers and authorities to the central federal government, this state system allows these local states to choose whether to remain in the federation or to go independent–they are sovereign states.

Autonomy arrangements, envisioned and allowed by the 1987 constitution for the Moro people, Cordillera people, and–as local autonomy–for local governments, are on a quite different level. They cover only governance of local affairs (self-government, local government). They do not touch questions of state rule or its basis such as military affairs, foreign affairs, or monetary affairs.

The MOA-AD acknowledges this formally by stating that these affairs are still with the central government. This is true, even for federalized states. The reason here is that these three are the raison d’etre for creation of a unified state, in strengthening its capability to maintain its existence in the community of states.

However, in the same breath, the MOA-AD, among other authorities, granted the BJE its own “internal” security force, the right to be represented in Philippine foreign missions and, on its own, send and receive trade and economic delegations, and review, amend or cancel the “central” government’s mining and other economic contracts. These authorities are authorities of a sovereign state and, under the 1987 constitution, can only be exercised by the Philippine state.

The only scenario for the implementation of the MOA-AD is for the Philippine state to convert itself into a federal republic of at least two or more states, including the BJE. The MOA-AD therefore assumes that this will be so, and in the near future.

Is federalism a “done deal” in the Philippines? If this is so, then the question of constitutionality of the MOA-AD will not be politically controversial. Then, constitutional reform would be the order of the day. However, I don’t think the critical mass for such a radical shift in our state system has been reached–the national discussion has just barely begun on it.

Aside from this, the president–as the main proponent–does not have anymore the political capital to push for it. There is also the constant public suspicion that GMA is just riding on the federal issue to retain power beyond 2010. At the moment, if a snap vote will be taken on a shift to federalism, it would lose by a big margin.

The 1987 constitution–and its autonomy framework–is still the political mandate given by our people up to the present for negotiating the Moro peace question. I am not speaking of the ARMM–this particular concoction, I think, does not do justice to the constitutional intent and framework of Moro autonomy.

It is in this sense that I dub the MOA-AD constitutionally violative–the government negotiators, including the president, overstepped their political mandate. They should have made sure of the federalist framework for their negotiation before they entered into it. At the least, the political leaders and parties–whether ruling or opposition–should have been consulted first as well as the major stakeholders such as the churches, media, private sector, and civil society. Failing this, they should go back to the negotiation table.

There is little doubt that the MOA-AD and its BJE will not gain political support among the majority Filipinos because of its federalist underpinning. Nor, conversely, can it be made an argument for the federalization of the Philippine state.

The MILF and the Bangsamoro people’s struggle, at this stage, have not yet won the right to a sovereign state. A key ingredient for this is the acceptance by the rest of the Filipino people of such a state. Unfortunately, the MOA-AD is a premature document in this regard.

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Disturbing BJE questions

From the little that leaked out about the Bangsamoro Juridical Entity (BJE)–the main subject of the GRP-MILF agreement to be signed on August 5, 2008, more questions arise than those answered.

Yes, the BJE is definitely larger than the present ARMM, covering, according to a Philippine Daily Enquirer article “the Autonomous Region in Muslim Mindanao (Sulu, Maguindanao, Lanao del Sur, Tawi-Tawi, Basilan and Marawi City); the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in Lanao del Norte; and hundreds of barangays in the provinces of Sultan Kudarat, Lanao del Norte and North Cotabato, which voted to become part of the ARMM in 2001. The proposed MOA also provides for the inclusion of the Bangsamoro’s ‘ancestral domain’ in Mindanao, Palawan and Sulu.”

Yes, according to the same article, “the planned Bangsamoro homeland will have its own ‘basic law,’ its own police and internal security force, and its own system of banking and finance, civil service, education and legislative and electoral institutions, as well as full authority to develop and dispose of minerals and other natural resources within its territory.”

Based on the few precious details available, the scope of authority of the BJE seems to approximate–if not the same as–the authority of a local state in a federal state system. If so, what is going to be signed on August 5 will be beyond the autonomy mandated by the 1987 constitution.

The constitution speaks of a national state territory including all those mentioned in the agreement. It also speaks of a unified armed forces and police force. Further, it specifically defines autonomy as the only possible framework for Muslim Mindanao and prohibits any delegation of state authority outside of the constitution.

Article XII, Section 2 also stipulates that, “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.”

The political question that arises on August 5 is: Where did the President and her negotiators got their authority to promise what they cannot give?

If what they are thinking of doing is to change the 1987 constitution in order to shift the Philippine state from its current unitary system (albeit recognizing local autonomy) to a federal state system with local states, then they are putting the cart before the horse. They should do this before negotiating on a federal framework for the peace process.

Otherwise, they open themselves to the charge of treason based on the dismemberment of the Philippine State and to accusation of acceding to an agreement in bad faith–when they do not have the constitutional mandate for their negotiating position and their signature on the eventual agreement.

There is a world of difference between local autonomy and federalism. The former concerns local self-government of local affairs while the latter is about local state rule within a federal state system. Local autonomy may be achieved under a federal or unitary state system. Local state rule, however, can only be achieved under a federal state system. In fact, it is an inherent feature of federalism.

In the full BJE state concept, authority is exercised over all its territory, including the few hundreds of towns and barangays in non-BJE provinces, cities, and towns. This is far beyond the concept of local autonomy and introduces islands of unviable, unwieldy, and isolated political jurisdictions without linkages to their larger neighbors. It would also exacerbate the sluggish development of these jurisdictions and the sectoral divide between local majority populations and the local Bangsamoro minority population.

The people in Malacañang know well these points. That is why their insistence on signing this type of an agreement is suspect–both for the Filipino people and for the Bangsamoro. In doing so, they are attempting to use the MILF agreement to turn around and present to the people their argument for a charter change to establish a federal state.

The BJE, I am afraid, will not lead to a permanent peace in Bangsamoroland. It will sow new seeds for further conflict. Not really because of its merits, but because of the scant public support for its federal underpinning and the charter change it implies.

A national discussion on the BJE is called for before any agreement because of its vast implications not only for Bangsamoro and other Mindanaoans, but also for all Filipinos. Unfortunately, secretiveness–a hallmark of the GMA administration–prevented this.

This secretiveness has already created a lot of unease among affected residents of BJE-designated places and in many political circles. The whole thing seems to be designed to create an emergency situation that can justify political repression in preparation for an unpopular charter change.

A myriad of questions will surely rain down on the BJE and its national implications. Will we get credible answers from a lameduck presidency without credibility? I doubt it.

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