Needed: A Cautious Civil Society

This morning, a full-page ad by the Mindanao People’s Caucus was published in the Philippine Daily Inquirer. Entitled “A Call for Discernment and Unity,” the MPC called on “all to be responsible enough to tackle [the MOA-AD] issue in an intelligent and dispassionate manner, bearing in mind that we are all brothers and sisters, and that everyone in this country has the right and deserve to be treated with respect and dignity.”

My sentiments exactly. I could not have said it in any other way. The issue of peace is too important to be tackled in a politically partisan manner, in a highly-charged emotional context. Lives and people’s livelihood and well-being are at stake and are simply too precious to play with.

Talks, negotiations, and public discussions are better than talking through arms. In fact, the statement should have emphasized this if it also called for the protection of and adherence to the current ceasefire agreement by all sides.

Having said this, let me point out some fallacies and biases in the statement, thereby rendering it less effective in its central message of discernment and unity.

One, the statement obviously took the side of the MOA-AD, defending its core thesis of “Moro ancestral domain.” The MOA-AD has basically gone beyond the concept of ancestral domain and strayed into the realm of Moro statehood. No amount of calling it “ancestral domain” will change its substantive treatment, particularly when framed within the “human right of self-determination of peoples.” The statement should have made this clear at the start to avoid useless debate on the concept and thereby tackle the more substantive right to self-determination.

In insisting on the fiction of “ancestral domain” for the Moro people, the statement made an awkward point (as the MOA-AD itself): It cited the agreement’s provision that “the freedom of choice of indigenous peoples shall be respected.” There are two points here. First, it recognized that the Lumad are not part of the Bangsamoro, and their claim to ancestral domain is inferior to that of the Moro claim. Second, choice is not the same as recognition or respecting their claim. This is the reason why a Lumad conference held recently denounced the MOA-AD. The statement should not have glossed over this basic weakness of the agreement.

Two, it should have made clear that only federalism can be the state framework for the MOA-AD. It would have immediately joined the whole issue. Again, it should not hide behind the fiction of “ancestral domain” in doing so. If federalism is really desirable as the framework solution for the Moro conflict, then say so. President Gloria Macapagal-Arroyo has just said so yesterday, why not the MPC? The political problem, of course, is that federalism is a completely different issue altogether and straying into this territory will embroil the peace advocates in another front where they may not be prepared to engage in–they themselves do not have a unity on the subject.

Three, the issue of the envisioned expansion of the BJE outside the present ARMM will be decided in a plebiscite of affected people. This arrangement necessarily has to tackle the possibility of a patchwork result: some would vote yes to inclusion and some would vote no. In an autonomy situation where the essential lines of governance remain intact, this is not a problem. You only guarantee Moro or other minority representation in government.

In a statehood situation, the lines of governance of “yes” areas will be the BJE. Those areas, particularly at the barangay or even town level,  within non-BJE territory will have almost insurmountable problems of  independent administration and in delivering government services as well as difficulties co-existing with the majority non-Moro people. The non-BJE areas within the BJE territory will likewise have the same problems.

A possible solution may be to undertake the plebiscite for Category A areas as one solid entity. However, this has its own problems that may even be worse than if barangays vote independently. Those areas where the local citizens vote “No” may not like to be deprived of their right to say “No.”

Fourth, the statement is dead wrong when it insisted that the required charter change to implement the MOA-AD will not happen during the watch of President Gloria Macapagal-Arroyo. This is Malacañang’s line–the civil society peace advocates should have been the last to believe its credibility. The pace, in fact, towards charter change is quickening because of the objective limited window of opportunity for it.

GMA has already let the cat out of the bag yesterday when she said Cha-cha is necessary to put in place a federal system of government in the country, noting that the MOA-AD requires it. Preparations are already underway to hold a constituent assembly, ostensibly to pass a single amendment for federalism to accommodate the MOA-AD. Palace spokespersons are speaking of pledging not to bring up the extension of the president’s stay in power.

Peace advocates should note that a constituent assembly is a plenary body–once in session, it can very well set aside even the provisions of the law that created it. The 12-month and 15-month timelines cited in the MOA-AD are maximum deadlines–charter change can occur in much less time, well within the term of GMA. There is no guarantee that it will only tackle the requirements of the MOA-AD. It can as well tackle the question of the president’s extension in power, either in the transition provisions–her own and Marcos favorite provision–or by simply approving provisions for her to run as president or prime minister, as the case maybe.

Federalism and charter change are national issues beyond the level of the MOA-AD and even the Moro right to self-determination. If these come into play and be connected to the peace process, these would inevitably (and unfortunately for peace advocates) affect the national consensus on the peace process. In the present situation of a lameduck presidency with huge popularity deficit, any campaign for the public approval of the MOA-AD will meet stiff resistance.

What I am saying is this: Federalism may need to be revisited if it is touted as the framework solution to the Bangsamoro demand for their right to self-determination and to the question of just and lasting peace in Mindanao. It may bring more problems than it solves.

The only political path the peace process can take under the present situation is for government to undertake widespread and intensive national discussions, not to sell the MOA-AD but to discern the national consensus (particularly the limits of national concessions), go back to the negotiating table, and redraft a document based on this consensus. For the MILF, the same process should likewise be done among the Bangsamoro people, including the MNLF and other political groups within the community and bring their own consensus to the negotiating table. For the peace advocates, the main thing is for them to take a step back, to undertake the same national discussion with all stakeholders, and to disclaim their own biases in order to achieve a just and lasting peace based on a national consensus of all major stakeholders.

Less than this, we will have no peace in Mindanao.

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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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Popularity, federalism, and cha-cha

The results of a Social Weather Stations (SWS) June 27-30, 2008 national survey released today, Friday, showed that Mrs. Arroyo had a net satisfaction rating of -38, her lowest since the -33 recorded more than three years ago. Only 22 percent of the respondents were satisfied with the President’s overall performance against 60 percent who said they were not.

This was, of course, after typhoon Frank had already ravaged the Philippine heartland and she was still traipsing in the US. A Nero act, some would say. However, it is also as much a product of the relentless rise of oil and food prices that already produced an 11% double-digit inflation rate, as well as her stubbornness in preserving the expanded VAT regime.

The eVAT has always been a political issue, especially among the poor people,  that victimized its author, former Sen. Ralph Recto. He lost in last year’s senatorial elections because of this issue. GMA refused to let go of it despite the widespread clamor to rescind it–even only for fuel products. During these days of high prices, she knows this stubbornness will lead to a political debacle for her administration.

Her attempts at distributing some of the windfall from eVAT such as the one to transport workers and their families are only seen as mitigating pogi points and not a real solution to the inflationary pressures of a high price crisis. There is already the public perception that these are attempts to bribe the local leaders, protesting sectors, and the restive masses. Worse, there is the public perception that it only provides new avenues for big-scale and petty corruption. That’s what you will get if there is a yawning gap in credibility between leaders and the people.

It is within this context that one should view the renewed calls for federalism, such as the new angle of satisfying MILF demands for a peace agreement brought up by former chief of staff Hermogenes Esperon, Jr. Whatever the merits of federalism, unfortunately it is being viewed in a very negative light today because of suspicions that a constitutional change process–required by such a major political proposal–can easily be manipulated in order to extend GMA’s stay in power.

Charter change under an extremely unpopular president can only feed the political crisis–it will lead to a political conflict that may strain the democratic system itself. It will also effectively set aside the 2010 presidential elections. At this point in time, any such move will require neutralizing all political opposition.

Will she dare to declare some form of martial rule?

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