PEACETALK: Watching over a Republican state and the Substate Differently

COTABATO CITY (MindaNews/10 September) — The current administration of Aquino and the Justices of the Supreme Court are out to resolve the latest chapter on the continuing saga of the autonomous region in Muslim Mindanao regarding the postponed regional elections last May.  For a few months, form rather than substance seems to have put to a halt the autonomy functions devolved to ARMM.  For fear of escalating anti-State violence, meanwhile we watch commander Kato stymied the preparatory work to fast track negotiation with the MILF in mid-August, and the next round of talks with the NDF in September.

I have always thought that the wedge issues provide puzzles or ‘concrete analysis of concrete situation’ surrounding the Bangsamoro status.  Maybe unlearning from the litigation of MOA-AD that the Supreme Court scuttled in “North Cotabato v. Government” is no less instructive in the uses of two contending subcultures: diplomatist and militarist.

Each side may undertake fine gestures only to have culture trumped by wedge issues over Kato’s militant mischief-making as harbored resentments and conflicted claims.  Particularly, the politics of spoilers in the border towns of North Cotabato and Maguindanao is an impediment to other people’s design.  Politically, though, all constitutional subjects are political subject and so the Justices during the oral arguments questioned the petitioners on compromises.  One issue is annulling the part which enables the President to appoint officers-in-charge in ARMM and put it under receivership.  Another is allowing incumbent elected officials to stay on holdover capacity until the synchronized elections.

To us Bangsamoro, the right to determine our future political status for freedom is nonnegotiable.   And so we are resentful of all arguments that attempt to determine our fate in abstraction.  We suppose characterizing the GPH position in terms of non-adversarial relationships was done on the basis of parity of esteem principle.  Alhaj Murad told President Aquino we should not be trapped by the pain and mistakes of the past stressing that peace negotiators are not adversaries but problem-solvers. What then burdens the present GPH negotiators only to remain captive in the past?  “An unconstitutional vote on the MILF agreement,” wrote Marites Vitug “would have given the opposition additional ammunition for its impeachment charges against Arroyo.”  More apt for her book subtitle ‘Probing the Supreme Court’ than the title “Shadow of Doubt” is an entertaining backstage sketchbook of how the jurists committed to saving the Presidency instead of the Constitution.

Joaquin Bernas, an S.J. luminary-commentator, considers at last the action on the MOA-AD an “advisory opinion” in his column (PDI, 08/29) to harp on the amendatory process.  This main point forms roughly my argument for the position taken by the MILF without being a party litigant to the MOA-AD law suit.  At the surge of the controversy, MILF interlocutors were tempted to seek an Advisory Opinion from the International Court of Justice to test the status of a document that is “initialed but unsigned.”  Treating the Constitution as imperfect is the reason why the MILF negotiators also believe in thinking “outside the box” beyond borders in Hobbsian anarchic international security system.

Former Chief Justice Artemio Panganiban’s discussion (PDI, 08/21) on another point reflects a tendency towards the monist-type Constitution by which agreements are incorporated into domestic law, except ‘self-executing’ ones.  That’s the thing about the senatorial “advise and advice.”  Yet it is misleading to present ‘monism’ the opposite of ‘dualism’ such that, in effect, both doctrines apply “as part of the law of the land.”  That the supremacy of the US Constitution holds high in place of the supremacy of UK Parliament modality — is assuredly illustrative of our ‘originary’ forms of politics. This is stark reality, not an academic discussion of jurisprudence.  Questions of political community and national identity shape the State’s true center of gravitation as an organic unity, and the practices implicated in its construction are put to test in the political field.

Change was in the air after the Aquino-Murad meet in early August in Tokyo.  At the exploratory talks in Kuala Lumpur on August 22nd, the GPH peace negotiators outlined their first draft “three-for-one” proposal to concentrate on social and economic objectives.  Read of it in Miriam Coronel-Ferrer’s own piece on “patronage autonomy” that political control is at the heart of sovereignty-based conflict and national wealth creation.  Say, no class enemy of the MILF forces exist.  We stand by Bangsamoro political revolutionary feeling that has gone beyond mere sense of economic grievances, because their agitation for self-rule is not agrarian unrest.  As for treating non-document, I remember a standard joke: “They always sent us “non-papers” because they looked upon us as “non-people.”  The essential fact is it hardly accords with the element of continuity for the comprehensive draft: that’s the whole point of initial rejection.

All these demands convergence upon the power center.  Factoring in a negative sense of police power of the State is refusal of a contractual model.   Whether economic development strategies and whether “choices” or “sequences” or whether imposed from inside or outside, all these are by definition, for good or ill, substantial parts of the distinctive Bangsamoro ‘substatal’ and structural transformation.  That sequencing would have to change—with the political coming first—in line with the MILF Central Committee revolutionary’s mandate.  Our preparation for crafting was “two-ness” or dyad rather than triad, symbol of three.  Thus we offer a “square deal” that is paired in the four-point incremental matrix for: (1) resource wealth sharing arrangements; (2) power sharing political asymmetries; (3) modality for the transitional arrangements; and (4) territorial dimensions.  Policing and administration of justice as it pertains to law enforcement is a separate consideration in reference to the normalization process and weapons disposal.

Why is it difficult to understand that the Moro Question was pursued with pertinacity and warped in the Constitution, which furnished the principal cleavage in diverse views of the framers?  Paralleling the constitutional doctrine of “state rights” is the belief in the struggle for power between “small and big states” fight for equality that bears family resemblance to the autonomous regions.  This is the crux of the remaining outstanding status negotiation between the Republican state abstract interests and the Substate territorial dimensions of asymmetry.  Here I am being over minded for in-depth debate.

As to the fundamental fact of regularity of change through the instrument of voting in a republican state system, no dispute is possible. Congress is swayed in this manner in the absence of party lines.  The Supreme Court is unelected inasmuch as the judiciary is a non-majoritarian institution.  That High Court has its own majorities, 8 to 7, in this direction, 9 to 6 in reverse, by which the Constitution has at times “meant one thing today and the opposite tomorrow.”   Appeal to the composite mind is what means it lies in statecraft.    The working may be illustrated here.  Oral arguments over the procedures in the enactment of the law that postponed the poll in the Muslim South elicited from the Justices a specific issue: on whether the amendatory law should have been voted upon in a plebiscite/referendum before being implemented.  One major legal point is that the Organic Act creating the ARMM is no ordinary enactment.  Therefore, any legislation amending it should be passed by a two-thirds vote in the House and Senate voting separately.  If we go one step further, people with Moro nationalist sympathies may find ‘electoralism’ a constitutional process in the autonomous region politically pointless.

Departing from the troubling course history has set the peace talks over ten years (1997 to 2011) the MILF side tabled the revised comprehensive draft.  The continuum is a catch 22 problematic.  Leaders of the MILF set out their thinking on RSD in the Tripoli Agreement of Peace of 2001 to “open new formulas that respond to the aspirations of the Bangasmoro people for freedom.”  Rejection of the MOA-AD by 8-7 vote cast only served to affirm in Bangsamoro nationalist debates about the “irreformability” of the country’s unitary state structure.

Not the President who broadly represents the people, but always it is the senators who are called upon for “approbation” in watching over the republic.  Admire the conviction of Senate President Juan P. Enrile to broach the subject of constitutional reform without being hooted down (‘dakilang miron’) in memory, but for impartial statesmanship.  I believe Don Claro M. Recto would have understood this point: We have no “pais”… no “patrie”… no “volk”.  That may explain a self-governing nation and what unites “bayan” is a political compact.  The presidential system of American statehood was transplanted to the “unincorporated” Philippine Islands as the model of unitary structure (sans Wikileaks then).

No offer was made yet across the negotiating table on the proposal for granting autonomy and creating federal arrangements (a complex system).  Although both Jesus Dureza and Silvestre Afable hinted at it, but Mohagher Iqbal and myself did counterpoise: “our problem is your Constitution forbids a perfect union.”  By the way, I didn’t think of distinguishing between federal principle and full federal political system.   Our well-read and informed columnist Carmen Pedrosa (PhilStar) wrote about it.  As with devolution, she has always been passionate about cultivating autonomy on federalist principle.

Scholarly doubters argue: as a complex system the structure of the economy is a systemic cause limiting the socialization (regardless of Marxist socialist or capitalist backdrop) of the Bangsamoro for structural asymmetry of constituent units.  Examined from the same angle, political scientist Alex Magno (PhilStar) sees why the overhaul of the Constitution to liquidate the Organic Act and establish Moro “substate” is much more important than “surgical” altering any of the restrictive economic provisions.  Take it from one academic who admits to have been marginally involved in the Ramos presidency’s Jakarta accord; but just the same let us say progressives tend to argue rather differently.

In the Substate draft text, MILF research formulation is presented in a broad-brush model of the political economy of armed conflict.  What MILF key interlocutors offer to the electorate is a ministerial system to combine the execution of policy and legislative devolution in the Substate? It is part of much broader argument for the reforms in the politics of two-tier locality.  Thus it would be natural to believe that some functions of the single national State are best carried under the nature of pragmatic choices by ‘reshuffling the architecture’ of delegated powers of units structured into “hier-states” for purposes beyond simple devolution.

Over generations ago—from Rizal to Aguinaldo down to Pimentel, to Abueva and this writer—the Idea of ‘consociationalism’ was proposed in which the tiers of governmental structure occupied separate and identifiable domains.  So Aquilino Pimentel, the senior solon, and that of professor emeritus Jose Veloso Abueva’s advocacy of federalism is the presumed value of achieving both unity and diversity.  Here I want to repeat my deficit democracy argument in reverse.  Secession is the logical goal of “state rights” yet to paraphrase a Madisonian visionary line: federal supremacy is the answer of a people growing in consciousness of national unity.

Can the “usurped” state rights be restored to the Moros in terms of structural mediation with a sense of transitional justice?  My honest answer is No and Yes. To aim for a negotiated solution is to translate the territorial divisions of power into political engineering.   The target is ‘to engineer a centripetal spin,’ which is rooted in geographic basis of representation.  More baffling as yet is ‘a rip-off in originary partition’ dismemberment argument peddled by another senior solon-turned- columnist Ernie Maceda, Mar Roxas and Senator Frank Drilon among those cracking the unkinder cuts.  Such press watery ‘op-ed page and gauzy story line’ are also reminiscent of the 2008 unremitting “hate debates” over the Bangsamoro juridical entity.  No, it is not an enlightened discourse over the MOA-AD; and Yes indeed neither is the Substate a surplus of conflict, or on substance a dreadful bit of mischievous tinkering with the Constitution.

Even leaving aside the diplomatist angle, what had passed Alhaj Murad’s lips is the “substate” family resemblance to negri Malacca or Basque country.  So, in a manner of speaking, Bangsamoro “existing” phase of political development puts the “parent” State at ease.  President Aquino’s palsied grasp of “doable” governmental solutions come full circle with the Cabinet secretaries and ‘securocrats’.   Where would the current Aquino presidency lead the Bangsamoro quest for the right to determine their future political status?  Journalist-diplomat Rigoberto Tiglao (PDI) once interviewed the late Salamat Hashim but now he is being unfair and wrong to write off the MILF comprehensive compact draft a conceptual “plagiarism” of the decades-old Moro self-determination.  If protracted negotiation continues, discourse and the way some proposed provision is phrased would turn out to be as much a point of contention.  And so on in circles.

I take it as a tectonic change toward unbigoted Filipino attitudes that deals with Bangsamoro distinct ‘domestic community’ accepted as citizens of the same republican state. ‘Who needs an Islamic state but Muslims?’ is simply a mask for outright opposition to a Sharia-based governance.  Long before, the MILF ulama and intellectuals had addressed the sector of mainstream opinion in the way of narrative drive for sovereign direction under a Basic Law.  After the Substate is fully differentiated in its secular type, I come now to the point under consideration for binding commitment in place.  The ritual of public avowal to the Constitution is a lay Christian charter with unresolved antimony and difficult quest.  Think deeply when the negation of the religion of Islam is posited the condition of possibility for reclaiming the political realm occurs in a dynamic of rupture or reunion.  (Part 1 of this piece, titled “Grounding the Substate Differently” was published on September 5. MindaViews is the opinion section of MindaNews. PeaceTalk is open to anyone who wants to share his/her views on the peace process. Michael O. Mastura is a senior member of the Moro Islamic Liberation Front peace panel).