PEACETALK: Minding Advice and Consent: Why allow Congress to micromanage a process for war, not negotiation for peace?

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COTABATO CITY (MindaNews/27 March) — One year ago today, the Comprehensive Agreement on Bangsamoro was signed at Malacanang Palace. How can we make headway in enacting the BBL (Bangsamoro Basic Law) when Congress appears to be micromanaging a process for war, not the Government-MILF (GPH-Moro Islamic Liberation Front) peace process? The presumption of investigative function “in-aid-of-legislation” weakens in case congressional “fishing expedition” turns out expansive. Lawmakers who look on this peace settlement as politics-as-usual do not understand it correctly.

Sharp polarization is not the end of the story of obstruction to carry out the Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement on the Bangsamoro (CAB) to enter into force. Nor is it made easy to excuse more failures in compliance and incomplete substantive matters to be given some effect in domestic law. This cycle is bound to be repeated as it occurred to the Organization of the Islamic Conference (OIC)-brokered Government-MNLF (Moro National Liberation Front) agreements given subsequent changes of successor administrations. The guarantee of non-recurrence in transitional justice applies both to victims and perpetrators.

Check Out Majoritarian Excesses

As I write this submission, the legal effect of “the outbreak of hostilities” to the Peace Pacts still remains uncertain. First of all, the comprehensive treatment of the subject is now out of date on the belligerent actors. From armed non-state actors’ perspective, it is considered entirely abnormal condition. Because “diplomacy is war by other means” burning questions on the anti-terrorism mission created a conduct at least on the law of peace pacts.

People can look at this as analogous to that of ‘political’ severance of treaty ties (breach in hudna). In practical politics, preemptive attack will turn upon facts. So what if it is not possible to seek truth and justice? Worst scenarios also need investigating. And what is striking is not every cop can be a soldier.

Mr. Senate President: That PNP Board of Inquiry did a better perfunctory task more than expected of Senator Poe’s summative Senate Investigation Report. Senator Poe has grace but no subtlety trying to distance herself from the President. There is a subtler way the opposing forces are disarrayed in war-torn-areas that results from the means the Constitution operates to array them in peace. I will devote space to test the discreet issues. Both sides on the GPH-MILF Peace Talks may have to go through a joint process to reassess: To what extent has that bloody Sunday affected the mutual trusts and treaty relations. Call it ‘preemptive strike’ in diplomacy though the ‘framework treaties’ on dispute settlement remain unaffected.

The next immediate point is to change the way we think about the Constitution as ‘sacrosanct’. This sort of irreverence is not what commentators take it to be bellicosity or on being ‘apostate’ advocate. Watch out. The Supreme Court is normally passive if not extremely shy of challenging the internal workings of Congress. And what is the antidote of the straight path Presidency to the status quo bias of the existing Constitution in foreign and domestic crisis?

At the Manila Overseas Club forum a week ago Chief Justice Sereno was asked what advice she could give on the legislative mandate. Soberly she admitted that the third branch could end up “addressing more difficult questions” if the laws being crafted by Congress diverted from the Constitution. The Press did not clarify what “questions actually need to be resolved very decisively” by both chambers. A fact of political life is there are anticipated legal assaults on the BBL. As part of the Sereno Court writ—wherein we imagine submitting briefs—that should consider not just the ‘legislative history’ but also justificatory arguments. Hard cases are better settled out of court and less important than the resolution of historic injustices connected to the Bangsamoro legitimate grievances.

Early on, the Chief Justice said: “War comes at a very high cost,” framing her argument that “there is an alternative in the context of justice and the rule of law.” Notice, too, that this chief magistrate makes it a point to issue public statements acting out of any judicial policy or principle for public update on events. Subtlety does not seem to be the order of the day: Justices may be bracing for the constitutional arena. Remember this: our Supreme Court Eight stopped the signing of MOA-AD (Memorandum of Agreement on Ancestral Domain) but could not put an end to brutal violence.

Madame CJ: Enough of affirmative action for minorities; in depth, think innovations of shared authority with a Bangsamoro dimension.   A judicial check on “majoritarian excesses” (the use of 8-7 veto) comes immediately to my mind by which your honor’s progressive Court might decide without complicity in it. In the politics of law, so long as the political branches cannot reach accommodations the political space that members of the Court inhabit is that domain of judicial activism or restraint—solely to invalidate a national legislation and governmental actions.

Who minds the advice and consent

The public knows that Aquino III established a presidential enclave of communications and information assistants upon assuming office. Vital to the conduct of the Presidency is that the chief executive (also the commander-in-chief) receives the candid advice and frank views of close advisers: To think clearly and act effectively for policy or partisan reasons. Who is minding the advice and consent? When creative national artists like F. Sionel Jose encapsulates his Presidency with a characteristically “stubborn streak” the public gets the chance to ponder or wonder—what transformative steps to push hearings on the substantive processes.

The first is on policy question:

Why does it allow Congress to micromanage the negotiation for peace? Can it be explained what fuels the oppositionist accusation in the Senate Investigation Report about that enthusiastic appearance of Presidential Assistant on negotiation for peace and the government chief negotiator? Why turn it into a process for war? It is unclear why the GPH negotiators suffer from “wanton excess of over optimism” almost veering toward the MILF side of the table. This executive determination by tactical default causes confusion to the legislative policymakers.

Consider what we are dealing with here is a policy prescription that jumps out at Senator-opponents of the BBL. Alan Cayetano began withdrawing to sponsor the BBL, and now we know his preferential bias for sci-fi genre. Coming from Taguig City with a Muslim constituency, in reaction to the default games Cayetano does not feel the countryside anti-Moro prejudice. Nor is this character the “know-it-all-phenom’ but one who plays the pulpese script (what if such tragic story of ‘SAF elite killer force’ had turned out differently?) That’s fun for celebrity status. But if we go by instinct Chiz Escudero is more insidious in rhetoric (recalling he said “Moros can’t even bake pan de sal”!) Strenuously hinting this renewed chap’s attack anxiety on the MILF betrays a bellicose role. That’s not really a comforting thought when he pays visit to Cotabato City rubbing elbows with scions of the retired Grand Mufti.

Here we can make a reality check. A default development aggression combines OPAPP (Office of the Presidential Adviser on the Peace Process) “Pamana” and Armed Forces of the Philippines’ “Bayanihan” programs that yield to split-level tendencies. According to this broad dialogue model, humanitarian condition arises from dilemma of pushing a budgetary support to post-conflict-rehab with codename “Sajahatra” up front the normalization process. There is a patch to avoid the gap between what is power de facto and power de jure in the exercise of presidential prerogatives.

The second is on protocol issue:

Why does MILF care about wrong publicity of the proximity-talks with the GPH that add fuel to the fire in a roundabout way perpetuating the status quo in the armed conflict? I would guess the expectation game of metropolitan elite differs from ‘speculative sphere’ within Muslim worldview and perception of social reality. Islamic resistance brings to fore the ambivalence that transforms into a practice known as taqiyya (simulation). It represents this factor to provide pathways out of violent politics.

How come the GPH caved unexpectedly? But instead of saving substantive presidential materials (the very disclosure of which would injure the public) it is rather extremely impolitic for GPH negotiators to thrust MILF peace partners into an awkward spot. This is an ironic twist in the public’s mind. There are no anti-warmongers sloganeering in the streets; nor banners accompanied by effigies denouncing US meddling; or angry burning of the Malaysian flag. The Bangsamoros face hard reality about FAB and CAB and the BBL as transitional steps towards a negotiated political solution to the conflict.

How this could end: Advocacy policy predicts the sponsors of the BBL who are not willing to fight for it are likely to end up with high stakes not tied up to their own political ambitions or personal mercantile objectives. I can only paraphrase the currency of press statements of politicians eventually turning into “ex post facto alibis than guides to action.” When public opinion is “hostile” or public policy is on the “wrong” side, the consequence includes the best alternative to negotiated agreement (BATNA). In failing to carry out “back-channel diplomacy” the MILF side can opt to engage with the next Administration. As I write, an easy challenge: the arguments must be made against a mangled BBL.

Tilting the balance in separation of powers

The Aquino administration—in its determined effort to push passage of the BBL—is following a primary presidential path. Sensing a constitutional wedge issue besides being legally correct it pursues belief in political correctness. There is no gainsaid if it was morally sound for Aquino III addressing the assembly of Christian religious leaders on the neutral grounds of Malacanang. The bad news for bigots: what is most evident to the Muslim minority is not all the moral arguments are on one side. That is why the Catholic Bishops Conference of the Philippines (CBCP) representing the Catholic majority has raised concerns about it, because such contested arena could be determinative much like the RHB.

There’s not much to tell whether Aquino’s presidency follows a clear-cut doctrine of executive privilege that tilts the balance test for competing institutional claims (or alibis) of vital importance. That need has become acute around President Aquino’s proximate policymakers and circle of political advisers. Just being nice does not get the MILF over to your side: “We are hard on issues, soft on personalities.” The OPPAP and the GPH Panel possess no presidential heavy burden or leverage to bring to conclusion—a full disclosure of the confidential measures, demands or eventual concessions—in the incremental Government-MILF peace negotiations.

Diplomacy break down and broken chain of command

The impact of presidential political culture is profound when diplomacy breaks down and links between service under arms and democratic control are broken. Former president Fidel Ramos clarified that the doctrine of chain of command pertaining to the police under an executive order applies to PNP (Philippine National Police) for command responsibility. But it is not politically incorrect when Justice Secretary De Lima retraced this to doctrinal “military construct” where the balance between public and private (civilian character) tips in the latter’s favor. More to the point is a key dimension in the diplomacy break down (nonsupport for peace process) borne out by the ‘already-fuzzy difference’ between war and upholding public order.

No matter how paranoid you are, or conspiracy-minded about “Oplan Exodus”, the public reaction that impelled Party-List Representative Walden Bello to resign from his congressional seat is only part of the story. So what does it imply to the vast administrative state (Aquino calls them “bosses”) when the House Speaker Belmonte advised government to consider Plan B? Pulse Asia survey says 44% are opposed to the BBL thus plunging the President’s popularity rating down, and which cannot fail to have negativity-interpretative results soon after controversies began to cut deep.

To stymie the BBL who are the proximate policymakers of Aquino III abandoning the ship-of-state? Is it all because influential opinion makers echoed in columns and editorials think the public investigation of “Oplan Exodus” is a game changer? It needs monitoring on whether the Wallstreet prototypical business enterprise colony in Makati City does much to reinforce the fears and prejudices of policymakers. (Datu Michael O. Mastura is  President of the Sultan Kudarat Islamic Academy.  He was a  member of the 1971 Constitutional Convention, and served as Congressman of the 1st district of Maguindanao from 1987 to 1995. He served as senior member of the MILF peace panel and chairs its Advocacy Committee. He contributes analyses and commentaries to MindaNews.

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