PEACETALK: Why gridlock on BBL is democracy deficit: Polarizing the duty to perform FAB and CAB as Peace Pacts

COTABATO CITY (MindaNews/17 March) — Contemporary treaty law and practice bind the Government of the Philippines not only to respect and to fulfill any obligation arising from prior agreements, but also on the law of peace pacts. Ask what is the storyline here? There is a state duty to perform both Framework and the Comprehensive agreements signed as peace pacts with the Moro Islamic Liberation Front (MILF). Since a state is a legal concept—and so the GPH is not a natural person—its head or government agency has to act on its behalf to conclude agreements.

The Framework Agreements

I will explain shortly that such frameworks are structured around hybrid agreements. I do conveniently typify both Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement on the Bangsamoro (CAB) as ‘framework treaties’ by which legal regime under the Bangsamoro Basic Law (BBL) can develop real devolution to the regional entity. Devolution policy for the Bangsamoro entity as though its geography and the history of its politics were identical to the rest of the country does not patch up gaping gridlock over the BBL. (On record, I was invited to the hearings so I respectfully submit this documentation).

Government-MILF peace settlement embraces an asymmetric element. This is a modality for reconciling divided societies in which armed non-state actors play a major role in international relations. Most current framework treaties are relatively recent device. It is an instrument to elaborate principles that continue to incorporate provisos and have effects in domestic law. As described typically, it is first of all treaty relations which provide for later, and more detailed, technical annexes or protocols and national legislation for autonomous regions. Secondly, the relationship of peace to statutory measures of domestic policy is constructive of process and substance of the peace pacts.

Transformative Projection

Politicians and lawmakers must not get too noisily strident or naively excited about such growth points in modern legislation. From its public tone and rhetoric, the House Ad Hoc Committee seems to have run out of trump cards to do this. Resort to the travaux is an important means. How can transformative departure from the status quo convince other political actors to shape the BBL? The last thing that the Bangsamoros want is an organic law that runs through the legislative mill by “cut and paste” amendments.

What else than ill-timed Mamasapano “police action” got in the way of straightforward logic of “power sharing” via a piece of legislation to entrench governance in parliamentary form? Nuanced gestures meanwhile shifted from the embattled language of “coordination” in police action to “cooperation” for policing and administration of justice. Victims’ cry for justice jumps at you on the TV sets and taxicab radios. At the Transitional Justice and Reconciliation Commission (TJRC) level, lawyer Ishak V. Mastura monitors the climate of public opinion in which the policy is carried out. He notes that MILF has now unleashed the leverage for the “balancing of interest doctrine” between law enforcement and state duty of saving the peace process. Adhering to the architecture of the peace process, the MILF deposited its Investigation Report to the Third Party Facilitation Secretariat in Kuala Lumpur.

“State duty comes first even at the expense of MILF interest,” this advocate points out, since all sectors of majority Filipino society are united on the issue of accountability. Once all findings of investigators — Board of Inquiry (BOI), Department of Justice (DOJ), MILF and Commission on Human Rights (CHR) — are reported only then can that State duty be weighed in or balanced with national security interests.

Checklist of the duty of State to ensure respect for humanitarian law made it necessary to subscribe to ad hoc rules of engagement for criminal interdiction. Conflict management experts warned that MILF risks a bigger problem of a mangled BBL, since we reached traction only on the barest matters of fact. Why this trending? “Internal conflict of interest does not allow it to take a coherent stand,” as observed by a Geneva-based expert, “because of its dependency on the government as its ‘peace partner’.

Mindful of the split of MILF from the MNLF (Moro National Liberation Front) in the late 1970s, the solution is to hold on to ANSA (armed non-state actors) status. That is why the BBL processes lay down demands towards this unarmed strategy persuading MILF to tact to the moderates. The analogue of a “Barret sniper or ballot box” policy pushes revolutionary forces toward a pragmatic “rolling devolution” to advance MILF transitional leadership position. But that is only a projection to the post-conflict transformative peace building envisaged for the Bangsamoro Transition Authority (BTA). Voter’s registration at Darapanan last week was more of a preparation phase for the referendum.

Predicating the Asymmetric Status

I strongly believe the Constitution is a narrow framing device for negotiation. Specific provisions in regard to Autonomous Regions endow legislative powers in an organic act. Why did the peace talks produce for Bangsamoro a “substate”? It is a justificatory entity with geographic areas. And ask, why not? Correlate provisions for its organic entrenchment tied to the plebiscite: Know that BTC supplanted the “regional consultative commission” within the framework of FAB and CAB as peace pacts.

My interpretation of unhyphenated Bangsamoro is to chart beyond ordinary enabling act for in depth coupling process and substance. In peace pact context, the law’s ‘performative’ dimension provides solutions and assists in settling the obstacles to commitments. (This sounds technical so I will return to it later). Justifying the basic structures and features of juridical asymmetric status are broad enumerated competencies. What does seem fairly clear is a scope of “legislative power” built-in constitutionally to generate a controlled asymmetry under Sec. 20 of Art. 10. It is predicated explicitly upon the clause “within its territorial jurisdiction” being the normal state of things.

Mr. Speaker: At base, the House of Representatives represent localities. Congressmen must embrace this logic of asymmetry. It is a route to what makes possible alternative congressional “act of exception” with the required two-thirds vote for the BBL. Allow me to elaborate the contextual recognition.

A close look at the way our unitary system is constituted defines the behavior of the actors in political subdivisions and local units of government. The main sources of asymmetry are the autonomous region in Muslim-Mindanao, and in the Cordilleras. Is there some lawmaking leakage here for what we know as the politics of legislative districts? It displays a bitter sense of injustice that leaves the community divide in the grip of imperial Metro-Manila. We discover that the Constitution has something with it: an imperfect political compact. This is the power-sharing-plus-Bangsamoro dimension.

A centralist political use of defining the structure of the parent State negates, on one hand, possibility of other legitimate interpretations favorable to substate devolution. Marginalizing those autonomous regions by extending competencies homogeneously is marked in slogan: “coffee for everyone.” What is the common thread guiding the 12 regular regions plus Caraga tied to the Capital region? It has become particularly acute to seek unity by consent to avoid disparity veto culture. When the administrative regions want to do something political—demonstrably symmetric in context—regional actors can find an organizing principle in the Local Government Code.

Workings of territorial insularity can be situated in the asymmetry of regions as the other scale of good governance. For the constitutional objective has never been to devolve all the territorial subdivisions with the same political autonomy using a model with symmetric features. Polarity can reflect diversity of regional actors not only with respect to language but in matters of religious affiliations and cultures.

My argument recalls to memory that centric-critical opinion editorial pages became the raw materials for those political attack ads targeting the MOA-AD (GPH-MILF Memorandum of Agreement on Ancestral Domain of 2008). Apparently, attitude surveys seem to exaggerate the moderate public opinion and underestimate extreme views. True enough, Bangsamoros do have nationalist pride on their side; but they face messaging problem. By litigating the MOA-AD, lack of consultation and the right to know moved MILF negotiators to hold in abeyance the constitutional gaps or overlaps for constructive purposes. Consider political realism, a fiat not outside the ambit of the constituent instrument (charter), but a flaw in geographic representation in the Senate.

Constitutional Wedge Issues

Mr. Senate President: Can anyone honestly say today we are “one united people” under a republican state? Congress has no shortage of constitutional ways and therefore each member’s attention to details must not be fixated on defeating the BBL. The Senate Select Committees should not short shrift Bangsamoro politics by defeat of insurgency or co-optation. Rallying public support to the commander-in-chief appears in constitutional discourse as an act of domestic rather than foreign policy (for war, invasion or intervention). Foreign policy making is divided between the President and Congress. Senator Santiago is right to pose: “Where is the Senate’s authority to conduct this peace process? It does not have an instrument of that nature”.

Consider political realism, a fiat not outside the ambit of the constituent instrument (charter), but a flaw in geographic representation in the Senate. Senator Santiago wants the peace process to start all over again. “We have to stop talking of negotiating the Constitution,” as she felt it is a heresy. Here, we may be getting thoughtful challenge, on two points that make the BBL unconstitutional: (1) the alleged lack of legal authority of the government and MILF peace panel to negotiate; (2) the creation of a supposed Bangsamoro substate.

Now there is a misconception that ‘the consent to be bound’ (ratification) is a constitutional process. Consult the text: Senate’s concurrence referred to in the Constitution is a quite different process. I can argue that it is only logical that the Executive Article VII, Sec. 21 on treaty making is not found part of the Legislative Article VII. The jurist-minded legislator asserts that “[t]he President just assumed he has that power but he does not.” A professor and former judge, Santiago is mistaken in her press statement to assume, “[if] in treaties, you already need the concurrence of the Senate, what more in creating a substate?” Having redacted what the power of the MILF means to represent Moros, in her view, it is unclear. “Among all the scions of the breakaway groups: MNLF, MILF, BIFF (Bangsamoro Islamic Freedom Fighters) and others, which one of them shall be validly allowed to claim that it represents the Bangsamoro or the entire Islamic peoples within the Philippine territory?” The lawmaker went on to say: “the moment the BBL passes, there will be internal war among those claiming to be leaders of Bangsamoro.”

Misreading again for what is in place called “the cessation of hostilities” binds the MILF forces, both as a duty to the ba’ya (pledge to leadership) and to perform hudna (truce for peace). Contrariwise: the AFP commands have wrong perceptions that active-duty army troops can sustain a perpetual ceasefire yet continue to conduct COIN (counter-insurgency) against BIFF. Even with limited field guns “the utility of force” calibrated into a hybrid warfare is a magnet for foreign elements and lures of preemption.

Checking on Deficit Democracy

A melding in the people’s mind and in Congress on how BBL changes the status quo leads to end state when fighting stops and battle for peace is won. Our citizenry may have to remind the authorities that the legitimacy of police power and the checks on police function are political checks and balances.

  • Policing is not about military balance of power. Such legitimacy depends on the ability to use force precisely. And it is this element that distinguishes “police action” once it engulfs entire neighborhood (community) from traditional war that leads to slaughter or mass evacuation.
  • Police service is civilian in character. Nonviolence balanced against interaction over enforceable rights and on subordination to a democratic political structure. Wielding the state monopoly of force without that subordination makes it “a police state”.
  • Police work is routine particularly serving warrants of arrest. So it can carry out “harassment arrests” (where charges are later dropped). Otherwise, when it gets tough-going on political detainees the prisoner’s treatments become deficit democracy.

The Justice Department indictment of Armed Non State Actors (ANSA) makes the police model episodic, but strains the peace process to the breaking point. Nonetheless the PNP Board of Inquiry can come to conclusion for post-conflict obligations yet engendering none of the euphoria that accompanied the FAB and CAB. We assert that the BBL cannot be “dumb” on policing and justice administration regulations.

Democratic Accountability

I dare say Congress needs a more informed understanding of the Bangsamoro Basic Law in ‘treaty-making’ context, and for peace pact compliance (or perhaps collapse). Legislators may be concerned only of high-minded matters of policy. Well till we sat at the GPH-MILF negotiating panels, we mapped the complexities of validity and legitimacy. Justice (Marvic) Leonen (government peace panel chair, July 2010 to November 2012) and I had anticipated that constitutional constraints may affect the FAB and CAB clauses and the way the BTC draft are drawn subsequently.

President Aquino’s use (or disuse) of executive privilege examined in the context of his “daang matuwid” (straight path) does not fit neatly with his understanding of presidential power. His level of comfort is to focus on the nature of executive agreement—not on constitutional scrutiny of the BBL. That properly is the province of the High Court exercising judicial review. Simultaneously all this is not pure lawmaking story as process becomes substantive and the narratives operate to establish norms.

(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.)