PEACETALK: Achieving Comprehensive Peace with BBL: Why Lawmakers are confused about the Whole-of-Government negotiation formula? (Part I)

Lawmakers and policymakers before the start of the sponsorship for the Draft BBL could debate the central question that begs interpretative reservations about the Framework of Bangsamoro Agreement (FAB) and Comprehensive Bangsamoro Agreement (CAB) in respect to the Government’s consent to be bound. Some doubt the debates about the Bangsamoro Basic Law’s constitutionality thus arguing “it is a distraction” about the Bangsamoro’s international law gambit.

A counterargument is the Convention is not only concerned with the substance of a treaty as such: for instance, it is a matter for parties to the peace agreements as ‘law of peace’ (lex pacificatoria) to link ceasefires to a distinct form of constitutionalism. Once we understand the task of peace agreement implementation it is easy to discern it as constitutive of the goals of “peace” for conflict resolution. The new practice of peacemaking is the latest phase in an ongoing negotiation as to “the remits of domestic and international legal spheres” being a distinct form of hybrid self-determination.

Restatement of GPH’s Goals and Outcomes  

As of the very moment the texts of FAB and CAB (I hereto refer “Peace Pacts”) were readily accepted, they became inextricably related documents that create an obligation “not to defeat the object and purpose of the agreements”. Documenting terms to stop the political violence (war) clearly involves the question of intent (trns. niyat) because the old jurisprudence is outdated by contemporary outgrowth of the social sciences for empirical framework in international relations and the new humanitarian law as well as human rights to work on peace agreements and practices.

The testable justification is anchored on the diplomatic initiative with third-party facilitation: Several decades of nonstate armed struggle and corrosive conflicts have been dealt with presidential power anchored on the commander-in-chief doctrine. This includes the conduct of foreign relations and treaty-making; but still fundamental law premise vests the power to declare war with the legislative branch. This last point is crucial for attribution in dealing with claims of ceasefire violations and the cessation of hostilities.

Mr. Senate President: The legislative drafting must target what is covered respectively by three or more principal guidelines and mechanisms. To be sure, several diplomatic exchanges of notes verbale with parallel substance define the Terms of Reference of the International Monitoring Team (IMT) and the International Contact Group (ICG). Violations and frequency of violent skirmishes have been reduced because of the protocols put in place are holding. Core elements of a presidential decision directive towards “Primacy of the Peace Process” were followed by the AFP but not the PNP. In practical terms there’s nothing inescapable about this to block the passage of the BBL.

But the inherent drama lays bare how the congressional body has mixed security and politics. Although it was not a public defeat for the executive office it has distracted the legislative process from moving forward. Tradition of a free press (modern media radio-satellite TV and new “smart” mobile phones environment and global networks) imitated from the Washington system was but another informal check on the Aquino III presidency. The media tried to tie down this news angle of the storyline to the coordination blunder in “Oplan Exodus” at Mamasapano.

Because there is no ‘constitutional default’ position peace-building carries unprecedented weight. For what good is the exchange of instruments—after two formal signing ceremonies at Malacanang palace for the FAB and CAB—where two Heads of State, top leaders of Congress and the Cabinet members as well as those members of the diplomatic corps have become witnesses to? On those two occasions, the ‘ratification’ of related instruments led to conclusion has been done—something what in conventional diplomacy idiom is called “Final Act” in treaty making. The point we are simply arguing is there can be misconception about ratification as constitutional process when it is no more than an act carried out on the ‘international plane’.

In good faith, following signature, they were done in diplomacy to ‘gain kudos’ here and abroad. The key to put this into practice is giving “consent to be bound” here means the Aquino government engages the honor not just of the presidency but of the state (PH). Summary records of the negotiation proceedings were deposited with the Third Party Facilitator, in Putra Jaya, Malaysia. On contact with reality, foreign policy outcome of the GPH-MILF peace process constitutes part of the negotiating history (travaux).

Problem of Ratification: Legacy or ‘Vetocracy’

We are aware that crafting the BBL can be a turning point in statecraft or setback in constitutive unities of the nation-state. Contrary to impressions created by a few commentators, Bangsamoro interlocutors are not anti-republic in the related application of geographical orientation to political control of Muslim Mindanao. Rather, it is deep reactionary what critics do not say about the BBL draft. No one I know of has proposed a return to patrimonial authority embodied in the sultanate. Our traditional institutions are still feeling the transition effects of earlier heritage of protectorate status—a factor to which the MOA negotiations bear witness. Yet its corrective cogency is not lost and cannot be explained away except by transitional justice.

Clearly, it is a starter for the democracy argument of what Silvestre Afable (a respected ex-cabinet member and former GRP chief negotiator) once has identified as “a formidable task on the part of Government to temper the legal and political reflexes that continue to deny the existence of ‘shared sovereignties’ or ‘nations within nations’ [however] long been accepted in conflict resolution”. Thus, conditioned by power manipulation of vested interest and by the anachronism of a “national security state”, according to this conflict interpretation, “these reflexes are opposed to a human security state that is today’s standard of a modern nation.”

Advice and consent is another exercise in ‘vetocracy’ but situations differ from the process of “coming into force” of national legislation vis-à-vis treaty law and practice. There’s no requirement at this stage for Senate ratification considering it is an act that can be done by authority of the President. To be more pragmatic, constitutional constraints may affect the way final clauses of the enabling act are drawn in the BBL. That is why it is necessary to clarify the approaches to the signed FAB and CAB as executive agreements. They are not “self-executing” instruments because legislative approval is still needed for the BBL draft which, once approved, is then subject to a referendum. Voter’s ratification via plebiscite completes the ‘vetocracy’ process.

Negotiated outcomes in peace talks are not only complex balancing multiple issues, actors, promises, and commitments within a proposed schedule of implementation but also underlying formula to meet the interests of all former combatants. At first colonially defined as the Moro “problem” and labeled by modernizers as Bangsamoro “question” this reveals the long need of answers. The next step is the need for provisions by which the “legal regime” can develop. Therefore, the framework devises of the Peace Pacts (FAB and CAB) are in no way outside the ambit of the Constitution or the treaty Convention, but are flexible enough to allow for the various types of asymmetric structure in BBL drafted by the BTC.

We submit that changes from the previous Constitutions came with the autonomous regions in Muslim Mindanao (leave alone the aborted autonomous Cordillera referendum) that are distinct entities with constitutional status. Article X is a constitutionally mandated devolution of powers: So it requires new answers to broker political settlement charting the de-concentration of powers and the evolution of decentralization processes.

A major issue is how BBL entrenches an asymmetrical arrangement through the statutory devolution of parliamentary legislative-executive powers, including listed exclusive competence. Contextually, the “autonomous regions” are not specified as such “political subdivisions” unlike the provinces, cities, municipalities, and barangays, but are ultimately categorized as “geographic areas” being constituent units of the Philippine republican unitary state. Textual recognition in the BBL is an instrument for institutional accommodation to justify delineated territorial jurisdictions of the autonomous region subject only to rights-based plebiscite.

None of the decolonization legacy matters more than the residual problems of the post-independence domains. I strongly argue that migrant politicians are not free agents to resist Bangsamoro home rule because settlers have no land claim rights to ancestral domain in Mindanao. To exercise ‘vetocracy’ on the “opt-in” provision is not absolute so it must be protected as a provision in the BBL to address the outstanding ancestral domain issues contested in the MOA-AD. What needs close attention of the House AHC are the post-agreement operative measures to delimit geographic areas coverage such as (1) contiguity and (2) proximity to the Bangsamoro territory. The timeline can be framed as a unanimous compromise formulation for the LGUs to exercise the option within the last implementation-evaluation period mentioned in the CAB.

There is also the expectation that rather than accepting a mangled BBL would start a process that could shape a constitutional amendment. I want to tackle specific provisions in Part 2 along with established jurisprudence on autonomy from cases actually decided by the Supreme Court. The Bangsamoro’s “right to determine their future political status” is a fundamental principle conceded in the Tripoli Agreement of Peace of 2001. It has a logic of its own that engages national liberation front in protracted struggle. One way to look at the structural apparatus concerning agreements between parent state and non-state actors arguably is to predetermine the exclusive, concurrent and shared competencies prior to the entry into force of the Peace Pacts.

No one can foreclose the right to self-determination in the context of political will set as a political trap. Try to contrast why the MILF accepts the label “armed nonstate actor” as a contracting party to the peace negotiation (but not the NDF) in aspects of the claim to international subjectivity. To approve grudgingly BBL as potentially a good issue for the presidential election can be seen publicly as a matter of partisan conflict by those intraparty factions.

The Whole-of-Government Negotiation Formula

Mr. Speaker: what surfaced at the last House Ad Hoc Committee hearing was the confusion about the whole-of-government negotiation formula to institutionalize the political growth of organic Bangsamoro governance or politics. Asking if the executive can impose upon the legislature the language or wording of an agreement is a tautological exercise. Legal drafting is an art and so the text must read as a whole.

Yes, in factual presentation, chief ideologues and lawyers of the MILF negotiating panel are familiar with the foundational myth of “check and balance” that is constitutionally enshrined as the separation of powers between three branches of government at the national level. After the controversial MOA-AD litigation, they are even more informed of the fulcrum of judicial drifts in response to public policy. In my current response, I find it disruptive of closure to peace agreement solutions where processes of co-optation set in at the legislative mill.

We have reviewed the preliminary matrix of amendments proposed by individual members: Not only does it derogate but contradicts the principled arguments. A “carnival of contradictions” practically cancels out the Ten Decision Points submitted by ad referendum to principals to produce a consolidated version of the BBL pertaining power sharing lists and intergovernmental relations.   Except proposals for deletion, some are a matter of style or redundancy. Diminishing what is already granted in the Organic Act runs against re-conceptualizing autonomous governance.

On one hand, it is a separate issue to establish the various geographical entities that must be adverted to in writing the BBL version for plenary deliberation. Besides contrasting perspectives, labels and names can be very controversial revealing one’s political preferences. An All-Mindanao proposal comes from eastern and northern parts into a “merged larger unit” but it was ruled out by the negotiating panels at an early stage. It is an ideology of settler supremacy that keeps the Muslims and Indigenous population repressed and divided.

Factors to consider include the proponents embracing those constituency-districts of Rep. Rodriquez (Cagayan de Oro) and Rep. Nograles (Davao) riposted by proposals for federation that Senator Pimentel reluctantly put forward. Former Mayor Rudy Duterte of Davao City has advanced it for his ‘aspirational’ initiatives as did the elder senator Nene Pimentel whenever he thought of presidential ambition. Again, partitioning Muslim Mindanao into two regions can arouse irritation particularly from the western part. Why is this? Because it revives the Marcos gerrymandering-type of autonomy experiments covering the Sulu island provinces; the border towns of Lanao provinces; and the political subdivisions of the empire province of Cotabato. Rep. Lobregat sounds redundant to assert proudly that Zamboanga City is not part of Bangsamoro since he dislikes parity of esteem but desires what is granted by the BBL. Does he know this is “coffee for all” argument?

This interpretive research to bring about peace and end the politics of violence explains why ordinary Bangsamoro appears to go beyond what the real interests of national elites and traditional clans seem to articulate as the negotiated political settlement of the Mindanao conflict. Negative attitudes towards Muslims are most intense when influenced by the COIN (counterinsurgency) doctrine that never looks at the checklist of Bangsamoro grievances.

So far it is not useful to set a deadline for the passage of the BBL when substantive debates have not been exhausted. For posterity’s sake, a new transformative vision for the Bangsamoro and Indigenous People must insist on the changes in the “unacceptable status quo” for controlling vulnerabilities to corruption, abuse and impunity. Why ARMM is dubbed “a failed experiment” is attributed to built-in factionalized patronage autonomy in ARMM. The underlying policy reason is not for academic or legal advocacy. But what would such a deal compromise to break the Government-MILF grinding stalemate much like the Government-MNLF peace talks deadlock? (To be continued)

[Datu Michael O. Mastura is a senior member of the peace panel of the Moro Islamic Liberation Front (MILF) and legal adviser of the MILF. Mastura was a member of the 1971 Constitutional Convention and served as Congressman of the 1st district of Maguindanao.]