Part 4: Peace and Charter Change
(This is the fourth part of “Interregnum, Calling, and Resurrection: What is at stake today for young Mindanawon Lawyers,” the commencement address delivered by Professor Antonio Gabriel M. La Viña at the Cor Jesus College Law School in Digos City, Davao del Sur on 24 April 2018)
The peace processes with the Moro revolutionary groups and the National Democratic Front are crucial and we must be supportive of those processes.
For the former, I support the enactment of a constitutionally compliant Bangsamoro Basic Law. I think the draft submitted by the Bangsamoro Transition Commission and is the basis now of the bills for both houses of Congress is general acceptable and needs just a little more tweaking. Among others, the provisions on respect for the rights of indigenous peoples have to be strengthened, terms have to be defined to be sure the boundary of local autonomy and federalism is not breached by this law, and a few other technical issues related to what areas will be included. But I see the light at the end of the tunnel for the BBL. I hope of course that the Duterte administration will be aggressive in defending the enacted law when challenged in the Supreme Court. If it is complacent, it is likely that the Court will declare the law unconstitutional and we will be back to square one.
I also fully support the peace negotiations with the communists. We need a revolution in this country but a revolutionary government is not necessary for that. What the country need is a comprehensive agreement on socio-economic reforms (Caser) that addresses effectively the roots of our social conflicts. The talks with the National Democratic Front is the best chance for that.
I reiterate my long-standing proposal: the only way the peace process with the national democrats can succeed is if the parties accelerate the negotiations and achieve quickly the agreements on socio-economic reforms (two one week marathon talks with a one month break for consultations is enough) and political reforms (process should start in parallel and conclude two months after Caser is agreed). A ceasefire and release of political prisoners can be agreed immediately upon the initialing of Caser. Overall, six months should be the timeframe to finish everything. Protracted talks are like protracted war—it will only result in stalemate and the same old thing, failure to achieve peace with justice.
Let me elaborate a bit on why a ceasefire is necessary for these talks to progress. More than anything else, the essential problem with past and present peace talks is how to overcome the so-called “trust deficit.” Peace talks could not advance past the preliminary and exploratory stages because the parties approach the negotiating table with trepidation, mutual suspicion, and pre-conceived notions that the other party is not sincere.
If peace is to be achieved both parties need to exert every effort to gain the trust of the other, approach the negotiating table with an open mind, unburdened with biases and prejudices and determined that despite seemingly insurmountable differences peace can and will be achieved. Confidence building measures must be adapted to the hilt. And for starters, a ceasefire agreement must be implemented for surely one cannot talk peace while pointing a gun at the other.
Indeed, as far as I know, no peace agreement with a revolutionary movement has ever been achieved without at some point in the process – and actually the earlier the better (and here we are talking of more than a decade of negotiations) – a ceasefire declared. Of course, a ceasefire is not unilateral surrender and must be accompanied by ironclad commitments for immunity and freedom of movement. Its conditions must also be well defined, including establishing effective monitoring and dispute resolution mechanisms, so the ceasefire in facts builds trust and does not exacerbate the mistrust.
A priority for building trust is for the government to abandon its proscription case against the Communist Party of the Philippines, the petition it has filed to declare the CPP a terrorist group. That is toxin to the peace process. Besides the persons they listed there as officers and members of the CPP are a product of either inept, outdated intelligence or malicious misinformation. One of them is my friend and longtime co-worker in the Philippine Delegation on climate change, Vicky Tauli-Corpuz, currently the United Nations Special Rapporteur on the rights of indigenous peoples. Vicky is a patriot of the highest order and I can vouch completely for her commitment to peace. She has been put into danger by this case and our country in turn took a hit in its reputation by doing so.
There is no alternative to peace. As young Mindanawon lawyers, work for this tirelessly. The promise of our island can only be fulfilled if there is peace.
Eventually, if these peace processes with the Moro groups and the National Democratic Front succeed, we would have to incorporate that into the new constitution being drafted now.
On that effort, I am cautiously optimistic. I certainly believe that the Constitution needs to be changed. The 1987 Constitution was a good charter following the Marcos dictatorship experience but it has failed to meet its promises of social justice and a better democracy. Its biggest flaw is in leaving to Congress the details of the most important tasks – defining and banning political dynasties and implementing agrarian reform and other pro-poor measures.
I think that the unitary system of government is fatally flawed. I think our Presidency is designed for authoritarian rule and there is no real separation of powers and independent branches of government in our system. Lip service is paid to these principles but the reality of the division of power assures us of an all-powerful President. President Duterte is just completing a process began by President Macapagal Arroyo and accelerated by President Noynoy Aquino of consolidating all the powers of government in Malacañang.
But while open to constitutional change, I am also mindful that the first rule in governance as it is in medicine is not to do any harm.
I do respect the Consultative Committee appointed by President Duterte. Former Chief Justice Puno is a trustworthy leader, brilliant, thoughtful, a true patriot. Mindanawons are well represented in the Committee, including statesmen Nene Pimentel and Canoy and several prominent Muslims. I have high respect too for the technical expertise and integrity of the retired Justices, law deans, professors, and lawyers in that committee. I do want to say that the committee would benefit from having more women and representation from sectors like indigenous peoples, the youth, farmers, workers, and the urban poor. In any case, I will welcome the output of the committee and will watch with interest what happens next.
If the Congress, persuaded by President Duterte, adopts fully the draft proposed by the committee, assuming it is a good draft, that will be welcome. But I doubt that will happen. In my view, a constitutional convention is still the best way to change the constitution.
When a new constitution comes to the people, as lawyers (you will be under bar then, it is our obligation to help explain its provisions to our fellow citizens. I will urge you to do that with passion because the changes being suggested are substantial and require that all legal and governance hands are on deck.
LAST PART TOMORROW: Part 5: Resurrection as Final Word
(MindaViews is the opinion section of MindaNews. Antonio “Tony” La Viña of Cagayan de Oro City is former Dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, De La Salle University College of Law, San Beda Graduate School of Law, Lyceum College of Law and Pamantasan ng Lungsod ng Maynila Graduate School of Law. He was also a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008).