There is no doubt that the peace process with the Moro Islamic Liberation Front is at the crossroads. As the Talking Points prepared by the Society of Jesus Social Apostolate (SJSA) pointed out: “In the days and weeks ahead, all efforts must be exerted to rescue the peace process and to restore the momentum we had before Mamasapano. While a slight delay of the enactment of the Bangsamoro Basic Law (BBL) might be inevitable out of respect for a mourning period and to allow the truth-telling process to move forward, Mamasapano must not be used as an excuse for not moving eventually forward in passing an improved version of this crucial law.”
This delay in enacting the BBL is likely now with both the Senate and the House of Representatives suspending hearings on the bill. This is actually providential and welcome for three reasons: (1) the current atmosphere is not conducive for rational deliberations; (2) the Mamasapano investigations might actually yield some important lessons on how the BBL provisions on security can be crafted better; (3) the suspension will allow Congress and the two peace panels to revisit the draft and be hard nosed about the changes that need to be done to save it from unconstitutionality.
While predicting Supreme Court majorities is more of an art than a science, it is not difficult t predict the likely action of the Court if the current draft of the BBL is enacted and a case is filed questioning its constitutionality. Among others, the opinions of former Supreme Court Justices Vicente V. Mendoza and Florentino Feliciano, both legal and constitutional giants, that the BBL (as currently drafted) is unconstitutional will carry a lot of weight if a case is filed.
It will not be helpful to the peace process to approve a law that has a very big risk of being declared void by the Supreme Court. It is in fact irresponsible to push such a law knowing that the likelihood of that happening is quite big especially now that the political consensus has dissipated and the President’s political influence has been seriously weakened. An adverse Supreme Court decision would wreck more havoc to the peace process than even the Mamasapano events.
In improving the BBL, the highest priority is to make explicit what the Bangsamoro is and what is it not. It is not a substate, nor a federal state. It is an autonomous region that has been given the highest form of local autonomy. It is actually the Autonomous Region of Muslim Mindanao with additional powers, a ARMM plus plus, but all new powers are granted under the authority of the 1987 Constitution. Frankly, it might be good if the name of the new entity would be the Bangsamoro Autonomous Government so that all doubts about its nature would be resolved.
There is also a need to define what is meant by the “assymetrical relationship” between the Bangsamoro and the national government, which to me simply means that autonomous governments have greater powers than ordinary local governments. Related to this is the concept of exclusive powers of the Bangsamoro in the BBL. This is not a good word to use because delegated power (which is what the Bangsmoro has as an autonomous region) can never be exclusive. I would prefer to use the phrase “devolved powers” where the powers of the Bangsamoro are derived from the Congress of the Philippines.
Among the changes that must definitely be made in the draft BBL are its provisions on indigenous peoples (IP) rights. The current text is woefully inadequate and unfair to Lumads, the IPs of Mindanao. It must be replaced with a guarantee of full protection and recognition of IP rights and the unqualified application and non-diminution of the Indigenous Peoples’ Rights Act, including the latter’s provisions on free and prior informed consent. How ironic it is if the Bangsamoro is enacted to liberate the Bangsamoro people from Manila imperialism while worsening the rights situation of Lumads.
Finally, allowing barangays (of North Cotabato) and municipalities (of Lanao del Norte) to join the Bangsamoro without their current provinces voting during the plebiscite is a clear constitutional violation. That must likewise be amended.
In my view, there is still a small window to pass the BBL by June. This presupposes that progress is made in the Mamasapano investigations and some form of closure happens in the next two months. Still, as the SJSA pointed out, even if the delay is longer than expected, we should not lose patience as the peace process is much bigger and broader than the mere passage of a bill into law.
There are actually advantages of a longer time frame, including one that crosses into the next administration. Among others, if the elections for the Bangsamoro does not happen in May 2016, that could be a blessing if that would give the MILF a longer transition period to govern the autonomous government.
While unthinkable to some peace advocates, I would caution against saying that passing on the peace process to the next administration would be catastrophic and lead to war. It’s a lost opportunity, yes, but not everything will be lost if the transition is managed properly. It will require some humility to acknowledge the limits of what one can do but it can be done with good will and good faith. I know that having negotiated the transition agreement with the MILF that properly passed the baton from the GMA administration to the Aquino government. In fact, one can argue that President Aquino’s insistence to finish the whole process under his watch was actually unrealistic for a problem that by its nature require multi-administration cooperation.
If traditional and social media are good indications, the Philippines is currently in an explosive situation. In the days and weeks ahead, our leaders must rise up to to the occasion and lead us to the path of dialogue, peace and unity. And that has to start with the President who must probably have to deliver a third speech soon, one much better than the previous speeches he has so far delivered. This is the time when leadership must truly be laid down the line, where you summon the best from everyone instead of inciting the worst. For our country’s sake, I hope the President and our other leaders, including from the opposition, can rise up to the occasion.
This past week, I did see two leaders do this – Philippine National Police Officer-in-Charge Leonardo Espina and MILF chief negotiator Mohagder Iqbal. When these two men embraced last Thursday, for the first time in weeks, I was suddenly filled with hope again. Love of country and homeland, love for our people, love for each other – this is still possible in this time of imperiled peace.
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