Miscalculations Fatal to the Peace Process

by: Former Sec Jess Dureza

Atty Jess Dureza is an esteemed friend who used to be Press Secretary in 2008 under then President Gloria Macapagal Arroyo. During that period, he was also the Chairman of the Government Peace Negotiating Panel with the MILF, and concurrent Chairman of the Mindanao Economic Development Council (Medco). His vast experience and connections in the frontiers of Mindanao has made him a great source of information on the situation on the ground insofar as the Mindanao peace process is concerned.   His latest caution comes at a time the government and the MILF panels are struggling with the issues being raised in the draft Bangsamoro Basic Law (BBL) which is for submission to Congress.  

The latest word on the Comprehensive Agreement on the Bangsamoro  (CAB)  with the MILF is worrisome.  President Aquino met discreetly with KAGI MURAD  for the second time  in Hiroshima, Japan in the last few days  where the MILF head raised to the President some serious “concerns” evidently  after reading the latest  draft of the proposed Bangsamoro Basic Law (BBL) that Malacanang legal experts were working on. Then  MILF panel chair Mohaqher Icbal, obviously trying hard to suppress misgivings, admitted  that he was “not upbeat” or optimistic.  Evidently, I can only guess, but all is not well, contrary to what the President wants us to believe.

I may sound like a broken record but let me stress this again:  the negotiating parameters of the Philippine government (GPH)  and the rebels ( MILF) are NOT the same. This I personally know. In the whole course of the peace negotiations and consistent with its basic negotiating parameters, the MILF always REJECTED AND REFUSED to use — or   even just mention —  the Philippine Constitution as “reference” in ALL the agreements signed since the first agreement was signed in July, 1997 in Cagayan de Oro until the last document was signed last January, 2014 ; or in all of 12 agreements already signed. Instead, they  preferred  adherence to international protocols  like the UN Declaration of Human Rights or the UN Charter, but NOT the Philippine Constitution. They simply rejected being subjected to the provisions of the Philippine constitution. To the MILF, adherence to our basic law during the peace talks was  premature  “capitulation” and would  “canalize” their options for redress, knowing that some provisions of our Philippine constitution  could very well be the reason for those historical injustices on the Bangsamoro, which they wanted to be  redressed. They fought to get concessions from government that perhaps could be beyond the ambit of the basic law.  If you won’t believe me, go check for yourself those signed agreements. In short,   it should not come as a surprise to us why there will be constitutional issues that will necessarily arise now! This must be expected.

Hence, those presidential assurances coming from President Aquino no less that there are no constitutional issues and that all is ” well and ok” may not be the real score; although it is expected that as head of state, he must appear to be the fountainhead of optimism. But the ghost of the failed and lamented  MOA -AD is still around to haunt us. We committed a fatal mistake during our time.  We should learn from those lessons. To ignore them is not prudent. To ignore them is reckless!

PRESIDENT IN A FIX  — Just like during our time in the Arroyo administration, President Aquino is caught between the devil and the deep blue sea. While the President  wants to give concessions to finally put an end to the rebellion by addressing historic grievances, he cannot give beyond what the Constitution normally allows. He is duty bound to keep within those rigid parameters. The most he can do is to do some “brinkmanship”, but then that was what happened in the MOA-AD with President Arroyo. I think the President is looking now closely at what was signed and  now realizing that for him  to adopt it en toto will put the presidency in jeopardy. So some last minute adjustments in the BBL had to be made.

MILF ALSO IN A FIX — The question is: will those adjustments be acceptable to the MILF? I may sound presumptuous, but I bet you, the MILF will NOT  capitulate and accept substantive variations  from what was signed and agreed  just to make the agreement constitutional. (This is now derisively called “watering down”).    During my time as peace negotiator, I can tell you that  the MILF had shown flexibility and openness to re-adjust its positions from time to time as the negotiations progressed. But they had certain “non-negotiable” points which, I am sure, were  carried through in the present CAB, some of which could be “constitutionally-sensitive”.  I doubt very much if Kagi MURAD will agree to allow a re-adjustment just to suit constitutional concerns of the government if it means giving up on some of those “non-negotiables”.  But if he or the MILF leadership does so, it will  be at  their  own peril — just like the equally problematic situation our own Philippine president must now be facing. The dangers are obvious. The MILF is organizationally not that  cohesive, like  just any other rebel group where force of arms rule.     They cannot even totally control their own forces on the ground with the BIFF and other so-called rogue, break-away elements operating. Some MILF base commanders are  “autonomous” and they can call their own shots. Then there are young MILF elements who have their own more radical aspirations and are more restive. This is not to mention the presence of Islamic fundamentalists and “terrorists”  whose bottom line is to establish an  independent calyphate in this part of the world who have succeeded in embedding themselves in MILF-controlled areas.   Of course, let us not forget that the Bangsamoro is factionalized and deeply divided, in various levels and MILF cannot claim exclusivity.   I need not say more on this.

SOME OPTIONS.  — At this crucial stage, I have a few unsolicited advices to make, if I may:

A) Before submitting the draft BBL to Congress,  Malacanang must first do some constitutional “sensitivity” tests. This may not sound appropriate to others  but yes, some “friendly” Supreme Court justices can be discreetly consulted but allowing room for “deniability”. (My  guess is that this was already done. )    Let’s not forget Chief Justice Sereno voted against the MOA-AD and if the same situation is present now, it will be difficult for her to make a reverse act with CAB.  Then there is former panel Chair Marvic Leonen. I’m sure he has a mouthful of advice to give. It is not advisable to feed  the BBL to Congress if the “coast is not clear”. Remember, the CAB is a political threat to the entrenched politicians in power and many of them are just “waiting in ambush” there in Congress to chop  it down to pieces. Believe me.
B) Continue the back-channel  “negotiations” with the MILF if there are problematic provisions. This will also allow the MILF to vet new developments with its own stakeholders and for an easier “acceptance” just in case there will be some re-adjustments still  to be made. The recent  brief meeting in Japan  was more on  Kagi MURAD  expressing “concerns”. A more substantive discussion should be held, between them again or between other equally high level representatives. (This is now ongoing in Kuala Lumpur – cbh)

C) If it shall become inevitable to amend the Constitution to preserve the peace process, then it is  time for  the joint Transition Commission, which drafted the proposed BBL, to immediately buckle down to work as mandated by the CAB    “….to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching…the agreements”. This is clearly stated under Article VII, par 4b of the CAB.

D) During my time at  OPAPP, there was talk about “entrenching” the MOA-AD by “appending”  it to the constitution, just like what was done with the original US BASES agreement and getting a national plebiscite to approve it. Then the constitutional parameters are expanded to accommodate the CAB.

MISCALCULATION — One final word. We understand the determination of President Aquino to get this done during his time. He took the first unorthodox step not usually done by heads of state by meeting with KAGI MURAD at the onset of the talks. Both of them again met recently. This is already a milestone no one before him achieved and to his credit. It may be prudent for him to study his options well at this time. And this equally applies to MILF’s KAGI MURAD. We all cannot afford a misstep at this crucial time.

A MISCALCULATION will put to naught all those milestones never achieved before.