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PEACETALK: Spur of Duty or Duty to Do Justice?

COTABATO CITY (MindaNews /02 February) — The time to vacillate is over. If asked to name the most definitive policy statement of President Duterte about doing justice to the Bangsamoro, it is understandable if a layman replied: Wala po siya nasabi tunkol sa BBL (Bangsamoro Basic Law) sa amin pagtitipun.

Was it a spur of duty that the President hardly said anything at the Moro Islamic Liberation Front (MILF) consultation in the old capitol in Sultan Kudarat, Maguindanao last 27 November 2017?  But in keeping with his campaign promise of federalism, neither was there any mention of BBL except to reiterate the duty to correct historical injustices against the Moro people.

President Duterte’s pride at stake in tracing his maternal Moro bloodline is not anecdotal when delivered on national television and betrays his headstrong character ready to grapple with the Bangsamoro quest. Yet this profile in courage of a first Presidency that hails from Mindanao has voiced current popular sentiments wooing converts to the federalist cause. Meanwhile the trajectory of BBL continues to evolve into parallel and contradictory lines of constitutional and judicial attitudes, if plotted on a simple graph with space dimension and sequence as axes.

My take is that a federal shift would overcome issues raised in earlier cases including lines of reasoning of constitutional infirmity.  Only in mid-October 2017 — when EDSA Commission chairman Pastor Saycon and I accompanied heirs of the Sultan of Sulu, Sultan of Magindanaw and Rajah of Buayan to seek audience with Malacanang — was there clarity with no litany of  grievances but a chronology of episodes drifted from political economy of armed conflict in Mindanao towards communication strategy of the BBL.

Straightforwardly, towards the end of that abbreviated conversation, I approached him and clasped his hand to say: “Mr. President, you are on the right track about a federalist solution. You and I are both lawyers who well know BBL will run aground on constitutional constraints (i.e. in its present form).” As the nominal craftsman of the Framework of Agreement (FAB) who renegotiated and reformulated the MOA-AD (Memorandum of Agreement on Ancestral Domain), I spent seventeen years at the peace negotiating table, and saved this best line for posterity. The time to rehearse the argument for a system that we call “federal” has come of age.

Presidential pronouncements seem to vary with varying audiences however.  In the course of an interview by MindaNews on January 12, 2018, President Duterte specifically favored the passage of BBL “first” so that “we could have something ahead of the shift” to federalism. There’s here a milieu of priority in sequence with no moral equivalents and no scruples for the front groups. Upon returning from an official visit to India on January 27, the President’s statement suggested once more a vacillation or a mixed messaging: leaning or titillating or finding a solution difficult.

Vetting or whatever reasons skewed to turn-around-trading with Joma Sison in the 1960s-style leftist anger, Duterte still remains left of center but the break seems more with political extremism itself. To all appearances, Digong is not a violence-prone sentimental socialist having shared a street vocabulary in common with Datu Udtog Matalam, junior in their youthful sojourns (though not exactly what resembles perhaps an anti-P.C. (politically correct) lexicon among his brightest classmates). By the same temperament, the war on Marawi extremist caliphate-state-orthodoxy might sound ideological radicalism to a number of Muslim intellectuals but still is more like what was not yet called “political Islam” or in style “political correctness” to regular viewers of the cable channels.

Just how difficult is reflected in various draft versions of the BBL currently on first reading in the House of Representatives could be seen in structuring the enabling act. The inquire.net (January 30, 2018) tipped on Twit: 50% na lang BBL matira at BLBAR (Basic Law on the Bangsamoro Autonmous Region) version ni GMA (Gloria Macapagal-Arroyo) ang constitutional according to this article. Can the MILF central committee or its leadership live with that even if, admittedly, all this is a little moot?

Lanao Norte Rep. Khalid Dimaporo, a member of the House Subcommittee on the BBL said the unconstitutional provisions of the Bangsamoro Transition Commission (BTC) version of BBL were identified at subcommittee level. At the other end of the political spectrum, the report added, “constitutionally-acceptable language is embedded in the bill of Rep. Gloria Macapagal Arroyo and in the 16th Congress version of BBL. Accordingly, in their mindset, those elected representatives retained fifty percent of the BTC version, and thus see “no conflict in the ongoing BBL legislative process and the cha-cha efforts.”

The story line of the past week requires Senator Miguel Zubiri to come up with a completed committee report by mid-March 2018. You might suppose Zubiri visited camp Darapanan with Senators Hontiveros, Ejercito and Angara on January 25, 2018 to offer a new legislation with pivotal changes in terminologies. Never mind principled beliefs: “the status quo is unacceptable?”

Consider the fact that the Senate is a “majoritarian” body of 24 lawmakers just like the Supreme Court is a “majoritarian” body of 15 judges. In any case, a majoritarian institution can become also a powerful form of the minority veto. This is not an academic talking point for it looms large an issue in the ongoing Cha-Cha debate. So what I’m saying is the terminal point is not on sight.

Supermajorities are required for passing constitutional amendments. The absence of a single Moro in the Senate is a major democracy deficit for good governance system and calls for Charter Change in territorial Senate representation and geographically based electoral districts. Insofar as the score counts: MOA-AD gave way to a divided court decision and BBL yielded to presidential weakness and congressional hysteria.

The current stance of MILF leadership is anything but procrastination: an offshoot of the “decision day after” in practice. Semiotics and semantics clause can never assure effectual governance suitable to a Muslim way of life without constitutional transformation. This issue is even more fundamental because it expounds as well as defines basically ‘the totality of ties” that confers status of asymmetrical relationships between the national government and the autonomous government.

And what a big mistake: BTC is one of two-steps forward strategic phase of the negotiation. The other step is the BTA (Bangsamoro Transition Authority) — a transition authority after altering the governmental structure for shared political power.  Social reality and politics limit presently the scope of the draft BBL, and that is why the Executive Order has tasked BTC to propose constitutional amendments.  But the texture of BTC chairman Iqbal’s – and later Jaafar’s – flight away from constitutional accommodation missed what probably should have been a brilliant collaborative process to fix a Basic Law proposal to fit as amendment draft to Article X of the 1987 Constitution. Then the debate would have shifted to ratification.

Thus, if we cut deeper into the Constitution, the rubric of oath of office for the Presidency is pointedly “to do justice.” This puts us on notice that as legally conceived the executive mandate is modal; it is transitive and therefore requires an object. Modals ask the question for whom? The framers of the 1987 Constitution erred in the structure of the autonomous regions that is a tortured construct. That is why the framers were hard put to defend BBL during the past congressional hearings. An all-Moro convention can provide options and, if not feasible, we can opt for initiative and referendum by offering an alternative draft Bangsamoro devolution act.

Contentious crises require metaphors that can lead to orientation toward a ratification debate. Justice is a noun hence to make it a verb is a grammatical metaphor. A metaphor means “to transfer” which helps to visualize something so we can make sense of things. This opens up discursive space for transitional justice.  Because the shortcomings of the system of legislative representation are almost universal in the American model then the remedy can be demonstrably found only in a federal jurisdiction.

(MindaViews is the opinion section of MindaNews. Datu Michael O. Mastura was a member of the 1971 Constitutional Convention and Representative of the 1st district of Maguindanao from 1987 to 1995. He was also a senior member of the MILF peace panel that negotiated the Framework Agreement on the Bangsamoro in 2012. He is President of the Sultan Kudarat Islamic Academy)

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