If in the study of history and politics the context is all-important, then, specificity in this context does mean to discharge as futile the facilitation of Malaysia. Rather, it is to point out that the participation of a third party IMT to bring about an end to armed conflicts in Mindanao is not just a unilateral decision. Yet what may seem more ironic is that the lack of creative options on the part of cabinet secretaries and presidential advisers on peace process obscures this fact to a point of rendering their interaction eventless. I seem to be saying my criticism arises from our assumption that discrimination leads to unidirectional "but for" analysis. There is more sense to this aphorism: 'Questions of policy give place to questions of power; questions of wisdom to questions of legality.'
Misdirection in public policy betrays a premature convergence in Government-MILF peace talks, and the polarizing divergence in peace negotiations between Government-MNLF and Government-NDF results in uncertainties and deficit alternatives. Julkipli Wadi, a professor at the University of the Philippines, has recently coined a metaphor to depict the Mindanao peace process "on a carriage with two horses." That is why I relished the chance to comment on Government chief negotiator Rodolfo Garcia supposedly "doing due diligence" to the draft MOA on ancestral domain to withstand the test of "public scrutiny". Presidential adviser Jesus Dureza bolstered this position by arguing the agreement must stand the "test of constitutional scrutiny." Why not test political will instead?
Ordinary people are hardly heard arguing the dark meaning of crisis in constitutionality being a remote possibility. This type of discourse requires understandings at the abstract level. Imagine, for a moment, once the politics of law controversy starts to cut deep, only then is 'constitutional legitimacy of a given course of action' likely to be challenged. One may indeed say that constitutional issues are theoretical questions. What doctrinal legacies do in "real terms" is to elevate the constitution "above" the play of politics.
How remote might positional bargaining become a contest of wills instead of deep logic? To proffer a new modality "MILF stands firmly," says chief negotiator Mohagher Iqbal, arguing that no negotiation of outstanding issues ought to be discussed in terms of abstraction. That said we cannot enter now into the details of a constitutional fix (and liberal legal order). Here comes an intense tactical game. But if Government negotiators attempt to introduce parameters of constitutionalism, the 'ought to be' propositions will be so reductive. Most members of MILF peace panel and technical working groups mistrust this "drifting direction" from the negotiating table to the constitutional arena. Also most members of the Darul Ifta remind us when ulama hear about 'legal loopholes' they suspect the manipulability attendant to 'liberal legality' in this country.
To produce an event, one can expect more Government spins toward what in the parlance of conflict management amounts to outcome-oriented 'small wins'. Less abstractly, various factors already emerge afforded by the downsizing of Malaysian contingent in IMT and the maximizing of Libyan IMT slot, which played significant roles in two episodes with which this commentary deals.
A theory doing the rounds this week had it that the more events (or 'ploys to mess' around) the broader the context in which MILF and IMT could interact with Government. Thus un-leasing a unique configuration of events tenuous enough to reach the boiling point of renewed hostilities has threatened the very procedural steps and legitimacy itself of the peace process that Government helped to establish. So GRP negotiators just want to change the 'game of the name' to pave the way for Libya to replace Malaysia as a third party facilitator.
On the other hand, a cogent illustration of external pressures is the GRP, MNLF, and OIC tripartite agenda, and the parallel process they employ to initiate a new pattern of interrelationships. The convening of MNLF congress to elect a new chairman, Muslimin Sema, after the release of its incarcerated founding leader Nur Misuari has intensified the interpersonal interactions. By a gloss of internal contradictions (unlike those associated with process legitimacy), Government has kept 'changing the game' to redirect the parties toward a major shift from positions to interests.
Why does Government prefer to disrupt the procedural steps of the peace talks while redirecting the MILF side's position to be locked into the constitutional mandate? Government negotiators now admit they hired external constitutional experts to weigh in their opinions. But the nature of the peace process can be skewed to justify the delays rather than to reframe GRP position toward reciprocal interests. My son Ishak Mastura and his colleague in Moro law studies Zainudin Malang warn that "dysfunctional debate" is but a microcosm of Manila's political class penchant to apply "a deferred solution to every national crisis". If so, constituents may perceive self-serving motives, and believe in manipulative attempts to preordain the peace process outcome.
My take in this runs: for all the anecdotal ploys the incremental 'small wins' remain incomplete. The two episodic projects above are far from points of convergence in a singular direction toward Bangsamoro people asymmetrical arrangements. But it is not at all inconceivable to entrench a distinct juridical entity with constitutional status. The story can be told and retold as a republican regime trapped in an alibi that does not seem to work except in circle. It might as well be a 'state hypocrisy' (terminology academics employ). But the continuous hype or drama tumbles into mental traps legal scholars call the "constitutional conundrum". To be sure, conundrum is a question or problem having only a conjectural answer in the lawyer's mystified context of liberal legality.
What is going on? "The parties are engaged in finger pointing", notes Patricio Diaz, a long-time commentator based in Mindanao. I dare say when nonstate actors behave to talk 'naming and shaming' government in reality they impinge upon IR (shorthand for international relations). Others argue that all the same this is starting to create a devil's advocacy that was deployed in the escalation of the "all-war" in 2000. Obviously retorts Al Haj Murad, chairman of MILF, "it is only just sinking to government leaders by what measures could questions of right/ legal system be made applicable to both sides?" The constitution or international law or divine intervention, as they ponder questions left unanswered?
Our own people come to believe there is an alternative "right way" to do certain things in the context of constitutional revolution. In their societal and fundamental attitudes regarding history, law, religion and the role of the state, the Bangsamoro people humbly take "constitutional process" as the "undigested" phrase in the 1976 Tripoli Agreement. As it turns out, the same negotiators reinvented it as key words to the "totality clause" in the 1996 Jakarta Accord. Even then Musib Buat recalls the late founding leader of MILF Salamat Hashim admonishing: "A true Muslim-Moro does get bitten by a snake twice in the same pit." True leaders of the Moro revolutionary cause, in my conviction, strive to measure how their own positions shape and affect perceptions of legitimacy just as they must monitor too whether government's actions is legitimate.
Surely there is nothing trite or trivial in this context. Thus procedural legitimacy obliges both GRP and MILF peace negotiating panels not only to adhere to the principle of non-derogation of agreed terms/ agreed texts but more importantly to sustain closure. Precisely the third party facilitator has pared the strands agenda on ancestral domain. Dato' Othman bin Abdul Razak describes this winnowing process as gradually "taking things of the table". In short, "what you don't want" is to review all the decision points over and over. This process-based mode involves serious efforts to making progress in a complex issue and moving beyond the current impasse.
[MindaViews is the opinion section of MindaNews. Historian Michael O. Mastura, formerly congressman of Maguindanao, is a senior member of the MILF peace panel.]
