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Towards the full modernization of Mindanao: Speech to the members of PHILCONSA

30 June 2015

To the former Chief Justice, Chief Justice Reynato Puno; the President emeritus of this organization – PHILCONSA; the Chairman of PHILCONSA, Justice Manuel Lazaro; the PHILCONSA President, Congressman Martin Romualdez, this is a very familiar name. And out of fearer of missing out on mentioning or acknowledging whose friends who are closest to my heart and following the custom that we began today in that being recognized as the distinguished guests, ladies and gentlemen, good evening.

It is both an honor and a privilege to address this assembly of the Philippine Constitution Association, at this particular time when great questions of law and policy engage the nation and when many of our people are embroiled in a debate on the proposed Bangsamoro Basic Law (BBL) for Muslim Mindanao.

Also, when Justice Lazaro told me that I would be receiving an award for being “the great protector of the Constitution” I found this quite ironic. First; that a non-lawyer would be accorded such a singular and, I must admit, flattering honor. Second, the greater irony is that it is Ferdinand Marcos Jr. that has become the “great protector” of the Cory Constitution! I can almost hear my father looking down upon these proceedings, scratching his head and saying, “How did that happen?”

I come here from the frontlines of this national debate, which has taken me to many parts of our country, from North to South, as chair of the Senate committee on local government, which has conducted hearings and consultations with our people and stakeholders firsthand – often in the key capitals and towns of our Muslim communities.

The consultations have included our indigenous and Christian communities in Mindanao, as well as all communities in other parts of the country, mindful that their thoughts and feelings on this policy issue are vital to achieving the peace and stability we all desire.

We have even consulted with foreign business groups who have a keen interest in what happens in the South, like the European Chamber of Commerce and the IOC and its members, whose participation and assistance in economic recovery and expansion will help in the successful implementation of our future policy and plans in the South.

My address today will be a report on our consultations, on the progress of our work, on the discussions held, the impressions I’ve had, the conclusions, the insights, and the counsel we have received — all of which, when taken together, will help complete the final version of the substitute bill which I plan to submit to Congress upon the opening of our third and final regular session on July 27.

It is fitting that this visit with Philconsa should be an important part of this consultation effort, because your Association, throughout its 53-year history, has been steadfast and unwavering in preserving, protecting and defending the Constitution of our Republic.

Central to that mission also is the protection and defense of our governmental trinity – the separation and balance of powers of the three branches of our government – the legislative, the executive and the judicial.

It has been suggested that the exquisite, if precarious balance of power that has kept our ship of state afloat and moving forward rests critically on our independent Supreme Court.

When the President or Congress attempts to weaken that independence by forcing the Judiciary to do the political work of the other two branches, they threaten that balance.

When the intrusion becomes obvious and substantial, even obsessive, it constitutes a clear danger to the nation, because it can dilute the people’s confidence in the highest court.  I learned at the feet of a parent who knew the law, that “the people’s confidence is both the court’s shield and its sword.”

That confidence is clearly reflected in Philconsa’s recent decision to question before the Supreme Court the constitutionality of the Comprehensive Agreement on Bangsamoro (CAB) and the Framework Agreement of Bangsamoro (FAB) that the government hurriedly and somewhat rashly signed with the Moro Islamic Liberation Front (MILF).

When I saw some of your number on TV – holding the petition you filed in the Supreme Court, I had to admit the first thought that came into my head was “What a telegenic group of lawyers!” After reading the petition that you filed, I told myself, “Not only are they telegenic, they are right!”

Your initiative, joined by others, is an inestimable service to the nation, because on these agreements rests the administration’s ambitious enterprise of creating a new Bangsamoro political entity or sub-state. With a favorable resolution from the high court, I see the possibility of our society vaulting over the divisions over this very contentious issue.

Because I’ve been hearing it often used these days, I decided to look up the term “sub-state” in the leading English dictionaries and encyclopedias. I was surprised to discover that the word does not exist.

Each stop in our committee’s consultation effort has been important and significant. Each will have a place in the report that our committee will submit to the Senate plenary. And each will be reflected in the substitute bill that I will submit to Congress and the nation when Congress returns.

In writing the report and crafting the legislation, we have been painstaking and as comprehensive as possible, anxious and should not fall into the kind of errors that marred earlier efforts to write an enabling law for autonomy, peace and development for southern Philippines.

I will not attempt here a summation of our committee report or a preview of my substitute bill, because my time here is short, and we all have work awaiting us.

What I will do instead is highlight some of the key themes that will be reflected in the report and the draft legislation.

As I have endeavored to explain, the object of all our hearings and consultations is to produce the right law and policy for effecting the full cessation of conflict in Mindanao, for ensuring a stable peace, for accelerating the recovery and expansion of Mindanao’s economy, and for planning the long-term development of the South.

As a concept of political science, public policy is a government plan of action to solve a problem that people share collectively but cannot solve on their own. That is not to say that the subject problem is always solved; sometimes the plan can create more difficulties or sometimes even worsen those problems.

It’s useful to remember the distinction between domestic and foreign policy. When the problem occurs within the country, the government response is domestic policy. When the problem concerns our relations with other nations, it is foreign policy.

Public policies are usually created by members of Congress in the form of new laws.

The role of Congress in creating and legitimizing policy through its lawmaking is critically important and takes precedence over that of other players.

The President may also create policy, by putting an issue on the public agenda, by including it in his budget proposal, by vetoing a law made by Congress, or by issuing an Executive Order that establishes a new policy or augments an existing one.  Executive Orders sometimes can direct profound changes in policy.

Finally, the courts are policymakers as well.  When the courts rule on what the government should do or not do, they are clearly taking an active policymaking role.

The fact that all three branches participate in the making of public policy should not confuse us on the primordial responsibility of Congress of lawmaking. It is a responsibility that we legislators must never and can never abdicate. For the lawyer must always answer when a particular law or policy fails, or worse, even causes harm.

Ours is a system not only of separated powers; it is also a system of enumerated powers, limited to those explicitly granted by the constitution.

The point is clearly important because once we examine the problems that have bedeviled the President’s policies and actions on Mindanao, we find what some critics have called the arrogation of powers by the President.

It’s been suggested by some political scientists and scholars that the memorandum of Agreement on Ancestral Domain (MOA-AD) undertaken by the Macapagal-Arroyo government was a case of thinking “out of the box” in order to establish an alternative process for lasting peace in the South.

By this measure, the CAB and the BBL are not only out of the box thinking; they are in the vacuum of outer space. This is the reason why controversy hounds the Bangsamoro experiment everywhere it turns, and why it finds scant support and little traction in Congress and in public opinion across the nation.

From our consultations and hearings, which listened not only to stakeholders, but also to key agencies of government and the private sector, I can outline some of our key findings, conclusions and insights, which consequently will be reflected in our committee report and substitute bill.

  1. The government peace panel did not consult with all stakeholders, only with the MILF. The first of these findings is that in the peace negotiations leading to the FAB and the CAB, the presidential peace adviser and the government peace panel did not consult with all the stakeholders in Mindanao, whose well-being and welfare will be greatly affected by the changes contemplated by the BBL.     It stunned entire communities – Muslim as well as lumad and as well as Christian – to find that in the peace negotiations they were regarded as non-existent and non-entities. A particularly egregious example was that the heirs of the Sultanate of Sulu were completely excluded from any of the discussions. This is a grievous oversight by the government negotiating panel as the peace process cannot succeed without an understanding of the processes by, and the support of, stakeholders such as the Sultanates, the different tribes, LGU’s, the business community, the MNLF, Christian groups and IP’s to name a few.

Furthermore, it came as a great surprise to them that the MILF, whom they neither authorized nor recognized as their representatives in the negotiations, were speaking and making decisions on their behalf in that process. It was only upon consultation with those stakeholders that their particular issues and concerns were brought to light. The second finding that we were rather surprised about was:

  1. The treatment of 13 Filipino-Muslim groups as one homogeneous community. It is also a big puzzle why and how 13 Filipino-Muslim groups – were summarily lumped together as one community, to be represented and led by one group, the MILF and the Maguindanao group.

These thirteen (13) ethno-linguistic groups are: Iranum, Magindanaon, Maranao, Tao-sug, Samal, Yakan, Jama Mapun, Ka’agan, Kalibugan, Sangil, Molbog, Palawani and Badjao.

Treating them as one homogeneous community is a misrepresentation of their respective identities and cultures. It also glosses over the fact that historically Muslim groups have oftentimes been in conflict with each other because of differences and priorities.

Introducing the term “Bangsamoro” is a clever attempt to unify them for separatism; but it is plainly a falsification of reality. For our government to take part in this misrepresentation is a fundamental mistake that has since come to plague the draft BBL.

On learning that they must submit to the leadership and control of the MILF, one Muslim tribal leader remarked, that under the guise of being liberated from imperial Manila, they would instead now be subjected to the imperial rule of the MILF. The other finding that was rather disturbing were the:

  1. Unconscionable promises made to the MILF– the proposed BBL is unbelievable for the sheer extravagance of the concessions government makes to the MILF.  It confers on the Bangsamoro entity its own security force, Commission on Audit, Commission on Elections, Civil Service, fiscal and monetary policymakers and trial courts. It also allows in many instances the Bangsamoro Parliament to amend and even repudiate laws passed by Congress. As drafted by the MILF and seconded by our peace negotiators, these powers that are normally reserved for the national government would give the Bangsamoro the features of a state.
  2. The political structure of the Bangsamoro entity – the political structure of the Bangsamoro entity is parliamentary in form. It is described as asymmetric with that of the national government. However, its ministerial features are symmetrical to those of the states of the Malaysian Federation.

This betrays a level of carelessness and superficiality that threatens the Bangsamoro project with rejection.

  1. Portraying ARRM as a failed experiment—to sell the Bangsamoro entity, the constitutional Autonomous Region of Muslim Mindanao (ARMM) is aggressively portrayed as a “failed experiment” by no less than the President and the peace negotiators on both sides. They mean to displace it with the Bangsamoro entity.

This is a fantasy that simply does not fly.

I cannot agree with this assertion that the ARMM is a failed experiment. Rather it is my view that it is an ongoing experiment that may have flaws and weaknesses but it is precisely our function to strengthen and correct those as we learn from experience. The ARRM has been in existence for two decades. It has a bureaucracy of 26,000 civil servants. It has had a democratically elected government for almost as long.

I can only surmise that this reasoning is used to give the MILF supremacy over the MNLF in the final result that is the Bangsamoro government. We must remember that the ARMM is the product of peace agreements between the MNLF and the government, while Bangsamoro is the result of agreements between the MILF and the government.

  1. MILF cannot deliver peace in Mindanao. This is a point that was repeated over and over and not by the Christian groups in Mindanao but most assertively by the Muslim groups in Mindanao. Its threatening arm may be a better way forward for it will fade away for an effective bureaucracy to support this modernization effort. Proven the private sector can provide better public service such as better public transport, social service, in peace and order, education, healthcare. Proven the private sector can provide better public services, such as better public transport, and adequate social services in peace and order, education and health care.

It was the historic Marshall Plan in post-war Europe that got me thinking of modernization as possibly the best strategy in the aftermath of secessionist conflict.

The Marshall Plan laid the seeds for Europe‘s rapid recovery from war and devastation in 1948. It was proposed by George Catlett Marshall, who was at the time secretary of state under President Truman.

His plan led to the creation of the Organisation for European Economic Co-operation (OEEC) in April 1948, organized in order to meet Marshall’s request for “some agreement among the countries of Europe as to the requirements of the situation and the part those countries themselves will take”. Again, we see the parallel in the applicability of this kind of thinking. The mandate of the OEEC was to continue work on a joint recovery programme and in particular to supervise the distribution of aid. In 1961, the OEEC evolved to become the OECD.

General Marshall was awarded the Nobel Peace Prize in 1953 for his role as architect and advocate of the Marshall Plan. This is the idea that perhaps the President should keep in mind if the Nobel Peace Prize is his intended goal as has been speculated by many.

What fired this highly successful and potent recovery and development program?

Plainly, it was the power of the vision, the urgency of the challenge, the clarity of the ideas, and the generosity of spirit that would make it happen.

I believe we need a similar approach to the challenge of raising Mindanao’s economy and its people and redeeming once and for all its mighty promise.

Mindanao’s modernization is the vision that I will introduce in either my substitute bill for the BBL or an amendment of the organic act for ARMM, which I will submit to Congress. I will request the support of both Houses of Congress to join me in sponsoring this program of transformation for not only our Muslim brothers and sisters but for the entire Mindanao and for that matter, the entire Republic.

With the same spirit that enabled our people to transform Subic Bay and Clark air Base into havens of rapid modernization and development, we can effect a similar and even more profound transformation in Mindanao.

Just as Congress, the Executive and the citizenry joined together in the swift passage of the Bases Conversion and Development Act in 1992, so let me urge Congress, the Executive and the people to pool their efforts once again in securing the passage of a Modernization and Development Act for Mindanao.

Let that day come to pass. Let the proposed decommissioning of weapons point in this direction of constructive building.

Let us allow the peacemakers to take over now from the fighters.  Then let us allow the builders to come and put up the structures, systems of the new and modern Mindanao, where Muslim, Christian and lumads can all prosper.

I pray that some of these ideas will find support within your association and this assembly of acolytes of the law. For it is only when a vision finds life in law that they truly come alive.

Thank you again for the privilege of this forum.

Mabuhay ang Philconsa.

Mabuhay ang Republika ng Pilipinas.