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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 defender 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 defender” of the Cory Constitution! I can almost hear my father looking down upon these proceedings, scratching his head and asking, “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 other communities in other parts of our 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.

The Supreme Court’s shield and sword

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 and 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 their Supreme 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 the Bangsamoro (CAB) and the Framework Agreement on the 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 thought to myself, “What a telegenic group of lawyers!” After reading the petition you filed, I told myself, “They’re not only telegenic, they’re 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 issue.

Because I hear 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 opens its last regular session on July 27.

In writing the report and crafting the legislation, we are being painstaking and as comprehensive as possible, anxious not to 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.

Doing the right thing

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 and 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 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 abdicate. For the lawgiver must always answer when a particular law or policy fails, or worse, cause harm.

Ours is a system not only of separated powers; it is also a system of enumerated powers, meaning that the powers of each branch are 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.

Some key findings at hearings

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. 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 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. This is a grievous oversight by the government negotiating panel as the peace process cannot succeed without an understanding of the process 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 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.

2. Treating 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 Maguindanao group.
These 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 one another because of different concerns 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 be subjected to the imperial rule of the MILF.

3. Unconscionable promises to 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.

4. Parliamentary political structure – 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.

5. 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 BBL.
This is a fantasy that will 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.

6. MILF cannot deliver peace in Mindanao. This is a point that was repeated over and over by Muslim groups and Mindanaons. The Mamasapano massacre appeared to prove to many that the MILF cannot discipline its own ranks or stop violence in its own backyard. It provided a safe haven to dangerous terrorists who were enemies of the republic. It should be feared that the MILF may now seek backing from the jihadists in the Middle East as other armed groups in Mindanao have done.

7. Upgrading and strengthening ARMM may be the better way forward for peace and development in Muslim Mindanao. This was startling for us to discover but most Muslim groups are opposed to the BBL and the MILF. An honest to goodness survey of the areas proposed for inclusion in the Bangsamoro entity will show that a good majority is opposed to such inclusion.

Modernization is the way forward
The more I study the issues and recent developments in Mindanao, the more I am convinced that it’s not enough to just restrain the passage of the proposed BBL as originally drafted by the Palace and the MILF. Defeating it may be easy.
Coming up with something that will work is clearly the better strategy.

From our studies of the problems in Muslim Mindanao and the whole of Mindanao, I am convinced that the best approach is a full–scale modernization program for all of Mindanao – politically, economically, socially and culturally.

We cannot just keep on talking of one small slice of what was once called “our land of promise.” We must now deal with the whole – all of Mindanao and Sulu, and all the people there. Our planning, our actions, our strategies, and our labors must measure up to that challenge.

With the kind of money and numbers that this administration is prepared to commit to its BBL experiment, we can design the equivalent of an accelerated development plan for Mindanao. If we combine internal funds with financial assistance from international institutions and foreign countries, we can mobilize funds on a scale that will not fall short of effecting the full transformation of Mindanao into a hive of modernization and productivity for the nation.

If we get the private sector – domestic and foreign investors — fully involved, there’s no telling what we can accomplish. As we unleash the full potential of Mindanao for development, the investments and resources will follow.

This of course needs full study and planning. This must involve planners and managers in Manila, and planners and managers in Mindanao. But even this early, I can already envision what may be possible and what the essential elements of a Mindanao modernization program will consist of:

A full-scale pacification and law enforcement program to bring to a halt the various insurgencies and rebellions in Mindanao. The integration of willing rebel troops into the armed forces and the PNP should be undertaken. We already have some experience of this under 1996 Djakarta peace agreement between the Ramos government and the MNLF.

The costs of pacification and integration will certainly be worth it, because peace will produce economic dividends throughout the south.

2. Modernization of Mindanao infrastructure. Once and for all, Mindanao’s perennial power problem must be resolved with a stable, adequate and affordable power supply. Roads should be built and modernized to connect all parts of the island into one economy.

3. A feasibility study for a railway system in Mindanao should be undertaken.

4. The Modernization of the Civil Service should be launched.
The adoption of meritocracy and the moderation of patronage politics should pave the way for an effective bureaucracy to support the modernization effort.

5. Provision of modern public services by the government and the private sector. With the right policies, both government and 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.

A Marshall Plan for Mindanao

It was the historic Marshall Plan in post-war Europe that got me thinking of modernization as possibly the best strategy for Mindanao 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 Organization for European Economic Cooperation (OEEC) on 16 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.” The mandate of the OEEC was to continue work on a joint recovery program 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.

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 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 from the fighters. Then let us allow the builders to come and put up the structures and systems of the new and modern Mindanao, where Muslim, Christian and lumad 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. 

Source: The Manila Times