Good! Enough? In All Honesty …

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I: Signal to Start

GENERAL SANTOS CITY, February 21, 2017 – President Rodrigo R. Duterte finally ordered the much-awaited release of the names of the 21 members of the New BTC (Bangsamoro Transition Commission) last February 9 – three months and two days after he issued on November 7, 2016 of Executive Order No. 08, s. 2016 that reconstituted the BTC under the Aquino III administration. (MindaNews and OPAPP Website, 2/10/17)

The GPH and MILF implementing panels will launch the New BTC in Davao City in “the last weekend of February” – giving the body four months and three weeks to re-draft the BBL (Bangsamoro Basic Law) into the BEL (Bangsamoro Enabling Law). Set for submission to the 17th Congress in July 2017, the President must have the draft when he delivers his second State of the Nation Address on July 24.

MindaNews and OPAPP quoted Presidential Adviser on the Peace Process Jesus Dureza stating that the release of the appointment papers “will signal the start of the work to come up with an inclusive Bangsamoro law that will truly reflect and address the clamor for a genuine political autonomy for the Bangsamoro people in Mindanao.”

The “clamor” refers to the political settlement embodied in the FAB (Framework Agreement on Bangsamoro) and its four Annexes that were consolidated into the CAB (Comprehensive Agreement on Bangsamoro) together with other key agreements signed during the 17-year negotiation (1997-2014) of the Government and the Moro Islamic Liberation Front. BBL or BEL has to be CAB-compliant.

The “work to come up with an inclusive Bangsamoro law” refers to “convergence”, a process of consolidating with the CAB the GRP-MNLF 1996 Final Peace Agreement, R.A. No.9054 and the Indigenous People’s Rights Act of 1995 as mandated in Duterte’s Bangsamoro Peace and Development Roadmap (BPDR). 

Can the New BTC accomplish its task in four months and three weeks starting March including time for organizing? 

Plus Factors

There are favorable circumstances that can be of much help to the New BTC.

Capable New BTC members: The New BTC members must have been chosen for their capability, professionalism and dedication. Six of the eleven MILF members are carry-overs from the first BTC. The five others and all the ten Government appointees are new but they are most dedicated to the Moro and the Minority Cause and they know well the Problem and its roots. All the Moro members must have been active pariticipants in the Moro liberation movement since the 1960’s. 

To offset the time-constraint, MILF Panel Chair Mohagher Iqbal, still BTC member but no longer its chair, told MindaNews (MN 2/10/17: GPH, MILF peace panels set date for BTC launch but who will take oath?) that the New BTC can have “twice monthly sessions with the rest of the month spent on consultations and committee meetings”; or “they can meet every day if necessary”. 

Existing working drafts: It took more than a year for the first BTC to finish Draft BBL. However, it was under an odd situation. Only one Annex was finished when it started drafting. The other three Annexes came in slow sequence and it had to wait for the signing of the CAB to wrap up its work.

This New BTC is not starting from scratch, Iqbal said “there are existing drafts that can be made as the working draft to hasten the process of the final drafting” that, being already CAB-compliant, will be in line with the desire of MILF chair Al Haj Murad Ebrahim. (MN 2/10/17: GPH, MILF …)

As we see it, the New BTC’s work can be clear-cut if not simple:

First, restore Draft BBL as closely as possible to the original copy -- that which has the imprimatur of President Aquino III and Chairman Murad -- by reconciling the 40 percent or so deletion, revision and substitution done by the House and the Senate of the 16th Congress with the provisions the MILF study group had petitioned the two Houses to be restored. The Supreme Court’s November 20, 2016 decision of the petitions against the CAB and the FAB will be most helpful.

Second, examine what provisions of the 1996 FPA, R.A. No. 9054 and IPRA had already been converged with the CAB in Draft BBL. Determine what more are to be converged. 

Third, add new provisions derived from public consultations and committee meetings.

Draft BBL had been vetted -- it can be safely said -- thoroughly for its constitutionality, legality and CAB-compliance for four months by the Office of the President and the GPH-MILF negotiating panels with the assistance of the Secretary of Justice, the Solicitor General and Chief Presidential Legal Counsel (the last two now members of the Supreme Court). It can be assured that with its six lawyer-members, the New BTC can easily safeguard the constitutionality, legality and CAB-compliance in the ensuing BEL.

On these grounds, Secretary Dureza is right in foreseeing that the New BTC will “come up with an inclusive Bangsamoro law that will truly reflect and address the clamor for a genuine political autonomy for the Bangsamoro people in Mindanao”.

Yet, right can go wrong. If the New BTC is the only body that will write the Bangsamoro basic law and the BEL that it will craft is the only bill to be submitted to the Congress, all will be well as assured by Secretary Dureza. But this is not so. The Duterte master plan laid out in the BPDR has evidently been modified.

II: Worrisome Consequences

Contrary to the original plan, not all MNLF factions are represented in the New BTC. In its “Recasting the Bangsamoro Transition Commission”, the BPDR provides: “To be composed of representatives from MILF, MNLF, ARMM, Indigenous Peoples, Sultanates, LGUs and other sectors.” Only the MNLF-Sema group or MNLF Council of the 15 is represented in the New BTC – three of the ten Government appointees. It is not clear if any of the other seven represents the Sultanates.

The MNLF Alonto and Habib Hashim (MNLF Command Council) groups are not represented. Founding Chairman Nur Misuari refused to join the MILF-led New BTC; granted by President Duterte, his group will have a separate talk with the Government. This will have worrisome consequences.

Bangsamoro unity will continue to be elusive. Abul Khyer Alonto, acknowledged chair of the MNLF-Alonto group who had been more open than Muslimen Sema in declaring support for the BBL will feel alienated. As the Hashim and other splinter groups still recognize Misuari as the ultimate MNLF leader, Misuari’s refusal to join the New BTC will radically alter the course and fate of the nearly-realized quest for the Bangsamoro – in the 1976 Tripoli Agreement, “Autonomy for the Muslims in Southern Philippines”.

The GPH-MNLF Peace Talks

How will the separate peace talk between the Duterte Government and the Misuari MNLF complicate the fulfillment of the Bangsamoro and put in question Secretary Dureza’s assurance that the New BTC will come up with a Bangsamoro basic law “for a genuine political autonomy for the Bangsamoro people in Mindanao”?

Media reports, citing or quoting statements that can be considered “official”, reveal some relevant situations: 

First: The government and MNLF panels led by Nabil Tan and Randolph Parcasio, respectively, have not yet held a formal meeting (MindaNews, 2/10/17: GPH, MILF…; The Philippine Star 2/13/17: Government, MNLF to resume talks ). Only during such meetings will the panels be able to (1) set their timeframe, (2) determine the mode of negotiation, (3) agree on the talking points, and (4) formulate the negotiation guidelines and protocols -- in sum, the negotiation agenda.

Second: The MNLF wants to negotiate for the full implementation of the 1996 FPA. This suggests the resumption of the 2007-2016 MNLF-GRP-OIC Tripartite Review called and facilitated by the Organization of the Islamic Cooperation (formerly, Conference) of the 1996 FPA. 

 Third: The MNLF demands will be confined to (1) governance, (2) wealth sharing, and (3) territory -- the three issues still unresolved when the Review closed in January 2016. Obviously, the three when resolved will be incorporated with the Review’s 42 consensus points in a draft bill to strengthen the Autonomous Region in Muslim Mindanao.  

Relevant Questions

Of the “First”: When will the negotiation agenda be ready? Ca`n the MNLF-Misuari draft bill be submitted to the Congress together with that of the New BTC?   

The Congress will be ultimately tasked to consolidate the New BTC and MNLF-Misuari draft bills. Will the legislation on Bangsamoro not be suspended should the two draft bills not be submitted together? 

The timeline is for the Bangsamoro basic law to be enacted during the Second Session of the 17th Congress, establish the Bangsamoro Transition Government in July 2018 and have the regular officials of the Bangsamoro elected in the May 2019 election. Will the suspension of or delay in the legislation not upset this timeline at the risk of putting off AGAIN the establishment of the Bangsamoro?    

On the “Second": Separate from the New BTC, the negotiation will be outside of the mandates of EO 08 and the BPDR. Will it adopt the “Review” mode and procedure? Will the OIC be involved? Will the Tan- and Parcasio-led implementing panels negotiate and draft the proposed amendments to RA No. 9054?   

Of the “Third”: The issues on governance and territory eluded resolution until the end of the seven-year Review. The same issues threatened to scuttle the 1996 FPA; however, President Fidel V. Ramos’ “win-win” solution broke the impasse – a solution that turned unsatisfactory, hence, reviving the issues. Will the issues be put to rest by Duterte? Tan and Parcasio both participated in the Review. Will their experience make the difference?   

The MNLF-Misuari draft bill will amend R.A. No. 9054 to strengthen and retain the ARMM; that of the New BTC will abolish it. How can the Congress reconcile the two drafts – one for abolition, changing the presidential-unitary type of government of the autonomy to the ministerial-parliament-asymmetrical; the other, the exact opposite?  Will this not give the legislators the excuse to write a substitute bill the Moros will reject?

The MNLF and MILF 40 years ago were one in negotiating the 1976 Tripoli Agreement for the establishment of the “Autonomy for the Muslims in Southern Philippines” which was granted. Unfortunately, their split due to personal and fundamental differences, to a large extent, stalled the full and genuine implementation of the Autonomy. 

Now, the Autonomy, through their separate negotiations with the Philippine government, is about to attain that. Why can’t their leaders – founding Chair Misuari and those of the MILF – set aside their differences, decide between the ARMM and the Bangsamoro as the full and genuine implementation of the “Autonomy for the Muslims in Southern Philippines” and REUNITE?  Their refusal to is most disheartening to see.     

III: Not That Simple 

When Secretary Dureza hailed the release of the names of the members of the New BTC as a signal to start drafting the Bangsamoro basic law to create a genuine political autonomy for the Moros and the IPs, some, if not many, must have seen the New BTC as the only body tasked for the job and their mandate coming only from EO 08. The end will be as planned and expected – the formal establishment of the Bangsamoro after the 2019 election. However, it is not that simple.

Besides the complications that will inevitably arise from the MNLF-Misuari separate engagement with the Duterte government for the full implementation of the 1996 FPA, the New BTC may come up with a BPDR-compliant BEL but least CAB-compliant – a must in Section 3 of EO No. 120, s, 2012 deleted when amended by EO 08.

EO 120, Sec 3a states: “To draft the proposed Bangsamoro Basic Law with provisions consistent with the 2012 Framework Agreement on the Bangsamoro.” Note: The CAB, after signing in 2014, took precedence over the FAB.

EO 08 amended this by substituting: “To draft proposals for a Bangsamoro Basic Law which shall be submitted to the Office of the President for submission to Congress.”   

While the BPDR (Ways Forward for the Bangsamoro Process) provides the “Issuance of an EO to amend the composition and mandate of the BTC”, the functions of the New BTC in EO 08 are not as mandated the BPDR mandates. There is no direct reference to the BPDR in EO 08.  

New BTC Mandate in BPDR:

The mandate of the New BTC as provided in the BPDR: (The Bangsamoro Peace Process: Peace and Development Roadmap – Two Simultaneous Tracks: Federalism + Enabling Law Approach” and “The Bangsamoro Transition Commission”):

“Mandate: (I) Recommend amendments to the Constitution via the federalism project to establish the Bangsmoro government. (II) Craft the enabling law for submission to Congress. (III) Spearhead the dialogue and conversation of people in Mindanao on the Bangsmoro peace process.”  [Note: There is no reference to the CAB.]

Note: “(I)” and “(III)” are Sec 3b and Sec 3d of EO 120, respectively, as amended by Sec 2 of EO 08.

The following are specific mandates under the two simultaneous tracks: 

“A. Enabling Law or Legislative Track: (1) Consolidate and converge all peace agreements and legislations (e.g. 1996 FPA with MNLF, 1995 IPRA Law for IPs; RA 9054 or ARMM law). (2) If there are constitutional issues in the proposed Bangsamoro enabling law, these are to be “parked” and, await Supreme Court ruling and ConCon deliberations. (3) New BTC will call for an inclusive ALL-Moro Assembly to approve the new draft. (4) New BTC will submit to the new version of enabling law by July 2017.”

Note: Only “A(3)” is in EO 08, Sec 2 .an amendment to EO 120  as Sec 3c.

Note further: While the CAB is not among the examples in parenthesis, this is within the meaning of the phrase “all peace agreements and legislations”. 

“B. Federalism or Convention Track: (1) New BTC will call for an inclusive All-Moro Assembly to discuss its submission to ConCon. (2) New BTC will submit proposals compliant with peace agreements to the ConCon within six months. (3) The Bangsamoro governance until installed will serve as pilot federal state.”  

Note: “(3)” is not a mandate for the New BTC.

Crossing the Bridge

MindaNews quoted Iqbal (MN 2/10/17: GPH, MILF …) as saying that they are “not starting from scratch” as “there are existing drafts that can be made as the working draft to hasten the process of the drafting”. He was referring to the drafts for the ill-fated Draft BBL. But the draft proposal the New BTC will submit to the President must be free of constitutional issues. These issues must be culled from the old drafts amd Draft BBL; the process will slow down the New BTC.    

The final drafts after the four-month review and revision of Draft BBL was considered consistent with the 1987 Constitution. What unconstitutional provisions will the New BTC remove? By the Supreme Court’s November 20, 2016 decision dismissing the complaints against the CAB without ruling on the issue of constitutionality, the CAB can be presumed constitutional until proven otherwise.

What will the New BTC do? EO 08 only provides the general mandate for it to draft proposals for a Bangsmoro basic law to be submitted to the President. The specific mandates are in the BPDR. 

What option has the MILF? Its implementing panel accepted the BPDR during the August 14, 2016 meeting in Kuala Lumpur.  As leaders of the New BTC, how will they cross the bridge? 

The New BTC is implicitly being told to do these: 

First: Submit to President Duterte a Draft BEL that, FOREMOST, is BPDR-compliant even if it is LEAST CAB-compliant. Play safe. As working draft, use the BLBAR (Basic Law of the Bangsamoro Autonomous Region) – the substitute bills of the House and the Senate of the 16th Congress. The Moros should settle for a watered-down – least CAB-compliant – BEL if they want the 17th Congress to pass the BEL by July 2018 and the Bangsamoro inaugurated after the election of 2019   

Second: The forty or so provisions of Draft BBL that the MILF study group had asked the 16th Congress to restore should be included as proposed constitutional amendments to be submitted to the Congress as the Constitutional Commission under the federalism track of the BPDR.   

Two crucial questions: (1) How certain is the New BTC’s BEL will prevail over the MNLF-Misuari draft to amend RA No. 9054 to strengthen the ARMM? (2) Even if it does prevail, what if the ConCom rejects the proposed amendments? Will the Moros settle for good with the least CAB-compliant Bangsamoro?  

In Duterte’s Hands

What is the crucial option? The New BTC uses Draft BBL as its primary working draft. Converge to this all the other peace agreements and legislations as provided in “(1)” of the “Legislative Track” of the BPDR. President Duterte convinces the 17th Congress to presume the ensuing CAB-compliant Draft BEL as constitutional.  Let the constitutional issues, if any, be decided by Supreme Court. Constitutional amendments may still be proposed to the ConCom. 

But this option will be futile if MNLF-Misuari will continue its engagement with the Duterte government, The Congress has been entrusted with the task to consolidate the two draft bills; but the impossibility to abolish the ARMM as proposed by one and to keep and strengthen it as proposed by the other can be an excuse for the 17th Congress to write a substitute bill unacceptable to the Moros.  

To recapitulate:  That President Duterte, finally signalled the New BTC to start drafting the Basic Enabling Law for the Bangsamoro is good. But, in all honesty, that is not enough. Complications will arise from the separate negotiation of the government and the MNLF-Misuari to implement fully the 1996 FPA and from the BPDR. Does President Duterte have the wisdom, prudence, tack and, above all, political will to preempt these complications?

Like the proverbial bird, whether “the clamor for a genuine political autonomy for the Bangsamoro people in Mindanao” – Bangsamoro in the CAB or Autonomy for the Muslims in Southern Philippines in the 1976 Tripoli Agreement – will be fulfilled or be denied AGAIN is in the hands of President Duterte NOW. 

END