10 Decisive Factors Affecting the Annexes to the FAB

imgresThe peace process between the Government and the MILF is facing challenging times. From the heavenly euphoria of the signing of the Framework Agreement on the Bangsamoro (FAB), the negotiators are back on the ground and working out the details of the Power Sharing, Wealth Sharing and Normalization Annexes. That the Annexes have yet be signed means one thing: the present drafts of the Annexes, despite being initialed by the negotiators, are not yet fully acceptable to the President. The President is not comfortable with the present formulations. The negotiators need to continue working on the drafts. The approval of the Annexes is ultimately the President’s decision. It is not the call of the peace advisers, not of the negotiators, not of the members of the Cabinet. It is the President’s alone.

President Aquino has invested so much in the GPH-MILF peace process – reputation, political capital, time, energy, funds, and resources – that he naturally will not let this opportunity go to waste unnecessarily. However, despite all of these “investments”, he will not approve the Annexes if, in his perception, doing so will not bring the desired outcomes.

So what are the possible factors that President Aquino will consider before he gives the final approval to the Annexes? I have no special insight into the decision-making style of the President so this is purely guesswork on my part. I am trying to divine the President Aquino’s “calculations” based on what I have heard and read. My guess is that the following 10 factors will weigh heavily in the President’s mind when he makes a decision on the draft Annexes:

1. Whether or not the Annexes are crafted in such a manner that the possible legal and constitutional challenges are not too formidable to overcome and efforts to surpass those challenges will not be be too costly or difficult (e.g. ministerial form of government, the concept of “territory”, 75-25% wealth sharing on natural resources, etc.)

2. Whether or not the opposition to the FAB and the Annexes, both within his administration and outside, can damage him politically;

3. Whether or not the political machineries (Team PNoy coalition, Liberal Party, Congress, LGUs, other alliances and coalitions) will support him and whether they are capable of providing adequate support and defense;

4. Whether or not his approval of the Annexes will undermine the stability of government (e.g. threats from parts of the security sector that profits from the war economy, the government’s capability to secure the national territory and conduct CIQS operations in the Sulu seas, etc.);

5. Whether or not the Annexes depart too radically from the conventional administrative or political practice (e.g. Regalian Doctrine, the concept of local governments, national government assistance to local governments, etc.)

6. Whether or not the social or political upheavals that will be triggered by the approval of the Annexes would be worthwhile vis-a-vis the benefits;

7. Whether or not the approval of the Annexes would foster unrealistic expectations among certain interest groups which will lead to further disappointment, alienation and distrust, thus undermining other initiatives in the future;

8. Whether or not the Annexes may damage the economy (e.g. less revenues, less taxes to be collected, lack of accountability in the use of block grants, lack of control over strategic minerals, etc.);

9. Whether or not, because of the election of new and reform-oriented leaders in the ARMM and massive development programs like Sajahatra, the goals of the peace negotiations can now be achieved without necessarily agreeing to the Annexes;

10. Whether or not there are other issues or crises more compelling than the GPH-MILF peace process such that the approval of the Annexes can be shelved in the meantime;

These are the possible factors in the President’s mind and the government negotiators (and to some extent, the MILF negotiators) need to address these “factors” if they want the Annexes to be approved soon. Answers to the 10 factors will determine whether the peace process will proceed to the next stage or will it be stalled in the negotiation of the Annexes.

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Did the GPH-MILF peace process peak too early?

Edward de Bono talks about the “peaking effect”:

“Athletes train hard for the Olympic Games. Their aim is to reach peak mental and physical condition during the Games. It is sometimes said of tennis players that they have peaked too early in the season and that their play has become tired and stale when the reached the Wimbledon. With politicians in ana election campaign the great fear is that they will peak too soon…American businessmen are very conscious of actresses, writers, football players and pop artists who are deemed to have peaked. An investment is worthwhile if someone is seen to be moving towards the peak because the potential is limitless. But if someone has already peaked then the investment is likely to be wasted because a second peak is unlikely; the trend can only be downwards.

This attitude towards peaking comes directly from the stock market. If a particular stock has been rising it is a good investment. Then the peak is reached and at once people start selling in order to cash in their profits. The value of the stock itself has not changed at all. What has changed is the whole composite attitude of people towards the stock. Similarly with a performer the talent may not have changed at all but if the attitude of everyone else involved has changed then the peaking effect can be seen. Any accelerating process is bound to peak sooner or later because the fall-off in acceleration immediately sets in motion the process of deceleration and then downward acceleration.”

Applying the foregoing observations of Edward de Bono to the peace negotiations between the GPH and the MILF, my interest is whether the GPH-MILF process peaked too early when the parties signed the FAB in October 2012. Was the signing of the FAB the peak of the current peace process? Is the peace process now on its downward trajectory? If it is on a downward trajectory, how do we keep it steady or even peak a bit more?

Peaking too early is obviously not about the good faith and resolve or even the capacities and abilities of the current peace advisers and negotiators nor is this about the value of the process itself.  Peaking is about whether the composite attitude of the people towards the process has changed. Do the people see more “peaks” to come or do they see a downward turn? Of course, this “composite view, attitude and feelings of the people” is an amorphous thing and people can debate as to what exactly that is.

From my point of view, after the much celebrated signing of the FAB, it has been a slow descent for the GPH-MILF peace process. See, for example, Carol Arguillas’ “Timeline: GPH and MILF six months after the signing of the framework agreement” which details the events that happened after the signing of the FAB. The important fact is that the parties have failed to agree and sign on the annexes (the heart of the agreement). They have signed on a lot of good and peripheral matters – Transition Commission, third party monitoring, IMT and AHJAG, Sajahatra Bangsamoro, appointments to the members of the Transcom, among others. But the completion of the annexes remain elusive and delayed. All the good news that happened after the signing of the FAB are good news on the side issues. Aside from these good news, the people also hear about delays, requests for postponements and even requests for funding from DBM, etc.

I understand precisely why the annexes have not been signed. It is going to be a very difficult decision. The cost is high and the call is the President’s. The President needs to make a decision and he needs to consider a lot more of factors than the other party. Yet all of these are not new. There are no new factors to consider. The factors and considerations have been the same from the time of President Marcos to President Aquino. The dynamics whether between the GPH and the MILF  or inside MILF or GPH is already a set pattern. It is a recurring one. A review the agreements and disagreements from the start of the negotiations in 1997 through the MOA-AD debacle in 2008 up to the signing of the FAB in 2012 will reveal the “pattern” and knowing the “pattern” can help the parties break  it or at least avoid the usual consequences. I will write about that “pattern ” some other time (and more importantly, some ideas on how to break the pattern) .

One of the ways to avert a downward turn and make the people believe that the process has not peaked and the best is yet to come is to be found ironically not on the negotiating table but on the ground. If the peace process brings in more respect, more food on the table and more feelings of security and normalization, then people can wait even if the formal negotiations take a little more time than what was previously announced. On the other hand, more delays in the negotiations coupled with increasing intolerance, hate, poverty and violence will bring the peace process to peril.

In the end, the people will soon make up their minds: is there more to come or was that it? The GPH and MILF better hurry up and make up their minds before the people do.

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GPH-MILF Peace Process: Some choke points on the way

As we work for peace in Mindanao and hope that all will be well, it might be good to explore the possible choke points. These possible choke points are offered to help the parties plan the implementation of their agreements.   From my point of view as a third sider, some of the choke points in the continuing peace process between the Philippine Government and the Moro Islamic Liberation Front are the following:

  • No final agreement. While this choke point is highly unlikely because the parties are highly invested already and the whole world is watching, there is a still a possibility that they will fail to agree on the annexes and the comprehensive compact. If this happens, the peace process is stalled. This choke point derails the process even before it could takeoff.
  • Deadlock in the Transition Commission. No agreement on the draft Bangsamoro Basic Law. In this choke point, the members of the Transition Commission fail to agree on a common draft to be submitted to the Office of the President. While the MILF contingent in the Transition Commission will be expected to have more unity and cohesion in their positions (they will take their cue from the MILF) the same cannot be expected from members of the Government contingent who most probably will be independent-minded and responsible to some other constituencies other than the National Government. Members of the Government contingent might take on different views from that of the National Government. If this happens, the negotiations and debates will shift from Kuala Lumpur to the Transition Commission.
  • Office of the President has serious political and legal reservations on the draft Basic Law as submitted by the Transition Commission. Once the draft Basic law is approved by the Transition Commission, it will be transmitted to the Office of the President who, in turn, will submit the same to Congress as a priority measure. My layperson’s understanding is that the transmittal to Congress by the President will largely be ministerial. In reality, this will not happen. The Office the Executive Secretary and the Chief Presidential Legal Counsel, for example, will do its own due diligence and seek broader political and legal advise on the submitted draft law. A choke point would be if the Office of the President will have “reservations” on some portions of the submitted draft and will not submit the same to Congress until such reservations are addressed. Under this choke point, we will have a deadlock between the Office of the President, the Transition Commission and the MILF.
  • Congress passes a law substantially different from that crafted by the Transition Commission. The success of the peace process hinges substantially on the power of the Chief Executive to persuade Congress to pass the Basic Law in the form and substance designed by the Transition Commission. It is reasonable for the MILF and the Transition Commission to expect that what goes in must come out the same. It is also reasonable for them to feel betrayed if the law that is passed is not what they envisioned it to be. Thus, a choke point would be if Congress passes a law that is substantially different from that submitted by the President and the Transition Commission. Political maneuvering skills are needed to enact the Basic Law as it essentially requires Congress to “limit” the exercise of its broad plenary powers and prerogatives to what is contained in the FAB and in the comprehensive agreement.
  • The Supreme Court declares the FAB as unconstitutional or stays its implementation.- In our system of government, the Supreme Court ultimately has the power to say whether a peace agreement is in accord with the Constitution or not. Thus, a choke point would be any TRO or declaration of unconstitutionality by the Supreme Court on the FAB or other matters arising from the negotiations. While we can expect more legal challenges filed in the Supreme Court when the comprehensive compact is signed, we cannot for sure say which direction the Supreme Court will take.
  • The MILF loses in the elections for the Bangsamoro Government. If the MILF party loses in the elections for the Bangsamoro Government, they will have to ask themselves: What now? What shall we do next? Shall we disarm? I consider this a choke point because the loss will be a huge factor in the events and activities that will follow. This event will determine whether normalization will be completed.
  • Armed hostilities and acts of violence on the ground. The ultimate choke point will happen on the ground. If armed hostilities or acts of violence erupt in Mindanao, irrespective of who or what started it, the peace process will be threatened. It does not matter at what stage the negotiations are. Once the situation becomes violent or internal security is threatened, all the relevant actors – the President, Congress, the AFP, the PNP, the LGUs, the MILF, the BIAF, the so-called lost commands, the MNLF, etc., will be pushed to take a pause and rethink the trajectory of the process. If this happens, this will definitely be a choke point.

These choke points are possibilities. No prediction is made that they will actually happen. I am placing them on the table for consideration by the Government and the MILF (and all peace supporters) so that they can prepare and not be surprised when such choke points do happen. To be forewarned is to be forearmed.

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Government-MILF Peace Talks: Implementation Challenges and Opportunities

1. As the parties plan and hope that things will happen as they plan it, we should consider all other scenarios and prepare for them as well. Resilience is key as the goals are the same: peace and development in Mindanao.

2. The bulk of the work for peace in Mindanao is in the implementation phase. As the negotiations in Kuala Lumpur come to a close, the parties need to prepare for the implementation phase. One of the lessons from the GRP-MNLF peace process is that a peace agreement would fail if there is no one  in the Philippine Government who is charged with making sure that the peace agreements will be implemented. Thus, the Philippine Government needs to designate a Cabinet level “orchestrator” to oversee the implementation of the agreements as this is already beyond negotiations and would involve orchestrating actions of political, bureaucratic, military, legislative, judicial and social institutions. The high skills required of the “orchestrator” would be legal, political and communications and more importantly, the orchestrator must have “political power”, i.e the President’s complete trust and confidence. If the “orchestrator” is not Cabinet level, it would be difficult to push the implementation of the agreements.

3. These scenarios are meant to trigger more thinking into what might possibly happen in the future, not on what probably will happen. This is not some sort of prediction. The critical points are presented so that the parties can plan ahead or consider them before they signed the comprehensive compact.

4. The map is not complete or comprehensive and is created by an outsider – one who has no insider information or participation in the current GPH-MILF peace process.

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Alternative Future Scenarios: Framework Agreement on the Bangsamoro

Today, the Framework Agreement on the Bangsamoro (FAB) will be signed by the Philippine Government and the MILF. It is a major step towards establishing durable peace in Mindanao. The signing of the FAB also signals the start of what could be an exciting work for both the Government and the MILF. This is because to successfully implement the FAB requires the cooperation and coordination of the following key players:

1. The President and his Cabinet

2. GPH and MILF peace panels (to sign a Comprehensive Agreement);

3. The local political leaders, especially in the ARMM;

4. House of Representatives and the Senate;

5. The Armed Forces of the Philippines and the Philippine National Police;

6. The ARMM  Regional Government;

7. The Supreme Court

8. Mass media (especially the big players)

9. Ultimately, the people themselves.

As the saying goes, “if you want peace, prepare for peace”. Good luck and may the force be with all the peacemakers.

 

 

 

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Mapping out the “Framework Agreement on the Bangsamoro”

 

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Johan Galtung’s comments on the Philippine internal conflicts

(Prelude: Last week, in yet another roundtable on the Mindanao problem, I chanced upon a good friend from way, way back, Cesar Villanueva of Pax Christi and Transcend Philippines. Seeing Cesar, I was immediately reminded of the observations of  Johan Galtung on the conflicts in the Philippines. When I reached home, I searched for that file of that speech of Galtung made in February 2009. Here it is. Such a gem, such insight. Reading it again, after over two years, one can sense how things have changed and how things have also fundamentally remained same.)

CLASS, NATION AND THE PHILIPPINES

(Johan Galtung)

The comments heard about the vertical peace process dialogues between the Government panels and the parties for social change in class and nation relations are: limbo, paralyzed, no prospects, stuck, insincere, broken, not implemented. And yet the parties are mesmerized by the process and want to get unstuck. How?

The key positions of the parties, lifting the most needy out of misery, and some autonomy for the bangsamoro nation (the Muslims + in Mindanao who arrived long before today’s Christian majority) are anchored in the basic human needs and rights for well-being, and for identity. But the government of a modern state has other priorities than the basic needs of the citizens.

Modernity is a secular version of the traditional rule of the rex gratia dei, a King by the grace of an omnipotent, omnipresent and omniscient God. The State became the carrier of omnipotence, the Market of omnipresence and Science of omniscience. The top priority became monopoly on force against any armed resistance, a unitary state against other power centers, and power growth. The second priority became a unified market within the state and economic growth, seeing poverty as the root cause and economic growth as the remedy for most social problems. And the third became rationality, and scientific growth as opposed to religion.

This sets the stage for failure. Poverty is not the cause. Inequity —I am poor because they are rich — is. And repression — I want to be ruled by my own kind however imperfect but am ruled by somebody else – is. The issues of equity and autonomy have to be solved to bring about an equitable and sustainable peace. The road to disarmament –demobilization-reintegration (DDR), reconciliation and development passes through solution, not vice versa. Putting the cart before the horse aims at pacification, not peace-building.

Rule of Law, Primacy of Constitution, Sovereignty, Territorial Integrity and National Unity matter, but Universal Human Rights matter more. Laws can be changed, constitutions can be amended ( cfr the Universal Declaration of Human Rights, Art 28 ), state  sovereignty is shrinking in a regionalizing and globalizing  world, subsidiarity- autonomy-federalism strengthen territorial integrity against independence, and the Philippines has at least three nations (Christians, the bangsamoro, the non-Islamic Indigenous, and more languages beyond English and Tagalog). But State Unity, and shared Filipino Citizenship, make sense.

 A government would tend to privilege DDR, and if necessary go for “a war of rapid conclusion”, Sri Lanka style. Military victory in a war will be confused with conflict solution. For the parties engaged in centuries long struggles it is only a lost battle, and the struggle continues fed with more bitterness and determination.

If disarmament is achieved root issues may be left unattended. A government is many-headed. A signed panels MOA may be blocked by executive power higher up (including the military), by the legislative powers (senators and local representatives) seeing their power curtailed, by judiciary power (the Supreme Court) declaring a MOA unconstitutional, by a referendum with majorities neither in misery nor moro, or by the international community (eg., the US and other embassies) listing parties as “terrorist”.

This is today Philippine reality. The conclusion is not that a governmental panel is insincere but that there are more parties involved. The same applies to the non-governmental side of the class and nation issues , today left unsolved, making that rich –in natural and human resources – country, so much less than it could be, running around in a process that is none. This shows up in the division into more parties, also because of issue complexity.

 Here are some points about getting the peace process unstuck:

[1.] Get out of the verticality and the limitation to two parties (fatal in Israel-Palestine and Sri Lanka) into multi-party, multi-channel and horizontal dialogues. Issues my be related and better served by round table dialogues all over the country.

[2.] Ask the people for advice, for instance by essay contests in schools and dialogues all over on “The Republic of the Philippines I would like to live in” , aiming at creativity, not consensus.

[3.] Aim at compelling images of future solutions, not only verbal agreements drawing on the Spanish-Roman Law tradition.

[4.] Let hundreds of peace zones, social experiments in equity and harmony etc blossom, gain experience, public and inspiring, more drawing on US style pragmatism. Mas hechos, menos  pactos.

[5.] The Government should be unpackaged, placing arguments on the table for open dialogue, including the arguments of certain foreign powers, not as backdoor politics.

[6.] The class struggle parties, while keeping the governmental channel open, start exploring with other parties, for instance

  • openings for middle men who may be  losers under marketing from cooperatives to consumers, for fair prices to the producers;
  • the Millennium Development Goals, MDG, are basic needs oriented, aiming at lifting the bottom up—but it should be remembered that the issue is not only to take away poverty but also injustice.
  • those high up who feel threatened that if those lower down come up “ they will treat us like we treated them” to design non-threatening social and economic strategies;
  • fair distribution keys for the proceeds from mining and minerals between local communities, regions and the state (cfr Art 1 of the Human Rights Convention on Economic, Social and Cultural Rights).

[7.] The nation struggle parties, while keeping the governmental channel open, start exploring

* directly with the Christians—with whom the Moros will continue to live together–equitable and sustainable forms of co-existence like above as examples, in no way an exhaustive list.

** economic cooperation, such as joint enterprises;

**military cooperation, such as joint patrolling-peacekeeping;

**cultural cooperation, such as ecumenical work, mutual religious learning, joint worship, joint religious texts acceptable to both, revised history books acceptable to both, and- or leaving contentious issues to the judgment of the readers;

 **  political cooperation, such as joint decision-making in neighboring autonomies, subsidiarity and the varieties of federal options combined with sharing power in the Center;

* with groups in Indonesia for a possible formal or informal Indo- Fil condominium over islands between the two countries;

* with ASEAN (5 Buddhist, 3 Muslim, 1 Confucian and 1 Catholic member) for observer status and aseanization of some of the issues;

* with  OIC (56 members) for associate membership;

* with former sultanates from Aceh-Pattani to Mindanao for ways of blowing new life into a historically important archipelago.

* with all of the above formal or informal consulates representing the bangsamoro, not embassies, that is for the State.

And all of the above in the Islamic dar-al-ahd tradition, not dividing the world in a dar-al-harb and dar-al-Islam only.

And  all of the above in the gandhian spirit of being the future you want to see, not only waiting for an agreement to give a legally binding shape, with very many if often very small steps.

And keeping in mind that along the road traveled so far there are traumatized masses, including the displaced persons, downtrodden minorities and others – in  need of the consolation of reconciliation and the inclusion religion offers so much better than scientific rationality—learning from the Australian model.

And upholding the dignity of each person created in the image of God who deems the peacemakers blessed as they reflect His character.

(Johan Galtung, 13 February 2009)

 

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