My unsolicited advice to the new government negotiators for talks with the MILF

Note: I wrote this piece in December 2008 after a new set of negotiators (Seguis, Antonino, Pangandaman, Cabili and Adamat) were appointed by President Arroyo. As we, Mindanawons, await the announcement of President Aquino’s new set of negotiators (which should be soon as the MILF “deactivated” their panel in the meantime), I offer this again by way of unsolicited (and totally “presumptuous”) advice.

Let me begin by offering my profoundest congratulations to the Chairman and the members on their recent appointments to the government negotiating panel for talks with the MILF. I assure the panel this is going to be a great challenge and, as I may add, an exciting one! It is an enterprise worth embarking upon as it provides an opportunity to do a whole lot of good – peace, development, justice not just in Mindanao but the whole Philippines as well. Alas! It also an enterprise which, if not handled well, will bring this country to perdition. Peace or perdition? The future of peace negotiations is in your hands.

Of personal paradigms and the 5BQs

As we begin our work in negotiating a possible political settlement with the MILF, we bring into the negotiating table our own set of “paradigms”, our worldviews, our set of assumptions about the world and everything in it. Paradigms are made up of our life experiences, our “oughts”, our sense of “right” and “wrong”, our principles and values. It is always good to start by taking stock of these things. In my 4 years of helping out in the negotiations, I learned that the right “WHO” is most crucial, over and above the right “WHAT”. The “WHO” is right when the following conditions are present: (1) the negotiator has the full confidence, backing and unimpeded direct access to the principal, the Chief Executive, (2) the negotiator has a clear understanding, not necessarily agreeing with, of where the other party is coming from, (3) the negotiator is perceived as authentic by the other party and lastly, (4) the other party trusts that the negotiator is in good faith and is committed to “do the right thing”. Without the right “WHO”, no amount of the right “WHAT” – agenda, facilitation, monitoring, etc. – will move the peace process. In short, it is the person of the negotiator that will spell the big difference between success or failure. Nobody joins the peace process without his or her mind already set. There is no such thing as “independent”, “neutral” or “open-minded”.

No need to despair, such is a given and is not a problem per se. It is the fact that these paradigms are usually unconscious and unexamined that constitutes the problem. It is the nature of “paradigms” to resist being challenged and yet peacemaking requires a capacity and a confidence of being able to state one’s paradigm out in the open, subject it to scrutiny and to seek out a solution that most probably will not fit one’s initial paradigm. In short, openness to change and the ability to escape the clutches of “groupthink” is an essential requirement and this “openness” begins by making the unconscious conscious, by awareness. This is not to suggest that the panel be totally transparent to everyone. It is however suggested that the panel be clear to themselves and to each other what they think and how they feel vis-a-vis the Moros and the problem in Mindanao. Sa simula pa lang, dapat nagkaintindihan na kayo: Saan ba tayo nanggagaling? Saan ba tayo tutungo? The Chairman and the members must be clear, personally and collectively, about their “paradigms” vis-a-vis the Moros and the Mindanao Problem. Operationally, this would require honest and brutal answers to the following 5 Basic Questions (5BQ):

Can the Moros (or the MILF) be trusted? Who are the Moros?

Is there a Moro Problem?/What is the Moro Problem?

What are the roots of the Moro Problem?

How should we solve the Moro Problem?

How can we build peace in Mindanao?

I need not belabor the tremendous benefit of having clarity with respect to the 5BQ except by saying that it will make all other things manageable. Answering the 5BQ will inform and determine the nature of your proposals on the table, the speed and tempo of the negotiations, the content and directions of your communications plan, etc. It will also clarify potential (and inevitable) debates and disagreements within the panel and even within the Cabinet. As they say in Christian language: Seek ye first.

The alternative of not having clarity at the onset is grim. Without clear answers to the 5BQ, the panel will be confused, disunited, given to individual and independent kanya-kanya moves and will be focused on “tactical”, not strategic, decisions. The panel’s time and energy will be dissipated by urgent but not so important matters. It will be immersed in the thick of thin things. Sayang naman.

My advice: immediately after the reconstitution of the new panel, go up to the mountains, close the doors and discuss the 5BQs first. The rest, i.e. negotiating strategy, strategic communications, constitutional and legal review, coalition building, public diplomacy, can follow. These are the easy parts.

Determining the Status of the MOA and the Extent of the Authority of the Executive.

While the ultimate goal of the peace process is a signed final peace agreement, the immediate goal of the panel is the resumption of formal talks. The resumption of talks is however not without historical context. We have been negotiating with the MILF for almost eleven years and in fact, the much maligned MOA-AD was negotiated for about 3 years before its signing was scuttled first by a TRO and then eventually a final decision by the Supreme Court declaring it “contrary to law and to the Constitution”. The Philippine Government has made it clear that the MOA-AD “will not be signed in the present form or in any other form” while the MILF has taken the position that the MOA-AD is a “done deal” and that they will only go back to the negotiating table if and only if the agenda is MOA-AD. There is a clear chasm that divides the two positions and ways must be found to go back to the negotiating table with those positions in mind. Of course, GRP can insist on what it wants and adopt a hardline “take it or leave it” position: No more MOA. Lets move on. What is the status of the MOA-AD? While Government may have taken the position that the MOA-AD will not be signed in the “present form or any other form”, there is still a need to determine what the “status” of the initialed MOA-AD is.

What does Government mean when they say that the MOA-AD will not be signed? The MOA-AD is a fruit of serious negotiations, bargaining, and back-channeling between the GRP and the MILF for almost 3 years. Is the Government totally disavowing the MOA-AD? Is it changing its mind and saying that it was a mistake in the first place for the previous panels to even agree on the provisions and principles of the MOA-AD? If this is the case, then Government must state it in plain terms and tell the MILF.

On the other hand, If Government is not changing its mind and is intent in keeping its word, which provisions of the MOA does it continue to honor? If Government is saying that the initialed MOA-AD will be “reference point” for further negotiations, then it has to spell out what that exactly means. The determination of the status of the MOA-AD is important because Government cannot simply shove it under the rug and pretend that its not there. While the initialed MOA-AD has been declared unconstitutional, the fact remains that it is a real fruit of real negotiations.

Furthermore and as a practical matter now that the panel is reconstituted, what will it advise the facilitator? That Government is ready to go back the negotiation table? To talk about what? Are we taking up the MOA-AD? If not, what will the panels talk about? What is the extent of the authority of the Government to negotiate? The question, of course, is rhetorical. But let us outline the problem from the perspective of the MILF. MILF says: “Look, we have been negotiating with you the MOA-AD for three years and just when we already have some sort of agreement and ready to sign it, the Supreme Court struck it down as “unconstitutional”. And added to that, even before the Supreme Court struck it down as unconstitutional, you unilaterally made a decision that you will not sign the document anymore. It is clear then to us that you (or the Chief Executive for that matter!) has no authority to bind the Philippine State with some degree of finality. Your words are never final. Whatever agreements we hope to enter into in the future can always be questioned by anyone – whether it be a Vice Governor or an ordinary citizen – via the simple, expedient tool of petitioning the Supreme Court to nullify or disallow it.

Why negotiate then with you in the first place? What is the extent of Government’s authority?” Of course, Government can respond by saying: “You must understand that our authority to negotiate and enter into agreements now and in the future, while complete and with force, contains an inherent congenital infirmity – that it is always subject to judicial scrutiny as a postulate of the legal order.” Such is the correct textbook answer. But it will not inspire confidence between and among the parties. It brings forth images of a vicious cycle of initial agreement, legal challenge, and then nullification. It brings no closure, no stability. The peace process is an inherently volatile issue and there will always be oppositors to any agreement. Is the peace talks then condemned to a future of endless litigation? We need to find a balance between the demands of “constitutionality” and inspiring confidence that whatever agreement we will enter into in the future will be, in some degree, honored and kept. We need to find it soon. Milllions of lives are at stake. ###

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Author: Bong Montesa

I teach children how to think. I am engage in the work of ending armed conflicts and bring about a just, inclusive and sustainable peace in the Philippines and in the world.

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