By Datu Michael O. Mastura

Commentary Part 2

Negotiating the ancestral domain agenda in the GRP-MILF peace talks is less likely to precipitate a crisis but the nervous establishment diplomats know it can turn into a diplomatic practice gone wrong. Opinion-editorials aimed at touching a row nerve about Manila’s old grudge against Kuala Lumpur is not ‘in step’ with the ‘persuasion progression’ of the GRP-MILF peace process. But if only border matters were that simple, would politicians skate over risks surrounding the Malaysian-led IMT partial pullout in what we would consider to be “playing the game�? But, for the Philippines, no foreign policy issue has been central to any elections even if big foreign-policy ideas sent jitters in the wake of the controversy over the Spratley deal in the preceding weeks.

Historical ignorance destroys process legitimacy. So the MILF peace panel has came up with a negotiating position on territorial waters to dwell on that fact. Given the game mindset of the Arroyo presidency, the MILF leadership finds in reality that Government is faced with two choice points whether: (1) to adhere to the “territorial limits� defined in the Treaty of Paris of 1898 and the Washington Treaty of 1930 delimiting boundary between the Philippine archipelago and North Borneo and certain islands off its coast; (2) or, to sustain the “straight baselines� conceived of the archipelagic doctrine of the UNCLOS. What do we find testing the “strong republic� official ideology? Here too, until very recent weeks, the data are unruly. Little wonder it is a “country of interest� in the eyes of the United States (regardless of using liberal or illiberal measures).

Now a negotiating game’s analytic activity can turn on contested concepts whose function is very much like “playing fast and loose� with constitutional law. Any analytic determination of the negotiating objective of the Government gives some “measure of constraint� to lay down the particular concept of territory or conception of ownership of resources. Those responding to such constraint are forced to argue for the supremacy of the constitution or even appeal to arguments from democracy as distinct from other political disputes.

Advocacy of constitutionalism—the political theory that the majority must be restrained to protect individual rights and secure the minority—once adopted but employed to make the majority judge its own cause seems inconsistent and unjust. Powerful arguments have demonstrated that this conception cannot ignore the fact that rights-based claims against the majority are not issues which in fairness ought to be left to 'majoritarian' rule. Indeed appeal to democracy assumes that all unsettled issue must be resolved only by some institutions politically responsible in the way that democratic theory assumes. Sorting out ethnicity can produce also a territorial configuration in a sovereignty-based conflict. But a democratic ‘government of the politicians’ solely for the political class as practiced in this country is troubling.

“Why should we accept this view of democracy when the original inhabitants and state boundaries do not coincide with national borders?� asked the MILF vice chairman for political affairs, Ghazali Jafar. Still the question can be rephrased to ask: “Does it follow to have a democracy Philippine style when single ethnicity is not a price worth paying for peace?� This sort of political skepticism is shared by Jun Mantawil and Amor Pendaliday now seeping into the younger staff serving the MILF peace negotiation secretariat.

Here I put the matter in a guarded way because in facing up to the Bangsamoro people’s ancestral domain agenda the GRP and the MILF negotiating peace panels have divided up this complex issue into strands: the concepts, territory, governance and resources.

Throughout the past fourteen GRP-MILF Exploratory Talks the negotiating panels adopted the procedural steps for an incremental approach to secure the Consensus Points. “How could GRP possibly renege now when at TWG level we signed documents?� according to Abdullah Camlian who heads the MILF technical working group. “Let’s face it�, explains the MILF chief negotiator Mohagher Iqbal, “back in December 2006 the GRP even offered the right to self-determination solution�. Then the GRP chief negotiator Silvestre Afable packaged it as a federal gambit. Putting up that proposal upfront was meant to be “no excuses� formulation but the path at the cabinet cluster was a narrow passage. Of course, in foreign policy decisions, when diplomats argue against “appeasement� they draw comparisons by referencing it to the “Munich analogy�. Here it is a wrong choice of analogy that fails to tilt the playing field.

If such choice points could impel the Government to seek an honest-to-goodness ad referendum on a bipartisan position, it is worth to save its reputation before the international community. Does it make an impeachable act if one head of State has sought a neighboring head of Government to tender his good offices to act as a mediator in an armed conflict? As a strategy, furtive national interests can impinge on certain policies with much more consequent interactions. Forty-nine consensus points are hard bargains. More precisely there is no single force at work, whatever its account, in which the Arroyo presidency and her cabal cabinet could try to renege or backtrack from the “Consensus Points on Ancestral Domain�.

On one reading of events, this curious phenomenon of the “non closure culture� among Filipinos goes far beyond the devils advocate role. The job of new chief negotiator Rodolfo Garcia was expected to be straightforward: keep the ceasefire in ‘perpetual’ place, and stay the ‘course’ of multi-donors flow, and still strike a deal but with its ‘un-cleared’ draft decision may be delayed for much longer. Since then GRP side has been talking up “doing due diligence�. Here I am making a countdown on how long it has taken the Government, which is past due the 100 days mark.

What does the GRP negotiators want to persuade the MILF negotiators to see “things its way� but the Third Party facilitator fails to grasp? Or perhaps, given that the indecision leaves plenty of room for digesting GRP tripartite ties with the OIC-committee of Eight, it enables hordes of information to focus on the downside risks associated with the IMT pullout. Even if a cabinet is agreed on, the a new report by the International Crisis Group says that unless Manila jumpstarts talks with the MILF, the GRP runs risk of renewed fighting. Can long-term cease-fire substitute for full-pledged peace deal? When skirmishes in Basilan boiled over this week can the ‘guns of August’ be far beyond? The Brussels-based think-tank warns the security operations against confusing counterinsurgency and counter-terrorism goals. It comes with a critical reminder that a disjointed part of the political endgame is “shared intelligence� that keeps hostilities from escalating.

Next perhaps, the odd new phenomenon: a retired chief of staff of the Armed Forces has come to head the Office of the presidential assistant on Peace Process. Karen Tanada who runs the Gaston Z. Ortigas Peace Center, an influential social policy study group, feels unmoved. The perception is odd undertakings are military foreplays. (Discontinuity in the GRP-NDF peace talks is marred by absence of truce but it is quite another to apply it to the GRP-MILF peace process). General Hermogenes Esperson’s immediate problem stems from what both critics and cynics could see as less of ‘a conversion on principle’ than as a pragmatic reassessment of the ‘persuasion equation’. Not a few consider it principled when a politician shows the guts to shape public opinion rather than be shaped by it. However, it is an error in judgment to confuse coercive leadership with massive popularity.

What has yet to be “big news� to catch public attention is that all national government agencies dealing with Muslim affairs are now attached to the OPPAP rather than to the Office of the President. Is this a policy of containment in lieu of direct access to the Head of State, which is fundamental to national unity? Government strategy towards Muslim Filipino integration is running out of steam as a definer of national identity. Pointedly “duaybangsa� is less abstractly to belittle the birthright of the Bangsamoro people to claim a distinct identity and a bounded territory (traced to the sultanate patrimonial states).

Historical antecedents point to the Moro Province as a distinct territorial area governed apart from the Philippine Islands then defined as “unincorporated territory� of the United States. Not many realize that, a year after its abolition to give way to the Department of Mindanao and Sulu, the Jones Law of 1916 extended the application of the Bill of Rights to the Philippines. But it was also the year the American President Wilson embraced the term “self-determination�. The commonwealth idea (1935-1946) was a mercantilist state within a democratic framework that served the ruling political class who controlled the economy. When we consider that the disparate colonial ethnic sorting out of “Christian Filipinos� and “Moros� and “Non-Christian Tribes� in Mindanao did not match proclaiming “self-determination� with Philippine “independence� in 1946, the cause to demand for justness of the original position defines the joining of two issues in current negotiations between the Government and the leadership of insurgencies.

A more thorough analysis requires that we inquire first into the relationship between the historical facts that underlay adherence to the “independence day� reckoned on the 12th of June and the national purpose now constitutionally re-inscribed. A vital part of the constitutional context is our genealogy of sovereignty that has to be interrogated in separate discourse. Here a corollary issue examines the empirical claim that the regalian doctrine—all lands belong to the state—is a fruitful means by which to achieve economic growth and public good.

The first issue has hardly put to rest the forms and structures (the “ties and tiers�) of the republican unitary state that incorporated the territorial configurations as well as the transformations in instrumental conception of property. Legal doctrines driven by the power of eminent domain justify the use and the ownership of property for its contribution to increased national wealth. There is an effort in this direction ‘to free property law’ from its anti-developmental premises. Our position is to apply operational meanings of productive efficiency to the concept of production sharing agreement while the ownership of ancestral domains is vested in the Bangsamoro people.

The second issue assumes the causal efficacy of the doctrines in agrarian economy, but calls into question the desirability of results resolving sovereignty-based conflict. The ‘balancing test’ never confers the priority claim a status of natural right but to understand ancestral property is to establish the systemic requirements of a communal property system committed to property rights bundling them with ancestral (pusaka) obligations. Our line of inquiry must weigh the balance between ancestral domain, inclusive of customary (adat) property, and property rights. Its scope is more encompassing than mere “surface rights� (the limit in IPRA) that inhere in all Indigenous peoples as “first nations� intertwined with the Bangsamoro people’s collective right to determine their future political status