The need to address multiple values and interests in ARMM

Different voices and positions.

In Palace says ARMM failed experiment,  Government lays down, in clearest terms, its theory on ARMM and why postponing the ARMM elections is needed.

Government’s view.

For the Government, the ARMM is a “failed sub-state, a failed experiment” and this failure of the promise of autonomy, this failure of governance in ARMM is one of the primary causes of  “rebellion and hopelessness”. Since Government wants to have durable peace in Mindanao, reforming the ARMM -making sure it delivers on its promise to bring a better and more secure life for the people – is an imperative.

Presidential spokesman Lacierda says:

The main reason for the President postponing the elections is for reforms to take place. It can only happen when it is postponed and we appoint decent officials to have a clean slate.

The Government strategy then is to appoint “decent” officials who will implement the reforms needed. Foremost of these reforms would be to  “to stop the practice of using captive voting blocs that keeps regional leaders in power and enables them to sell voting blocs to the highest bidder in national elections”.

MinDA Chair Luwalhati Antonino supports this view: “The Mindanao Economic Authority (MinDA) is supporting the postponement of the August elections in Autonomous Region in Muslim Mindanao, saying re-setting the polls would be an answer to the desire to see genuine reforms, particularly in governance (in ARMM).”

Akbayan Mindanao Commission Head Tom Villarin, in his note “Beyond legalese on ARMM election postponement” (published in his Facebook account)  shares this analysis:

What is sorely lacking now in ARMM are stable institutions and leadership within the context of massive poverty, lawlessness, and resentment over failed attempts of the central government to resolve the Bangsamoro question. PNoy has an opportunity at hand to rectify and reform the ARMM over the next five year period. Having elections now would be meaningless; institutions need reform/overhaul if needed, both from the inside (ARMM) and outside (national government/Filipino people). PNoy needs to have a clear policy framework that cements sustainable peace, build strong institutions for governance, and provide an immediate, emergency lifeline to the people in ARMM. Democracy is only worth its salt if tasted; elections now only tickle the imagination of a few who wants the proverbial gold pot at the end of a rainbow.

There are oppositors, of course. Fr. Jun Mercado, in his GMA News blog “Follow the law”, talks about the “fig leaf” of respecting the right of the people to elect their leaders:

But ARMM elections (for all its failings) provide the mythical fig leaf. By doing away the ARMM elections and directly appointing an OIC, Malacañang removes the proverbial fig leaf! It removes the little cover that gives semblance to people’s choice of their officials in an autonomous structures based on the long struggle for self-determination. The government’s nakedness is, then, exposed for all to behold!

For veteran Mindanao journalist Patricio P. Diaz, one of the reasons for the failure of ARMM is “patronage” and to postpone the elections and appoint leaders in the ARMM would be perpetuating patronage:

And, most critical, too: The President and other parties in power should keep their hands off the ARMM election. Let the ARMM leaders form their own parties and decide who to field as candidates. Patronage – the worst under the Arroyo regime – has spoiled ARMM leadership. True to his election platform, President Aquino can do the change – wean ARMM leaders from patronage — by telling himself and other parties in power not to politically intervene.

Has Antonino realized that by her advocacy she is recommending the perpetuation of patronage – presidential and political — in ARMM and, consequently, its problems?  Has she realized that she is considering ARMM as being under the umbrella of MinDA in disregard of ARMM autonomy?”

Political analyst and election law expert Ramon Casiple sees the move or postponement as weakening the democratic argument and the rule of of law:

The big surprise in the scenario is the passionate advocacy of some non-Moro groups–both Mindanaoans and those in Manila, including those who fashionably termed themselves as democrats, liberals, pro-Moro, and/or anti-imperial Manila freedom fighters–for Malacañang to intervene, for the umpteenth time, in ARMM elections.

The irony here is that they are now arguing for President Aquino to appoint an OIC when they were demanding previously against presidential intervention in internal Moro affairs. For sure, appointing an OIC will be a first in any administration. In itself, it will be a setback to the cause of Moro self-determination and to the cause of Philippine democracy itself.

The disruption of the regularity of elections–without the existence of  extraordinary conditions that justify it–weakens the democratic argument and undermines the rule of law. The synchronization of elections–avowed basis for the OIC appointment–rests on specious and tongue-in-cheek foundations.

Time out. Respond to interests.

I am an avid fan of basketball and one of the devices in basketball is  a device called the “time out”. When the momentum is going the direction of the opposing team and we want to break the momentum, we call for time out. Time out breaks the cycle, gives everyone an opportunity to rest and recoup their energies and most importantly, it gives space for the crafting of a new strategy, a new set play to break the enemy’s momentum and to score points. This is what we need in this conversation over the ARMM.

There is enough consensus despite the seemingly disparate views. Overall, we need a solution that addresses all of the following interests:

1. How do we make sure that ARMM governance is transparent and accountable?

How do we stop the cycle of malgovernance and misgovernance? How do we make sure that what happened in past will not be repeated and that, under this new administration, the Bangsamoro people’s right to identity, security, livelihood, and basic services, i.e. education, health, housing, etc. will now be addressed?

2. In making ARMM work, how do we make sure that the right of the governed to freely, fairly and regularly elect their leaders is not denied?

While good governance is a value, democracy, rule of law and human rights is also a value. How do we make sure that our good intentions to make ARMM work will not  inadvertently destroy democracy and the rule of law in the ARMM? How do we make sure that our interventions in the ARMM will do no harm?

3. In making ARMM transparent and accountable and democracy working, how do we make sure that autonomy is strengthened? How do we put a stop the system of patronage and the perception that imperial Manila (irrespective of administration) dictates how ARMM should be governed?

Possible solutions must address multiple values and interests.

We need solutions that addresses and balances the multiple values of transparency and good governance, democracy and the rule of law and autonomy.

Possible Solution # 1.

One possible solution is continue with the elections and to do everything to make sure that the elections are free, fair and honest. This is to address the democracy argument. But this also means that the voters’ list will be cleaned, ghost precincts are detected and expunged, new COMELEC officials are assigned to oversee the elections, an international monitoring group is invited to monitor the elections, a real and honest to goodness gun ban is enforced and that all efforts are made to make sure that the people participate in the elections without fear.

To address the need for good governance in ARMM, the President can put up a National Office to Oversee ARMM Governance and its primary task is to make ARMM work better. This was done in the case of Northern Ireland where a Northern Ireland Office under the Office of the Prime Minister  of UK was created to oversee and partner with the Northern Ireland Government to attain mutual interests. This National Office will be headed by a Secretary who will exercise the President’s power of supervision over the ARMM. Part of the functions of the National Office would be to implement transparency and good governance systems,  i.e. financial, procurement, local government, civil service, etc. The National Office will also implement systems and processes to monitor and evaluate the performance of ARMM governance.

More importantly and as a signal that the Government values autonomy is for President Aquino to say publicly that he will not be supporting any candidate in the ARMM. The ARMM elections should be the business of people in the ARMM.

Possible Solution # 2.

However, if Government is already set in its decision to postpone the elections in the ARMM, it still needs to address the 3 interests outline above.

With respect to transparent and accountable governance, it must already provide a clear blueprint of the reforms (the “Plan”) that must be implemented before Government even appoints the new ARMM officials. After all, the reforms are more important than the appointees and the only reason why the elections are being called off is because of the need to implement the reforms. The first order of  business then is to present to the public the “Plan” – a set of programs, activities and projects of reforms – with clear timelines and resources. It must be explained fully to the people that their right to elect their leaders is being sacrificed, in the short run, in exchange for much needed reforms and that the soon-to-be-appointed officials’ actions will be restricted simply to “implementing” the Plan of Government for reforms.

With respect to the persons of those that will be appointed, Government must also come up with a transparent and fair process with clear criteria for selecting the officers-in-charge (OICs). Government must be able to justify to the public why they chose persons X, Y, Z. The last thing government needs is to be accused of appointing people whose only qualification is their “connection” to Malacanang.

Which brings me to the third but related point. The appointees of the President must be come from a wider universe than the usual. Otherwise, if the selection process is seen as highly partisan then the initiative, though armed with good intentions, will fail because it will be politicized.  In fact, it might not be a bad idea for the President to appoint “non-politicians” to the posts with the expressed promise that they themselves will not seek election to public offices in the ARMM come 2013.

Possible solution # 3.

Of course, we can also do both – elections and appointment. We can have elections in August 2010 but in addition the President can appoint “presidential liaisons” in the ARMM and require the elected officials to confer and work with the “presidential liaisons” who are appointed by the President to oversee the much needed reforms, i.e. for example IRA and other funds will not be released without the concurrence of both elected and appointed officials.

I am not saying that these possible solutions are “it”. They may be absurd. I guess what I want to say is that the possibilities are endless and the only limit is imagination. We only need to keep working at it until we find a good solution.

Lastly, since what happens in ARMM strengthens or weakens our initiatives to bring peace in Mindanao, then the words of Sec. Teresita Deles intended for the peace talks are also apt for the search of solutions to the ARMM question:

Let it not be said that the peace talks failed because of a failure of nerve, a failure of will, a failure of the imagination on our part.  I say a failure of nerve because, having marched for so long to the drumbeat of war, we are unnerved by the fear of losing our step.  I say failure of will because we would rather stick to our old formulas rather than risk losing ground and losing face. I say failure of the imagination because we cannot let go of our fossilized ways of thinking and doing things, blind to the fact that the way to life is to make all things new.

What we need indeed is to continue to imagine new ways and means of solving the problem and not be stuck with “fossilized” ways of thinking. ###

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The legal limits of what Government peace panel can offer the MILF

The end goal of peace negotiations is a peace agreement.  While the road to peace may be circuitous, still the end the same – a peace agreement.

Peace negotiations between the Government and the MILF started this week in Kuala Lumpur. The MILF submitted its draft comprehensive compact and Government promised to study and respond to the proposals. While the contents of the new MILF comprehensive compact draft are still confidential, we can be sure, based on over 14 years of negotiations, that the MILF will be negotiating for nothing less than an agreement that would radically alter the relationship between the Filipino and the Bangsamoro people, nothing less than an agreement that would require constitutional change. The MILF , in fact, has characterized their new draft comprehensive compact as:

“A formula of peace through the exhaustion of all democratic remedies to solve a home-grown sovereignty-based conflict, which, following the same approach, other similar global sovereignty-based conflicts have also been successfully resolved, such as in South Sudan and Northern Ireland;

A proposal to correct and solve the one-sidedness or imbalance of totality of relationship between Filipinos and Moros, the former continue to be rulers and sole decision-makers, while the latter as mere second class citizens without any role in national decision-making;

Provides for an asymmetrical state-substate relationship, wherein powers of the central government and state government are clearly stated, aside from those powers they jointly exercise, which are also defined in this draft.”

Again since the aim of peace negotiations is a peace agreement, it might be good to inquire into the legal and constitutional “limits” or the “scope of authority” of the President (and his negotiators). The practical question is this: at the end of all these negotiations, can the President (and his peace panel) enter into an agreement that will require amending or revising the Constitution?

This question is important because the answer will determine how the peace panel will deal with proposals from the MILF that require constitutional change. The quality of conversation in the negotiating table will be influenced by whether, in the end, there can a be an agreement on matters requiring constitutional change or not. It goes to the heart of the matter. Thus:

“May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions, which the present laws allow?”

The Supreme Court in Province of North Cotabato (G.R. No. 183591,  October 14, 2008) addressed this question squarely. According to the Court:

From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed with certainty.

Since under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what Marcos did in Sanidad but for their independent consideration of whether these recommendations merit being formally proposed through initiative.

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It will be observed that the President has authority, as stated in her  oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The limits of what Government can negotiate and offer are clear as outlined in Province of North Cotabato. At the end of the day, after all the tough negotiations, if there are matters, which would require constitutional change, the President (and his negotiators) cannot sign any such agreements. The President (and his negotiators) can only agree to recommend these proposed amendments or revisions either to Congress, to a Constitutional Convention or the people themselves through the process of initiative. The President (and his negotiators) cannot enter to any agreement that would “guarantee” amendments or revision. To do so, in the words of Province of North Cotabato, would “amount to authorizing the usurpation of the constituent powers vested only in Congress, a Constitutional Convention , or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.”

These then are the legal and constitutional limits of what Government can offer the MILF:

1. If allowed by present Constitution and laws, agree to implement.

2. If requires the enactment of a new law, agree to recommend to Congress.

3. If requires amendment or revision of Constitution, agree to recommend proposed amendments or revisions to Congress, or to a Constitutional Convention or the people through initiative.