Fisking the Good Father Bernas

I find myself in almost complete disagreement with a column on that ill-fated Memorandum of Agreement on Ancestral Domain between the MILF and the GRP, published yesterday Father Joaquin Bernas, S.J. (PDI: Peace Negotiations). He opens with a question:

MANILA, Philippines - Can you really have a peace negotiation that is totally closed to any change in the fundamental law? Perhaps you can, in an ideal world. But we are not there.

In the past two decades there has been a flurry of peace agreements. A characteristic common to some of them is direct negotiations between governments and internal armed groups who for this limited purpose were treated as equals. These were departures from earlier negotiations which where state to state. And the result common to some of these were ceasefire agreements linked to a modification of political and legal arrangements. The results were generally embodied in formal documents written, signed, publicized and witnessed by international participants.

Sad to say, a good number of them failed after five years and more after 10 years. But trial and error continue for the sake of peace. And lessons learned have already opened up an embryonic development in law called lex pacificatoria.

CAVEAT: I would pose a complementary question: Can you really have a peace negotiation that is totally OPEN to any change in the fundamental law?

Clearly not, for the Bill of Rights is largely non-negotiable, so that even if we grant that SOME constitutional change might be needed, we must insist that the change should be as small as is absolutely necessary, if only to increase the chances of its passage through a clearly tortuous process to gain the people's consent.

Now, as the good Fr. Bernas informs us, the "flurry" of peace agreements that have involved SOME changes in the constitutions of other countries largely failed over time, yet "trial and error" continues. I think the lesson here is crystal clear: even if countries change their Constitutions, there is no guarantee that peace will be achieved. So there is no evidence for the thesis that constitutional change is necessary and/or sufficient. I would surmise that the degree and swiftness of failure actually

The GRP-MILF MOA, we are told, is dead, or is at least comatose. And as I said in my column last Monday, I would not favor signing the MOA in its present form.

If it had been signed or if it should be signed, would the document be equivalent to a unilateral declaration that could bind the Philippines to some radical constitutional changes even including dismemberment of the archipelago? I do not think so. The little that I know about binding unilateral declarations in international law, principally from the unilateral commitment France made to discontinue nuclear tests in the vicinity of Australia and New Zealand, I would say that the MOA does not have the characteristics of a binding unilateral declaration.

At least three characteristics of the French commitment led the International Court of Justice to conclude that France had incurred a binding obligation. The commitment was very specific; there was a clear intent to be bound; and the commitment was restrictive. It would be hard to convince the ICJ that signing the MOA, even by an authorized agent, would satisfy these characteristics. Besides, there would be need to defend the MOA before the ICJ only if the Philippines consented to be brought to the ICJ. But we know that the ICJ is not an ordinary court to which one can be unwillingly dragged. ICJ rules require consent to be a party.

CAVEAT: This is really scary. Contrary to his own claim, I would say the good Fr. Bernas has just suggested that had it been signed the MOA-AD could be considered be considered by the ICJ as a binding unilateral declaration by the GRP, since the three characteristics applied to France seem to apply to the MOA-AD: (1) it is very specific; (2) there is a clear intent to be bound, since the GRP has declared this agreement to be necessary for a final compact. and (3) it is most restrictive indeed.

What should be the mandate of the negotiators? As I understand it, the mandate of the negotiators who produced the MOA was to work toward the formulation of an agreement that could lead to peace within the parameters of the Constitution. Should such a mandate be understood as a command not to agree to anything which might be a departure from the Constitution? I do not believe so. If that were the mandate, in the context of the current conflict, it would have manacled the negotiators severely.

CAVEAT: Again, the degree of departure from the Constitution ought to be minimized to increase the chances of passage. Unfortunately, the government peace panel seemed to have agreed to ANYTHING that was a departure from the Constitution. It becomes clear that the degree of change that ought to be agreed upon is a matter of discretion on the part of the Executive. This discretion, I think the negotiators gravely and slovenly abused.

The Constitution, after all, has two aspects—the substantive aspect and the procedural aspect. I understand the mandate to mean that the negotiators could explore and weigh possible changes in substantive provisions of the Constitution but always on the understanding that substantive changes could be finalized only according to the procedure prescribed by Article XVII of the Constitution.

The negotiators ventured into substantive changes. They have been vilified for these. But these were not changes that were self-executing but changes that could take place only after the constitutional process is finished.

I must admit that the language of the MOA does not succeed in causing the need for a constitutional process to jump out of the text. For that reason it is seen by some as a done deal. But it is not. The need for process is there even if not in the language we can easily understand. The negotiators had to devise a lot of language engineering to satisfy the constitutional requirement of the Republic while at the same time producing something acceptable to an opposing side reluctant to accept the Constitution.

CAVEAT: I disagree. The need for constitutional process DOES jump out of the text, not in the manner the good Fr. Bernas implies, but literally in the manifestly outrageous and explicitly disadvantageous changes to the Constitution that the Executive tries to bind Congress to make. No amount of language engineering could've disguised the surrender of our most cherished principles to a despicable enterprise of paying the largest ransom to the rebel gang that has held the whole nation hostage.

Critics of the MOA, if they are willing to be the negotiators, must also be willing to navigate in stormy negotiating seas. Hopefully they can be more skillful!

Peace agreements have at least three stages. First is the pre-negotiation agreement which tries to fix the participants and the agenda. Next is the substantive or framework agreement which identifies the root causes of the conflict and proposes how to halt violence more permanently. The last phase is the implementation agreement which seeks to advance the framework and flesh out the details. Before we reach this third stage, it is generally premature to talk of unconstitutionality.

I believe that at the moment we are still at both the first and second stage. Everyone should help to make the efforts in these stages successful so we can go on to the implementing stage and finally achieve peace in Mindanao.

Nego supositum! The recognition that major changes to the fundamental law will have to made at Stage 3 argues for more, not less care be taken to minimize those changes and not just roll the dice hoping for the improbable.

But what of transparency?

The necessity or even wisdom of making the contents of these phases public may differ from stage to stage. It has been pointed out, for instance, that the successful negotiations achieved by South Africa’s Mandela began with secret talks with De Klerk. Even with our constitutional right to information, different phases will require different degrees of publicity.

CAVEAT: The good Fr. Bernas is surely not defending the opaqueness of the negotiations on the MOA, for that was its greatest failure: the government never gained public support for what they were doing and were seeking to achieve a fait accompli.

Likely with the good Fr. Bernas' blessings and advise to the President and her peace negotiators...which may explain the hubris that goads the good Fr. Bernas to such a flimsy tissue of defense for a "mere piece of paper" that has already killed dozens and displaced a quarter of a million Christians, Muslims and lumads in Mindanao. Their blood and grief are on his hands since it appears he WAS one of the "Constitutional experts" consulted by the Palace on their approach.

So the good Fr. Bernas urges even more "trial and error" for the sake of peace!

There is a related post and comment thread over at Filipino Voices, where Abe Margallo supports the good Fr. Bernas.

---

Here is a complete apologist for the MOA-AD in Patricio P. Diaz over at MindaNews. Warning, it's really painful reading all his drivel.

---