Passion For Reason
Rebels and constitutionalism rhetoric
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 02:23:00 10/24/2008
Filed Under: Mindanao peace process, rebellion, Armed conflict, Constitution, Judiciary (system of justice)
MANILA, Philippines—It is convenient to deploy the rhetoric of constitutionalism against the peace pact with the Islamic rebels, but the real test for the Supreme Court’s “controlling principles” is how they will affect future peace talks not just with the secessionist rebels in the South but with the Left-wing rebels all over the country.
Revolutionaries are indifferent to constitutions and draw their legitimacy not from the text of written documents but from the dreams of the people they claim to represent. Trying to subordinate, to subject, nay, to domesticate revolutions and force them into the strictures of law will only marginalize or distort constitutionalism, and in the end weaken constitutionalism itself.
The Memorandum of Agreement on Ancestral Domain (MOA-AD) was vulnerable at the outset because both parties were wanting in their bona fides. President Gloria Macapagal-Arroyo’s legitimacy deficit grows with every unexplained scam, every uninvestigated disappearance of an activist, every bungled attempt at Charter change to perpetuate herself in power. The Moro Islamic Liberation Front has been linked to al-Qaeda’s Southeast Asia’s terrorist arm, Jemaah Islamiyah, and is unable to control alleged rogue elements who commit barbaric acts and other humanitarian law violations.
The MOA-AD itself expands and empowers a Bangsamoro Juridical Entity when even the more limited experiment with the existing Autonomous Region in Muslim Mindanao has shown meager, if not dismal, results. The MOA-AD undeservedly elevates a virtual “failed state,” a state-that-never-was, into a state wannabe. And how? By vesting ancestral domain rights in a group that purports to fuse both “lumad” [indigenous peoples] (who are entitled to such rights) and an Islamic ethnic minority (who are not), and without consulting the lumad who are the true rights-bearers.
But my beef with the MOA-AD from the beginning was not that it was replete with inconsistencies with the 1987 Constitution—of which there are plenty and which I have discussed here and in earlier pieces—but that it would maneuver us into Charter change or a crisis that would perpetuate Ms Arroyo in office. My worry, on the other hand, was that the Supreme Court, in order to stop the furtive MOA-AD, might effectively shackle the hands of future peace negotiators.
The Court, to its credit, aimed to “delineate th[ose] bounds [without] unduly restrict[ing] the [President’s] freedom of action” and was sufficiently nuanced to leave the door open revising the Constitution. It wisely allowed the President to “validly consider implementing 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 as a certainty.”
The fault of the MOA-AD, therefore, was that it virtually “guaranteed … that the required amendments will eventually be put in place.” The Court recalled the conditional language of earlier agreements—its clauses “shall be recommended by the GRP [Government of the Republic of the Philippines] to Congress for incorporation in the amendatory or repealing law”—and contrasted it to what it read as a slam-dunk commitment in the MOA-AD: “Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements.” I will not go as far, however, as saying that the “prior agreements” protected from derogation will embrace after the fact the current MOA-AD.
The Court thus has left ample room for the possibility that peace pacts may aim at “the root causes of the armed conflict” that call for “social, economic and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments.” Finally, it has imposed the safeguard of public consultation.
John F. Kennedy warned, “Those who make peaceful revolution impossible will make violent revolution inevitable.” The Supreme Court did not impose a legal straightjacket that would have rendered peaceful change impossible. It met the short-term need to stop an agreement that would either foist a manipulable Charter change or spark unrest that would set the stage for emergency powers. But neither did it block off the long-term imperative to reach out to Filipinos so sufficiently aggrieved as to take up arms.
Without meaning to, the Court’s decision may have affirmed the outer limits of constitutional discourse, beyond which we must face the intractable issues of peace, justice and prosperity not as legal questions for which we turn to the courts for the answers, but as substantive moral and political questions for which we can turn to the affected communities alone.
William Safire of The New York Times recently wrote about the proverb, “The proof of the pudding is in the eating.” He explained that the test, so to speak, is not in “the pudding” itself but in “the eating,” or “in the mind of the person conducting the test,” and recalled an amusing Marx brothers scene in which someone disguised as Groucho asked, “Who you gonna believe, me or your own eyes?”
The test of the Court’s decision thus lies in what we had been looking for in the first place. For local politicians, it can be an isolated episode to preserve the power they and their constituents now enjoy. For others, it can be a partisan exercise to score points against a President notoriously hooked on pelf and power. For rebels—and for poets and dreamers as well—it is merely part of a lifelong struggle to “not mistake what is real for what is possible,” and to see constitutions merely as one of many ways of “anointing power with piety.”
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