By proposing federalism and including the premature prospect of “constitutional process”, the Philippine government has handled the peace process in Mindanao through the rigid prism of legality, jeopardising the possibility of an early political resolution to the conflict. Regardless, as its stands, the GRP-MILF (Government of the Republic of the Philippines - Moro Islamic Liberation Front) peace process is about to be thrown onto the back burner as Philippine election fever begins in earnest.

“It’s dribbling,” commented an NGO leader cryptically a few months ago on the way to the Malacanang Presidential Palace, for peace talks with the MILF, the leading Muslim liberation movement engaged in a peace process with the Philippine government. The ‘dribbling-the-ball’ metaphor is as apt as it is passé, considering that the Philippine government changed tactics to deal with the MILF at such short notice. Only a few weeks ago, the Presidential Adviser on the Peace Process, Jesus Dureza, referred to a “best case scenario” only to turn around with the recent proposal of federalism solely for the Bangsamoro people via constitutional change.

Since amendments to the Constitution are the preserve of the Philippine legislature, what Malacanang has signaled, is its desire to engage in a slow passing game. The ball to decide the fate of the peace process is now with Congress, an institution that is traditionally within the sphere of the Executive. And before it can reach Congress, Secretary Dureza confirmed that a team of “constitutional experts” was working towards a “federal framework for the Bangsamoro.”

With this strategy likely to determine policy in Manila, instead of taking a shot at goal, the fate of the peace process is likely to be passed around various state institutions such as the ad hoc constitutional study group, the Executive, the Senate, the House of Representatives, and possibly, the envisioned Constituent Assembly. In the meantime, the MILF is expected to wait patiently, without resorting to the remark, “what the hell is Malacanang doing?”

Undeniably though, the government is under pressure to take a shot at goal - President Arroyo has two years to go before she leaves Malacanang Palace in 2010.

In the interim, the “best case scenario” plan of Secretary Dureza is on the back burner. The plan, conceived by dovetailing a future GRP-MILF peace agreement with the 1996 Peace Agreement of the MNLF (Moro National Liberation Front), calls for a new law to be instituted for the expansion of the Autonomous Region of Muslim Mindanao, to constitute the Bangsamoro Juridical Entity. It was this very end-state, which paved the way for the GRP-MNLF peace review that was held in Jeddah, Saudi Arabia late last year and more recently, at the Indonesian Embassy in Manila.

Now that Manila has decided to go down the federalism route, the fate of the GRP-MNLF  review has become uncertain. The government’s federalism proposal was issued after the MILF peace panel refused to meet the Philippine panel in a scheduled meeting in Kuala Lumpur in December 2007. This was over the inclusion of the term “constitutional process” in a government draft document pertaining to the “19 Consensus Points on Ancestral Domain.” The MILF claimed that the government panel should have stuck to the gentlemen’s agreement agreed upon by both parties in the early phase of the peace process, wherein both agreed not to raise the issue of Moro independence and “constitutional process” respectively, to allow the peace process to proceed smoothly.

Adhering to a bottom-top model in two-party negotiation, the GRP and MILF panels agreed to first address less controversial issues like the cessation of hostilities, rehabilitation, economic development, interdiction of criminals and the issue of ancestral domains. Consequently, they planned to move the agenda of the peace talks to more contentious issues like governance, to political structures and mechanism. This approach has undeniably evidenced positive results. Apart from containing a full blown, all-out war in Mindanao, both parties have inked around 80 peace-related documents since 1997.

But before they could even discuss the “Memorandum of Agreement” as originally scheduled for January 2008, and before talks could proceed on towards the “Comprehensive Political Compact” to include governance and political structure, amongst others, the ghost of “constitutional process” began to haunt the peace process. More ominously, the spectre of “constitutional process” is a recurrent theme in the almost 40-year history of peace making in Mindanao since the signing of the Tripoli Agreement between the Philippine government and the MNLF in 1976.

Undeniably, the hiatus in the peace process has put the government panel in a bind. Both parties remain tight-lipped on their respective renditions of the “19 Consensus Points on Ancestral Domain”, which are likely to provide amongst others, the inclusion of 600 to 1000 plus non-contiguous Muslim dominated areas into the Autonomous Region in Muslim Mindanao, which would later become the Bangsamoro Juridical Entity, through a process that has yet to be agreed upon. But any possible agreement might have obliged the government to implement some of the envisaged agreements, without a clear idea of their implementation. Thus, despite their gentlemen’s agreement, the government panel stymied the peace process in bypassing joint discussions on the “19 Consensus Points”, and raised the issue of “constitutional process”, even before the December 2007 meeting in Kuala Lumpur.

The MILF, on its part, had reason to cry foul. Apart from being blind to the ‘expedited’ process involving the “19 Consensus Points on Ancestral Domain” and the introduction of “constitutional process,” the MILF viewed the actions of the government panel as premature and unilateral. There were apparently other modalities to implement the “Consensus Points” that were yet to be discussed by the panels, without necessarily invoking “constitutional process.” The MIILF even contended that by possibly agreeing to the GRP panel after its unilateral act, the former's very ethos and character could be undermined, since the MILF is a revolutionary organisation - after it had consistently refused to recognise the Philippine Constitution.

Short of lecturing the government peace panel, MILF lawyers contend that world trends in resolving sovereignty-based conflict like in Ireland, Sudan, Bougainville, Aceh, and East Timor, turned a page only with extra-constitutional ingenuity, including those recognised under international law like for example, a UN-sponsored referendum. In concert, the struggle for self-determination by peoples including minorities is recognised by the UN Charter, the UN Declaration on Universal Human Rights, and the UN Draft Convention on the Rights of Indigenous Peoples. Thus, the MILF is convinced that the Mindanao conflict, including the recent stalemate in the peace process, can and ought to be resolved through a broader appreciation of international law.

As the government dithers and prolongs the peace process, the impetus for peace is likely to dilute as the chalice is passed around amongst “non-players”. Unless the GRP-MILF peace process is salvaged through equitable understanding and empathy, not to mention, an extraordinary exercise of political will by Malacanang, the Mindanao conflict will continue to fester beyond 2010.