Antecedents, restructuring, possibilities
Posted by CenPEG.org
March 3, 2015
The chair of the Philippine panel negotiating peace with the Moro Islamic Liberation Front (MILF) proposed the broad and dynamic field of Political Science—not just the legal construction of Philippine constitutional law—as a prism for understanding the proposed Bangsamoro Basic Law (BBL), its nature and the vision it purports to entrench, the Bangsamoro political entity.
There is another scale that I would like to add as part of a weighing instrument to assess the BBL and its substate proposal. It is the scale of history (particularly Filipino/Moro history) to provide a comprehensive frame in understanding the issue.
The logic in using these three instruments as weighing scale is to make our judgment dynamic and creative while aware of the longue durée surrounding the political dynamics of constitutional interpretation. Without stating the obvious, even the fundamental law of the land is historically constituted.
As a background, there were nine tiers or military, administrative and ad hoc units in Mindanao and the Sulu archipelago that were created and eventually abolished successively during the American colonial period.
Some of these were the Military District of Mindanao and Jolo (created in 1899), Moro Province (created in 1903) and Office of Commissioner for Mindanao and Sulu (created in 1937).
Under Philippine administrations, 14 tiers were created and abolished successively starting with the Commission on National Integration (created in 1957), and many others, like the Mindanao Development Authority, Ministry of Muslim Affairs, Southern Philippine Development Authority, Autonomous Region in Muslim Mindanao (ARMM), Southern Philippine Council on Peace and Development, Expanded ARMM, Maglanco-Socsargen Council (government proposal in 1999) and the Bangsamoro Juridical Entity (political arrangement in the memorandum of agreement on ancestral domain in 2009).
In sum, there were 24 tiers, units or entities. It was not surprising when Malacañang declared the ARMM a “failed political experiment.” Truth is Mindanao and the Sulu archipelago have been subjected to continuing political experiments for 117 years, if we include the critical year of 2016.
What explains the continuing tier-making and tier-changing in Mindanao and the Sulu archipelago? Could the substate project contemplated in the BBL break the cycle and stabilize Philippine intergovernmental relation in Mindanao and the Sulu archipelago?
Source of instability
Let me quote a paper I wrote in the Diliman Review in 2000:
“The main source of instability is anchored on a century of unresolved contestation over the political status of Mindanao and Sulu. Moreover, the colonial mixture of Philippine political system that failed to address the ‘power vacuum’ in Mindanao and Sulu reinforces intergovernmental instability.”
The unitary setup of the Philippine government was a legacy of Spain. Yet, the setup was institutionalized by the “Philippine Commission to facilitate the extension of American sovereignty to the Philippines,” including Mindanao and Sulu. The separation of powers (executive, legislative and judiciary) was copied from the United States.
The unitary setup defines the “vertical” division of powers (structure of government) between the national government and local government units while the “horizontal” separation of powers defines the form of government (e.g., presidential or parliamentary).
In all indications, the colonial-political mixture is what creates a disjuncture between the “horizontal” and “vertical” relation of powers because, from the point of view of governance, a unitary setup requires a relatively homogenous society while an effective application of separation of powers presupposes a stable system of democracy … As a consequence, it emboldened intergovernmental problem and rendered futile the national government effort of tier-making and tier-changing and further worsened the “power vacuum” in southern Philippines.”
The idea of substate provides an option where the two fundamental bases of power in a democratic system of polity (i.e., separation of power and division of power) could be adjusted in such a way that while the former is made to share power horizontally (e.g., concurrent, exclusive powers) with the Bangsamoro, “structural relation of power” (i.e., division of power in terms of national-local relation) must also be adjusted from previously strong-executive type to strong-legislature kind (e.g., parliamentary, ministerial form).
The substate formula allows the Bangsamoro to have a subgovernment that does not necessarily have the power of national government relative to the first fundamental source or arrangement of power (i.e., separation of power), but which is able to have enough power under the division of power (i.e., vertical power in national-local relation) that reflects partly a federal form of government but which still enjoys an autonomous character under a unitary setup of government as in the case of the Philippines.
This notion of substate reflects Markku Suksi’s definition as that political space of “organizational options which include federalism with its “intermediate” state-level entities, normally distributed over the entire sovereign territory and also a variety of different territorial autonomy arrangements (2011:1).”
Suksi says “both federal solutions and autonomy arrangements are used to accomplish the same thing, to bring about the creation of public authority of a devolved nature for territorially circumscribed entities at the substate level.”
His notion of public authority “is normally the power to make laws, that is, the legislative power or the law-making competence, managed through institutions of self-government.”
The need to have such an adjustment from strong executive to strong legislature is in consonance with essentially and historically asymmetric power relation of the Moros that even the Americans recognized when they organized the Moro Province in 1903.
Although the Legislative Council of the Moro Province, which was composed obviously of Moros from different districts and tribal wards, was not as powerful, the explicit recognition of the United States for such legislature to coexist with a governor under the Insular Government (headed by the governor general and the Philippine Commission) proves America’s respect for Moro asymmetrical relation during US colonial administration in the Philippines.
Moreover, dispersal of power under a unitary setup that simply touches on the powers of national government under the separation of power principle through traditional strong-executive approach without adjusting the corollary structure of division of power (e.g., powers in nation-local relation) assumes symmetrical relation between national government and Moros, which, in my view, is responsible for the cycle of tier-making and tier-changing in Mindanao and the Sulu archipelago.
Favorable to national gov’t
Understandably, and from the perspective of the State, the traditional approach of power dispersal through autonomy using strong-executive approach is favorable to the national government in terms of maintaining State power down the line.
However, such an approach rests on the assumption that local areas are relatively homogenous and fully integrated with the national community. Given the political and cultural distinction of Moro society honed by a separate history different from Philippine history, the autonomous, integrative and strong-executive approach of power relation is inappropriate as it continuously creates political disjuncture in national-location relation between the two communities (Filipinos and Moros).
If such approach of unitary, strong-executive type is made to persist, it perpetuates patron-client relationship as local or regional executives in Moro areas are usually forced to kowtow to national government, particularly to the Executive, while rendering the local or regional legislature weak and generally underutilized where local executives acting as the alter ego of the President dominate local and regional political system.
In this regard, the notion of autonomy and decentralization would lose its essential meaning as fundamental functions of government. Thus, the function of legislation at the subnational level that supposedly works as part of the separation of powers (like rule-making, rule-implementing) fails to fully operate.
What happens on the ground is a persistence of pseudodemocratic subpolity with institutions and processes undermined by patronage politics, warlordism and so on. For sure, patronage, political dynasties and political bossism are prevalent not only in the South but also in the whole country.
I would contend though that due to the depth of political and cultural asymmetry between the national community and Moro society, there is both qualitative and quantitative difference of patron-client relation in the latter affecting the intergovernmental condition in the area.
Thus, there is a need to adjust the fulcrum of separation of powers structure (horizontal) with the division of power relation (vertical) away from strong-executive type to strong legislature in mid-tier or regional level where checks and balances are made to operate not in the traditional presidential form where the three branches of government are conceived to be independent and coequal but along parliamentary arrangement where the parliament as legislature minus the judiciary coexists with Executive headed by the Prime Minister or Chief Minister.
The rational for having a strong legislature like a parliament is for real autonomy to fully operate at the regional or local level with strong asymmetric historical relation and cultural tradition.
The constitutional question is: Can a State with a unitary structure and presidential form of government accommodate a tier or “substate” that carries a strong legislature feature generally understood as a parliamentary or ministerial form of government? I would leave this question for our constitutional lawyers to argue.
My interest is to articulate the impact of power dispersal through traditional mode of autonomy using strong-executive approach without making an adjustment in the fulcrum of power relation on both the separation and division of power that often results in the instability of political and administrative tiers between the national government, and regional and local government as shown vividly in continuing political experiments in Moro areas.
If I may express my 25 cents’ worth of view on this matter, Article 10 Section 15 of the Philippine Constitution provides the creation of an autonomous region, with Section 18 underscoring the need to “define [the] basic structure of government for the region consisting of the executive department and legislative assembly” without identifying the specific structure and form of government whether unitary or federal and whether presidential or parliamentary.
Way out of morass
Such a noncommittal stand of the 1987 Philippine Constitution on the specific form and structure of government in the autonomous region provides a space for “constitutional flexibility” that could be used as a way out to address anew the morass of political experiments in Moro areas.
The long political experiment did not only hamper autonomy and democratization in the South but also practically exhausted national resources while burdening the State almost perpetually.
Traditionally, the national impulse is to lay the blame on the Moros with their doggedness and tenacity in pursuing their right to self-determination. As Moro fronts like the MILF begin to redefine self-determination generally in its internal dimension and not its external aspects, government should also be ready to make a corresponding recalibration of national policy and strategy beyond the traditional approach of autonomy.
Vision of possibilities
I would like to leave this major constitutional question and address the fear of some people that the BBL may serve as a gateway for secession of the Bangsamoro. Agreeably, this fear is not necessarily unfounded. The draft BBL is not simply a political or legal document.
One of the possibilities may be captured by this question: Given that the fulcrum of power in the Bangsamoro contemplated in the BBL would change from the Executive (headed by the regional governor) to the Parliament, which could evolve and make it difficult for the President to control its 60 members, what if the Bangsamoro Parliament becomes too nationalistic and too demanding or protective of its power while unyielding with its position where the situation could possibly reach a point where there would be polarization of positions between the national government and the Bangsamoro government?
While the BBL provides that the supervisory power of the President overarches on various Bangsamoro political and military entities with the attendant intergovernmental bodies, Congress-Bangsamoro Parliament Forum and subconstitutional bodies as venues to resolve possible tension between the national government and the Bangsamoro, these are not enough to ward off the possibility of Moros’ growing appetite for secession through the Bangsamoro government.
Like any politics, the Bangsamoro politics, by that time, remains a terrain of possibilities. But for us to fail to distinguish a phantom or ghost out of such possibilities, as if they are real, would grip us in fear before we realize that, on its flipside, the BBL can be considered key in addressing in a rather different way the political experiments in Mindanao and the Sulu archipelago.
To avoid the risk of polarization, I would like to raise a basic postulate that I call tambusah or knapsack metaphor. It is akin to a natural law or common sense that as one increases the load of a bag, it is necessary to strengthen the ties that bind so they won’t snap.
In other words, to avoid the Bangsamoro becoming a gateway for secession, the process of power dispersal distributed along the division of power structure must correspondingly be countered not simply through the President’s power of supervision and various intergovernmental bodies as such bodies could also be “politicized” when push comes to shove. Moros should be more able to identify with the national aspiration through ample representation in major branches of government as these remain the critical sources of power that determine how the separation of power principle works.
This way the fundamental basis, form and structure of national power are fully utilized not simply as a source of empowering the Bangsamoro with the optimum potential of autonomy called substate but as a guarantee in making them glued to the republic and thus ensuring that Philippine territorial integrity remains intact.
(The author is dean of the Institute of Islamic Studies, University of the Philippines. This is a condensed paper he presented at the Senate joint committee hearing on the proposed Bangsamoro Basic Law on Feb. 2.)