We take a look at the context, history and issues on the "opt-in" clause, one of the most contested provisions in the proposed Bangsamoro Basic Law.
Prepared by the Senate Economic Planning Office (SEPO) for IAG
In the original draft of the proposed Bangsamoro Basic Law (BBL), the core territory of the Bangsamoro region will be composed of the following: the present geographical area of the Autonomous Region in Muslim Mindanao (ARMM); the cities of Cotabato, and Isabela; the six municipalities in Lanao del Norte; and the 39 barangays in North Cotabato which voted for inclusion in the ARMM in the 2001 plebiscite. Contiguous areas outside the core territory may opt at any time to be part of the Bangsamoro territory upon petition of at least ten percent (10%) of the registered voters and the approval by a majority of votes cast in a plebiscite (Section 3, Article 3 of BBL). This provision was retained in the House of Representatives Ad Hoc Committee’s version of the BBL, but with some amendments. Only the contiguous areas identified in the 1976 Tripoli Agreement can file a petition for inclusion and they can only do so on the fifth and tenth year after the enactment of the BBL.
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The said “opt-in” clause is arguably one of the most contested provisions in the proposed BBL. Critics aver that it may lead to a creeping expansion of the Bangsamoro territory and ultimately result in its disengagement from the Philippine Republic. Proponents counter that it is based on historical rights and merely gives the Moro people in other Muslim-dominated provinces and cities the opportunity to join in the quest for self-determination.
To understand the historical context and the issues surrounding the provisions on territory in the proposed BBL, a second RTD was held last July 6, 2015 by the Institute for Autonomy and Governance (IAG) and its partners, the Local Government Development Foundation (LOGODEF), the Senate Muslim Advocates for Peace and Progress (SMAPP), and the Senate Economic Planning Office (SEPO). The participants in the RTD were the officers and technical staff of the offices of the Senators and the Senate Secretariat. The following are the highlights of the discussion:
SUMMARY OF PRESENTATIONS
History and Context: Areas of Autonomy in Muslim Mindanao
Atty. Randolph Parcasio
Atty. Randolph Parcasio, legal counsel and spokesperson for the Moro National Liberation Front (MNLF) and currently a consultant to the ARMM Regional Government narrated that the Moro people’s struggle for their homeland spans many centuries. The Moros were already enjoying sovereignty even before the Spaniards and Americans came to the Philippines. In the 16th century, there already exist four Moro states: the Sultanate of Sulu; the Sultanate of Maguindanao; the Buayan Sultanate; and the Apat na Pagampong in Lanao. When the Spanish colonizers came to conquer the Philippines, they failed to defeat the Moros. In fact, during the peace negotiations between Madrid and Washington terminating the Spanish-American war, Spain, contrary to earlier pronouncements, officially declared that the Moro land (Basilan, Mindanao, Palawan and the Sulu archipelago) was not part of her colony of the Philippines.
Being independent of the Philippines, bilateral treaties were negotiated with the Sultanate of Sulu. Atty. Parcasio narrated that a commercial treaty had already existed between the United States (US) and Sulu beginning 1842 at the time of the signing of the Treaty of Paris. In August 20, 1889, the same parties entered into the Bates Treaty which officially acknowledged that the Moros were not part of the Philippines and specifically guaranteed that the US will respect the Moro autonomy, will not interfere with Moro religion and customs, and will uphold the integrity of the Sulu Sultanate. In return, the Sultan will recognize US sovereignty.
However, after winning the war against the revolutionary Filipinos in Luzon, the US unilaterally abrogated the Bates treaty and exercised direct rule over the Moros. To prepare the integration of the Moro land into the mainstream politics of the Philippines, the Americans created the “Moro province”. The US colonial government subsequently passed laws which systematically took the ancestral lands and economic resources away from the Moros and into the hands of migrant Christian Filipinos and US corporations.
During this period, the Moros did not relent in their quest for freedom and self-determination. There were many pockets of war; the most notable were led by Panglimas Hasan and Maharadja Andung in Sulu, the Datus of Maciu, Binidayan, and Taraca in Lanao, the Datu Ali in Cotabato, and the leaders of the Footmen Uprising in Palawan.
In 1935, the Commonwealth of the Philippines was formally established. According to Atty. Parcasio, under President Manuel Quezon’s administration, the Filipino colonization of Bangsamoro homeland intensified. Notably, President Quezon’s address of the First National Assembly on June 16, 1936 stated that, “[t]he time has come when we should systematically proceed with and bring about the colonization and economic development of Mindanao.” Under the Commonwealth, more laws were passed which resulted in the further marginalization of the Moros.
The MNLF and the Tripoli Agreement
On May 1, 1968, the provincial governor of Cotabato Datu Udtog Matalam made a dramatic move. He issued the Mindanao Independence Movement manifesto calling for the independence of Mindanao and Sulu to be known and referred to as the “Republic of Mindanao and Sulu.” What followed was a decolonization struggle.
The founding of the Moro National Liberation Front (MNLF) headed by Chairman Nur Misuari in 1969 together with young militant Muslim students, political leaders, and the Moro grassroots started the political and armed struggle to decolonize the Moro homeland from the Philippine neo-colonial rule. Atty. Parcasio noted that Chairman Misuari, a political scientist at the University of the Philippines used the term decolonize and not secede. Armed struggle ensued during this time until in December 1976, the Republic of the Philippines entered into a contractual understanding with the MNLF to be known as the 1976 Tripoli Agreement. The object of the agreement was the delivery of autonomy to the Moros in the southern Philippines. In exchange, the Moros will recognize the territorial integrity and sovereignty of the Republic of the Philippines. The agreement was made with the active participation of the Quadripartite Ministerial Commission members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference.
The Tripoli Agreement provided for the creation of an autonomous region with a territory that will cover half of Mindanao. The region will comprise of 13 provinces: Basilan, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, South Cotabato, Sultan Kudarat, Sulu, Tawi-tawi, Zamboanga del Norte, Zamboanga del Sur, Palawan and all the cities and villages therein. It was also stipulated that a transitional mechanism called “Provisional Government” will be established immediately after the signing of the accord. The Provisional Government’s mandate would be to prepare for the elections of the legislative assembly in the territories of the autonomy and to administer the covered areas until a government is formed by the elected legislative assembly. There was also a provision that the Philippine Government shall take all necessary constitutional process for the implementation of the entire agreement.
But instead of establishing a provisional government, then President Ferdinand Marcos, on the basis of a referendum-plebiscite, issued Presidential Decree (PD) 1618 which created two autonomous regions namely Region IX and Region XII. The MNLF rejected PD 1618 because for them, it violated the Tripoli Agreement. The fighting recurred thereafter.
The creation of the ARMM and the shrinkage of the Bangsamoro homeland
During the term of President Corazon Aquino, the Congress of the Philippines under the 1986 Constitution passed Republic Act (RA) 6734 creating the Autonomous Region of Muslim Mindanao (ARMM). This legislative effort was once again rejected by the MNLF which maintained that it was not in conformity to the 1976 Tripoli Agreement. President Corazon Aquino admitted that RA 6734 was a unilateral initiative of the government to implement the said deal. The MNLF boycotted the plebiscite ratifying RA 6734 which was held in two autonomous regions (Region IX and Region XII) and in the provinces of Davao del Sur, South Cotabato and Palawan. After the plebiscite, the Bangsamoro homeland was reduced to four provinces, namely: Tawi-Tawi, Sulu, Lanao del Sur and Maguindanao.
President Fidel V. Ramos was able to revive the peace talks with the MNLF and this culminated in the 1996 Final Peace Agreement (FPA). The FPA constituted the mechanism for the full implementation of the previous Tripoli Agreement signed 20 years before. Atty. Parcasio recalled that immediately after the FPA was signed, peace and order in Mindanao was restored.
The FPA envisioned two phases of implementation. Phase I is a three-year transitional period which included the establishment of the Special Zone of Peace and Development (SZOPAD), the Southern Philippines Council for Peace and Development (SPCPD) and the Consultative Assembly. Phase 1 also entailed the integration of 1,500 MNLF fighters to the PNP and 5,750 fighters to the AFP.
However, Executive Order No. 371 issued in October 1996 by President Ramos omitted the stipulated control, and/or regulatory powers of the SPCPD over the government agencies operating within SZOPAD. Atty. Parcasio pointed out that despite SPCPD’s mandate and vital role in orchestrating peace and development efforts in the area, the government proceeded to negotiate with the Moro Islamic Liberation Front (MILF), without the knowledge and participation of the MNLF-led SPCPD. Moreover, in the 1998 general elections and local elections and even in the plebiscite in 2000, the SPCPD was not deputized to participate. This is, again in violation of the FPA provision that the SPCPD would be deputized by the COMELEC in the conduct of any electoral activity within the SZOPAD. The deterioration in the peace and order condition in the area, the all-out war policy of the government particularly during then President Joseph Estrada’s regime, the unabated criminal activities of lawless elements aggravated by the deliberate disregard of the SPCD’S role in the resolutions of these conflicts, further marginalized and rendered the SPCPD irrelevant.
Atty. Parcasio also highlighted that the “business as usual” attitude of the government in the preparations and enactment of the General Appropriation Acts from 1997 to 2001 up to the present resulted in the lack of/insufficient funding for projects intended for rehabilitation, reconstruction, reconciliation, social, economic and infrastructure projects. The projects implemented and the funds released in the SZOPAD during the three-year transitory period were regular funds for regular projects and programs which were to be implemented even if there was no Peace Agreement. The said projects were implemented by national agencies but not by the SPCPD.
The Amendment of the ARMM Law
The implementation of the second phase of the FPA called for a congressional act to legislate pertinent provisions of the agreement by amending RA 6734. In compliance with this requirement, RA 9054 was enacted on March 31, 2001 sans the signature of the President. Atty. Parcasio recalled that RA 9054 was passed in the Senate at a time when “nobody was looking”. While many have expressed objections to the bill, including the MNLF, they were drowned out by the political furor resulting from then Senate President Aquilino Pimentel’s resignation over the impeachment proceedings of former President Joseph Estrada.
The MNLF continued to question the legitimacy of RA 9054 because for them, it remained violative of the 1996 Final Peace Agreement. The amendment and the subsequent plebiscite ratifying RA 9054 added Basilan province to the area covered by the ARMM, but it still did not address the issue of the significant shrinkage of the Bangsamoro Homeland. Atty. Parcasio pointed out that this is the main reason why the MILF is proposing to include other Muslim-dominated geographical areas or areas adjacent or contiguous to the existing ARMM in the proposed Bangsamoro region.
Atty. Parcasio also mentioned that since the 1976 Tripoli Agreement and the 1996 FPA are still valid and binding agreements between the OIC, MNLF and the GRP, there is still an on-going Tripartite Implementation Review of the said accords which is being facilitated by the OIC Peace Committee for Southern Philippines (PCSP). The mandate of the Tripartite Review, aside from evaluating the implementation of the 1996 FPA, is to draft a law that will amend, revise, and supersede RA 9054, and one that is in conformity to the 1996 FPA. He relayed thatboth the GRP and the MNLF recognized that there are 46 defective provisions in RA 9054. They have reached consensus in almost all areas exceptin three major issues – a) territory and the areas that shall be covered by a plebiscite to ratify a new autonomy law; b) definition and sharing of strategic minerals; and c) transitional mechanism/provisional government.
According to Atty. Parcasio, it seems though that the Tripartite Review is left hanging and overtaken by the MILF-GRP-Malaysia track. He observed that when the government speaks with the MNLF, it acts as if it is not pursuing another peace track with another group. These two peace tracks, he said, will likely create complications. He relayed that in a recent forum that was held in Jeddah, the MILF pronounced that it shall respect the right of the MNLF to pursue the full implementation of the 1996 Peace Agreement and 1976 Tripoli Agreement, which means that even if a new law is approved and ratified, the MNLF will not stop demanding for the full implementation of previous treaty agreements.
The issue of strategic minerals
Atty. Parcasio also briefly discussed the two main contentious issues on strategic minerals. First is on the definition. Under the 1996 FPA, the MNLF and the GRP together with the technical experts of the OIC, will mutually agree on the definition of strategic mines and minerals. But the government acted unilaterally when it went on to identify strategic minerals in RA 9054 as covering all mines and minerals not considered strategic insofar as the MNLF is concerned.Moreover, while the 1996 FPA guarantees that the control and supervision over the exploration, exploitation, development, utilization and protection of minerals and natural resources in the area of autonomy shall be vested in the Regional Autonomous Government, RA 9054 limited the autonomous government’s jurisdiction over the same.
Section 5, Article XII of RA 9054 reads: “The control and supervision over the exploration, utilization, development, and protection of the mines and minerals and other natural resources within the autonomous region are hereby vested in the regional government in accordance with the Constitution and the pertinent provisions of this Organic Act except strategic minerals such as uranium, petroleum, and other fossil fuels, mineral oils, all sources of potential energy, as well as national reserves and aquatic parks, forest and watershed reservations already delimited by authority of the central government or national government and those that may be defined by an Act of Congress within one (1) year from the effectivity of this Organic Act." (Underscoring supplied)
Atty. Parcasio cited a recent issue wherein the Department of Justice in Opinion No. 19 dated 31 March 2014 stated that the ARMM Regional Government has no authority to issue mineral production sharing agreement on nickel. He said that the DOJ may have erred in this because nickel is not a strategic mineral and as such, is within the control and supervision of the autonomous regional government.
The second contentious issue on mines and minerals is on revenue sharing. Currently, fifty percent of the revenues, taxes or fees collected by the Bureau of Internal Revenue (BIR) and other national agencies from the use and development of the strategic minerals accrues to the central or national government. The other 50 percent is remitted to the autonomous region. Of the 50 percent, the regional government shall have 30; the provinces shall have 20; cities, 15; municipalities, 20; and barangays, 15. The MNLF’s position is that the regional government should be entitled to 70 percent of revenues on strategic minerals. And for the MNLF, strategic minerals are limited to uranium and imported minerals, as what they have negotiated for in the 1996 FPA.
Atty. Parcasio mentioned that there being an impasse on the issue on strategic minerals, there is at present, a compromise agreement between the national government and the MNLF on the sharing of revenues of strategic minerals, such that the strategic minerals shall be “co-managed in the interim before any law is passed on the matter. There shall be co-management on the strategic minerals such that the ARMM shall be in charge of the acceptance, processing, evaluation and assessment of application for permit to explore, utilization contracts, to impose administrative charges and fees while the central government shall retain the authority of approval of application for permit to explore and/or utilization contract duly recommended by the ARG. In the signing of contracts regarding exploration development of strategic minerals, the ARMM and the central government shall also be co- signatories. After an agreement is signed, the ARMM shall be tasked to be primarily responsible for the monitoring of compliance to the duly approved exploration permits and utilization contracts. The central government may at its option monitor compliance to the duly approved exploration permits and utilization.
In closing, Atty. Parcasio remarked that whatever was achieved and was gained by the Bangsamoro people in Republic Act 9054 and in previous treaties will hopefully not be reduced by any new law.
Areas of Autonomy in Muslim Mindanao: Implications on Governance
Atty. Anwar Malang
Atty. Anwar Malang, current Regional Secretary of the DILG-ARMM began his discussion by showing a map of the ARMM. At present, the ARMM covers a total of 33,511 square kilometers, inclusive of five provinces (Maguindanao, Lanao del Sur, Basilan, Sulu, and Tawi-tawi), two cities, and 116 municipalities and with a population of 3.2 million. According to him, twelve of these municipalities do not receive their Internal Revenue Allotment (IRA) because they are unable to meet the minimum requirements provided for in the Local Government Code (RA 7160), notwithstanding the fact that they conform with the requirements set forth in the Local Government Code of the ARMM or the Muslim Mindanao Autonomy Act 25. In addition, out of 2,490 barangays, around 50 do not receive their IRAs.
Challenges of Autonomy
Sec. Malang then went on to describe the governance challenges currently faced by the ARMM regional government. One is the proximity of the areas of autonomy and the cultural differences of the people within the autonomous region. These, however, were somehow overcome and resolved by the formal organization of the Moro fronts, namely the MILF and the MNLF. Nonetheless, the geography of the region still poses a problem with respect to communication, coordination, and monitoring.
Sec. Malang pointed out that the more serious problem though is the way the oversight agencies treat the ARMM, that as if there is no autonomous region. He cited for instance the LGUs in Basilan, Sulu and Tawi-Tawi (BaSulTa) which are being supervised by the DBM-Region IX while Maguindanao and Lanao by DBM-Region XII. Nationally funded programs implemented by the national government in the ARMM are also treated as if there is no autonomy. DWPH-Region X supervises national road projects in Lanao del Sur, DPWH-XII handles infrastructure projects in Maguindanao and DPWH-IX for projects in BaSulTa. The lack of clarity in the jurisdictional boundaries of the areas of the ARMM as well as the national administrative regions exacerbates this situation.
Another challenge is the practice of non-sharing of findings and reports by the Civil Service Commission, the Commission on Audit and other regulatory agencies to the ARMM regional government. As such, the latter cannot act on the said findings in the exercise of their supervisory powers.
There is also the matter of intergovernmental relations between the ARMM and the national government to consider. Under RA 9054, the President exercises general supervision over the regional governor. The law mandates that there be an Oversight Committee in the ARMM which will supervise the transfer of powers and functions of certain national government line agencies to the regional government. The Committee is to be headed by the Executive Secretary and composed of representatives from the Congress and the Executive department. Unfortunately, this Oversight Committee has not been functioning.
Moreover, LGU oversight and regulatory agencies are not devolved to the region. In effect, LGU policies related to it are still governed by national laws. However, these non-devolved agencies are expecting the regional government to ensure faithful LGU compliance as part of its devolved supervisory functions over them.
Sec. Malang then discussed the four classifications of ARMM agencies. These are:
1. Non-Devolved Agencies – These are national agencies operating in the region or have field office in the ARMM, i.e. COA-ARMM, CSC-ARMM, NSO-ARMM and etc. The relation of regional government over these agencies is limited to coordination and partnership.
2. Devolved but Nationally Funded agencies – These are devolved agencies but its financial requirements are subject to approval of national government (i.e. DILG-ARMM, DENR-ARMM, DPWH-ARMM and etc.) These are agencies under the direct supervision and control of regional government.
3. Locally created offices but nationally funded agencies – These are agencies required for operation of the region (i.e. Office of the Regional Treasureror ORT and Regional Planning and Development Officeor RPDO).
4. Locally created and locally funded offices – these are agencies found to be necessary in the operation of autonomy (i.e. Biosafety Clearing Houseor BCH; Coordinating and Development Office on Bangsamoro Youth Affairs or CDO-BYA; Bureau of Working Conditions or BWC; Regional Reconciliation and Unification Commission orRRUC and etc.)
He explains that the regional government, particularly the DILG-ARMM, has very limited control over its component LGUs because the ARMM does not have its own DBM, Civil Service Commission, Commission on Audit and Bureau of Local Government Finance or DOF. When national funds coming from the national government are transmitted to the LGUs, the regional government cannot monitor the LGUs’ budget and spending.
The ARMM’s fiscal dependence on the national government is also a critical constraint to autonomy. While some devolved agencies like the DILG and the Department of Environment and Natural Resources (DENR) are under the direct supervision and control of the regional government, the funding still comes from the national government. He cited as an example what is currently happening in the ARMM wherein the programs being implemented by the DILG-ARMM are only those that were downloaded by the national DILG. The DILG-ARMM does not have program funds that can be used to implement activities or projects that they deem necessary based on their ground work.
The way forward
In order to complete and implement a true and genuine devolution, Sec. Malang recommended the following:
(1) the LGU oversight and regulatory agencies should be completely devolved to the ARMM to empower the region to be fully responsible for the governance affairs of the region and the LGUs;
(2) the regional government should be empowered to prioritize, allocate, utilize its available resources to the critical development programs in the region;
(3) clear partnership and coordination mechanisms should be defined for the effective implementation of good governance policies by the national and the regional governments;
(4) transportation and communication systems in the region should be improved; and lastly
(5) the government structure of the autonomous region should be strengthened so that it can be responsive and functional in accordance with its needs. This may involve the merger of some agencies with similar and related functions.
Regional Territory and Mindanao
Ms. Amina Rasul
Amina Rasul is a peace and human rights advocate, and president of the non-governmental organization Philippine Center for Islam and Democracy (PCID). She started her presentation with the history of the Bangsamoro struggle. She narrated that when Islam arrived to the Philippines, it did not bring just faith. It brought civilization to a big area from Mindanao all the way up to Luzon. It brought the first political institution, the Sultanate. It brought a widespread educational system based on the Koran and that was the Islamic school or the Madrasah. It also brought the first institutionalized legal system based on the Koranic Law. This implies that there is a very strong civilization sovereign and this sovereignty was recognized by neighboring countries all the way to China.
When the Spaniards came, the Sultanates of Sulu, Maguindanao and Maranao were already existing as sovereign states as recognized by other countries. Because they cannot conquer the Moros, the Spaniards entered into treaties with the sultanates. Ms. Rasul emphasized that treaties are only entered into with sovereign states and not merely provinces. During the time of the American occupation, they were still not able to overwhelm the resistance of the Mujahidin who fought for their sovereignty and independence. This also resulted in a treatise entered with the sultanates in Mindanao. The last treaty signed with the Sultan of Sulu was the Bates Treaty and Jamalulu Kiram II agreed to accept the protection of the Americans but on condition that the US would not give or sell Sulu or any part of it to any other nations, among others. She also mentioned that there is actually even a debate among historians on what was really written in the said treaty. Scholars found the treaty to have translation flaws because the Americans and English wrote sovereignty but the said word was not used anywhere in the Tausug version.
Ms. Rasul remarked that land, sovereignty and independence epitomize the core of the Bangsamoro struggle, but this matter was complicated even further by economic and political marginalization.
Ms. Rasul then showed some demographic data in the Bangsamoro area. She narrated that in 1918, among the inhabitants of Mindanao, there were 49 percent Muslims, 29 percent Lumads, and 22 percent Christians. In 2010, 72 percent of the people in Mindanao are Christians, 20 percent are Muslims, and 8 percent are Lumads. Aside from demographic marginalization, the Muslims also suffer from underdevelopment. She said that there is a need to correct the notion of some people that the Muslims are solely to blame for their underdevelopment. She related that the Muslims in the Philippines were not always poor and underdeveloped. For instance, Sulu in the 1970s was ranked 37th in terms of the number of households with access to piped water and was comparable to that of Bataan and Pampanga while Lanao del Sur ranked higher at 28. But in 1990, Sulu and Lanao del Sur’s rankings plummeted to 52nd and 53rd respectively. Pampanga, on the other hand ranked 15th. The same is true with the data on access to electricity. In 1970, Sulu was ranked higher than Camiguin and Ilocos Sur but was ranked at the bottom by 1990. In 2004, the ARMM still ranks the lowest in terms of access to safe drinking water and electricity.
She explains that this deterioration can be largely attributed to the war in Mindanao as a result of the declaration of the Martial Law. She said that in order for the government to give strong justification to its declaration of Martial law, it had to prove that there was indeed a serious threat to the State. This justification was the secessionist movement in the South and the Communist threat in the North. The widespread operations against the secessionist movements all over Mindanao paved the way for towns to be bombed and infrastructures destroyed which caused capital flight. This capital flight further resulted in unemployment and eventually brain drain. Having this in mind, the citizens in the Bangsamoro region believed that this was done to them because they were “Moro” and which in turn bred the liberation movements. The region has not yet recovered since then. She emphasized that contrary to popular belief, the poverty and state of lawlessness in the ARMM is not self-inflicted but was the product of years of war and neglect.
Autonomy in Lieu of Independence
Despite accepting that autonomy is a good enough exchange to end the wars for independence, the ARMM is still not peaceful and remains the most conflict-affected region. However, researches made by groups such as the Asia Foundation show that most armed conflicts in Muslim Mindanao are not due to political reasons but are mainly driven by lawlessness and rido or clan wars. These clan wars result from the failure of law and order and a general lack of trust in the national judicial system. In other words, there is a failure of governance mechanisms.
Fiscal Matters in the ARMM
According to Ms. Rasul, the poor performance of the ARMM in human development indices can be partly attributed to the fiscal resources poured into the region. The five provinces of Muslim Mindanao are consistently found in the bottom 10 provinces and have the highest illiteracy rates. She cited for comparison CARAGA, an administrative region which received PhP10.10 billion in 2000 while the ARMM received only PhP9.2 billion. This, despite the former being a contiguous, less poor, and less conflict-ridden region than the ARMM.
Ms. Rasul also pointed out that the lack of complete and genuine devolution has resulted in the lack of administrative capability of the ARMM government. She said that while the range of government was given to the ARMM, there really was no secondment of civil servants. Aside from the delays in delegating specific administrative power to the ARMM, not much capability building was provided.
She also stressed the importance of the relationship issues between the regional government and the national government. For instance, a Bangsamoro Development Authority (BDA) has been organized from the time of President Gloria Macapagal Arroyo and it has spent the last three years putting together a development plan for the future Bangsamoro region. The BDA has been assisted by international organizations like the World Bank and the ADB so that the development plan that it has put together follows the concept and addresses the requirements of a development plan. She then asked what will the role of the current Mindanao Development Authority (MinDa) be when the BDA becomes a government agency like NEDA.
Ms. Rasul likewise underscored that certain powers need to be devolved so that the region will have genuine fiscal and political autonomy. She reiterated that the Constitution allows for a real autonomy for the Cordilleras and for the Bangsamoro. Scholars and eminent individuals such as former Chief Justice Davide have made presentations to the Congress that the Bangsamoro can be established without constitutional amendments. She added that policymakers should be reminded that a paper autonomy was not the intent of the Constitution. She drew attention to the latest survey of the Social Weather Station which shows that the opposition to the BBL is coming mostly from those who are outside Mindanao. Majority of those surveyed in Mindanao, those who are most affected by the ongoing conflict are for the passage of the BBL and she said that perhaps it is time to listen to their pleas.
Question: What are the positions of the MILF and the MNLF on the two separate peace tracks? Has there been a discussion on how they will impact the passage of the BBL?
Atty. Parcasio: In the recent meeting between the MNLF and the MILF held in Kuwait, the MNLF simply reciprocated the position that was taken by the MILF when the MNLF engaged the Philippines in peace talks in the early 1990s, that is, the MNLF will have no comment and that it will just allow the legal process to take its natural course. However, in that dialogue in the presence of the Organization of Islamic Conference, the MILF also committed to fully respect the right of the MNLF to pursue the full implementation of the entire gamut of the 1976 Tripoli Agreement and the 1996 Peace Agreement which include the coverage of the proposed autonomous region in Southern Philippines. As we have seen under these two international agreements, the autonomous region shall comprise half of Mindanao. So, granting there will be a new autonomy law, the OIC resolution is that it will demand or request that the Philippine government allow the full implementation of the 1996 Peace Agreement. Not just partially, but the entire agreement.
I have also informally furnished the Office of Senator Ferdinand Marcos Jr. a paper that I wrote but does not necessarily reflect the position of the entire MNLF. In that paper, I described how a convergence could be made between the MNLF track and the MILF track.They can converge in common areas, and these common areas shall comprise those where the MILF would want a new autonomy law while in those outside of the common areas, the MNLF shall continue to pursue the 1976 Tripoli Agreement.
Atty. Malang: Perhaps, we can analyze and reconcile the demands of the two fronts, the MNLF and the MILF. The presumption is that all of them are for autonomy. Is there a demand now by the MILF that is beyond the demand of the MNLF? Because if you try to analyze it, it is as if we are providing two tracks for the government to resolve just one main issue, which is autonomy for the Bangsamoro. So maybe we should ask, if we can comply with the demands of the MNLF, are we also satisfying the MILF?
Question: It is worthy to note that the previous leaders of the ARMM, which has been tagged as a failed experiment, are connected with, if not direct members of either the MNLF or MILF. Won’t there simply be a repeat of the same if the MILF, through the BBL, leads the new Bangsamoro entity? Research studies conducted by the Asia Foundation, International Alert, and UN groups state that the ARMM is a failed experiment due to the prevalence of corruption and the failure of the regional government to address smuggling and drugs. How do we prevent this from happening again with the BBL?
Atty. Malang: It would depend on the powers that will be given to the autonomous region in the future. Let us analyze why you are calling it a failed experiment. The lawlessness, as explained earlier, is because of the mistrust of the ordinary people in the system provided by the government. The people are not fully satisfied with the peace and autonomy that was given to them. Even on the matter of security, for instance, although the ARMM has a separate control over security in the area, there is the problem of overlapping and coordination of actions. With regard to smuggling, it is not only the failure of ARMM but also the national government’s as the control over our borders is a national concern. Also, as I have mentioned earlier, there are structural defects that we are currently facing in the ARMM. We do not have a regional DBM and BLGF which to me, are the most powerful agencies as far as local supervision is concerned.
Ms. Rasul: I always say this Republic has jailed two of its presidents and kicked out one. Should we now say that democracy is a failure and so we should opt for something else? No. We are a democratic system. We vow to the will of the majority and we work out the kinks. That is what Congress is here for so that we can come out with a stronger democratic system. And those of us in Muslim Mindanao take a look at what is going on in Luzon and Visayas, the ZTE deal, the Diosdado Macapagal Highway deal, and we take a look and compare the corruption facing us compared to the corruption that is happening in Muslim Mindanao which, by comparison, is petty theft. Why are you holding the ARMM, the poorest of the poor, has the lowest educational levels to a higher standard than you would Metro Manila?
The purpose of the Bangsamoro Basic Law is to strengthen the foundation for a democratic governance. The problem with the ARMM now is that not only do you have a defective plan but you don’t have enough people who can lead. And it is not just because we don’t have as much technical expertise as the rest of the country. It is also because some of our national leaders have chosen leaders for the ARMM not based on their capacity to lead but their capacity to deliver votes. Perhaps we should really take a look at this Bangsamoro Basic Law and use this as the opportunity to create a strong foundation and then put some trust in the people of the region that they can do what is best for them as long as the law will provide the necessary checks and balances.
Atty. Parcasio: Eighty percent (80%) of the reason why the ARMM is a failed experiment is attributable to the failure of the national government to fully implement the genuine autonomy envisioned both in R.A. 6734 and Republic Act 9054. For instance, in the ARMM, except presently at the time of Gov. Hataman, there was no Commission on Human Rights, no regional office of the GSIS, SSS, Pag-IBIG; no National Anti-Poverty Commission and National Commission for the Urban Poor offices. All of these are established in other administrative regions, except in the ARMM. In addition, there is no National Food Authority and National Irrigation Authority office. All the regions have a DBM and NEDA office, but not in the ARMM. There is also no regional Philippine Overseas Employment Agency (POEA) office despite the fact that the ARMM is the biggest contributor of overseas workers in the Middle East. And because there is no DFA office, people still have to flock to Davao to apply for passports…So how could you be at par with the rest of the administrative regions in the country? Until now, the ARMM still negotiates for devolution but to no avail.
Nur Misuari was a governor of the ARMM but he was a transitional governor. Why transitional? Because the ARMM at that time was not the autonomous government that was negotiated by the MNLF. He was there as a transitional governor which included the ARMM as the core of the transitional mechanism. Ironically, the so-called genuine autonomy never took place or was never established because during the time of Ramos, the regional law that was stipulated was not legislated. The zenith of Malacañang’s failure was when President Gloria Macapagal Arroyo chose a clan to rule the ARMM which resulted in the Maguindanao massacre. They allowed this clan to rule and transgress the rights of suffrage of the people in the ARMM.
So when the President said that the ARMM is a failed experiment, maybe 20 percent of that might be attributable to ARMM as a regional government, but 80 percent of that is because of neglect by national government or the refusal of national government to fully implement autonomy in the ARMM. Yes, we agree it is a failed experiment.
Question:What are yourthoughts on the apprehension that the opt-in provision will result in the creeping expansion of the Bangsamoro territory?
Ms. Rasul: We are a democratic country. If we wanted to lobby for independence, no one can stop us. They had it in the United Kingdom and Scotland lost. They had a plebiscite for independence in Canada, and it lost because everybody wanted to stay with the country. Weapons like that strengthen the desire of the state to govern well. It hones the apparatus of the state. If your stakeholders want to be together, then that may imply that they are happy with the state of the governance. So I think there is no problem with the opt-in provision. What is not alright is for people to go through armed warfare. And that is why this Bangsamoro Basic Law really needs to be a law that provides genuine autonomy. If true autonomy is not given, there will never be an end to the conflict. If people cannot govern themselves, then you have weaknesses that can be exploited. You take a look at the state of things as they are because if governance is strong nationwide, governance will also be strong in the weakest link which, right now is the autonomous region.
Question:The concern on the territory is not actually the opt-in provision but the percentage of residents for a plebiscite to take place. In the proposed BBL, the proportion is 10 percent which seems to be rather small and very far from the majority voice. How should we address this issue?
Ms. Rasul: I am part of the National Peace Council and the position that we take is that the Congress can discuss these issues so that an equitable solution can be found. But on the principle of it, you cannot just delete the opt-in provision, as proposed by some people. That will be undemocratic especially when you know that the Bangsamoro homeland used to be a huge expanse and is now only a small area, and that you are in effect not allowing the people to go back to their homeland. If the problem is in the 10 percent, certainly that is something that Congress should deliberate on.
Atty. Malang: It should be made clear thatthe 10 percent provision is for the people’s initiative. The petition still has to be approved by a majority of the votes cast in the plebiscite. Just like when we want to amend the Constitution, we are empowered by the Constitution to have a people’s initiative. Ultimately, Congress can increase the 10 percent if it wants to.
Question:What about the Peace Council’s finding that the opt-in provision is unconstitutional because Congress alone has the power to determine the territory of the Bangsamoro and that any changes that will establish the limits of the region requires specific acts of Congress?
Atty. Bacani: What they’re trying to point out there is that only Congress has the sole prerogative to call for a plebiscite. There are actually other issues being raised; for instance, on what will constitute a geographical area. The Constitution provides that the creation of the autonomous region shall be effective when approved by a majority of the votes cast in the plebiscite provided that only provinces, cities, and geographic areas voting favorably shall be included in the autonomous region. So if a certain municipality or a barangay wants to opt in, should the entire province undergo the plebiscite? If that province is inclined to veto it, then there will really be no chance for that municipality to be part of the Bangsamoro area. Senator Marcos has also correctly raised a valid concern that there might also be a confusion on which authority should a barangay follow in case it opts to be part of the Bangsamoro territory.
So yes, there are constitutional, legal and operational issues involved and I do not want to hazard a solution but again, as what we have learned here, we should look at the bigger picture and consider also the historical context, understand why there is such aspiration rather than take the provision out completely because that might not work with our goal of continuing the political reforms and the peace process.
We should also remember that even if we are not yet ready to include the opt-in provision in the BBL, we will still have to deal with the same issue in the Comprehensive Agreement on the Bangsamoro (CAB) that the government signed. So it is either we deal with it now, or deal with it later.
Question:Why is Palawan wary of becoming a part of the Bangsamoroterritory?
Atty. Bacani: Palawan is not contiguous to any of the core territories so that should not be a concern anymore because in the approved BBL draft in the House of Representatives, only areas contiguous or adjacent to the core Bangsamoro territory may opt to join the autonomous region upon a petition of 10 percent of the voters and approval in a plebiscite.
In the initial BBL draft, this could happen at any time, but the opt-in period was amended such that the process could take place only on the fifth and on the 10th year after the approval of the law.
The concern really is in the contiguous areas, and the fear is that the opt-in will be a source of instability with all the migration and the reconfigurations that will likely happen. That is why we have to address this and ask why people are fearful. Because in the end, maybe it is simply because of our biases and prejudices and what we need is simply an open-dialogue and more social cohesion.
Question:Is it not possible for both MNLF and the MILF to sit down with the GPH, work together and make the necessary amendments to the law which will address all their concerns? After all, both fronts profess the same thing which is genuine peace and autonomy.
Atty. Parcasio: There is actually a Bangsamoro Coordinating Forum that is being facilitated by the Organization of Islamic Conference and its purpose is to discuss issues affecting the Bangsamoro. Also, having knowledge about the MNLF’s draft, I already proposed a convergence insofar as the core territory is concerned.
Atty. Malang: Since time is insufficient and in less than a year the ARMM 2016 election will happen, my proposal is for Congress to pass some sort of a transitory law, postpone the 2016 election in the ARMM, select people from different sectors, from the MNLF, MILF and other stakeholders who will be immediately appointed upon assumption of the President-elect. This transitory body will be in place for three years, and will lay the groundwork for the Bangsamoro parliament.
In his synthesis, political analyst and LOGODEF Executive Director highlighted the importance of historicism and context in crafting a law such as the BBL. He noted the structural problems in the ARMM as discussed by Secretary Malang and the gaps identified by Atty. Rasul. He remarked that while history shows the marginalization of the Moro people, it will also show that despite this marginalization, they continue to struggle to be counted, in fact, to be recognized as Filipinos. He underscored the need to look at the current structures again and the relationship between the national and regional governments to determine whether the seeming discrimination is still there.
In parting, he mentioned some developments in the international scene: the terrorist group ISIS and the expansion of its territories, the possible exit of Greece from the Eurozone, and the Confederate flag flying in the state of South Carolina. He said these compel us to use our objective lens and be more level-headed so that we don’t find ourselves in the same predicament they are in.
The OIC Peace Committee for Southern Philippines (PCSP) (OIC-PCSP) is a body created by the OIC to oversee the implementation of the 1996 peace pact and is currently composed of Egypt, Indonesia, Malaysia, Saudi Arabia, Brunei Darussalam, Turkey, Pakistan, Libya, Senegal, Somalia, and Bangladesh.