Autonomy and Federalism as a Solution to the Mindanao Conflict

Written by Atty. Benedicto Bacani.

There are two kinds of autonomy envisioned by the Art. X of the Philippine Constitution. One refers to the administrative autonomy of local government units and the other is the political autonomy of autonomous regions in Muslim Mindanao and the Cordilleras. The Supreme Court in the 1990 case of Cordillera Broad Coalition vs. COA highlighted this distinction. In the case of Limbona vs. Mangelen (G.R. No. 80391, 28 February 1989, 170 SCRA 786, 794-795), the Supreme Court also made a distinction between two kinds of decentralization – the decentralization of the administrative powers to LGUs and decentralization of powers to the Autonomous Region in Muslim Mindanao (ARMM). Decentralization of powers which ARMM enjoys involves abdication by the national government of political power in favor of the autonomous region. In this case, the autonomous government is accountable not to the central authorities but to its constituency.

 Government Peace Panel chair Miriam Coronel-Ferrer (rightmost) and Moro Islamic Liberation Cront chief negotiator Mohagher Iqbal sign the Comprehensive Agreement on the Bangsamoro in a ceremony at the Malacañang Presidential Palace in Manila, Philippines on Thursday, March 27, 2014. AP, file

In a nutshell, Art. X provides for an autonomous region in Muslim Mindanao and the Cordilleras within the framework of the constitution and the national sovereignty as well as the territorial integrity of the Republic. It provides that the President shall exercise general supervision over the autonomous region to ensure that laws are faithfully executed. All powers, functions and responsibilities not granted by the Constitution or by law to the autonomous region shall be vested in the national Government. The Constitution provides that within its territorial jurisdiction and subject to the provision of the constitution and the national laws, the Organic Act of the autonomous shall provide for the legislative powers over: administrative organizations, creation of sources of revenues; ancestral domain and natural resources; personal, family and property relations; Regional urban and rural planning development; educational policies; Preservation and development of the cultural heritage; and such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

A survey of autonomy laws from the time of the President Marcos (B.P. Blg 20 and P.D. 1618), to President Aquino (Republic Act 6734), and finally under current President Arroyo (Republic Act 9054), indicates a pattern of slow but clear grant of greater powers to the Moro region. The autonomy laws during the Marcos regime basically devolved purely administrative powers to the two autonomous regions, but the decentralization envisioned in the Constitution, the Final Peace Agreement between the GRP and the MNL and R.A. 9054 involves of powers.

R.A. 9054 provides for the autonomous government to evolve its own system of governance. The autonomous government can restructure the regional government by enacting its own Administrative Code and Civil Service Law. It can evolve its system of choosing regional and local leaders, since only national elections are beyond its powers. It can develop a legal system based on the Shariah and develop the Madrasah educational system.

While the grant of political autonomy to the ARMM in Art. X was envisioned to respond to the demand for meaningful self-governance for the Muslims in Mindanao, the general consensus is that this brand of autonomy has failed to arrest the decades of restiveness that drives the Moro revolution. Instead, the ARMM in its present form and practice is widely perceived as Manila’s “tool for pacification” of Moro revolutionary groups, and “employment agency” for those who have been mainstreamed and a “milking cow” for the region’s leaders.

The region’s sorry economic, security, and social indicators have worsened the ARMM’s unsavory image. The region has the highest poverty incidence of 53.1% in 2003 compared with 30.4% for the country as a whole. In terms of literacy rate, ARMM is at the bottom, with 70.20% (simple literacy) and 62.90% (functional literacy), compared with the national literacy rate of 93.40% and 84.10% respectively. The ARMM remains as the Philippines’ most militarized region and the region with the most number of loose firearms.

In a recent study of the Institute for Autonomy and Governance, the causes for ARMM’s failure are summarized thus:

Absence of a clear and stable national policy to make Moro autonomy to work. Government policy against independence for the Moro people has been unchanging and consistent for decades. In contrast, the policy on Moro autonomy which is government’s antidote against secession lacks consistency, support and coherence in implementation. The national government changes policies through administrative transitions. Ramos’ all-out peace negotiations with Moro insurgent groups drastically changed to Estrada’s all-out war policy. President Arroyo flip-flops on her policy vis-à-vis the MILF by declaring war against them in one instance and bringing back the peace panels to the negotiating table. Her so-called holistic peace-building is widely criticized as heavily driven by the military on political expediency rather than on a long-term roadmap for peace in Mindanao, especially in the autonomous region.

The indifference of national officials to the task of making autonomy work is most evident in the devolution of powers to the ARMM. National agency officials pose all kinds of obstacles to the completion of the devolution process – citing various reasons, like lack of funds for technical working committees to meet. For instance, the Civil Service Commission objects to a regional civil service law that will infringe on its mandate as the central authority on all matters related to civil servants. The national Human Rights Commission questions the establishment of a regional Human Rights Commission that may potentially encroach on its mandate to investigate and monitor human rights violations. In cases where devolution has taken off, only personnel were actually devolved, while most programs and funds remained with national agencies.

For most national officials, ARMM’s autonomy means that the region should not depend on the national government for support and that it must pay for the price of autonomy, i.e. it must generate its own funds. Moreover, their attitude is that the national government’s subsidy to the autonomous government is a privilege, never a right. But successful autonomies are not made overnight. Compared to the autonomy regimes elsewhere, ARMM is still a baby that has to be nurtured to be self-sufficient. The three-year transition period and material, for the autonomous region to stand on its own. Besides, the national government was not able to provide the sufficient funding for the development of the SZOPAD during Phase I of FPA’s implementation. Much has been said about lack of capacities in the ARMM. Yet, it was the national government’s inability to provide livelihood for MNLF communities that made them all flock to the ARMM for jobs. Putting all the blame on the MNLF and the regional government for autonomy’s failures is a clear misapprehension of the real causes for ARMM’s lackluster record.

Moreover, the pervasive perception in Manila is that ARMM officials are so corrupt that, left alone, they will squander government funds. Thus, the national government has put restrictions on fund transfers. The provision in R.A. 9054 that gives the President power to withhold fund transfers to the region in the event the autonomous government fails to submit an accounting is a conditionality not found in the FPA. Clearly, it is the national government’s imperial tool to control the ARMM. If this “control” is indeed to ensure judicious use of funds in the autonomous region, then the national government could have simply “turned off the spigot” on corrupt officials of the region, whose hold to power is very much contingent on government’s patronage. To date, no regional official has been made to account by the national government for mishandling public funds. This makes plausible the argument that as long as regional officials toe the national government’s line and are able deliver votes for administration candidates during elections, it does not matter that they are corrupt, inefficient or ineffective. The greatest casualty in this scheme of things is ARMM’s political autonomy.

ARMM’s politics still very much tied up to Manila’s. As an offshoot of Manila’s pacification policy towards the Moro people, dominant regional politicians are affiliated with national political parties. Except for a few Islamic political parties that have not made any good showing in regional elections, no other influential regional political parties advocate the agenda for effective Moro self-governance. The region’s leaders are the “anointed ones” of the national government. As such, they will not assert the region’s autonomy at the expense of displeasing their Manila patrons. There is no image more pathetic than leaders of the autonomous region trooping to Manila many times over in a year to lobby with Congress and the Executive branch for funding. In this sense, the ARMM is less autonomous than the LGUs, which are entitled to automatic funding appropriations by the way of their Internal Revenue Allotments (IRA) as provided for in the Local Government Code of 1991.

Governance in the ARMM is generally described as feudal, inefficient and largely driven by the pursuit of personal and clan power. There seems to be no perceptible difference in the brand of governance of the MNLF and traditional/political leaders in the ARMM. First, the unabashed dependence and subservience to Manila’s patronage are hallmarks common in the MNLF’s leadership in the ARMM and the traditional leaders’ handling of local government affairs. Second, feudalism, inefficiency and unbridled corruption define both the MNLF’s stewardship of the ARMM and the traditional leaders’ control of local communities. Third, while much is expected from the MNLF in terms of instituting needed reforms, no “revolutionary measures” were in fact undertaken in the ARMM, which emboldened rather than challenged the traditional leaders’ drive to maintain the status quo.

What I have done so far is to establish that the ARMM, in principle and on paper, enjoys greater autonomy than LGUs but in practice, the attitudes and policies of our national and regional leaders have made the autonomous region less autonomous than LGUs and the most dependent political subdivision to the national government in the country. Let me now tackle the question on whether federalism offers a better deal than the current autonomy set-up in Mindanao.

Federalism has always been considered one of the sound political options to resolve the long-standing secessionist rebellion in the southern Philippines. MNLF and MILF leaders Nur Misuari and Salamat Hashim had publicly expressed their openness to explore federalism as a solution to the historical grievances of the Moro people. We assume among others the following: First, that federalism offers a higher degree of self-determination than mere administrative decentralization to LGUs and decentralization of powers on the autonomous regions. A federal Philippines in this case may be more responsive to the clamor of the Moro people for meaningful self-governance; Second, a Bangsamoro federal state vests control of natural resources including strategic minerals to the Moro People. Third, under the federal system, the Moro people can truly evolve their own system of education, internal security and social institutions including the Shariah. In the context of the demand of Moro revolutionary groups for self-determination and jurisdiction over their ancestral domain, the federal system undoubtedly holds more promise than the current unitary system.

In the current peace negotiations between the MILF and the Philippine government, the MILF’s response to government’s overture for federalism as a political template for sustainable peace and development in the southern Philippines was swift: First, Government cannot offer what it can’t deliver. Second, federalism as a solution to the Mindanao conflict must be a result of negotiations, not unilateral action of government.

It seems to me that when the MILF did not bite government’s overtures for the federalism as a political framework in the negotiations, it did not reject federal system per se. Instead, this indicated MILF’s deep mistrust of government’s ability to deliver on a commitment if one is made for the establishment of a Bangsamoro federal state. Secondly, the MILF is wary that a federal set-up which is not borne out of negotiations but by government’s unilateral action may negate or even derogate agreements in the negotiations.

Thus, looking at the issue of making federalism relevant to peace in Mindanao, it is important that we take into serious consideration the dynamics of the ongoing peace process. For federalist, the relevant question is whether or not we are correctly framing our arguments for a shift to a federal system as a way to resolve the Mindanao conflict. Are we grounding our arguments merely on conventional beliefs or on reasoned arguments that seriously appreciate the realities in Mindanao? Are we making our arguments out of textbooks and literatures or are we weaving our assertions with the current trends and developments including the ongoing peace talks?

The government and the MILF are hoping that they can sign a memorandum of agreement on ancestral domain before the ARMM elections in August. The memorandum of agreement shall contain the guiding principles on the following strands of ancestral domain: concept, territory, resources and governance. Once this MOA is signed, the parties will open formal talks on the comprehensive compact that will provide the modalities for implementing the principles in the MOA as well as agreements on security and rehabilitation of conflict-affected areas. To date, the negotiating panels have reached a consensus on the concept of ancestral domain. Under this agreement, the concept of ancestral domain includes the following elements: Bangsamoro as a birthright; Recognition of a Bangsamoro homeland; Ancestral domain held under claim of ownership by the Bangsamoro people since time immemorial to the presen; Ancestral territoriality: political dominance; Bangsamoro as “First Nations” and BJE as the authority over Moro ancestral domain.

Please note that at the core of the concept of ancestral domain is the Moro people’s assertion of “nationhood” that is distinct from the Filipino nation. This has great implications in our advocacy for a shift to a federal system. I may be wrong but my impression of the arguments so far advanced in support of our advocacy for federalism is that they are heavy on the assertions to decentralize powers from the center – that is Manila and increasing the ability of the propsed federal states to have control over their own resources and equalizing wealth sharing in the country. The argument that we are shifting to a federal system, in recognition of the Philippines being a state composed of different nations exemplified most strongly by the ancestral domain claims of the Moro people and other indigenous groups does not resonate as much as the economic, development and political grounds for the shift to a federal system.  

When we therefore advance the argument that federalism will resolve the Mindanao conflict, we should be ready to recognize the historical right of the Moro people and our Lumads to their own nationhood and homeland. This is quite risky at it is controversial. We have to understand the majority of Filipinos are so prejudiced to make this acknowledgement or they lack knowledge of the Mindanao issues to make an informed decision or simply do not care about the Mindanao conflict – an issue widely considered to be local and an issue that concerns only the Muslims and Manila government. I was talking about the Mindanao peace process and federalism in a forum in Dumaguete City and the response I got from the audience – if you can guess – not much. One even said that he thought all along that the Moro region is already an independent state. The point is in advocating for federalism as a solution to the Mindanao conflict, we have to be ready to accept the concept of Moro nationhood and homeland as well as to educate and convince others to do so. But we will be taking some risks here. For one, linking federalism to distinct nationhood feeds on the counter argument for going federal – that we are a step away from dismembering the Filipino nation. Up to what point are we willing to advocate for this distinct Moro nationhood without hurting the national advocacy for federalism?

Another agreement in the GRP-MILF talks is the scope of the Bangsamoro homeland. This homeland will cover the present ARMM – provinces of Maguindanao, Lanao del Sur, Sulu, Tawi-Tawi, Basilan and the cities of Marawi and Lamitan plus Moro-dominated areas that are contiguous to the ARMM in the provinces of Sultan Kudarat, Lanao Norte and Cotabato Province as well as Cotabato City and Isabela City subject to a plebiscite. The emerging formula is to clearly delineate the Moro territory in Mindanao. The implication to federalism is that in determination to federal states in Mindanao, the Bangsamoro federal state will already be an existing and clearly delineated political subdivision. We’ve heard of proposals to have one federal state for Mindanao, or three for the Bangsamoro – one for each of the three main ethnic groups. But once a negotiated settlement is signed, we have no choice but to contend with one federal state for the Bangsamoro that is clearly identified and delineated in the peace agreement.

The third strand in ancestral domain is resources. There remains to be an unresolved issue here particularly government’s acceptance that the Moro people can exercise ownership, control and jurisdiction over natural resources including strategic resources in their ancestral domain. The government continues to resist conceding this point because it clearly violates the regalian doctrine in the constitution. But it is in this issue of resources that there is convergence between federalism and the peace process. Under a federal system, federal states do have more control over their own resources and greater share of proceeds but jurisdiction and control of natural resources within their ancestral domain. They will be able to get this only if the constitution is amended for a shift to a federal system which will necessarily be asymmetric to accommodate greater powers over natural resource to the Bangsamoro federal state.

The fourth strand in ancestral domain is governance. There are unresolved issues here. One, whether the Moro people would be given the right of choice for independence in the future, two, whether they can enact their own basic law and three whether they can have their own system of internal security, civil service, court system etc. The MILF contends that without these rights, no real Moro self-determination is possible. Yet, again, this cannot be conceded to the Moro people without amending the Philippine constitution. The implications are risky for advocates of federalism. Will federal constitution give the right to secede to federal states? If the right of choice for independence is given to the Moro people, will the same right be enjoyed by other federal states? If federalists support a quasi-state for the Moro people, will it not hurt the national advocacy for federalism?

There is a consensus even in government that unless the constitution is amended, the demands of the MILF cannot be fully accommodated and a comprehensive pact will not be signed before the end of GMA’s term. There are two choices in charter change for Mindanao peace: First, amending the charter for shift to a federal system that will pave the way for the establishment of a Bangsamoro federal state that will have the powers and rights under the negotiated agreement and second, a piecemeal amendment to the constitution, particularly Art. X on the autonomous regions; exception to the regalian doctrine and qualification to the principle of separation of Church and state etc. Fr. Bernas calls the piece-meal amendments as surgical constitutional change which can be used to reformulate the powers given to the autonomous region or the formation of a federated state for Mindanao.

We can continue to advocate for federalism as a solution to the Mindanao conflict but when we come to the details of this assertion, there are potential pitfalls that may bring more harm than good in our search for sustainable formula for peace in Mindanao.

The federal constitution in the future must provide that the powers and rights already given to the Bangsamoro region through negotiated settlements, statutes and past constitutions must be respected except when the federal constitution provides for more powers and rights, in which case, the Bangsamoro region may enjoy these enhanced powers and rights. In order for federalism to be an effective catalyst for the resolution of the Mindanao conflict, it must not be impressed on the Moro people. In pushing for a shift to the federal system which is necessarily national in scope, the majority Filipinos must guard against imposing their will on the minority and in the process violate their right to self-determination. The Moro people and other indigenous groups must always be considered sui generis – a class on their own. Thus, a symmetric federal system that fails to recognize the distinctiveness of the minority may not catalyze peace but more conflicts in the future.

Atty. Benedicto Bacani is the Executive Director of Institute for Autonomy and Governance based in Cotabato City. The article is published in the Future of Local Autonomy: Decentralization and Federalism, edited by Alex Brillantes, Simeon Ilago and Raphael Montes. Copyright © 2009 by the Konrad Adenauer Stiftung and the Center for Local and Regional Governance, National College of Public Administration and Governance- University of the Philippines.