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IAG MAY - JUNE 2017

ISSN 2243-8173-17-03

Bangsamoro Right to
Self-Determination: Design
Policy Brief
Options Under a Federal Set-up
(First of a 2-part series)

Editor’s note: There are two commitments by President Rodrigo Duterte that will
have a long impact on Mindanao and the Bangsamoro. First is the implementation
of signed peace agreements. For the Bangsamoro this means the crafting
and passage of the BBL. Second is the push for federalism. In the overriding
commitment of the President to federalize the Philippines, it is always assumed
that there will be a Bangsamoro state, but its configuration is not discussed at all.
In reality, some options point only to a Bangsamoro autonomous region within
a Mindanao federal state instead of a separate Bangsamoro federal state. What
happens when the two commitments of the President meet? BTC Commissioner
Jose Lorena and Atty. Naguib Sinarimbo explore this nexus in this policy brief.

Accommodating Regional Self-determination in a Federal Set-up


Comm. Jose Lorena

The author previously served in the Office of the Presidential Adviser on the Peace
Process (OPAPP) and is now a member of the Bangsamoro Transition Commission
(BTC).

Introduction

T
he Philippines is an archipelago of three major islands: Luzon, Visayas,
Mindanao and Sulu. Administratively, it is structured into fifteen (15)
regions. The present Constitution, provided for an autonomous political
region in Muslim Mindanao and the Cordillera. Only the Autonomous Region in
Muslim Mindanao was constituted and made operational after the people in this

This Policy Brief is published bimonthly. Editor: Benedicto


R. Bacani. Associate Editor: Ramie P. Toledo. Lay-out Artist:
Omar Vicente D. Tadeja. Visit www.iag.org.ph. Follow IAG:
facebook.com/iag.org.ph and twitter/IAGorgph.
region voted yes in a plebiscite to it. The Cordillera failed to win its autonomy, as it failed to secure the
necessary votes in a plebiscite.

The country is a home of diverse ethnicities and cultural and regional affiliations and people of
various regions associate itself as Bangsa Ilocano, Bangsa Bikol, Bangsa Kapampangan, Bangsa Bisaya,
Bangsa Lumad and prominently Bangsa Moro. All these groups profess diverse cultural differences and
behavior but all longing to have their self-determination, while at the same time ascribing to participate
in the affairs of National Governance.

Historical Antecedents

Historically, before colonization, the country was politically structured as barangays (balangays)
with common security and economy actively developed into a confederation.

In the south and in some areas of the country, the coming of Islam induced these barangay
confederations to reconfigure itself into Sultanates. In Muslim/Moro areas in particular, four Major
Royal Houses of Sultanates emerged. These are the Sultanates of Sulu, Maguindanao and Buayan plus
the Pangatpong sa Ranao.

The coming of the Spaniards in 1521, brought about the start of colonization of the country into
an archipelago. The resultant effect of colonization and the corollary opposition to it by the confederation
of Sultanates had costly damaged the unity of the diverse ethnic and regional confederation and until
today permeated a “divide” among and between Filipinos and Moros. These divide had created scorn,
prejudice and animosity between and among peoples.

In the early 30s, the struggle for Philippine Independence was nurtured dominantly by the
people of the north while stirred opposition from the Muslim South. These oppositions are captured
in many documents, culminating with the March 18, 1934 “Pansalan Document” –a document literally
opposing the incorporation of Mindanao and Sulu from being part of the proposed Republic of the
Philippines.

Even before the grant of independence, some regions of the country had been governed
separately from the rest. A good example is the Canton of Negros.

INDEPENDENCE AND THE NOTION THAT COMES WITH IT

The Unitary Republic

The grant of Philippine independence in 1946 ushered in a unitary and centralized form of
government. The unitary and centralized government did not only give us –Isang Bayan (One Country),

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it enjoined the country to accept the notion of “Isang Bansa and Isang Diwa” (loosely translated as
one nation and one spirit); one sovereignty, indivisible; one AFP; one Police; one and worse still –
one fund.

If all these is not enough, starting in 1954, with efforts of centralized planning came to fold,
the development of the country followed the “core” (central) to periphery (outskirts or laylayan)
approach.

All these policies are incongruent to the cultural and regional aggrupation as political
experience of the Philippines rest before independence.

The development approach focuses on the development of the core and expects that in
time, the development of the core spreads to the peripheral region. The effect of this approach
leads to the concentration of population in the center, likewise, it exponentially developed the
Metro Region of Manila (or sometimes called Imperial Manila), way ahead than the rest of the
country. Consequently, it resulted in the creation of advanced region--the metro, in particular and
the lagged regions which composed most parts of the country.
Efforts at equalization, through decentralization and devolution had in the past been a major
attempt. The establishment of administrative regions and the identification of regional centers are
efforts at equalizing regional growth. The success of this effort mattered but it did not bring the gap
closer as political and fiscal policy continued to radiate from the imperial center.

Article X of the Constitution and the passage of RA 7160 or the Local Government Code is
another effort of generating faster growth for the region and local governments. The success of this
effort again is stymied by faulty devolution process as devolution truly emanates likewise from the
center.

REALITIES

For decades now, the Southern Philippines had been engulfed in a fratricidal conflict---a
conflict borne out of the Moro aspiration for the reacquisition and recognition of its identity (a
way of life); a denial for self-rule and participation in national governance. This quest for self-
determination although as articulation of all Moros, have genuinely been pursued and articulated
by the Moro Fronts. These articulation of interest are now captured in signed agreements, e.g.,
The Tripoli Agreement in 1976; The Final Peace Agreement of 1996; The Framework Agreement for
the Bangsamoro of 2012 and the Comprehensive Agreement on the Bangsamoro of 2014, among
others. These agreements all speak of internal self-determination in the form of self-rule within the
context of the Philippine territorial integrity and sovereignty as a viable alternative to independence.

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Partially, the agreements have been implemented with the organization of the Autonomous
Region in Muslim Mindanao pursuant to enabling legislation of Congress (RA 6734, as amended by RA
9054).

The current Autonomous Regional Government, while it may have some powers and resources,
did not at all captured the imagination of many Moros. As accordingly, it did not provide for a meaningful
autonomy that guarantees self-determination.

CONSTITUTIONAL AMENDMENT FOR FEDERALIZATION AND TERRITORIAL RECONFIGURATION

The country’s experience under a unitary and centralize government brought us to where we
are now--from the tiger of Asia, economically, to the whipping boy even within the ASEAN.

PROGRESSIVE AND TRANSFORMATIVE FEDERALISM

The time has come that we abandon the unitary/centralized form of government. For the past
decades since we became a Republic, the unitary, highly centralized government did not make us
well politically and economically. The unitary system ---a system imposed upon us by our colonizers,
transformed our confederations and sultanates which politically and economically are advancing to
a governance structure of dependence. This is specifically pronounced in the Moro areas where, our
local governments are dependent solely on Internal Revenue Allocation, abandoning in the process
their capacity to generate revenue locally from sources within.

Progressive and transformative Federalism simply means that federalization of the country
should first transform the regions from lagged to more advanced and progressive regions and bring
them closer in terms of economic and financial capacity to be more progressive regions even as we
start to break and federalize the country beginning with financially and economically capable regions.

It also means that the approach to federalization should be tiered and by phases.

As now advanced by some proponents of Federalism, the country can first federalized into
three (3) or four (4) area-based federal states, e.g., the Federal states of Mindanao, Visayas, Luzon
and Metro Manila. These then federalized states will be mandated to fast track simultaneously the
economic progress of the administrative regions or political regions within the federation by way of
devolving more powers and resources to them from the federal states, thus, transforming them into
semi-autonomous regions within the federal states. The period of transformation may vary depending
on the absorptive capacity and ingenuity of the region. Suffice it to state, that in the Constitution for
the Federalization of the country, the period within which re-federation can be done, should already be
defined.

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FEDERALISM AND THE BANGSAMORO

Federalism comes from the word “Foedus” which means covenant.

Federalism is intended to provide equal opportunities for all people and region. That said,
federalism is intended to allow equal opportunity and development for all region. To achieve this,
federalism is directed towards:

P = Power-Sharing
R = Resource-Sharing
R = Respect for all
D = Development for all

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Bangsamoro State in a Federal Philippines
Atty. Naguib Sinarimbo

A peace advocate, internal mediator and former executive secretary of the ARMM regional government,
Atty. Naguib Sinarimbo is a member of the Bangsamoro Study Group and a consultant on ARMM and
Bangsamoro issues. The following is a transcript of his presentation at the IAG roundtable discussion
in Davao City on 2 March 2017.

H
ow do we address the two major commitments of President Rodrigo Duterte of implementing
peace agreement in step with constitutional reforms a.k.a. federalism so we don’t operate in a
vacuum?

I situate this discussion in the context of the commitment of the president.

The struggle of the Bangsamoro for the right to self-determination has always been founded on
the assertion that there were independent Moro states prior to the birth of the Filipino state – whether
that birth is in 1898 or 1946. Centuries ago there have been Moro states independent of some other
states and had some relations with other states.

If you look at the timeline of Moro history, you will find that it preceded the Filipino state
centuries ago, and that the founding of the Sultanate of Sulu which is a proto-state of the Moro state
in 1405 predates any conception of a Filipino state in this republic.

What is unfortunate is how the event in 1898 created a problem not just for the Moro state
but for the Filipino state. When the Treaty of Paris was signed, wherein the Americans purchased
the Philippines from the Spaniards, part of the delineation in the territory included the unconquered
territories of the Sultanates of Sulu and Maguindanao. From that time on the Moros have been made
part of the imagined Philippine state.

In addressing the issue of federalism and the implementation of signed peace agreements, we
go back to the singular important question: what is the nature of the conflict in the South?

It has always been asserted that the Bangsamoro Question is a sovereignty-based conflict.
Therefore, resolving it would necessitate an examination of the concept of sovereignty and how
possibly can it be addressed in the current or future legal framework.

Sovereignty in political law is defined as supreme and uncontrollable power inherent in a state
by which the state is governed.

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But if you look at what sovereignty really is, there are two components:

1. internal sovereignty, which refers to the power of the state to control its domestic affairs
or the supreme power over everything within its territory, and

2. external sovereignty, more popularly known as independence, which is freedom from


external control.

We associate more often sovereignty as independence or the authority of the state to direct
its relations with other states, because that is the more visible expression of what’s sovereignty is
that we relate with other states. That’s where the association more often with independence.
In the Philippines, there is a concept/doctrine in which the Supreme Court often refers to when it
deals with issues on autonomy and governance and the nexus of how government controls policies
within the republic. That is the doctrine of indivisibility of sovereignty – that the power of the state
cannot be divided, cannot be given to any other entity – that it is exercised by one single, indivisible
entity. Often it is the national government, but in reality, in the Constitution, it is Congress because
it is the one that enacts laws and directs policies. And so if you look at what constitutes a state, it’s
easier to identify the four: people, territory, government, sovereignty.

Any grant of self-rule would be easier by simply identifying a group of people forming a
territory, forming a government. But it has always been difficult in this country, in this jurisdiction, to
grapple with the issue of sovereignty – what is the extent of power granted to any other government
at the sub-national level. Does it really mean division of sovereignty? Does it really imply delineation
of powers or a mere delegation of the powers? The two are poles apart in what it really means in
legal concept.

The Supreme Court has several rulings on what is the nature of autonomy or the grant
of power to sub-national entities such as local government units including the ARMM. It is also
important to remember that the original demand of liberation movements in the Philippines has
always been independence – from the time of the MIM of Datu Udtog Matalam to the MILF, it has
always been independence. Although the MILF’s proposition is couched in a different language,
looking at the documents it has signed, it has never renounced the idea of a pursuit of independence.
It is expressed in a different term – that we will respect the aspirations of the people for its right
to self-determination and that the movement is not in a position to negotiate the future political
arrangement of the Bangsamoro people. That in itself is couched in a language that for those who
are familiar with the kind of political arrangements that are possible in a negotiation, it sounds that
it is still independence.

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What is the simplest definition of federalism?

Federalism comes from a Latin word “foedus”, which means a covenant or compact. The
necessary implication of that is it is sacred, that it is an agreement between parties and it ought to be
respected.

The more important point of discussion for federalism is to look at the essential features of a
federal constitution. The first important feature is that there will be two tiers of government in a federal
setup, and that a written constitution with a clearer division of powers and which because it is deemed
to be a covenant, it cannot be changed unilaterally. Neither of the parties or tiers of government can
change the arrangement because it is entrenched in a constitution mutually agreed.

Another feature is there would be an umpire to resolve the disputes, necessarily because you
divided sovereignty or the exercise of powers between one entity and another entity, there would be
conflicts as to who has proper authority over certain subject matters. Often in federal states, it is the
federal court that becomes the umpire for resolving disputes between the two tiers of government.
There will be mechanism to facilitate intergovernmental relations.

To understand the context, it is important to look at the basic distinction between a federal
and a unitary system of government to understand how a federal setup would differ from what we
currently have – a unitary constitution.

A unitary constitution is generally defined as one with the habitual exercise of power by one
-- and I emphasize one national authority. Often it is called the national government. Even if there is
a grant of powers, it is merely by delegation. In law, if it is a delegated power, it can be taken back, it
can be amended, it can be superseded by the single national authority. It does not mean the absence
of subsidiary lawmaking bodies but it does mean they exist and can be abolished at the discretion of
the central government. Yes, there can be LGUs, autonomous regions. But these subsidiary lawmaking
bodies do not derive their power from any other document but from the delegation of that authority.

A federal constitution is different as the powers that are granted to provinces or federal states are
more secure as they are granted by the constitution, the supreme law of the land. There’s entrenchment
of the division between the two tiers of government, which is in the constitution. Neither of the parties
can withdraw what has been granted in the constitution.
A more visual presentation of how the power relations would look like is to look at this illustration:

You have a federal list that lists the powers of the federal states; state list, the powers of the
state and you have concurrent powers. Note that it is important that the federal list does not intersect
with the state list. Neither the state list intersects with the federal list. And so there is a clear delineation
of the powers. It is most unlikely that the powers exercised by the state would also be exercised by the

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federal government, or the power exercised by the federal government would be taken back by the
state government. It is a list that is divided clearly between the two tiers of government.

How a unitary setup would approximately look like in the case of the Philippines would be
this one:

One big circle, inside it are smaller circles that represent probably the autonomous region,
inside it are LGUs, or different LGUs all inside the national government, which means that whether
you expand or reduce the powers of the sub-national entities does not matter because they operate
within and therefore, it is limited by the national authority that defines the extent of the powers of
the sub-national entities and which can be taken back, amended or repealed.

If you look at the framework of power sharing and resource sharing in the CAB, the list
of powers and the exclusive designation of powers for the Bangsamoro, reserved powers for the
national government, and concurrent powers for some, it is closer to the illustration of a federal
setup because there is clear delineation of the powers of the parties.

If you look at the framework of the ARMM, note that it is closer to the unitary framework, where
everything is inside, that is reflected in Section 20 Article 10 of the Constitution, “… within its
territorial jurisdiction subject to the provisions of this Constitution and national laws.”

That’s the operative phrase. The laws are the existing laws, and more importantly, future laws
that the legislature may enact. Even if I grant you all the powers in the world provided that I retain
that provision, I do not actually grant you any power. It will end up amended by the Constitution or
restricted by the laws the legislature has already enacted or yet to enact.

That’s the challenge in the autonomous region. It reflects more accurately the conception of
a unitary state where you have a single national government and you can have sub-national entities
within the exercising authority by virtue of delegation.

In the CAB and the BBL, if you look at the listing of powers, the lists do not intersect between
the exclusive and the reserved, unless you move the power toward the concurrent powers, which is
not the idea of the CAB.

The CAB framework therefore cannot be anything but federal. The definition in the power
sharing agreement: reserved, exclusive, concurrent. There has been delineation of powers, not just
delegation.

We need to understand also the evolution of jurisprudence that defines the kind of self-rule
or self-determination that exists under a unitary setup. For instance, in Limbona v Mangelin[1], the

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earliest ruling of the Supreme Court on autonomy of the autonomous region, it’s clear that what has
been given is actually administrative decentralization and not political decentralization. That means
sovereignty still resides in one single, indivisible entity in Manila.

Sema v Dilangalen[2] meanwhile is a clear case of a grant of power to the autonomous region to
create provinces, cities and municipalities. But when the ARMM created a province, the Supreme Court
struck down the legislation as not within the powers of the autonomous region. The ruling in that case
is indicative of the kind of autonomy and the degree of self-rule granted to the autonomous region.

The latest ruling, Kida v Senate[3], or the ruling in RA 10153[4], is even more disturbing because
in this case the Supreme Court said the autonomy granted to the autonomous region is subject not just
to national laws but even to national policies. And so we go back again to the very idea of indivisibility
of sovereignty.
This kind of jurisprudence would define the kind of ruling expected of the Supreme Court if cases of this
nature will reach it with respect to the implementation of the CAB.
What are the existing proposals?

Sen. Aquilino “Nene” Pimentel Jr. proposes 11 states, including a Bangsamoro state. It is given
that there would be one Bangsamoro state. The creation of a Bangsamoro state in the federal setup is
also in the Abueva proposal.

Imagine if there has to be a federal Philippines, there has to be a Bangsamoro state, simply
because if it is about addressing a sovereignty-based question, then the answer is to divide the
indivisible sovereignty established in the unitary constitution of the country. There is no other way
by which you can restore the lost sovereignty of the Moro state without dividing the sovereignty and
that is through creation of a constitution that clearly divides the sovereignty of the Philippine state and
restores the sovereignty of the Moro state.

It is also important to understand that it would be difficult to fully implement the peace
agreements that the GPH signed with the MILF without amending the Constitution. The other way
we’ve tried in the original BBL to do it is to create new facts that would probably alter the jurisprudence
in this country, which is why, if you look at the original draft of the BBL, the ad hoc chair then said there
are badges of statehood in the draft BBL that need to be removed. We needed to create new facts of
what would be the basis of a re-interpretation of the jurisprudence in this country about autonomy
because without doing that, you revert to the consistent ruling of the Supreme Court on the nature of
autonomy. If those facts are not present in the BBL then you would expect the Supreme Court to adopt
the ruling in Kida v Senate, or worse, the ruling in Limbona v Mangelin. You can’t change it unless you
put in something the Supreme Court will have an occasion to re-appreciate its jurisprudence. That is

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why there is an important intersection of hope to implement the peace agreement and at the same
time to reform the Constitution so that once and for all, we resolve the issue of sovereignty and the
sovereignty-based Bangsamoro Question.
________________________________________
[1] G.R. No. 80391, 28 February 1989
[2] G.R. No. 177597, 16 July 2008
[3] G.R. No. 196271, 18 October 2011
[4] An Act Providing for the Synchronization of the Elections in the ARMM with the National and
Local Elections

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Shaping
Public Policy
for Peace and
Good Governance
The Institute for Autonomy and Governance (IAG) is an independent and non-
partisan think tank founded in 2001 to generate ideas on making autonomy an
effective vehicle for peace and development in the Southern Philippines. IAG
is an institutional partner of the Konrad Adenauer Stiftung in the Philippines.

KAS is in 5th floor, Cambridge Center Building, 108 Tordesillas Corner Gallardo
Street, Salcedo Village, Makati City, Metro Manila, Philippines, telephone 894-
3737.

Institute for
Autonomy and
Governance
Notre Dame University, Notre
Dame Avenue, Cotabato City,
Telefax (064)557 - 1638.

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