CRUCIBLE: Sovereignty versus Sub-State

PASAY CITY (MindaNews/ 23 Feb) — It is an honor to be given the opportunity to share my view in today’s Joint Committee hearing of the Senate on the Bangsamoro Basic Law (BBL). In the invitation’s guideline provided by the Senate Joint Committee, resource person is requested to take affirmative or negative position relative to the draft BBL while given four topics to choose from and identify one topic as a focus of discussion. The four topics are: (1). Legislation v. Constitutional Change; (2). Checks and Balances in National Government v. None in BBL; (3). Sovereignty v. Sub-State; and, (4).Territorial Integrity vs. Functional Division.

I would like to discuss Number 3 “Sovereignty v. Sub-State” with emphasis on the latter (i.e., sub-state) in the context of Philippine experience in Mindanao and the Sulu Archipelago.

Last Monday (Jan. 26), the chair of the Philippine panel on the GPH-MILF peace process exhorted this august body to consider the broad and dynamic field of Political Science – not solely the legal construction of Philippine Constitutional Law – as a prism in understanding the BBL, its nature, and the vision it purports to entrench known as the Bangsamoro Political Entity.

If I may interpret the tone of argument of GPH Peace Panel Chair/Prof. Miriam Coronel-Ferrer, she is almost making a plea for Congress to use a broader and dynamic scale in weighing the merits (or demerits) of the BBL. It is a scale that is able to harness the tools of political and legal concepts, theories and principles relative to today’s trend of sub-national level governance discourses and development in many parts of the world. One of the recent works on this subject is Markku Suksi’s “Sub-State Governance Through Territorial Autonomy: A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (2011).”

If I quote Ferrer’s plea and the work of Suksi, it does not mean that I conspire with her in pushing for particular perspective on the issue of sub-state and its cases as articulated quite comprehensively by Markku Suksi. Although we are friends with Prof. Ferrer, we hardly talk or share views as she is too absorbed with her position as Peace Chair, given the fact, too, that I do not wholly toe the line Office of Presidential Assistant on the Peace Process’ (OPAPP) issues relative to strategic questions of the peace process. It is just that Suksi’s work is readily available in the Internet where any student of Political Science, Public Administration and Political and Constitutional Law could easily read.

But there is another scale that I would like to add as part of a weighing instrument to assess the BBL and its sub-state proposal. It is the scale of history. Perhaps, the field of history (particularly Filipino/Moro history) would provide a comprehensive frame together with Constitutional Law and Political Science for our understanding of the issue at hand.

The logic in using these three instruments of weighing scale as tools in assessing the draft BBL is obviously to make our judgment dynamic and creative while aware of the longue durée surrounding the political dynamics of Constitutional interpretation for, without stating the obvious, even the fundamental law of the land is historically constituted. This means providing us a bigger canvas as we paint our thought about an issue of supreme importance.

To begin with, allow me to express (and this is not to raise myself). Like many others, we have followed quite persistently the issue of Mindanao peace process these past several years. In 2000, the year when peace talks between the Estrada Administration and the Moro Islamic Liberation Front (MILF) was in tatter, I published in the Diliman Review a paper entitled: “Tier-Making and Tier-Changing in Mindanao and the Sulu Archipelago (2000).”

In that paper, I explored the puzzle regarding the instability of national-local relation between the Philippine government and Moro areas and the futility of what I refer to as tier-making and tier-changing approach that come in the form of military, political, and administrative units that were created yet abolished as another one was created and later abolished and so on and so forth.

So that, the trend of creating and abolishing tiers continued since the American colonial period until the expansion of the Autonomous Region in Muslim Mindanao in 2001, and possibly, until the entrenchment of the Bangsamoro in 2016. This is not to include small and sometime ad hoc tiers or offices including proposals that were promised by the Philippine government to Moro fronts that were never materialized.

For historical appraisal, it is worthy to remember that there were nine (9) tiers or military, administrative and ad hoc units in Mindanao and the Sulu Archipelago that were created and eventually abolished successively during the American colonial period. Some of these were: Military District of Mindanao and Jolo (created in 1899), Moro Province (created in 1903), Office of Commissioner for Mindanao and Sulu (created in 1937), and few others.

During the Philippine administrations, there were fourteen (14) tiers created and abolished successively starting with Commission on National Integration (created in 1957), and many others like Mindanao Development Authority (MDA), Ministry of Muslim Affairs (MMA), Southern Philippine Development Authority (SPDA), Autonomous Region in Muslim Mindanao (ARMM), Southern Philippine Council on Peace and Development (SPCPD), Expanded ARMM, Maglanco-Socsargen Council (Government proposal in 1999), until the Bangsamoro Juridical Entity (BJE), a political arrangement in MoA-AD in 2008.

So that, if we count the number of tiers created and abolished successively since the American period until these days including the present ARMM and the proposed Bangsamoro in 2016, there were/are already twenty-four (24) tiers, units or entities. In this regard, it was not surprising when Malacanang declared three or four years ago that the ARMM is a “failed political experiment.” Truth is Mindanao and the Sulu Archipelago had been subjected to continuing political experiments for 117 years if we include the critical year of 2016.

Before I present my conclusion as to why Mindanao and the Sulu Archipelago is subjected to this morass of tier-making and tier-changing as I would argue that the subject of sub-state presents a relatively new mode of tier-making with its attendant politics with the national government and its tendency, as feared by many, in becoming a gateway for secession, I would like to note another paper that I wrote when the GMA (Gloria Macapagal-Arroyo) administration was in its twilight year after being bruised heavily due to bungled Memorandum of Agreement on Ancestral Domain (MoA-AD) in 2008 and the Maguindanao Massacre in 2009. It is entitled: “The Philippines and the Bangsamoro Polity: Breaking the Sisyphean Ordeal (2012).”

Here, with added but unimplemented tier called the BJE while increasing the number of political experiments in the south, I articulated my frustration after years of peace process during the GMA Administration with the government and MILF only to end up slugging it out once again. I thought the metaphor of Sisyphus fits in explaining the morass wherein whenever the peace process is about to reach the peak of a mountain, the weight of its load becomes too heavy that it could cascade uselessly rendering all peace efforts and other peace dividends for naught; so that, it would take succeeding Philippine administrations to take the cudgel by rolling up the stone of the peace process once again.

In today’s presentation, I raise two questions: What explains the continuing tier-making and tier-changing in Mindanao and the Sulu Archipelago? Could the sub-state project contemplated in the BBL break the cycle and stabilize Philippine intergovernmental relation in Mindanao and the Sulu Archipelago?

These questions entail much time to discuss and elaborate. For brevity, let me quote the first paper mentioned above:

“The main source of instability is anchored on a century of unresolved contestation over the political status of Mindanao and Sulu. Moreover, the colonial mixture of Philippine political system that failed to address the “power vacuum” in Mindanao and Sulu reinforces intergovernmental instability. The unitary set-up of the Philippine government was a legacy of Spain… Yet, the set-up was institutionalized by the “Philippine Commission to facilitate the extension of American sovereignty to the Philippines” including Mindanao and Sulu. The separation of powers (executive, legislative, and judiciary) was copied from the US. The unitary set-up defines the “vertical” division of powers (structure of government) between the national government and local government units while the “horizontal” separation of powers defines the form of government (e.g., presidential or parliamentary).

In all indications, the colonial-political mixture is what creates a disjuncture between the “horizontal” and “vertical” relation of powers because, from the point of view of governance, a unitary set- up requires a relatively homogenous society while an effective application of separation of powers presupposes a stable system of democracy… As a consequence, it emboldened inter-governmental problem and rendered futile the national government effort of tier- making and tier-changing and further worsened the “power vacuum” in southern Philippines (Diliman Review 2000).”

Despite my rather grim view about the relation of the Philippine government vis-à-vis the Bangsamoro in terms of gaps especially their historically asymmetrical intergovernmental positions ever since, I thought the concept of sub-state provides an option where the two fundamental basis of power in a democratic system of polity (i.e., separation of power; and, division of power) could be adjusted in such a way that while the former is made to share power horizontally (e.g., concurrent, exclusive powers) with the Bangsamoro, “structural relation of power” (i.e., division of power in terms of national-local relation) must also be adjusted from previously strong-executive type to strong-legislature kind (e.g., parliamentary, ministerial form) to allow the latter to have a sub-government that does not necessarily have the power of national government relative to the first fundamental source or arrangement of power (i.e., separation of power), but which is able to have enough power under the division of power (i.e., vertical power) that reflects partly a federal form of government but which still enjoys an autonomous character under a unitary set-up of government as in the  case of the Philippines.

As a clarification, this notion of sub-state reflects Suksi’s definition as that political space of “organizational options which include federalism with its ‘intermediate’ state-level entities, normally distributed over the entire sovereign territory, and also a variety of different territorial autonomy arrangements (2011:1).”

According to Suksi, “both federal solutions and autonomy arrangements are used to accomplish the same thing, to bring about the creation of public authority of a devolved nature for territorially circumscribed entities at the sub- state level.”

Suksi’s notion of public authority “is normally the power to make laws, that is, the legislative power or the law-making competence, managed through institutions of self-government.”

The need to have such an adjustment from strong executive to strong legislature is in consonance with the essentially and historically asymmetric power relation of the Moros that even the Americans recognized when they organized the Moro Province in 1903.

Although the Legislative Council of the Moro Province which was composed obviously of Moros from different districts and tribal wards was not as powerful, the explicit recognition of the US for such legislature to co-exist with a Governor under the Insular Government (headed by Governor General and Philippine Commission) proves America’s respect on Moro asymmetrical relation during the US colonial administration in the Philippines.

Moreover, the dispersal of power under a unitary set-up by simply touching on the powers of national government under the separation of power principle or the traditional strong executive approach without adjusting the corollary structure of division of power (e.g., powers in nation-local relation) assumes a symmetrical relation between the national government and the Moros, which, in my view, is responsible in the cycle of tier-making and tier-changing in Mindanao and the Sulu Archipelago.

Understandably, and from the perspective of the State, the traditional approach of power dispersal through autonomy using strong-executive approach is favorable to the national government in terms of maintaining national power down the line. However, such an approach rests on the assumption that local areas are relatively homogenous and fully integrated with the national community. But given the political and cultural distinction of Moro society honed by separate history different from Philippine history, then the autonomous, integrative and strong executive approach of power relation is inappropriate as it continuously creates political disjuncture in national-location relation between the two communities (Filipinos and Moros).

If such an approach of unitary, strong-executive type is made to persist, it perpetuates patron-client relationship as local or regional executives in Moro areas are usually forced to kowtow to the national government particularly the Executive while rendering local or regional legislature weak and generally underutilized where local executives acting as alter ego of the President dominates local and regional political system.

In this regard, the notion of autonomy and decentralization loses its essential meaning as the fundamental function of the government including the function of legislation in sub-national level that supposedly operates part of the separation of powers (like rule-making, rule–implementing) fails to fully operate. What happens on the ground thus is a persistence of pseudo democratic sub-polity with institutions and processes undermined by patronage politics, warlordism, and so on.

For sure, patronage system, political dynasties and political bossism are prevalent not only in the south but the whole country as a whole. I would contend though that due to depth of political and cultural asymmetry between Moro society and national community, there is both qualitative and quantitative difference of patron-client relation affecting thus the working of intergovernmental condition in the area.

In this regard, there is a need to adjust the fulcrum of separation of powers structure (horizontal) with the division of power relation (vertical) away from strong-executive type to strong-legislature in mid-tier or regional level where check and balances are made to operate not in traditional presidential form where the three branches of government are conceived to be independent and co-equal but along parliamentary arrangement where the parliament as legislature minus the judiciary co-exists with Executive headed by the Prime Minister or Chief Minister for that matter. The rationale of having strong-legislature like a parliament is for real autonomy to be fully realized in regional or local level.

The Constitutional question thus is: Can a State with unitary structure and presidential form of government accommodate a tier or “sub-state” that carries a strong-legislature feature generally understood as parliamentary or ministerial form of government?

I would leave this question for our Constitutional lawyers to argue. My end at this juncture is to articulate the impact of power dispersal through traditional mode of autonomy using strong-executive approach without making adjustment in the fulcrum of power relation on both separation and division of power that often results in the instability of political and administrative tiers between national government and regional and local government as shown vividly in continuing political experiments in Moro areas.

But if I may express my 25 cents’ worth of view on this matter, Art. 10 Section 15 of the Philippine Constitution provides the creation of autonomous region with Section 18 underscoring the need to “define basic structure of government for the region consisting of the executive department and legislative assembly” without identifying specific structure and form of government whether unitary or federal and whether presidential or parliamentary. In my humble opinion, such a non-committal on structure and form of government in the autonomous region by the 1987 Philippine Constitution provides a space for “Constitutional flexibility” that could be viewed or used as a way out to get rid the morass of political experiments in Moro areas.

By the way, it must be noted that the long political experiment did not only hamper autonomy and democratization in the south; it practically exhausted national resources burdening thus the State almost perpetually. Traditionally, the national impulse is to lay the blame on the Moros with their doggedness and tenacity in pursuing their right to self-determination. But as Moro fronts like the MILF begins to redefine self-determination generally in its internal dimension not its external aspects, the government should also be ready to make corresponding re-calibration beyond traditional approach of autonomy.

At this point, I would like to leave this major Constitutional question and address the fear of some that the BBL may serve as a gateway for secession of the Bangsamoro.

Agreeably, this fear is not necessarily unfounded. The draft BBL is not simply a political or legal document. The BBL is a vision of possibilities whose tendency could tread in many ways.

One of the possibilities may be captured with this question: Given that the fulcrum of power in the Bangsamoro contemplated in the BBL would change from the Executive (headed by the Regional Governor) to the Parliament which, with some surety, could evolve into difficulty for the President to control its 60 members, what if the Bangsamoro Parliament becomes too nationalistic in its orientation and too demanding or protective of its power while unyielding with its position where the situation could possibly reach a point where there would be polarization of positions between the National Government and the Bangsamoro Government?

While the BBL provides that the supervisory power of the President overarches on various Bangsamoro political and military entities with the attendant intergovernmental bodies, Congress-Bangsamoro Parliament Forum and sub-constitutional bodies as venues to resolve possible tension between the National Government and the Bangsamoro, I would say, in fact, I should be frank, these are not enough to ward off possibility of Moros’ growing appetite for secession through the Bangsamoro Government. Like any politics, the Bangsamoro politics, by that time remains a terrain of possibilities. But for us to fail to distinguish a phantom or ghost out of such possibilities as if they are real would be to grip us in fear before we realize that, on its flipside, the BBL can be viewed too as a key in addressing in a rather different way the political experiments in Mindanao and the Sulu Archipelago.

At this point, what I would like to point out in order to avoid the risk of polarization mentioned is to raise a basic postulate that may be captured with what I indigenously call a “tambusah” or knapsack metaphor. It is akin to a natural law or common sense that as one increases the load of power unto a bag, it is necessary to strengthen the ties that bind so they won’t snap altogether.

In other words to avoid the Bangsamoro in becoming a gateway for secession, the process of power dispersal distributed along the division of power structure must correspondingly be countered not simply through the President’s power of supervision and the various intergovernmental bodies as such bodies could also be “politicized” when rough comes to shove. Moros should be able to identify with the national aspiration through ample representation in major branches of government as these remain the critical sources of power that determine the working of separation of power principle.

This way the fundamental basis or structure of national power is fully utilized not simply as source of empowering the Bangsamoro with optimum potential of autonomy called sub-state extended to them but as a guarantee in making them glued to the Republic and thus ascertaining the country’s territorial integrity remains intact.

Finally, as the BBL is faced with serious challenge with the so-called Fallen 44 tragedy in Mamasapano, Maguindanao (on January 25), the onus is with the MILF and the whole branches of government including the legislators.

Like Sisyphus, they face the grand task to roll up the BBL stone even more doggedly; and, with precious time ticking out, they could not afford to succumb to despair and helplessness, as they are just a distance away the mountaintop.

[MindaViews is opinion section of MindaNews. A paper presented during the Joint Committee Hearing on the Bangsamoro Basic Law held at Recto and Laurel Rooms, 2/F, Senate Building, Roxas Boulevard, Pasay City on 02 February 2015. A condensed version has been published in the Philippine Daily Inquirer on 22 February 2015. The author is Dean of the Institute of Islamic Studies, University of the Philippines].