DEAN BENEDICTO BACANI

Fundamental issues on intergovernmental relations

 

ATTY. RASOL MITMUG

Concepts and frameworks of peace building, decentralization, devolution, autonomy, and intergovernmental relations: the ARMM experience

 

PROF. EDMUND TAYAO

Understanding the significance of intergovernmental relations and the Bangsamoro initiative

The Muslim Mindanao Autonomy Roundtable Discussion Series, which ran from June to September 2015 at the Senate of the Philippines, was conducted by the Institute for Autonomy and Governance with support from UNDP Philippines, and in association with the Senate Economic Planning Office (SEPO), Local Government Development Foundation (LOGODEF), and Senate Muslim Advocates for Peace and Progress (SMAPP). In 2016, IAG collaborated again with UNDP Philippines to expand the discourse, this time in both houses of Congress, on Muslim Mindanao autonomy vis-a-vis the proposed shift by the Duterte administration to a federal set-up. The policy reports from this series can be read here.

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Speakers

 

Dean Benedicto Bacani

Executive Director, IAG

 

Prof. Edmund Tayao

Executive Director, LOGODEF

 

Atty. Rasol Mitmug

Chief of Staff, ARMM

 

Dr. Chetan Kumar

Governance and Peace Building Advisor, UNDP

 

View presentations

 

Dean Benedicto Bacani clearly pointed out at the beginning of the first RTD that this is a non-partisan academic discussion of the context, history, and frameworks of autonomy in Muslim Mindanao and of the various provisions of the proposed Bangsamoro Basic Law (BBL).

 

The first RTD focused on the concepts and frameworks of peace building, autonomy, decentralization, and intergovernmental relations. Resource speakers shared the international and Philippine experiences on autonomy and how its concept has evolved over time.

 

Dr. Chetan Kumar, Governance and Peace Building Advisor of the UNDP, made the first presentation on international experience of peace building, decentralization, autonomy and intergovernmental relations. He cited the experience of India which, similar to the Philippines, is a unitary state but with 29 ethno-linguistic states, one-third of which were created as a result of armed movements or insurgencies with 13 full-fledged armed insurgencies suggesting independence. An example of which was the split of a large state with a population bigger than the Philippines, only after 20 years of armed struggle for autonomy.

 

He identified three main challenges that India faced. First is the legitimate demand for expression of identity or the right to autonomy by ethno-linguistic groups; second, the administrative operational relationship between the national, regional, and the local governments; and, third, the actual management of land and natural resources specifically on national standards for sustainable environment-friendly use of resources.

 

The approaches utilized by India in addressing these challenges were: (1) putting upfront the issues of identity as part of the deliberation of the Indian parliament in the creation of new states; (2) maintaining a balance between national, regional and local powers specifically with the national government promoting peace and unity of the country, the regional government holding substantial and meaningful autonomy, and ensuring the empowerment of local government units.

 

Kumar made mention of the accountability framework for the three government bodies. The framework should be agreed upon upfront with periodic reviews done jointly by national and local bodies to ensure shared accountability. However, according to Kumar, the issue of recourse crops up when local government bodies feel an undue arrogation of power by the regional level subsequent to the creation of the autonomous unit. Kumar also mentioned the alignment of national and local standards on various range of issues in the Philippines particularly on the creation of autonomous units.

 

The second presentation was made by Prof. Edmund Tayao, Executive Director of the Local Government Development Foundation (LOGODEF).

 

Prof. Tayao focused his discussion on the systems approach of looking at intergovernmental relations. Accordingly, systems approach affects or influences behaviour of culture such as the tendency to reject changes that may be introduced.

 

Prof. Tayao discussed the Philippine politics and the proliferation of political dynasties. He said that the present system of creating smaller and smaller political units which further limits the choices for candidates is a local governance issue in the Philippines that need to be looked into. He described the Philippines as a weak state and the Philippine politics and governance as partisanship, personality-based, vibrant but confused civil society, and that popularity almost always trumps policy.

 

He also discussed that intergovernmental relations should not only have a political software or the programs and policies in place, but also the hardware or the mechanism for implementation to be considered useful according to Tayao.

 

He mentioned several studies that have been done by political scientists suggesting that state building in the Philippines is simply a colonial project. He added that the Bangsamoro initiative is not only significant for Mindanao and for the Muslim Filipino, but for all Filipinos. He stressed that granting autonomy through the proposed Bangsamoro is strengthening the still incomplete democratization in the country. The decision whether or not to have a Bangsamoro boils down to parochialism that is due to distrust of government, not because of culture.

 

Prof. Tayao likened the case of the Philippines to Spain given the common “stateness” problem then such as ethno-cultural diversity, civil war, insurgency and separatist movements. However, Spain began establishing a legitimate state power and authority while the Philippines established freedom without strengthening institutions. Spain also devolved powers and institutionalized devolution while the Philippines decentralized but its implementation has been dependent on an incumbent’s support. A concrete example made by Prof. Tayao was the passage of the Local Government Code only in 1991 when former Pres. Corazon Aquino already took oath in 1987.

 

Prof. Tayao sees Bangsamoro as an opportunity for reform. However, the Philippines has yet to have a real constitution. He elucidated that establishing the Bangsamoro, one real autonomous government, is an opportunity to see working system without undergoing the difficult process of charter change despite it being a parliamentary in nature. He stressed that the key to this is intergovernmental relations, but one that is institutionalized with clear authority with respect to national-regional relations.

 

In closing, Tayao left some guideposts to consider such as: (1) clear delineation of functions but not rigid to be interpreted as one essentially on its own or that one is clearly superior to the other, (2) identify areas of collaboration especially during transition as a way to build confidence and help strengthen institutions,(3) fiscal autonomy is key but only with adequate transparency and accountability, and (4) inclusivity and sensitivity is also key to all parties if it is to get a good start. Lastly, he said that a system change is needed for the government to effect this.

 

The third presentation was made by Atty. Rasol Mitmug, Chief of Staff of the ARMM regional governor and former Speaker of the ARMM Regional Legislative Assembly.

 

According to Atty. Mitmug, the creation of autonomous regions in the country was intended to be a peace building strategy with President Marcos’ issuance of Presidential Decree (PD) 1618, which was issued after the 1976 Tripoli Agreement, and was crafted so that regional peace and order would be attained in Mindanao while finding a mechanism where community-based implementation of programs and recognition of traditions can be carried out.

 

The establishment of the second autonomous region was mandated under the 1987 Constitution and the rationale for such is best explained in Disomangcop vs Datumanong (G.R. 149848, Nov. 25, 2004). The said decision referred to the deliberations of the Constitutional Commission in highlighting the reasons behind the creation of autonomous regions. Particularly instructive were the statements of Commissioner Ponciano Bennage who said that autonomy is the answer to the centuries struggle against oppression and exploitation and was a plea for national peace. Similarly, Senator Ople saw that there is no harm in recognizing certain vital pragmatic needs for national peace and solidarity.

 

Prior to the 1987 Constitution, the decentralization of autonomous regions is merely a decentralization of administrative mandates. Atty. Mitmug explained that this was only natural because at that time, the term autonomous region was not mentioned in the 1973 Constitution and the concept of devolution only pertained to local government units. PD 1618 only contemplated autonomy as an arrangement where the President has the power and general supervision and control over the autonomous region while the Sangguniang Pampook being the legislative arm discharges only administrative services. On the other hand, under the 1987 Constitution, and based on the Disomangcop ruling which also cited the case of Limbona vs Mangilin (GR No. 80391, Feb. 28, 1989), autonomy is seen as a decentralization of powers. It was viewed that “the creation of autonomous regions contemplates the grant of political autonomy – an autonomy which is greater than the administrative autonomy granted to local government units.

 

Atty. Mitmug expounded on this idea by citing Ganzon vs Court of Appeals which confirmed the diminution of Congress’ powers over the autonomous region. What is important to note is that the autonomous region was created as a special local government unit and that no less than the Constitution conferred it with devolved powers. In effect, the legislature of the autonomous region can create their own laws without interference from the national government and its legislature.

 

Since the autonomous region can create its own laws and rules, a structure should be in place so that there will be coordination not only between the Central Government and the autonomous region but also among their respective bureaus and agencies.

 

According to Atty. Mitmug, some pertinent provisions from Article V (Inter-Governmental Relations) of the Republic Act 9054 otherwise known as the ARMM Law did not actually work. For instance, Section 3 which pertained to the Sharia and Tribal courts and their coordination with the Central Government as this has not been implemented and that the Regional legislative Assembly has yet to enact laws related to these matters. He said that what cuts across as the main defect in the law is that most of the essential provisions lack mandatory character and are discretionary, and were not implemented. Examples of these can be seen in Section 2 – Cabinet Membership, Section 4 – Representation of Autonomous Region in General in the Central Government or National Government, Section 5 – Representatives in Executive Departments and Constitutional Bodies, and Section 7 – Representatives in Government-Owned or Controlled Corporations. He said that the problem with inter-governmental relations is the lack of representatives from ARMM to national government posts and boards. Further, the best practice in inter-governmental relations really depends on the national government as they exercise the power to decide whether or not to have the regional government on board. Failure to do this would result to weak coordination between the national government and the regional government. Practical examples which Atty. Mitmug cited include the Philippine Coconut Authority and Philvocs where all have very weak presence in the ARMM resulting to weak coordination and lack of representation on the part of the regional government.

 

Atty. Mitmug also discussed the confusion and gaps in RA 9054. The main problem of autonomy is that some of the line agencies have the misconception that the ARMM is no longer part of their departments and have no relation with the national line department. However, in Kida vs Comelec, the Supreme Court held that “[t]he inclusion of autonomous regions in the enumeration of political subdivisions of the State under the heading ‘Local Government’ indicates quite clearly the constitutional intent to consider autonomous regions as one of the forms of local governments.” Atty. Mitmug said that the main difference between administrative regions, development authority with autonomous regions and local government units is their ability to legislate. On the other hand, the main difference between LGUs and autonomous regions is that with the former, the source of power is the Local Government Code while the latter traces its mandate from Article X of the 1987 Constitution and its organic act. He also mentioned that the most important part of autonomous regions is the oversight committee. Its purpose is to supervise the transfer to the autonomous region of such powers and functions vested in it by the ARMM Act and the appropriations of the offices or agencies, including the transfer of properties, assets, and liabilities, and such personnel as may be necessary.

 

Atty. Mitmug believes that the ARMM is not a fully devolved autonomous region because this devolution process was not finalized and there are still issues on overlapping matters with the national government. An example cited by Atty. Mitmug is the taxation mechanism in ARMM where the taxes collected in the region go to other regions and collated in the national region prior to being downloaded again in the ARMM resulting to great delay.

 

The last presentation was done by Dean Benedicto Bacani, executive director of the Institute for Autonomy and Governance (IAG).

 

He echoed the previous speakers’ sentiments by saying that the gaps referred to pertained to the system where the autonomous government should work and a working autonomy framework is in accordance with the Constitution based on the concept that the autonomous region is supposed to be the consolidator of powers and resources.

 

Based on this autonomy framework, Dean Bacani explained that there is decentralization of powers from the national or central government to the regional government. It is clear that decentralization is not merely decentralization of administration which means it is not just regional administrative region nor is it the devolution to local government units which is more decentralization of administration. This is political autonomy and when this is complete, it is self-emulation” on the part of the government. According to Dean Bacani, a progression can be observed from the Tripoli Agreement to the Philippine Constitution in terms of decentralization that is merely a delegation of administrative powers and functions to real decentralization of political power.

 

On the issue of the autonomous region as a vehicle for self-determination and integration, Dean Bacani said that this is also one important aspect of decentralization. With this in mind, issues on identity, aspirations, and historical grievances will be addressed.

 

As to the issue of inclusivity, Dean Bacani opined that there is no hidden agenda to this in reference to the Bangsamoro Basic Law. He agreed with the process of the Senate and that is promoting inclusiveness through the conduct of real consultations. He also noted that at the end of the day, the bureaucrats will determine the implementability of this law. He again stressed that there should be coherence in all elements. This coherence refers to a unified autonomous region consisting of the regional government and the respective local government units. He warned that if the relationship is dysfunctional and the devolution is unclear, then this will result to paralysis of implementation of governmental functions and projects.

 

The last issue that Dean Bacani discussed is the problem of double autonomy. This pertains to autonomy wielded by the local government units, the Bangsamoro government, and the regional government. Any BBL version should contemplate on this fundamental issue. Presently, there are no mechanisms in place to harmonize the relations of the LGUs, the regional government and the national government. He also expressed displeasure on terming the ARMM as a “failed experiment” because it also had its fair share of successes. Hence, in order to have a better Bangsamoro, successes should be built upon while addressing the gaps.