This is a transcript of the presentation by Bangsamoro Study Group's Atty. Naguib Sinarimbo at the "Bangsamoro Right to Self-Determination: Design Options Under a Federal Set-up" IAG roundtable in Davao City, 2 March 2017.
How 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.
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.
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.
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 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.
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, the 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 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, or the ruling in RA 10153, 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 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.
 G.R. No. 80391, 28 February 1989
 G.R. No. 177597, 16 July 2008
 G.R. No. 196271, 18 October 2011
 An Act Providing for the Synchronization of the Elections in the ARMM with the National and Local Elections