FEDERALISM 101 LECTURE 4: Approaches to Accommodating Diversity in Federal Systems
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This lecture, the last of a 4-part serries, discussed the concepts and practices in asymmetrical federalism and the approaches to accommodating diversity in a federal setup. A policy report on the proceedings will be issued in a separate publication. The lecture series is a joint undertaking of IAG and the Congressional Policy and Budget Research Department (CPBRD) of the House.
The forum titled, “Approaches to Accommodating Diversity in Federal Systems” was held last 30 August 2016 at the Speaker Belmonte Hall, House of Representatives. This was the last of the four-part lecture series on federalism that is jointly organized by the Congressional Policy and Budget Research Department (CPBRD) and the Institute for Autonomy and Governance (IAG).
The CPBRD and the IAG put together a panel of experts to discuss the concepts and practices in asymmetrical federalism which is defined as a form of government found in a federation or confederation in which different constituent states possess different powers: one or more of the states has considerably more autonomy than the other sub-states, although they have the same constitutional status. The best examples are the Autonomous Regions of Muslim Mindanao (ARMM) and the Cordillera Autonomous Region (CAR). The resource persons were Dr. Francisco Lara, Jr. (Country Director, International Alert), Dr. Clarita Carlos (Professor of Political Science University of the Philippines), Dr. Steven Rood (Country Representative, Asia Foundation), Attorney Benedicto Bacani (Executive Director, Institute for Autonomy and Governance), and Dr. Chetan Kumar (Expert on Governance and Constitutional Processes in the Context of Peace Building, UN/UNDP). Highlights of each presentation are discussed in the following sub-sections.
Overview on Asymmetric Federalism
The discussion of Dr. Francisco Lara, Jr. titled “Asymmetric Federalism: Managing Diversity and Internal Conflict” focused on two major topics, namely: (i) the current situation and concerns in the country that may influence the success of adopting a federal form of government; and (ii) the important factors that should be considered before adopting a federal form of government.
Dr. Lara explained that there are basically three factors that pose as problems in adopting federalism. First, the presence of rival holders of coercive force or armed groups (e.g. MILF, NPA-NDF) in various parts of the country would require a strong center. Second, government has to deal with the lack of fiscal integrity in many parts of the country which is aggravated by the presence of rival claimants to revenues (i.e. politicians, crooks, CPP-NPA). Lastly, the issue of “institutional multiplicity” has been an important bone of contention in autonomous states as the government has to deal with rival rule systems, norms, and traditions that spring from certain ethnic, religious, or language differences.
Because of these concerns, Dr. Lara put forth options other than federalism in achieving the same objectives as those of adopting federalism. He opined that government explore implementing federalism in an asymmetric manner to take into account the three challenges he mentioned earlier.
According to Dr. Lara, asymmetric federalism, as opposed to coercive federalism, is defined as the unequal apportioning of powers and resources under a federal system to address distinctive aims and objective. It may be possible that the Bangsamoro, for example, is given more powers and resources in contrast to other regions in a federal system—to enable it to catch up, and to take into account the rival rule systems that emanate from clan institutions and Islamic norms and traditions. In an asymmetric federalism, government can offer more resources and powers to disadvantaged regions that could probably stem secession or separatism. Thus, he emphasized that legislating a revised enabling law should come before, rather than after the constitutional reform process.
Other alternatives include strengthening or enhancing the Local Government Code, enhancing autonomy through the BBL, revising the social chapters of the constitution –or those pertaining to social justice and autonomous rule. These options, the speaker argued, could achieve the same of objective of deepening capacity for self-determination of many regions that are bound simply by language, and allow more control over their resources.
Dr. Lara also pointed out the conflicting actuations of the current administration on its stand on federalism. He argued that although the President has been relentless in his drive to institutionalize a shift to some form of federalism, the current situation makes it more difficult to see how federalism will look like when its own advocates are by word and deeds actually utilizing the absolute powers of coercion that only a strong central state would provide in dealing with drugs, or traffic, or violent conflict.
The speaker then emphasized the need to fully study three important aspects of federalism for the system to work in the Philippines. The most IMPORTANT aspect pertains to the task of revenue generations and the apportioning of rents between national and local elites and the trade—offs that will happen between local demands and centralizing priorities.
The second aspect pertains to the state of national to local political coalitions in the first instance and subsequently, the state of political parties in the country in general. It was pointed out that any constitutional reform that foists federalism or enhance devolution must be accompanied by equivalent legislation that strengthens political parties and disallows dynasties. This is the only way to ensure that more Jesse Robredo’s emerge from our political firmament.
Finally, the third aspect pertains to the trajectory of violent conflict and the fate of national and subnational peace processes. While vertical political conflict exacts the most in terms of human and economic costs, horizontal conflict is the day-by-day eruption of violence that provokes most of the uncertainty and insecurity that scares investors away, retards human capital, and provides the basis for newly emerging threats, such as violent extremism, to emerge across the country.This fact underscores the essential need for a strong central state as an indispensable component in whatever form of decentralization or devolved politico-economic authority will emerge.
Security Governance in a Federal System
A brief lecture on Security Governance in a Federal System was presented by Dr. Clarita Carlos during the last part of the of the federalism lecture series held last August 30, 2016 at the House of Representatives.
In the opening of her lecture, Dr. Carlos asserted that the present unitary system failed to work on certain issues and thus urged that a different menu in government system, which is federalism, is worth a try. She further explained that the information gained from the said lecture presupposes a presumption of an “informed” vote when the right of suffrage is exercised.
Interestingly, a thorough discussion of the political structure of a federal system and its vital role on national and local governance was distinguished by the speaker. According to her, a country composes of a federal state, sub-national state and local units under a federal system. Each sub-national state may have its very own constitution different from the federal state. This is because such body of laws conforms to the unique historical background of each sub-national state that addresses the issues and challenges. Each sub-national unit will still have its own legislature, executive and judiciary under a federal system.
Dr. Carlos also identified the distinction between a unitary system and a federal system with regards to distribution of powers or authority from the central government. In the case of a unitary system, the power or authority is concentrated with the central government and the rest of the powers provided under the local government code are dispersed to the local units; whereas in a federal system, there are many forms of powers that may be distributed.
Furthermore, Dr. Carlos explained the confiscatory and predatory powers of the central government; as such attributes were ideally illustrated by the problems that emerged from the case of the ARMM and the CAR. Because of government overreach, autonomy granted to the ARMM government was not fully enjoyed. Local agencies under ARMM government continue to rely upon the national or central government’s mandates in order for the former to publicly operate. This is how, she noted, that federalism may present some solutions to address the said problem clamored by both entities.
Dr. Carlos emphasized that security in a federal system is indivisible that it cannot be distributed across sub-national units. In other words though security can be graduated, components of security in transport like air, land and sea have to be centrally exercised by the federal government. One good example, she stated, was the creation of Department of Homeland Security after the 9/11 tragedy in New York. Homeland Security Investigations (HSI) intruded into every aspect of security that a state has jurisdiction with. The role of HSI in state security prompted the Philippine government to conceive the Office of Transport Security (OTS). Unfortunately, Dr. Carlos claimed that the OTS operation solely concentrated on airport x-ray machines which constituted a deviation from its regulatory powers.
Dr. Carlos also reiterated the need to structure intergovernmental relations relative to security concerns to allow for seamless intelligence sharing across all sub-national units within the federal system. Lines of authority on security and defense matters from the federal government to the sub-national units have to be clearly delineated. It is thus unwise to have several command structure in each sub-national units.
In her last statement, Dr. Carlos opined that issues on federalism on whether or not it may curb the political dynasty, term limits, corruption and etc. in the Philippines are yet to be expected. Since, the present unitary system does not bring the total well-being of what Filipinos wanted, federalism might be considered.
History and Issues in Muslim Mindanao and the Cordillera
Dr. Steven Rood’s presentation entitled “Autonomy for Muslim Mindanao and the Cordillera: History and Issues” dealt on the events leading to the grant of autonomy for Muslim Mindanao and the Cordilleras through legislation.
Dr. Rood discussed the overwhelming opposition on the idea of federalism in the crafting of the 1987 Constitution. It was recalled that the draft version of the Constitution submitted by experts from the University of Philippines which intended to enfranchise any region to be “autonomous” was rejected by the Constitutional Commission due to fear of possible “fragmentation” of its peoplesgiven the insurgencies and the weaker economy back then. As a result, “autonomy” was granted only to those regions (Muslim Mindanao and the Cordilleras) which were lobbying for autonomy and limited the scope to the terms specified in Article X Section 15 which states that “… provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures”.
Historically, the lumads, which include the Igorots and the Moros were considered “unhispanized” because they were not effectively controlled by the Spaniards. There was a long struggle for peace and autonomy particularly among the Moros and they strongly resisted colonial control since 1580. During the American occupation, the Mountain Province and the Moro Province were under military rule for ten years, as compared to all other provinces in the country which were under civilian rule. In the Commonwealth period, a Dansalan Declaration in 1935 sought to exclude the Bangsamoro Region from the Philippines as petitioned by the sultanates and datus. In 1943, Former President Carlos P. Romulo also said that Igorots were not Filipinos and he got the ire of the people of Cordillera. In 1967, the Mountain Province was split up into Kalingao Apayao, Benguet, Ifugao and Mountain Province while the “empire province” of Cotabato was divided into South Cotabato in 1966 and Sultan Kudarat in 1973.
Dr. Rood pointed out that the provinces under the CAR and ARMM were among those with the least development below the Philippine average in terms of the Human Development Index Provincial Ranking (2013). These include the Mountain Province (64th), Lanao del Sur (67th), Tawi-tawi (73rd), Maguindanao (74th) and Sulu (75th). The economic hardships in these provinces tell us that, indeed conflicts partly explain the poor economic conditions in these localities.
Dr. Rood noted that various studies have revealed that a small proportion of the people in the CAR considered themselves as “Igorots” or “Cordilleran”, while a greater majority of the people in the ARMM considered themselves as “Bangsamoro”, (except in Isabela City and Basilan where the population is divided among Muslims and Christians). Thus, there is a deeper and more salient shared identity among Bangsamoros compared to Igorots or Cordillerans, which explains why there has been an autonomous Bangsamoro since 1990.
A Backdrop of Cordilleran Autonomy. The resistance in the Cordillera region is rooted in the opposition to Martial Law particularly with the development projects involving the Chico River dams in the Kalinga Apayao and Cellophil timber concession in Abra. The death of Macli-ingDulag was widely publicized and this helped spur the revolution headed by Father ConradoBalweg who was among the poster children of the Cordillera resistance. Father Balweg formed the Cordillera People’s Liberation Army until a “Sipat” or a cessation of hostilities was made between Balweg and the Cory Aquino government. Balweg was assassinated in 31 December 1999. It used to be that the Cordillera was either under Region I and Region 2 until the passage of Executive Order 220 in 1987, which set up Cordillera Administrative Region (CAR). Prior to CAR, a Cordillera Executive Board (CEB) was formed, which was later changed to Cordillera Regional Assembly (CRA).
In December 1998, the Cordillera Consultative Commission submitted a complete draft of the Cordillera Organic Act to Congress and was passed by Congress in October 1989 as Republic Act 6766. Note that its counterpart in Bangsamoro, the Mindanao Regional Consultative Commission, failed to come up with a complete draft of a Bangsamoro Organic Law because of the divisions within the consultative commission. Apparently, there were several insertions of phrases such as “consistent with” or “within the framework of national laws, policies and goals”, which implied that the power of the proposed Cordillera autonomous region was not absolute and could be overruled by national laws. Furthermore, the autonomous Cordillera also had a parliamentary form of government and was deemed unconstitutional according to policymakers, one of them was Senator Aquilino Pimentel, Sr. With the passage of RA 6766, a plebiscite has been made, with only the Ifugao in favor of being part of an autonomous region. The Supreme Court also ruled that an autonomous region should have at least two provinces. In December 1997, Congress passed a more “mainstream” version of the Cordillera Organic Act, but was passed only in Apayao. The CAR is hoping to get genuine autonomy on its 3rd attempt with its filing of House Bill 4649 in June 2014 by Cordilleran Members of Congress.
An Overview of the Bangsamoro Autonomy. There were two sequential peace processes that yielded the Bangsamoro autonomy. First was the 1976 Tripoli Agreement between the government and the Moro National Liberation Front (MNLF). Then President Ferdinand Marcos instituted two autonomous regions particularly Region 9 and Region 12. During the Martial Law, these regions were not really autonomous and the MNLF had no participation in government in whatever capacity. There are two “Autonomous Region of Muslim Mindanao (ARMM)” laws in the post-Marcos 1987 Constitution namely Republic Act 6734 or the 1989 Organic Act and Republic Act 9054 of 2001 or the Expanded ARMM Law. The 1996 GRP-MNLF Final Peace Accord (FPA) had broken down in 2001 following the rejection by all elements of the MNLF of a plebiscite in August 2001. A Tripartite Review between the GRP and the MNLF facilitated by the Organization of Islamic Conference (OIC) began in Jeddah in November 2007, with the joint working groups coming from the Office of the Presidential Advisor on the Peace Process (OPAPP) and MNLF under Chairman Misuari. On March 20, 2010 a memorandum of understanding was initiated for the (i) establishment of a fund mechanism, (ii) tripartite monitoring and implementation of security governance, (iii) delivery of social services to MNLF areas, and (iv) work on changes in the ARMM structure. The postponement of the ARMM polls was made to synchronize the local ARMM election to national elections. This led to the appointment of Governor Hataman, who also had won in 2013 and 2016. There was again a breakdown of the talks following the MNLF walk out during the 2012 Bandung Meeting. In January 2016, the OIC, the government and the MNLF have agreed on how to proceed with the FPA, which would require amendments to RA 9054.
The peace negotiations with the Moro Islamic Liberation Front (MILF) formed the second part of government’s effort towards Bangsamoro autonomy. A series of meetings were made in Japan and other countries between the Aquino government and the MILF. In March 2014, both parties reached a Comprehensive Agreement on Bangsamoro (CAB) which included annexes to FAB on normalization, transition, power-sharing, wealth-sharing, etc. The MILF stressed, however, that the Bangsamoro Basic Law was supposed to replace RA 9054 and not amend it. This means that if ever the Bangsamoro Basic Law is passed, there would be a plebiscite in the individual cities and provinces on whether to join the Bangsamoro or not.
A roadmap has been proposed by the Duterte administration on how to move forward with the Bangsamoro Peace Process: the Federalism track and the Legislative track. The legislative track shall have to consolidate and converge all peace agreements and related legislations namely the proposed Bangsamoro Comprehensive Peace Agreement, the 1996 Final Peace Agreement including the Indigenous People’s Rights Act (IPRA). Issues on constitutionality for specific areas—e.g police powers, ministerial functions and control of the natural resources—shall have to be parked in the legislative track and should be dealt with through the federalism track via the change in the Constitution. A new Bangsamoro Transition Commission (BTC) shall be formed which will be composed of representatives from the MNLF, MILF, ARMM, indigenous peoples, sultanates, local government units (LGUs), etc. The BTC is mandated (i) to propose amendments to the Constitution to establish the Bangasamoro government, (ii) craft the enabling law for submission to Congress, and (iii) spearhead the dialogue and conversation of people in Mindanao on the Bangsamoro Peace Process.
Achieving Peace in Mindanao
Attorney Bacani discussed the large potential of adopting a new system of government, specifically federalism, over the existing autonomous government in Muslim Mindanao, in solving the peace problem in the region with his presentation entitled “Autonomy vs. Federalism and Mindanao Peace”.
According to Atty. Bacani, the country is faced with basically two options. One option is to enact the Bangsa Moro Basic Law that has been endorsed by the Bangsa Moro Transition Commission and the Office of the President under the Aquino Administration. This option is characterized by perceptions of exclusivity, unconstitutionality, “unimplementability” due to conflicting interpretations, which all resulted to weak political support and weak legal and constitutional base.
The second option, on the other hand, involved the adoption of federalism as the only solution to the problem in Mindanao, WHICH WOULD RENDER the peace agreements and the BBL moot and academic. Atty. Bacani opined, however, that this option ignores the peace process/agreements as incremental steps to comprehensive peace settlements, and may lead to mistrust, unmet expectations and eventually more radicalization.
The speaker argued that political roadmaps in peace agreements are essentially a set of political, legal, and constitutional reforms; and that constitutional and legal reforms for Mindanao peace are not insulated from peace agreements. It was emphasized that they are indispensable steps towards the implementation of peace agreements. Thus, federalism and making autonomy work are means, not the end, in the path towards attaining sustainable peace in Mindanao.
Asymmetric Federalism in Other Countries
Atty. Bacani explained that under a unitary form of government, the 1987 Constitution provides for autonomous regional government as a form of local government unit, involves administrative decentralization, but retains power at the center. On the other hand, under a federal government, a federal state is created, involves decentralization of powers and permits shared rule hand-in-hand with self-rule. Further, the speaker defined symmetric federalism as a form of government where all states have the same powers and privileges in their relation to the federal government. Asymmetric federalism or asymmetrical federalism, on the other hand, is found in a federation or confederation in which different constituent states possess different powers: one or more of the states has considerably more autonomy than the other substates, although they have the same constitutional status.
Atty. Bacani perceived a growing momentum at the national level to address conflicts in Mindanao. A positive development is the recognition of the broader arena in the legislation towards the implementation of the peace agreements. It was stressed that move towards federalism and charter change are opportunities to entrench peace agreements in the country’s fundamental law and statutes. It was then concluded that Congress must engage into a dialogue with stakeholders to ensure that peace agreements are implemented with or without charter change or a shift to a federal system.
Dr. Kumar of the United Nations expounded on the experiences of countries that have allowed the existence of autonomous states/regions within a federal system of government. Dr. Kumar believed that pursuing simultaneously autonomy for the Bangsa Moro and federalism can be done. In Indonesia and the United Kingdom, peace agreements and decentralization have both been implemented at the same time. It was observed that problems did not occur because of the presence of dialogue among entities concerned. It has been pointed out that systematic dialogue among the stakeholders is crucial to attain a high level of understanding of relationships among the stakeholders.
Dr. Kumar explained that answering these six questions would show if decentralization is the right path for the Philippines to take: (1) will the Philippines be more peaceful; (2) be more secure, i.e., there is less violence; (3) develop more, in terms of economy; (4) be more equitable, in terms of wealth distribution; (5) be more unified, in the sense that there are no issues of identity; and (6) are the operational details put in place working nicely?
Dr. Kumar noted that in general, countries that decentralized (such as India, Nigeria, United States, United Kingdom, Malaysia and others), via reforms had more unity ( or a national identity), more peace and security, and more investments. Their economies grew because of more economic opportunities. However, not all of them achieved improved equitable sharing of economic gains. Decentralization, be it in the form of federalism or otherwise, does make it possible to unleash the potential of those areas which were underdeveloped due to disparities in the allocation of wealth and resources from the central government. It was posited that the Philippines would be more unified under a more decentralized system. However, it was emphasized that for federalism to work, capacities at the central level for basic functions of government should be present at the local levels.
Moreover, effective decentralization means LGUs have the genuine ability to set their own financial priorities, to get the bulk of their revenues, and to have the ability to spend it according to priorities they have set. Genuine decentralization requires a strong vital center that can drive this progressive agenda.
Issues Raised During the Open Forum
On the Presence of a committee - a department or an agency – to oversee the transition period during the shift to federalism.
On whether policing function will be kept at the center or shared.
On mechanisms to ensure that state constitutions are in sync with the federal constitution.
On the divergence of civil and criminal laws among states
On the cost of federalism, particularly the establishment of regional government
On the need for a central authority in ensuring security in a federal government
On the jurisdiction over legal cases, e.g. cases involving parties where one would fall on a Shariah law and the other on regular courts
On the issues on the distribution of powers, i.e. control of natural resources, taxation, revenue/wealth sharing
On dealing with the presence of political dynasties