Political and Electoral Reform in the Bangsamoro: The Bangsamoro Electoral Code
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In the recent Institute of Autonomy and Governance (IAG) “Forum on the Bangsamoro Electoral Code: Opportunities and Challenges” held at Dusit Thani Hotel, Makati City on November 25, 2019, IAG Executive Director Atty. Benedicto Bacani explained the rationale of the Forum, thus:
“The mission of IAG during this transition is to bring institutions together for a real, genuine dialogue to evolve meaningful, relevant, efficient public policies. There are two critical regional laws or regional codes in this transition period. One is the regional administrative code which sets the structure of the new Bangsamoro government. Second is the Bangsamoro electoral code. The electoral code, the prospect of this electoral code is very exciting not only to Bangsamoro but for the country as whole, the reason being is the form of government being adopted would drive the electoral design by which constituents choose their leaders. The electoral design is as much critical as the political system itself. This political system is a parliamentary system. This is exciting because we will have a parliamentary system under a unitary-presidential system. That’s why it is important that we bring different institutions, national, regional and local government units together in discussions—I always say that autonomy, making autonomy work requires making IGR (intergovernmental relations) work. That is very critical. It is not enough that we capacitate the regional government. From a policy perspective, the regional government is not alone in making autonomy work. In fact regional laws remain to be subject to national laws. Unless and until there is productive relations, coordinative relations, cooperative relations between the national government and the regional government and the regional government and Local Government Units (LGUs), this peace process and political process will just be exclusive in process and substance, and at the end of the day, not only will this not work, but it will actually create more conflict than resolving existing ones. IAG is committed to providing technical assistance in making this vertical relations work as well as the horizontal relations.”
This paper is an attempt to capture the issues and challenges that were presented in the Forum, as well as, to discuss what were the underlying premises in the future set up of the electoral and political system in the BARMM, focusing in particular on the electoral code, as provided in the Bangsamoro Organic Law (BOL).
The first speaker in the forum, Atty. Lanang Ali, Jr., the Majority Floor Leader of the Bangsamoro Transitional Authority (BTA) Parliament presented the salient provisions of the BOL. He said that first of all the BOL must be understood as a product of the 2014 Comprehensive Agreement on the Bangsamoro between the Moro Islamic Liberation Front (MILF) and the Philippine government, that mandated in essence a “Ministerial” (parliamentary) form of government. As such, the BOL itself allocates eighty (80) parliamentary seats with half elected through Proportional Representation and the remaining half shared between the district seats and the reserved seats.
The uniqueness of the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) is captured by the fact that while the Philippines as a whole is a Unitary State with a Presidential form of government, the BARMM opted not to go for the same separation of powers under a Unitary form of government instead it put in place a parliamentary form of government, where the executive and legislative branches of government are fused.
That this type of political arrangement has been allowed under the current Philippine Constitution is a novelty in itself if not without controversy, as some legal luminaries have argued, in particular the late Senator Aquilino Pimentel, the author of the first Organic Act for the autonomous region in Muslim Mindanao, that a parliamentary type of government for the BARMM cannot align with the Presidential form at the national level, where the President exercises all executive authority in his person.
A concern was expressed by some corners regarding the general supervision of the President over local governments and autonomous regions, which is usually expressed as supervision over a local or regional chief executive.
Accordingly, the parliamentary form of government does not lend itself well to direct Presidential supervision over the Chief Minister because the Chief Minister just like any parliamentary form of government is only the “first among equals” in the Cabinet of the government of the day. As expressed also in the corresponding provisions of the BOL, the Cabinet as a body exercises executive authority but the parliament remains supreme as the Cabinet is only reflective of the general membership of the ruling party or party coalition constituting the majority in the parliament.
The counterargument from the political perspective of the MILF was that the autonomous regions in the past have not exercised real or genuine autonomy because of the political patronage engendered by a system susceptible to influence from the top, i.e. the President at its apex. It was posited during the peace negotiations that a parliamentary form of government where the Chief Minister is beholden for his position to other members of parliament would be more insulated from the interference from the national level, in particular the President, who enjoys all executive authority under the Philippine constitution. Hence, the argument follows that a Chief Minister and his cabinet concerned about maintaining their constituency in parliament would exercise more autonomous decision-making in their political considerations.
Likewise, the reasoning for choosing a “ministerial” (parliamentary) type of governance structure for the Bangsamoro has been advanced by the MILF during the peace process as a more inclusive process and a natural offshoot to the Bangsamoro’s Islamic influenced culture of “shura” or consensus building; and it was argued that a parliamentary type of government is more conducive towards coming to a consensus or collective decision.
However, there is no doubt that there will be challenges as to how to make it work because the Philippine constitutional framework, legal tradition and political culture is steeped in a Presidential type of government where there is a strong executive branch. The inherent check and balance in a Presidential type of government where the executive, legislative and judicial branches of government operates under the separation of powers doctrine may be lost or become more nebulous if not totally inapplicable in a parliamentary system for a sub-national government.
A new type of check and balance and political culture must be nurtured and formed in order for “check and balance” to continue and flourish in the new parliamentary system in the Bangsamoro. Foremost, among this is the natural check and balance provided by a Loyal Opposition vis-à-vis the Government of the Day in parliament. The normal inclination of Filipinos and Moros, as products of an Asian culture, is to avoid direct confrontations and direct opposition to others who do not subscribe to their political agenda. However, not every issue can be compromised and neither is it wise to do so. Thus, it is essential that a new and robust political culture would evolve so that the Opposition or more broadly speaking any form of Dissent is not considered as detrimental to the greater whole. Otherwise, the essence of a strong Opposition to check abuses or the so-called tyranny of the majority would be lost since the check and balance of the “separation of powers” doctrine present in a presidential type of government would be weaker in a parliamentary set-up where the executive and legislative branches are combined.
Going into the discussion proper of the proposed political and electoral reforms in the Bangsamoro, Director John Rex Laudiangco of the Law Department, Commission on Elections (Comelec) asserted that they are still very much involved and on top of the administration of elections in the BARMM since the Comelec is a constitutional body and the BOL recognizes their constitutional role in administering elections. The BOL itself provides that that national laws in elections and the powers and functions of the Comelec remain in effect in the region. The BARMM cannot create its own Comelec nor can it deviate much (if at all) from the Omnibus Election Code and other national election laws in crafting its own Electoral Code.
Given these constraints, the BARMM can only realistically come up with a political and electoral system for the parliament and in particular on the Proportional Representation (PR) of the parliament to be put in place in the BARMM since all the other political and electoral systems, such as those pertaining to LGUs and national officials are governed by national laws. Even then whatever Electoral Code that the BARMM will pass will have to conform or be in consonance with national election laws.
There is genuine opportunity for BARMM to craft a good PR law or put it in a combined political and electoral law or a separate Electoral Code for the region. The PR in the BOL is supposed to be the catalyst for genuine party-based democracy in the BARMM since you cannot have a PR system without a party system and there is no such thing as an “independent” or “party less” candidate in PR as it would always be about groups and constituencies forming their own political parties and trying to win the electorate based on their party platform of government and political advocacies.
Proportional representation is an electoral system that seeks to create a representative body that reflects the overall distribution of public support for each political party. Where majority or plurality systems effectively reward strong parties and penalize weak ones by providing the representation of a whole constituency to a single candidate who may have received fewer than half of the votes cast (as is the case, for example, in the United States), proportional representation ensures minority groups a measure of representation proportionate to their electoral support. Systems of proportional representation have been adopted in many countries, including Belgium, Denmark, Finland, Greece, Hungary, Israel, Italy, Luxembourg, Norway, Russia, Spain, Sweden, and Switzerland. (Online Britannica Encyclopedia)
This is a different electoral system than the Philippine Congressional system, which is a winner take all plurality system. So, for example, when we vote for representatives in Congress, the ballot lists a few candidates all competing for one seat. Whichever candidate wins a majority of the votes gets to be the representative for the district. If a particular party candidate gets 49% of the vote, and another party candidate wins 51%, the majority vote candidate wins the seat. That means the 49% of people who voted against him or her will be represented by somebody for whom they did not vote.
In a PR system, the congressional districts are much bigger, voters focus more on political parties than on individual candidates, and there are multiple seats to be won. For example, a ballot will list several political parties. A voter chooses the political party they like the best, and when the vote is tallied the seats are given to the parties based upon the proportion of the vote they won. So, if the one party won 49% of the vote, instead of winning zero seats, the party would get to put its candidates in 49% of the seats available in the voting district. All votes contribute to the outcome of the election because the minority still wins seats. Also, because no party needs to win a majority to win seats, more political parties can be represented in Congress.
There are many versions of this PR approach, but they all involve some way of electing multiple candidates, at once, to represent a region. In a proportional system, parties representing as little as 1 percent of the electorate can gain representation, though the most stable systems usually have a threshold percentage level to prevent truly marginal parties from gaining seats. This vote threshold is something that the BTA will have to tackle and there are examples of high election thresholds for PR that prevent smaller parties from getting a seat in parliament such as the 10% threshold in Turkey but there are also low thresholds that get many parties elected in parliament but usually this low threshold is balanced by a political coalitions or coalitions of parties.
The BARMM is probably one of the few polities in the world (if at all) where fully one-half of the seats in parliament are supposed to be voted thru the PR system. The other half of the members of parliament will be coming from District representatives meaning that they will be elected in single seat constituencies and they will run as individual candidates with or without political parties. The remaining 10% of the seats in the Bangsamoro parliament are supposed to be “reserved seats” for sectoral or underrepresented or marginal groups and their system of selection need not necessarily be thru elections.
The other speakers in the Forum like Atty. Suharto Ambolodto, Member, Bangsamoro Transition Authority, Prof. Ma. Lourdes N. Tiquia, Publicus Asia, Inc., Universidad de Manila and Lambert Ramirez, Libertas Philippines all spoke about the challenges of genuine party building in the Bangsamoro.
The greatest challenge, of course, would be how will the first parliament after elections in 2022 form a government of the day. Given that PR is the dominant system it is quite likely that no one party can reach a majority of seats in parliament so the default will be that the BARMM will be ruled by a coalition of parties. Political behavior and conventional wisdom would suggest that the different Provinces of the BARMM which correspond also to the major ethno-linguistic groups of the Bangsamoro would tend to maximize their votes for their particular groups based on their home Provinces. Only then will they go into coalition with other parties that have reached the voter threshold for PR. Of course, even before and during elections the parties can already form coalitions. But forming coalitions before and during elections could mean carving out vote banks for the member parties in the coalition ahead of the vote and thus reduce chances for getting votes from the whole vote bank by any particular party that has a regionwide cross-cutting appeal to electorates.
Coalitions not based on genuine principled political parties (as the BOL aspires) could crumble after the elections when each party could compete to be part of a winning coalition and thus abandon their original coalition partners. Or it could happen that the votes for parties in the PR are so fractured that a different dynamic for election of the Chief Minister and the government of the day could take place without any particular party consideration.
Thus, the speakers were all one in saying that the predicate of genuine political and electoral reform is party-building so there were suggestions that the BARMM can evolve a system of funding political parties which is not yet the norm in the Philippines.
The last panel in the Forum consisting of Prof. Socorro Reyes, Center for Legislative Development International, Director Teopisto Elnas, Committee on Empowering IPs, COMELEC, MP Romeo Saliga, Bangsamoro Transition Authority talked about inclusiveness of the political and electoral system in the BARMM for Civil Society, sectoral groups such as women and non-Moro indigenous peoples in the BARMM.
While the BOL itself seeks to address the representation of marginalized or marginal groups through a reserved seats system, a truly representative democracy would try to be inclusive and not create pockets of entitlements. The risk is that the system of reserved seats could be instrumentalized for majoritarian considerations in the race to form the government of the day and in that way the system could be co-opted into majoritarian imperatives instead of being truly representative voices from the said marginal groups or sectors.
In conclusion, I would like to reflect on the message and remarks made in the conference by Dr. Stefan Jost, Country Representative, Konrad Adenauer Stiftung wherein he said that the Philippines is too big a country with more than 100 million people not to be organized through a genuine party-based system of democracy.
Dr. Jost said that policies in the country don’t have continuity and stability in a personalistic type of politics and there is no way to track developments and evolution of political systems in the country without parties that have a real membership and organizational base. The Philippines also has a hard time communicating and interacting with other countries in the world that have strong party-based democracies because the other countries do not understand where our political leaders are coming from.
The next steps for the BARMM is to reflect on our political culture and what suits us. If it seems that party-building and partisan activities seem to create more divisions in the BARMM polity what are the alternatives? Will funding political parties solve this problem of being afraid to form political parties because of lack of party loyalty or fear of party affiliation by the different constituencies? Indonesia after the toppling down of Suharto in the Reformasi movement started as a strong party-based democracy but it is now more personality-driven with their own local strongmen in particular constituencies, and elites have captured certain constituencies not unlike in the current Philippine political system.
Ultimately, political parties are only vehicles for people’s democratic empowerment, and they need not become the “be all and end all” for democracies and an Electoral Code in the BARMM that seeks to allow free expression of the people’s will would be the modicum of genuine political and electoral reform in the region. But this can only happen if the political culture of the region also changes and reforms. However, with the Philippine political system still very much influencing the political tides and currents in the BARMM, can the BARMM with the chance for creating their own singular political and electoral system under a parliamentary or ministerial set-up be the catalyst for change in the country instead?
This Policy Brief was written by Atty. Ishak V. Mastura, LL.M.
December 18, 2019