Prospects of Federalism as a Solution to the Mindanao Conflict
- Atty. Benedicto Bacani
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The author is the founding executive director of the Institute for Autonomy and Governance.
President Duterte, in his inaugural address, has declared his commitment to bring about sustainable Mindanao peace by implementing all signed peace agreements with the Moro people in step with legal and constitutional reforms. No other President has ever opened the door to change the country’s constitution to accommodate the terms of signed peace agreements. As a Mindanawon, President Duterte knows what he was speaking about. To date, implementation issues still hound the enforcement of signed peace agreements with the Moro revolutionary fronts from the Tripoli Agreement of 1977 and the Comprehensive Agreement on the Bangsamoro of 2014. The Philippine Constitution has always been raised as a bar or obstacle to the full implementation of these agreements.
In subsequent pronouncements, President Duterte is clear that when he speaks of constitutional reforms for Mindanao peace, he is referring to shifting the current unitary system to a federal form of government for the Philippines. Federalism is the only solution to decades of conflict and war in Mindanao.
Roots of the Mindanao Conflict
What is the Mindanao conflict? Why is it that President Duterte and federalists believe that the only solution to this conflict is to shift the country’s political system from unitary to federal?
The Mindanao conflict is a multi-dimensional and multi-level issue that has become complex to resolve largely because its root cause has not been adequately addressed. It is undisputed in Philippine history that Moro Sultanates in the southern Philippines enjoyed sovereign status before Spanish colonization:
“The Philippines, a country of over 7,000 islands, has a long and distinguished history of statecraft in the southern part of the archipelago. In the late 18th and 19th centuries, strong states emerged in the Sulu Archipelago (centered on the island of Jolo) and in Maguindanao (centered in present-day Cotabato in the Pulangi River Basin in Mindanao). Islamic religion and principles of governance had entered the region much earlier, however, and date to the 13th century. These states became fully-established sultanates over the course of the next several centuries, encompassing numerous ethno-linguistic groups within their trading and alliance nexus, which extended into present-day Malaysia and Indonesia. Islamic ideals and indigenous statecraft also penetrated well into the interior of Mindanao during this period, and had a major effect on the development of another Muslim federated state near Lake Lanao. The Maranao traditional political system is known as the pat a pengampong ko ranao, or the four federated estates—a multicentric power system (Madale 2003:41). Muslim influence from these regions, as well as from Brunei and Borneo, extended Islamization northward by the 16th century throughout the Visayan region and as far north as Manila. A unique combination of trading, raiding, and slaving fueled the international and multi-ethnic economies of the southern Philippine sultanates and transformed them into powerful polities”.
The history of the Moro people is one of resistance to the Spanish colonizers and their political, legal and constitutional systems. “The Islamic sultanates in the southern Philippines were powerful entities that were capable of fiercely resisting Spanish military forces, and so Mindanao and Sulu remained outside the colonial realm throughout the 300 or so years of occupation”.
When Spain ceded the Philippines to the United States in the Treaty of Paris, Mindanao and Sulu were included as part of the colonial territory. The subjugation and integration of the Moro people into the national polity was the dominant policy under American colonizers and later under the Philippine Republic. The government-sponsored resettlement programs where large Christian population from Luzon and Visayas marginalized the Moro people and other indigenous groups from their own land. Succession of public land laws were patently favorable to settlers. In 1903, homesteaders from Luzon and Visayas were allowed to own 16 hectares of land while Moros and wild tribes (as they were referred to in the law) were deprived of similar protection and privilege. Yet, corporations were permitted to own 1,024 hectares. Immigration of settlers to Mindanao that intensified after World War II and public land laws adverse to the native inhabitants of Mindanao resulted in the Moro and indigenous people losing their land to settlers and big corporations. In the early 1970’s, the Moro people and other indigenous groups were already a minority in population with diminished political and economic influence over their own homeland. The Moro rebellion waged by the Moro National Liberation Front (MNLF) sought to restore the sovereignty of the territories of the Sultanates and the establishment of Mindanao, Sulu, Palawan and Sabah as a state independent from the Philippine republic.
Orlando Cardinal Quevedo, Archbishop of Cotabato, succinctly identified the root causes of the Mindanao conflict as injustice to the Moro people’s identity, political sovereignty and integral development.
In his first State of the Nation Address, President Duterte acknowledged that the root cause of the Mindanao conflict is the historical injustice committed against the Moro people.
Peace agreements and Bangsamoro Sovereignty
The peace agreements entered into by the Moro revolutionary groups with the Philippine government adopted the autonomy framework by way of addressing the sovereignty-based aspirations of the Moro people. By accepting autonomy as a political solution, the MNLF and later the Moro Islamic Liberation Front (MILF) dropped independence as a demand to end the conflict. Yet, nowhere in these peace agreements did the Moro fronts concede their claim for sovereignty and to subject the implementation of the agreements within the confines of the Philippine Constitution.
The Tripoli Agreement of 1977 carved the territory of the Moro autonomous region composed of 13 provinces in Mindanao, Sulu and Palawan where the Sultanates exercised sovereign powers. At the time of the forging of the Tripoli Agreement, then President Marcos exercised rule-making powers. Under the agreement, the provisional government should have been established right after the signing of the agreement without need for any plebiscite. The assignment of powers of the central government and the autonomous region were delineated not merely delegated from the central government. Finally, while the Philippine government interpreted the provision on subjecting the implementation of the agreement to “necessary constitutional processes” as ratifying the terms of the agreement in a plebiscite, the MNLF and even the Organization of Islamic Conference have interpreted that provision in the way that the Philippine constitution must be amended to facilitate the implementation of the Tripoli Agreement. President Marcos unilaterally implemented the agreement by creating not one but two autonomous regions in central and western Mindanao and subjected the process to a referendum.
After the EDSA revolution, President Aquino who then wielded rule-making powers under her revolutionary government negotiated a deal called the Jeddah Accord with the MNLF for the full implementation of the Tripoli Agreement. The Jeddah Accord called for the grant of full autonomy to Mindanao, Basilan, Sulu, Tawi-Tawi and Palawan subject to democratic processes. The proposed roadmap then was for President Aquino to issue an Executive Order for the establishment of the Commission towards the full implementation of the Tripoli Agreement. Notwithstanding this agreement and protest of the MNLF, the Aquino government included in the new 1987 Constitution a section for the creation of autonomous regions in Muslim Mindanao and the Cordilleras subject to the conduct of a referendum on their organic laws and a plebiscite on affected political units. The Autonomous Region in Muslim Mindanao was subsequently established by R.A. 6734 with four (4) Muslim-dominated provinces joining, Maguindanao, Lanao del Sur, Sulu and Tawi-Tawi.
President Ramos attempted to find a solution to the problem of implementation of the Tripoli Agreement and entered into a Final Peace Agreement (FPA) with the MNLF. A mechanism was agreed upon to establish the Special Zone for Peace and Development (SZOPAD) covering the 13 provinces and cities under the Tripoli Agreement that will culminate in a plebiscite to finally determine the territory of the ARMM. A Council headed by MNLF Chair Nur Misuari was created to oversee the implementation of the Agreements. The MNLF complained that the council was actually powerless and the expected massive development projects that would have enticed Christian-dominated areas to join the autonomous region did not materialize. When R.A. 9054, the new Organic Law to expand the ARMM was subjected to a plebiscite, only the province of Basilan and the City of Marawi joined the autonomous region. While the Philippine government is of the view that the Tripoli Agreement of 1977 has been substantially implemented, the MNLF under Chairman Misuari to date continues to demand the full implementation of the agreement particularly the provisions on territory and the establishment of a provisional government, control and management of natural resources and massive development interventions to MNLF communities.
The peace process with the MILF under the administration of President Gloria Macapagal-Arroyo produced the most progressive peace agreement in the Memorandum of Agreement on Ancestral Domain (MOA-AD) in 2008. It recognizes the right of self-governance of the Bangsamoro rooted on ancestral territoriality, the creation of the Bangsamoro Juridical Entity (BJE) that has associative relations with the central government. This agreement likewise recognizes the “legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures or their marginalization.” The MOA-AD was declared unconstitutional by majority of the justices of Supreme Court which finds among others that the BJE being created is “a state in all but name”.
Under the Aquino administration, the peace process with the MILF produced the Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement on the Bangsamoro in 2014. By this time, the provisions that were declared unconstitutional by the Supreme Court were carefully refined to avoid constitutional challenges. The FAB and the CAB provides for the legislation of the Bangsamoro Basic Law (BBL) that will establish the Bangsamoro in place of the ARMM regional government. It provides for the asymmetric relationship between the Bangsamoro and the central government, the assignment of reserved, exclusive and concurrent powers to the Bangsamoro and the central government and the adoption of a parliamentary form of Bangsamoro government. The BBL proposed by the Bangsamoro Transition Commission (BTC) was subjected to negotiations and refinements by the MILF and the Office of the President before it was submitted to Congress. The House of Representatives and the Senate came up with its own versions that further changed the BTC version which was protested by the MILF. The 16th Congress, failed to pass the BBL in part because of constitutional issues raised against it and the Mamasapano incident where special action forces of the Philippine National Police out to serve a warrant of arrest against terrorist leaders were killed by armed men that involved members of the MILF.
In the hearings for the passage of the BBL in Congress, constitutional law Professor and former Supreme Court Chief Justice Vicente Mendoza, identified the following provisions of the BBL that are of doubtful constitutionality:
1. The reference in the Bill to the autonomous region as a “territory” and as the “ancestral homeland” of the Bangsamoro people is contrary to the Constitution which considers the autonomous region provided therein to be a part of the Philippine Archipelago.
2. The recognition of the “right [of the people] to self-determination . . . to chart their political future”reinforces the notion that Bangsamoro is a separate political entity, although under the jurisdiction of the Philippines. Such a political entity is only a little different from the “associative state” called Bangsamoro Juridical Entity in the MOA-AD invalidated by the Supreme Court in 2008.
3. By providing who are considered Bangsamoro,the Bill in effect gives the Parliament the power to enact an Electoral Codelimiting suffrage and membership in the Bangsamoro Government to Bangsamoro people, thus denying the rights and privileges of national citizenship guaranteed in the Constitution.
4. The Bill provides for a parliamentary form of government. This is contrary to the constitutional provision that the government of the autonomous regions shall consist of “the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.
5. Under the Bill, the Bangsamoro Government is given extensive “exclusive” and “concurrent powers over matters enumerated therein, whereas the Central Government is limited to those enumerated therein and to those which it shares with the Bangsamoro Government. Thus, under the Bill, the Central Government would be like the Federal Government of the United States -- a government of enumerated powers with the balance of powers retained by the governments of the several states. The Philippine Government however is a unitary government and as such it has all powers of sovereignty, except only those given to the autonomous regions by the Constitution.
6. Under the Constitution the President has general supervision over autonomous regions to ensure that laws are faithfully executed.This cannot be diminished, modified or qualified. However, the Bill provides that the President shall exercise his power consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government. This can make the strict enforcement of national laws within the Bangsamoro territory difficult to secure as law enforcement may have to take account of the local custom of the people.
In concluding that the proposed BBL is beyond the power of Congress to pass, Justice Mendoza finally argued that the provisions of the Bill, which are contrary to the Constitution, cannot be justified on the ground that the relation of the Central Government and the Bangsamoro Government is “asymmetric”, that is to say, the relationship is “distinct from the inter-governmental relationship in other regions and local governments.” The question is precisely whether the Bill is contrary to the Constitution because of such relationship between the two governments. Such relationship cannot justify the recognition of the right of the Bangsamoro people to “self-determination, to chart their political future” without impairing the sovereignty and territorial integrity of the Philippines.
From this brief survey of the history of peace agreements and their implementation to address the sovereignty-based aspirations of the Moro people, I conclude the following:
1. While the terms of the peace agreements are meant to address the claim for sovereignty by the Moro people, the interpretation and implementation by the Philippine government of the pacts have consistently been unilateral and limited to the confines of the Constitution. Even when there is the opportunity to resolve implementation issues outside the constitution such as when President’s Marcos and Aquino had rule-making powers, the unilateral interpretation and implementation of the peace agreements favored the primacy and indivisibility of the territorial integrity and sovereignty of the Republic of the Philippines.
2. The implementation issues that hound the peace agreements from the Tripoli Agreement up to the FAB and CAB center around issues of Moro territory founded on their historical claim for the recognition of their ancestral homeland. To implement the agreements only within the purview of the territorial integrity and indivisible sovereignty of the Republic of the Philippines without due consideration to the Moro claim for the recognition of their ancestral homeland is inadequate and unresponsive.
3. The MNLF and the MILF did not concede the Philippine constitution as the framework for negotiations and implementation of agreements. The MNLF rejected the autonomy provisions of the 1987 Constitution that were unilaterally crafted by the government and even asked then President Aquino to suspend the implementation of these constitutional provisions while the MNLF consulted with its members. As well, under the FAB and CAB, the Bangsamoro Transition Commission (BTC) was mandated to propose amendments to the Constitution when necessary to implement the terms of the peace agreement.
Autonomy in the Constitution and Jurisprudence
The recognition of the unique political status of the Moro people and the Cordillera people is found in Art. X, Secs. 15-21 of the Philippine Constitution which creates “autonomous regions in Muslim Mindanao consisting of provinces, cities and municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of the Constitution and national sovereignty as well as territorial integrity of the Republic of the Philippines.” This section also provides that the President exercises general supervision over autonomous regions to ensure that laws are faithfully executed. Residual powers are vested in the national government not the autonomous regions. Legislative powers are given to the autonomous regions over nine (9) governmental functions yet the exercise of this power is subject still to the provisions of the Constitution and national laws.
Lumping the autonomy provisions for Muslim Mindanao and the Cordilleras in the same section of the Constitution immediately raises doubt as to the responsiveness of Art. X to the claim of sovereignty of the Bangsamoro people. Unlike the Bangsamoro, the Cordillera people’s aspiration is not about sovereignty but primarily about the preservation and protection of identity, culture and ancestral lands. The Cordillera rebellion was triggered by the incursion and exploitation of multinational corporations of their ancestral domain and lands. The inclusion of the term “geographical areas” is applicable only to ancestral domain claims of the Cordillera people that transcend fixed political subdivisions.
The power of supervision of the President over the autonomous regions and subjecting regional laws to national laws make for weak autonomy. The slow and failed devolution from the national government to the ARMM under R.A. 9054 and the non-establishment of the regional police already provided for in the same law are caused by national bureaucrats who raised the Constitution as a bar to the meaningful implementation of autonomy laws.
In Kida vs. Senate, the Supreme Court ruled that autonomous regions are considered one of the forms of local governments and that the ARMM is a local government units just like provinces, cities, municipalities and barangays. The ruling also provides that the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. This ruling leaves no doubt that under the 1987 Constitution, there is no space for addressing the sovereignty-based aspirations of the Bangsamoro.
In the debate on the constitutionality of the BBL, proponents have argued that the terms of the CAB and the BBL can be accommodated within the flexibilities of the Philippine Constitution. Fourteen (14) surviving members of the Constitutional Commission issued a statement in support of the BBL and the Bangsamoro which is “about development of people, not about constitutionality of words. They add that “an interpretation of any relevant provision of the Constitution that results in war and abject poverty would be contrary to its intention”. Laudable the intentions of the surviving framers are, the appeal to apply the spirit than the letter of the Constitution does not change the fact that the Constitution and jurisprudence leave no room for the sovereignty aspirations of the Bangsamoro. As well, refining the BBL provisions as advocated by BBL proponents to make them constitutionally-compliant is not constructive as “refined” provisions lead to conflicting interpretations, cloud the issues that matter and result in endless disputes over implementation.
There are two ways to determine the constitutionality of CAB and the BBL. First, is by looking at whether the framework conforms with the Constitution and if it is so, the provisions that flow from the framework are assumed to be constitutional. Second, the agreement or law can be reviewed provision by provision and finding of unconstitutionality of one or more provisions do not necessarily affect others.
From the perspective of the Bangsamoro people, the framework that will address their aspiration for sovereignty that is less than independence is that of a higher form of autonomy accorded to the Bangsamoro as a sub-state. And this sub-state simply cannot be accommodated under the current unitary system of the Philippine government.
Federalism and/or Charter Change for Mindanao Peace
Federalism as an option to resolve the Mindanao conflict is not a novel idea nor is it advocated only and for the first time by President Duterte. Revolutionary front leaders Prof. Nur Misuari, Salamat Hashim, Murad Ibrahim believed that federalism is the most viable option. On June 2011, after the MOA-AD was declared unconstitutional, the MILF peace panel proposed to the government panel the creation of a Moro sub-state under a federal system. Datu Michael Mastura, senior member of the MILF peace panel said that “we are asking for a Bangsamoro State, not a separate state but a sub-state. It can be like Queensland of Australia, it can be like that of Massachusetts, or it can be like Kelantan or Sabah or Sarawak in Malaysia, in a federation. But since you do not like, the rest of the country does not like federal – we go for associative and therefore it will be an asymmetrical relationship.” This quote does not only make a case for federalism but demonstrates that contrary to the view that asymmetrical relationship is a fairly benign concept that only describes the Bangsamoro or the autonomous government as distinct from local government units, it actually means for the MILF a sub-state under a unitary Philippine Republic.
The viability of federalism to resolve ethno-linguistic conflicts are well established in the literature. In the context of resolving conflicts, “the simplest possible definition (of federalism) is self-rule plus shared rule. Federalism thus involves some kind of contractual linkages of a presumably permanent character that 1) provides for power sharing, 2) cuts around the issue of sovereignty and 3) supplements but does not seek to replace or diminish prior organic ties where they exist. But while in federalism, a higher form of autonomy is given to regional or sub-states, “a federal constitution is not merely focused on promoting autonomy, it is also focused on promoting power sharing and inclusivity at the centre. Given the widespread myths and misconceptions about federalism in Asia, the distinction between federalism and autonomy as concepts needs to be highlighted. The Federal Idea is about more than autonomy; it provides for autonomy AND mechanisms to promote shared rule and national unity.”
Federalism, when crafted right, can effectively address the aspiration for meaningful self-governance of the Bangsamoro with the Philippine state while maintaining and strengthening national unity. In this context, a sub-state for the Bangsamoro is not a step but an antidote to secession.
Even with the most liberal interpretation of the 1987 constitution’s autonomy provisions, it does not change the nature of ARMM and/or the envisioned Bangsamoro as an autonomous region under a unitary set-up; that powers that it can exercise are devolved, delegated or decentralized and that regional laws and policies are at all times subordinate to national laws and the constitution. Exploring “flexibilities” of the Constitution will only raise false expectations, results in ambiguous and vague autonomy arrangements and leads to more conflicts, deep frustration and radicalization in the Bangsamoro over issues of implementation and interpretation. Without any space for accommodating the sovereignty-based aspirations of the Bangsamoro, autonomy under a unitary system in the 1987 Constitution as the only option will not stop but promote demands for Moro independence.
Federalism Framework for the Bangsamoro
While expressing openness to federalism as the ultimate solution to the Mindanao conflict, the MILF pushes for the immediate passage of the BBL. As well, it has expressed the potential perils of federalism that does not recognize the unique history and aspiration of the Bangsamoro people. Prof. Miriam Coronel-Ferrer, government chief negotiator in negotiations for the CAB, posits that a one-size-fits-all version of federalism won’t do justice to the uniqueness of the Bangsamoro quest for their right to self-determination, their identity and institution. She observes that all developed proposals consist of converting regions into similar or “symmetrical” federal states.
The following imperatives for Federal framework must be seriously considered in order that federalism can be an effective tool for conflict resolution in southern Philippines:
1. Federalism must be asymmetric. This is the only way to recognize that the history, culture and aspirations of the Bangsamoro are different from the rest of the country. While the driver for shifting to a federal system for most regions is efficiency in governance and equitable distribution of the country’s wealth and resources, Bangsamoro self-governance in the light of shared-sovereignty principles in a federal set-up must be recognized.
2. Respect for signed peace agreements. Federalism must be used as a tool to implement and not subvert peace agreements that articulate the vision and aspiration of the Bangsamoro. A Federalism arrangement that is imposed by majority Filipinos on minority Bangsamoro population will exacerbate, not resolve conflicts.
3. The Federal Constitution must have a separate section on the Bangsamoro that will define the basic concept and nature of the relationship of the region with the republic; identity, nationality and citizenship of Bangsamoro people; political territory, accession thereto and homeland; legislative powers: exclusive, concurrent, reserved and residual; legal regime, human rights and legal pluralism; transitional justice, reparation and reconciliation; shared security arrangements and mechanism and time frame for transition and future amendments.
 Excerpted from Mindanao: A Perspective on Youth, Inter-Ethnic Dialogue and Conflict Resolution in the Southern Philippines by Susan D. Russell, Lina Davide-Ong, April Rica Gonzalez, Rey Ty, Nagasura T. Madale, and Noemi A. Medina, 2004, Center for Southeast Asian Studies and Office of International Training, Northern Illinois University.
 Province of North Cotabato vs. GRP Peace Panel, 568 SCRA 402
 Position Paper of Justice Mendoza H.B. 4994 submitted to Congress
 Administrative organization, sources of revenues, ancestral domain and natural resources, personal, family and property relations, regional urban and rural planning development, economic, social and tourism development, educational policies, preservation and development of the cultural heritage and such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
 Author’s conversation with Prof. Ponciano Bennagen, member of the constitutional commission that drafted the 1987 Constitution.
 G.R. No. 196271, October 18, 2011
 Exploring Federalism, Daniel J. Elazar, The University of Alabama Press, pg. 12
 Federalism in South Asia: Lessons for the Philippines, Rohan Edrisinha, http://iag.org.ph/index.php/blog/1389-federalism-in-south-asia-lessons-for-the-philippines
 Speech of MILF Chair Murad Ibrahim, Global Autonomy, Governance and Federalism Forum, Institute for Autonomy and Governance, October 19, 2016, Makati City, Philippines
 Imagining a Constitutional Amendment for a Moro “Sub-State”, Judge Soliman Santos in Federalism and Cha-Cha for Peace: Critical Papers on Federalism and Charter Change for the Mindanao Peace Process, Institute for Autonomy and Governance, 2016.