Opening messages: UNDP Country Representative Titon Mitra, KAS Country Representative Benedikt Seemann, IAG Executive Director Benedicto Bacani

 

In their solidarity messages, UNDP Country Representative Titon Mitra and Konrad Adenauer Stiftung Country Representative Benedikt Seemann underscored the need to have a BBL that could withstand the test of constitutionality and reflect the aspiration for genuine autonomy in the Bangsamoro at the same time.

 

Mr. Mitra said he is somewhat surprised why the issues that have been discussed by the GPH and MILF in the 17 long years of negotiations and agreed upon in the Framework Agreement on the Bangsamoro (FAB) and later, the Comprehensive Agreement on the Bangsamoro (CAB), are generating strong debate only now. He cited unitary as well as federal systems – UK, Spain, Russian Federation, India, Indonesia, wherein a fine balance has been found between the prerogative of the state over its territory on one hand and the aspirations of its peoples with distinct history and identity for meaningful autonomy on the other.

 

Mr. Seemann said the public is scared because of the wrong notion that the BBL is a constitution that could lead to the establishment of a separate state. He noted that California, the German state of Bavaria (even the EU at one point wanted to have a constitution) all have constitutions but remain integral part of their countries. The Philippines, Mr. Seemann added, has a population of 100 million people with roughly 100 different languages so it comes only natural that its regions also have distinct cultures and identities. The BBL is a reflection of a distinct regional identity of the Bangsamoro. The Bangsamoro is not an LGU. It’s not a separate state. It’s something in between that is more than the ARMM and less than an independent state. With the BBL, we are looking at the establishment of an autonomous region, not a separate state, and there are many people who will benefit from it – not only Muslims, but Christians, and IPs, as well.

 

IAG Executive Director Atty. Benedicto Bacani proposed three assertions to animate the discussion: 1) not all provisions are created equal, 2) frameworks, interests, assumptions and drivers than entrenched positions”, and 3) BBL now and the future.

 

Panelists: Atty. Naguib Sinarimbo of the Bangsamoro Study Group, Ateneo School of Government Dean Tony Laviña, ARMM Executive Secretary Laisa Atty. Laisa Alamia, Alternative Law Groups National Coordinator Atty. Marlon Manuel, MNLF Consultant Atty. Randolph Parcasio

 

Former ARMM executive secretary and Bangsamoro Study Group’s Atty. Naguib Sinarimbo noted that the Senate version of the BBL (SB 2894) is a departure from the agreed framework – the BTC draft of the BBL, which is based on historical context. The power sharing did not comply with the CAB and powers, especially those given to the regional government in the original draft, were redefined. The concept of asymmetric relationship was weakened with the deletion of the term “self-determination.” Policing was made a reserved power. Moreover, the composition of the Bangsamoro Parliament was changed; certain features of the parliamentary form of government were removed; the role of the President was strengthened, while the powers of the Bangsamoro Parliament were reduced.

 

Ateneo School of Government Dean Tony Laviña shared the sentiments of Atty. Sinarimbo, saying that issues on some of the powers that were supposedly part of the regional government but were reduced or changed have to be resolved in the formulation of the final bill. On the other hand, Dean Laviña noted, Sen. Bongbong Marcos’ BBL bill might be the version that may be easier to pass in Congress. But at the very least, the final bill should not depart from the CAB, he stressed. He also noted that the timeline for passing the BBL is problematic and the BBL might as well be considered as an election issue.

 

ARMM Executive Secretary Laisa Atty. Laisa Alamia said the need to pass the BBL is best approached through a long history of injustice. She noted the displacements in the ARMM that are largely due to conflict. She also mentioned that funds downloaded as far as ARMM is concerned barely include program funds. Most of the program funds are actually implemented by national government agencies. Out of the 23 programs and projects (PAPs), only 9 are being implemented in the ARMM, and therefore, a gap of 14 PAPs. Atty. Alamia cited the health budget supposedly under the 2012 GAA but was downloaded only two years later. On the Senate bill, she noted that the power of the regional government over mining was deleted and this can be attributed to some self-interest at the national level.

 

Alternative Law Groups National Coordinator Atty. Marlon Manuel concurred with Dean Laviña that the Marcos version will be easier to pass. But the process, he pointed out, seems to be a reluctant grant of autonomy to the Bangsamoro when in fact, this has already been established in the Constitution since 1986.

 

MNLF consultant Atty. Randolph Parcasio noted that imperial Manila wouldn’t want to solve the problem in the region, citing the long list of gaps since its creation. He enumerated a number of important agencies that don’t have regional presence in the ARMM. On the peace process, he observed that when government is talking to a particular group, it seems to forget that there are other groups that should be considered as well, hence preventing an inclusive approach. There are key issues why the new autonomy law will not resolve the conflict. According to Atty. Parcasio, these include the unresolved problem on territory and the limitation of legislative powers in the proposed parliament wherein the new autonomous regional government is limited in terms of legislating on the operations of the Shari’ah law.

 

In his brief message, former Supreme Court associate justice and member of the 1986 Constitutional Commission, Adolfo Azcuna clarified that it is the Constitution – not Congress – that mandates the creation of autonomous regions (in Cordillera and Muslim Mindanao). Congress only provides the framework, he said. Justice Azcuna emphasized that order and peace are important ingredients of the process as peace is a product of justice and order. Therefore, creating an autonomous region is an issue of justice. There’s a need to resolve the problem of injustice in the Bangsamoro, which explains why this was given special attention, he explained.

 

Synthesizing the earlier presentations, LOGODEF Executive Director brought in two issues: the issue of timing which is corollary to the question of propriety. With the approaching 2016 elections comes challenges and the uncertainty whether the bill can still be passed. Prof. Tayao mused that Malacañang might want to bring in the bayong (purse) so that it can be considered. The second issue begs an answer to whether it is still proper to pass the bill considering the question of capacity and credibility as far as this administration is concerned and whether it’s time to involve the next administration.

 

OPEN FORUM

 

ARMM Board of Investments chief (also with Bangsamoro Study Group) Atty. Ishak Mastura pointed out how Congress seems to be legislating the BBL without the benefit of guidance from the Supreme Court when in fact the latter has enough pronouncements to guide the passage of the legislation. One of which is the Sumangcop vs. DPWH. Atty. Mastura explained: “On that case, we had occasion to interpret or give life to a provision of Constitution, which says that the President will exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. And the Supreme Court said the extent of that supervision is actually limitation not just of the President’s powers but even of Congress’. To this end, Section 16 Article 10 limits powers of President over autonomous regions. In essence, the provision also curtails power of Congress over autonomous regions.”

 

This supports the argument that autonomous regions are a constitutional mandate. For Atty. Mastura, this also means that Congress has to examine national laws to make sure their adherence to local autonomy. The powers of the autonomous region are already given under the Constitution and Congress cannot touch them because of the limitation cited earlier. Congress can expand the powers but for those that are already there, it’s a constitutional mandate, he added.

 

Dean Laviña concurred with this analysis, saying the key to resolving the issue is the concept of exclusive powers. “For me, the way to go forward is to go through each of the powers, because if these are in the Constitution, there should be no question. If this is not in the Constitution, you have to make a clear policy discussion why it should be [part of the exclusive powers]. And for me subsidiarity is the answer, the right level of governance with capacity or it should be there to capacitate you. That kind of discussion will take a while. I assume that the government panel that agreed to the draft BBL had already that discussion. The way to do this is to share this discussion with Congress. This is challenge because of one month timeline to pass the law. If this is about numbers, the numbers will depend on lobby, media, and the President,” he said.

 

Security analyst Prof. Rommel Banlaoi wondered whether the poverty situation and the state of health and education in the region can be addressed without resorting to the creation of an autonomous region. Instead of blaming the national government, local government units guided by the Local Government Code can be mobilized to deliver these services to the people, he said. The bottom line, according to Prof. Banlaoi, is the existence of an armed group wanting self-government which the government wants to tame in return and this will take a while convincing the rest of Filipinos. He also noted that even among themselves, the Bangsamoro has issues on unity.

 

Atty. Alamia said there are many ways of providing services to the people in the ARMM. One of these is going to the lowest level through the Local Government Code that requires LGUs to use 20 percent of their IRA or development fund to provide basic services to their constituents. She elaborated: “In ARMM you have RA 9054. This is a structural problem that we have which causes some kind of a ping pong where the LGU has the IRA and development fund but the responsibility to provide basic services on health and education is not dispensed to them, because under RA 9054 the ARMM regional government is also supposed to provide that. Unfortunately, the regional government is not provided with the budget to implement those programs that provide basic services. The LGUs have the IRA and development fund; the regional government does not have program funds as these are lodged in the national level. In other administrative regions, the LGUs use their 20 percent development fund to provide basic services to their constituents. But if you say can’t we just require LGUs to provide basic services then you’re creating inequity, adding injustice to the injustice that is already there. In other regions the LGU provides basic services, national government also provides that. [For instance] DepEd national is handling education, DOH national the one handling health, so on and so forth. It’s all under the national level that is being distributed to the administrative regions. The problem here (ARMM) is the money is found at the LGU level but this is not sufficient to fill in the gaps… One of the solutions that was seen was give autonomy, provide budget to ARMM (an Executive Order required program funds to be downloaded, but it is not happening.) Congress is not providing enough funds in the GAA, only in recent years, so in the past three years, we have enough budget to implement much needed infrastructure programs and you can see that in the changes in the ARMM. But these are not enough. You still have those gaps.”

 

Atty. Alamia also revealed that the 2012 budget on health is the latest budget downloaded to DOH ARMM.

 

Atty. Sinarimbo added that the percentage of IRA received by LGUs inside the ARMM is far less than the IRA received by their counterparts outside the autonomous region. The criteria for computing the IRA, he said, are population, land area, and income. Income is low in the ARMM so its constituent LGUs get lesser IRA, he explained.

 

Atty. Sinarimbo went on to address the issue on unity, saying the central idea of the BBL is resolving the relationship between the national government and the Bangsamoro and giving the latter framework for resolving internal issues among themselves without interference from the central government. He said the Senate draft of the BBL is disturbing because it accorded favors to different sectors; the LGUs, sultanates, IPs, and settlers have been favoured. He lamented that the demands of the MILF, the more important partner in the peace process, have been disregarded. “What are addressed are the ones who never negotiated with the central government. That’s not a recipe for resolving the issue within the Bangsamoro. It rather exploited the cleavage inside the Bangsamoro society which s dangerous. It’s a recipe for internal conflict,” he added.

 

Sulu political stalwart (incumbent vice governor) Abdusakur Tan recalled how high hopes were when the ARMM law was being drafted only to result in blaming national government for the failure 23 years later. Vice Gov. Tan underscored economic sufficiency as important as political autonomy. For him, the law is as good as the people who are implementing it.

 

Vice Gov. Tan said he is grateful to Sen. Marcos for considering their position especially on the powers that are already enjoyed by LGUs. He noted that the provision in the original draft BBL that allows the Bangsamoro Parliament to modify for purposes of good governance these powers has been deleted, as well as the provisions on constitutional offices. He further observed that the Senate bill is trying to include other sectors like the sultanates and the MNLF. It even goes as far as providing MNLF a reserved seat in the Bangsamoro Transition Authority (BTA). He said he doesn’t know whether the MNLF will accept this proposal. On the reserved seat for sultanates, however, Vice Go. Tan believes this will only create more chaos unless the government resolves first how the representation will proceed given that there is only one seat and there are many sultanates.

 

Vice Gov. Tan also proposed that the MNLF would be likewise considered part of normalization.

 

On the issue of local governance, Prof. Tayao said the Local Government Code needs to be amended considering the issues surrounding it. “If we say that local governance works it’s an illusion. It works only because as far as those LGUs which have always been capable are the ones who are able to develop themselves,” he added.

 

A good example, Prof. Tayao said, is the CCT. He believes the CCT should have been implemented through the LGUs. On the issue of unity, the problem is not limited in the ARMM as people tend to identify with the region where they originally come from, he added. This will be more relevant in the coming elections which will be decided on one’s bailiwick.

 

Speaking as consultant with the League of Provinces in the Philippines, Dr. Herwig Mayer said the creation of provinces from the barangays and municipalities proposed in the original draft BBL is a no-go as no governor in the LPP, including governors in the ARMM, will subscribe to that idea.

 

A reaction to Atty. Sinarimbo, Dr. Mayer said the formula for IRA is population-area-equal sharing, not income. Therefore, it is the same money going to the ARMM LGUs according to the formula as in all other areas. For Dr. Mayer, autonomy has to do with fiscal autonomy. Development fund (IRA) is not very crucial because these are funds which are still controlled by the national government even under the original BBL draft. What is crucial, according to him, is under the Senate BBL, only 75 percent of the taxes collected in the Bangsamoro will go to the region and this could mean a shortfall in funds for the functions of the regional government. There is a need to lobby for funds, he stressed. “Four percent (block grant) is nice, sounds good, but it’s nothing. What you have now is less. You can discuss all the provisions, but if you don’t have enough funds, it’s a way to disaster because you are building up a lot of expectations which you cannot fulfil later. I’d rather go to a level which you can fulfil and do properly – to have a bill that can easily be amended, start small and really go step by step. Get the funds for what you are trying to build,” he urged.

 

Political analysts Malou Tiquia is appalled to know from Atty. Alamia that funds for 2012 were released only in 2014. This should not have been the case because reforms have already been in place and the GAA has an automatic release document. She wanted to know why the government is stopping the release. “It behoves the whole people of ARMM to raise this issue with the administration. It’s a sorry state for Bangsamoro – whoever will be elected – to receive such a state of structure (ARMM),” she added.

 

Ms. Tiquia proposed going back to RA 6734 and learning from it. “However, when the administration said ARMM is a failure, we accepted it without going through details and questioning what was the problem, what was not devolved, what was not downloaded. And now we’re focusing on this legislation (BBL) and yet we have to cure the release of funds (for the ARMM),” she said. She added that the Bangsamoro has to be a success, because if it fails, it will be a recurring issue for another generation.

 

Atty. Sinarimbo explained that the problem is structural: “You have GAA passed and you have line item for different line agencies. ARMM is treated as a line agency of the national government, so if you have funding for DOH under that line item it goes to funding of DOH national and separate line item for the autonomous regional government and the fund for it. So if it is released by the DBM, it is released to DOH national, including programs intended for implementation inside ARMM. So if you are the DOH national secretary and you want to release funds to ARMM, you can’t download it in the same manner that you can download it to a regional office (as in other administrative regions) because the ARMM is a different agency as far as the GAA is concerned. What you can do is enter into a MOA with ARMM in which case COA will treat it as a cash advance. Therefore if it is released to ARMM as a cash advance, and because you release it late, they cannot liquidate it on time. Therefore if you are the secretary of DOH you also suffer the issue of the consequence of heavy unliquidated cash advance. The way forward if it’s about reforming ARMM is to collate all the program funds of national agencies intended for the ARMM and place it under ARMM. That is the key problem because government refuses to understand this.”

 

Atty. Sinarimbo said the BBL is an attempt to cure this structural problem, and the way to do this is to provide for a block grant which would answer all the basic services. However, there’s a problem. He concurred with Dr. Mayer’s observation that in the computation of the formula for the block grant, powers were not factored in. He noted that powers granted to the Bangsamoro are actually translated into social service delivery: “The amount of powers should correspond to service delivery. The national government simply came up with a number… and we are stuck with the formula that provided the four percent. If the current budget of ARMM is not sufficient to answer for service delivery, what more if you include additional powers and territory?”

 

Atty. Sinarimbo proposed that the formula for the block grant has to be recomputed to get a reasonable figure, adding that if the national government has to spend anyway if it wants to improve human development figures on the ground. “So why not give the money to the government closer to the ground? That’s the rationale behind the block grant,” he added.

 

For Atty. Parcasio, another way of giving meaning to fiscal autonomy is for large taxpayers with businesses operating in the region to pay their taxes to the autonomous region. Had this been the case, the ARMM would have sufficient information as to how much the BIR is collecting from large taxpayers in the region. But as is the case now, the ARMM has to negotiate its share from large taxpayers with the national government, which up to now, it has not received, Atty. Parcasio claimed.

 

Representing in the forum the IPs in the ARMM, Timuay Unsad Santos noted how the inhabitants of the islands later called the Philippines fell under the regalian doctrine at the time of colonization by the Spaniards and how the IPs were emancipated in 1997 when the Indigenous Peoples Rights Acts was finally enacted and passed into law. The IPs and Moros were all victims of injustice, stressed Timuay Santos. For the IPs, the IPRA was the mechanisms to correct the injustice. He noted however that the ARMM chose to continue the injustice against the IPs for not implementing IPRA in the region for 18 years. According to Timuay Santos, under original draft BBL, the Bangsamoro government will assume the regalian doctrine over the IPs. This means that the rights of IPs being recognized under the laws of the state, notably the IPRA, will revert to the Bangsamoro government.

 

A rejoinder to this observation, Atty. Corpuz, an IP rights advocate in the Cordillera region wanted to know whether mentioning the IPRA in the Senate and House versions of the BBL will be considered less or more than the ARMM. She added that from what she’d heard from the Tedurays in the ARMM, they have not benefitted from IPRA because the law has not been enforced in the ARMM for the past 18 years since its enactment, and one of their demands is for IPRA to be recognized in the BBL as a basis for their rights.

 

Atty. Sinarimbo pointed out that the Constitution includes in its enumeration of the powers of the autonomous region ancestral domain and natural resources that is why these powers were copied in the CAB as part of the exclusive powers of the Bangsamoro. Furthermore, earlier laws on autonomy – RA 6734 and RA 9054 – have devolved these powers to the regional government, meaning the ARMM can enact a law to operationalize the rights of IPs. In the case of the original draft BBL, the BTC recognized the rights of the IPs but it allowed the Bangsamoro Parliament to enact the law granting the rights, even going beyond the already granted in IPRA.

 

Atty. Sinarimbo claimed that under the original BBL, the IPs would have even more rights, particularly in their share in the exploitation of resources inside their domain. Whereas the IPRA only provides for royalty, it will be a percentage under the BBL. “The rights are there. We will recognize it. But the national law has to be suspended because this is an exclusive power of the Bangsamoro,” he added.

 

Weighing in, Atty. Corpuz pointed out that there was no stopping ARMM to implement the IPRA but the regional government never implemented it. “That is the basis for asking additional assurance. For them, mentioning IPRA whether as directly implementable or as providing minimum standards and mechanisms for their rights to be respected will provide them that assurance,” she said.

 

Atty. Parcasio shared that there was an attempt to pass an administrative code that would include the creation of an office similar to NCIP which would have jurisdiction on matters like CADT application, but this was not operationalized. Under that administrative code, the IPRA would be applicable to all IPs in ARMM, including all ethno-linguistic groups. This means that Maranaos could apply for CADT staking their claim in Lanao Lake, the Maguindanaos in Liguasan marsh, or the Tausug in Sulu in Sulu Sea.

 

For Vice Gov. Tan, the term indigenous is vague as we are all indigenous constituting an indigenous nation.

 

Parcasio noted that the term “indigenous” becomes relevant only because of the migration to Mindanao of people from Luzon and Visayas. Hence, it is important to define the rights of people who are indigenous to Mindanao. “These people from Luzon and Visayas, although indigenous to their places, when they come to Mindanao, they’re settlers. The same way that Maranaos are settlers when they come to Luzon. The endpoint is the protection of native inhabitants,” Parcasio explained. He mused that the federal proposal of Duterte is very relevant in this sense.

 

Another IP representative in the forum concurred that the crisis on IP identity must be resolved along with the crisis in representation. He said the concept of the peace process to accommodate only groups with guns put other groups with no guns but with equally important stake in the issue at a disadvantage. This does not promote inclusivity, he stressed.

 

For Timuay Santos, identity is something that should not be imposed, but ascribed. Atty. Parcasio went on to elaborate how the identity could be more confusing. He recalled that there were 80 Manobo datus from North Cotabato five years ago who embraced Islam. “They have become Muslims but they are Manobos. Are they Moro or not? They are not Moro because they are not Muslims [originally]. But they are now Muslims and because of their faith they have become Moro. However, they are mot Moro because they were not Muslims at the time of conquest. This is now confusing.”

 

Atty. Parcasio noted that for the MNLF, Moro identity is based on the Islamic faith. Hence, if somebody is a native inhabitant of Mindanao, he or she is considered a Moro. He emphasized that the final BBL bill must resolve the confusion on identities in Mindanao.

 

On the issue of territory and opt-in provision, Atty. Sinarimbo said the BBL’s view on this is based on certain provisions in the Constitution. These are his views: Section 10 Article 10 pertains to criteria and the manner by which to create, merge and divide LGUs. The criteria for dividing, creating, and merging is not in the Constitution. It would be laid down in the Local Government Code. Meanwhile, Section 15 Article 10 clearly pertains to criteria for creating autonomous region. In that provision, for creating the autonomous region, it has to be that they share cultural and historical similarities. Therefore, it can constitute province, cities, and geographic areas. For creating autonomous region, the original draft BBL maintained that it may not go through the criteria laid down in the RA 7160 (Local Government Code) because it has a different criteria laid down in the Constitution itself, which is “provinces, cities, and geographic areas.” The original draft BBL also maintained that geographic areas can pertain to municipalities and barangays. “We are not creating an LGU. We are creating an autonomous region so the criteria is different,” he added.

 

On the dissolution of Parliament, it is important to look at the actual experience of the ARMM, according to Atty. Sinarimbo. “When you don’t provide a way that the parliament can actually dissolve itself and the cost for dissolving is losing actually your seat you will have a situation where every so often the parliament would dissolve to change the chief minister on petty grounds,” he warned. Hence, a check that if a member would go for dissolution, he or she should be willing to lose his or her seat must be in place, he said, noting that a constitutional challenge is being raised on this because it will run counter to Kida vs. Senate which mandates synchronization of elections. But Atty. Sinarimbo has a different view, saying the concept of synchronization in that ruling is for purposes of election in 1992. “If we look at the Constitution, that provision is specific for synchronizing the national elections, not for synchronizing all elections. After all we’re not actually synchronizing elections in the Philippines. Elections for barangays is never synchronized with [elections for other positions],” he explained. Atty. Sinarimbo proposed a rethinking of the Kida vs. Senate ruling because “that jurisprudence is not supported sufficiently by the provisions of the Constitution.”

 

A staff from the Senate Economic Planning Office (SEPO) wanted to know whether a change in the short title of the bill from Basic Law OF the Bangsamoro to Basic Law FOR the Bangsamoro will have implications. This, he said, is reminiscent of the short title of RA 6734 (from Autonomous Region OF to Autonomous Region IN). Atty. Sinarimbo responded, saying this is something that has not been explored yet and could open up another round of debates.

 

Closing remarks: MILF peace panel chair Mohagher Iqbal

 

That both houses of Congress have come up with their respective substitute bills on the BBL is something commendable, Mr. Iqbal said. He added, however, that the MILF has yet to await the final outcome – the final version of the bill – before it can render its judgment as an organization.

 

“What’s important is the final judgment on the two bills is the outcome, because no bill that is introduced is acceptable to everybody. It has to pass through various levels of discussion, and in the process there are amendments, some provisions to be deleted, that’s part of the process and we have to understand that,” he said.

 

There are three possible scenarios on the BBL as far as the MILF is concerned, according to Mr. Iqbal: good BBL, bad BBL, and no BBL. He cautioned that the MILF will not accept a bad BBL because it will not solve the Bangsamoro problem.

 

“Better to have no BBL rather than bad BBL. That’s second best scenario. We cannot choose the situation, kailangan matanggap na natin yan,” he added.

 

Mr. Iqbal also told the forum that the MILF still believe in the sincerity of President Aquino and that the “BBL can be delivered.”

 

“If, despite all our assertion and all our efforts and nothing will happen, we cannot blame ourselves because we have done everything. This is the line of the MILF we keep on asserting because we believe that we can make a difference,” he concluded.