Oversight and Intergovernmental Relations in the Bangsamoro

By Atty. Ishak V. Mastura, LL.M.
COO, IDCI
August 3, 2019

The Philippines is a Unitary State. There is no more potent expression of this state of affairs than the Constitutional provision that all executive authority lies with the President. The President is the head of state and the head of government, while under our republican system the Executive branch of government is his exclusive turf.

When the government and the Moro Islamic Liberation Front (MILF) were negotiating peace the supervision of the President over autonomous regions under the Constitution seemed to be a sticking point for the parties.

The supervision or oversight of the President over autonomous regions was viewed as curtailing the autonomous region from being fully autonomous, especially since the President was supervising or had oversight over the person of the head of the autonomous region.

This supervision could not be dispensed with as a logical end of the fact that the Constitutional provisions on “autonomous regions” are placed under the Executive department.

Upon examination of other Unitary States such as Britain, the impasse was resolved by proposing an Intergovernmental Relations (IGR) mechanism, which is now created by the Bangsamoro Organic Law (BOL) as the “IGR Body.”

The BOL did away with the personal supervision of the President of the head of the autonomous region, as in the case of the Regional Governor in the defunct Autonomous Region in Muslim Mindanao (ARMM). Instead the Constitutional provision that the President sees to it that the laws be faithfully executed in the autonomous region was used in the BOL.

This oversight power of the President over autonomous regions is actually an extension if not expansion of the “Take Care Clause.”

As pointed out in one US article —the Constitution does not say that the President shall execute the laws, but that “he shall take Care that the Laws be faithfully executed,” i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. (Powers derived from the “take care” duty, last checked August 3, 2019)

Interestingly enough the “Take Care Clause” became central to legal arguments on the investigations of Robert Mueller of US President Donald Trump very recently.

As argued the “Take Care Clause” plays a central role in Mueller’s constitutional argument. American legal scholars have studied the “protean” nature of the clause and the many contradictory interpretations that courts have adopted; here, Mueller’s analysis has some resemblance to the understanding set out by constitutional experts, who argue that the “Take Care Clause” imposes a “duty of fidelity” on the president. Mueller does adhere to well-established readings of the clause as empowering the president to exercise prosecutorial discretion and to remove officers. But he also reads it as constraining presidential action, writing that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office-holder’s personal interests.” Thus, the duty to “take care” can also be a limitation on discretion. (Jurecic, Q., “Robert Mueller’s Take Care Clause”, lawfareblog.com, April 29, 2019).

In the Philippines, we do not have similar jurisprudence interpreting the “take care clause”. But given its interpretation in US jurisprudence, it seems that the “take care clause” is an active duty and not a passive one of the President. Its implications are that the President has an active role in the affairs of autonomous regions such as the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM).

Given that it is a new feature in the BOL, it remains to be seen whether or not the IGR Body in the BOL, which is usually a feature in Federal Constitutions, will provide a suitable mechanism to balance the call for an active role of the President to supervise the BARMM as provided in the “take care clause”, with his mandate in accordance with his oath of office as protector of the Constitution to see to it that the autonomy of autonomous regions is preserved. (END)

Atty. Ishak Mastura is a senior fellow of Access Bangsamoro and the Chief Operating Officer of IAG Development Consulting, Inc. The views and opinions expressed in this article are those of the author and do not necessarily reflect the views and opinions of Access Bangsamoro, its proponents, or affiliates.