Full text of Ateneo Policy Center Fellow Atty. Michael Henry Yusingco’s presentation at the National Conference on Intergovernmental Relations with the Bangsamoro held last 01 October 2019, Makati City

A pleasant morning to everyone here! Lots of familiar faces, which makes me even more nervous to make this presentation. In any case, my presentation this morning is clearly about IGR in the Philippines, but I will only focus on two points:

  1. Various institutionalized IGR mechanisms that we currently have and highlight particular features of these institutionalized IGR arrangements;
  2. Propose suggestions on how to make IGR in the Philippines work.

But before that, just one shameless plug. Benny early on mentioned this joint project we have: Access Bangsamoro, the website that we launched recently. Access Bangsamoro is an online portal, which aims to facilitate free flow of information, analysis, and discussion on three broad areas which we think are crucial in ensuring the success of the BARMM:

  1. Fiscal autonomy of the BARMM
  2. Establishment of the Bangsamoro Parliament
  3. IGR

Let me begin my presentation with just a brief review of what IGR means. I think the panel after this will delve deeper into what IGR means. This is just a broad overview and I’d just like to make three major observations or points about IGR:

IGR is broadly defined as the coming together of different orders of government through formal or informal processes, for the achievement of common goals. I would like to emphasize that IGR can also come in informal processes, not just formal processes.

The essence of IGR is to facilitate cooperation and collaboration between the different orders of government. Now, it does that primarily to avoid confusion, duplication of delivery of services, duplication of policymaking, fragmentation, and others. Again, the collaboration and cooperation comes at the policy formulation stage and also at the implementation stage. Therefore, we have to see that IGR is a vital component of good governance. We have to appreciate that.

IGR is traditionally associated with federal systems. It is described as “the lifeblood of federal systems,” but scholars also believe, and I also believe, that IGR can be successfully applied to unitary systems with embedded decentralized arrangements, like the Philippines.

So our conversation this morning is not some pie in the sky conversation. It is a discussion that has practical value.

IGR is already present in the 1987 Constitution. In fact, this validates the observation of some scholars that our constitution has a quasi-federal ethos. Precisely because Article X already contains some federal features. Section 13, Article X demonstrates the “Horizontal IGR mechanism” — this is a mandate for all local government units to work together for the common good or for the greater good. This is a directive to implement the IGR mechanism at the sub-national level, which is the horizontal IGR. Again, I would like to highlight that the purpose of coordination and cooperation between the different levels of government is for the common good: mutual benefit to all involved. That is the purpose of the IGR.

Section 15, Article X is what we call “Vertical IGR.” This is the collaboration or cooperation of the different levels of government at the vertical level: national government and local government. The engagement, the interaction is between these two levels. Interesting here, this is where we become unique because the constitution introduces here the participation of civil society in the IGR mechanism. Because here, the participation of non-government entities is mandated by the constitution itself. Many of you know that Section 14 actually describes the Regional Development Councils. This is the constitutional basis of the Regional Development Councils that we have now. More importantly, this introduces the idea that in that vertical IGR, the participation of CSOs must be considered, is mandated actually. You will notice the purpose of IGR: the purpose of IGR is also to strengthen local autonomy. Again, this is quite unique because in federal systems, where the autonomy of the sub-national government is already a given, this kind of articulation is not present. But in a unitary system, in our Constitution, the IGR mechanism is there specifically to strengthen local autonomy. That’s quite unique.

Now to the local government code. IGR is present in our constitution, it is also present in our statutes, specifically the Local Government Code. In the local government code, it just emphasizes and repeats the point or the purpose of the IGR mechanism to strengthen local autonomy. The last slide specifically directs that local governments must be involved at the planning stage and at the implementation stage. IGR again, even in our statutes, emphasizes that its purpose is to strengthen local autonomy. The power of the president to supervise local governments must be exercised consistent with local autonomy — this is not found in our constitution, but in the local government code, the law qualifies how that power is exercised. Obviously, the author of this law was biased in favor of local governments. That’s why probably this sentence was included there, but it’s a peculiar way of understanding that power of the president to supervise — that it has to be consistent with local autonomy. This is something that we should reflect on further because in a way, this is sort of inconsistent with existing jurisprudence. Our Supreme Court has always favored the exercise of supervisory power of the president that may not be consistent with the principle of local autonomy. But anyway, that’s something we can reflect on further.

I go now to the BOL. In the articulation of the IGR mechanism in the BOL, we have to understand it from the IGR perspective. Therefore, when you try to look at the provision, we have to put more attention on the collaboration and cooperation aspect of the provision. I like the last phrase that the “consultation and the negotiation must be conducted in a non-adversarial manner.” That is very, very particular and very, very attuned to the IGR ethos which is when the different orders of government come together to work together, there has to be a mutual recognition, mutual respect. There has to be that idea that we are here on this IGR table because we need each other. We are not here to fight each other, we are here to work together for that common goal, for that common benefit, for that greater good, and that we can only achieve that if we work together.

I also like to emphasize that BOL may enumerate specific IGR bodies, which makes it a formal IGR body. The needs of the BARMM right now also necessitates the organization of informal IGR mechanisms. Let me give you a clear example. For example, the matter of indigenous peoples rights. Right now, there is no provision in the BOL — and I could be correct, I could be wrong — there is no provision in the BOL that mandates the creation of an IGR mechanism for the rights of indigenous peoples. But think about it, the rights of indigenous peoples are drawn from the constitution, from a national law, and also from the BOL. The fact that there are three levels of laws or three levels of authorities involved necessitates that when we try to resolve indigenous peoples rights within the BARMM, there has to be some kind of IGR mechanism. It cannot be that only one level of government will dictate on how these rights are implemented or resolved. Indigenous peoples’ concerns in the BARMM has to come from the cooperation and collaboration of 1) national government represented by the national body, 2) regional government represented by the appointed ministry, and 3) local governments that have direct interaction with indigenous peoples communities. And by the way, the indigenous peoples themselves, if they are organized, will have to participate in that IGR mechanism.

The other example that I want to raise is the education framework that is mandated by the BOL, that the Bangsamoro Parliament has to create. Now if you think about it, when we talk about education — in fact this is stated in the BOL — we talk about national law that governs the CHED, the DepEd — these are national laws. CHED and DepEd are national government agencies, and yet the BOL also authorizes the Bangsamoro Parliament to enact laws that govern the education within the BARMM. Therefore, it’s also clear that by statute, the regional government also has jurisdiction over education in the BARMM. If you think about it, because there are two jurisdictions now — two levels of governance that have jurisdiction over education — necessarily, there has to be an IGR mechanism for education. This could be a formal IGR mechanism, which maybe the Bangsamoro Parliament would pass later on, but right now because there is no IGR body for education — again, I could be corrected if I am wrong — there has to be an informal IGR mechanism now for education. The national agencies involved, the ministry involved must come together with the other stakeholders and really determine, at the very least from the start,  from the initial stages, what this education framework in the BARMM should look like. If this matter will be executed without any IGR mechanism, then potentially the different agencies would just go along their own ways. But down the road they can meet each other and potentially will come to a disagreement. To avoid that, the IGR mechanism could be applied for this particular government mandate.

Now that I have exhausted the IGR in our current structure, I go to my second point, which is suggestions that I propose to be considered in order to make IGR work, particularly IGR in the Bangsamoro Region.

    We need a paradigm shift.

I’m sure that you have noticed that in the past presentations, we are so focused on the hierarchical relationship of our governments, which is understandable because our governments are structured that way. We have a national government, we have the regional government, and then we have the local government. That is how the legal order is established. But in my view, we are too focused on the hierarchical relationship, which we cannot avoid — it’s there, it’s in the law, it’s in our constitution. And we pay so little attention at the need for these different levels of government to coordinate, to cooperate, and to collaborate. We do not put any attention on that side. We are too preoccupied with how should the regional government supervise the local government, how should the president’s power of supervision be limited, or how should it be exercised in the BARMM. Those are legitimate conversations — I do not say that they are not legitimate, but we rarely talk about how do we cooperate, how do we come together and work together.

I will give you an example. This is what is happening now to traffic in Metro Manila. Because we are so preoccupied with the hierarchical relationship, we are always looking at the national government to solve the problem because that is their job and they have the authority. Even local governments think that way. Even local governments in Metro Manila say “We’ll just do our part in our own sphere and let the national government take care of the others.” Well, even civil society in Metro Manila is like that, “Let the national government solve this,” and rarely ask themselves what can we do to help solve the problem. The reason for that is that we are too attached to that hierarchical relationship of government. We do not put premium on the need to cooperate and collaborate.

That is what I mean by a paradigm shift. I do not mean we set aside that traditional view of regulation, supervision, and so on — we cannot set that aside. What I mean is, for IGR to work in the Philippines, we have to focus on the notion of cooperation and collaboration. We have to start asking ourselves: what are the different levels of cooperation? Is it just sharing information? Is it just sharing data? Or is it about coordinating our efforts? Is it about making commitments to solve issues, to solve problems? Is it about working together in an actual development initiative? Those are the questions that we need to be asking more than what is supervision or what is regulation and so forth. Those are important questions but as far as IGR is concerned, I think we should be more focused on that collaboration, coordination, cooperation side.

    The participation of CSOs must be mandatory.

I have shown that it is actually mandatory under the constitution, but in practice, I am not particularly confident that this is the case. When we think  about organizing the IGR bodies in the BOL, we have to keep in mind that for it to be successful, it’s not just about the presence of the national government and the presence of the regional government or even just the presence of the local government. For it to be really successful and to deliver the results that we want, civil society must have a place in that table. Of course the challenge is when we go about civil society in the Bangsamoro, who are they? That is the challenge, and I won’t be able to answer that this morning. That is a serious consideration, but the point I’m driving right here is that for IGR to be successful in the BARMM — for IGR to be successful in the Philippines, for that matter — the engagement of the CSOs must be mandatory. They must be there, have a clear and strong presence at the IGR table.

    There has to be a premium on deliberative process.

I actually got this idea from Benny. When we were working at the House of Representatives, our theme there was: let’s build consensus among the lawmakers and the staff of the lawmakers to understand what the BOL was. Benny was very insistent that the ethos has to be consensus-building. The deliberative process is the same. Parties to the IGR table must come with a clear position based on research and analysis. They must come to the table armed with what they want to achieve, but it does not end there. They must also come to the table willing to listen to the other parties, because they also come to the table prepared and therefore, are worth listening to. But more importantly — and this is the key — they come to the table open to the possibility that they will change their minds. They may be coming into that IGR table firmly convinced that they are right based on evidence and research, but ultimately they are open to the possibility that they could be wrong, the other party could be right, and they could come up with a mutually beneficial solution. Now that is the essence of deliberative process. The reason why I emphasized this is because we do not want IGR to just be a talk fest, where the different representatives of government will come there and just make long speeches without any intention of listening to the others, or even not open to the possibility that they could be wrong. So for IGR to work, the mindset that deliberative process must be applied.

Just to summarize, for IGR to work in the Philippines and the Bangsamoro:

  1. We have to change the way we think when it comes to governance, or at least the relationship of the different levels of government that we have. We have to focus on cooperation and collaboration.
  2. CSOs must be on the table from planning to implementation.
  3. When we talk about IGR, necessarily deliberative process has to be an integral component of that. Otherwise, IGR will not deliver the results that we all aspire to have.

Thank you very much!