Full text of IAG Development Consulting, Inc. Chief Operating Officer, Atty. Ishak Mastura’s presentation at the National Conference on Intergovernmental Relations with the Bangsamoro held last 01 October 2019, Makati City

Good afternoon to all of you!

As already explained by my good friend, Atty. Mike Yusingco, IGR is mostly a federal feature in government but also used in unitary state structure with sub-national government. Precisely, in the negotiations of the GPH and the MILF, the IGR was a central plant to that because they wanted to emphasize that even though the Philippines is unitary in structure, even in the constitution the idea of autonomous regions is supposed to be an indictment against that unitary structure. I think that was in the constitutional commission records — the debate between Fr. Bernas and Atty. Noliedo on what the autonomous regions are supposed to be. The very idea of an autonomous region is supposed to be an indictment against the unitary structure. That is why, for the peace negotiations, the IGR became a central plant among other themes.

In the unitary context, there are normally no IGR provisions in the constitution. That is the same for examples of United Kingdom, as well as Spain. A unitary structure is more concerned on devolution of power because there is no concept of shared rule or shared sovereignty. From the GPH-MILF perspective, the MILF has always pushed for shared sovereignty, but even before shared sovereignty, they were pushing for the principle of “earned sovereignty,” that is through time the sovereignty is earned — that was the Kosovo model at that time. The MOA-AD basically was an earned sovereignty model and after the Supreme Court struck that, it went back to pushing for a shared sovereignty, but again it did not pass in the Philippine Government. Instead, they ended up with still the unitary structure in place — that is what the constitution provides.

Just to give a quick run through on examples of IGR in a unitary context, we have the United Kingdom, which is a common law country, meaning that they do not have a formal constitution — it is not a written constitution. Conventions, norms, and practices have the force of law. The Sewel Convention is an agreement between the UK government and the Scottish government that before the UK passes legislation that will affect the devolved powers of Scotland, they have to get the consent first of the Scottish Parliament. So in the UK context, even though Westminster Parliament has the formal power to enact laws that will affect Scotland, but because of that convention, they cannot do so. It will be a violation of that convention. They also have the joint ministerial committee of the UK, which is again not enshrined in any law. Instead it is a memorandum of understanding between the UK government and the other devolved authorities — Scotland, Wales, and Northern Ireland. Of course, there are also sub-units that have some measure of autonomy. That is the United Kingdom, but it is a unitary state — there is one sovereign, the Queen.

Then we have Spain. Spain is has been describe as quasi-federal because it has autonomous communities or regions, but still a unitary state because they only have one sovereign — the King and Queen or the joint crown. They are still unitary even though in their constitution there is a lot of devolved authority. Some are saying that they have more devolved authorities than in a federal state, such as Malaysia. Then what do they do there in terms of IGR? They have Bilateral Commissions. The Bilateral Commissions are not enshrined in the Spanish constitution. It is an agreement within the Spanish central government and the autonomous communities/regions to form these commissions to tackle issues that affect the powers of both the national government as well as regional legislation. They also have a Constitutional Court, which is unusual in a unitary setup, but has been proposed, for example in the Philippines — that we will have our own Constitutional Court. Since we only have one autonomous region, then we only have one Supreme Court. Then there’s also the Sectoral Conferences — it is for sectors that cut across the autonomous communities, but is also considered an IGR mechanism for the regions and the central government.

IGR in the Philippine unitary context. If you look at the Philippine Constitution, there is no such provision on IGR — there is no such article on IGR, on intergovernmental relations. What you have is Article X on Local Government, which includes autonomous regions — it lists there provinces, cities, municipalities, autonomous regions as part of that local government. Then because it is a unitary context framed from our history as being a US colony, we have the presidential form of government. In that presidential form of government, wherein the head of government and the head of state are fused into one — which is the president — you have a very strong executive authority. Again, Atty. Mike Yusingco has written about this many times in various articles and has discussed this in many fora, that executive authority lies in the person of the president under our constitution, making him a very strong president, executive. If only he was Superman and he could do all these things on his own, without agents and subordinates, all the authority is in his person, not in the Office of the President, not the agencies. It is in the person of the president.

We also have in the Philippine unitary context the tension between IGR — as have been conceptualized in federal models — and oversight. In the highly unitary setup of the Philippines — and this was also part of the peace negotiation. Actually, that was one of the things that had a long discussions about the supervision of the president, which is a constitutional provision. Under that constitutional provision, the president has general supervision over autonomous regions to see to it that laws are being executed. In the American constitutionalism, that is called the “Take Care Clause.” The Take Care Clause is actually an active duty of the president — it is not a passive duty — to see to it that laws be executed to his subordinates. In some jurisprudence in America in fact, he can sanction subordinates who do not follow his supervision, to the extent of even removing some officials. But I think, this idea of oversight or general supervision is expressed currently in our context with that order of the president to clear the roads that all LGUs had to follow. Because if we were truly autonomous, we could defer or say “We’ll do it our own way,” but because it were the president ordering it, and the DILG came out with a Memorandum Circular, it applied to all LGUs. So while our BOL says that we have the power to regulate our constituent local governments, in fact and in reality because of the constitutional provision, the presidential oversight trumps everything. Even the LGUs are still under the supervision of the president. In the case of the BOL, one missing thing there that will have to be addressed somehow, somewhere along the road — maybe in the intergovernmental relations body — is the lack of the delegation of the power of the president to supervise the local government units. Because if you look at the old Organic Act, RA 9054, it is very clear there that the president exercises his supervision over the LGUs — particularly the provincial governor — through the regional governor. In this case, there is no similar provision saying that the president shall exercise his supervision over local governments — or in the case of the hierarchy, the provinces — through the Chief Minister. But maybe it can be cured through that IGR mechanism that formally it be given to the Chief Minister.

The other issue is the Chief Minister can be suspended by the president for violation of any laws — all laws actually, not just any law, but all laws. Why is it there in that BOL? Because of the experience of 9054. In the first organic act, 6734, there was no provision on supervision by the president over the regional governor. And in 2001 when Misuari rejected the amendment to the organic act, RA 9054, and he revolted again, the president had a hard time — or the national government had a hard time — sanctioning Misuari because there was no supervision over the person of the regional governor. So they cured that defect — or the defect is from the perspective of the national government — that in 9054, the president could suspend the regional governor. Now, it became again highly centralized because of that presidential oversight. In 1954 it was only for laws that are affecting the autonomous region. Now, in the BOL, theoretically all laws that are violated by the chief minister, he can be suspended. So it’s a bit arbitrary and suspension is six months, without any limit. At least with regard to local government unit heads: mayors, provincial governors, you have the limits in the law in the local government unit — that you can not suspend them prior to an election. So there is no such thing, there is no provision in the BOL with regards to suspending the Chief Minister.

Again, in the negotiations, why was it that parliament was pushed by MILF? Precisely because in a parliament, the idea was you are elected by the parliament. There is no direct line — like what we have with regard to the organic act — wherein the president informally chooses a partymate as regional governor and he wins because of the power of the presidency. In this case, you do not know who is going to be the Chief Minister because the dynamics of a parliament is different. Who will be elected as Chief Minister cannot be influenced directly by the president or the national government because it has its own dynamics. You have eighty people, eighty players there who will have their own politics and that means they do not enjoy a sanction or blessing from national government or the president to elect the Chief Minister. That is the idea anyway. That answers one of your questions, why parliament?

Again, as I said the context is devolution of powers. According to Atty. Lorena, who is part of the BTC, that devolution in their understanding is the devolution from the constitution — that was the agreement according to them in the Bicameral Conference, Committee of Congress. Of course, once you disaggregate it into many powers — not just the ten that is listed in the constitution — there is a bit of gray areas there. As Atty. Laisa was explaining, now you can actually amend the Organic Law without having a plebiscite for each and every provision, because the Supreme Court also said in Abas Kida vs. Senate that only the ten provisions in the constitution — the devolved powers in the constitution — needs a plebiscite. That is another change — in the previous organic act, you had to go through a plebiscite.

Again, with regard to local governments, the Local Government Code actually emanates from the constitution because Congress is mandated to pass that code. While the BOL says that you can regulate the constituent units, you can also create your own local government code, you still have to follow the former model in the national setup. For example, I have been hearing that some would like to have a local government code passed wherein the barangay chairpersons are no longer elected, but appointed. Is that possible? Again, that is an issue you can ask probably through an IGR, but for now if you look at the symmetry that is in the local government in the unitary state setup, you can. Because ultimately, it is Congress that legislates a local government code. The authority lies with Congress because of the constitutional provision.

The original proposal in the peace negotiations was delineation of powers. We have the exclusive power of the Bangsamoro Government. We have the concurrent power of national government and Bangsamoro Government. And we have the reserved powers of national government. There was a question: can you do that under the constitution? The answer was: yes, because the constitution already provide for a listing of those powers, legislative authorities that are supposed to be devolved or given to the autonomous region. That is why the FAB and CAB listing the exclusive, concurrent, and reserved powers, but during the Senate interpellation, plenary session, at the very last hour, Senator Drilon said that that is a violation of the constitution. He said that there is only one authority, which is the national government — you cannot divide its authority, sovereignty. You cannot just share it. He said in fact that there is a provision there that all powers not given to the autonomous region remains with the central government. With that argument, he reinforce the idea and it was completely changed. The delineation was thrown away, and what you provided was the listing, wherein to a certain extent there is something missing there in the sense that  the president supervises even the legislation. It says there “without prejudice to the power of the president to supervise the Bangsamoro Government powers” — that includes legislation because you a fused executive and legislative. It is just one Bangsamoro Government, one Bangsamoro Parliament. So, you have a situation wherein the Bangsamoro Government as a Parliament is being supervised by the president even with regard to legislation. When you talk about legislation, that is like the violation of the separation of powers doctrine. Because in the case of the local government units — with the Sangguniang Panlalawigan, like South Cotabato passes an ordinance that forbid open-pit mining, even in national government says “No,” DENR national allows open-pit mining, they cannot call into question the ordinance of South Cotabato administratively. They have to file a case in court because of the principle of separation of powers. So in the case of the Bangsamoro, with that very specific provision, wherein the president can even supervise legislation, the more that the president’s supervision over Bangsamoro Government has tipped, even to the extent of suspending Chief Minister, if he thinks he violates a national law in the actions of the parliament.

The other principle — because you need in IGR principles to work as an IGR — the principle of asymmetric relations and parity esteem was removed, as principles to guide the relationship between the Bangsamoro and the national government. That was excised from the BOL, but I am saying that in the IGR we can still agree to bring back these principles as one of the guiding principles in the intergovernmental relations.

In the current BOL, the statutory provision on the IGR body is a form of formalization — it is formal. Unlike what Atty. Laisa Alamia was explaining to you in that RA 1954. That is again something that is new in the BOL. We have an oversight committee, but oversight committee as you noticed, it was in the transitory provision. In the case of the BOL, the IGR body is a permanent body that will continue.

How did this come about? It came about because in the researches of the MILF for the peace negotiation — one of them was my father — they look at the Statute of Autonomy of Catalonia in 2006. In that statute of autonomy, there was that provision, Article 183, creating the Generalitat-State Bilateral Commission. Generalitat is the autonomous region of Catalonia. It is also a problem-solving body just like the BOL provision on IGR body; it is a dispute resolution mechanism. Why is this important? Because in the context of the constitution as well as the BOL on powers of the autonomous regions, are subject to national laws. So it is very important for us to determine what does subject to national laws really mean? In the case of the ARMM Organic Act, there was no question about interference from national government with regards to the powers that were given because they were agency devolutions. The national government had charters for various agencies and they devolved through executive orders those powers. So when it was devolved by the agency, the agency would no longer exercise it in the autonomous region. In this case, we brought it back to the original provision of the constitution, subject to national laws. Again, you will have to revisit: do you still need another devolution process  with that IGR? Or the constitution is already our guide on what powers are devolved? Again, the devil is in the details.

In the case of the Spanish Bilateral Commissions, 62% of the issues being resolved or were resolved in that bilateral commission was on regional legislation. Why is that important about regional legislation? Because the issue of what are the boundaries? What is the extent of the power to legislate? In the case of the UK, they have that Sewel Convention. In the case of Spain, they have no Sewel Convention, but they have these bilateral commissions, and it evolved through time that the IGR mechanism there of the bilateral commission met — in the beginning — a lot of times. As the autonomy was evolving — more powers were being given to the autonomous communities — the meetings of the bilateral commissions also decreased. Possibly in the case of the BOL, we need it right now in the transition, while we still have a lot of gray ares to tackle, to finish. But through time, as the autonomy evolves — a lot of things will be devolved or given to the Bangsamoro, the IGR will not function anymore so much as a formal body, but it will become more informal. Again, the call is for us to constitute the IGR body at the national level because the Bangsamoro Government is already ready with their IGR, and at the end of the day, the BOL is still a national legislation that needs to be implemented both the BTA as a principal mechanism, as well as the national government. Just like when the Organic Acts were created, or established, or passed, the oversight committee had to implement the provisions of the Organic Act.

Thank you!