ARMM UNDER the LIMELIGHT: WHERE DID it GO WRONG? ARMM HISTORY: the Dawn of the Struggle of the Bangsamoro People for Independence Moro National Liberation Front (MILF) Abu Sayyaf Group (ASG) III. THE ELUSIVE road to PEACE Tripoli Agreement of 1976: The Internationally Forged Accord for Peace.
ARMM UNDER the LIMELIGHT: WHERE DID it GO WRONG? ARMM HISTORY: the Dawn of the Struggle of the Bangsamoro People for Independence Moro National Liberation Front (MILF) Abu Sayyaf Group (ASG) III. THE ELUSIVE road to PEACE Tripoli Agreement of 1976: The Internationally Forged Accord for Peace.
ARMM UNDER the LIMELIGHT: WHERE DID it GO WRONG? ARMM HISTORY: the Dawn of the Struggle of the Bangsamoro People for Independence Moro National Liberation Front (MILF) Abu Sayyaf Group (ASG) III. THE ELUSIVE road to PEACE Tripoli Agreement of 1976: The Internationally Forged Accord for Peace.
ARMM UNDER THE LIMELIGHT WHERE DID IT GO WRONG? Nesrin B. Cali* K OUTLINE I. INTRODUCTION II. ARMM HISTORY The Islamization of the Philippines: The Dawn of the Struggle of the Bangsamoro People for Independence Moro National Liberation Front (MNLF) Moro Islamic Liberation Front (MILF) The Abu Sayyaf Group (ASG) III. THE ELUSIVE ROAD TO PEACE Tripoli Agreement of 1976: The Internationally Forged Accord for Peace The People Power-Inspired Charter: The Fundamental Legal Wellspring of the ARMM From Legal Fiction to Reality: The Creation of the ARMM Through the Constitutionally Mandated Organic Acts a rt i cl e s * 10 Ll.B., candidate, University of Santo Tomas Faculty of Civil Law. Editor-in-Chief, UST Law Review. ne s ri n b . ca l i 4 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 IV. THE EXTENT AND NATURE OF ARMM AUTONOMY: An Act of Self-Immolation V. AUTONOMY AND THE IMPLICIT RIGHT TO SELF DETERMINATION: Do They Confer the Right of Secession? V. ARMM UNDER THE LIMELIGHT: An Appraisal of the Constitution- authorized Arrangement for Peace and National Unity VI. CLOSING CURTAIN: Fulflling the Promise of the Land of Promise Autonomy should not only be understood in its superfcial sense, that is, in the context of territorial secession. It should essentially be understood as autonomy and independence in terms of good governance, economy and resources vital for the subsistence of a community. For if a supposed autonomous community cannot even afford to stand on its own two feet, the autonomy granted to it and the right to self-determination, which it holds by virtue of such autonomy, are nothing but a mirage, a blinding illusion. Autonomy, in that setting, inevitably becomes the road to self-destruction. -Nesrin B. Cali INTRODUCTION On November 23, 2009, one of the Philippines most brutal and ghastly pre-election violences shook the nation. 1 It was so tremendously atrocious that its tremors were not only felt in local shores but also in the international plane. 2
The beastly act, which involved the violent taking of ffty-seven lives, mostly of women, was condemned nationwide. Arrests of those who are suspected of being perpetrators were made and eventually, martial law was declared. This is how impactful the Maguindanao Massacre has been in the country. As widely reported in the news coverage of the event, the victims of the massacre, including the wife of the vice mayor of Buluan, province of 1 http://www.philstar.com/article.aspx?articleid=526314 (last accessed 21 Decem- ber 2009). 2 http://www.philstar.com/article.aspx?articleid=526314 (last accessed 21 Decem- ber 2009). 5 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Maguindanao, 3 Ishmael Toto Mangundadatu, the latters sisters, journalists, media men, lawyers, motorists 4 were about to fle the certifcate of candidacy of vice mayor Mangundadatu for the gubernatorial race in the town of Buluan with the Comission on Elections (COMELEC) offce in Shariff Aguak. Before they could reach their destination, as fate would have it, about a hundred armed men stopped the convoy of six vehicles, abducted all passengers therein and later on slaughtered them mercilessly. There is evidence that some of the female victims were raped and sexually violated before they were killed 5 and practically all of the women were shot in their genitals and decapitated. 6 The victims, as well as their vehicles, were later on buried en masse. Subsequently, the grave was found and the results of the investigation pointed to the Ampatuan clan, a political scion in Maguindanao and a rival of the Mangundadatus, as the master mind of the unspeakable crime. 7 This harrowing story, at frst glance, may appear to be a typical story of political rivalry gone brutally deadly. On a deeper analysis, however, one would realize that there is more to it than thatit is one of the, if not the, ultimate refection and manifestation of the deplorable state of Mindanao in terms of politics, economy and peace-and-order conditions. Indeed, the Maguindanao Massacre has focused the limelight on the ARMM. 8 It impelled some to call for its abolishment, while others insisted that 3 Maguindanao is a province of the Philippines located in the Autonomous Region in Muslim Mindanao (ARMM). Its capital is Shariff Aguak. It borders Lanao del Sur to the north, Cotabato to the east, and Sultan Kudarat to the south. 4 Vice-mayor Mangundadatu reportedly invited the 37 journalists to cover the fling of his candidacy as word reached him that his political rivals would chop him into pieces once he fled his certifcate of candidacy. He believed that sending his wife and his sisters, along with the journalists, would deter such threatened attack. 5 http://manilastandardtoday.com/insudeNews.htm?f=/december/4/news1. isx&d=/2009/december/4 (last accessed 21 December 2009). 6 http://www.telegraph.co.uk/news/worldnews/asia/philippines/6664185/Philip- pine-massacre-suspect-surenders.html (last accessed 21 December 2009). 7 http://www.abs-cbnnews.com/nation/11/25/09/police-name-ampatuan-jr-top- suspect-massacre (last accessed 21 December 2009). 8 ARMM stands for Autonomous Region in Muslim Mindanao. ne s ri n b . ca l i 6 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 the autonomy given to certain portions of Muslim Mindanao has nothing to do with the Massacre, the latter being simply a violent manifestation of heated political enmity prevalent in the Philippines. It is in this light that the author deems it necessary to revisit the ARMM and make an objective assessment of how it has performed in achieving the goals for which it was created. To accomplish this endeavor, this article will trace the historical backdrop of the ARMM, i.e., the roots of the struggle for autonomy and independence in Muslim Mindanao and the events that followed, which ultimately led to the establishment of the ARMM. The regions economic, political, educational and peace-and-order conditions shall also be evaluated as factors are decisive in determining how ARMM fared in realizing the raison dtre that animated it to life. Based on this evaluation, a determination of the most prudent action or remedy shall be taken upon the ARMM shall be made, taking into account what will best serve the interest of the Bangsa Moro people 9 and what will fnally bring peace and prosperity in the war-torn Muslim Mindanao. A CHRONICLE OF EVENTS PRECEDING THE ARMM The Islamization of the Philippines: The Dawn of the Struggle of the Bangsamoro People for Independence The long historical thread of struggle for autonomy and self- determination among the Bangsa Moro people, which has been spawning for decades, has been the major catalyst that animated the Autonomous Region in Muslim Mindanao to life. A true understanding of this issue on the fght for independence among the people of Muslim Mindanao 10 will not be attained, however, unless their roots are traced. A succinct account of the Islamization of the Philippineswhich gave the Bangsa Moro people distinct culture, traditions and spiritual beliefsis thus in order. 9 Infra note 13. 10 As used in the 1987 Constitution, Muslim Mindanao refers only to those areas of Mindanao which are predominantly Muslim. (J. Bernas, The 1987 Constitution of the Repub- lic of the Philippines: A Commentary [2003] at 1099.) 7 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Islam, as a religion and as a way of life, 11 was introduced in the Philippines between the 12 th and 14 th century, with the arrival of Arab traders, travelers, sufs (saintly Muslims) and Muslim missionaries. The pioneer among them, Karim ul Makhdum, arrived in the country, particularly in the Sulu Archipelago and Jolo, in 1380. He converted a large number of inhabitants to and instituted Islam in the communities therein. Soon the monotheistic religion spread, leading to the establishment of Islamic sultanates 12 in the southern part of the Philippines. Decades after Islam was introduced to the Philippines, the religion has been an integral part of the lives of the Bangsa Moro people. 13 It has not only governed their spiritual relations with the Supreme Being they call Allah, 14 it has been the ultimate body of rules and laws that regulated their everyday lives, their relations and dealings with others and how they conduct themselves in society. 15 It has been an important component of their identity as a people. Hence, when the Spanish conquistadores arrived in the Philippines in 1521, the aggressive defance against colonial subjugation among the Bangsa Moro people was understandablethey deemed that their faith and distinct identity as a people was under imminent threat of being destroyed and taken 11 N. B. Cali, Dispelling Myths, Mysteries, and Misconceptions of a Legal system Mis- understood: A Comparative Analysis on the Islamic and Philippine Criminal Justice Systems, U.S.T. L.Rev., Vol. LII at 199. 12 Sultanates are political units ruled by a chief called sultan. Each sultanate was independent, had sovereign power and had diplomatic and trade relations with other countries in the region. 13 Bangsa Moro (the Moro People) is the generic name for the 13 ethnolinguistic Muslim tribes in the Philippines which constitute a quarter of the population in Mindanao in the Southern Philippines. They number from 5-6 million and are found in every major island of the country. They share a distinct culture, speak different dialects, are varied in their social formation but share a common belief in Islam. This is a uniting factor among the different groups. There are three main Moro ethnolinguistic groups: the Maguindanao-Iranun group in the Cotabato region, the Tausug-Samal group in the Sulu Archipelago, and the Maranaws of the Lanao region. Under R.A. 9054, Bangsa Moro People is defned as(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions.
14 Allah is the Arabic word for god or deity.
15 Supra note 11. ne s ri n b . ca l i 8 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 away, considering the hard line proselytizing by the Spanish conquerors. 16
They persisted in resisting and disallowing any colonial rule and infuence to seep into any aspect of their lives for about three centuries and true enough, they were able to preserve their faith, their customs and traditions, and their distinctive identity as Bangsa Moro people. Their struggle to defend Islam and their substantially Islamic-infuenced culture, however, did not end when the Spanish invaders left the Philippines and ceded the country to the United States of America by virtue of the Treaty of Paris. 17 They, as they did during the Spanish reign, fercely revolted against American rule for the same principal reasonthe protection of Islam and preservation of their culture and identity. Although the American colonizers succeeded in neutralizing Moro opposition by employing several policies of attraction such as establishing a Moro province purportedly to take care of the Moro peoples welfare and interests, education and forging peace treaties such as the Bates Treaty with local Moro leaders, the Bangsa Moro peoples fervent desire to keep intact their religion and culture did not die. Their battle for autonomy and self- determination lingered even after the United States relinquished its sovereignty over the Philippines and conferred it independence as a new nation-state on 4 July 1946 by virtue of the Treaty of Manila. 18
POST-COLONIAL RESISTANCE: THE BIRTH OF INSURGENCY AND ARMED CONFLICT IN MINDANAO While most Filipinos rejoiced at the liberation of the Philippines from colonial control, the Bangsa Moro people perceived it as a huge blow to their 16 Islam reached the inhabitants of the northern part of the Philippines. After the arrival of the Spanish colonizers, said inhabitants were converted to Catholicism. 17 The treaty was signed on 19 December 1898. 18 http://untreaty.un.org/unts/1_60000/1/6/00000254.pdf (last accessed 21 December 2009). 9 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 endeavor to secure autonomy and self-determination in order to keep their Islamic beliefs and culture pure from external infuences, as their homeland was annexed to the predominantly Catholic Philippine Republic. Specifcally, they fear that their religious, cultural, and political traditions may be weakened or destroyed in view of the said annexation. The infux of Christian settlers from Luzon and Visayas presented several problems for them too, i.e., they were dispossessed of their ancestral and communal lands and they were becoming a minority in their own homeland, an occurrence that resulted to them being discriminated against. They also resent the economic underdevelopment and poverty in Mindanao and believe that the main cause of the deplorable economic situation is their being under the headship of the National Government. These further fanned the fery desire for independence and self-determination that has been ablaze since the Spanish colonizationand this gave birth to secessionist groups, particularly the Moro National Liberation Front (MNLF), Moro Islamic Liberation Front (MILF), and the Abu Sayyaf, the three main groups leading the secessionist movement in Mindanao. Moro National Liberation Front Founded and led by a university professor, Nur Misuari in 1971, the Moro National Liberation Front (MNLF) was primarily organized as a response to the Jabidah Massacre, 19 rampant lawlessness in Mindanao and the declaration of Martial Law on 21 September 1972 by then President Ferdinand E. Marcos. Composed of youth intellectuals and Muslim nationalists, the MNLF vigorously 19 Also known as the Corregidor Massacre, the Jabidah Massacre refers to the sum- mary killing of about twenty-eight (28) to sixty (60) young Moros recruited for training on guerilla tactics in preparation for Operation Merdeka, then a top-secret plan of former Philippine President Ferdinand Marcoss administration to invade the east Malaysian state of Sabah, which the Philippines claims as part of its territory. The recruits were brought to the island of Corregidor on January 13, 1968 and were killed on March 18, 1968, after the recruits attempted to air their grievances, such as the non-payment of promised monthly stipend, against the training offcers of the Armed Forces of the Philippines (AFP) to Malacaang. Although investigations were made by the government and court-martial proceedings against the offcers involved were undertaken, the case unexplainably drowned in the Philippine jus- tice system and to this day, the calls for justice by the victims families and supporters were never answered. ne s ri n b . ca l i 10 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 pushed for the independent statehood of Mindanao. Particularly, the MNLF believes that (1) the Moro people constitute a distinct bangsa (nation) that has a specifc Islamic historical and cultural identity; (2) the bangsamoro (Islamic nation) has a legitimate right to self-determination; and (3) the MNLF has a duty and obligation to wage a jihad 20 against the Philippine State. As such, the movement fought for due representation of Muslims in the Philippine political process. In 1996, peace talks between the Government and MNLF have resulted to the establishment of the Zone of Peace and Development (ZOPAD) in Mindanao; the creation of Southern Philippines Council for Peace and Development (SPCPD); and Misuaris election as governor of the Autonomous Region of Muslim Mindanao from 1996-2001, which gave the Muslims a stake in the political process of the country. Thus, only the Moro Islamic Liberation Front and the Abu Sayyaf remain in the Muslim secessionist movement at present. 21 Moro Islamic Liberation Front The Moro Islamic Liberation Front (MILF) is a breakaway group of the MNLF. Although it separated from the latter in 1980, it was formally organized in March 1984 under the leadership of Hashim Salamat. 22 Disagreements in the goals of the independent Mindanao that they have been struggling for and the refusal of the MNLF to take on a more aggressive approach in establishing a separate Islamic state resulted in the branching out of the road into two. The MILF has a more religious orientation than its parent organization and its primary objective is to establish an independent Islamic state. It aims to 20 From the Islamic point of view, Jihad 21 www.army.mil.ph/OG5_articles/Insegencies.htm (last accessed 21 December 2009).
22 The MILF is a rebel group which was established in 1984 when, under the lead- ership of the late Hashim Salamat, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat per- ceived to be a manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations. (Province of North Cotabato v. Government of the Philippines Peace Panel on Ancestral Domain, infra note 117.) 11 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 accomplish such through dawa (Islamic preaching) and jihad. 23
Initially, the MILF was supported by the Libyan and Malaysian governments. However, when it became notorious for its terrorist activities, such as attacking civilian villages and pilfering homes in Mindanao, to persuade the Philippine government to give in to its demands of granting Muslim Mindanao full autonomy, support from the Muslim community and has been under global scrutiny. 24 It has also been under suspicion of being linked to the notorious Bin Laden-led terrorist group Al-Qaeda. For years, the MILF has been engaged in armed combat with the AFP, resulting into thousands of deaths, the displacement of more than half a million from their homes, and tens of thousands others in refugee camps in several provinces in Mindanao. 25
Abu Sayyaf Group The most notorious among the secessionist organizations in Mindanao, the Abu Sayyaf 26 Group, consisting of a radical group that broke away from the MNLF, was formed in 1991 under the headship of Abduragak Abubakar Janjalani. 27 It has the same objective as the MNLF and MILF, i.e., the establishment of an independent Islamic state in Mindanao. However, the means it employsviolencehas found itself in the company of terrorist groups under global scrutiny and surveillance. It gained international disrepute in 2000 with the kidnapping of 21 foreigners and Filipinos in Sipadan, Malaysia. 28 Since then, it has been held responsibleand it itself admitted
23 www.army.mil.ph/OG5_articles/Insegencies.htm (last accessed 21 December 2009). 24 http://www.cdi.org/terrorism/moro.cfm (last accessed 21 December 2009). 25 http://www.nytimes.com/2008/12/27/world/asia/27phils.html (last accessed 21 De- cember 2009). 26 Abu Sayyaf is an Arabic term which means bearer of the sword.
27 Janjalani was a veteran of the Afghan war and during his participation in the war he developed close ties with other Islamic radical groups. He strongly opposed the peace process between the government of the Philippines and the MNLF, and demanded an inde- pendent Islamic state. 28 Using high-powered speedboats, the Abu Sayyaf kidnapped 21 people -- 19 for- eigners and two Filipinos -- from a dive resort in Sipadan, Malaysia. The hostages were brought to Sulu. Most of the hostages were released in the following months; the last hostage, Roland ne s ri n b . ca l i 12 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 several bombings in the country, such as the bombing of M/V Superferry 14 that left ninety-four (94) people killed 29 and the Valentines Day bombing, which left eight people lifeless. 30 THE ELUSIVE ROAD TO PEACE Decades of war and armed confict in Mindanao resultant of the insurgencies therein have not only damaged the lives of the residents of the affected areas but it has also adversely affected the Philippines economy and image in the international community. Specifcally, the instability in Mindanao has discouraged foreign entrepreneurs from investing in the country. Travel bans have been issued by foreign governments several times against the Philippines, thereby curtailing its burgeoning tourism industry. Realizing the multi-faceted injury that the war is inficting upon the country, the Government of the Philippines has continuously, albeit with little success, negotiated with the secessionist groups in Mindanao to arrive at a compromise and bring peace in the land of promise. 31
Tripoli Agreement of 1976: The Internationally Forged Accord for Peace The Tripoli Agreement of 1976 32 is the very frst concrete and tangible attempt of the Government of the Philippines to bring peace in Ulla (Filipino), was able to escape on June 6, 2003. http://www.gmanews.tv/story/154797/ abu-sayyaf-kidnappings-bombings-and-other-attacks (last accessed 21 December 2009). 29 M/V SuperFerry 14 caught fre near Corregidor, Bataan after an explosion oc- curred onboard. 94 people were killed while 24 remain missing. Abu Sayyaf claimed it bombed the ferry. Criminal charges were fled in October 2004 against six suspects linked to the group after the government established that the Abu Sayyaf were indeed behind the attack. Id. 30 The so-called Valentines Day bombings took place on 14 February 2005. The eight casualties were killed in separate bombings in General Santos City, Makati and Davao City. Abu Sayyaf claimed responsibility for the incidents. Id. 31 Mindanao is known as the Land of Promise because of its vast natural re- sources.
32 In full Agreement Between the Government of the Philippines and Moro Na- tional Liberation Front with the Participation of the Quadripartite Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference. 13 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Mindanao after the armed confict therein escalated in the 1970s. It was also the accord that laid the foundation for the establishment of an autonomous government in Muslim Mindanao. It was entered into and by the Government of the Philippines and the MNLF with the participation of the Quadripartite Ministerial Commission, consisting of the Libyan Arab Republic, the Kingdom of Saudi Arabia, the Republic of Senegal and the Democratic Republic of Somalia and the Secretary General of the Organization of Islamic Conference (OIC). 33 It was signed and on 23 December 1976 and took effect on the same date. Specifcally, the Tripoli Agreement stipulated for the institution of autonomy in Southern Philippines within the realm of the sovereignty and territorial integrity of the Philippines. It provides for the areas covered by the said autonomy, namely Basilan, Sulu, Tawi-Tawi, Zamboanga del Sur, Zamboanga del Norte, North Cotabato, Maguindanao, Sultan Kudarat, Lanao del Norte, Lanao del Sur, Davao del Sur, South Cotabato, and Palawan. The rights, springing by virtue of such autonomy, of the Muslims therein are also provided for, such as the right to set up their own courts which implement the Islamic Shariah laws and to establish a Legislative Assembly. It provided for an autonomous arrangement with its own administrative, economic and fnancial system. It also defnes the aspects of governance which the National Government shall retain. 34 Consequently, the former Philippine President 33 The Organization of the Islamic Conference (OIC) is the second largest inter-gov- ernmental organization after the United Nations which has membership of 57 states spread over four continents. The Organization is the collective voice of the Muslim world and en- suring to safeguard and protect the interests of the Muslim world in the spirit of promoting international peace and harmony among various people of the world. The Organization was established upon a decision of the historical summit which took place in Rabat, Kingdom of Morocco on 12th Rajab 1389 Hijra (25 September 1969) as a result of criminal arson of Al- Aqsa Mosque in occupied Jerusalem. (http://www.oic-oci.org/page_detail.asp?p_id=5, [last accessed December 18, 2009]) 34 In this regard, the Tripoli Agreement provides: 1.Foreign Policy shall be of the compe- tence of the Central Government of the Philippines. 2. The National Defense Affairs shall be the concern of the Central Authority pro- vided that the arrangements for the joining of the forces of the Moro National Liberation Front with the Philippine Armed Forces be discussed later. ne s ri n b . ca l i 14 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Ferdinand E. Marcos signed Presidential Decree 1618 35 which formally created two autonomous regions in MindanaoRegions IX and XII. 36 Among other things, the Decree established internal autonomy in the two regions within the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution, 37 with legislative and executive machinery to exercise the powers and responsibilities specifed in therein. 38 The Decree also requires the autonomous regional governments to undertake all internal administrative matters for the respective regions, 39
except on such matters which are within the competence and jurisdiction of the National Government. 40 With respect to the relation of these autonomous 35 The presidential decree is entitled IMPLEMENTING THE ORGANIZATION OF THE SANGGUNIANG PAMPOOK AND THE LUPONG TAGAPAGPAGANAP NG POOK IN REGION IX AND REGION XII AND FOR OTHER PURPOSES. It was promulgated on July 25, 1979. 36 Section 2 of the presidential decree provides: SEC. 2. Territorial Coverage of the Autonomous Regions. (a) Region IX shall comprise the provinces of Basilan, Sulu, Tawi-Tawi, Zamboanga del Norte including the Cities of Dipolog and Dapitan, and Zamboanga del Sur including the Cities of Pagadian and Zamboanga. (b) Region XII shall comprise the provinces of Lanao del Norte including the City of Iligan, Lanao del Sur including the City of Marawi, Maguindanao includ- ing the City of Cotabato, North Cotabato, and Sultan Kudarat. 37 Id., 3. 38 Id. 39 Id. 4. 40 Id. These include, but are not limited to the following: (1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-bank- ing, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport (7) Postal matters and telecommunications; (8) Customs and quarantine; (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and (12) General auditing. 15 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 regions with the central government, it states that the President shall have the power of general supervision and control over the Autonomous Regions. 41
The extent of the internal autonomy conferred to these regions has been elucidated upon by the Philippine Supreme Court 42 in the case of Limbona v. Mangelin. 43 The scope of such autonomy came up as an incidental issue when the Courts jurisdiction over the legislative body of Region XII was questioned. The Court, in completely brushing aside any doubt as to its jurisdiction over the said body, held: [A]utonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declare to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 41 Id. 35(a). 42 Hereinafter abbreviated as SC for brevity. 43 170 SCRA 786 (1989). ne s ri n b . ca l i 16 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratifcation of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case. Under the 1987 Constitution, local government units enjoy autonomy in these two senses, thus: Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. Here shall be autonomous regions in Muslim Mindanao, and the Cordilleras as hereinafter provided. 29
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. xxx xxx xxx See. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X, sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of autonomy. On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government 17 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 acting through the President (and the Department of Local Government). If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction. An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation. Presidential Decree No. 1618, in the frst place, mandates that [t]he President shall have the power of general supervision and control over Autonomous Regions. In the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefy administrative services, thus: SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook shall exercise local legislative powers over regional affairs within the framework of national development plans, policies and goals, in the following areas: (1) Organization of regional administrative system; (2) Economic, social and cultural development of the Autonomous Region; (3) Agricultural, commercial and industrial programs for the Autonomous Region; (4) Infrastructure development for the Autonomous Region; (5) Urban and rural planning for the Autonomous Region; (6) Taxation and other revenue-raising measures as provided for in this Decree; ne s ri n b . ca l i 18 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 (7) Maintenance, operation and administration of schools established by the Autonomous Region; (8) Establishment, operation and maintenance of health, welfare and other social services, programs and facilities; (9) Preservation and development of customs, traditions, languages and culture indigenous to the Autonomous Region; and (10) Such other matters as may be authorized by law, including the enactment of such measures as may be necessary for the promotion of the general welfare of the people in the Autonomous Region. The President shall exercise such powers as may be necessary to assure that enactment and acts of the Sangguniang Pampook and the Lupong Tagapagpaganap ng Pook are in compliance with this Decree, national legislation, policies, plans and programs. The Sangguniang Pampook shall maintain liaison with the Batasang Pambansa. Hence, we assume jurisdiction. 44 (Emphasis supplied) With respect to the coercive and binding effect of the Tripoli Agreement on the Philippine Government, the same has been, although not categorically, ruled upon by the SC in the case of Abbas v. COMELEC. 45 In that case, the validity and constitutionality of Republic Act (R.A.) 6734, the Organic Act creating the ARMM pursuant to the 1987 Constitution, 46 was challenged on the premise that it runs afoul the provisions of the Tripoli Agreement. In rejecting the contention and ruling that the Agreement is not a treaty such that 44 Id. at 794-797.
45 179 SCRA 287 (1989). 46 Hereinafter The Constitution for brevity. 19 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 it is binding upon the Philippine Government, 47 the Court held: Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a binding international agreement. The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratifed according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement. We fnd it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the frst place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any confict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter. (Citation omitted)Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought. 48 (Emphasis supplied) 47 Under Art. VIII 14 1 of the 1973 Constitution, the governing constitution at the time the Tripoli Agreement was entered into, a treaty is entered into in the following manner: Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the National As- sembly. 48 Supra note 45 at 294. The respected constitutionalist Fr. Joaquin Bernas is also of the opinion that the Tripoli Agreement is not a treaty. (Supra note 9 at 1105.) ne s ri n b . ca l i 20 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 The People Power-Inspired Charter: The Fundamental Legal Wellspring of the ARMM The Constitution under the auspices of former Philippine President Corazon Aquino, was not only hailed as the fundamental law that restored democracy in the country after the two-decade tyrannical rule by former President Marcosit was also seen as a new beacon of light and hope for the Bangsamoro people, being the frst constitution 49 to mandate the creation of an autonomous region in Muslim Mindanao. 50 The rationale for the inclusion of such provisions may be perused from the decision of the SC in Disomangcop v. It bears noting that, aside from the Tripoli Agreement of 1976, the Government of the Philippines also forged with the MNLF what was considered as a breakthrough in the protracted peace processthe 1996 Final Peace Agreement (FPA). The FPA provided for a transition phase (Phase I) and an expanded autonomous region (Phase II). In Phase I, the ARMM, together with ten (10) other provinces and nine (9) cities were designated the Spe- cial Zone of Peace and Development (SZOPAD). A new structure, the Southern Philippine Council for Peace and Development (SPCPD) was established to oversee or manage peace and development efforts within the SZOPAD. In addition to the SPCPD, a Consultative As- sembly of eighty-one (81) members was also established and it was mandated to be a forum for consultation and ventilation of issues and concerns. As such, it was tasked to conduct public hearings, recommend policies to the President through the SPCPD chairman, and make rules and regulations for the effective and effcient administration of the SZOPAD. In 2001, the Government of the Philippines entered into another peace Agreement but this time, it was with the MILF. The accord is known as the Tripoli Agreement of 2001. The Agreement consists of three main parts, namely: Security Aspect, Rehabilitation Aspect and Ancestral Domain Aspect. The Security Aspect states that the parties to the Agreement shall commence negotiations for peaceful resolution of the armed confict. The Rehabilitation Aspect deals mainly with the rehabilitation of the residents who have been displaced by the war and to respect their human rights. In the Ancestral Domain Aspect, it is stated therein that the parties shall further discuss the matter at a later date. And truly, the parties did execute an agreement regarding this Aspect, i.e., the Memorandum of Agreement on Ancestral Domain (MOA-AD), which the SC invalidated and declared as unconstitutional in the case of Province of North Cotabato v. Government of the Philippines Peace Panel on Ancestral Domain, infra note 110. 49 The predecessors of the 1987 Constitution are the 1935 Constitution and 1973 Constitution. 50 The 1987 Constitution also granted the creation of an autonomous region in the Cordilleras. However, an autonomous region in the latter never came into being as the Or- ganic Act enacted for its creation failed to obtain the necessary number of votes. Only one province approved said Organic Act, hence there was failure to comply with the requisite that an autonomous region must consist of at least two (2) provinces. (Ordillo v. COMELEC, 192 SCRA 100 [1990]). 21 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Datumanong. 51 The Court, by mostly quoting the deliberations of the members of the 1986 Constitutional Commission, 52 revealed the validation for the creation of autonomous regions in this wise: The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy. According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it is an indictment against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization. The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions. These cultures, as a matter of right, must be allowed to fourish. Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach. Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group. Several commissioners echoed the pervasive sentiment in the plenary sessions in their own inimitable way. Thus, Commissioner Blas Ople referred to the recognition that the Muslim Mindanao and the Cordilleras do not belong to the dominant national community as the justifcation for conferring on them a measure of legal self-suffciency, meaning self-government, so that they will fourish politically, economically and culturally, with the hope 51 444 SCRA 203 (2004). 52 It is the commission which was tasked to draft the 1987 Constitution. ne s ri n b . ca l i 22 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 that after achieving parity with the rest of the country they would give up their own autonomous region in favor of joining the national mainstream. For his part, the Muslim delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework for nation-building. Finally, excerpts of the poignant plea of Commissioner Ponciano Bennagen deserve to be quoted verbatim: . . . They see regional autonomy as the answer to their centuries of struggle against oppression and exploitation. For so long, their names and identities have been debased. Their ancestral lands have been ransacked for their treasures, for their wealth. Their cultures have been defled, their very lives threatened, and worse, extinguished, all in the name of national development; all in the name of public interest; all in the name of common good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the name of national security. These phrases have meant nothing to our indigenous communities, except for the violation of their human rights. . . . Honorable Commissioners, we wish to impress upon you the gravity of the decision to be made by every single one of us in this Commission. We have the overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic regional autonomy. We propose that we have a separate Article on the autonomous regions for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of prolonging the agony of their vigil and their struggle. This, too is a plea for national peace. Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of our 23 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 responsibility to attain national unity and peace and to settle this problem and rectify past injustices, once and for all. The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fghting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. The Moros struggle for self-determination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on. Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic confict and threat of secession. However, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Regional autonomy is the degree of self-determination exercised by the local government unit vis--vis the central government. In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the communitys internal decision-making processes and the management of collective matters by themselves. If self-determination is viewed as an end in itself ne s ri n b . ca l i 24 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 refecting a preference for homogeneous, independent nation- states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an endthat end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protectedits continuing validity is more easily perceived. Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government. The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs. In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the government and pave the way for the unhampered implementation of the development programs in the region. Again, even a glimpse of the deliberations of the Constitutional Commission could lend a sense of the urgency and the inexorable appeal of true decentralization: MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only for the present but for our posterity. There is no harm in recognizing certain vital pragmatic needs for national peace and solidarity, and the writing of this Constitution just happens at a time when it is possible for this Commission to help the 25 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 cause of peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity. . . . . . . MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines that Mindanao autonomy will be granted to them as soon as possible, more or less, to dissuade these armed men from going outside while Mindanao will be under the control of the national government, let us establish an autonomous Mindanao within our effort and capacity to do so within the shortest possible time. This will be an answer to the Misuari clamor, not only for autonomy but for independence. . . . MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of the Congress of the organic acts and their passage is that we live in abnormal times. In the case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war and peace. These are momentous issues in which the territorial integrity and the solidarity of this country are being put at stake, in a manner of speaking. We are writing a peace Constitution. We hope that the Article on Social Justice can contribute to a climate of peace so that any civil strife in the countryside can be more quickly and more justly resolved. We are providing for autonomous regions so that we give constitutional permanence to the just demands and grievances of our own fellow countrymen in the Cordilleras and in Mindanao. One ne s ri n b . ca l i 26 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 hundred thousand lives were lost in that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed struggle as well as a peaceful and militant struggle. . . . Rather than give opportunity to foreign bodies, no matter how sympathetic to the Philippines, to contribute to the settlement of this issue, I think the Constitutional Commission ought not to forego the opportunity to put the stamp of this Commission through defnitive action on the settlement of the problems that have nagged us and our forefathers for so long. 53 (Emphasis supplied) The constitutional provisions which particularly deal with the establishment of and limitations imposed upon the ARMM can be found in Section 1 of Article X and Sections 15 through 21 of the same article. Sections 1 and 15 authorize the creation of autonomous regions. The textual contents of the provisions are as follows:: Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras. (Emphasis supplied) Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines. It can be gleaned from these provisions that only the areas covering 53 Supra note 51 at 227-232. 27 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Muslim Mindanao and the Cordilleras 54 are given the right to autonomy. Thus, it has been asserted that the Congress cannot validly create autonomous regions other than for Mindanao and the Cordilleras. The remedy of any area that wishes to be granted autonomy would be to seek a constitutional amendment. 55
Moreover, the formation of autonomous regions, as found in the Constitution, is based on the diversity of cultures existing in the countrythe need to allow them to fourishand not just geographic accident. Any clamor for autonomy which is not grounded upon identity of culture is of suspicious motivation. Autonomy based on geographic considerations can be inspired by motivations no less ignoble than what inspires gerrymandering. 56 It is noteworthy that the constitutional authority to create autonomous regions does not translate to the establishment of sovereignties separate and distinct from that of the Republic of the Philippines as the provision immediately quoted above states that they must be within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Philippines. 57 On this point, question as to the control or supervision exercised by the National Government over the Constitution-created autonomous regions may be raised: Has the National Government, by granting autonomy to these regions relinquished any form of control or supervision over these regions? The answer to this query can be found under Section 16 which states: Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Clearly, the National Government, through the President, still exercises some degree of supervision over the autonomous regions. However, this does not translate to mean that they are under the full control of the central 54 The Cordilleras is located in the Northern part of Luzon. It is composed of six (6) provinces, namely Apayao, Kalinga, Abra, Mountain Province, Ifugao, and Benguet, plus the chartered city of Baguio. 55 Supra note 10 at 1099. 56 Id. 57 Id. ne s ri n b . ca l i 28 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 government such that the autonomy given to them is rendered meaningless. This is unambiguously declared in the immediately quoted provisionthe President can only exercise general supervision over the autonomous regions. The term has been interpreted to mean the power to ensure that subordinate offcers faithfully execute and act within existing laws. 58 The nature of this supervision that the President exercises over autonomous regions may not be expanded by law enacted by the Congress. The Constitutional Commission explained that the phrase as may be provided by law was deliberately dropped in order to deny the Congress the power to expand the extent of such supervision beyond general supervision. In effect, therefore, and pursuant to the rationale of granting greater autonomy, Section 16 delimits the power of Congress over autonomous regions. 59 Since the autonomous regions are still within the domain of the mother state, it thus becomes material to provide for the powers that it may validly exercise without running counter to the within the framework of this Constitution proviso and those which are reserved for the central government to wield. Section 17 provides for this delineation as follows: Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Sections 18 and 19, on the other hand, lay down the procedural mechanics for the creation of the autonomous. The provisions state: Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi- sectoral bodies. The organic act shall defne the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.
58 III Record of the Constitutional Commission (1986) at 451-452. 59 Id. at 514-516. 29 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Sec. 19. The frst Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Section 17 enunciates the cardinal principle that the autonomous regions are local units which are vested with enumerated powers. Hence, any power which is not included in the enumeration and cannot be implied from such enumeration remain within the ambit of national governance. 60
The matters over which the autonomous regions may exercise authority are listed in Section 18. The same section also commands the enactment by the Congress of organic acts for the two autonomous regions. As provided in the provision, the organic acts shall defne the basic structure of government for the autonomous regions. It is worthy to note that the Constitution itself does not create the autonomous regionsit merely authorizes their establishment. It is clear from Section 18 that the creation of the autonomous region shall be effective when approved by majority of the votes casts by the constituent units in a plebiscite called for the purpose. Moreover, only those provinces, cities, and geographic areas 61 voting favorably in such plebiscite shall form part of the autonomous region concerned. 62 To sum up the import of the 60 Supra note 10 at 1101. 61 Geographic areas refers to a cluster of towns within a province. It has been observed that under Section 18, as presently worded, it is possible that a cluster of towns could be excluded from the autonomous region even if the rest of the province within which it belongs should vote in favor of inclusion. (Id. at 1105.) 62 For a province, city or geographical area to succeed in excluding itself from the autonomous region, it must not only boycott the plebiscite but must express its wish by vote. ne s ri n b . ca l i 30 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 abovecited constitutional provisions, the process in determining what areas shall be integrated in the autonomous region consists of three steps. First, there is a preliminary administrative determination of what areas should be covered. This is required for purposes of determining the composition of the regional consultative council. Second, Congress, through the Organic Act, makes a determination of what areas might be incorporated and therefore should take part in the requisite plebiscite. In this stage, some areas included in the frst step can already be excluded. Finally, the plebiscite can further modify the Organic Act because Section 18 states that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Furthermore, it is enough that some provinces, cities and geographic areas vote in favor of their incorporation in the autonomous region. 63
Section 19 orders the frst Congress elected under the Constitution to enact the organic act for the two autonomous regions within eighteen (18) months from the time of its organization, i.e., from the time of the election of its offcers and the formation of its different committees. The relatively short time given to Congress for the enactment of such laws underscores the urgency and necessity of establishing the autonomous regions as a means towards solving existing serious peace and order problems and foreclosing secessionist movements that have hugely contributed to the retardation of the countrys holistic progress. 64 Section 20 is another constitutional source of the powers, particularly legislative, granted to the autonomous regions. The provision reads: Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the (Id.) Moreover, double majority, i.e., a majority in individual political units and a major- ity of total votes cast, is not necessary for an effective ratifcation. (Id. at 1104. See also Abbas v. COMELEC, supra note 45.) 63 Id. at 1104. 64 Supra note 58 at 533-541. 31 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Organic Act of autonomous regions shall provide for legislative powers over: Administrative organization; 1.) Creation of sources of revenue; 2.) Ancestral domain and natural resources; 3.) Personal, family, and property relations; 4.) Regional urban and rural planning 5.) development; Economic, social, and tourism 6.) development; Educational policies; 7.) Preservation and development of the 8.) cultural heritage; and Such other matters as may be authorized 9.) by law for the promotion of the general welfare of the people. The frst eight (8) paragraphs of the immediately quoted provision constitute the irreducible legislative powers granted by the Constitution to the autonomous regions. However, it must be noted that, although these powers have been characterized as irreducible, they are subject to the provisions of this Constitution and national laws. In view of the limitative phrase, it has been observed that the question as to which between a legislative enactment of the local legislature of the autonomous region and a national statute should be given prevalence in case of confict is diffcult to resolve. 65 The complication arises from the fact that Section 20 provides that the enumerated legislative powers of the autonomous regions shall be subject to national laws, which are in turn subject to the Constitution one of whose state policies is to ensure the 65 Such diffculty does not obtain when the confict is between the Constitution and the local statute passed by the legislative of the autonomous region as there is no question that the former, being the fundamental law of the land, prevails in all instances. ne s ri n b . ca l i 32 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 autonomy of local governments. It has been suggested that in reconciling the confict, the ultimate guideline should be the Constitutions desire for genuine local autonomy. 66 Finally, Section 21 deals with matters relating to internal peace and order and national defense and security, the import of which is as follows: Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with the applicable laws. The defense and security of the regions shall be the responsibility of the national government. The provision makes a distinction between the problem of internal peace and order and the problem of national defense and security for the purpose of determining which falls within the responsibility of the autonomous regions or the central government. Thus, the problem of ordinary criminality is the responsibility of the local police agencies, while those relating to threats, stability, integrity and survival of the nation are matters within the competence of the national government. 67 The latter concerns have also been traditionally assigned to the national government. From Legal Fiction to Reality: The Creation of the ARMM Through the Constitutionally Mandated Organic Acts Pursuant to the directives of Sections 18 and 19, Article 10 of the Constitution, the Congress enacted R.A. 6734, otherwise known as An Act providing for an organic act for the Autonomous Region in Muslim Mindanao. It was signed into law on August 1, 1989. The law, in consonance with the constitutional mandate, provided for the basic structure of government within the framework of the fundamental law and national sovereignty and territorial integrity of the Republic of Philippines. At the outset, it must be noted that 66 Supra note 10 at 1107. 67 Id. 33 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 the enactment of the Organic Act does not by itself create the ARMM. As stated earlier, it is the approval by majority votes cast by the constituent units in a plebiscite called for the purpose that shall give birth to the autonomous region. 68
But before the plebiscite could be conducted in the thirteen (13) and nine (9) cities enumerated under the law, 69 the validity and constitutionality of the Organic Act was assailed in the earlier cited case of Abbas v. COMELEC. 70
68 CONST. Art. X, 18. 69 Section 1, par. (2), Article II of the law provides: Sec. 1. x x x (2) The plebiscite shall be conducted in the provinces of Basilan, Cota- bato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cit- ies of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa, and Zamboanga. This, however, has been amended by R.A. 9054 as follows: Sec. 1. Expanded Autonomous Region. (1) The Autono- mous Region in Muslim Mindanao which, under the provisions of Republic Act No. 6734, the Organic Act for the Autonomous Region in Muslim Mindanao, is composed of the four provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi, is hereby expanded to include the provinces and cities, enumerated here- under, which vote favorably to be included in the expanded area of the autonomous region and for other purposes, in a plebiscite called for that purpose in accordance with Section 18, Article X of the Constitution. The new area of autonomy shall then be determined by the provinces and cities that will vote/choose to join the said autonomy. It is understood that Congress may by law which shall be consistent with the Constitution and in accordance with the provisions of Republic Act No. 7160, the Local Govern- ment Code of 1991, provide that clusters of contiguous-Muslim- dominated municipalities voting in favor of autonomy be merged and constituted into a new province(s) which shall become part of the new Autonomous Region. (2) Plebiscite Coverage. The plebiscite shall be conducted in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, Sarangani, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, Zamboanga del Sur and the newly created Province of Zamboanga Sibugay, and (b) in the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Kidapawan, Marawi, Pagadian, Puerto Princesa, Digos, Koronadal, Tacurong and Zamboanga. 70 Supra note 45. ne s ri n b . ca l i 34 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 The petitioners therein posited that the law is invalid for clashing with several provisions of the Constitution. Since the case will give a better understanding of the intricacies involved in the establishment of the ARMM, an exhaustive presentation and discussion of the decision is in order. First, the petitioners argued that R.A. 6734 is violative of the Constitution on the ground that it unconditionally creates the autonomous region in Mindanao when the fundamental law makes such creation dependent on the results of the plebiscite. In support of their supposition, the petitioners cited Section 1, par. (1), Article II of the law which states that [t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution. They contend that the tenor of aforequoted provision makes the creation of an autonomous region absolute so much so that even if only two (2) provinces vote in favor of autonomy, an autonomous region would still be formed, consisting only of the said provinces where the favorable votes were garnered. In discrediting this theory, the Court ruled: The matter of the creation of the autonomous region and its composition needs to be clarifed. First, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. Second, there is a specifc provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and flls in the details, thus: SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the 35 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions. Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. (Citation omitted) 71
(Emphasis supplied) Next, the petitioners raised a question as to what majority means under Section 18, Article 10 of the Constitution. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both? In response to this query, the Court said: 71 Id. at 295-296. ne s ri n b . ca l i 36 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that [t]his Constitution shall take effect immediately upon its ratifcation by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. It will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratifcation of the Constitution, i.e. the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose. It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units. 72
(Emphasis supplied) The petitioners next argument theorized that only those areas in Mindanao which share common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics should be included in the autonomous region. On the basis of this assertion, 72 Id. at 297. 37 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 the petitioners posited that R.A. 6734 is unconstitutional for including areas which do not share such characteristics. 73 Again, the High Court dismissed the contention primarily on the ground that the matter is a political question which it cannot take cognizance of pursuant to the well-entrenched doctrine of separation of powers. The Court wrote: Petitioners argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislatures discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. (Citation omitted) 74 (Emphasis supplied) After challenging the law on the ground that it covers non-Muslim areas, the petitioners took the extreme view that other non-Muslim locale in Mindanao should also be joined in the then to-be formed autonomous region for otherwise the law would be violative of the equal protection clause. In not lending an iota of credence to this position, the Court ruled: Petitioners contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court. Moreover, equal protection permits of reasonable 73 See note 69. 74 Supra note 45 at 298. ne s ri n b . ca l i 38 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 classifcation (citation omitted), the Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classifcation having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself. 75
(Emphasis supplied) The petitioners following contention is premised on the constitutional guarantee on free exercise of religion. The specifc provision assailed was Section 17, par. (2), Article IX 76 of the Organic Act, which provides that should there be a confict between the Muslim Code (P.D. 1083) and the national law, the Shariah courts created under the same Act should apply the national law. Petitioners hold that Islamic law is directly derived from the Quran, 77 which makes it part of divine law. Thusly, it may not be subject to any man-made national law. The Court wrote off this contention, basing its dismissal on the rule on actual case and controversy as a prerequisite for exercise of judicial power. It stated: As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. As a condition precedent for the power to be exercised, an actual controversy between litigants must frst exist (citation omitted). In the present case, no actual controversy between real litigants exists. There are no conficting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential confict between the provisions the Muslim Code and national law. 78 The penultimate argument of the petitioners centered on Section 13, 75 Id. at 298-299.
76 In full, it reads: 77 The Quran is the holy scriptures of the Muslims. See also N. B. Cali, supra note 12 at 200. 78 Supra note 45 at 299-300. 39 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Article XIX of the Organic Act, which, among others, states: Provided, That only the provinces and cities included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided, however, that the President may by administrative determination, merge the existing regions. (Emphasis supplied). They averred that the provision grants the President the power to merge administrative regions, a power not conferred to him by the Constitution. As such, they claimed that the section is contrary to Section 10, Article X of the Constitution. 79 On this point, the highest tribunal of the land clarifed: It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments (citation omitted). There is no confict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. 80 (Emphasis supplied) 79 In full, the provision reads: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by majority of the votes case in a plebiscite in the political units directly affected. 80 Supra note 45 at 300-301. ne s ri n b . ca l i 40 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 As a fnal point, the petitioners questioned that creation of an Oversight Committee 81 under the Organic Act, which shall supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government. It was their position that the formation of such committee would delay the establishment of the autonomous region in Mindanao, contrary to the constitutional edict that such autonomous region shall be formed upon approval in a plebiscite. In writing fnis the decision, the Court held: Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. If the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no basis therefor. 82 (Emphasis supplied) After having triumphed over the constitutional obstacles thrown on its path to full effectivity, R.A. 6734 was subject to the requisite plebiscite on 19 November 1989. The results yielded to only four of the constituent units voting favorably for inclusion in the then nascent ARMM, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. 83 ARMM was formally organized a year later or on 6 November 1990, with former President Aquino leading the 81 This is found under Sections 3 and 4, Article XIX of R.A. 6734. 82 Supra note 45 at 301. 83 Supra note 51 at 207-208. It is worthy to note that the territory covered by the ARMM is smaller than the territory included in the Autonomous Region envisioned under the Tripoli Agreement of 1976. However, as earlier discussed, the provisions of the Constitution defning the areas to be incorporated in the autonomous region prevail over the Agreement, even if the latter were a valid treaty. 41 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 inauguration therefor. By that time, she had already signed seven (7) Executive Orders devolving to ARMM the powers of seven (7) cabinet departments, i.e., local government, labor and employment, science and technology, public works and highways, social welfare and development, tourism, and environment and natural resources. More than a decade after the establishment of the ARMM, the Congress enacted R.A. 9054, 84 which amended the original Organic Act. Similar to its forerunner, the law contained detailed provisions on the powers of the Autonomous Regional Government and those powers which are retained by the National Government. It lapsed into law on 31 March 2001 85 and was subject to a plebiscite on 14 August 2001, whereby the province of Basilan and the City of Marawi voted favorably for inclusion in the ARMM. The amendatory Organic Act, like its predecessor, was subject to constitutional challenge. However, unlike R.A. 6734, a specifc provision of the statute was struck down as unconstitutional by the SC in the recent case of Sema v. COMELEC. 86 Particularly, Section 19, Article VI thereof, which grants the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, was assailed. In declaring the provision as anathematic to the Constitution, the Court lengthily explained: 84 The law is entitled An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended. 85 Const. Art, VII 27 1: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsidera- tion, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall com- municate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it. (Emphasis supplied) 86 558 SCRA 700 (2008). ne s ri n b . ca l i 42 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 The creation of local government units is governed by Section 10, Article X of the Constitution, which provides: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Thus, the creation of any of the four local government units province, city, municipality or barangay must comply with three conditions. First, the creation of a local government unit must follow the criteria fxed in the Local Government Code. Second, such creation must not confict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected. There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no confict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction, subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, only x x x an Act of Congress can create provinces, cities or municipalities. Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies. In the present 43 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conficts with any provision of the Constitution. There is no provision in the Constitution that conficts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, Each city with a population of at least two hundred ffty thousand, or each province, shall have at least one representative in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred ffty thousand shall be entitled in the immediately following election to at least one Member x x x. Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the citys population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district. For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold ne s ri n b . ca l i 44 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative. 87 (Emphasis supplied) Expounding on the pronouncement that the power to create political subdivisions necessarily carries with it the power to create legislative districts, the latter being a strictly legislative power, the Court wrote: Under the present Constitution, as well as in past Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides: SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and ffty members, unless otherwise fxed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.
x x x x
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred ffty thousand,
87 Id. at 728-731. 45 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress. In Montejo v. COMELEC, we held that the power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws, and thus is vested exclusively in Congress. This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body. The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM ne s ri n b . ca l i 46 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress. On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, The Regional Assembly may exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x. Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the frst representative is always elected in the next 47 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 national elections from the effectivity of the law. Indeed, the offce of a legislative district representative to Congress is a national offce, and its occupant, a Member of the House of Representatives, is a national offcial. It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national offce when its legislative powers extend only to its regional territory. The offce of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offces, respectively, and it can never create a national offce. To allow the ARMM Regional Assembly to create a national offce is to allow its legislative powers to operate outside the ARMMs territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assemblys legislative powers [w]ithin its territorial jurisdiction x x x. The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that: Except as may be provided by national law, the existing legislative district, which includes Cotabato City as a part thereof, shall remain. However, a province cannot legally be created without a legislative district because the Constitution mandates that each province shall have at least one representative. Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional. 88 (Emphasis in the original) Both R.A. 6734 and R.A. 9054 are, in legal category, statutes. However,
88 Id. at 731-736. ne s ri n b . ca l i 48 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 they are more than ordinary statutes for the reason that they enjoy affrmation by a plebiscite. As such, they cannot be amended by an ordinary statute. The amendatory law should also be ratifed through a plebiscite. 89 THE EXTENT AND NATURE OF ARMM AUTONOMY: An Act of Self-Immolation An important and relevant facet of the establishment of the ARMM that must not be overlooked is the question on the extent and nature of the constitutionally granted autonomy to the said region. The issue, when dissected, branches out into the following queries: What is the extent of the Presidents power over the autonomous regions, specifcally ARMM? What is the degree of control that the Congress may exercise over these regions, if any? And can the national courts exercise jurisdiction over them? In resolving these questions, it is imperative to consider the constitutional provisions concerning the autonomous regions, the Organic Acts, and the jurisprudence expounding on the nature and extent of such autonomy. The primordial parameter in determining the scope of the autonomy is no less than the Constitution, it being the fundamental source. As quoted earlier, Section 15, Article X thereof declares: There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. (Emphasis supplied) A simple perusal of this provision readily negates the idea that the autonomous region authorized to be created in Muslim Mindanao and in the Cordilleras is a separate and distinct political entity from the Republic of the Philippines. Also, the President is given the power to exercise general supervision 90 over these regions and the powers conferred to them by the Constitution are enumerated so much so that those which are not within the realm of the enumerated
89 Supra note 10 at 1103. See also Disomangcop v. Datumanong, supra note 51 at 225. 90 CONST. ART. X 16. 49 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 powers shall remain with the National Government. 91
However, the demarcation lines that have been drawn by the Constitution to defne the extent of the autonomy of the autonomous regions are not suffciently clear and determinative. Hence, an examination of the Organic Acts is in order. Section 2, Article II of R.A. 6734 reiterates the policy of autonomy found in the Constitution, i.e., the basic structure of government of the ARMM shall be within the framework of the Constitution and national sovereignty and the territorial integrity of the Republic of the Philippines x x x. Also incorporated therein is the power of general supervision of the President over the ARMM. 92
Under Section 1, Article III of the law, it is stated therein that [t]he area of the Autonomous Region in Muslim Mindanao shall remain an integral and inseparable part of the national territory of the Republic of the Philippines as defned by the Constitution and existing laws and that [t]he people of the Autonomous Region shall uphold the Constitution as the fundamental law of the land and unequivocally owe allegiance and fdelity to the Republic of the Philippines. 93 Section 1, Article V thereof provides the matters over which the ARMM has jurisdiction as devolved to it by the Constitution, to wit: 1.) Administrative organization; 2.) Creation of sources of revenues; 3.) Ancestral domain; 4.) Personal, family and property relations; 5.) Regional, urban and rural planning development; 6.) Economic, social and tourism development; 7.) Educational policies; 8.) Preservation and development of the cultural heritage; 9.) Powers, functions and responsibilities now being exercised by the departments of the National Government, except: a) Foreign affairs; b.) National defense and security; c.) Postal service; d.) Coinage, and fscal and monetary policies; e.) Administration of justice; f.) Quarantine; g.) Customs
91 See notes 40 and 94. 92 Section 1, Article VI. In full, the provision reads: The President of the Philippines shall exercise general supervision over the Region- al Government, including the local government units therein, directly or through the Regional Governor, to ensure that national and regional laws are faithfully executed. 93 R.A. 9054 reiterates the same policy under Section 1, Article III thereof. ne s ri n b . ca l i 50 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 and tariff; h.) Citizenship; i.) Naturalization, immigration and deportation; j.) General auditing, civil service and elections; k.) Foreign trade; l.) Maritime, land and air transportation and communications that affect areas outside the Autonomous Region; and m.) Patents, trademarks, trade names, and copyrights; and 10.) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. 94 The executive power is expressly vested in the Regional Governor 94 This provision has been modifed by R.A. 9054. Section 3, Article IV thereof now provides: SEC. 3. Scope of Regional Assembly Legislative Power; Exceptions. The Regional Assembly may exercise legislative power in the autonomous re- gion for the beneft of the people and for the development of the region except on the following matters: (a) Foreign affairs; (b) National defense and security; (c) Postal service; (d) Coinage and fscal and monetary policies; (e) Administration of justice. It may, however, legislate on matters covered by the Shariah. The Shariah shall apply only to Muslims. Its application shall be limited by pertinent constitutional provi- sions, particularly by the prohibition against cruel and unusual punishment and by pertinent national legislation that promotes human rights and the universally accepted legal principles and precepts; (f) Quarantine; (g) Customs and tariff; (h) Citizenship; (i) Naturalization, immigration and deportation; (j) General auditing; (k) National elections; (l) Maritime, land and air transportation, and communications. The autonomous government shall, however, have the power to grant franchises, licenses and permits to land, sea and air trans- portation plying routes in the provinces or cities within the region, and communications facilities whose frequencies are confned to and whose main offces are located within the autonomous re- gion; (m) Patents, trademarks, trade names, and copyrights; and (n) Foreign trade. Also, the General Welfare Clause is now contained in a separate provision under the amendatory Organic Act, specifcally under Section 4, Article IV thereof. 51 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 of the ARMM. 95 With respect to legislative authority, the same is vested in the Regional Assembly except to the extent that it is reserved to the people by provisions on initiative and referendum as provided by law. 96 The three inherent powers of a state, i.e., the police power, 97 the power of taxation 98
and eminent domain 99 have also been delegated to the ARMM subject to limitations provided by law. As regards the administration of justice, Section 1, Article VIII of R.A. 9054 provides that [t]he judicial powers shall be vested in the Supreme Court and in such lower courts as may be established by law including the Shariah Courts x x x. 100 Instructive on this point also are the decisions of the SC on the autonomous regions. Hence, they shall be accordingly discussed below. The extent and nature of the autonomy conferred to the constitutionally established ARMM was frst jurisprudentially tackled in the case of Limbona v. Mangelin, 101 although not in categorical terms because the autonomous region involved in that case was one created under P.D. 1618. 102 The relevant portion of the Decision reads: 95 Section 1, Article VIII of R.A. 6734. This is now contained in Section 1, Article VII of R.A. 9054. It is to be noted that the number of Cabinet members who shall assist the Regional Governor has been increased from nine (9) to ten (10) members under the latter law. 96 Section, Article VI of R.A. 9054. The previous Organic Act contains a similar provision under Section 1, Article VII thereof. 97 Section 4, Article IV , R.A. 9054. 98 Section 1, Article IX, R.A. 9054. 99 Section 6, Article IV, R.A. 9054. 100 This is a modifcation of the provision on the administration of justice under R.A. 6734. Section 1, Article IX thereof reads: Sec. 1. The Supreme Court, the Court of Appeals and other courts established by law shall continue to exercise their judicial powers as provided by the Constitution and national laws. Moreover, R.A. 6734 directly created the Shariah Appellate Court and other Shariah courts under Section 2, Article IX thereof, while R.A. 9054 authorizes the Regional Assembly to establish Shariah courts under Section 5, Article VIII thereof. 101 Supra note 43. 102 Supra note 35. ne s ri n b . ca l i 52 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 It is, to be sure, said that precisely because the Sangguniang Pampook(s) are autonomous, the courts may not rightfully intervene in their affairs, much less strike down their acts. We come, therefore, to the second issue: Are the so- called autonomous governments of Mindanao, as they are now constituted, subject to the jurisdiction of the national courts? In other words, what is the extent of self-government given to the two autonomous governments of Region IX and XII? The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618 promulgated on July 25, 1979. Among other things, the Decree established internal autonomy in the two regions [w] ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution, with legislative and executive machinery to exercise the powers and responsibilities specifed therein. It requires the autonomous regional governments to undertake all internal administrative matters for the respective regions, except to act on matters which are within the jurisdiction and competence of the National Government, which include, but are not limited to, the following: (1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport (7) Postal matters and telecommunications; (8) Customs and quarantine; 53 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and (12) General auditing. In relation to the central government, it provides that [t]he President shall have the power of general supervision and control over the Autonomous Regions ... Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable, and ensure their fullest development as self- reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather ne s ri n b . ca l i 54 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratifcation of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case. 103 A year after the Limbona decision, the Court ruled without any dissent that the autonomy granted to the constitutionally sanctioned autonomous regions is not merely administrative autonomy but political autonomy or decentralization of power in the case of Cordillera Broad Coalition v. COA. 104
The Court, this time in a more clear-cut language, said: It must be clarifed that the constitutional guarantee of local autonomy in the Constitution [Art. X, Sec. 2] refers to the administrative autonomy of local government units or cast in more technical language, the decentralization of government authority. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the 1973 Constitution [Art. II, Sec. 10]. And while there was no express guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act [R. A. No. 2264] and the Decentralization Act [R.A. No. 5185], which ushered the irreversible march towards further enlargement of local autonomy in the country. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy of these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions [Art. X, Sec. 18]. (Emphasis supplied) 103 Supra note 45 at 793-795. 104 181 SCRA 495 (1990). 55 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 A more extensive discussion on the scope of autonomy was taken up in the more recent case of Disomangcop v. Datumanong, 105 which principally involved the jurisdiction of ARMM over public works. In holding that the ARMM, by virtue of the autonomy it wields as an autonomous entity, has jurisdiction over public works, the Court, through retired Justice Tinga, elucidated: Decentralization is a decision by the central government authorizing its subordinates, whether geographically or functionally defned, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the sub- units that have been authorized to act (by delegation) do not possess any claim of right against the central government. Decentralization comes in two forms deconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national offce to the regional and local offces. This mode of decentralization is also referred to as administrative decentralization. Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units. This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities. It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their 105 Supra note 51. ne s ri n b . ca l i 56 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 administrative and technical capabilities. This Court elucidated the concept of autonomy in Limbona v. Mangelin, thus: Autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event the autonomous government becomes accountable not to the central authorities but to its constituency. 57 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 In the case, the Court reviewed the expulsion of a member from the Sangguniang Pampook, Autonomous Region. It held that the Court may assume jurisdiction as the local government unit, organized before 1987, enjoys autonomy of the former category. It refused, though, to resolve whether the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration. A year later, in Cordillera Broad Coalition v. Commission on Audit, the Court, with the same composition, ruled without any dissent that the creation of autonomous regions contemplates the grant of political autonomyan autonomy which is greater than the administrative autonomy granted to local government units. It held that the constitutional guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. And by regional autonomy, the framers intended it to mean meaningful and authentic regional autonomy. As articulated by a Muslim author, substantial and meaningful autonomy is the kind of local self-government which allows the people of the region or area the power to determine what is best for their growth and development without undue interference or dictation from the central government. To this end, Section 16, Article X 7 limits the power of the President over autonomous regions. In essence, the provision also curtails the power of Congress over autonomous regions. Consequently, ne s ri n b . ca l i 58 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Congress will have to re-examine national laws and make sure that they refect the Constitutions adherence to local autonomy. And in case of conficts, the underlying spirit which should guide its resolution is the Constitutions desire for genuine local autonomy. The diminution of Congress powers over autonomous regions was confrmed in Ganzon v. Court of Appeals,
wherein this Court held that the omission (of as may be provided by law) signifes nothing more than to underscore local governments autonomy from Congress and to break Congress control over local government affairs. This is true to subjects over which autonomous regions have powers, as specifed in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas. Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government. x x x The aim of the Constitution is to extend to the autonomous peoples, the people of Muslim Mindanao in this case, the right to self- determinationa right to choose their own path of development; the right to determine the political, cultural and economic content of their development path within the framework of the sovereignty and territorial integrity of the Philippine Republic. Self-determination refers to the need for a political structure that will respect the autonomous peoples uniqueness and grant them suffcient room for self- expression and self-construction. In treading their chosen path of development, the Muslims in Mindanao are to be given freedom and independence with minimum 59 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 interference from the National Government. This necessarily includes the freedom to decide on, build, supervise and maintain the public works and infrastructure projects within the autonomous region. The devolution of the powers and functions of the DPWH in the ARMM and transfer of the administrative and fscal management of public works and funds to the ARG (Autonomous Regional Government) are meant to be true, meaningful and unfettered. This unassailable conclusion is grounded on a clear consensus, reached at the Constitutional Commission and ratifed by the entire Filipino electorate, on the centrality of decentralization of power as the appropriate vessel of deliverance for Muslim Filipinos and the ultimate unity of Muslims and Christians in this country. 106
(Emphasis supplied) Thus, as can be deduced from the aforecited relatable provisions of the Constitution, the Organic Acts and the jurisprudence on the matter, the autonomy that ARMM is endowed with does not merely refer to transfer of administrative powers. It involves actual abdication of political powers thus allowing the autonomous region to decide for itself what is best for its growth and developmentpolitically, economically and culturallywithout much intervention from the central repository of authority. It is wider in scope than the local autonomy granted to local government units 107 and as such, it is 106 Id. at 233-240. 107 CONST. Art. X 2. The Court made a distinction between the local autonomy granted to the local gov- ernment units and the regional autonomy conferred to autonomous regions in Limbona, supra note 51, in this wise: Under the 1987 Constitution, local government units enjoy au- tonomy in these two senses, thus: Section 1. The territorial and political subdivisions of the Repub- lic of the Philippines are the provinces, cities, municipalities, and barangays. Here shall be autonomous regions in Muslim Mindanao ,and the Cordil- leras as hereinafter provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. xxx xxx xxx See. 15. There shall be created autonomous regions in Muslim ne s ri n b . ca l i 60 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 tantamount to semi-independence. AUTONOMY AND THE IMPLICIT RIGHT TO SELF- DETERMINATION: Do They Confer the Right of Secession? Implicit in the bestowing of regional autonomy to the ARMM is the recognition of the right of its people to self-determination, i.e., the right of the people to chart their own destiny. On this point, an interesting question arises: Does the right to self-determination, in turn, give ARMM the right to secede from its mother nation-state? It was in the Disomangcop 108 case that the Court had the occasion to address this matter on self-determination as a necessary consequence of regional autonomy. In answering the query posed earlier in the negative, the Court expounded: [T]he creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Regional autonomy is the degree of self-determination exercised by the local government unit vis--vis the central Mindanao and in the Cordilleras consisting of provinces, cities, municipali- ties, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant charac- teristics within the framework of this Constitution and the national sover- eignty as well as territorial integrity of the Republic of the Philippines. An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X, sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of autonomy. On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national govern- ment acting through the President (and the Department of Local Govern- ment). If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the for- mer category only, it comes unarguably under our jurisdiction. 108 Supra note 51. 61 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 government. In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the communitys internal decision-making processes and the management of collective matters by themselves. If self-determination is viewed as an end in itself refecting a preference for homogeneous, independent nation- states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an endthat end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protectedits continuing validity is more easily perceived. 109 The abovequoted ruling was echoed resoundingly by the Court in its decision in The Province of North Cotabato v. The Government of the Philippines Peace Panel on Ancestral Domain. 110 The Court, through Justice Carpio-Morales, explicated on the reason why the right to self-determination, although recognized, cannot be used as a basis for the right to secede in this wise: International law has long recognized the right to self-determination of peoples, understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond convention and is considered a general 109 Id. at 229-231. 110 568 SCRA 402 (2008). ne s ri n b . ca l i 62 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 principle of international law. Among the conventions referred to are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, freely determine their political status and freely pursue their economic, social, and cultural development. The peoples right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive: (ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-determination of a people is normally fulflled through internal self-determination a peoples pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defned circumstances. x x x External self-determination can be defned as in the following statement from the Declaration on Friendly Relations as
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that 63 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 people.
127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a peoples right to self- determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be suffciently limited to prevent threats to an existing states territorial integrity or the stability of relations between sovereign states. The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and less defnitely but asserted by a number of commentators is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplifed in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION. There, Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue ne s ri n b . ca l i 64 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows: x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is defnitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating diffculties and a lack of stability which would not only be contrary to the very idea embodied in term State, but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, 65 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a defnitively constituted sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself a right which sovereign nations generally have with respect to their own populations. Turning now to the more specifc category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as indigenous since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that fnd themselves engulfed by settler societies born of the forces of empire and conquest. Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. As with the broader category of peoples, indigenous peoples situated within states do not have a general right to independence or secession from those states under international law, but they do have rights amounting to what was discussed ne s ri n b . ca l i 66 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 above as the right to internal self-determination. 111 (Emphasis in the original) Deducing from the above explication of the Court, the recognized right to self-determination of the Bangsa Moro people as a consequence of the autonomy granted to them cannot be validly invoked as a source of the right to secede from the Republic of the Philippines since what is acknowledged is internal self-determination and not external self-determination, the latter essentially consisting of politically disaffliating from the mother state. As the Court held, the latter form of self-determination only applies in exceptional cases, none of which obtains in the case of Muslim Mindanao. The SC, in the same case, also ruled on the effect of the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) on the Bangsamoro peoples right to separate from the mother state, viz.: In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit: Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their
111 Id. at 489-494. 67 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for fnancing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to internal self-determination. The extent of self-determination provided for in the UN DRIP is more particularly defned in its subsequent articles, some of which are quoted hereunder: Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; ne s ri n b . ca l i 68 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 69 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justifed by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. ne s ri n b . ca l i 70 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements. Article 38 States in consultation and cooperation 71 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law a question which the Court need not defnitively resolve here the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, 112 the particular rights and powers provided for in the MOA-AD. 113 Even the more specifc provisions of the UN DRIP are general in scope, allowing for fexibility in its application by the different States. (Emphasis in the original) The above decision more than makes clear that the Bangsa Moro people cannot legally secede from the Republic of the Philippines on the strength of the autonomy it presently enjoys. Such autonomy and the implicit right to self-determination do not confer upon it the license to form its envisioned independent Islamic state for the abdication of a territorial portion of a state is essentially an attribute of sovereignty. This means that only the mother state, as the entity possessing sovereignty, may legally take the initiative to surrender a part of its territory. ARMM UNDER THE LIMELIGHT: An Appraisal of the Constitution-Authorized Arrangement for Peace and National Unity As presented in the earlier sections of this article, the ARMM was established primarily to answer the call of the Bangsa Moro people for genuine and meaningful autonomy, which would extend to them the right to decide which path to take in pursuit of their growth and development as a people with distinct culture, traditions and religious beliefs. It was also meant to put a period to the decades-old armed confict in Mindanao and attain a unifed and 112 BJE stands for Bangsamoro Juridical Entity. 113 Memorandum of Agreement on the Ancestral Domain. It was entered into by and between the Government of the Philippines and the MILF to implement the Ancestral Domain aspect of the 2001 Tripoli Agreement. ne s ri n b . ca l i 72 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 harmonious relationship between the Muslims and Christians in the country. In the twenty (20) longs years that it has been in existence, one may ask: Has the ARMM achieved the objectives and purposes for which it was created? Has it been an adequate answer to the call of the Bangsa Moro people for genuine autonomy? Has it brought peace and prosperity to Mindanao? Has it restored the lives of its people to normalcy? Has it achieved unity between the Muslim and Christian citizens of the country? In responding to these questions, it is imperative to consider the factors indicative of the success of the ARMM as epoch-making, Constitution-based project to achieve national unity and prosperity for the Bangsamoro people, such as the state of the regions economy, governance, education and security. Economy Even before ARMM was established, Mindanaos economy, despite its vast natural resources, was underdeveloped. In fact, the economic problem that plagued the area was one of the factors that inspired the separatist groups. Unfortunately, decades after the ARMM came into existence, such economic underdevelopment still looms in Mindanao. Economy-wise, reports have confrmed that ARMM has fared poorly. In the year 2000, the region claimed the top spot in a survey concerning the Philippines poorest regions conducted by the National Statistical Board Coordination (NSBC). 114 Three years later, although it was toppled off the top position, two of its constituent provinces, Zamboanga del Norte and Maguindanao, occupied the frst and second positions respectively in the list of the most poverty-stricken provinces. In 2006, it was reinstalled as the poorest region in the same survey, with Tawi-Tawi, Maguindanao and Lanao del Sur being among the top ten poorest provinces of the country. 115 Reports also show that in Maguindanao alone, seven (7) out of ten (10) of its inhabitants are 114 http://www.nscb.gov.ph/poverty/2006_05mar08/table_16.asp (last accessed 21 December 2009). 115 Id. 73 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 poor and a third of them cannot even afford the minimum food requirements, pegged at P28.58 per day. 116 The region has remained desperately impoverished despite the huge amount of funds it received from the National government and foreign-funding institutions, and a promising increase of its gross regional domestic product (GRDP). 117 Income-generating activities that can help boost its economy, such as local or foreign investments, are also scarce, further worsening the regions already gloomy economic state. Employment rate is also lamentable, given the fact that there is very little business development in the region. The only sectors driving and supporting ARMMs economy are the agricultural and fsheries sectors. 118
Governance With respect to governance and administration, graft and corruption have long been imputed to the ARMM government, an assertion which may give sense to the fact that despite substantial amount of funds being poured into the region by the National Government, its people still languish in pitiable state of impecuniosity. In the General Appropriations Act of 2003, more than P5 billion (P5,023,758,000.00) was allotted to the region. 119 The same amount was extended to it in the following year. In the year 2005, the amount increased by more than P1 billion, that is, P6,691,223,000.00 and the same sum was appropriated for the region in the year that followed. 120 In the years 2007 and 2008, ARMM received P8,644,315,000.00 121 and P8,331,452.00 respectively. 122 Finally, in 2009, it obtained almost P10 billion in funding, 116 http://balita.ph/2010/01/25/acting-armm-gov-optimistic-on-growing-econo- my/ (last accessed 27 January 2010). 117 Id. 118 http://newsinfo.inquirer.net (last accessed 21 December 2009). 119 http://www.dbm.gov.ph/dbm_publications/gaa_2003/gaa_links/ARMM1STP. pdf.#autonomous (last accessed 21 December 2009). 120 http://www.dbm.gov.ph/gaa2005/ar.txt (last accessed 21 December 2009). 121 http://www.dbm.gov.ph/gaa2007/AR/AR.pdf (last accessed 21 December 2009). 122 http://www.dbm.gov.ph/gaa2008/Disk29/ARMM_A.pdf (last accessed 21 De- cember 2009). ne s ri n b . ca l i 74 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 i.e., P9,448,957,000.00. 123 Aggregately therefore, ARMM received more than P50 billion from the National Government from 2003-2009. This is not the only source of funding of ARMM as it is also empowered to raise its own revenues and is entitled to a share in the Internal Revenue Allotment (the share of the local units in the national taxes collected). Further, it is a benefciary to several foreign-funded projects, including those programs bankrolled by the United States Agency for International Development (USAID), the Japanese International Cooperation Agency (JICA), Canadian International Development Agency, the Asian Development Bank (ADB), Australian Agency for International Development (AusAID), World Bank and the European Union. 124 It is thus mystifying that, notwithstanding the fact that it receives more funding than any other local government unit in the country, the region has consistently occupied the top position in the roster of most impoverished regions in the Philippines. It has very little to show for such a huge amount of money it is given. But such allegations of corruption are not at all bare and conjectural. A glaring illustration of the corrupt practices in the regional government is the unexplained wealth that its offcials have amassed over the years. For instance, after the gruesome Maguindanao Massacre shuddered the country, which incident is principally linked to the Ampatuans, the National Government conducted investigations on latters assets and raided their mansions. Reports reveal that the networth of the Ampatuans is P1.3 billion and they own about thirty-four (34) mansions in different parts of the country. 125 In the course of the raids, a feet of luxurious vehicles were found and even hoards of state-of- the-art-armaments were discovered buried in the backyard of the Ampatuan residence. 126 This situation does not only hold true for the Ampatuans. In several 123 http://www.dbm.gov.ph/GAA09/AR.pdf (last accessed 21 December 2009). 124 Supra note 118. 125 http://www.abs-cbnnews.com/nation/12/09/09/wealth-ampatuan-sr-only- p11-m (last accessed 21 December 2009). 126 http://www.sunstar.com.ph/manila/military-probes-frearms-found-near-am- patuans-home (last accessed 2 December 2009). 75 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 parts of Muslim Mindanao, local government offcials and their families live like royalties while their constituentsthe people they are supposed to serve and provide a better tomorrow towallow in poverty and are compelled to seek livelihood elsewhere, whether in other parts of the country or abroad. Although graft and corruption is not a peculiar attribute of the ARMM government as the same holds true for other local government units as well as the National Government, it is safe to say that it is more severe in this regional government so much so that it has left the ARMM lagging behind and eroded its chances for holistic development. Education With armed confict, rampant lawlessness, corruption and poverty lurking around, it is no surprise that the state of ARMMs education is deplorable. Hostilities in the area have continuously disrupted classes with public schools being used as evacuations centers for displaced families. 127
Another signifcant factor which has rendered the regions education in a dreadful state is the non-payment of salaries of public school teachers. For years, teachers in the region have complained of delay or no-payment of their salaries and the illegal deductions made thereon. 128 The failure of the regional government to account for their Government Service Insurance System (GSIS) contributions, which are directly deducted from their salaries, has also been protested against. 129 These teachers cannot be expected to perform at their best when they are meagerly compensated, hence aggravating the regions poor educational condition. 127 http://newsinfo.inquirer.net/breakingnews/regions/view/20090921-226303/ Poor-test-scores-blamed-on-ARMM-unrest (last accessed 21 December 2009). 128 http://newsinfo.inquirer.net/breakingnews/regions/view/20100210-252423/ DepEd-ARMM-stops-illegal-deductions-from-teachers-pay (last accessed 02 February 2010) 129 http://www.newsfash.org/2004/02/ht/ht005318.htm (last accessed 21 Decem- ber 2009). ne s ri n b . ca l i 76 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 Peace-and-Order and Security Conditions The peace-and-order condition of the region, needless to say, is appalling such that it has gained worldwide attention and notoriety. However, it is not only the fact that it is a hub of insurgent, even terrorist organizations that is contributing to the regions volatile security. Rampant lawlessness, aggravated by warlordism among powerful political families, seems to be the norm in the area. Violent cultural practices such as rido or clan wars, whereby feuding families kill off each other and without being brought under the penal justice system, are commonplace. Election-related violence is another testament to the unstable peace- and-order condition of the ARMM. In the past elections, for instance, the COMELEC had to declare failure of election in the region and defer elections at a later date. Reports also disclose that the 2001, 2004 and 2007 elections in the area were marred by violence and deaths. 130 In anticipation of the 2010 elections, the Philippine National Police (PNP) has declared the entire ARMM as an election hotspot, thus necessitating strict security measures. However, there is no better verifcation of this prevalent lawlessness and atmosphere of violence in the region than the most brutal and inhumane act of violence in the Philippines election-related historythe Maguindanao Massacre. CLOSING CURTAIN: Fulflling the Promise of the Land of Promise In his ponencia in the case of Disomangcop, Justice Tinga eloquently characterized the ARMM as the epoch-making, Constitution-based project for achieving national unity in diversity. 131 Indeed, the ARMM was created for a very noble and rightful purpose. It was meant to be the National Governments answer to the strident clamor for autonomy among the Bangsamoro people. It was intended to give them the avenue to freely pursue their political, economic, 130 http://newsinfo.inquirer.net/breakingnews/nation/view20100120-248428/En- tire-ARMM-seen-as-hotspot (last accessed 23 January 2009). 131 Supra note 51 at 205. 77 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 social and cultural development with the least interference from the central government. It was meant to allow their distinct and highly Islamic-infuenced culture and traditions fourish in the midst of a predominantly Christian nation-state. It was meant to quell the armed violence and bloodshed therein, which to date have claimed thousands of lives and displaced innocent families. It was to serve as the peace pact between the Bangsamoro people and the National Government. It was to be symbolic of the beginning of unity and harmonious relations between Muslims and Christians of the country. After twenty (20) years and after an objective consideration of the resultant events that transpired since its establishment, there is no room for doubt that the ARMM has done very little to achieve objectives that animated it into life So where did the ARMM go wrong? The failure of the ARMM to fully realize the goals for which it was created may be charged against the lack of proper and exhaustive study of its viability by the National Government and those who advocated for its establishment. The Government, before it granted certain parts of Mindanao the choice to be autonomous, should have fully analyzed and examined the then prevailing conditions in the region: In terms of governance and political culture, can they effectively lead themselves? Economy- and resources-wise, can they subsist on their own? Is the educational system therein stable so that it can provide its people the opportunity to a better life, employment and the chance to be freed from poverty? Are there enough jobs in the different economic sectors therein to provide livelihood for its people? Can they stand on their own without much assistance from the central government? These are the signifcant questions that should have been considered resolved to give the National Government a better insight before it decided to heed the call for autonomy among the Bangsa Moro people. True, the struggle of the Bangsa Moro people to attain independence had been in existence for decades already even before the birth of the ARMM. But that does not justify the Governments hasty decision to give Muslim Mindanao an autonomous status. As the old saying goes, anything done in a hurry yields poor results. ne s ri n b . ca l i 78 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 The situation in the ARMM may be analogously juxtaposed to the case of a child of tender age whose parents have let him gone to completely rely on himself. Needless to say, the child is without the faculty and capability to take care of himself. For the parents to continue to leave the child on his own would be deleterious to his welfare and well-being. Thus, before they may free him of their parental authority and allow him to set out into the world and drive his own life, it is important to infuse in him the values that would aid him in his decision-making, arm him with the resources necessary for his existence, and make certain that he indeed capable of charting his own destiny. Undoubtedly, the ARMM has failed. The author, therefore, staunchly believes that the ARMM should be abolished or at least modifed in a fashion that its present results would be forestalled, if its abolishment proves to be too drastic or unviable. Of course, such would call for an amendment of the Constitution since, as pointed out earlier, the legal spring of the ARMM is primordially the Constitution. It is acknowledged that altering the Charter is easier said than done for the process could be rigorous, even controversial. But if it is the only and most prudent way to salve Muslim Mindanao from the enumerable problems weighing it down to destruction, it would be more than worth it to undergo the complicated process. It must be noted also that the present statutes governing the ARMM should be repealed or amended accordingly, as the case may be. The proposed abolition of the ARMM is not bereft of any legal or logical basis. To this day, the armed confict in the region has not permanently ceased. To this day, thousands of families have been displaced and schooling continues to be disrupted by the war. Corruption in the regional government has obviated any form of progress in the region. Ordinary people still endure the harshness of poverty while those who are in power found the autonomous atmosphere a convenient environment for creating their own fefdom. Lawlessness and violence still affict the region, as recently shown by the Maguindanao Massacre. Incidentally, it may be argued that the fault 79 AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 for the Maguindanao Massacre should not be attributed to the ARMM. 132
However, it must be emphasized that the Maguindanao Massacre is the ultimate manifestation and substantiation of the uncontrollable lawlessness in the region. Taking into account the devastating outcome of the ARMM, it seems that it no longer exists for the reasons for which it was founded. It prompts one to ask: Does it still exist for the welfare of the Bangsamoro people or does it subsist to serve the vested interests of those who wield power in the region? Moreover, do the ordinary Bangsa Moro people genuinely desire autonomy or separation from the mother state? In the creation of the ARMM, were they suffciently represented in the voice that persistently clamored for autonomy? Or was it just the voice of the powerful, the infuential among them that called for it? Thus, the autonomy granted to the ARMM as it is presently should be withdrawn for the aftermath speaks for itselfit has done no good to the people whom it is supposed to accord the right to self-determination and whose lives it is supposed to alleviate. It must be emphasized that autonomy should not only be understood in its superfcial sense, that is, in the context of territorial secession. It should essentially be understood as autonomy and independence in terms of good governance, economy and resources vital for the subsistence of a community. For if a supposed autonomous community cannot even afford to stand on its own two feet, the autonomy granted to it and the right to self-determination, which it holds by virtue of such autonomy, are nothing but a mirage, a blinding illusion. Autonomy, in that setting, inevitably becomes the road to self- destruction. Thus, until and unless Muslim Mindanao has the meansin terms of good governance and economy and resourcesto enable it to stand on its own, which it clearly presently does not possess, the grant of autonomy and the right to self-determination is meaningless and nugatory. In fact, according autonomy under such circumstances can, as it has, result to the achievement of the extreme opposite of its avowed purpose, i.e., instead of serving the interests and well-being of the Bangsa Moro people, it can be detrimental to 132 http://www.philstar.com/Article.aspx?articleId=534367&publicationSubCategoryId=67 (last ac- cessed 23 December 2009). ne s ri n b . ca l i 80 us t l aw re v i e w, vol . l i x , ay 2 0 0 9 - 2 0 1 0 them and actually threaten their very existence as a people, as a community. 133 Autonomy, secession, independencethese are not what Muslim Mindanao needs at this time of struggle against poverty, large scale graft and corruption, and violence. What it really needs to fght for instead is to improve the state of its education, boost its economy by developing the industries that primarily support it, generate jobs to give its people livelihood for their subsistence, and strive to eliminate the armed confict therein so as to cease all the adverse effects the latter has ensued. What it needs right now is to engage in more productive activities that can uplift the condition of its peoples lives. To be able to do so, it must fully cooperate and stand as one with the rest of the country. However, it must be underscored that the authors stand to abolish or modify the ARMM does not necessarily mean the total preclusion of any grant of autonomy in the future should the proposal be taken into consideration and given effect by the countrys lawmakers. The Bangsamoro people will still then have a legitimate claim to autonomy. However, it should not be granted to them now, not at this time when they are clearly incapable and incompetent of truly determining what is best for their growth and development as a people. Before closing the curtain, let it be said with resonance that the National Government, as parens patriae, must take immediate and concrete action before Mindanao, labeled as the Land of Promise, is shattered into destruction and forever becomes The Lost Land of Unfulflled Promise.
133 Furthermore, the citizens of the country should not be made to pay, in the form of taxes, for a system that is clearly not working. The billions of funds being poured into the ARMM should instead be devoted to other public purposes which are more benefcial to the country. http://www.mb.com.ph/node/234948/gibo-join (last ac- cessed 21 December 2009).