THE national government “may have to devolve powers” further to the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM), according to a former official of the Autonomous Region in Muslim Mindanao (ARMM), noting that the newly-established region cannot be seen as a template for federalism.

Former ARMM Regional Board of Investments (BoI) chair Ishak V. Mastura said, “There may be a need to again devolve powers (in) the Bangsamoro similar to the ARMM’s experience of issuing Executive Orders through an Oversight Committee under [its regional charter], Republic Act 9054.”

Mr. Mastura was one of the speakers at the Institute for Autonomy and Governance’s (IAG) “National Forum and Launch of the Policy Report on Prospects and Proposals for Charter Change and Federalism” held in Makati City on April 5.

He noted that the Bangsamoro Organic Law (BOL) has been often referred to by public officials as a template for federalism. “However, it is far from being a template for federalism because it is crafted in compliance with a unitary state constitution,” he said.

“The basis for autonomy in the Bangsamoro region is the 1987 Philippine Constitution, which has no federal features at all even in the set-up of autonomous regions because there is no shared sovereignty concept in it.”

He said further that “being subject to national laws weakens autonomy as it defeats the hierarchy of laws that makes the Organic Act superior to other laws as upheld by the Supreme Court and allows changes to the BOL without need for a plebiscite whenever national laws are changed.”


The Bangsamoro parliament, Mr. Mastura explained, may be reduced to “a mere rule-making body with no power to pass original legislation as it has to be careful that national laws are not violated.”

Without clarifying their supervisory powers through a devolution process, Mr. Mastura said “there is always the risk that Bangsamoro authorities may be perceived to exercise ‘color of authority’,” which he defined as “the appearance or presumption of an official or legal power given to a person or an institution to do something.”

“In ordinary Filipino parlance, we have the word ‘colorum’ to refer to a semblance of legal authority to operate from what is actually a franchise violator,” he said.

‘POWERS REMOVED’

Mr. Mastura said there were powers removed in the grant of autonomy that “shows the unitary intent of the BOL.”

He said the “Local administration, municipal corporations and other local authorities….” were “deleted in the final version” of the BOL.

“This could mean that the supervisory jurisdiction of the Bangsamoro government over local governments has been revoked,” he noted.

“By removing it from the original BBL (Bangsamoro Basic Law), it curtails Art. VI of the BOL that states: SEC. 10. Bangsamoro Government and its Constituent Local Government Units – The authority of the Bangsamoro Government to regulate the affairs of its constituent local government units shall be guaranteed in accordance with this Organic Law and a Bangsamoro local government code to be enacted by the Parliament. The privileges already enjoyed by local government units under Republic Act No. 7160, otherwise known as the ‘Local Government Code of 1991,’ as amended, and other existing laws shall not be diminished,” he further explained.

Other existing national laws, he stressed, “remain applicable to the LGUs in the Bangsamoro; and with the removal of primary jurisdiction over local administration and its autonomous powers being subject to national laws, future national legislation on local governments will prevail over the BOL.”

For his part, Michael Henry Ll. Yusingco of the Ateneo Policy Center and the IAG said he, too, does not subscribe to that idea that the BOL is a template for federalism because, similar to what Mr. Mastura pointed out, the law “does not even contain the very fundamental feature of a federal structure and that is the ‘shared-rule and self-rule’ arrangement.”

“The BOL is a regional autonomy set-up, plain and simple. Accordingly, I treat the BOL as the perfect template for a local autonomy regime alternative to our current one established under the Local Government Code of 1991,” he said in an e-mail on Sunday.

As far as the BARMM is concerned, he said the BOL is still an improvement from RA 9054, or the ARMM Law, specifically with the mandate to organize intergovernmental relations (IGR) bodies.

“So for the BTA (Bangsamoro Transition Authority), it is not necessary to look at the BOL as a template for federalism. I think the BTA must instead focus on utilizing the IGR bodies to assert regional autonomy. This is the way to differentiate the BARMM from the ARMM,” he added.

Sought for comment, BTA member Omar Yasser C. Sema said the devolution of powers is no longer needed.

“No need. The BOL is clear in terms of the powers that have been already granted in the Constitution and specified and itemized in the BOL…. This is signified and indicated in the block grant, which gives the parliament the power to appropriate with the conditions stated in the BOL, like salaries, wages, etc. So in a way, there’s no more need for the devolution of powers. We can establish the ministries, and then these ministries can exercise the powers that have been allocated in the BOL,” he told BusinessWorld in an interview.

Mr. Sema further explained that “the minutes of the bicam is clear that those powers that have already been itemized and specified in the BOL can no longer be exercised by the national government, and there is a specific provision there that somehow supports that point of view, like national programs and projects shall continue to be funded by the national government.”

“I don’t think there will be overlapping of functions. In case of conflict in the exercise of these powers, the IGR that is stated in the BOL can mitigate or resolve the matter,” he added.

NEW LOCAL AUTONOMY LAW
For Mr. Yusingco, if President Rodrigo R. Duterte’s federalism initiative does not push through, the “alternative is to totally revamp the current local autonomy set-up.”

“To do this, I propose the enactment of a new local autonomy law to replace the Local Government Code of 1991 using the BOL as a basic template.”

This new law, according to Mr. Yusingco, must then institute “a regional governance framework, clear power-sharing between the local government and the national government as well as amongst the different levels of local governments, and intergovernmental relations (IGR) mechanisms.”

“Furthermore, precisely because of substantial devolution of public functions and funds, other measures to ensure the sustained and significant involvement of the people in local politics such as an anti-local dynasty mechanism and political party prescriptions are likewise imperative in this new local autonomy law.”

“[We’re] (k)eeping in mind of course that the engagement of the community in local-level governance is crucial to the success of the enhanced local autonomy regime itself. Without institutions to enable the people to participate in local governance, local dynasties will be further entrenched. This will not bode well for the development aspirations of the regions,” he said. — Arjay L. Balinbin