UST Law - An Abused Autonomy

8/11/2019 UST Law - An Abused Autonomy

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AN ABUSED AUTONOMY AND THE LOST

LAND OF UNFULFILLED PROMISE:

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 c l e s

* 10 Ll.B., candidate, University of Santo Tomas Faculty of Civil Law.Editor-in-Chief,

UST Law Review.


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n e s r i n b . c a l i4

u s t l a w r e v i e w , v o l . l i x , a y 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 SELFDETERMINATION: 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: Fullling the Promise of the Land of Promise

Autonomy should not only be understood in its supercial 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.1It 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 fty-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

1http://www.philstar.com/article.aspx?articleid=526314 (last accessed 21 Decem-

ber 2009).

2http://www.philstar.com/article.aspx?articleid=526314 (last accessed 21 Decem-ber 2009).


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5AN ABUSED AUTONOMY AND THE LOST LAND OF UNFULFILLED PROMISE


Maguindanao,3Ishmael Toto Mangundadatu, the latters sisters, journalists,

media men, lawyers, motorists4were about to le the certicate of candidacy

of vice mayor Mangundadatu for the gubernatorial race in the town of Buluan

with the Comission on Elections (COMELEC) ofce 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 killed5and

practically all of the women were shot in their genitals and decapitated.6The

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 rst 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

reection and manifestation of the deplorable state of Mindanao in terms ofpolitics, economy and peace-and-order conditions.

Indeed, the Maguindanao Massacre has focused the limelight on the

ARMM.8It impelled some to call for its abolishment, while others insisted that

3Maguindanaois a province of the Philippines located in the Autonomous Regionin 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.

4Vice-mayor Mangundadatu reportedly invited the 37 journalists to cover the lingof his candidacy as word reached him that his political rivals would chop him into pieces

once he led his certicate of candidacy. He believed that sending his wife and his sisters,along with the journalists, would deter such threatened attack.

5http://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).8ARMM stands for Autonomous Region in Muslim Mindanao.


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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 people9and what will

nally 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 ght for

independence among the people of Muslim Mindanao10will 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.

9Infranote 13.

10As 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.)


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Islam, as a religion and as a way of life,11 was introduced in the

Philippines between the 12thand 14thcentury, with the arrival of Arab traders,

travelers, sus(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 sultanates12 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 hasnot 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.15It has been an important component of their identity

as a people. Hence, when the Spanish conquistadores arrived in the Philippines

in 1521, the aggressive deance against colonial subjugation among the Bangsa

Moro people was understandablethey deemed that their faith and distinctidentity as a people was under imminent threat of being destroyed and taken

11N. 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.

12Sultanates are political units ruled by a chief called sultan. Each sultanate wasindependent, had sovereign power and had diplomatic and trade relations with other countries

in the region.

13Bangsa Moro (the Moro People) is the generic name for the 13 ethnolinguisticMuslim tribes in the Philippines which constitute a quarter of the population in Mindanao inthe Southern Philippines. They number from 5-6 million and are found in every major islandof 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 differentgroups. There are three main Moro ethnolinguistic groups: the Maguindanao-Iranun group inthe 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 dened 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.

15Supranote 11.


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away, considering the hard line proselytizing by the Spanish conquerors.16

They persisted in resisting and disallowing any colonial rule and inuence 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-inuenced

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.17They, as they did during the Spanish reign, ercely revolted against

American rule for the same principal reasonthe protection of Islam andpreservation 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

16Islam reached the inhabitants of the northern part of the Philippines. After thearrival of the Spanish colonizers, said inhabitants were converted to Catholicism.

17The treaty was signed on 19 December 1898.

18http://untreaty.un.org/unts/1_60000/1/6/00000254.pdf (last accessed 21December 2009).


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endeavor to secure autonomy and self-determination in order to keep their

Islamic beliefs and culture pure from external inuences, as their homeland was

annexed to the predominantly Catholic Philippine Republic. Specically, they

fear that their religious, cultural, and political traditions may be weakened or

destroyed in view of the said annexation. The inux 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 ery 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,19rampant 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

19Also 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 onguerilla tactics in preparation for Operation Merdeka, then a top-secret plan of former

Philippine President Ferdinand Marcoss administration to invade the east Malaysian state ofSabah, which the Philippines claims as part of its territory. The recruits were brought to theisland 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 ofcers of the Armed Forces of the Philippines (AFP) to Malacaang.

Although investigations were made by the government and court-martial proceedings againstthe ofcers 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 werenever answered.


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pushed for the independent statehood of Mindanao. Particularly, the MNLF

believes that (1) the Moro people constitute a distinct bangsa(nation) that has

a specic 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 jihad20against 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.22Disagreements 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

20From the Islamic point of view, Jihad

21 www.army.mil.ph/OG5_articles/Insegencies.htm (last accessed 21 December2009).

22The 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 AncestralDomain, infranote 117.)


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accomplish such through dawa (Islamic preaching) andjihad.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.24It has also been under suspicion of being linked to the

notorious Bin Laden-led terrorist groupAl-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 ofthousands others in refugee camps in several provinces in Mindanao.25

Abu Sayyaf Group

The most notorious among the secessionist organizations in

Mindanao, the Abu Sayyaf26Group, consisting of a radical group that broke

away from the MNLF, was formed in 1991 under the headship of Abduragak

Abubakar Janjalani.27It 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.28Since then, it has been held responsibleand it itself admitted

23www.army.mil.ph/OG5_articles/Insegencies.htm (last accessed 21 December 2009).

24http://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).

26Abu Sayyaf is an Arabic term which means bearer of the sword.

27Janjalani was a veteran of the Afghan war and during his participation in the warhe developed close ties with other Islamic radical groups. He strongly opposed the peaceprocess between the government of the Philippines and the MNLF, and demanded an inde-pendent Islamic state.

28Using 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 broughtto Sulu. Most of the hostages were released in the following months; the last hostage, Roland


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several bombings in the country, such as the bombing of M/V Superferry

14 that left ninety-four (94) people killed29and the Valentines Day bombing,

which left eight people lifeless.30

THE ELUSIVE ROAD TO PEACE

Decades of war and armed conict 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. Specically, 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 inicting 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 forPeace

The Tripoli Agreement of 197632 is the very rst 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).

29M/V SuperFerry 14 caught re near Corregidor, Bataan after an explosion oc-

curred onboard. 94 people were killed while 24 remain missing. Abu Sayyaf claimed it bombedthe ferry. Criminal charges were led in October 2004 against six suspects linked to the group

after the government established that the Abu Sayyaf were indeed behind the attack. Id.

30The 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 DavaoCity. Abu Sayyaf claimed responsibility for the incidents. Id.

31 Mindanao is known as the Land of Promise because of its vast natural re-sources.

32In 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 IslamicConference.


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Mindanao after the armed conict 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).33It was signed and on 23 December 1976 and took effect on the same

date.

Specically, the Tripoli Agreement stipulated for the institution ofautonomy 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 implementthe Islamic Shariah laws and to establish a Legislative Assembly. It provided

for an autonomous arrangement with its own administrative, economic and

nancial system. It also denes the aspects of governance which the National

Government shall retain.34 Consequently, the former Philippine President

33The Organization of the Islamic Conference (OIC) is the second largest inter-gov-

ernmental organization after the United Nations which has membership of 57 states spreadover 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 wasestablished 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, [lastaccessed December 18, 2009])

34In 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 NationalLiberation Front with the Philippine Armed Forces be discussed later.


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Ferdinand E. Marcos signed Presidential Decree 161835which 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 specied 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.40With respect to the relation of these autonomous

35The presidential decree is entitled IMPLEMENTING THE ORGANIZATION

OF THE SANGGUNIANG PAMPOOK AND THE LUPONG TAGAPAGPAGANAPNG POOK IN REGION IX AND REGION XII AND FOR OTHER PURPOSES. It waspromulgated on July 25, 1979.

36Section 2 of the presidential decree provides:

SEC. 2. Territorial Coverage of the Autonomous Regions. (a) Region IX shallcomprise 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.

37Id., 3.

38Id.

39Id. 4.

40Id.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 allnatural 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.


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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 Court42in the case of Limbona v.

Mangelin.43The 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 decentralizationof administration when the central government delegatesadministrative powers to political subdivisions in order tobroaden the base of government power and in the process tomake local governments more responsive and accountable,and ensure their fullest development as self-reliant communitiesand make them more effective partners in the pursuit ofnational 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, butonly to ensure that local affairs are administered according tolaw. He has no control over their acts in the sense that he cansubstitute their judgments with his own.

Decentralization of power, on the other hand, involvesan abdication of political power in the favor of local governmentsunits declare to be autonomous. In that case, the autonomous

government is free to chart its own destiny and shape its futurewith minimum intervention from central authorities. Accordingto a constitutional author, decentralization of power amountsto self-immolation, since in that event, the autonomousgovernment becomes accountable not to the central authoritiesbut to its constituency.

41Id. 35(a).

42

Hereinafter abbreviated as SC for brevity.43170 SCRA 786 (1989).


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But the question of whether or not the grant ofautonomy Muslim Mindanao under the 1987 Constitutioninvolves, truly, an effort to decentralize power rather than

mere administration is a question foreign to this petition, sincewhat is involved herein is a local government unit constitutedprior to the ratication of the present Constitution. Hence, theCourt will not resolve that controversy now, in this case, sinceno controversy in fact exists. We will resolve it at the propertime and in the proper case.

Under the 1987 Constitution, local government unitsenjoy autonomy in these two senses, thus:

Sec. 1. The territorial and politicalsubdivisions of the Republic of the Philippinesare the provinces, cities, municipalities, andbarangays. Here shall be autonomous regionsin Muslim Mindanao, and the Cordilleras ashereinafter provided. 29

Sec. 2. The territorial and politicalsubdivisions shall enjoy local autonomy.

xxx xxx xxx

See. 15. There shall be createdautonomous regions in Muslim Mindanaoand in the Cordilleras consisting of provinces,cities, municipalities, and geographical areassharing common and distinctive historicaland cultural heritage, economic and social

structures, and other relevant characteristicswithin the framework of this Constitution andthe national sovereignty as well as territorialintegrity of the Republic of the Philippines.

An autonomous government that enjoys autonomy ofthe latter category [CONST. (1987), art. X, sec. 15.] is subjectalone to the decree of the organic act creating it and acceptedprinciples on the effects and limits of autonomy. On the other

hand, an autonomous government of the former class is, aswe noted, under the supervision of the national government


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acting through the President (and the Department of LocalGovernment). 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 thatthe internal acts, say, of the Congress of the Philippines arebeyond our jurisdiction. But if it is autonomous in the formercategory only, it comes unarguably under our jurisdiction.Anexamination 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 rst place, mandates that [t]he Presidentshall have the power of general supervision and control overAutonomous Regions. In the second place, the SangguniangPampook, their legislative arm, is made to discharge chieyadministrative services, thus:

SEC. 7. Powers of the Sangguniang Pampook.The Sangguniang Pampook shall exercise locallegislative powers over regional affairs within

the framework of national development plans,policies and goals, in the following areas:

(1) Organization of regional administrativesystem;

(2) Economic, social and cultural developmentof the Autonomous Region;

(3) Agricultural, commercial and industrial

programs for the Autonomous Region;

(4) Infrastructure development for theAutonomous Region;

(5) Urban and rural planning for theAutonomous Region;

(6) Taxation and other revenue-raising measuresas provided for in this Decree;


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(7) Maintenance, operation and administrationof schools established by the AutonomousRegion;

(8) Establishment, operation and maintenanceof health, welfare and other social services,programs and facilities;

(9) Preservation and development of customs,traditions, languages and culture indigenous tothe Autonomous Region; and

(10) Such other matters as may be authorized by

law, including the enactment of such measuresas may be necessary for the promotion ofthe general welfare of the people in theAutonomous Region.

The President shall exercise such powers as maybe necessary to assure that enactment and actsof the Sangguniang Pampook and the LupongTagapagpaganap ng Pook are in compliance

with this Decree, national legislation, policies,plans and programs.

The Sangguniang Pampook shall maintainliaison 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 ofAbbas v. COMELEC.45In that case, the

validity and constitutionality of Republic Act (R.A.) 6734, the Organic Act

creating the ARMM pursuant to the 1987 Constitution,46was 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

44Id. at 794-797.

45

179 SCRA 287 (1989).46Hereinafter The Constitution for brevity.


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it is binding upon the Philippine Government,47the 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 Generalasserts that the Tripoli Agreement is neither a binding treaty,not having been entered into by the Republic of the Philippineswith a sovereign state and ratied according to the provisionsof the 1973 or 1987 Constitutions, nor a binding internationalagreement.

We nd it neither necessary nor determinative of

the case to rule on the nature of the Tripoli Agreementand its binding effect on the Philippine Government

whether under public international or internal Philippine

law. In the rst 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 conict betweenthe provisions of R.A. No. 6734 and the provisions of the

Tripoli Agreement will not have the effect of enjoining theimplementation of the Organic Act.Assuming for the sakeof 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. 6734would be amendatory of the Tripoli Agreement, being

a subsequent law. Only a determination by this Court thatR.A. No. 6734 contravened the Constitution would result inthe granting of the reliefs sought.48(Emphasis supplied)

47Under Art. VIII 14 1 of the 1973 Constitution, the governing constitutionat 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.

48Supra note 45 at 294. The respected constitutionalist Fr. Joaquin Bernas is also ofthe opinion that the Tripoli Agreement is not a treaty. (Supranote 9 at 1105.)


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The People Power-Inspired Charter: The Fundamental Legal Wellspring

of the ARMM

The Constitution under the auspices of former Philippine PresidentCorazon 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 rst constitution49to mandate the creation of an

autonomous region in Muslim Mindanao.50The 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 Governmentof 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 fora transition phase (Phase I) and an expanded autonomous region (Phase II). In Phase I, theARMM, 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 PhilippineCouncil 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 forumfor 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 makerules and regulations for the effective and efcient 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 Agreementshall commence negotiations for peaceful resolution of the armed conict. The RehabilitationAspect 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 anagreement 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,infranote 110.

49The predecessors of the 1987 Constitution are the 1935 Constitution and 1973Constitution.

50The 1987 Constitution also granted the creation of an autonomous region in theCordilleras. 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 oneprovince 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, 192SCRA 100 [1990]).


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Datumanong.51The 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 regionalautonomy to give a bold and unequivocal answer to the

cry for a meaningful, effective and forceful autonomy.According to Commissioner Jose Nolledo, Chairman of theCommittee which drafted the provisions, it is an indictmentagainst 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

ourish.

Autonomy, as a national policy, recognizes the wholenessof the Philippine society in its ethnolinguistic, cultural, andeven religious diversities. It strives to free Philippine societyof the strain and wastage caused by the assimilationistapproach. Policies emanating from the legislature are invariablyassimilationist in character despite channels being open forminority representation. As a result, democracy becomes anirony to the minority group.

Several commissioners echoed the pervasive sentimentin the plenary sessions in their own inimitable way. Thus,Commissioner Blas Ople referred to the recognition that theMuslim Mindanao and the Cordilleras do not belong to

the dominant national community as the justication for

conferring on them a measure of legal self-sufciency,

meaning self-government, so that they will ourish

politically, economically and culturally, with the hope

51

444 SCRA 203 (2004).52It is the commission which was tasked to draft the 1987 Constitution.


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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 diversityof cultures as the framework for nation-building. Finally,excerpts of the poignant plea of Commissioner PoncianoBennagen deserve to be quoted verbatim:

. . . They see regional autonomy as theanswer to their centuries of struggle againstoppression and exploitation. For so long, theirnames and identities have been debased. Theirancestral lands have been ransacked for theirtreasures, for their wealth. Their cultures havebeen deled, their very lives threatened, andworse, extinguished, all in the name of nationaldevelopment; all in the name of public interest;all in the name of common good; all in thename of the right to property; all in the name ofRegalian Doctrine; all in the name of nationalsecurity. These phrases have meant nothing to

our indigenous communities, except for theviolation of their human rights.

. . .

Honorable Commissioners, we wish toimpress upon you the gravity of the decisionto be made by every single one of us in thisCommission. We have the overwhelmingsupport of the Bangsa Moro and the CordilleraConstitution. By this we mean meaningful andauthentic regional autonomy. We proposethat 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 decideon this. Let us not wash our hands of our


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responsibility to attain national unity and peaceand to settle this problem and rectify pastinjustices, once and for all.

The need for regional autonomy is more pressing inthe case of the Filipino Muslims and the Cordillera people

who have been ghting 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 meanstowards solving existing serious peace and order problemsand secessionist movements. Parenthetically, autonomy,decentralization and regionalization, in international law, havebecome politically acceptable answers to intractable problemsof nationalism, separatism, ethnic conict and threat ofsecession.

However, the creation of autonomous regions does

not signify the establishment of a sovereignty distinct fromthat of the Republic, as it can be installed only within theframework of this Constitution and the national sovereignty aswell as territorial integrity of the Republic of the Philippines.

Regional autonomy is the degree of self-determinationexercised by the local government unit vis--vis the centralgovernment.

In international law, the right to self-determinationneed not be understood as a right to political separation, butrather as a complex net of legal-political relations between acertain people and the state authorities. It ensures the rightof peoples to the necessary level of autonomy that wouldguarantee the support of their own cultural identity, theestablishment of priorities by the communitys internaldecision-making processes and the management of collectivematters by themselves.

If self-determination is viewed as an end in itself


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reecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massivedisruption. However, if self-determination is viewed as a

means to an endthat end being a democratic, participatorypolitical and economic system in which the rights of individualsand the identity of minority communities are protecteditscontinuing validity is more easily perceived.

Regional autonomy refers to the granting of basicinternal government powers to the people of a particular areaor region with least control and supervision from the centralgovernment.

The objective of the autonomy system is to permitdetermined 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 throughthe establishment of a special governance regime for certainmember communities who choose their own authorities fromwithin the community and exercise the jurisdictional authoritylegally 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 glimpseof the deliberations of the Constitutional Commission couldlend a sense of the urgency and the inexorable appeal of truedecentralization:

MR. OPLE. . . . We are writing aConstitution, of course, for generations tocome, not only for the present but for ourposterity. There is no harm in recognizingcertain vital pragmatic needs for nationalpeace and solidarity, and the writing of thisConstitution just happens at a time when itis possible for this Commission to help the


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cause of peace and reconciliation in Mindanaoand the Cordilleras, by taking advantage of aheaven-sent opportunity. . . .

. . .

MR. ABUBAKAR. . . . So in orderto foreclose and convince the rest of the ofthe Philippines that Mindanao autonomy willbe granted to them as soon as possible, moreor less, to dissuade these armed men fromgoing outside while Mindanao will be underthe control of the national government, let us

establish an autonomous Mindanao within oureffort and capacity to do so within the shortestpossible time. This will be an answer to theMisuari clamor, not only for autonomy but forindependence.

. . .

MR. OPLE. . . . The reason for this

abbreviation of the period for the considerationof the Congress of the organic acts and theirpassage is that we live in abnormal times. In thecase of Muslim Mindanao and the Cordilleras,we know that we deal with questions of war andpeace. These are momentous issues in whichthe territorial integrity and the solidarity of thiscountry are being put at stake, in a manner ofspeaking.

We are writing a peace Constitution.We hope that the Article on Social Justice cancontribute to a climate of peace so that any civilstrife in the countryside can be more quicklyand more justly resolved. We are providingfor autonomous regions so that we giveconstitutional permanence to the just demandsand grievances of our own fellow countrymen

in the Cordilleras and in Mindanao. One


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hundred thousand lives were lost in that strugglein Mindanao, and to this day, the Cordilleras isbeing shaken by an armed struggle as well as a

peaceful and militant struggle.. . .

Rather than give opportunity to foreignbodies, no matter how sympathetic to thePhilippines, to contribute to the settlement ofthis issue, I think the Constitutional Commissionought not to forego the opportunity to put thestamp of this Commission through denitive

action on the settlement of the problems thathave nagged us and our forefathers for solong.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 subdivisionsof the Republic of the Philippines are the provinces, cities,municipalities, and barangays. There shall be autonomousregions 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 commonand distinctive historical and cultural heritage, economic andsocial structures, and other relevant characteristics within theframework of this Constitution and the national sovereigntyas well as the territorial integrity of the Republic of thePhilippines.

It can be gleaned from these provisions that only the areas covering

53Supranote 51 at 227-232.


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Muslim Mindanao and the Cordilleras54are 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 ourishand 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 regionsmay 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 supervisionover autonomous regions to ensure that laws are faithfullyexecuted.

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

54The 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, plusthe chartered city of Baguio.

55Supranote 10 at 1099.

56

Id.57Id.


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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

ofcers faithfully execute and act within existing laws.58The 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 notgranted by this Constitution or by law to the autonomousregions 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 eachautonomous region with the assistance and participation of theregional consultative commission composed of representativesappointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall dene the basic structureof government for the region consisting of the executivedepartment and legislative assembly, both of which shall beelective and representative of the constituent political units.

58III Record of the Constitutional Commission (1986) at 451-452.

59Id. at 514-516.


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The organic acts shall likewise provide for special courts withpersonal, family, and property law jurisdiction consistent withthe provisions of this Constitution and national laws.

The creation of the autonomous region shall be effectivewhen approved by majority of the votes cast by the constituentunits in a plebiscite called for the purpose, provided that onlyprovinces, cities, and geographic areas voting favorably in suchplebiscite shall be included in the autonomous region.

Sec. 19. The rst Congress elected under thisConstitution shall, within eighteen months from the time oforganization 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 theCongress of organic acts for the two autonomous regions. As provided in the

provision, the organic acts shall dene 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 areas61voting favorably in such plebiscite shall form

part of the autonomous region concerned.62To sum up the import of the


61 Geographic areas refers to a cluster of towns within a province. It has beenobserved that under Section 18, as presently worded, it is possible that a cluster of townscould 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.)

62For a province, city or geographical area to succeed in excluding itself from theautonomous region, it must not only boycott the plebiscite but must express its wish by vote.


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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 rst 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 rst 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 ofcers and the formation of its different committees. The relativelyshort 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 subjectto 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 ratication. (Id. at 1104. See alsoAbbasv. COMELEC, supranote 45.)

63

Id. at 1104.64Supranote 58 at 533-541.


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Organic Act of autonomous regions shall provide for legislativepowers 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 planning5.)development;

Economic, social, and tourism6.)development;

Educational policies;7.)

Preservation and development of the8.)cultural heritage; and

Such other matters as may be authorized9.)by law for the promotion of the general

welfare of the people.

The rst 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 ofthe local legislature of the autonomous region and a national statute should be

given prevalence in case of conict is difcult to resolve.65The 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

65Such difculty does not obtain when the conict is between the Constitution and

the local statute passed by the legislative of the autonomous region as there is no question thatthe former, being the fundamental law of the land, prevails in all instances.


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autonomy of local governments. It has been suggested that in reconciling the

conict, 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 withinthe regions shall be the responsibility of the local policeagencies which shall be organized, maintained, supervised, andutilized in accordance with the applicable laws. The defenseand 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 competenceof the national government.67The 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 Actproviding 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

Supranote 10 at 1107.67Id.


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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,69the validity and constitutionality of

the Organic Act was assailed in the earlier cited case ofAbbas v. COMELEC.70

68CONST. Art. X, 18.

69Section 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 provisionsof 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 herebyexpanded to include the provinces and cities, enumerated here-under, which vote favorably to be included in the expanded areaof the autonomous region and for other purposes, in a plebiscite

called for that purpose in accordance with Section 18, Article Xof the Constitution. The new area of autonomy shall then bedetermined by the provinces and cities that will vote/choose to

join the said autonomy. It is understood that Congress may by lawwhich 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 partof the new Autonomous Region.

(2) Plebiscite Coverage. The plebiscite shall be conductedin the provinces of Basilan, Cotabato, Davao del Sur, Lanao delNorte, Lanao del Sur, Maguindanao, Palawan, Sarangani, South

Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga delNorte, Zamboanga del Sur and the newly created Province ofZamboanga Sibugay, and (b) in the cities of Cotabato, Dapitan,

Dipolog, General Santos, Iligan, Kidapawan, Marawi, Pagadian,

Puerto Princesa, Digos, Koronadal, Tacurong and Zamboanga.70Supranote 45.


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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 ofprovinces 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 regionand its composition needs to be claried.

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 specic provision in theTransitory Provisions (Article XIX) of the Organic Act, whichincorporates substantially the same requirements embodied inthe Constitution and lls in the details, thus:

SEC. 13. The creation of theAutonomous Region in Muslim Mindanao shalltake effect when approved by a majority of the


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votes cast by the constituent units provided inparagraph (2) of Sec. 1 of Article II of thisAct in a plebiscite which shall be held not

earlier than ninety (90) days or later than onehundred twenty (120) days after the approvalof this Act: Provided, That only the provincesand cities voting favorably in such plebisciteshall be included in the Autonomous Regionin Muslim Mindanao. The provinces and citieswhich in the plebiscite do not vote for inclusionin the Autonomous Region shall remain theexisting 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 evenif an autonomous region is created, not all of the thirteen (13)provinces and nine (9) cities mentioned in Article II, section1 (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:

71Id. at 295-296.


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If the framers of the Constitution intended to requireapproval by a majority of all the votes cast in the plebiscitethey would have so indicated. Thus, in Article XVIII, section

27, it is provided that [t]his Constitution shall take effectimmediately upon its ratication by a majority of the votescast in a plebiscite held for the purpose ... Comparing thiswith the provision on the creation of the autonomous region,which reads:

The creation of the autonomous region shall be effectivewhen approved by majority of the votes cast by the constituentunits in a plebiscite called for the purpose, provided that onlyprovinces, cities and geographic areas voting favorably in suchplebiscite shall be included in the autonomous region. [Art. X,sec, 18, para, 2].

It will readily be seen that the creation of theautonomous region is made to depend, not on the total majorityvote in the plebiscite, but on the will of the majority in each ofthe constituent units and the proviso underscores this. for ifthe intention of the framers of the Constitution was to get themajority of the totality of the votes cast, they could have simplyadopted the same phraseology as that used for the raticationof the Constitution, i.e. the creation of the autonomous regionshall be effective when approved by a majority of the votescast 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,

72Id. at 297.


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the petitioners posited that R.A. 6734 is unconstitutional for including areas

which do not share such characteristics.73Again, 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 Constitutionlays down the standards by which Congress shall determinewhich areas should constitute the autonomous region. Guidedby these constitutional criteria, the ascertainment byCongress 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 verysame 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 whichareas should be covered by the organic act for the autonomousregion constitutes a recognized legislative prerogative, whosewisdom may not be inquired into by this Court.

Moreover, equal protection permits of reasonable

73

See note 69.74Supranote 45 at 298.


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classication (citation omitted), the Court ruled that once classmay be treated differently from another where the groupingsare based on reasonable and real distinctions. The guarantee

of equal protection is thus not infringed in this case, theclassication having been made by Congress on the basis ofsubstantial 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 specic provision assailed was

Section 17, par. (2), Article IX76of the Organic Act, which provides that should

there be a conict 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,77which

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 powerincludes the duty to settle actual controversies involving rightswhich are legally demandable and enforceable. As a conditionprecedent for the power to be exercised, an actual controversybetween litigants must rst exist (citation omitted). In thepresent case, no actual controversy between real litigantsexists. There are no conicting claims involving the applicationof national law resulting in an alleged violation of religiousfreedom. This being so, the Court in this case may not be called

upon to resolve what is merely a perceived potential conictbetween the provisions the Muslim Code and national law.78

The penultimate argument of the petitioners centered on Section 13,

75Id. at 298-299.

76In full, it reads:

77The Quran is the holy scriptures of the Muslims. See also N. B. Cali, supranote

12 at 200.78Supranote 45 at 299-300.


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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.79On this point, the highest tribunal of the land claried:

It must be pointed out that what is referred to inR.A. No. 6734 is the merger of administrative regions, i.e.Regions I to XII and the National Capital Region, which aremere groupings of contiguous provinces for administrativepurposes [Integrated Reorganization Plan (1972), which wasmade as part of the law of the land by Pres. dec. No. 1, Pres.Dec. No. 742]. Administrative regions are not territorial andpolitical subdivisions like provinces, cities, municipalities and

barangays [see Art. X, sec. 1 of the Constitution]. While thepower to merge administrative regions is not expressly providedfor in the Constitution, it is a power which has traditionallybeen lodged with the President to facilitate the exercise ofthe power of general supervision over local governments(citation omitted). There is no conict 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)

79In 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.80Supranote 45 at 300-301.


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As a nal point, the petitioners questioned that creation of an Oversight

Committee81under 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 nis the decision, the

Court held:

Under the constitution, the creation of theautonomous region hinges only on the result of the plebiscite.

If the Organic Act is approved by majority of the votes castby constituent units in the scheduled plebiscite, the creationof the autonomous region immediately takes effect. Thequestioned 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 objectionon this point thus cannot be sustained as there is no basistherefor.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.83ARMM was formally organized a

year later or on 6 November 1990, with former President Aquino leading the

81This is found under Sections 3 and 4, Article XIX of R.A. 6734.


83Supranote 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 theTripoli Agreement of 1976. However, as earlier discussed, the provisions of the Constitution

dening the areas to be incorporated in the autonomous region prevail over the Agreement,even if the latter were a valid treaty.


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inauguration therefor. By that time, she had already signed seven (7) Executive

Orders devolving to ARMM the powers

Documents

UST Law - An Abused Autonomy