10. Bangsamoro: A Case Study in Governing for the Common Good
© 2022 Patrick Riordan S.J., CC BY-NC-ND 4.0 https://doi.org/10.11647/OBP.0290.13
This chapter provides a case study of a newly inaugurated autonomous region in the southern Philippines, in terms of its common goods. The common good is invoked in the Preamble of the Constitution of the Republic of the Philippines, and it is mentioned in Article XII dealing with national economy and patrimony, and in Article XIII dealing with social justice and human rights. Following the overthrow of the Marcos regime of martial law in 1986, the newly elected President Cory Aquino convoked a commission to draft a new constitution. The country saw itself at that time as recently liberated from an oppressive regime that many qualified as a dictatorship, in which the rule of law and the respect for human rights had been disregarded. The adoption of a new constitution expressed the desire for self-government as appropriate to a republic, in the pursuit of freedom, equality and prosperity.
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
Constitution of the Republic of the Philippines, Preamble
Typical of a republican constitution is the affirmation of the sovereignty of the people that provides for itself a constitution. It acknowledges the twin dimensions of the social and the political. These are distinguishable but not separable. Building ‘a just and humane society’ is done in tandem with establishing and maintaining a government of a state. The purpose of government is to promote the common good. This is not further explained in the text, but its meaning embraces the various other values listed, values that the people wish to secure for themselves and their posterity. Together they act to pursue the good they hold in common. Law professor Joaquin G. Bernas, a member of the Constitutional Commission, commented on the text of the Preamble in a publication issued in advance of the Constitution’s ratification. He noted the preference for the term ‘common good’:
The change from ‘general welfare’ to ‘common good’ was intended to project the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally and spiritually. The rejection of ‘general welfare’ of the old version was based on the fear that the phrase could be interpreted as meaning ‘the greatest good of the greatest number’ even if what the greater number wants does violence to human dignity […] It was thought that the phrase ‘common good’ would guarantee that mob rule would not prevail and that the majority would not persecute the minority. (1987, p. 2 n. 8)
The various occurrences of the term and cognates in the body of the Constitution reinforce the basic line formulated in the Preamble that people are attempting to secure a social and legal order and thereby assure a certain quality of life for themselves. The management of property and its use, the creation of business corporations, and the responsibility of government in relation to these, warrant the invocation of common good as the overarching value. Similarly, in the article on social justice and human rights, common good is invoked as a guiding value in relation to the equitable distribution of wealth and political power, and regarding the urgent need to provide housing for the urban poor. Subsequent attempts to legislate these matters have been controversial, with the general criticism voiced that the common good was not strong enough to prevail over established and socially integrated interests, such as those of the more powerful oligarchic families who provided the political leadership in the country, the Aquino family itself included.
Article X of the 1987 Constitution, on local government, provided for the creation of two autonomous regions, in Muslim Mindanao in the south, and in the Cordilleras, the mountainous area in Luzon in the north. As Bernas notes in his commentary, the Constitution provides for only two such regions, that have a claim to special treatment because they exhibit ‘common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics.’ The distinctiveness warranting this autonomy is differentiation from the ‘characteristics of the dominant national communities.’ He notes also that the constitutional recognition and provision replaces measures of autonomy created ‘merely by presidential decree’ (Bernas 1987, p. 71 nn. 23–14). It should be borne in mind that while there is a recognition of the goods in common that are to be protected and promoted within the region, this is in the context of a vision of a shared national common good.
1. History and Context of the Bangsamoro Autonomous Region in Muslim Mindanao
The Philippines is an archipelago of islands, large and small. The large northern island, Luzon, is where the largest city and capital, metro Manila, including the seat of government for the country, Quezon City, is located. Between Luzon and the southern island, Mindanao, with its satellite islands, is a group of islands named the Visayas. The archipelago has had a fraught and varied history, which is not uniform across the islands (Gloria 2014). For various reasons, Mindanao, the southernmost large island of the archipelago, is different. One reason is that it is home to the large Muslim population (c. 4.2 million) that is a minority within the predominantly Catholic population of the country as a whole (c. 100 million). Another reason for its distinctiveness is that neither of the colonial powers, the Spaniards up to 1898 and the Americans subsequently until 1946, ever completely succeeded in pacifying Mindanao and incorporating the native populations into the national community. When the United States of America replaced Spain as the colonial power at the end of the Spanish American War in 1898, the Americans believed they were taking over an already pacified country, but that was far from the case. As well as having to suppress an insurgency in Luzon, the Americans also had to establish their rule as the first colonisers in Mindanao (Gloria 2014). A third element in the distinctiveness of Mindanao within the Philippines is that it was uniquely targeted as a territory to be colonised, not by foreigners, but by other Filipino peoples. To deal with the problems of overpopulation and the associated peasant disquiet in the northern islands, and with the problem of unrest in the south, both American and subsequently Filipino governments pursued policies of settlement, inviting people from Luzon and the Visayas to settle in Mindanao. These settlement policies including those pursued by Ferdinand Marcos as President, resulted in grave injustices to the native populations. A fourth factor in explaining the uniqueness of Mindanao concerns the internal structure of the population. While the general labels of indigenous peoples (IPs) or Muslims might give the impression of a coherent homogenous culture, the reality is very different. While there had been traditional forms of government with ruling elites, such as the Sultanates of Maguindanao and Sulu, these were not unified, and many tribes retained their independence and separate traditions. One author reports a total of thirteen different groups among the Muslim population, and in addition eighteen indigenous tribes with their own animist religious culture (Yusingco 2013, pp. 17–21). Another source identifies 179 ethnic groups in BARMM, understanding an ethnic group as sharing distinctive cultural identity. Many of these are very small in size. Three major groupings make up over 70% of the population, and a further 25% is comprised of seven groups.1 The interests of some indigenous peoples are in tension with the political agenda of the Muslim insurgency leadership, and are in danger of being neglected, possibly because their advocates have not resorted to armed violence (Alejo 2014, pp. 65–70).
These four factors provide the context for both the turbulent history of the island and the attempts to provide solutions. First, a relatively large Muslim population, but not organised in a coherent unity for political effectiveness, alongside many indigenous groups who are pagan, neither Christian nor Muslim. Second, a history of independence, resistance and insurgency against colonial powers. Third, a history also of incursion with government backing by mostly Christian settlers from the north. Finally, the economic deprivation arising from the marginalisation of the area is paired with the growing exploitation of natural resources, whether through illegal or quasi-legal logging of the native forests, or mining activities encroaching on ancestral domains. Multinational economic agents, abetted by legislators in Manila, pursue their own interests in the island, often relying on private security firms both to protect and enforce their interests.
The Bangsamoro Organic Law (henceforth BOL) was signed into force by President Duterte in August 2018. It is the latest in a series of attempts to provide a form of autonomy to the Muslims of Mindanao. The previous structure, the Autonomous Region of Muslim Mindanao (ARMM), was instituted following the adoption of the 1987 Constitution under President Cory Aquino. It was subsequently deemed to have been a failure. Its failure is seen in the years of violence perpetrated by various Muslim organisations, harnessing the frustration of young men who found themselves without educational or employment opportunities, despite the growing affluence of the country as a whole. The MNLF (Moro National Liberation Front) and the MILF (Moro Islamic Liberation Front) conducted campaigns of armed insurgency over recent decades. Peace agreements between the Government of the Philippines and the MNLF were signed in 1976 (Tripoli) and 1996. But it is from the framework peace agreement achieved between the Government of the Philippines and the MILF (October 2012) that the demand for and commitment to the creation of the Bangsamoro Autonomous Region arose.
It has taken much longer than expected to produce the legislation and to have it signed into law, which finally happened in July 2018. Further steps of implementation included the plebiscite in January 2019 and the inauguration of the Bangsamoro Autonomous Region in Muslim Mindanao (henceforth BARMM) in March 2019. The commitment of both parties to this peace process and to the implementation of the Bangsamoro has remained resolute, despite serious threats arising from the violence of dissident groups (Lau 2014, pp. 260–273).
At the heart of the grievances of the Muslim population leading to armed insurgency was the destruction of their traditional villages and way of life by the confiscation of their lands and the imposition of forms of rule alien to their customs (Yusingco 2013, p. 31). An initial documentation of these grievances has been achieved by the ‘Transitional Justice and Reconciliation Commission,’ whose report in 2016 illustrated in painful detail the typical injustices suffered by the peoples of Mindanao. Far from being an ideologically driven international Islamic conspiracy, as the world media sometimes like to characterise it, the insurgency has always been a response to experienced injustices at the hands of government, whether native or colonial.
The challenge faced by the BARMM as a new structure of autonomous regional government is enormous. There is no unified society, given the distinction between Muslim and other indigenous tribes, and even the Muslims are divided among themselves, belonging to groups traditionally in competition with one another. The creation of this regional form of government will require shaping the shared meanings of the population with a view to fostering agreement on the worthwhileness of the project. However, despite the enormity of the challenge, the lack of a single unified society need not be a fatal flaw for the project, as some commentators have feared (Yusingco 2013, p. 26). In response, I have argued elsewhere that in terms of Aristotle’s claim that a political community presupposes a shared vision of the good, agreement on the need for such a structure to put an end to war, and to remove the causes of frustration leading to violence, can be sufficient as shared meaning to establish the Bangsamoro (Riordan 2014, pp. 35–56). This presupposes a lot of imaginative work in fostering understanding and building agreement, and that work remains to be done. The outcome of the initiative to establish the BARMM is not a foregone conclusion.
The creation of the BARMM establishes an autonomous region within the Republic of the Philippines and not a separate state. Furthermore, the possibility of secession is blocked by ensuring the continuing integration of the region within the state, subject to the Constitution of 1987. National government will continue to have jurisdiction in matters of defense, external security, immigration, and international relations and treaties. However, the distinctiveness of the region as expressed in the phrase ‘asymmetrical relationship’ allows for a special position within the state, not on the same terms as other regions, but acknowledging the special characteristics that warrant the creation of an autonomous region. As noted, these include the peculiar history and composition of the region’s population. A significant feature is the incorporation of Islamic Shari’ah Law applicable to Muslims only, along with the traditional tribal justice systems of the indigenous peoples. These traditional forms of justice may not be so applied that fundamental human rights are jeopardised. Accordingly, the Bangsamoro Organic Law attempts an integration of international human rights law, national legislation, and the local forms of justice. Anticipation of tensions between the jurisdictions leads to a mapping of norms of precedence. The attempt is to devolve as much responsibility from national government as possible, allowing for local responsibility regarding policing, protection of the environment, exploitation of national resources, and commerce. Worries have already been expressed concerning the position of women in the BARMM (Risonar-Bello 2014, pp. 87–102), the ancestral domain of indigenous peoples and their associated rights (Alejo 2014, pp. 65–70), and the position of some Muslim groups not aligned with the MILF (Arpa 2014, pp. 83–86).
Viewed from the outside, the initiative of the BOL in response to the Peace Agreement is an attempt to realise the common good in the broadest sense in this region. The BOL itself does not use the language of common goods, and that is not surprising, since this language is more at home in the political discourse of concerned citizens and representatives of affected groups. While lawyers refine formulations and anticipate legal issues, the articulation of political, cultural and religious concerns in terms of the common goods at stake should be of service to the actors charged with implementing the legislation and the newly created processes and structures. However, the Preamble to the Bangsamoro Organic Law has resonances with that of the National Constitution, cited above, in which the term ‘common good’ is explicitly invoked.
Imploring the aid of Almighty God, in recognition of the aspirations of the Bangsamoro people and other inhabitants in the autonomous region in Muslim Mindanao to establish an enduring peace on the basis of justice, balanced society and asserting their right to conserve and develop their patrimony, reflective of their system of life as prescribed by their faith, in harmony with their customary laws, cultures and traditions, within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines, and the accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international law, and affirming their distinct historical identity and birthright to their ancestral homeland and their right to chart their political future through a democratic process that will secure their identity and posterity, and allow genuine and meaningful self-governance, the Filipino people, by the act of the Congress of the Philippines, do hereby ordain and promulgate this Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao. (20180727-RA-11054, Preamble.)
The values enumerated here resonate with those of the 1987 Constitution but in the context of acknowledging the special circumstances of the Muslim region in Mindanao. While adverting to the legitimacy of the special claims of this region, the BOL is deliberately stated as a law enacted by the Congress of the country as a whole. Accordingly, it is possible to read in this undertaking several levels of goods in common. There is the common good of the country as a whole, in ending the violence, insecurity and drain on scarce resources linked to the instability in Mindanao. There is the common good of Mindanao, a larger entity than the BARMM, which needs a resolution of the Muslim insurgency for peace, stability and future development. There are common goods of the peoples of Bangsamoro, both the institutions now being created, and the wellbeing, prosperity, peace and stability that is their purpose. Finally, there are the goods of humanity, both those rooted in the solidarity with suffering people, and the potential to learn from the Bangsamoro experiment lessons that can be applied in other contexts of violent conflict.
2. Operationalising the Common Good: The Pentagram
The language of common goods is ancient but does not always appear relevant to modern political issues. The development of an appropriate set of tools for the application of common good to contemporary concerns, undertaken by a team of experts led by Professor Mathias Nebel of the IPBC, is documented in this volume (see Chapters 1, 2, and 3). It offers a map to sketch the nexus of the principal dimensions of the common goods of local government. This project is outlined more extensively elsewhere in this book, so it suffices here to note the key elements. Five core values of the common goods are identified (referred to as the pentagram; see Chapter 2, Figure 4), and these outline the scope of what is to be realised by local government. These values are stability, agency, governance, justice and humanity (see Chapter 2). Important social norms such as those of democracy, the rule of law, good governance, subsidiarity, participation, empowerment and human flourishing can be read from the matrix of the combinations of the five core values. The matrix provides a total of twenty headings, with each combination of values providing a pair, one for each direction. For instance, the combination of agency and governance delivers participation, while in the opposite direction, governance and agency delivers empowerment. In what follows I apply the pentagram to the Bangsamoro Organic Law (BOL) with a view to generating a metric for evaluating the success (or failure) of the BARMM. The BOL does not use the language of common goods, although the project is evidently an attempt to achieve and solidify goods in common. The opportunity to bring these two conversations together may prove to be mutually enriching. On the one hand, it could provide those charged with implementing the BOL with a map or outline to sketch the range of tasks involved and to evaluate performance. On the other hand, the opportunity to test the usefulness of the pentagram in the implementation of one significant project of revision of regional government may help confirm, consolidate and refine the pentagram.
3. Common Goods of the BARMM
I. Justice
There is no order of precedence in the five core values—they are all equally essential. But in the application of the pentagram to the situation in Mindanao, it would seem appropriate to begin with justice, given the historical context, and the element of transitional justice involved. The injustice suffered by the peoples of Mindanao in the past century belongs among the motivations for creating the autonomous region. Section 3 of Article I of the Organic Law establishing Bangsamoro declares the purpose of the law as follows:
The purpose of this Organic Law is to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and the aspiration of Muslim Filipinos and all indigenous cultural communities in the autonomous region in Muslim Mindanao to secure their identity and posterity, allowing for meaningful self-governance within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.(20180727-RA-11054, I. Sec. 3.)
This situation of the BARMM marks it out as distinctive. The affirmation in this cited section as also in the Preamble of the legitimacy of the Muslim population’s claim to secure their distinctive identity and to exercise self-government is an expression of the BOL’s attempt to do justice.
The actual historical background provides a context in which the rectification of injustice is as important as the facilitation of justice for the future. The Bangsamoro Parliament is tasked to make laws and create processes to achieve the desired ends of rectification and restoration (20180727-RA-11054, IX. Secs. 1 & 2.). The task is enormous and may prove impossible to fulfil. The issue of land is particularly problematic. The link to the land is central to the sense of identity for traditional tribes. The memory of the injustice of the manner in which they were removed from their lands motivates a demand for rectification. Historically, tribal land holdings, ancestral domains, did not rely on any form of land registration, but on the customary practices of the indigenous peoples. The introduction of a land registration system to cultures that did not understand the concept, and the requirement to submit claims within a very narrow window, meant that the settlers brought in from the north could implement claims against which the traditional occupants had no legal redress. On the one hand, the law signals the desire to right these historical wrongs, and that is an important acknowledgement of the injustice of dispossession and relocation. On the other hand, the law burdens the new regime and its government with a task that, no matter how well it is performed, inevitably will leave some people feeling badly done by. They may be indigenous people whose claims are not recognised, or they may be settlers who, in all they (or their ancestors) did, believed themselves to be acting legally with the approval and encouragement of the national government.
The tragedy of Mindanao, like so many other areas of conflict, is that the past is very much present to peoples’ consciousness as it shapes their everyday experience. It seems as if the formulation of the law has tied the new regime to its past by requiring these measures of transitional justice; on the other hand, the law could not have remained silent on the historical injustices and complaints of the population in seeking their commitment to a new form of government. On this fundamental point we find the core value of justice at the heart of the BARMM.
Among indigenous peoples there are some tribes that have been converted to Islam, some have been Christianised, and others retain their ancient animist religion. From the point of view of the BARMM, there is particular concern that the non-Islamic tribes within the Bangsamoro territory do not suffer any discrimination (20180727-RA-11054, IV. Secs. 7 & 9; VII. Sec. 5). The rights of indigenous peoples are enumerated in the Organic Law, echoing earlier national legislation (Indigenous Peoples’ Rights Act, IPRA) designed to protect the traditional lands and cultures of indigenous peoples, ensuring that their free, prior, informed consent is obtained before any exploration or exploitation of natural resources within their ancestral domains (I 20180727-RA-11054, XIII. Sec. 8). That law had not been completely effective, since the designation of who exactly is entitled to give the consent is unclear. In many cases, it seems, self-appointed leaders provided the consent against remuneration, but this was without formal structures of representation. The new arrangements will have to ensure there is no such abuse if the willing compliance of the tribal peoples in the Bangsamoro is to be evoked.
Article IX on basic rights specifies obligations of the BARMM government to provide many elements that contribute to overall wellbeing. It is not a matter of merely ensuring that systems are in place and functioning, but the Organic Law seems to require that the Bangsamoro government actually create and operate such systems, to provide healthcare, housing, employment, education, and to support arts and culture. Time is a factor in the realisation of such aspirations, and it may be idealistic to include these in articles under the heading of justice. It is at least evidence of the Organic Law’s comprehension of the double lists of thin and thick factors concerning justice, the former outlining the basic needs and the latter identifying elements of flourishing. Nebel and Delgadillo might be thought to have the Bangsamoro situation in mind when they suggest that the enactment of law is the first creative step towards providing justice within a very complex social context: ‘To proclaim a constitution is but a very easy task compared to making these rights and freedoms real for each and everyone in the country. For formal rights to become real they need to be implemented’ (see Chapter 2, § ‘Justice as a Normative Driver of Common Good Dynamics’).
The variety of customs, norms and practices among the peoples of the Bangsamoro pose a challenge for the creation of a unified system of government that respects rights and freedoms across the whole population, and at the same time fosters the flourishing of each community according to its own values.
II. Stability
Given the history of injustice, exclusion, and the resorting to armed conflict that has characterised this region over several decades, the stability of the BARMM will depend on the establishment and maintenance of peace. History has seen many armed groups, MNLF, MILF, Abu Sayyaf, and BIFF, among others, who have resorted to violence, but this in turn has provoked the defensive and aggressive action of settlers’ militias, and the Armed Forces of the Philippines. In addition, mining companies, politicians, and prominent families with traditional ruling authority, have also maintained private armies, for self-protection as well as for status in a very volatile atmosphere. Banditry, relying on kidnapping, robbery and extortion, has been a way of making a living in the absence of legitimate economic possibilities.
The BARMM attempts to bring this violence to an end. It will only succeed if it is supported by the various armed groups. The MILF is preeminent in the BARMM government, having participated in the peace talks leading to the Framework Agreement on Bangsamoro in October 2012, and the Comprehensive Agreement in 2014. The principal demand of the insurgents is met in the provision of self-government with the recognition of distinctive identity. However, further steps are required to ensure stability. One such measure envisaged in the BOL is to offer the members of these organisations the possibility of joining the police service of the autonomous region. This has the obvious advantage of permitting formerly armed men and women to find respectable roles in the new regime (20180727-RA-11054, XI. Sec. 2; XIV. Sec. 1). On the other hand, it has the disadvantage of giving people who have lived from banditry access to new avenues of extortion and corruption. The success of this move will be an indicator of the success of the BARMM as a whole.
The stability of BARMM depends on securing peace. Among the measures envisaged to sustain peace, the BOL commits the government of the autonomous region to implement widespread peace education. While it must be among the basic motivations of supporters of the BARMM to bring an end to violence and establish peace, there is acknowledgement that the motivation is fragile and vulnerable to disappointment and setbacks. Hence the commitment in the article on basic human rights to peace education (20180727-RA-11054, IX. Sec. 16).
Stability has another urgent aspect in the diverse population of Bangsamoro. The challenge facing everyone is to build a political entity relying on the commitment of diverse groups who traditionally have been competitors if not enemies. Stability with the assurance of continuity and sustainability into the future will not be achieved without the construction of genuine practices of collaboration between the different groups. The indigenous peoples (IPs) of Mindanao are not all Muslim; many are animist in their religious orientation; and in addition, there are communities of settlers in among the indigenous peoples. The Organic Law reflects awareness of this issue in Article X on the planned system of justice. Government must deliver justice, which is understood as a fair balance in the collaborative production and distribution of collective goods. Considering the dangers of imbalance or even exclusion, the law anticipates the need to ensure participation and inclusion so that all affected persons can perceive themselves as participants in the BARMM. This is considered critical for the sustainability of a stable regime of self-government (20180727-RA-11054, X. Sec. 17).
Widespread acceptance that the autonomous authority has the resources and competence to deliver peace and harmony and that these in turn will foster prosperity will be essential to stability. Accordingly, stability is among the values targeted in the article considering patrimony and the economy, in which the objective of sustainable development is determined (20180727-RA-11054, XII. Sec. 2).
III. Governance
Good governance presupposes both a vibrant civil society and a responsible but also effective government. The BARMM inherits forms of government and civil society that need reform, adaptation, and development. Goods of cooperation can only emerge if there are social practices that engage local tribes and their members in deliberation and decision-making about what is worthwhile, and such practices must be rooted in the values and ideals of the relevant communities. Governance presupposes that the communities look with confidence to the institutions of government for the achievement of their deliberated goals. For institutions of government, responsiveness to society will ensure accountability and transparency regarding processes of decision-making and implementation. This requires a high level of virtue throughout the administrative framework, and an absence of corruption. There will be no privileging of favoured persons or groups, and no possibility of buying favours.
In a formal sense the initiative for Bangsamoro comes from above, from national government enacting the peace agreement with the MILF, leading to the Bangsamoro Organic Law enacted by Congress, and signed into force by the president in August 2018, with the BARMM inaugurated in March 2019. The value of governance requires movement in both directions, but it is understandable if the BOL concentrates on the responsibilities of government, including the responsibility to effect empowerment of citizens and groups. The bottom-up dynamic of initiatives arising from the people of Mindanao themselves will be considered under the heading of the value of agency.
The BARMM is designed in the BOL with a sense of the importance of the values of good governance, especially transparency, accountability, and the absence of corruption. The powers of government are laid out in a distinct article (20180727-RA-11054, V. Sec. 2). The revenue of the BARMM will be secured with a block grant from central government, but the specifications for budget and appropriations are provided in another article (20180727-RA-11054, VII. Sec. 27–28). The related values of good governance, of accountability, full disclosure, and publication of proposals and records are reflected in the requirements imposed on the regional government (20180727-RA-11054, XII. Sec. 2; 24 &40). As is to be expected in such a law as the Organic Law, the specification of the powers and responsibilities of government includes an article outlining the rights of citizens. With each of the rights listed there is a commitment of government to deliver and to ensure protection. One section in particular might be taken to represent this value of governance on behalf of all the other sections, namely, the assurance of equal and open access of all persons to basic services, thereby ensuring social justice (20180727-RA-11054, IX. Sec. 8).
IV. Agency
Agency is both a precondition and a consequence. On the one hand, the pursuit of goods in common presupposes agency and freedom from constraint to engage in the relevant deliberation and activity. On the other hand, to facilitate the agency of all participants is a common good of collaboration, a common purpose. The creation of the BARMM is a political project designed to enable and enhance the agency of a population which has been excluded from a share in the exercise of power. The IPBC research document says that agency ‘describes how a given population gathers around common issues, drafts some solutions and achieves them. It is first and foremost a positive freedom’ (Nebel and Delgadillo, Chapter 2 of this volume). The common issues for BARMM are rooted in their history, being largely linked to the marginal status of Muslim and tribal communities in the political, cultural, and economic life of the country. The design of the Bangsamoro governmental structure is intended, in the language of the research document, to ‘give them the possibilities to organize around common issues.’ Details of that design can be reconstructed in terms of facilitating agency.
For any collaboration, agency must be presupposed as already present to some significant extent, so that the new structures can be adopted and fruitfully operated. The agency exercised to date in the armed struggle has had its counterpart in the political campaign that has borne fruit in the achievement of the peace agreement and the creation of the BARMM. But that agency may have been exercised by a limited number of individuals in the upper echelons of the relevant organisations, predominantly the MILF and the Philippine Government. The new structures require participation at all levels, so that the aspects of agency must be found among members and followers and not only among the leaders. The agency of individuals cannot be separated from that of the collective, the agency of the governed is inseparable from the agency of the government.
The value of agency is at the heart of the BARMM as outlined in the BOL. The key objective is to restore self-government to people excluded from power (20180727-RA-11054, IV. Sec. 2). Measures are planned that will expand the opportunities for participation and that require the Bangsamoro government to consult widely (20180727-RA-11054, VII. Sec. 5 & 7), including in matters of planning for development (20180727-RA-11054, XIII. Sec. 5–6). Those most likely to be marginalised in the processes of participation and consultation have their rights affirmed in the article on basic rights. In particular, the government is to ensure the participation of women and members of the indigenous peoples in government (20180727-RA-11054, IX. Secs. 11 & 12). This is in addition to the specifications for representation of all communities and interests in the parliament. Among the envisaged eighty members of the parliament there are to be a minimum of eight seats reserved for representatives of sectoral interests such as women, youth, traditional leaders, and the Ulama (20180727-RA-11054, VII. Sec. 7c). The indigenous peoples are charged with selecting their representatives according to their own traditions and customary laws (20180727-RA-11054, VII, Secs. 7 & 8). Customary rights and traditions are also explicitly secured and protected in the article on basic rights, so that government is obliged to facilitate the agency of people from the margins (20180727-RA-11054, IX, Sec. 4).
V. Humanity
The IPBC discussion of humanity as the fifth dimension of common good in a local community parallels the outline of justice, in identifying both a minimalist and a maximalist account (see Chapter 2, § ‘A List of Basic Common Goods and Core Habitus’). As justice was discussed both as satisfying the demands of a thin theory of the good, and as addressing the aspirational goods of human flourishing, as described in a thick theory of the good, so too the dimensions of humanity are sketched in two lists. One list corresponds to basic needs, while the other identifies values to be striven for in the collaborative and institutional life of a society. They are contrasted in terms of human needs and human aspirations, survival as distinct from flourishing.
The first list (A) suggests as basic goods corresponding to human needs the following: Work, Education, Culture, Solidarity, Rule of Law. The second list (B) maps areas of wellbeing corresponding to flourishing or aspirations for the good life. Freedom and responsibility; justice and solidarity; peace and concord; prudence and magnanimity; perseverance and courage; resilience and sustainability. As both values and virtues, they are immanent in the pursuit of common goods.
Surveying the Bangsamoro Organic Law we find a comprehensive embrace of both dimensions of this value of humanity. The BOL signals the desire to recognise the humanity of each of the constituent tribes and cultures and to acknowledge their entitlement to pursue their fulfilment as stipulated by their own cultures and traditional values. Constraints such as compliance with international human rights law, and national legislation, may reveal challenges requiring astute and careful accommodation so that all may be satisfied. Concern for the basic needs of all its peoples is expressed in the many references to general welfare. These are to be found in the articles on the powers of government and on the structure of government in the Bangsamoro (20180727-RA-11054, V.; VII. Sec. 5). The theme recurs in the article on basic rights (Ibid., IX. Secs. 9 & 22) and in the sections of that article dealing with special cases such as the welfare of the indigenous peoples, people with special needs, and seniors (Ibid., IX. Secs. 3 & 23). Of course, welfare need not be reduced to satisfaction of basic needs but could include also the aspirations for wellbeing and flourishing in a full sense. We find resonances of this second list in the Preamble and other statements of purpose and vision. Furthermore, several sections of the fourth article on general principles and policies reflect this spectrum, from securing the minimum to pursuit of the maximum. The former is reflected in the commitment to social justice: ‘The Bangsamoro Government shall ensure that every Filipino citizen in its territorial jurisdiction is provided the basic necessities and equal opportunities in life. Social justice shall be promoted in all aspects of life and phases of development in the Bangsamoro Autonomous Region.’ (Ibid., IV. Sec. 7). The aspiration to full development in all dimensions is expressed in an earlier passage: ‘In the exercise of its right to self-governance, the Bangsamoro Autonomous Region is free to pursue its political, economic, social, and cultural development as provided for in this Organic Law.’ (Ibid., IV. Sec. 2). This latter formulation refers to the flourishing of the community, but this is not to be understood as in tension with or at the cost of individual fulfilment, given the assurance of respect for individual human rights.
4. Indicators
The ambition of the IPBC’s international research project is to generate some instrument to enable municipal and regional governments to assess their performance in relation to their common goods. Beyond the enumeration of the pentagram, the five core values, and the twenty associated relations, it should become possible to generate sets of indicators that could be applied in an evaluation. The determination of the relevant indicators should ideally be the responsibility of the political leaders themselves, based on what they find useful in the pentagram. In the following I do not wish to usurp this role, but merely to suggest how indicators might be formulated for the evaluation of the implementation of the BARMM in terms of its espoused common goods. The preceding discussion has shown that the five core values are indeed reflected in the commitments and aspirations of the Bangsamoro Organic Law. Taking these values in the order in which I have considered them—justice, stability, governance, agency and humanity—what kinds of indicators might be suggested?
We begin with the value of justice. Given the emphasis on transitional justice in the BOL, it would appear unwise to make transitional justice in the sense of rectification of historical wrongs a significant indicator of the success of the BARMM. The danger with a backward looking and legally weighted approach is that a forward-looking political approach is neglected. There are enormous difficulties in resolving historical grievances particularly concerning land disputes in which there is no accepted common basis of establishing claims. If resolutions must be according to law, court cases are likely to require a lot of time and resources (Murphy 2017, Nagy 2008). Rather than risking diverting resources into legal disputes I suggest that the construction of the new political and legal structures should be given priority. The BOL sets the tasks of creating structures of government and adjudication, and these rather than historical grievances can be the basis for review. Progress in assembling the parliament and evidence of laws made and implemented can be easily reviewed. Similarly, undertakings to avoid discrimination, and to uphold basic rights, can be reviewed with evidence of the operation of the relevant structures, and timely response to accusations of violation of these high standards. Given the sensitivity concerning the Indigenous Peoples and claims to ancestral domain, this will be a particularly important indicator for the performance of the BARMM.
The common good of peace is absolutely necessary for the stability of the Bangsamoro project. Hence, an indicator of success or failure in relation to the value of stability will be the absence or occurrence of outbreaks of violence. While every society must deal with crime, including armed assault and/or robbery, such events in a fragile setting like Mindanao can reverberate and signal either a lack of acceptance or a lack of competence of the governing authority (Murphy 2017). It would be unrealistic to expect that peace and the rule of law will become established immediately—there will have to be a period of adaptation, and this is reflected in the planned transition period. Through this time, and beyond, key indicators will be the measures of violent crime. Success in dealing with private security and other armed actors will be critical for the acceptance of the BARMM Government’s authority.
Commitments made in the BOL suggest other indicators. For instance, that former members of insurgent groups could be normalised and incorporated in the police force.
Essential for the stability of the BARMM is that practices of collaboration between the various tribes and participant bodies should emerge and develop from the grassroots. Widespread effective engagement should lead to the growing stability of institutions and practices. It should not be difficult to find measurements for this growing density of interaction.
The third value, governance, is strongly linked to stability. Local and tribal communities exhibit strong cohesiveness and fidelity to traditional values and to espoused religious worldviews. But how well are those cultural forms and practices adapted to democratic forms of deliberation and decision-making in collaboration with groups and tribes with different traditions and priorities? The necessary adaptation will be a challenge, because it can be expected to undermine traditional forms of authority and expectations of compliance. Where the cultures involved are traditionally autocratic, the practices of social authority include on the one side the expectation of being obeyed, and on the other side the expectation that obedience to strong command will be rewarded with the benefits of social cohesion. The wider Filipino experience has seen the survival of structures of patronage and sectional loyalty within the forms of democratic government. Similar carry-over in the BARMM is likely to undermine the whole project, since the new formal structures may simply provide new avenues for the traditional practices of domination and submission. Accordingly, the capacities of administrators and politicians to implement the new structures will be critical. The creation of the BARMM is not in a vacuum, but in a milieu that has seen an earlier attempt to create an autonomous region, ARMM, as formulated in the 1987 Constitution. However, that attempt foundered for various reasons, including corruption, failure of governance and oversight, and lack of popular participation.
There is a wisdom in the IPBC prognosis about governance as an aspect of common goods:
Whenever public decisions, public policies are decided elsewhere and without consultation with the people they affect, then the authority of the decision or the policy will decay in the long run. People do not obey a policy only because it brings about a utility or because they fear punishment, but because it makes sense, generating a common good we value. Hence a governance for the common good is but a federation of institutions that governs in common. Its ordinary functioning is an organic subsidiarity which brings about stability and efficiency only in the long run. (see Chapter 2, § ‘And What about Governance?’)
This challenge is addressed primarily to those affected by the structures of government: their engagement at grassroots level is the precondition for the success of the structures in achieving stability and efficiency in the long run. It is not an immediate effect but will require time and patience to embed the new practices and forms of collaboration. Indicators for the success of the implementation of BARMM will measure the vibrancy of civil society as well as the transparency and accountability of local government. The key test for the institutions is whether they succeed in facilitating participation at all levels, and whether local initiatives can emerge and be sustained through the various levels of administration. Evaluators will look for evidence of practices, joint undertakings, equality of treatment and operation of measures of transparency and accountability.
Governance and agency are linked in the relations of empowerment (GA) and participation (AG). While the aspiration of the BOL to allow access and to empower each of the groups and their members is unrestricted, it remains an enormous challenge to accomplish the enabling of agency on this scale. Inevitably some groups will be better placed to succeed than others, granted the inherited skills associated with the practices of trading, for instance, in comparison with the more self-sufficient and self-contained tribes, far from the main trading routes. It will not be a surprise, therefore, if the agenda of empowerment suffers setbacks in some cases. It would therefore be useful to identify key indicators for participation. Some will be easy to identify, such as voter turnout in relevant elections, but voting alone is insufficient to indicate the degree of engagement needed for the success of the BARMM.
Anticipation of the groups least likely to participate could be useful, especially where a baseline can be established, to measure progress in acceptance of and identification with the BARMM. Similar indicators might be developed for the value of humanity, especially considering the list-pair suggesting the span between the minimum satisfaction of needs and the maximum realisation of fulfilment. The literature on social development can be a source for relevant indicators (Nussbaum 2000)
As noted above, the exploration of possible indicators is offered here as a suggestion of what might be useful. The determination of actual criteria for evaluation of the success of the Bangsamoro project must be the responsibility of the political community and its leaders. They set the agenda for the BARMM and they undertake to deliver it in the spirit of transparency and accountability.
5. Testing the Pentagram
The BARMM is a courageous initiative to make it possible that peoples of Mindanao who historically have been excluded and denied their proper place in the national story can participate in and contribute to the building of a modern, viable state. It attempts this by creating an autonomous regional administration, seeking to include Shari’ah law and tribal traditions within the procedures of the state. This venture is attempted in full consciousness of the legitimate complaints of injustices in the past. The focus is on building for the future, and in this it is appropriate to use the language of the common good. The four subjects with common goods have been identified above: the country as a whole; Mindanao, which is more than the Bangsamoro region; the peoples of Bangsamoro; and humanity. The Bangsamoro Organic Law does not explicitly mention the term ‘common good,’ but that does not preclude a commentary which identifies this dimension. The availability of the rhetoric of common goods can strengthen the project, as it adds a layer of meaning to what is being attempted.
The IPBC analyses the common good in terms of the pentagram, the five aspects of the common goods of political communities, namely stability, governance, agency, justice, and humanity (see Chapter 2). In the review of the BOL we have seen the relevance of these aspects to what is ambitioned. The pentagram is shown to be a valuable instrument to map the values at stake in the BARMM since all five values are found to be central in the attempt to create an autonomous region. The language of common goods is valuable for expressing what is at stake, both in the instruments created and the purposes for which they are applied. The formulation of indicators to establish the achievements of the BARMM is enabled by the model. Suggested indicators are merely examples for how the participants themselves might determine the criteria they wish to apply to their efforts.
While acknowledging the usefulness of the model, the particularities of the situation in Mindanao provoke reflections on possible limitations of the pentagram as articulated to date. The circumstances of the BARMM, with its historical context and the measures undertaken to generate solutions, suggest that the pentagram must be capable of adaptation to accommodate the features of different political situations. Three aspects appear on an initial review. First, religion is critical in the situation of Mindanao, but not well accommodated in the model. Second, the timeframe for implementation of new structures should be factored in and the danger of premature assessment identified. Third, the several levels involved in the realisation of common goods suggest that problems of integration of micro-mezzo-macro levels should be anticipated and points of possible tension and conflict identified. A brief comment on each of these three is offered.
I. Religion
Religion is a major factor in the Philippine context, because of the difficulties associated with the presence of several religions, Christianity, Islam, and forms of animism, each of which has its own legal and political perspectives. The history of Mindanao and its islands and of the country is a history of violence, in which Islamic insurgency and Christian repression have shaped the memories and expectations of people with regard to justice and the rectification of injustice. The pentagram does not thematise religion. It may include religion under the heading of ‘cultural identity’ in list B of ‘humanity’ that may be broadly enough construed to cover religion, religious practices and religious affiliation. In BARMM that would not suffice for the exploration of common goods. Because the historical experiences of oppression have been very explicitly linked to religious discrimination it was necessary to foreground religion in the Organic Law. As might be expected in any liberal constitution, religious liberty, the freedom of expression and worship, the freedom of association, and public participation in religious practices are guaranteed (20180727-RA-11054, IX. Sec. 5). But that is not sufficient to restore self-government to the Bangsamoro peoples. The structure and governance of the BARMM provides for the location of religion at the heart of government with the affirmation of the religious identity of the Muslim population and its entitlement to self-government according to its own religious beliefs. As observed by colleagues at the Ateneo de Davao (2014) University when commenting on the draft law: ‘Congress must not forget that in the Bangsamoro, religion is the basis of everything. From religion, all others (governance, justice, culture, relationships, family, etc.) come to life. What is religious is political and conversely, what is political is religious because the two are so intertwined in the life of Muslims.’ The inclusion of religion in the law goes beyond the purely negative rights in the guarantees of non-interference. The BOL includes Shari’ah law as permeating all of social life, to the extent it is compatible with international human rights law, and national legislation. The situation in Mindanao and the BARMM would require a more expansive consideration of religion, and this need might be replicated in other parts of the world, for which the pentagram might also prove useful.
This comment is not intended to identify religion as a component of the problem. Religion is so integral to the cultures of Mindanao that it must also be a significant resource for construction of the solution. Shared meaning is crucial for any political project and the construction of BARMM is no exception. For people to be able to buy into the new structures of government they must be able to find roots in their own deeply held convictions and recognise there a confluence of values. A possible resource for Christians and Muslims to find common ground in faith commitments is the joint statement issued by Pope Francis and the Grand Imam of Al-Azhar Ahmad Al-Tayyeb in Abu Dhabi in February 2019, A Document on Human Fraternity for World Peace and Living Together. These two leaders find in their respective traditions perspectives that are shared and that can support peaceful life together. This may indicate one way for the religious beliefs of the constituent peoples of the Bangsamoro to ground the core values of the pentagram and to articulate the links between their beliefs and their common goods. Of course, this articulation must be done by the people themselves, and by the relevant civil society organisations and bodies such as churches and the Ulama (Association of Islamic Scholars) and peace-building NGOs, and it would be a misplaced charge to expect the outline research discussion paper of the IPBC to provide this. However, there may be a possibility of strengthening the acknowledgement of the possible critical role of religion in the pentagram. This might be done in the set of relations, as for instance between humanity and justice, where in one direction a shared rationality can be explored, one rooted in a worldview that embraces a relationship with the Creator, and in the other direction, justice and humanity, identified as flourishing, the comprehension of fulfilment will include friendship with the divine. This is intended as a suggestion to be explored, but with the qualification that the dimension of religion cannot be confined to only one value or one pair of relations.
II. Timeframe
The second remark for the improvement of the pentagram concerns time. In the creation of new structures, and embedding them in the culture, it is important to factor in a timescale for the measurement of performance and evaluation of effectiveness. The pentagram might be expanded with inclusion of a timescale factor, commensurate with how ‘new’ or ‘mature’ the relevant social arrangements are. In creating new structures there is a danger of unrealistic expectations that downplay the necessity of their adoption by the populace. Adoption and integration might take considerable time, even a generation, when fears and suspicions must be allayed, and trust must be fostered. Premature evaluation may well be counterproductive in undermining confidence due to the slow pace of change and may strain peoples’ patience and their willingness to endure the discomforts of the transition period. Hence, the model might consider when it is meaningful to evaluate achievements in the domains of stability, justice, agency, governance and humanity. Given human experience in implementing peace agreements, a matter of generations in some cases, it is critical to allow time for the new practices to become established. Some indication of a scale for sufficient time might also be included in the model. This would be helpful also for managing the expectations of citizens who will look for the peace dividend and the fruits of their patience.
III. Integration of levels
A third learning point arising from this case study concerns the integration of different levels of government. The pentagram mentions the micro, mezzo and macro levels, and that is helpful. The BARMM exemplifies a mezzo level organisation and poses significant questions as to how it might be integrated with the very local, and with the macro levels of national government. The relations with micro level government will pose particular challenges for the BARMM given the commitment to respecting traditional tribal practices. The BOL addresses issues of intergovernmental relations in a separate article, which provides structures for organising and monitoring relations between the mezzo and macro levels (20180727-RA-11054, VI.). This is wise, based on the expectation that there will be tensions that will have to be managed. Already some such tensions are emerging, as members of the National Congress call for review of the implementation of the BARMM. This connects with the previous point about timescale, which arises in a particular way in the different responsibilities of government at various levels. The integration of levels will arise also in the domain of adjudication as well as government. The commitment of the BOL to ensure adherence to international human rights law along with national legislation while incorporating Shari’ah law will lead to issues of jurisdiction in disputed cases. The points of integration and the expected difficulties arising there need to be identified. The pentagram might be expanded to provide resources for such tasks.
Acknowledgement of different levels is appropriate, and the associated interconnections reveal vulnerabilities. However, it is not simply that the mezzo level is vulnerable to the macro level, and by these we understand the relations between regional and national government. National government in turn is vulnerable to global dynamics, and events beyond national control can have a devastating impact on a country. Climate change and associated environmental impact can directly constrain the freedom of action of a state, and consequently, its regions. Similarly, events affecting global commons, such as epidemics, global economic recession, and world peace (or war), condition the scope of action of national and hence regional government. Such global commons, that are public goods or bads, can also be common goods or bads, and for the sake of completeness any mapping of common goods should include them (Riordan 2015). An awareness of the great scale of the undertaking that is the BARMM and its implications for good for so many people includes an awareness of its vulnerability. The particular situation of the Philippines and Mindanao at this juncture of their history reveals their vulnerability to global events in all the categories just mentioned. China’s role in the Asia-Pacific Region, its aggression towards its island neighbours, and the risks of a trade war, may undermine any pursuit of common goods.
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