GENERAL SANTOS CITY (MindaNews / 16 May) — The establishment of Bangsamoro as meaningful autonomy under the realm of justice, peace and prosperity is in a seriously precarious situation unless the Congress stops, looks and listens to well-meaning counsel for the best options.
What are the alarm signals?
First: Counting from Monday, May 18, there are only 19 session days left in the calendar of the Second Regular Session of the 16th Congress – 10 in May and nine in June – before sine die adjournment on June 11. Within this period, to meet the June 11 must-deadline to pass the Bangsamoro Basic Law (BBL):
- The House Ad Hoc Committee on BBL has to vote on its Report – rescheduled May 18, 19 and 20. Hopefully, the Committee can submit its Report for plenary debates on May 25. Can the full House finish the debates, amendments and nominal voting by May 29 so it can transmit the approved HB 4994 to the Senate within the week June 1 to 5?
- The Senate Committee on Local Government has just ended its hearings. The Committee has to meet (May 18 – 22) to deliberate on Draft BBL (SB 2804) considering the hearing inputs, amend and vote. However, even if the Report will be ready, the Senate cannot start its plenary until it receives HB 4994, hopefully, in the week June 1 to 5.
- Will there be time to pass SB 2408, to consolidate SB 2408 and HB 4994 in the Bi-Cameral Conference Committee and to have the consolidated BBL approved by the House and the Senate by June 11? The order looks dauntingly tall.
- Failure to pass BBL by June 11 cannot be completely ruled out.
Second: The President has expressed misgiving over the diminishing timeline for the passing of the BBL and alarm that failure to pass it by June 11 would adversely impact on what the Bangsamoro Transition Authority (BTA) can do (The Philippine Star (May 11. 2015: P-Noy: House panel to pass BBL this week).
His misgiving is this: If the BBL is passed by June 11 and ratified in September, the BTA will be “able to demonstrate the effectiveness of their new governance mode”. If not, it would “be too late in the day”. Has he realized that even by the June 11 timeline it is already much, much too late? He must be consoling himself with the thought that the Congress, failing by June 11, could still pass the BBL to be ratified in December. But he is not consoled by reality — this is still “too late in the day” – ruing that if the BTA will start its task only in January 2016, “there is very little thing they’ll be able to do”
What are the “precarious situations” calling for “best options”?
[A] The impossibility of passing the BBL by June 11 looms; and, [B] even if the BBL is passed by June 11 or within three months after, the BTA will not be able to do its task satisfactorily as mandated.
Of “[A]”, constricting timeline is irreversible. The Senate timetable is uncertain; what is being done is clueless. The emerging anti-Draft BBL and pro-Draft BBL factions in the AHCBBL and in the House over the issue of constitutionality concerning especially the eight provisions earmarked for deletion – evidently shaping along party lines as gleaned from media reports – can stall unexpectedly legislation processes beyond the Committee and the plenary levels.
Of “[B]”, the problem can be a blessing in disguise if approached realistically, creatively and objectively with nothing but the Bangsamoro vision-mission in focus.
What are the best options?
For “[A]”, there is one novel and innovative; it is worth exploring; that is: include in the BBL a provision for “Judicial Review” to settle the constitutional and legal issues.
The concept of unity and coherence underlying three principles involving the Executive, Legislature and Judiciary pertaining to conflict resolution and peace building stated by the Citizens’ Peace Council in its Cluster Report (p. 9 of 50), provides the premise:
“(1) Within the context of conflict resolution and peace building, the government – all three main branches – are (sic) seen as a single unit and with the sensitivity of peace, the language of the peace agreement must be able to reflect this. (2) The Executive as peace negotiators, Congress as lawmakers and the Judiciary as law interpreters are not in competition for meaningful peace against the other. (3) While each branch performs their respective roles and each fulfills their responsibilities, all should take greater care to respect this language of the other to create an agreement with a unified language of peace.” (Bold italics ours) (The numbering is ours for reference.—ppd.)
To restate: Regarding the peace process in Mindanao, the three branches of government have different roles but are not competitors against each other (2); they should be united as a single unit in “conflict resolution and peace building” (1); they should unite “to create an agreement with a unified language of peace” with each one taking “greater care” to respect the “language (read: “role”) of the other” (3) and (1). These principles must animate deliberations on Draft BBL and be concretely reflected in the BBL Act.
On the BBL: The Executive agreed with the MILF to establish Bangsamoro; it submitted to the Congress Draft BBL, the proposed bill for the Organic Law for Bangsamoro embodying the agreements, with the assurance of its constitutionality and legality. However, of the Draft’s 221 provisions, the AHCBBL deemed 60 to be unconstitutional or illegal and marked eight of them – all key provisions for meaningful autonomy — for deletion to the vehement objections of the Executive and MILF.
The Executive has the responsibility to negotiate peace MILF within the Constitution and existing laws; the agreements and Draft BBL are presumed to be constitutional and legal. So has the Congress in enacting Draft BBL into the Bangsamoro Organic Act; deeming some provisions of Draft BBL unconstitutional and illegal is within its mandate. But by imposing its interpretation of the Constitution over that of the Executive it usurps the role of the Judiciary and disregards Principle 3.
Principle 3 calls for two actions: (1) for each to respect each other’s language or role; and (2) for all three to unite “to create an agreement with a unified language of peace.”
Doing this means subjecting the BBL Act to a Judicial Review before it is signed by the President and ratified in a plebiscite.
What are the stipulations for the Judicial Review?
- The Three Branches should agree in a covenant to hold the Judicial Review.
- A provision should be included in the BBL Act for it to be signed by the President after the Judicial Review.
- The two Houses of the Congress enact the BBL following the usual processes.
- No provision of Draft BBL will be deleted. Questionable provisions will be amended by clarifications, supplements, removal of unnecessary texts, or refinement of language.
- The BBL Act is transmitted to the Supreme Court.
- The BBL Act will be returned to the Bi-Cameral Conference Committee for final revision according to the comments and recommendations of the Supreme Court.
- After the approval by both Houses of the Congress, the BBL Act will be submitted to the President for his signature then them to the plebiscite.
What are the merits of the Judicial Review?
The BBL will not only be in the language of peace of the three Branches but also of all who are interested since intervenors from all sectors will be welcomed. The Review will preempt complaints against the BBL.
The Congress can enact the BBL within July and August, judicially reviewed within the next three months and signed by the President in December. The plebiscite will be held simultaneously with the May 2016 election.
Article XVI of Draft BBL will be amended to suit the new timeline.
- Change the title to “Bangsamoro Transition”.
- Change “Bangsamoro Transition Authority” to “Bangsamoro Transition Government (BTG)”.
- Inaugurate Bangsamoro after the ratification of the BBL. It will be government by the BTG until the election of the regular Parliament in May 2019.
What are the merits of extending the transition period to May 2019?
Even one year is too short to properly transition Bangsamoro. Hastily transitioned Bangsamoro will be like an under-cared baby, if not pre-maturely born.
Three years will be about enough time to properly set up the mechanisms and modalities suitable to the parliamentary government. It will be about enough time for Bangsamoro leaders to adapt to the parliamentary system. By May 2016, the Bangsamoro regional political parties will be ready for a parliamentary election; so will the electorate be.
When MILF Chairman Murad Ebrahim agreed to shorten to three years the transition period, he meant transition proper. By extending the transition period to 2016, the MILF-dominated BTG will have three years. Should something go wrong with the transition phase of Bangsamoro, it should not be blamed on shortness of time for transition.
Will the Palace, the Congress and the Supreme unite “within the context of conflict resolution and peace building” – taking as “good counsel” what the Citizens’ Peace Council has expounded concerning the reality of the “doctrine of separation”.
(MindaViews is the opinion section of MindaNews. You can reach Mr. Diaz at firstname.lastname@example.org)