COMMENTARY: In the War of Attrition on the BBL, Key is Making Moro Autonomy Work

COTABATO CITY (MindaNews / 24 June) – The acrimonious debate on the proposed Bangsamoro Basic Law (BBL) is focused on its legality and constitutionality. Critics of the BBL are keeping their bases covered. Even before the enactment of the BBL, petitions are piling up in the Supreme Court questioning the constitutionality of the Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement of the Bangsamoro (CAB) – the mother agreements on which the proposed BBL is based.

A wholesale declaration by the Supreme Court that the FAB and the CAB are unconstitutional will not only halt the BBL train on its tracks but will spell the collapse of the peace process with the MILF.

OPAPP and BBL proponents have embarked on a massive information campaign in defense of the constitutionality of the proposed BBL. A citizens’ peace council has proposed to reformulate the language of some provisions of the Malacañang-endorsed version of the BBL in order to make it compliant to the Constitution. The House Committee on the BBL has reported out a version of the legislation in the plenary which it claims has been sanitized of unconstitutional provisions.

In the Senate, the Committee on Constitutional Amendments and Revision of Laws has released a report critical of the constitutionality of the key provisions of the proposed BBL. Senator Ferdinand Marcos Jr., Chair of the Committee on Local Government, in a privilege speech has vowed to introduce big changes in the Malacañang-endorsed version of the BBL not only to align it with the country’s charter but also to make it more inclusive.

The Moro Islamic Liberation Front (MILF) has consistently maintained that pursuant to the FAB and the CAB, the Philippine government must enact a BBL that is consistent with the terms of the peace agreements. While it agreed to a symbolic decommissioning of a small part of its armaments and troops, it warned that no further decommissioning will be taking place before the passage of the BBL. Under its normalization agreement with the government, the MILF is bound to decommission 30% of its combatants and arms only after the enactment of the BBL.

The legislation of the BBL has turned into a war of attrition of sorts and no one is blinking. In a zero-sum environment where political agreements, constitution and laws are treated as etched in stone to reinforce entrenched positions, we lose sight of the interest common to all: making autonomy for Mindanao peace work.

The FAB and the CAB are negotiated political documents that articulate the aspirations of the MILF and the agreed roadmap by which these aspirations can be addressed. The legal status of the FAB and the CAB will be the subject of endless debates but except for the terms that require only executive action, political autonomy can only be implemented via an organic or basic law legislated by Congress.

The agreed roadmap is for the MILF-led Bangsamoro Transition Commission (BTC) to draft the BBL that will be endorsed by the President to Congress. By this design, the prospect is diminished that in the end, we will have a BBL that follows the letter of the FAB and the CAB. The MILF-led BTC inevitably came up with a proposed BBL that interprets the FAB and the CAB in line with the MILF’s aspirations. Constitutionality or legality is understandably secondary to a rebel group that is up in rebellion against the country’s legal system.

On the other hand, the President and members of Congress who took an oath to uphold the country’s constitution and laws are duty-bound to insure that the terms of the BBL shall be in accordance with the Constitution. The direct participation of the MILF in the crafting of the legislation for the implementation of the CAB has turned the legislative process on the BBL to an extension of the negotiations between the rebel group and government. The MILF was dragged at the center of the legislation and placed in an awkward and no-win situation – advocating the Moro aspiration within the country’s restrictive legal and constitutional framework.

It does not help that President Aquino’s strong and unwavering commitment to the peace process is not matched by a dose of political will to institute much needed political and constitutional reforms to facilitate the implementation of the CAB and the enactment of the BBL. The legal strategy of government that there is enough flexibility in the Constitution to accommodate the terms of the CAB has not gained traction in the legal community. Those who believe in the constitutionality of the proposed BBL subject to refinements in language are essentially calling for a liberal interpretation of the country’s charter. For good or bad, the strongest voices come from constitutionalists and retired jurists who appreciate all the efforts for Mindanao peace yet of the opinion that meaningful implementation of the CAB requires charter change.

This “war of attrition” on the BBL between President Aquino, MILF, House of Representatives, Senate, peace advocates and interest groups could only end in an impasse or a BBL that will have weak public support and difficult to implement due to issues of interpretation, legality and constitutionality.

Under the current trajectory, the proposed BBL provisions with doubtful constitutionality will be either taken out from the bill or reframed according to government’s interpretation but do not necessarily square with the MILF’s reading of the CAB. Already, even some of the reframed provisions of the BBL version deliberated in the House plenary are considered to be less than the terms of the current ARMM law.

In order to build and not squander the gains of the CAB and the peace process with the MILF, we must shift the frame by which the BBL is legislated from the current zero-sum positional approach to an incremental, interest-based strategy with the primary strategic goal to make Moro autonomy work.

This framework requires acceptance by key parties of the proposition that the FAB and the CAB are aspirational as well as roadmap documents and the political deals therein can only be meaningfully implemented in phases and in step with reforms in our political institutions, laws and processes. And political reforms require more than reconfiguring the relationship between Manila and the envisioned Bangsamoro political entity where too much national energy is expended on the meaning of “asymmetric”. Equally or perhaps more crucial is building a democratic, efficient and working Bangsamoro political institution that will lead the region to peace and prosperity.

There are no shortcuts to democratization and political reforms. It requires strong leadership and relevant, working and efficient institutions. The experience of the Autonomous Region in Muslim Mindanao (ARMM) teaches us that meaningful change requires more than just giving the region more money and powers in law. It requires strong, enlightened and inclusive leadership and institutions to put in place and implement public policies that empower citizens than perpetuating control of the few to political and economic power. It calls for evolving efficient and workable institutions that can sustainably deliver basic social services to communities.

The CAB and the proposed BBL contain the “seeds” for promoting the needed structural and attitudinal change in the region. These are clarifying delineation of powers, responsibilities and accountabilities between the national, regional and local government units; promoting democratic participation thru the regional parliamentary system and genuine political parties, strengthening fiscal autonomy to insure that the autonomous region shall have sufficient funds to propel development; increasing the participation and share of the regional government to proceeds of energy and natural resources and increasing participation of the regional and local governments in law enforcement.

These provisions are “seeds” to be nurtured not “magic pills” that will reform the region overnight. Relevant and effective public policies, structures and bureaucracy must be in place to operationalize these “seeds” for reforms.

In the crafting of the BBL, the baseline must not only be the FAB or the CAB but the ARMM. It is by understanding the history and context of the current autonomy that the FAB and the CAB can be understood and the “seeds” for reforms can be nurtured. The role of Congress is not only to look at the constitutionality of the CAB and the proposed BBL but more crucial (and it is in the best position) to determine and insure that institutions and processes are in place to bring about real changes in the autonomous region.

The Senate Committee on Local Government, the lead committee in the Senate on the BBL, is raising the right questions. It asks, for instance, for the blueprint of the Bangsamoro government to determine the level of funding needed for its operations. Absent a clear program of Bangsamoro structures and government, the seemingly arbitrary formula for the block grant in the proposed BBL will only perpetuate the endless blame game in Manila-ARMM relations where the autonomous region faults Manila for inadequate funding while the national government blames the autonomous region for inefficiency and misuse of funds.

The Institute for Autonomy and Governance (IAG) is engaging the Senate in seven (7) academic and non-partisan roundtable discussions towards greater understanding of the history, context and issues around the CAB, BBL and the ARMM. In these dialogues, IAG is partnering with the Senate Economic Planning Office (SEPO), the Senate-Muslim Advocates for Peace and Progress (SMAPP) and the Local Government Development Foundation (LOGODEF).

The peace process with the MILF cannot be anymore moved forward by the rhetoric of war and peace, spoilers and peaceniks. It will be to the best interest of the nation that we get real, buckle down to work and put in place workable public policies for national and regional reforms toward sustainable Mindanao peace and development.

(Atty. Benedicto Bacani is former Dean, College of Law, Notre Dame University, Cotabato City. He is the founder and Executive Director of the Institute for Autonomy and Governance. He can be reached at [email protected])