IV Postscript (Conclusion)
GENERAL SANTOS CITY (MindaNews/27 May) — The regular Bangsamoro legislature will be elected in 2016 during the interim period. Will the few reoriented leaders be able to outmatch politically the entrenched traditional leaders? Will the Moros see or experience during the short transition enough to bear out the hope and optimism generated by the FAB to influence their vote for the Bangsamoro leaders? This reality should not be overlooked.
Election is crucial to the entrenchment of the Bangsamoro. Will the election of the first Bangsamoro legislature be synchronized with the 2016 national election or be separate under “an electoral system suitable to a ministerial form of government”?
The FAB.I.2 provides:
The government of the Bangsamoro shall have a ministerial form.
The Parties agree to entrench an electoral system suitable to a ministerial form of government. The electoral system shall allow democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties. The electoral system shall be contained in the Bangsamoro Basic Law to be implemented through legislation enacted by the Bangsamoro Government and correlated with national laws.
The assumption: The Philippine electoral system is not suitable to the ministerial form of government.
Question: Will the election of the first Bangsamoro legislature in 2016 be under the Philippine electoral system synchronized with the national elections? Logically, the first Bangsamoro legislature should be elected under the Bangsamoro electoral system.
The mandate: The Bangsamoro electoral system will be provided in the BBL; this will be enacted into law by the Bangsamoro Government. Question: Which Bangsamoro Government, the interim or the regular?
Clarification: Bangsamoro Government must mean Bangsamoro legislature. Does “correlated with national laws” mean with the Philippine election laws? Will this mean an electoral system suited to the ministerial form of government suitable to the Philippine election laws?
Political Parties: Of the three features of the Bangsamoro electoral system, the third — to “encourage formation of genuinely principled political parties” — should be considered most significant. If it means the exclusion of national parties so bereft of principles that will save Bangsamoro from the political corruption that has damned the ARMM.
However, if the assumption is logical, if the mandate means the interim Bangsamoro Legislature and if the Bangsamoro political parties are free from the influence of the national political parties, can all these be brought into reality within the short transition period? FAB.VII.10 and ATAM II.B.5 provide clearly that the BTA, hence, the Interim Government, will end on or before June 30, 2016.
Pilllar of Bangsamoro
The electoral system as a pillar of Bangsamoro as a political entity must be founded on the Bangsamoro political philosophy. We do not want to preempt or telescope the MILF thinking but this political philosophy must be one founded on Islam and not conditioned on the Western doctrine of “separation of Church and State”. It must govern elections in the entire Bangsamoro – meaning, including all its constituent local government units.
If the MILF leaders are consistent with their public statements [Read the May 8 and 16, 2913 editorials of Luwaran], the philosophy, principles and practices underlying the Bangsamoro electoral system will be very much different from those of the Philippine electoral system. How these will be drafted in the BBL by the Transcom and enacted by the Congress, “correlated with national laws”, will depend on whether the Transcom and the Congress have converging or diverging minds.
The short interim period coterminous with the term of President Aquino III will limit the option of MILF concerning the election of the first regular Bangsamoro legislature, more so that MILF Chairman Murad and other top MILF officials have expressed their faith in the sincerity of the President and the belief that the opportunity to set up Bangsamoro will be hard to come by in governments after Aquino’s. What is the option?
First, it looks most improbable to expect the interim Bangsamoro legislature to enact the Bangsamoro electoral system in time for the May 2016 election. The first regular Bangsamoro legislature will have to be elected under the Philippine electoral system even if implied as not “suitable to the ministerial form of government.
Second, under that forced option, there is no assurance that Bangsamoro at its very start will not fall into the hands of the same traditional Moro leaders in the mold of those who had long dominated the ARMM.
Third, should such eventually happen, the MILF vision of the Bangsamoro enshrined in the BBL and just starting to sprout under the BTA will wither before the first true leaves see the sun – before the Moros see the realization of their aspiration.
It is ideal and imperative that the BTA continue its mission of building the Bangsamoro in transition into the next administration. In the next three years the proper conditions should be in place for electing the first Bangsamoro legislature – as well as the officials of the Bangsamoro constituent government units — under the Bangsamoro electoral system. But this can be wishing for the moon: This is not in the FAB roadmap.
Judge Soliman M. Santos Jr., a long-time peace advocate before his appointment as judge and still a peace advocate, discusses in his “Unsolicited Legal Memo for the TC and the GPH-MILF Peace Panels Re: Transition Commission’s Work on Constitutional Amendments”, some inconsistencies in the provisions of the FAB and ATAM and that of EO 120. He also questions the need and relevance for these provisions when the Philippine peace panel has maintained that Government will negotiate only within the Constitution and all signed agreements are according to the Constitution.
The provisions in question:
FAB.VII.4.b. To work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements.
ATAM.I.D. and II.6[d]. The TC shall work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements.
EO 120, Sec. 3.b. Whenever necessary, to recommend to Congress or the people proposed amendments to the 1987 Philippine Constitution.
Noting the significant difference – EO 120 being less restrictive than FAB and ATAM — Santos asks: “Which should then prevail as the governing provision for the TC’s work on constitutional amendments – EO 120,Se.3.b or FAB,VII.4.b and its ATAM, I.D, & ii.6.[d]?”
Definitely, EO 120 amended FAB.VII.4.b. Either the Parties just overlooked the change or intentionally disregarded it and restated verbatim FAB.VII.4.b in ATAM. This should not be taken for granted: The change revealed the mind of the President or of his close advisers concerning the probable amendment of the constitution. Why did they not just adopt in EO 120 the agreement exactly as stated in the FAB?
Santos’ question as to which provision – the FAB and ATAM or the EO 120 — will prevail in the drafting of the BBL will be seen in the draft. Will the Transcom propose amendments? One of its seven working committees has this task. Of greater concern will be the fall outs from the proposed amendments.
First, the Transcom proposes, the Congress disposes. How will MILF take the enacted amendments if they are not as proposed?
Second, FAB.II.4 and ATAM.I.E provide for the ratification of the BBL “by the qualified voters in the core territory of the Bangsamoro”. This is consistent with Article X, Sec. 18, Paragraph 2 of the 1987 Constitution should the ratification concern only the “creation of the autonomous region”. Will this hold if the BBL contains amendments to fundamental doctrines in the Constitution?
As agreed: (1) The government of the Bangsamoro shall have a ministerial form of government [FAB.I.2, DPP.4]; and, (2) The relationship of the Central Government with the Bangsamoro Government shall be asymmetric.[FAB.I.4]. Unless proven in accord with the Constitution [such as: Article II, Sec. 25 and Article X, Sec. 20(1)], these amend the fundamental governmental relation under the unitary system. Can such amendment be ratified only by the voters of the Bangsamoro?
Third, besides the mode of ratifying the ministerial form of government and asymmetric relation of Bangsamoro to the Central Government, amendments to the Constitution are invitation for petitions to the Supreme Court. Such petitions can abort the Bangsamoro.
The political entity named Bangsamoro is the agreed solution to “How to Solve the Bangsamoro Problem”, the single talking point the MILF proposed on February 25, 1997. In its final form, the solution will be embodied in the Comprehensive Agreement which will be the consolidation of the FAB, signed last October 15, and the Annexes, still in the negotiation process. Based on CA, the solution will be embodied in BBL.
The signing of the FAB has set the entrenchment of the Bangsamoro moving, However, the time lag due to the delay in the negotiation on the Annexes imperils the transition of Bangsamoro – the transition that will work. How this can be managed to avoid a so-so transition challenges Government and MILF.
There is very encouraging support for Bangsamoro from the Moros and international institutions and their governments. However, certain provisions in the FAB, the ATAM and EO 120 meant to boost the transition and entrenchment of the Bangsamoro will turn into handicaps if miscarried. These, too, challenge Government and MILF.
The resolve and capability of Government and MILF to carry out their agreements must not be underestimated. But the perils and handicaps should not be underrated and dismissed. Let the Bangsamoro be a historic fulfillment not a historic irony. (“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at [email protected])