PEACETALK: Achieving comprehensive Peace with BBL Part 2: How to arrive at decisions given the Whole-of-Government negotiation formula?

COTABATO CITY (MindaNews/ 24 May) — A larger question before Congress about the Bangsamoro is how members as “policymaker” (rather than that suggested by the nomenclature “lawmaker”) should decide on changes to the constitutionally mandated autonomous regional entity with policy focus shifts toward FAB (Framework Agreement on the Bangsamoro) and CAB (Comprehensive Agreement on the Bangsamoro) in force?

There is one peace-building policy dimension operative—affecting voting on roll calls in conflict resolution and negotiation process—that I will label the continuity of the existence of ‘international involvement dimension’ for donor support as well as concerns for amnesty. Safeguards or protection available to person essentially against State who no longer engages in combat fighting is a minimum yardstick in application to the principle of distinction.

The decision premises here spring out of the ‘normalization phase’ which is of pivotal concerns to economic package, foreign policy and security question on status of subjectivity of the “armed non-state actors” to common rules of IHL and the additional protocols to the Conventions. That is why GPH-MILF (Government-Moro Islamic Liberation Front) conflict transformation unlike that of GRP-MNLF (Government-Moro National Liberation Front) conflict resolution requires an ‘Exit Agreement’.

And we know this part of post-conflict settings: the factors that enter into policy decision task involve every instrument of the politician’s trade. By looking at the autonomy content of policy questions posed in the roll calls in each house of Congress reflect their ordering (high or low) support to the final political settlement of the violent conflict in Mindanao: “How to solve the Bangsamoro Question?”

The House ad hoc committee is itself a compromise working party rather than the select committee method with detailed attention to policy content of the Bangsamoro Basic Law (BBL) draft drawn from the FAB and CAB annexure. Just as essential is figuring out, in respect of Government consent to be bound, how Peace Pacts as serious undertakings are incorporated in substance with the policy positions of corresponding Senate standing committees together with the House committees on appropriation and ways and means to enact the coherent and meaningful provisions of the BBL.

Developing the Framework Agreements

It is convenient to deal with a need for provisions by which the domestic ‘legal regime’ created by the Government-MILF framework agreements can develop in conflict transformation. I also want to explain that the gradual stages devised to elaborate the principles of the Peace Pacts (FAB and CAB) through national legislation (BBL) follow the steps provided for in the constituent instrument (Constitution). The complete text of both FAB and CAB are not attached to the legislative Act of Congress to be measured in context of breach but for constitutive practice. Instead its provisions are translated into the language of the BBL to give effect to the Peace Pacts to include those of Organization of Islamic Cooperation (OIC) brokered peace agreements.

The centralist political use of qualified roll call vote by two-thirds of all members of Congress is one way of figuring out this lawmaking puzzle: How can equally legitimate measures entrench the possibility of other favorable interpretations of the Constitution?

A new paradigm for policy decisions on regional entity introduces the logic and mechanism for the asymmetrical autonomy arrangement for recognizing the aspirations of a national minority, with Bangsamoro dimension.

Interestingly, the organic Act for the autonomous regions was not made into a part of the Constitution to become a constitutional body. Its creation characteristically constitutes an Act of exception of a constitutional nature sui generis as to its substance. By precedent, in the drafting process of the expanded ARMM, it might be metaphorically cited the “leakage of law-making powers” that was not supposed to be encroached upon. As it is what Article X of the Constitution establishes are particular legal norms and so are the autonomous forms of the Muslim Mindanao geographic areas and the abortive Cordillera administrative region. Regional structure sets them apart from the case for symmetry of the Capital Region with the rest of the 12 regions plus the Caraga region.

The centralist approach continues but currently legislating for devolution is the most plausible response. One is inclined to consider it mere public relations gambit when the House ad hoc committee makes a ruckus out of that phrasal clause “central government” because in one sense it is a bit of bore to repeat counterarguments. Take on the simplest polar positions. Former Chief Justice Davide (a constitutionalist member of the Peace Commission) signified his personal preference for the label “national government” when, from the formal point of view, central government was accepted in judicial review. Congressional context of such clause was long conceded in the original organic Act (R.A. 6734 creating ARMM) and in the subsequent amendments (R.A. 9054 accommodating the 1996 Final Peace Agreement with MNLF). It was retained because Government is precisely centralized in its institution but accepts the principle of subsidiarity that underpins the logic of decision-making in periods of diverging regional administrative preferences.

The ‘national’ argument’ asks question about the meaning of asymmetrical devolution as to how the Bangsamoro is to be represented in Congress? Part of the case for a devolved parliament was that it would provide a corrective to the pressure and supervision by the Presidency. In problem-solving negotiation process, what bears repeating is protective strategy tied to goals gained—the peace dividends. More to this point, a basic rule for statute-crafting is not to use different forms of words to say the same thing; in critical context, it is negatively understood as another process of re-symmetrization.

Congress is seen in the whole-of-government approach as center for exchange of policy communications functioning as ‘a transmitter of policy mandate’ in the form of an organic legislation. Thus the legislative branch participates in making the Peace Pacts as part of domestic law through BBL, pursuant to Sec. 18 of Article X of the Constitution. At this critical juncture, the competency spheres enumerated under Sec. 20 that explicitly mandate devolution legislation: henceforth “legislative power” to be contained in an organic act or base statute added the relevant element to the process of power devolution.

First proposition:

The sources of demarcating ‘horizontal’ asymmetry do not occur as policy focus shifts into structural substate entity (having no parallels to confederacies or federal state) to place it under direct electoral control (in case of dissolution of parliament). Devolution transfers then a subsystem to the Bangsamoro entity for the dispatch of parliamentary business to the extent limited under the exclusive, concurrent, and reserved lists, which are contained in BBL working draft, with residual powers belonging to the Central government. Where the competencies are sorted out different allocation of powers in the Constitution the structural asymmetry is benchmarked for power sharing and wealth creation vertically divided. There is thus a bifurcated Intergovernmental Relations mechanism in the CAB so that Congress would not normally legislate with regard to devolved matters to the Bangsamoro parliament and inter-institutional policy network referral that would rely on political mechanism rather than the statute or judicial scrutiny for its operation.

Second proposition:

There is dual drive for ‘vertical’ asymmetry on the proposal for a parliamentary system in which power at the center necessitates co-governance. This has meant that FAB and CAB annexure laid out decisions of principle to form the basis of the BBL. Consensus formulation and execution of policy must at all stage bear in mind Bangsamoro needs and point of view governed by a different principle of democracy, the principle of power sharing. Such an approach departs from the presidential model based on the politics of adversarial possibility of alternating governments, which is unsuitable for societies divided by religion, language, or ethnicity. A strong argument is that the machinery of autonomous government is designed to dispose of business by collective cabinet responsibility to parliament whose members are popularly elected. This model is suitable to the conditions in Muslim Mindanao. As devolution takes place to the Assembly it articulates the historical repository and legacy of the sultanate mitigated by representatives and collective voices of the whole region.

Arguments for Asymmetric Devolution

We can detect in the transfer of competencies to the “Autonomous Regions” an operative effect of the doctrine of “act of exception” for enabling legislation. Thus, in constitutional order, their creation is not an ordinary Act of Congress which, at first sight, contains one or several provisions that seemingly collide with the Constitution. The source of asymmetry here is not so much the result of two types of entities (regular and autonomous regions) but the different constitutionally earmarked powers. To reflect this, it should be underlined not as a legal matter, but a political decision point at the forefront of the agenda. Through this Act, if the Bangsamoro people felt (1) that the bill was immediately lost after the second reading; or (2) that the amendments were to prove fatal to devolution, and (3) that such self-government legislation has been imposed upon them, the defeat would be taken as such a majoritarian pre-emptive measure in breach of the peace agreements.

Why is the evolution of a regional entity with constitutional status denied to regular regions asymmetric rather than associative envisaged in the MOA-AD (Memorandum of Agreement on Ancestral Domain)? The enactment of BBL is construed the asymmetric dynamic of the autonomous administrative system that overlaps with local government units (LGUs) and crosses paths with the executive departments, the police and the civil service operating in the existing entity, the Autonomous Region in Muslim Mindanao (ARMM). If a Bangsamoro parliament is to be set up, there would still a need to disperse power within Muslim Mindanao. Devolution must be to the regional entity, not to the Bangsamoro parliament.

Asymmetry in constitutional terms assumes the cleavage running through the unitary structure of the state. There is a drive for self-governance beyond local territorial and political subdivisions with some features of a substate, namely: (1) the autonomous regions; and (2) the special metropolitan political subdivisions (see, Sec. 11 and Sec. 15 of Article X). Subsidiarity principle and parity rule apply with a de facto veto right (i.e. ‘vetocracy’). This is a critical context of central-regional relationship that limits the power of Congress in creating autonomous entities by following constitutional procedures established in them ending with plebiscite.

The Bangsamoro Transition Commission (BTC) corresponds to the “regional consultative commission” whose perfunctory role is spelled out in constitutional idiom to provide “assistance and participation” for the enactment of an organic act or a basic law. This mechanism to initiate the BBL draft did not compose all-MILF representatives but those already at the negotiating table plus some presidential appointees representing government and other indigenous leaders. Working committees of the BTC fitted their positions within the ambiguous language of the Constitution yet a true experience and genuine “buy-in” to the Peace Pacts remain testable by ‘outliers’ in the next stage establishing the Bangsamoro Transition Authority (BTA).

Transformative rapid change in every culture needs an ‘out-group’ whose function is to act as scapegoat for the majority’s frustrations and prejudices or other stereotypes. To address the frustration of outliers and the excluded Muslim towns a general “deferred opt-in” provision on territory should be adopted as a continuing Inter-Governmental Relations (IGR) matter aimed at closure policy. I dare say that social identity and solidarity far outweigh both the “frustration-aggression” hypothesis and the “development aggression” template where the groups strive to maintain or enhance their self-esteem to contradict a condescending social policy. (For conciliation impact in the Good Friday Agreement “parity of esteem” was insisted upon more than national apologies. Hence, deletion in the House ad hoc report must be restored).

Contending Constitutional Infirmities

The Constitution is too narrow a framework to negotiate the political settlement of the Bangsamoro Question, and so if Congress decides a minimalist conception of devolution or an erosion of autonomy already granted in ARMM in order to overcome resistance to the BBL the measure should be thrown out. The House majority floor leader Rep. Gonzalez has practically put forward an “allocation-of-time-motion”. Senator Santiago’s Committee on Constitutional Amendment report is the jugular “guillotine motion” stating the bill requires constitutional amendment and so “it cannot be promulgated by means of legislation”. If the FAB and CAB annexure as substantive content of BBL are beyond the ambit and flexibilities of the Constitution so why not ride on the proposal for charter change of the economic provisions?

Yet the interpretation of Justice Tinga’s dissenting opinion in Sema vs. Comelec (2008) sheds a different light which takes on that challenge so the issue then “partakes of a constitutional mandate” crystallized as a new paradigm. It is pointedly captured in Footnote to the Disomancop vs. DPWH (2004) majority that autonomy speaks not just vis-à-vis the President but also vis-à-vis the Legislature. That is, “while we are curtailing the power of the President, we are also curtailing the power of the Legislature, (III RECORD 515; 19 August 1986). Devolution was made easier in Muslim Mindanao because local authorities have been previously reorganized (into regions 9 and 12) and unitary authorities established there under martial law.

A most striking shortcoming of the BTC framers is its BBL draft replete with restatement of statutory provisions read into the clauses that attract scrutiny for constitutional infirmities. Had they drafted the BBL with constructive ambiguity legislating can move beyond disagreement in order to construct base-line constitutional dimension. The BTC framers were remiss in initiating proposals for constitutional change. I argued elsewhere with cogent reasons why the peace-driven BBL (reminiscent of MOA-AD) is a novel form of devolution that holds innovative possibility for constitutional reform through an appended amendment.

Financing the Devolution Arrangements

At the negotiating table we argued that reliance on funding from the National Treasury raises important issues about fiscal autonomy. The framers of FAB and CAB aimed to render the real autonomy of the Bangsamoro entity as fiscally distinct and self-sufficient. The expanded ARMM organic act devolved the power on economic agreements. A brief summary of autonomous forms of self-reliance is in order for stabilizing the economy and controlling borrowing:

Progressive tax-transfer system

The finances of Bangsamoro under the BBL provides for authority to create its own sources of revenue by law consistent with the principles of devolution of powers and accountability. Transferred taxation to ARMM includes only minor taxes such as motor vehicle licensing; the tax varying power is in fact very minimal. The national taxes proposed to be devolved under BBL, for example, are capital gains tax, donor’s tax, estate tax, documentary stamp tax, income tax levied on banks. The problem with the House draft bill contradicts the devolution policy in its counter proposal stating that the “National Government shall continue to levy national taxes in the Bangsamoro Autonomous Region”. This is contradictory because it poses possibilities for double taxation with the consequence of shying away investments in the region of autonomy.

Allocation of Block Grants

The practice in unitary state is to design tax systems on a nationwide basis and public services are provided at uniform levels. Fiscal sharing among regions occurs automatically, but using indicators of capacity to raise revenues and need as determinants of regional grants can be conditional. Allocation of the block grants may be conditioned for particular types of expenditure (such as education, health, or social welfare). A prima facie case exists for using unconditional grant as Bangsamoro priority dictates, but harmonized provision of these services can ensure efficiency where responsibilities overlap. The “formula-driven” grants (as in the IRA case) can incorporate inter-regional sharing elements. This puts the issue in some context in the BBL but those features can be suggested to parliament than spell out fiscal transfers in detailed provisions.

Natural Resource Revenues

The text of the Constitution clearly endows the autonomous region legislative power over “Ancestral domain and natural resources” under paragraph (c) of Sec. 20, Article. The constitutional assignment of tax powers justifies the central government to retain control of natural resource revenues. Since most natural resources are geographically immobile, control over revenues is an important factor in the outbreak of violence and armed conflict. As and when disparities in natural resource revenues come to be shared for wealth creation between the central authority and autonomous regions the issues can be handled through fiscal policy and intergovernmental transfers on the basis of equalization and equity (see Article XIII of BBL).

The issue on control and supervision over strategic minerals and all sources of potential energy was resolved with MILF in the CAB and the Tripartite Review of the MNLF. But the House ad hoc committee draft bill excludes the Bangsamoro by listing it under reserved power. This may be a cause for concerns at the Organization of Islamic Cooperation (OIC) at the same time affect the transitional components of normalization. (MindaViews is the opinion section of MindaNews. Datu Michael O. Mastura is Mastura is President of the Sultan Kudarat Islamic Academy. He was a member of the 1971 Constitutional Convention, and served as Congressman of the 1st district of Maguindanao from 1987 to 1995. He served as senior member of the MILF peace panel and chairs its Advocacy Committee. He contributes analyses and commentaries to MindaNews.)