GENERAL SANTOS CITY (MindaNews/19 December) — The Philippine Star (December 16, 2015: House drops opt-in provision from BBL) reported the House of Representatives “has decided to delete the controversial opt-in provision from the proposed Bangsamoro Basic Law (BBL) in a move to lessen opposition to the measure.”
Let this be clarified. The deletion must have been from HB No. 5811 (Basic Law for Bangsamoro Autonomous Region or BLBAR), the substitute of HB 4994 (Bangsamoro Basic Law or BBL). This was “to lessen opposition” to HB 5811 to have it approved when the Congress resumes session briefly in January 2016 – not to BBL which had been set aside after its substitution. Media’s reference should now be BLBAR, not BBL.
The House leadership gave in to representatives from Mindanao who demanded “to scrap the provision” for fear of losing “their districts to the Bangsamoro regional government if the opt-in provision were retained” in the BLBAR. However, the report failed to clearly state the “opt-in provision” referred to.
It only said: “The opt-in provision allows the envisioned new autonomous Bangsamoro region to expand if at least 10 percent of voters in neighboring areas or their municipal councils petition for their inclusion in the regional government.”
The House – and so the Senate – cannot delete the “opt-in” provision without violating the 1987 Constitution, providing: “The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region (Article X, Section 18, Paragraph 2). (Bold ours)
“Opt-in” in the “provided-clause” is the key principle in constituting the autonomous regions in Muslim Mindanao and the Cordilleras.
President Ferdinand E. Marcos instituted the “Opt-in” when he invoked Paragraph 16, Third Part of the Tripoli Agreement to counter Second Part of the same Agreement in the conduct of the referendum on April 17, 1977 to implement the Agreement. He interpreted Paragraph 16 contrary to the understanding of MNLF Chairman Nur Misuari and the Organization of Islamic Conference (now: Cooperation).
Second Part provides the areas to comprise the Muslim Autonomy in the Southern Philippines: The provinces of Basilan, Sulu, Tawi-Tawi, Zamboanga del Sur, Zamboanga del Norte, North Cotabato, Maguindanao, Sultan Kudarat, Lanao del Norte, Lanao del Sur, Davao del Sur, South Cotabato, Palawan, and all cities and villages situated in the above- mentioned areas. Like Part I on the establishment of the Autonomy, this was final. [The 13 has become 15 with the creation of Sarangani and Zamboanga Sibugay/]
Paragraph 16 provides: “The Government of the Philippines shall take all necessary constitutional processes for the implementation of this entire Agreement.” Misuari and the OIC understood this to mean Marcos would use his parliamentary powers to decree the establishment of the Autonomy. Instead, he decreed that through a referendum the areas enumerated in Second Part would “opt in” or “opt out” of the Autonomy.
President Corazon C. Aquino did not only continue negotiating with the Moro National Liberation Front under the Tripoli Agreement but also adopted its structure and concept as those of the Autonomous Regions in the 1987 Constitution. Second Part was adopted to define the area of autonomy in RA 6734 and RA 9054 but “only provinces, cities, and geographic areas” that through a plebiscite would “opt in” were to be included in “the autonomous region in Muslim Mindanao”.
HB 5811 revised the title of Article III from “Territory” in HB 4994 (Draft BBL) to “Geographical Area of the Bangsamoro Autonomous Region.” It drastically revised the definition of “Territory (Sec. 1, HB 4994)” although it adopted the two categories of the “geographical” or “territorial” composition of Bangsamoro, Section 2 and Section 3.
HB 5811, Section 2 (“Bangsamoro Geographical Area”) adopted in toto HB 4994, Section 2 (Core Territory) but revised Section 3, entitled “Contiguous Territory” in both.
By Section 2, the Bangsamoro is composed of: “(a) The present geographical area of the Autonomous Region in Muslim Mindanao”. These are the provinces of Sulu, Tawi-Tawi, Basilan, Maguindanao, Lanao del Sur and Marawi City. They opted in during the plebiscites for RA 6734 and RA 9054.
“(b) The municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Midsayap that voted for inclusion in the Autonomous Region of Muslim Mindanao during the 2001 plebiscite.” They opted in during the 2001 plebiscite; RA 9054, Article II, Section 1 expected the Congress to pass a law merging them with the ARMM but did not.
“(c) The cities of Cotabato, Isabela and Lamitan.” The first two did not opt in during the 2001 plebisicte. Lamitan was created a city after Basilan had opted in.
“(d) All other contiguous cities and provinces where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the registered voters in the areas affected asking for their inclusion at least two (2) months prior to the conduct of the ratification of the Basic Law and the process of delimitation of the Bangsamoro.” This is only an expression of desire of the “ten percent of the registered voters” to be included; the majority of the registered voters have yet to opt in.
Will the cities in “(c)” except Lamitan and the provinces, cities and other local government units in “d” be considered as having opted in only if they ratify BLBAR during the plebiscite?
Section 3 of Draft BBL and BLBAR refers to “opt in” after the Bangsmaoro has been established. As briefly but comprehensively stated in HB 4994,  “The areas which are contiguous and outside the core territory”  “may opt”  “at any time to be part of the territory”  ”upon petition of at least ten (10%) of the registered voters”  “and approved by a majority of qualified votes cast in a plebiscite.” (Numbers in brackets inserted for reference in the discussion following. – ppd)
This has been expanded to four times long in HB 5811 to specify “” as “within the area of autonomy identified in the 1976 Tripoli Agreement”; to clarify “” as limited to two times only: “Petitions for inclusion may only be filed on the fifth (5th) and tenth (10th) year following the enactment of this Basic Law;” to emphasize in “” that “the registered voters [be those] of the interested local government unit or geographic area”; and, to state in “” that “The schedule of the plebiscite shall be determined by the Commission on Elections.”
Which “Opt-in” was deleted? The Philippine Star report must be referring to Section 2(b)(c)(d) which will take effect during the ratification of BLBAR and Section 3 which can happen twice within 15 years after the passage of the Basic Law
Fear is Rea
The fear of Mindanao representatives of losing their districts – those in non-Bangsamoro provinces within the area of autonomy defined in the 1976 Tripoli Agreement – is real. RA 9054 was not well disseminated. Yet, in the plebiscite of 2001, six municipalities of Lanao del Norte and 39 barangays in six municipalities of North Cotabato voted to join the ARMM. While the Congress did not pass a law to formalize their annexation to the ARMM, most probably, they will formalize their opt-in under Section 2(b).
Expect some municipalities and more barangays from the Zamboanga provinces, Lanao del Norte, North Cotabato, Sultan Kudarat, South Cotabato and Sarangani and barangays from the cities of Zamboanga, Iligan and Pagadian to petition to join Bangsamoro under Section 2(d). The shrinking of the political boundaries of the province or city can mean the abolition or merging of congressional districts.
To have an idea of how political boundaries can shrink: In the 2001 plebiscite, 11 of 42 (26%) barangays of Pikit, 12 of 57 (21%) of Midsayap and eight of 40 (20%) of Pigkawayan opted for inclusion. Lanao del Norte had six of its 20 (30%) municipalities opting for inclusion. The acceptance of the RA 9054 among Moro communities paled in comparison to that of the BBL and its component agreements which had been the subject of about two years of extensive and intensive information campaigns.
In Letter and Spirit
The House representatives deleted the “opt-in” provision of HB 5811 to preempt the letter and spirit of Article X, Section 18, Paragraph 2 of the 1987 Constitution – the letter, in HB 5811, Article III, Section 2(b)(c); the spirit, in Section 3. To protect their political interests, they are willingly violating the 1987 Constitution. This is just one instance of the hypocrisy and arrogance obstructing the passage of the Bangsamoro Law.
In a Philippine Daily Inquirer report (December 18, 2015: Aquino administration blamed for nonpassage of draft BBL), House Minority Leader Ronaldo Zamora and his bloc blamed the President and his allies in the Congress for the nonpassage of the BLBAR. Their “misgivings as to the scope and constitutionality of the draft BBL” had been ignored.
He said: “The biggest failing is the failure to pass the BBL in an acceptable form. What’s the reason for this? The minority is against the BBL in its present form and we have tried to introduce amendments. We have spoken long and well regarding different aspects of the BBL but they didn’t listen. That is the real problem,”
How credible is Zamora? Except for the “opt-in” provision he claimed to have been first raised by the minority bloc, he did not specify any other “unconstitutionalities”. But, “opt-in” is provided in the 1987 Constitution.
The same can be asked of other members, majority and minority, of both the House and the Senate? How credible are they?
Item: “Territory”, the title of Article III in HB 4994, the original Draft BBL, was changed to “Geographical Area of the Bangsamoro Autonomous Region” in HB 5811 because “territory” connotes “sovereignty”. But “autonomy” is “shared sovereignty” and is conferred on the “autonomous regions” under Article X of the 1987 Constitution. Section 20, referring to the autonomous region, stated: “Within its territorial jurisdiction …”. Section 3 in Article III of both HBs is entitled “Contiguous Territory”. (Bold ours)
“Geographical area” in Section 18 is the term for communities or political units not in the class of “provinces” or “cities”. As used in HB 5811, Article III, the term includes “provinces” and “cities”.
Item: Some members of the Congress would not consider Bangsamoro Law as an “Act” because the latter connotes “sovereignty”. But Section 18 of Article X states: “The Congress shall enact an organic act for each autonomous region …” (Bold ours) RA 6734 and RA 9054 are referred to as “organic acts”.
Item: Some members of both Houses – foremost among them, Sen. Miriam Santiago — claim that the Comprehensive Agreement is just between the President and the MILF, not between the Government and the MILF, because the Congress had no participation. It is also illegal since the President had not authority to negotiate with the MILF either from the Constitution or the Congress. But, the Supreme Court ruled in its October 15, 2008 Decision on the MOA-AD that the President has the sole authority to negotiate peace.
There are more instances. However, these would suffice for the moment. It would be instructive to read the analyses and comments of study groups on the amendments and revisions of Draft BBL and Bangsamoro Law issues. May we reiterate: Who’s violating the Constitution?
It is unbelievable that Draft BBL guaranteed by the President as constitutional and legal and consistent with the signed Agreements after it had been thoroughly reviewed and revised by the OP legal team in consultation with concerned government agencies, the Bangsamoro Transition Commission and the MILF became shot through and through with unconstitutionalities and illegalities on reaching the Congress.
(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. Mr. Diaz is the recipient of a “Lifetime Achievement Award” from the Titus Brandsma for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate. You may e-mail your comments to firstname.lastname@example.org)