RIVERMAN’S VISTA: BBL’s Constitutional and Political Challenges

Last of a two-part series

CAGAYAN DE ORO CITY (MindaNews / 18 August) — In calling to mind the controversial 2008 case of North Cotabato vs. The Government of the Republic, petitioners’ constitutional challenge against the Memorandum of Agreement on Ancestral Domain (MOA-AD) hinged on two substantive issues, namely: first, did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD? Second, do the contents of the MOA-AD violate the Constitution and the laws. On both counts, the Supreme Court ruled in favor of petitioners and declared the MOA-Ad unconstitutional. 

As to the first issue, the High Court found that the Arroyo government committed grave abuse of discretion when it failed to carry out the pertinent consultations. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.

On the second issue, the Supreme Court made it clear that the MOA-AD as worded was inconsistent with the Constitution as the concept of association is not recognized under the present charter. As envisioned, the Bangsamoro Juridical Entity is not merely an expanded version of the Autonomous Region in Muslim  Mindanao (ARMM), the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Moreover, even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it which has betrayed itself by its use of the concept of association runs counter to the national sovereignty and territorial integrity of the Republic, the Court added.

Almost a decade since the promulgation of that fateful Court decision on MOA-AD the implementation of another peace agreement – the passage of the Bangsamoro Basic Law – will be put to the test to determine whether it measures up to the present Constitution. The newest version of the Bangsamoro Basic Law (BBL) is seen as a new formula for the very elusive peace in Mindanao. It is an antidote to violent extremism that has wrought havoc in many parts of Mindanao, particularly in Marawi City. However, there are still concepts introduced in the 2017 BBL which must be further clarified and explained in order to avoid misinterpretation.

Defining asymmetrical relationship

The Philippine Constitution establishes a presidential-unitary system. In a unitary set-up the Central government is supreme and the administrative regions or the local government units exercise only powers that the Central government has delegated to them. This system and its main feature, centralized form of government is seen by advocates of federalism, as ineffective and unresponsive. Decision-making is detached from the people; coordination too complex and complicated; communication lines too long and circuitous, resulting to the uneven development across the Philippine islands, insurgency, and dissatisfaction, among others. This problem is most pronounced in the Island of Mindanao where cultural and religious diversity are existent. The present trend is to decentralize administration and/or decentralize power.

The highest form of decentralization is autonomy where the Central government delegates powers to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. Under this set up, the President is limited to exercising general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own.

A reading of the pertinent provisions of 2017 BBL appears that the basic law proposes to adopt autonomy in its highest form insofar as the Bangsamoro is granted powers and competencies previously granted to the ARMM under R.A. No. 6734, as amended by R.A. No. 905. Likewise, the avowed thrust of BBL such as political autonomy and fiscal autonomy is consistent with the notion of autonomy as understood by the Constitution.

As earlier mentioned, there are concepts embedded in the BBL which are novel to the Constitution. For instance, the idea of parity of esteem and asymmetric relationship between the Bangsamoro and the Central government. The implication of an asymmetrical relationship is that the proposed Bangsamoro has more powers and competencies than those usually exercised by other political subdivisions, such as local government units. It is also asymmetrical in a sense that it has its own unique regional government system not found in any other political subdivision in the country. 

A prime example of this asymmetrical relationship is manifested in the adoption of a parliamentary system of government by the Bangsamoro.  While the Constitution adopts a presidential form, a different for will be in place in the Bangsamoro – a parliamentary set up – where the powers of government are vested in the Bangsamoro Parliament, which shall exercise those powers and functions expressly granted to it in this Basic Law, and those necessary for or incidental to the proper governance and development of the Bangsamoro and an elect a Chief Minister as the executive authority in its behalf. The cabinet, headed by a Chief Minister, exercises executive functions. The Chief Minister who heads the parliamentary government of the Bangsamoro shall be elected by a majority vote of the Parliament from among its members.  

This is a significant deviation from what is created by the current Constitution where the president exercises the functions of the chief executive at the national level while the local chief executives performing the executive duties at the local level within their respective lgus. Legislative power is exercised by a bicameral congress at the national level while local legislation is vested in the sanggunians. I am however confident that this is allowed by Article X of the 1987 Constitution which requires only that autonomous regional government have elected executive and legislative branches of government. The Chief Minister is still an elected post as he or she must be an elected member of parliament.

The concept of exclusive powers

One other aspect of BBL that requires scrutiny are the provisions regarding its exclusive powers. Under the BBL, Bangsamoro has the exclusive power to regulate and exercise authority over foreign investments within its jurisdiction and delimiting the power of the Central Government to intervene only on matters involving national security. This limited authority by the Central government over foreign investments seems to effectively straightjacket the Central government and limits its regulatory capacity over foreign investments. A similar provision found in the ARMM law does not provide for a constrictive and limited application. This provision must be examined carefully since the Constitution prescribes limitations on foreign participation in certain areas of investment.

Another exclusive power that needs close examination is embodied in the provision giving Bangsamoro temporary power to take over or direct operation of any privately-owned public utility or business affected with public interest, in times of state of calamity declared by the Chief Minister.  Under the ARMM law it is the President, not the Regional Governor, that declares the regional emergency. The latter is more in keeping with the Constitution that empowers the state to take over privately-owned public utility or business affected with public interest.

In the BBL, the Bangsamoro can contract loans, credits, and other forms of indebtedness with any government or private bank and other lending institutions, even without the approval of the monetary authority required by the Constitution. Is this a carte blanche authority to the Bangsamoro on these matters? What is now the role and participation of the Central Bank relative to contracting foreign and local loans and indebtedness by the Bangsamoro?

Other exclusive powers such as those concerning ancestral lands, ancestral domain and natural resources must also be look into because in the Constitution, the ownership and extent of these resources are left for the determination by Congress.

As regards Bangsamoro participation in Central Government, it is mandated that competent and qualified inhabitants of the Bangsamoro shall be appointed in certain offices of the government. Again, this seems to unduly restrict the appointing power of the President as delineated in the Constitution.

Aside from these exclusive powers, the Bangsamoro also has the authority to exercise powers concurrent with the Central government, a power not similarly granted to the ARMM or the LGUs under the Constitution or any other law for that matter like the Local Government Code of 1991.

I suggest that the Congress include a section on definition of terms in the final BBL it will enact so as to leave no doubt that asymmetrical relationship and exclusive powers are properly defined in accordance with constitutional boundaries.

For example, the concept of “asymmetrical relationship” has already been explored by the Supreme Court in relation to autonomous regions, thus Justice Marvic Leonen explains and Congress could adopt this definition: “Autonomous regions are granted more powers and less intervention from the national government than territorial and political subdivisions. They are, thus, in a more asymmetrical relationship with the national government as compared to other local governments or any regional formation. The Constitution grants them legislative powers over some matters, e.g. natural resources, personal, family and property relations, economic and tourism development, educational policies, that are usually under the control of the national government. However, they are still subject to the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines.”

Red flags on fiscal autonomy

On the fiscal autonomy provisions, the BBL raises a few red flags. For instance, Sec. 2 Art. XII of the Constitution explicitly grants to the State full ownership of natural resources. Full control and supervision of the exploration, development, and utilization of natural resources is the exclusive domain of the State. Yet the BBL in sec. 34, Art. XII, awards all government revenues derived from the exploration, development and utilization of all natural resources in the Bangsamoro, inclusive of mines and minerals, to the Bangsamoro Government. Does this translate to an effective expropriation of the said resources by the Bangsamoro, thus depriving the State of beneficial ownership?

The ARMM Organic Law (RA 6734) merely “delegates” to the Regional Government such powers but its exercise must be accordance with the Constitution and national laws. The Local Government Code also allocates to the LGUs a much lower percentage of revenues derived from the exploration and exploitation of natural resources found in their respective territorial jurisdictions. Indeed, BBL, as formulated, appears to give the Bangsamoro the highest degree of fiscal authority which may possible transcend the boundaries set by the Constitution. Notice that the BBL only intends to give an equitable share, not full grant, of revenues to indigenous peoples generated from the exploration, development and utilization of natural resources that are found within the territories covered by a native title in their favor. Worse, the Bangsamoro Parliament is given the exclusive authority to determine the percentage of the shares of the Indigenous Peoples and communities, and the mechanisms therefor. Is this a scheme decidedly lopsided against the Indigenous Peoples?

The powers of the Bangsamoro over the exploration and exploitation of strategic minerals such as uranium and fossil fuels including management of national reserves and aquatic parks, forest and watershed reservations must likewise be examined vis-à-vis State authority under the Constitution.

Scope of BBL territory and plebiscite requirements

There are serious questions on the constitutionality of the scope of the Bangsamoro territory and which local governments to include in the plebiscite for the approval of the BBL. Three points may be stressed here. First, the requirement under the BBL is that there must be a majority vote of all registered voters in the local government unit for that unit to be considered as part of the Bangsamoro. Under Section 18, Article X of the Constitution, “[t]he 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”. The same requirement is found under Republic Act Nos. 6734 (Creating the ARMM) and 9054 (Expanding the ARMM). Thus, the draft BBL appears to require stricter numbers than those under the Constitution for an LGU to become part of the Bangsamoro.

Second, the scheme proposed under the draft BBL is unclear as to whether the six (6) municipalities of Lanao del Norte, and the thirty-nine (39) barangays in North Cotabato, may independently vote to become part of the Bangsamoro, even if the provinces or cities to which they belong do not become part of Bangsamoro.

The provisions of R.A. 6734 and 9054 may be considered in this regard. Under these laws, the plebiscite to create the autonomous regions was only to be conducted in the affected provinces and cities, and not in their component municipalities and barangays. Should Congress enact the BBL, it may be inferred that these provisions were made with the knowledge of how the earlier laws on ARMM conducted the plebiscite. Thus, the intention to include local government units such as municipalities and barangays, even without their provinces or cities, may also be inferred.

The Supreme Court has also held that any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. Such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by the Court.

As a practical matter, however, such a scenario may prove to be logistically difficult to implement. Should these municipalities and barangays be allowed to become “islands” belonging to the Bangsamoro but geographically still situated in their original provinces and cities, numerous questions will arise. These include issues as to what province or city then the municipality or barangay will belong; how they should vote during elections for local and national positions; what laws will govern in their admittedly limited territory; who will be responsible for the provision of basic services therein; whether there will be any changes in legislative districts; whether territorial boundaries will be altered; and the like. It is submitted that should Congress allow such a scenario, it must also provide for the special rules that will apply to these units.

Third, it is likewise unclear whether, in the event that the municipalities and barangays are allowed to be part of the Bangsamoro without their provinces or cities, these provinces or cities should likewise be allowed to vote in the same plebiscite which may divorce the said municipalities and barangays from them.

Section 10, Article X of the Constitution provides that: “No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.”

While the draft BBL provides that the barangays and municipalities may vote in the plebiscite, it does not provide that Lanao del Norte and North Cotabato, of which they are part, must also vote. In one recent case, the Supreme Court ruled that the province to which a local government unit belongs, and which the latter seeks to leave, is a “directly affected” political unit, which must participate in the plebiscite. Thus, due to the significant impact in the political and economic rights of the local government unit involved, it was held that the political units “directly affected” included the province to which the component LGU belongs, which may, in this context, include the barangays and municipalities participating in the plebiscite.

In view of the potential challenges to these provisions, it is submitted that should the draft BBL be enacted, Congress should indicate strongly that these provisions is separable from the rest of the BBL, so as to preclude any injunction on the continued implementation of the rest of the law.

Political obstacles to BBL

The recent spate of terroristic violence in part of Mindanao and most especially in Marawi City and surrounding areas once again reminds us of the urgent need to pass an inclusive Bangsamoro Basic Law in Muslim Mindanao that will serve as a panacea to the lingering problems in the area. With a president who hails from Mindanao, a congress and a citizenry overwhelmingly supportive of the current administration, now, more than ever, is the most opportune time to push vigorously for the passage of the BBL. But then again, a more in-depth and comprehensive study of the proposed BBL must be undertaken because it would be tragic if the proposed bill is passed by the legislature only to be struck down by the Supreme Court for being unconstitutional. This will again dash the hopes for peace and security in Mindanao , especially among our Muslim brothers, that can further fuel the flames of extremism.

In conclusion, I must sound the alarm that the greatest obstacle to the enactment of the BBL and therefore the completion of the peace process in Mindanao is political. I thought that President Duterte understood the stakes here and that his administration would pull all its leverage to get its done. But that does not seem to be the case. Nearly a month after the Bangsamoro Transition Commission transmitted the revised BBL draft to Malacanang, accompanied with a lot of fanfare, no bill has been filed yet in both Houses of Congress. It should be no lower than the Senate President, the Speaker of the House, the respective majority floor leaders, and the relevant Committee Chairs who should be filing this bill. Moreover, it should come with a strong endorsement from Malacanang instead of the very weak letter we saw the other day that mistakenly (I hope) confused the aspirations of the Bangsamoro people with that of the Filipino people.

I truly hope there is a plan and strategy intended to pass the best BBL possible. If we don’t get it right, there will be hell to pay for our failure. (MindaViews is the opinion section of MindaNews. Antonio “Tony” G.M. La Viña of Cagayan de Oro City is Executive Director of Manila Observatory, former dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, and De La Salle University College of Law. He was a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008).