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Good BBL draft provisions (1)

Antonio La Viña

IN an earlier article published by Mindanews, I endorsed the passage of the Bangsamoro Basic Law (BBL). In my view, the 2017 version is much improved draft over the 2014 one which was mangled by Congress and ultimately did not pass. There are still however significant issues that must be addressed to ensure a constitutional and effective Bangsamoro. This is probably why the new bill has not been filed yet.

Ideally, the BBL should be proposed by no less than the Speaker of the House of Representatives and the Senate President as it was in the Aquino years. It should, at the right time, be certified as urgent by the President.

In this article, I will highlight the good provisions of the 2017 draft of the  BBL. This will be followed with my analysis of the flaws and gaps that I see in the current version.

Many provisions incorporated in the 2017 BBL are hallmarks of good, equitable and just governance that can provide the key to solving the long-standing problems in Mindanao.

The Preamble explicitly states a recognition of the Constitution and the accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international law in the Bangsamoro’s quest to achieve its aspirations. A categorical acknowledgement of the Philippine Constitution and international law is always a positive sign on the willingness of the framers to be subservient to the Constitution, the highest law of the land. Same goes with the avowed adherence to the tenets of international law since the Constitution itself recognizes it as part of the law of the land.

Interestingly, the Constitution is also mentioned under Art. XV Sec. 4 of the draft BBL which limits the period for expansion of the Bangsamoro unless allowed by the provision of law or by command of the Constitution. Indeed, without an expressed guarantee of any peace pact of law for that matter to recognize the supremacy of the constitution, the exercise becomes tainted with nullity from the very onset.

One essential principle that can spell the difference whether or not the BBL 2017 will pass constitutional muster is how it construes the term “autonomy” as used therein. The 1987 Constitution has adopted what is known as local autonomy. Based on the principle of local autonomy, the territorial and geographical subdivisions are granted, through a system of decentralization, certain powers, responsibilities, and resources to provide for a more responsive and accountable local government structure.

As proposed, the BBL 2017, much like its predecessor the 2014 BBL, advocates for a political and fiscal autonomy, the aim being to afford the people to exercise their right to self-determination towards the development of political institutions and processes and access to their material resources, while preserving their cultural heritage, values and traditions of the Bangsamoro.

As a matter of general principle, local autonomy is a positive step towards addressing the lingering problems in the South. Real and meaningful autonomy shall allow the Bangsamoro to address the longstanding problems of the Bangsamoro people. However, local autonomy, without need of constitutional amendment, must be confined to the parameters set by the Constitution for local governments as fleshed out in the Local Government Code of 1991. Local autonomy standing is encouraged by the Constitution. However, whether or not the political relations between the Central Government and the Bangsamoro being “asymmetrical” is allowed by the Constitution is a different matter altogether.

The 2017 BBL conceives of two types of autonomy, i.e. political and fiscal autonomy. Political autonomy means less interference by the Central government in governing the region and the Bangsamoro people shall be given more freedom to decide on how they will run their internal affairs. Whereas fiscal autonomy means that the Bangsamoro shall be given the freedom to generate its own resources and to allocate and budget its funds and resources according to their needs. At least insofar as BBL seeks to adapt decentralization or devolution of powers to the local political units within the Bangsamoro is concerned the same is always a welcome development. But again whether the introduction of a special relationship between the Central and the Bangsamoro as asymmetrical and that it is empowered to evolve a ministerial form of government is allowed by the constitution is a different matter altogether.

Certain provisions similar to existing laws appear to conform to the idea of local autonomy as defined under the 1987 Constitution and the Local Government Code. Thus:

Article VI Section 3 gives the President the authority to exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed. In other words, the President as the chief executive is not deprived of the power to oversee Bangsamoro. Again, as proposed, the President may be requested by the Chief Minister to call upon the Armed Forces of the Philippines to prevent or suppress lawless violence, invasion, or rebellion, when the public safety so requires, in the Bangsamoro; to suppress the danger to or breach of peace in the Bangsamoro, when the Bangsamoro Police is not able to do so; or to avert any imminent danger to public order and security in the area of the Bangsamoro. This is another clear proof that the Bangsamoro makes no intent to sever the official nexus between the executive and the Bangsamoro government. As such, it is an explicit recognition of the authority of the president as the commander-in-chief of the country.

I am very much in favor of the political system proposed by the BBL – a parliamentary form of government. Thus, the BBL provides: “The powers of government shall be 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. It shall set policies, legislate on matters within its authority, and elect a Chief Minister, who shall exercise executive authority in its behalf.”?

Under the BBL,  the executive function and authority shall be exercised by the Cabinet, which shall be headed by a Chief Minister who shall be elected by a majority vote of the Parliament from among its members. ?The Chief Minister shall appoint two (2) Deputy Chief Ministers, as provided under Article VII, and the members of the Cabinet, majority of whom shall also come from the Parliament. ?

I am happy that the BBL, properly implemented, could lead to party driven politics and governance. Thus the BBL provides that the Bangsamoro Parliament shall be composed of at least 80) members — unless otherwise provided by the Parliament, who are representatives of political parties — elected through a system of proportional representation, those elected from single member  districts and to reserved seats to represent key sectors in the Bangsamoro. Forty percent of the Members of Parliament shall be elected from single member parliamentary districts while 50 percent of the Members of Parliament shall be representatives of political parties who win seats through a system of proportional representation based on the whole Bangsamoro territory. Finally, sectoral representatives, constituting 10 percent of the Members of Parliament, including two reserved seats each for non-Moro indigenous people and settler communities. Women, youth, traditional leaders, and the Ulama shall also have one reserved seat each. (to be continued)

(Antonio 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.)

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