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Good BBL draft provisions (2)

Antonio La Viña /

Second part

ON fiscal autonomy, the Bangsamoro provides for additional sources of funds for the Bangsamoro. In addition to taxes already being collected by the Armm, the Bangsamoro may also collect a. taxes;  b. fees and charges;  c. annual block grant coming from central government; d. revenues from the exploration, development, and utilization of natural resources derived from areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro; e. share in the government revenues derived from the exploration, development, and utilization of natural resources;  f. share in the central government taxes, fees, and charges collected in the  Bangsamoro;  g. revenues from Bangsamoro government-owned and/or – controlled corporations, financial institutions and other corporations, and shares from the revenues of national GOCCs and its subsidiaries operating in the Bangsamoro, as may be determined by the intergovernmental fiscal policy board; h. grants from economic agreements entered into by the Bangsamoro government and conventions to which the central government is a party;  i. grants and donations; and j. loans and overseas development assistance.

Similar to the Local Government Code, the Bangsamoro is also given shares in the revenues of government-owned and/or –controlled corporations, financial institutions and other corporations, and shares from the revenues of national GOCCs and its subsidiaries operating in the Bangsamoro.

Presently, the share by the LGUs in the national taxes often referred to as IRA or internal revenue allocation is at 40 percent. As proposed, the share in taxes of the central government collected in the Bangsamoro, other than tariff and customs duties shall be 25 percent to the central government; and 75 percent to the Bangsamoro, including the shares of the local government units. Fiscal autonomy is further strengthened by ensuring the automatic appropriation and release of annual block grant transfers from the central government. A Special Development Fund shall also be provided by the central government for rehabilitation and development. Further, the Bangsamoro shall have the authority to contract loans, credits and other forms of indebtedness with government or private banks and lending institutions except those requiring sovereign guaranty.

The Local Government Code has a similar grant to the LGUs by vesting in them the power to create and broaden their own sources of revenue and the right to a just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas. This very same power is granted to the Bangsamoro even as in an enhanced form since the shares of the Bangsamoro vis-à-vis the central government in the taxes are greater than those given to the LGUs under the Local Government Code.

The proposed BBL also vows to protect the environment. Thus Section 2 stipulates that the Bangsamoro shall take into consideration in its planning the ecological balance and the natural resources that are available for its use and for the use of future generations. Also, the Bangsamoro government shall promote the effective use of economic resources and endeavor to attain economic development that facilitate growth and full employment, human development, and social justice. Furthermore, Section 3 provides that a comprehensive framework for sustainable development through the proper conservation, utilization, and development of natural resources shall be developed to guide the Bangsamoro government in adopting programs and policies and establishing mechanisms that focus on the environment dimensions of social and economic interventions.

A number of provisions also give the Bangsamoro the authority to regulate or legislate on matters, specifically regarding conflict resolution, without disregarding the diversity characteristic of the Island. Hence, the Bangsamoro parliament may enact legislation on the regulation of baitalmal, awqaf, and zakat. Also important in the adaption of the Shari’ah justice system insofar as it applies to Muslims without undue disregard to the powers of the Supreme Court. Administration of justice, as proposed, shall be in accordance with the relevant provisions of the Basic Law without disregarding the powers of the Supreme Court and the competence of the Bangsamoro government over Shari’ah courts and the Shari’ah justice system in the Bangsamoro. The supremacy of Shari’ah and its application shall only be with respect to Muslims. However, customary justice involving Indigenous Peoples living in the Bangsamoro will be respected. Thus, it is stipulated that the laws to promote and support the traditional or tribal justice systems that are appropriate for the indigenous peoples shall be enacted by the Bangsamoro parliament. This is in deference and respect to the diverse cultural, religious and ethnic background in Mindanao which is more pronounced than in any other region of the Philippines.

Another good provision incorporated in the 2017 BBL is the intent to guarantee the basic rights of all inhabitants of the Bangsamoro as enshrined in the Philippine Constitution, the Basic Law and international human rights conventions. As such, it is guaranteed that no person in the Bangsamoro shall be discriminated against because of age, class, gender, disability, ethnicity, political or religious affiliation. The BBL further guarantees that vested property rights shall be recognized and respected. Any person who has a valid title to land he has acquired legally and fairly will be protected.

In order that protection of rights is all embracing, the BBL recognizes the rights of the Indigenous Peoples, and shall adopt measures for the promotion and protection of their rights, the right to their native titles and/or fusaka inged, indigenous customs and traditions, justice systems and indigenous political structures, the right to an equitable share in revenues from the utilization of resources in their ancestral lands, the right to free and prior informed consent.

Under the Bangsamoro, the Indigenous Peoples are also given the right to political participation in the Bangsamoro Government including reserved seats for the non-Moro indigenous peoples in the Bangsamoro Parliament, the right to basic services, and the right to freedom of choice as to their identity consistent with the United Nations Declaration of the Rights of Indigenous Peoples and the United Nations Declaration on Human Rights and subsisting laws on indigenous peoples in the Bangsamoro.

While there is progress on Indigenous People’s rights, these provisions could be stronger. I am afraid that these fall short of what the Lumad in the Bangsamoro expect for them to support the BBL’s passage.

One feature of the 2017 BBL which offers much promise is the proposed creation of a transitional justice mechanism to address the legitimate grievances of the Bangsamoro people, including the Indigenous Peoples, such as historical injustices, human rights violations, marginalization through unjust dispossession of their territorial and proprietary rights and customary land tenure.  The festering problem in Mindanao is principally caused by the perceived injustices committed against the Muslims and a mechanism to address this very same problem is always a welcome development.

All told, many features of the 2017 BBL are, at first blush, consistent with the Philippine Constitution and other laws including the Local Government Code. Many more provisions found therein, if implemented with utmost good faith and competence, will conduce to finding a lasting solution to the peculiar problems facing the people of Mindanao.

Those of us who have worked for decades for peace in Mindanao, indeed the whole country, has a mantra: no justice, no peace. The creation of the Bangsamoro offers us a chance to do justice to the Bangsamoro peoples. It should be designed so it also does justice to the Lumad, Christian setter communities, and all stakeholders in the island.

“Injustice anywhere is a threat to justice everywhere,” Martin Luther King once said. If we enact the right law and implement it properly, then we can proudly proclaim: we did it, we have justice, we are at peace.

(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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