BBL’s challenges

Antonio La Viña

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.

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 selfeliant 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. (to be continued)

(Antonio “Tony” G.M. La Viña is the executive director of the 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. -Mindanews)