Scope of BBL territory and plebiscite requirements

Antonio La Viña

Conclusion

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 municipalities of Lanao del Norte, and the 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.

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.

(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.)