PROPOSED BANGSAMORO BASIC LAW (BBL) BACKGROUNDER 1 : From “Associative” to “Asymmetric” Relationship : Is the Proposed BBL Now Not Unconstitutional?

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
14 September 2014

The proposed Bangsamoro Basic Law (BBL) submitted by Pnoy to Congressional leaders (House Speaker Sonny Belmonte and Senate President Franklin Drilon) last September 10, 2014 consists of 122 pages and some eighteen articles and this writer was not able to count how many specific provisions there are, but the text reads like the 1987 Philippine Constitution, with a Preamble and an Appendix consisting of an Ordinance enumerating the provinces, cities, municipalities and geographic areas of the Bangsamoro. This form of the proposed BBL itself will be one item for debate within the halls of Congress in the coming days but for our purposes, this blog will systematically examine this draft measure in accordance with what it thinks are key points to enable a greater understanding of the contents of this bill and its implications for the broader Republic – the integrity of the various constituent political units as well as the future of autonomy, among other biodiversity, innovation, trade and society-related issues as well which the BITS Policy Center blog has tackled previously.

It’s good we have the case of Province of North Cotabato, et.al. v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, et.al, G.R.No. 183591 (October 14, 2008) whereby the Philippine Supreme Court formulated controlling principles “to guide the bench, the bar, the public, and most especially the government in negotiating with the MILF regarding Ancestral Domain.” While indeed that case tackled the previous Memorandum of Agreement on Ancestral Domain (MOA-AD), we will look at the principles taken up by the Supreme Court to help us get a sense of this proposed BBL.

One key principle enumerated in that case (G.R.No. 183591) is the “associative” relationship between the then proposed Bangsamoro Juridical Entity (BJE) and the Central Government and the Supreme Court ruled : “the concept of association is not recognized under the present Constitution” (underscoring by the Supreme Court). The Supreme Court held :

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

The Philippine government negotiators apparently took that reminder to heart and nowhere can we see in the draft BBL bill submitted by Pnoy to Congressional leaders the word “associative” or “associated” or “association”.

But there is a new word that we need to scrutinize further and it is the word “asymmetric”, found in the following provisions :

1) In the PREAMBLE :

With the blessings of the Almighty, do hereby ordain and promulgate this Bangsamoro Basic Law, through the Congress of the Republic of the pHilippines, as the basic law of the Bangsamoro that establishes the asymmetrical political relationship with the Central Government founded on the principles of subsidiarity and parity of esteem.

2) In sec. 1 Article VI on Intergovernmental Relations:

Section 1. Asymmetric Relationship. – The relationship between the Central Governemnt and the Bangsamoro Government shall be asymmetric. This is reflective of the recognition of their Bangsamoro identity, and their aspiration for self-governance. This makes it distinct from other regions and other local governments.

3) In sec. 3 Article VI on Intergovernmental Relations:

Section 3. General Supervision. Consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government, the President shall exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed.

What does “asymmetric political relationship” or even the word “asymmetry” mean?

First, the word “asymmetry”. Google search yielded the topline header definition of “lack of equality or equivalence between parts or aspects of something; lack of symmetry” while the phrase “asymmetric political relationship” did not yield results using the exact same phrase but examples of topline results are : “asymmetric relationship”, “asymmetric federalism”, “US, Pakistan and Afghan : Asymmetric Political and Military Relationships”, “China and Vietnam : The Politics of Asymmetry”.

The favorite go-to website for Philippine jurisprudence of this writer was used next, http://www.lawphil.net of Arellano University, and there using the words “asymmetric political relationship” yielded the case of League of Provinces of the Philippines v. the Department of Environment and Natural Resources, G.R.No. 175368, April 11, 2013, but it used the phrase “asymmetrical relationship”:

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

At least, in such case, there’s a recognition of the nature of the relationships between autonomous regions vis-à-vis the national government and they are described as such asymmetric, but this is as compared to other local governments or any regional formation, as what the obiter of the case has mentioned.

Does this mean then that the principle of asymmetry is somehow, in any way, recognized under the Philippine Constitution?

It seems, the answer to that question is, yes, though it is not explicitly so stated since if one looks at sec. 20, Art. X of the 1987 Constitution, the legislative powers of autonomous regions are as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

The asymmetry can be found when these powers of the autonomous regions are compared with the other local political subdivisions of the country identified in sec. 1 of the same Art. X of the 1987 Constitution which are the provinces, cities, municipalities and barangays. The powers of these local government units as per sec. 3 of the same art. X of the 1987 Constitution, are to be further elaborated by a local government code, which later was passed by Congress as Republic Act 7160 or the Local Government Code of 1991. There is therefore a variance, or asymmetry, between the powers granted by the Constitution to autonomous regions, vis-à-vis, the other local government units.

Looking further for more information on what is an asymmetrical political relationship, the website of Forum of Federations (www.forumfed.org ), an international governance organization founded by Canada and funded by nine other partner governments – Australia, Brazil, Ethiopia, Germany, India, Mexico, Nigeria, Pakistan and Switzerland, has a write-up by Professor Ronald L. Watts, of Queen’s University Canada, who describes asymmetry as one of several innovative trends in federalism, saying that there is increasing acceptance of the idea, particularly the variation, in the relationship of particular member units within a federation or a supranational organization as a means to facilitating political integration. Examples of asymmetry in the relations of constituent units occur, for instance, within Spain, Belgium, Canada, Malaysia and the European Union.

Exploring the concept of asymmetric political relationships further, it appears asymmetry is always related to federalism, and one prominent example is that found in India, and M. Govinda Rao and Nirvikar Singh in a paper (Asymmetric Federalism in India, from http://www.nipfp.org.in/media/medialibrary/2013/04/wp04_nipfp_006.pdf, accessed 14 September 2014) describes it as “federalism based on unequal powers and relationships in political, administrative and fiscal arrangements spheres between the units constituting a federation.”

This connection of asymmetric political relationships with federalism is something that will need to be resolved by the Supreme Court since the governmental structure envisioned by the 1987 Constitution is unitary and presidential, not federal.

Just the same, given that the concept of asymmetry in political relationship is somehow mentioned in a case law by the Supreme Court, and while the said concept is not explicitly spelled out in the Philippine Constitution, but examining how autonomous regions and local government units are organized and given powers, there appears to be asymmetry between them compared to the national or central government, and in practice, these types of relationships are usually associated with federalism, it is up to the Supreme Court to declare said concept as not unconstitutional, given that all laws passed by Congress are presumed to be constitutionally valid.

 

oOo

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