PROPOSED BANGSAMORO BASIC LAW (BBL) BACKGROUNDER 3 : 5 Ways this Bangsamoro Government is More Powerful than the usual LGU

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
4 January 2015

Continuing on the series that we started back in September last year when the draft of the Bangsamoro Basic Law (BBL) was circulated online, aware also that this is one key legislative measure that will need to hurdle the Philippine Congress in the first quarter of 2015, we continue reviewing the draft BBL and this time analyze its provisions relating to the powers of this proposed Bangsamoro Government and compare it with the usual local government unit (LGU), whose powers are granted by the Local Government Code (RA 7160), and, after reviewing the online draft submitted to Congress in September, as expected, the proposed government being set up in the draft BBL is more powerful than the LGUs in the following manner:
1. LGUs don’t have exclusive powers, and they don’t also have powers that are concurrently shared with the national government, which the Bangsamoro Government possesses

The power distribution scheme in the draft BBL is akin to that of a typical federal system where there are reserved powers retained by the Central Government, there are concurrent powers shared by the devolved unit and the Central Government and the devolved unit would still have their exclusive set of powers.

This scheme is not currently available to LGUs under the Local Government Code since the 1987 Constitution only provides a decentralization scheme which is operationalized through an effective allocation among the different local government units of their respective powers, functions, responsibilities, and resources. This allocation of powers among the various types of LGUs is an entirely different concept from the scheme of concurrent and exclusive powers provided to the Bangsamoro Government by the draft BBL.

Furthermore, if one compares the concurrent powers of the Bangsamoro Government in the BBL, this is distinctly more powerful than the capabilities of local government units, especially the municipalities and barangays, where they can only participate actively in the implementation of national programs and projects.

There are fourteen areas where the Bangsamoro Government shares power with the National Government :

1) Social security and pensions;
2) Quarantine
3) Land registration
4) Pollution control
5) Human rights and humanitarian protection and promotion
6) Penology and penitentiary
7) Auditing
8) Civil service
9) Coastguard
10) Customs and tariff
11) Administration of justice
12) Funding for the maintenance of national roads, bridges and irrigation systems
13) Disaster risk reduction and management
14) Public order and safety.
There are 58 areas where the Bangsamoro Government has exclusive powers:
1) Agriculture, livestock and food security
2) Economic and cultural exchange
3) Contract loans, credits, and other forms of indebtedness with any government or private bank and other lending institutions, except those requiring sovereign guaranty, which require Central Government approval;
4) Trade, industry, investment, enterprises and regulation of businesses taking into consideration relevant laws
5) Labor, employment and occupation
6) Registration of business names, with the Bangsamoro Government listing these in the Philippine Business Registry for business names;
7) Barter trade and countertrade with ASEAN countries;
8) Economic zones and industrial centers
9) Free ports
10) Tourism
11) Creation of sources of revenue
12) Budgeting
13) Financial and banking system
14) Establishment of government-owned and/or controlled corporations and financial institutions
15) Authority to regulate power generation, transmission and distribution operating exclusively in the Bangsamoro and not connected to the transmission grid
16) Public utilities operations in the Bangsamoro
17) Receive grants and donations
18) Education and skills training
19) Science and technology
20) Research councils and scholarships
21) Culture and language
22) Sports and recreation
23) Regulation of games and amusement operations in the Bangsamoro
24) Libraries, museums, historical, cultural and archaeological sites
25) Regulations on manufacture and distribution of foods, drinks, drugs and tobacco for the welfare of the Bangsamoro
26) Hajj and umrah
27) Customary laws
28) Declaration of Bangsamoro holidays
29) Ancestral domain and natural resources
30) Protection of the rights of the indigenous people in the Bangsamoro in accordance with the UN Declaration on the Rights of Indigenous Peoples;
31) Land management, land distribution, and agricultural land use reclassification
32) Cadastral land survey
33) Expropriation and eminent domain
34) Environment, parks, forest management, wildlife, nature reserves and conservation
35) Inland waters for navigation
36) Inland waters
37) Management, regulation, conservation of all fishery, marine and aquatic resources within the Bangsamoro territorial jurisdiction
38) Bangsamoro settlements
39) Customary justice
40) Shari’ah courts and Shari’ah justice system
41) Public administration and bureaucracy for the Bangsamoro
42) Health, provided that the Central Government and the Bangsamoro Govt shall cooperate with and assist each other in the prevention and control of epidemic and other communicable diseases
43) Socil services, social welfare and charities
44) Waste management
45) Establishment and supervision of humanitarian services and institutions
46) Identification, generation and mobilization of international human resources for capacity-building and other activities involving the same within the Bangsamoro
47) Establishment of awqaf (endowment) and other charitable trusts
48) Hisbah office for accountability as part of the Shari’ah justice system
49) Registration of births, marriages and deaths, copies of which shall be forwarded to the Philippine Statistics Authority
50) Housing and human settlements
51) Development planning
52) Urban and rural development
53) Water supplies and services, flood control and irrigation systems in the Bangsamoro…
54) Public works and highways within the Bangsamoro
55) Establishment of appropriate mechanisms for consultations for women and the marginalized sectors
56) Special development programs and laws for women, the youth, the elderly, labor, the differently-abled, and indigenous cultural communities
57) Local administration, municipal corporations and other local authorities including the creation of local governments
58) Establishment or creation of other institutions, policies and laws for the general welfare of the people in the Bangsamoro

2. In addition to the exclusive powers, the Bangsamoro Government also has other exclusive powers which is not in any way exercised by other LGUs under the Local Government Code

Not only possessed with having fifty-eight (58) exclusive powers, the draft bill also provides for sixteen (16) “other exclusive powers” for the Bangsamoro Government over the following areas :
a) Foreign investments, particularly to regulate and exercise authority over them;
b) Proclamation of a state of calamity over its territory whenever typhoons, flashfloods, earthquakes, tsunamis or other natural calamities;
c) Temporary take-over or direct operation of any privately-owned public utility or business affected with public interest in times of state of calamity;
d) To recognize constructive or traditional possession of lands and resources by indigenous cultural communities subject to judicial affirmation
e) To adopt and implement a comprehensive urban land reform and land use program;
f) Specific grant of legislative powers to the Bangsamoro Parliament to provide for a system of initiative and referendum for the passage, amendment or repeal of regional or local legislation; to conduct inquiries or public consultations in aid of legislation; to provide for the augmentation of any item in the Bangsamoro General Appropriations Law for the respective offices of the Chief Minister, Speaker of the Parliament and the Presiding Justice of the Bangsamoro Shari’ah High Court from savings in other items of their respective appropriations; to enact a law that shall regulate the grant of franchises and concessions, and empower the Chief Minister to grant leases, permits and licenses over agricultural lands and for forest management
g) To create pioneering firms and other business entities needed to boost economic development in the Bangsamoro;
h) To establish and operate pioneering public utilities in the interest of regional welfare and security;
i) To support and encourage the building up of entrepreneurial capability in the Bangsamoro and to recognize, promote and protect cooperatives;
j) To supervise and regulate private schools in the Bangsamoro and to allow for the participation of three representatives of private schools in the deliberations of the appropriate Bangsamoro government’s ministry or office on matters dealing with private schools
k) To be represented in the board of the state universities and colleges in the Bangsamoro
l) To supervise, through the appropriate ministry, the accredited madaris in the Bangsamoro
m) To conduct periodic competitive qualifying examinations of madaris teachers for permanent appointments to the Bangsamoro education system;
n) To adopt measures to protect and promote the rights of peoples’ organizations and other collective organizations;
o) To adopt measures for the protection of the youth in the Bangsamoro and the promotion of their welfare, and to create the appropriate office and other mechanisms for the implementation of such measures;
p) To enforce the policy against the appointment or designation of any member of the Armed Forces of the Philippines in the active service to a civilian position in the Bangsamoro Government, including government-owned and/or –controlled corporations, or in any of their subsidiaries or instrumentalities within the Bangsamoro

3. The Bangsamoro Parliament has more powers than the usual Sanggunian be it the Province, City or Municipality

The grant of legislative authority to the Bangsamoro Parliament encompasses all matters that are within the powers and competencies of the Bangsamoro Government. What this means is that the said Parliament can enact laws or measures on all powers of the Bangsamoro Government on fourteen (14) items which it shares with the Central Government, the fifty eight (58) items over which it has exclusive powers and on the additional sixteen (16) additional exclusive powers. By comparison, a Sangguniang Panlalawigan only has around thirty (30) items or areas where it can exercise its legislative powers. This simplistic enumeration of powers would be sufficient to illustrate the asymmetry in the powers of this Bangsamoro Government with the other local government units under the Local Government Code.

4. While the Bangsamoro Government is also under the general supervision of the President, it is not actually accountable to the Department of Interior and Local Government (DILG)

While all local government units and autonomous regions in the country are under the general supervision of the President, there is the Department of Interior and Local Government (DILG) that follows through on this task of supervising the local governments in accordance with the legislative mandate given to the DILG. Even the Local Government Code requires that a copy of the Annual Report of every local chief executive is also provided to the DILG. There is no such requirement for the Bangsamoro as there is a separate and distinct scheme on how coordination is achieved between the Central Government and the Bangsamoro Government – the Central Government – Bangsamoro Government Intergovernmental Relations Body where all disputes and issues relating to these intergovernmental relations shall be resolved through regular consultations and continuing negotiations in a non-adversarial manner.

What existing LGUs that may eventually join the Bangsamoro Government should be mindful of is a provision in the BBL which states that “the privileges already enjoyed by local government units under existing laws shall not be diminished unless otherwise altered, modified, or reformed for good governance in accordance with a law to be enacted by the Bangsamoro Parliament.” This is a double-edged provision which may either reduce or enhance their current status or privilege, including their reporting duty to the DILG, depending on the law that may be enacted by the Bangsamoro Parliament.

5. While the Bangsamoro people already have their Bangsamoro government, they also get guaranteed seats in key positions in the National Government

To correct the historical injustice on the Bangsamoro, the BBL provides for a scheme of affirmative action in the National Government and reserving at least one seat for the Bangsamoro in the National Government, particularly the Cabinet, the other departments, offices and bureaus holding executive, primarily confidential, highly technical and policy-determining positions, and in each of the Constitutional Commissions (namely the Commission on Elections, Commission on Audit and the Civil Service Commission). This scheme is not available for any other ethnic or political group in the country, which makes it a truly historic scheme that hopefully will eventually work for the inclusion of the Bangsamoro in the political mainstream.

OoO

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