10 Ways Sen. BONGBONG’S BBL Version Could be Constitutional Already

Elpidio V. Peria
26 August 2015


Last 10 August 2015, Sen. Ferdinand “Bongbong” Marcos, Jr. submitted to the Senate his Committee’s version of the draft Bangsamoro Basic Law (BBL) measure that will implement the Pnoy administration’s commitments to the MILF via the Framework Agreement on the Bangsamoro was entered into with much hoopla back in 2014. We will be comparing Bongbong’s BBL version with the Sept 2014 draft that was submitted by the Office of the Presidential Adviser on the Peace Process (OPAPP) and note what are the key changes in the version of Sen. Marcos that may finally solve the supposed constitutional infirmities of the OPAPP2014 version and assess whether they may already hurdle the various thresholds set by the 1987 Constitution. The following are the changes wrought by the substitute bill of Sen. Marcos:

1. Purpose

The OPAPP 2014 version states the purpose of the Basic Law “to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance.” During the congressional hearings on the draft BBL, observers noted that this statement of purpose is silent on the applicability of the 1987 Constitution, which is true throughout the text of the OPAPP 2014 draft, which opens the possibility for the Bangsamoro to dis-associate itself with the Philippine republic. Sen. Bongbong’s draft addresses this concern by stating at the outset, in sec. 3 of the same statement of purpose, which is “to establish the Bangsamoro Autonomous Region in accordance with the provisions of the 1987 Constitution and the aspirations of the Muslim Filipinos and all indigenous cultural communities for local self-governance.” The problem with including the indigenous cultural communities and their supposed aspiration for “local self-governance” is that this is already addressed largely by Republic Act 8371, or the Indigenous People’s Rights Act. It is not clear where is the value-added in inserting this aspiration of local indigenous cultural communities here, except perhaps to ensure that these aspirations are not diminished or side-tracked by the establishment of the BBL, which will also encompass in its territory several ancestral domains and lands of these indigenous cultural communities. What about the concerns of the “Bisaya” or the Christian settlers in Mindanao? The BBL, either OPAPP 2014 or Bongbong’s BBL version, is silent on the matter.

2. Bangsamoro Identity

A significant addition made by Sen. Bongbong’s BBL version is the inclusion of the “non-Moro indigenous peoples” in the notion of Bangsamoro identity, which will surely cause disquiet in the MILF leadership, but will clearly address the concerns raised by Tedurays, Manobos, B’laans, T’bolis, and other indigenous peoples living within the proposed Bangsamoro region where are they situated in the emerging Bangsamoro scheme of governance. The non-diminution and non-dilution and non-impairment of Republic Act 8371 and related laws is a good reassurance to these indigenous peoples that the BBL will not affect the way their current struggles under these laws are being handled, by the appropriate government agencies.

3. Coverage or Geographical Areas of the Bangsamoro Region

In lieu of the mention of “territory” in the OPAPP 2014 version, we have in Sen. Bongbong’s BBL version the terms “geographic areas” and “waters”, a significant downgrading of one of the key elements of state formation – territory – in addition to land, people and government, which minimizes the chances that the Bangsamoro will become a distinct political entity that can easily wage an independence campaign, if it decides to do so.

As to the areas to be covered, Sen. Bongbong’s BBL version is similar to the OPAPP 2014 version of putting in the current areas of ARMM and the cities of Cotabato and Isabela, but excluded the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Midsayap that voted for inclusion in the ARMM in the last 2001 plebiscite.

The opt-in provision of those areas who wish to be part of the Bangsamoro region is the same, 10% of the registered voters of the areas who wants to be included, but the ratification process is different, while the OPAPP 2014 calls for “popular ratification among all the Bangsamoro within the areas for their adoption”, Sen. Bongbong’s BBL version calls for a plebiscite to be conducted “in the political subdivision directly affected”. Thus, for example, voters in Cotabato and Isabela cities can join the plebiscite whether their cities are to be included within the Bangsamoro, and also those other local government units that are outside of the Bangsamoro, where there’s a petition of 10% of registered voters in the area who express a desire to be included in the Bangsamoro autonomous region.

4. General Principles and Policies

Save for the purpose of clarifying the principles and policies specific to the Bangsamoro region, these enumerated general principles and policies are actually superfluous, given that there are already a set of principles and policies articulated in the 1987 Constitution. The basic concern on these principles and policies is whether they are self-executing, or they need to have another legislative or executive issuance to be operational.
Nonetheless, Sen. Bongbong Marcos is to be credited for anchoring these principles and policies within the 1987 Constitution, like the self-governance provision, and the recognition of the rights of non-Moro Indigenous peoples.

5. Distribution of Powers between the National Government and the Bangsamoro Government

While the OPAPP 2014 version sets out 14 concurrent powers and 58 exclusive powers of the Bangsamoro Government, Sen. Bongbong Marcos’s version expands the concurrent powers to 21 while cutting down on the exclusive or devolved powers to 42. The use of the word “devolved” to refer to exclusive powers is significant, as it is part of the scheme of devolving powers of the national government offices to local government units, a key principle in the Local Government Code.

Recalling our earlier blog post on this issue back in 4 January 2015, these powers are still significantly greater compared with all the other local government units in the country.

6. Asymmetric Relationship between the National Government and the Bangsamoro Regional Goverenment

Sen. Bongbong Marcos’s version clarified what asymmetric relationship means, since the OPAPP 2014 version merely describes it as “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. Sen. Bongbong’s BBL version expands on what it means and states that it “refers to the relationship between the National Government and the Bangsamoro Regional Government as an Autonomous Region, as provided under sec. 15, Article X of the 1987 Philippine Constitution, where the autonomous regions are granted more powers, and with less intervention from the National Government as compared to other territorial and political subdivisions.

Does this cure then, what is meant by the word “asymmetric”? Back in September 14, 2014, in the first of our series of blogposts here on the BBL (BBL Backgrounder 1, 14 September 2014), we noted that the concept was mentioned in one Supreme Court decision, and the idea is mainly based on concepts based on federalism and left it to the Supreme Court to rule on it, though the anchoring or clarification made by Sen. Bongbong’s BBL version that this relationship is the one referred to in that constitutional provision on local governments and autonomy can be a valid argument for its acceptance as a provision that is not unconstitutional.

7. Inserting “Regional” in the Parliamentary Scheme of the Bangsamoro Government

Constitutional scholars questioned the grafting of a parliamentary scheme of government within our unitary Presidential system of government but Sen. Bongbong’s solution to this dilemma is to simply insert the word “regional” in the succeeding provisions of which the OPAPP 2014 version simply states “Bangsamoro Government”. With earlier references to purpose that all this is within the 1987 Constitution, notwithstanding the reference to a parliamentary scheme of this Bangsamoro “regional” government, like the creation of a Bangsamoro Parliament and the Chief Minister, perhaps the Supreme Court might look kindly and consider this already part of the asymmetric scheme of government that is what is now proposed for the Bangsamoro.

8. Sultanate’s Rights

This insertion is new, and is not found in the OPAPP 2014 version. What the scope of these rights is will be up to the Bangsamoro Regional Government, i.e., the Bangsamoro Parliament, to spell out, but this includes, as mentioned in sec. 70 of Sen Bongbong’s draft, the right of the sultans to their traditional native title of sultanship, right to political participation in the Bangsamoro Regional Government, including reserved seats in the Parliament.

9. Joint Responsibility over Public Order and Safety

This is perhaps one key lesson from the Mamasapano Massacre/Mis-encounter, since the OPAPP 2014 version solely puts the primary responsibility over public order and safety to the Bangsamoro government and the Bangsamoro Government will just cooperate and coordinate with the Central Government over this matter through the intergovernmental relations mechanism. Sen. Bongbong’s draft simply makes this matter a “joint responsibility” between the National Government and the Bangsamoro Regional Government. How this “joint responsibility” is exercised is perhaps expressed in the way the Bangsamoro Police is organized, in the OPAPP 2014 version, the said Bangsamoro Police “shall be part” of the Philippine National Police, whereas in Sen. Bongbong’s draft, the Bangsamoro Autonomous Regional Police “is an integral part” of the PNP. The difference is significant since in Sen. Bongbong’s version, this police unit will be subject to the operational chain of command of the existing PNP, which is not clear in the OPAPP2014 version.

10. Deletion of the Bangsamoro Commission on Audit

Sen. Bongbong’s version removed the provision in the OPAPP2014 version creating the Bangsamoro Commission on Audit, given that the Commission on Audit is a constitutional body and only through the 1987 Constitution can a sub-unit of such Commission may be created, notwithstanding the manner of writing in the OPAPP 2014 version that such office is “without prejudice” to the power, authority and duty of the COA to do its mandated work under the Constitution. To obviate a constitutional dilemma as to what this “without prejudice” provision means, perhaps it is best that the entire provision is deleted.

Given our time constraints, only the above provisions were examined, if there will be a clamor by the blog readers to examine the rest of the provisions of the BBL, perhaps at the time when a Supreme Court petition may finally be filed to resolve the seeming unconstitutionality of the provisions of the BBL, we will come back to this issue.
Until then, if and when the Supreme Court definitively rules on the issues on the constitutionality of the provisions of the BBL that may eventually be passed by Congress, as definitely, an enterprising lawyer and petitioner will surely question this BBL, we have to accept Sen. Bongbong’s version as something that puts the BBL squarely within the framework of the 1987 Constitution. If this is what will take for the Senate to pass their version of the BBL, then if the House of Representatives accedes to the request of the MILF to restore the deleted choice provisions in the House version, the final legislative battle will be in the bicameral committee of Congress that will reconcile these two versions of the bill. By then, the MILF should be persuaded to accept whatever comes out of that process, as that is what normally happens in a typical democratic process. As what Donald Trump of the US is wont of saying to his detractors, the MILF should “deal with it” and accept the outcome. There will still be a Bangsamoro government, that will come out of this process.

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