Let me declare at the outset that I support the creation of a Bangsamoro autonomous region. Its establishment is certainly allowed by the 1987 Constitution. More fundamentally, a Bangsamoro government armed with real powers, making it superior to the current Autonomous Region of Muslim Mindanao (ARMM) that is autonomous only in name, is a critical foundation to permanent peace in the island I was born and raised in. Being a long-time advocate of federalism and the parliamentary system of government, I am also glad that the Bangsamoro has features from these better modes of governance. Indeed, in many ways, the Philippines as a whole will benefit from the experience of the Bangsamoro.
Unfortunately, good governance requires not just making good choices. As I always remind my students, doing the right thing the right way is just as important. Unfortunately, although creating the Bangsamoro is the right thing, the way it is proposed to be established—through the current draft of its enabling law, the Bangsamoro Basic Law—might be the wrong way of proceeding.
Even before Mamasapano, I pointed out that the draft BBL contains provisions that are novel and susceptible to an interpretation that what is being created is a federal state and not an autonomous region. Before Mamasapano, I hedged in my predictions about how the Supreme Court would decide on the case given what I thought was strong political support for and public consensus in moving the peace process forward. The inclusive hearings of the Senate, under the leadership of Senator Bongbong Marcos, and the House of Representatives, led by an energetic and brilliant Rep. Rufus Rodriguez, also bode well for the BBL. In my mind, if the law was enacted by wide margins and muted criticism, the Supreme Court might hesitate to intervene on the basis that this was a political question that the other, more political, branches had settled and that the people, in a plebiscite, should rightly decide. In addition, after the satisfactory resolution in his favor of the motion for reconsideration in the DAP case; the President seemed to be in a strong position vis-à-vis the Supreme Court.
But then came Mamasapano. The political support for the BBL has eroded, the public consensus has dissipated, and the President has been politically weakened. I have no doubt now that the Supreme Court will decide a case involving the BBL on the basis of the constitutionality of the legal text and will not be persuaded by a political question defense. The fact that constitutional giants—former Justices Vicente Mendoza and Florentino Feliciano—have opined that the current draft of the BBL is unconstitutional will likely have a major influence on the thinking of the Court. And while the former members of the 1987 Constitution (including another constitutional scholar, former Justice Adolfo Azcuna) have come out to support the BBL, their statement is an expression of political support and is silent on the legal issues.
A difficult pill it might be for peace advocates to swallow, but we must follow the famous Maoist adage of taking two steps forward and one step backward (n an earlier article, I mistakenly reversed Mao’s words) to attain peace. It is irresponsible to push the the draft BBL, knowing that it has a big chance of being declared unconstitutional by a Supreme Court that is likely going to be strict constructionist in its approach.
It is also important to remember that in such a case, not only the BBL is at stake; from what I know, the petitions questioning the constitutionality of the Comprehensive Agreement on the Bangsamoro (CAB) are still pending and could be consolidated with petitions questioning the BBL.
The peace process can recover from a delay in a BBL enacted even after the Aquino administration, indeed even from a finding of unconstitutionality of such a law: what would be very difficult to surmount would be the declaration of unconstitutionality of the CAB. That will effectively kill the peace process and a miracle would be needed for its revival.
How then should we move forward to improve the BBL? Below is the approach I would suggest to Congress.
While most legal concepts in the current draft are defensible, the legal language should be improved as many of the terms used can be subject to misinterpretation. Understandably, the agreed text between the government and the MILF includes vague words and phrases, as they had to mask differences through compromise language. But you cannot have that in a law enacted by Congress, as that would leave its interpretation to critics and to a conservative Supreme Court. Congressional intent must be very clear so there is no room for distortion or misinterpretation.
Congress must start with the clarity that the Bangsamoro is nothing less and nothing more than the autonomous region allowed by the 1987 Constitution for Muslim Mindanao and the Cordilleras. It is not a federal state, as we do not have a federal system; it is certainly not an independent state. For this purpose, Congress may add a section on definition of terms which will make it clear what the Bangmoro is and what it is not.
For example, the asymmetrical relationship with the central government (which is mentioned but not defined n the draft BBL), should be explicitly defined as meaning that the Bangsamoro is of a different level than other local governments and has more powers than them, but these powers do not make the Bangsamoro equal to the state because in fact it is part of the state. The phrase “exclusive powers” for the Bangsamoro, an agreed political term but is meaningless legally because a local or autonomous regional government unit can never have exclusive powers in a unitary system, should be defined as devolved powers that Congress merely delegates to the Bangsamoro. The Bangsamoro judicial, elections, audit, and security force systems should all be defined as subordinate and integrated into the national system; regional offices with enhanced powers that Congress is allowed to do. Indigenous peoples rights should be spelled out and the application and non-derogation of the Indigenous Peoples Rights Act should be guaranteed.
Finally, while most potentially unconstitutional provisions in the current draft can be revised, the provisions on how geographic units such as municipalities and barangays, distinguished from the larger units of cities and provinces that they currently belong, must be amended to include ratification by the larger units and not just the included municipalities and barangays. There is no flexibility around this issue because the Constitution is quite clear that local government units cannot be merged, divided, abolished, etc., without the participation of all those units that will be affected by the change. That is not inconsistent with the constitutional provision allowing geographic units to join the autonomous region.
A constitutional BBL, faithful to the CAB, is doable. But everyone involved in its crafting must not be wedded to particular words or phrases. Both legal rigor and imagination, with enormous good will, from everyone is imperative to get this done.
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