Critique of House Bill (HB) 5811 or the Basic Law of the Bangsamoro Autonomous Region
INTRODUCTION
This paper is prepared by a joint team of Tulay Kalinaw Mindanao (TulayKaMi), Balay Mindanaw Foundation Inc. (BMFI), and the Mindanao Civil Society Organizations Platform for Peace (MCSOPP).
In doing the critiqueof HB5811, the team had probing interactions with several individuals from the Bangsamoro Transition Commission (BTC), considered a host of comments regarding the substitute bill from various other individuals and institutions; and reviewed the hopes and dreams of grassroots peoples expressed through the consultations done by CSOs in 2013 and 2014 regarding the Bangsamoro Basic Law (BBL).Further, the team took note of the public pronouncements of legislators commenting on the process and outcome of the work of the House Ad Hoc Committee on the BBL that produced HB5811 to probe into their thinking about the legislative measure.
As instrument for giving birth to “full” autonomy for the Bangsamoro people, the BBL is—or should be—an embodiment of the ideals of social justice and political inclusion which are vital elements in bringing closure to the four-decade Moro rebellion in Mindanao.
Amid the legal-centric debate about the BBL, the team defers to the opinion issued by 14 of the 17 surviving framers of the 1987 Constitution who categorically said that the proposed legislation is necessary to fulfil the promise of the country’s charter for the peoples of Muslim Mindanao.
“We believe that a new organic law is necessary to fulfil the vision and spirit that guided the constitutional provisions on autonomous regions since Republic Act 6734 and Republic Act 9054 (Organic Acts of the Autonomous Region in Muslim Mindanao or ARMM) have clearly not gone far enough to give life to the concept of autonomy for Muslim Mindanao as envisioned by the Constitution,” the 14 Constitutional framers said in a joint statement issued last January.
The team also defers to the opinion of the eminent legal personalities in the Citizens Peace Council— principally, the Constitutionalist and former Chief Justice HilarioG. Davide Jr.—who said that “the Bangsamoro Government, as constituted in the BBL, is compliant with the requirements of the Constitution.”
We note the massive amount of expertise and public inputs that have been invested into the writing of the BBL (filed as HB 4994 in the House of Representatives and SB 2408 in the Senate) in an effort to make the eventual charter of the Bangsamoro government truly reflective of the Moro aspiration for self-determination, conform to the requisites of the 1987 Constitution, and apply relevant best practices of autonomous governance from other parts of the world.
Although it underwent refinements through an engagement with a legal team from the Office of the President in August 2014, the BBL’s original authorship by the BTC, in itself, is a testament of it being a document of the Bangsamoro,by the Bangsamoro, and for the Bangsamoro.
In measuring how HB 5811 lives up to the goal of achieving “full” autonomy, the team used as starting point the Comprehensive Agreement on the Bangsamoro (CAB) which laid the following cornerstones:
• Recognition of Bangsamoro identity;
• Respect for the Bangsamoro people’s right to self-determination; and
• Addressing legitimate grievances of and historical injustices against the Bangsamoro people.
GENERAL CRITIQUE
When the House Ad Hoc Committee on the BBL considered and eventually voted on HB 4994, there was a very pervasive fear the BBL would become a platform for eventual secession of the Bangsamoro from the Philippines. Hence, the legislators took extra care in the usage of words that would be etched into the measure.
This explains the ‘overkill’ repetition of the phrases “in accordance with the Constitution,” “subject to the provisions of the Constitution” and “within the framework of the Constitution” in many sections of the measure. The repetition is already unnecessary as the Preamble mentioned that the BBL is ordained and promulgated “in consonance with the Constitution.” Further, “as the fundamental, paramount, and supreme law of the nation, the Constitution is deemed written in every statute and contract,” according to a report of the Citizens Peace Council that did a review of the BBL.
This should also explain the shift in using the word “territory” to “geographic area” or “area” which confuses the meaning of some provisions relating to the expanse of the region; the phrase “central government” to “national government”; and renaming the regional entity from “Bangsamoro” to “Bangsamoro Autonomous Region” to emphasize its status within the context of the Philippine state. This is further reflected in the avoidance of using the words “flag” and “anthem” (respectively replaced with “emblem” and “hymn”) as if these alone could bestow statehood to a political entity.
The fear of secession principally affected the delineation of powers between the central government and the Bangsamoro government, to the point that what would be effectively devolved to the latter, if HB 5811 becomes law, are powers and competencies that are qualitatively inferior compared to those currently enjoyed by the ARMM. If this is so, Congress will be missing the benchmark of “full” autonomy.
The fear of secession is ridiculous as Sec. 1 of Art. III (Definition of Territory) of HB 4994 states that, “The Bangsamoro territory shall remain a part of the Philippines.”
Another unfounded assertion that made into the decision-making of legislators on HB 4994 is that the Bangsamoro government will be a preserve of the Moro Islamic Liberation Front (MILF), hence, the drive to curtail its powers, especially relating to maintaining public order and security.
Below is a rundown of critique based on specific themes.
ON GOVERNING PRINCIPLES
• HB 5811 took out “parity of esteem” from the Basic Law. This is supposed to be a very important principle that is at the heart of “full” autonomy, and is founded on the recognition of Bangsamoro identity. (HB 4994: Preamble; Sec. 2 of Art. VI)
• The change in nomenclature—from “Bangsamoro” to “Bangsamoro Autonomous Region”; from “territory” to “area,” from “Central Government“ to “National Government”—changes the framework and certain key principles that went into the process of designing the relationship between the autonomous entity and the Philippine government.
• The supposed asymmetric relationship between the central government and the Bangsamoro government is rendered meaningless by re-defining or limiting its definition to Section 15, Article X of the Constitution, repeatedly citing the phrases “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines”. This asymmetric relationship is also rendered meaningless by deleting Article VIII (Wali). Wali’s role as guardian or titular head of the parliament is crucial, and by deleting it, the latitude of intervention of the President over Bangsamoro affairs widens. As contemplated in HB 4994, Wali is just a ceremonial office which was even placed “under the general supervision of the President.”
ON DELINEATION OF POWERS
• HB 5811 reduced the exclusive powers of the Bangsamoro over natural resources within its territory by expanding the exception to its exclusive powers(Article V, Section 2 [o];Article XII, Sections 8 and 10; Article V, Section 4 [f]{4} and Article XII, Section 8; Article XII, Section 8):
o Instead of right to explore, develop and utilize natural resources, power given to Bangsamoro government is for“control and supervision over the exploration, development, utilization, and protection of the mines and minerals and other natural resources……” But when the exploration, development and utilization activities deal with strategic minerals “such as uranium, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy,” the Bangsamoro Government loses that power of control and supervision, but instead, will only be consulted.
o Exclusive authority of the Bangsamoro government to regulate power generation, transmission and distribution operating exclusively within its jurisdiction is lost, and turns concurrent with the central government, when these facilities are connected to the Mindanao grid.
Access to and control of resources found in its homeland and preservation of patrimony is directly linked to a people’s exercise of self-determination.
Taking away the Bangsamoro’s exclusive power to declare protected areas inside its territorial jurisdiction (Article V, Section 4 (f) (4) andArticle XII, Section 8).This curtails the Bangsamoro government’s authority over the management of natural resources. And, preservation of patrimony is directly linked to a people’s exercise of self-determination.
• What used to be power over the twin concerns of ancestral domain and natural resources was split with ancestral domainmade a concurrent power (Article V, Section 2 (o) and Article XII, Sections 8 and 10). This creates a confusing legal regime when dealing with the twin issues.
• Internal security became a reserved power rather than concurrent [Sec. 1 (a), Art. V]. This dilutes the authority of the Bangsamoro government for maintaining law and order in the region.
• Adding items in the reserved powers such as banking, powers of the ombudsman, and residual powers (all others powers not provided in the Basic Law (Art. V, Sec. 1). By reserving the exercise of residual powers by the central government, the ability of the Bangsamoro government is stifled when responding to issues that affect its constituents’ general welfare but which are not contemplated in its charter.
• Limiting the powers of the Bangsamoro over the matter of budgeting as well as auditing (Article VII, Section 26 and Article XI, Sections 1);Article XI, Section 2, and putting the Bangsamoro offices on human rights and civil service under the supervision of national counterparts(Article VIII, Section 7); (Sec. 2 [g] of Art. V). The Citizens Peace Council has this to say about these concerns: “The Bangsamoro special bodies (Auditing Body, Civil Service Office, Human Rights Commission)… were created with the goal of supplementing, not supplanting, the work of their national counterparts. As such, sections which provide for the creation of these Bangsamoro bodies include the clause, ‘without prejudice to the powers, authorities, and duties’ of the National Constitutional bodies (for the civil service and the auditing bodies), and the clause, ‘shall have a coordinative and complementary relationship’ (for the Human Rights Commission).”
• National laws (such as the Labor Code and the Indigenous Peoples’ Rights Act)are made effective in the Bangsamoro even when these laws are over subject matters that are within the exclusive powers of the Bangsamoro (Sec. 2 [O], Art. V; Article VIII, Section 9 and Article XII, Section 23). This limits the latitude of options and frameworks that the Bangsamoro parliament may adopt to respond to concerns related to these areas of governance.
• Downgrading the participation of the Bangsamoro in the governing boards of state universities and colleges to mere membership, instead of being the Co-Chair or Co-Vice-Chair (Sec. 4 [k], Art. V). Thisis a diminution of a power already granted to the ARMM.
• Limiting the power of the Bangsamoro to creating only municipalities and barangays [to the exclusion of cities and provinces] (Art. V, sec. 3 (57). This is a diminution of a power already granted to the ARMM.
• Requiring that the laws enacted by the Bangsamoro Parliament to govern the Bangsamoro Police shall also be in accordance with national laws and issuances of the National Police Commission (NAPOLCOM). This extremely limits the legislative power of the Parliament over the Bangsamoro Police(Art X, Sec. 12). This is a diminution of the power already enjoyed by ARMM.
DEFINITION OF TERRITORY
• HB 5811 re-defines territory as defined in HB 4994, and deleted maritime, terrestrial, fluvial and alluvial domains, and the aerial domain above it, and replaced it with “waters”.
• HB 5811 prevents contiguous municipalities, barangays, and geographical areas from petitioning to be included in the Bangsamoro during the first plebiscite (Sec. 3, Art. III). This denies residents of smaller contiguous localities the right to choose to become part of a politico-administrative setup that can respond to their cultural and political aspirations.
• Limiting the subsequent plebiscites for joining the Bangsamoro to only two times within 10 years, and only for areas that are within the area of autonomy under the Tripoli Agreement (Sec. 4, Art. XIV; Sec. 3, Art. III). Requiring the parent LGU to vote having the continuing biases and prejudices against the moro people, defeat the purpose of the law.
• HB 5811 deleting the opt-in provisions undermines Bangsamoro’s aspirations, right to self-determination.
FISCAL AUTONOMY
• HB 5811 takes away properties of the ARMM and the Southern Philippines Development Authority (SPDA) located outside of Bangsamoro territory, and conveys these to host local government units (Sec. 30, Art XI; Sec. 9, Art. XV). This lessens the assets available for use by the infant Bangsamoro government to boost its fiscal capacity. It also renders meaningless the participation of the Bangsamoro in the SPDA.
• The power to contract loans shall be “subject to the Constitution” which can mean that only the President can enter into foreign loans, and hence, the Bangsamoro government has to earn presidential nod for such transactions even as these may not require sovereign guaranty (Sec. 22, Art XI). This curtails the fiscal autonomy of the Bangsamoro.
• Transferring the ARMM payables to the Bangsamoro (Sec. 9, Art. XV). This could saddle the Bangsamoro government with liabilities that could impair its fiscal capacity to respond to the expectedly huge development challenge it will be dealing with.
• Requiring that receiving of grants and donations need to be approved by the Central Government(Article V, Section 3 [q]). This curtails the fiscal autonomy of the Bangsamoro, and is a diminution of a power already enjoyed by the ARMM.
• Exempts corporations with branch operations in the Bangsamoro to pay taxes therein when the majority income of such corporations comes from someplace else. (Sec. 11, Art. XI). This lessens the potential sources of revenues that can be tapped by the Bangsamoro government to boost its available fiscal resources. This is a diminution of a power already enjoyed by the ARMM.
• Limiting the authority to grant tax incentives to entities that are covered by the taxing powers of the Bangsamoro (Sec. 8, Art. XI). Thislessens its flexibility to institute incentive schemes in order to pump-prime the regional economy.
The members of the House ad hoc committee on the BBL also tinkered with how the Bangsamoro parliament organize itself (by decreeing that the parliament have two deputy speakers instead of one) and run its affairs(by having a provision on the manner of voting for Chief Minister).They also stipulated that the Bangsamoro bureaucracy should have two deputy chief ministers instead of one, and also set salary standards for parliament members as well as regional cabinet officials. While Congress enjoys plenary powers, the stipulations constitute legislative over-reach as these concerns are best left to the discretion of the relevant decision-making layers of the Bangsamoro government as a matter of respect for its competency and in the spirit of self-determination.
CONCLUDING NOTES
The team acknowledges that the original BBL draft may still have room for catch-up enhancements. But given the obtaining socio-political situation in the country that could affect the legislative process, it is recommended to give priority focus on how to restore the autonomy design contemplated in HB 4994 and SB 2408.
Related to this, interest-based advocates are also encouraged to carefully examine if their proposed catch-up enhancements really need to be enshrined in the BBL, because some of these may need to be acted upon, at a later time, by the Bangsamoro parliament.
The fear of Bangsamoro secession by legislators, however ridiculous, and the distrust thrown against the MILF is premised on the unfortunate incident in Mamasapano, Maguindanao on Jan. 25 that led to the killing of 44 police commandos, 17 MILF fighters, and five civilians. But the team notes that the matter runs deeper than this mere incident, however tragic it was. Rather, it is about the deep-seated bias, prejudice, and distrust against the Moros and Muslims among many Filipinos which roots goes a long way back into history.
In that context, drumming up wide public resonance for the advocacy to give greater powers to a Moro autonomous government will require creative and conscientious actions.
Finally, the team hopes for the kind consideration of the legislators, to be sensitive and cognisant in finally passing this Bangsamoro Basic Law (BBL) – genuinely addressing the continuing Bangsamoro questions, upholding the principles enshrined in the signed Comprehensive Agreement on Bangsamoro (CAB) and ensuring all this contribute to the establishment of a Bangsamoror political entity that is not in any ways less than that of the present ARMM.