The tragic deaths of 44 police officers in Mamasapano is a reminder of the fragility of peace in Mindanao. We need a blueprint for the future. The Bangsamoro Basic Law is not only legal, it’s also necessary
I have been thinking about the peace process in Moro Mindanao for exactly 40 years now. I first became aware that war was raging in the Muslim parts of Mindanao in 1974, when the Marcos dictatorship was supposedly consolidating. Although my hometown, Cagayan de Oro, was spared from the battles between the Moro National Liberation Front (MNLF) and the Armed Forces of the Philippines (AFP), the city became one of several major evacuation centers of refugees, Christians and Muslims alike, fleeing from the war. In the case of my city, the refugees came from nearby Lanao provinces. I was in high school then, and in senior year (1975-76), I became active in our school’s relief efforts for those refugees. The job included ministering to the sick and burying the dead, mostly children, among the evacuees. Since then, I have told myself that war is wrong and never justified, and that I will do my best to work for peace. And consistent with this I became a consensus builder (negotiator and mediator) and assisted in the final stages of the negotiations between the MNLF and the Ramos government in 1996 (I was an undersecretary at the Department of Environment and Natural Resources then and reviewed the natural resources provisions of the Final Peace Agreement). Later, in 2009-2010, during the Macapagal-Arroyo administration, I became a member of the government peace panel in the negotiations with the Moro Islamic Liberation Front (MILF). In this last period, I helped get the peace process back on track after the fiasco resulting from the Supreme Court declaring the Memorandum of Agreement on Ancestral Domain (MOA-AD) unconstitutional. Working with Ambassador Rafael Seguis as Chair, our panel negotiated a declaration of transition that enabled us to successfully pass on the peace negotiations to the Aquino Administration.
Today, I am once again preoccupied with the Bangsamoro issue. The Mamasapano tragedy, which saw 44 young police officers of the Special Action Force of the Philippine National Police killed in an encounter with the MILF and its breakaway faction, the Bangsamoro Islamic Freedom Fighters, has raised serious and legitimate questions about the peace process with the MILF. I am of the view that moving forward on this issue requires uncovering the whole truth about the incident and making the responsible persons, in the government and the MILF, accountable. But this should be done simultaneously with the implementation of the agreement between the government of President Benigno Aquino and the Moro Islamic Liberation Front (MILF).
Let me be clear: I completely and totally support this agreement. It is the right thing to do; it can enable peace to happen. But it must also be done the right away: first, by ensuring that the Bangsamoro Basic Law (BBL) survives legal and constitutional scrutiny; second, by making sure its creation and implementation is inclusive; and third, by making sure that no more Mamasapanos happen inside the Bangsamoro.
Actually, there is nothing in the current draft of the BBL that I find patently unconstitutional. While many concepts introduced in the law may sound foreign and novel, the Bangsamoro is in essence an autonomous region. This is just being consistent with Section 18, Article X of the 1987 Constitution, which provides the basis for the enactment of an organic act for the autonomous region created in Muslim Mindanao. According to this provision, the organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.
As I see it, the BBL as proposed, grants the highest form of local autonomy to Muslim Mindanao without creating a sub-state much less occasioning the transfer of sovereign political authority but giving it more powers in excess of those given to other local governments and the current Autonomous Region of Muslim Mindanao (ARMM). The essence of the Bangsamoro is to create a political entity that allows for the greatest potential for self-determination, in the context of national unity, in view of the unique and peculiar socio-political conditions obtaining in the region of Muslim Mindanao. Having said this, a constitutional challenge against the BBL remains a distinct possibility.
If litigation does happen, the Supreme Court may have to resolve questions as to whether or not the Bangsamoro is a de facto recognition of a dual-state situation that results in the dismemberment of territory. It may have to decide whether the Bangsamoro envisages a transfer of the sovereign powers of the people as a whole or whether a constitutional amendment is necessary if only to give it the appropriate constitutional imprimatur. It is therefore imperative for Congress to conduct due diligence through the hearings it is currently doing so that inclusivity becomes the rule both in the process of passing and the content of the BBL. More specifically, it must ensure that congressional intent is clear when incorporating the final version of the BBL that the new concepts contained therein are based or authorized by the 1987 Constitution. In this regard, there must be a section defining specific terms so that there will be no legal ambiguity about its meaning. Without this, there is danger that the Supreme Court will formulate a definition adverse to those intended by the parties resulting in a repeat of the MOA-AD fiasco.
The organic law must explicitly and categorically state in no uncertain terms that the Bangsamoro is nothing more than an administratively decentralized autonomous governance entity akin to the ARMM and other local government units but vested with special powers and competencies. It must be made clear that the Bangsamoro government is a regional autonomous government sanctioned under Art. X section 15 of the 1987 Constitution that provides:
Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.
It is also important to make clear that the power sharing provisions under the BBL does not in any way entail the transfer of sovereignty to the Bangsamoro, but it is a mechanism to make possible the realization of its full economic and political potential. In essence in fact, what Congress is doing in this law is to delegate powers to a regional government, in the same way that it has done for local government units under the Local Government Code. Thus, even while the BBL grants the Bangsamoro exclusive powers and powers concurrently exercised by both the national government and the Bangsamoro, the Bangsamoro remains within the general supervision of the executive as explicitly stated in Art. VI Section 3 which provides that:
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.
It must be noted that the regional government under ARMM similarly exercises jurisdiction over all matters devolved to it by the Constitution and the Organic Act, while the national government exercises specific reserved powers. A review of the reserved, concurrent, and exclusive powers enumerated in the law is similar to what Congress has done in the case of The Local Government Code. That the BBL will exercise exclusive jurisdiction over certain areas of governance does not negate the general supervision powers of the executive nor does it nullify the sovereign authority of the State over the constituent territories of the Bangsamoro which performs these exclusive functions.
A fortiori, the same BBL allows for the establishment of the Central Government–Bangsamoro Government Intergovernmental Relations Body that would coordinate and harmonize their relationships. This body will have representations from both the Bangsamoro and the central government. Finally, the BBL provides for a section (sec. 6 of the same section) whereby both accept the concept of devolution as inspired by the principles of subsidiarity—a tenet of decentralizing governance which states that power, as a rule, must be devolved to the lowest level of governments capacity that exists or can be built. These features validate the assertion that the political nexus between the two entities remains and will not be severed.
It is my thesis that the “the asymmetrical relationship” between the Bangsamoro and the national government does not render the BBL a constitutional anomaly. While the term asymmetrical is ordinarily associated with federalism, the use of the term in the document is but a recognition that autonomous regions have more powers than other local governments and less powers than a central government. It implies that the Bangsamoro occupies a special status vis-à-vis the national government and nothing more. In the draft BBL, the asymmetric relationship is a reflection of the distinct Bangsamoro identity and aspiration for self-governance. This is fundamentally disparate from other regions and other local governments. It merely gives flesh to the constitutional mandate to give the regional autonomous government a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy. As explained by Justice Leonen in his Concurring Opinion, League of Provinces of the Philippines v. DENR, G.R. No. 175368, 11 April 2013, “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. The Constitution grants them legislative powers over some matters, e.g. natural resources, personal, family and property relations, economic and tourism development, educational policies, that are usually under the control of the national government. However, they are still subject to the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines."
The ministerial and parliamentary system of government established for the Bangsamoro in the BBL is also legally justifiable. Article X, Section 18, 1987 Constitution does not prescribe the structure of the autonomous government except that the autonomous regional government shall consist of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. What is perhaps more problematic is the idea that some local government units (LGUs) like barangays and municipalities can vote to join the Bangsamoro even if their current province is not included in it (this could be a poison pill that could invalidate the BBL). The Bangsamoro core territory includes municipalities and barangays that voted yes in the last ARMM plebiscite but their mother units (province) voted no. Indeed, it is important to define the Bangsamoro territory and come up with an integration process that is not only consistent with the laws but one that allows LGUs to join the Bangsamoro in a legally feasible and rational manner from the point of view of administration.
Under the BBL, the Bangsamoro waters and internal waters shall form part of the territorial jurisdiction of the Bangsamoro political entity. To avoid misunderstanding, it is critical for Congress to define the extent of the authority of the Bangsamoro over these waters. In my view, this authority must be limited to administrative aspects, particularly in the exploitation of its resources without detracting from the authority of the State to exercise its sovereignty over them. Be that as it may, the BBL in Section 1. Definition of Territory makes it unequivocal and unmistakably clear that the Bangsamoro territory shall remain a part of the Philippines.
To sum up, while the BBL is in essence free of constitutional infirmities, Congress must properly define the terms and concepts in the law, both through the legislative record and by adding a new section of definition of terms that peg every concept in the BBL to a relevant constitutional provision. Complementarily, public stakeholder process must aim for universal acceptance so no credible legal petition will be filed against the bill.
This is the second imperative: The government and the MILF must make sure the creation and implementation of the Bangsamoro is inclusive and participatory. The hearings by both the House of Representatives and the Senate on the BBL have actually been very well done and, until Mamasapano, it looked like the BBL would be enacted with wide support from many sectors. But today, trust in the peace process, the government, and the MILF has diminished and herculean efforts are necessary to get back to where we were before this tragedy. This is of course unfair. As Patricio Diaz in Mindanews has pointed out: “Where are reason, fairness and truth in implicating the BBL and Bangsamoro? How the BBL is being entangled—held at gun-point, maligned—is outrageous. That’s bearing false witness against one’s neighbor.” Still, this is the reality we are faced with, and we must work to restore the trust.
Most of all, support for the BBL will not be regained unless the many stakeholders and the general public are assured that the creation of the Bangsamoro will not result in even more Mamasapano-like situations where terrorists are able to hide with impunity and Bangsamoro security forces become the enemy of the Philippine police and military. In the days and weeks ahead, many will be watching the MILF’s next moves with respect to other terrorists that may be in their territory, as well as making accountable their forces who might have committed atrocities in the encounter at Mamasapano.
Every possible avenue must be tapped to ensure the passage of the BBL because the options are limited if the law is not passed. We also cannot afford to have the law declared unconstitutional because the consequences to the peace process could be significant. There could be outbreaks of hostilities, but more likely, we will go back to the uncertainty and instability of the last few decades. Bangsamoro Transition Commission Chair Mohagher Iqbal himself stressed this when he said: “This is important because the establishment of the Bangsamoro will end the long-standing conflict that has been the scourge of our people. The conflict has caused untold pain and misery. It has brought poverty and insecurity to our people. It has cost thousands of lives.” And as Mr. Iqbal also eloquently said “The Bangsamoro is the sum of all our hopes and dreams. It may mean nothing to you. But it is the whole world to us.”