RIVERMAN’S VISTA: The Future of the
BBL (1) : Addressing Legal Issues
By Antonio G. M. La Viña on March 10 2015 11:20 am
1st of a six-part series
CAGAYAN DE ORO CITY (MIndaNews/10 March) — This six part series is based on an
article I wrote with Atty. Janice Lee entitled “The Draft Bangsamoro Basic Law: Overcoming
Constitutional Challenges” which Ateneo de Davao University just published in a Compendium
on the Draft Bangsamoro Basic Law. The starting point of our analysis of the draft Bangsamoro
Basic Law (BBL) is that it is a legislative enactment that will implement the provisions of the
peace agreements aimed at resolving the conflict situation in Mindanao. With this in mind, we
believe that an evaluation of the draft bill must not only look at its Constitutional fitness, but also
be sensitive to its political history. It must of course also be analyzed under the rubric of
Supreme Court rulings.
In our analysis, we conclude that the draft BBL contains no patently unconstitutional provisions.
Indeed, the Bangsamoro created under the BBL will replace the ARMM, the autonomous region
created under Republic Act No. 6734 as provided for under the Constitution. That Congress may
enact such a law can hardly be contested. As a rule, Congress enjoys plenary powers of
legislation all subjects, whether pertaining to persons or things, within its territorial jurisdiction,
either to introduce new laws or repeal the old, unless prohibited expressly or by implication by
the Constitution or limited or restrained by its own. Further, the political provisions of the draft
BBL, and the extent of the powers granted to the Bangsamoro, must be made in light of the
purpose behind the Constitutional provisions for autonomous regions, which is to allow the
separate development of peoples with distinctive cultures and traditions.
There is nothing wrong with the fact that the BBL is a product of the negotiations between the
Philippine government and the Moro Islamic Liberation Front (MILF). In the North Cotabato
case, which declared unconstitutional the Memorandum of Agreement on Ancestral Domain
(MOA-AD), the Supreme Court held that the President has the power to negotiate peace with the
MILF, and to determine in what form and manner the peace process should be conducted, which
includes the signing of peace agreements. It is also a matter of judicial notice that the President
also has the authority to propose new legislation to Congress, as is done in the case of the BBL.
The constitutional basis of the BBL
To justify the enactment of the BBL, it must be legally sound on at least two points: (1) the act of
passing such a law of its kind must be legal; and (2) the contents of the law must conform to the
Constitution.
On the first point, Section 18, Article X of the 1987 Constitution provides the basis for the
enactment of an organic act for the autonomous region created in Muslim Mindanao, thus this
section provides: “The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of representatives
appointed by the President from a list of nominees from multi-sectoral bodies. 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.” The same section also provides: “The creation of the autonomous region
shall be effective when approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region.”
On the second point, the Constitution also provides that the organic act shall define: (1) the basic
structure of government, consisting of the executive department and legislative assembly; (2)
special courts with personal, family, and property law jurisdiction. Section 20, Article X of the
Constitution provides for the powers that the said legislative assembly may exercise: “ (1)
Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and
natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural
planning development;
(6) Economic, social, and tourism development;
(7) Educational
policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters
as may be authorized by law for the promotion of the general welfare of the people of the
region.”
As the Supreme Court has noted in the 2004 case of Disomangcop v. DPWH: “The need for
regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people
who have been fighting for it. Their political struggle highlights their unique cultures and the
unresponsiveness of the unitary system to their aspirations . . . Perforce, regional autonomy is
also a means towards solving existing serious peace and order problems and secessionist
movements. Parenthetically, autonomy, decentralization and regionalization, in international law,
have become politically acceptable answers to intractable problems of nationalism, separatism,
ethnic conflict and threat of secession.”
Consistent with this pronouncement of the Supreme Court, the draft BBL generally conforms to,
and is within the bounds of, the 1987 Constitution. It neither creates a separate state within the
Philippines nor provides for powers which are beyond what is granted to autonomous regions.
The provision for a parliamentary system of government for the Bangsamoro is likewise valid, as
this remains to be elective and representative of the constituent political units.
Need for clarifications
While there is no doubt that the Bangsamoro autonomous region can be validly created. a
number of clarifications must be made to the draft BBL in order to leave no space for any
misinterpretation. In particular, we suggest that Congress draft and incorporate a section in the
law that would provide a definition of such key terms as “asymmetrical relationship”,
“Bangsamoro”, and “exclusive powers”. These suggested definitions do not alter or diminish the
rights granted to the Bangsamoro under the draft BBL, but simply aim to couch these terms in a
language that will leave no room for misinterpretation as to their Constitutional validity. We also
propose revisions to certain provisions on natural resources, indigenous peoples’ rights, human
rights, judicial review and the justice system in order to allay any concerns of them being beyond
the fold of the Constitution.
With regard to the core territory of the Bangsamoro and the plebiscite to be conducted, our study
also recognizes legitimate concerns on their practical implications. Pertinently, the provisions
ostensibly allowing municipalities and barangays to vote for, and become part of, the
Bangsamoro without the participation of the provinces to which they belong may raise issues
about governance and jurisdiction. These issues must be approached carefully so as not to violate
any Constitutional provisions or Supreme Court pronouncements.
The next five articles will elaborate in detail some of the clarifications needed to address legal
and constitutional issues around the BBL. (MindaViews is the opinion section of MindaNews.
Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He
was a member of the Government of the Philippines Peace Panel that negotiated with the MILF
from January-June 2010. He is currently the Dean of the Ateneo School of Government. Dean
Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook: tlavina@yahoo.com
and on Twitter: tonylavs.)
Read more
http://www.mindanews.com/mindaviews/2015/03/10/rivermans-vista-the-future-of-the-bbl-addre
ssing-legal-issues/
