Is the Constitution the enemy of genuine Bangsamoro autonomy?

WITH NO little pacifistic glee, President Benigno S. C. Aquino III endorsed to Congress sometime in September last year the draft Bangsamoro Basic Law (BBL). It was soon filed with much the same glee in both houses by no less than their respective leaders as principal authors. Everybody looked happy about it — this piece of document that had been more than 20 years in the making and held the promise of peace in Mindanao.

 But moods changed after the killings in Mamasapano. Big issues have been brought to light and they now hound the BBL. They point to the obvious, that the draft BBL is not an all-or-nothing proposition. Congress works on the basic belief that compromise is at the heart of legislation, where any thought or idea is a potential point of contention and consensus, and gives rise to issues.

Most of the issues I’ve come across are constitutional and legal — a fact that will most likely bear (say, impinge) on the profound political purpose of the BBL. Assuming our legislators appreciate the need, we hope to find them balancing the competing demands of the legal and the political. Perspective is key. A legislator who adheres to the idea of genuine autonomy or self-determination is more likely to read a pertinent constitutional provision in a liberal way than one who is against it. A myopic perspective may limit your views about the BBL within the confines of Mamasapano and lead you into taking a bellicose stand.

From the little that I’ve read and heard about the BBL, I have jotted down some key issues raised by those in the know about it, while wondering at the back of my mind how Congress would come to address them. Take this issue on the Bangsamoro territory (using House Bill 4994 as BBL reference).

The BBL bill defines “territory” as referring to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain above it. Before you get the impression that the bill is proposing to carve out a separate territory for the Bangsamoro, it adds that this territory shall remain part of the Philippines. While this is so, however, the bill also seeks through a provision found several sections later to vest in the Bangsamoro government the exclusive power, control and supervision over the exploration, development and use of all natural resources in the Bangsamoro territory, except fossil fuels and uranium. Who cares about nominal ownership of a territory when you can have sole power over the use of its resources (hence the definition)?

The issue arises when you read this against a provision in the Constitution that says the State owns all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and “other’’ natural resources; and enjoys “full” control and supervision over their exploration, development and use.

Will the BBL bill find Congress in a good mood to hammer out a compromise amendment that, say, allows the Bangsamoro to share with the national government the power to explore, develop and use the natural resources within its territorial jurisdiction? Or, will it find it grouchy enough to allow the Bangsamoro a mere share in the proceeds from the use and development of natural resources within its area, without partaking any of the state power, similar to what all local government units enjoy at the moment? Other compromise ideas are limited only by the will to find them.

Other issues leave little space for the game of give-and-take. For an illustration, what comes to mind is the BBL bill provision that includes six municipalities in Lanao del Norte and 39 barangays in different municipalities in North Cotabato as part of the pre-identified areas for the plebiscite that will ratify the BBL once it becomes a law. The issue stems from the idea of excluding the parent provinces or their other component local government units from the conduct of plebiscite.

The challenge rests on the fact that the Constitution requires a plebiscite in the “political units directly affected” by a law seeking, among other things, to alter substantially the boundary of a local government unit — in this case the provinces of Lanao del Norte and North Cotabato and their component municipalities and barangays. It is highly unlikely that this item as currently worded will find its way into the approved BBL: it will be either deleted altogether or amended to include a plebiscite in the affected units. The latter case offers but a very slim chance for the BBL to facilitate the expansion of the Bangsamoro territory into six more municipalities and 39 barangays because of the perennial refusal of these affected units to be part of the autonomous region.

The BBL bill provision that seems closest to the heart of the government peace negotiators is that on the Bangsamoro government whose powers are vested in the parliament. It invokes no less than a section in the Constitution allowing Congress to define by law the basic structure of government for the autonomous region. It calls for the fact that there shall be an executive department and legislative assembly, “both of which shall be elective and representative of the constituent political units.” Does the Constitution call for an executive that is elected at large; or would one that is elected by members of parliament qualify as such? The very thin line that separates opposing interpretations gives good reason to let the political choice of the Bangsamoro to prevail.

I hope to find more of the same in the draft BBL.

Mario M. Galang is a senior fellow of Action for Economic Reforms and a development and governance specialist.

www.aer.ph

This article was first posted last week in BusinessWorld.
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