(Continued from March 31)
I discuss provisions in the Bangsamoro agreement which might occasion constitutional debate.
Annex on Power Sharing. “The Framework Agreement delineates powers at different levels. The Central Government will have its reserved powers, the Bangsamoro Government will have its exclusive powers within its territorial jurisdiction, and there will be concurrent powers shared by the Central Government and the Bangsamoro Government. The delineation of reserved, concurrent and exclusive powers is provided in Part Three of this Annex, and is guided by the processes established under the Framework Agreement.
“Reserved powers are powers or matters over which authority and jurisdiction are retained by the Central Government.
“Concurrent powers shall refer to the shared powers between the Central Government and the Bangsamoro Government, as contained in this Annex and as shall be further provided in the Bangsamoro Basic Law.
“Exclusive powers shall refer to powers or matters over which authority and jurisdiction pertain to the Bangsamoro Government.”
The first question that arises from this classification of powers is whether the intention is to depart from the unitary power system in favor of a kind of federal system. The indication that we are moving into a different form of national government is found in the first paragraph of Part One: “The relationship between the Central Government and the Bangsamoro Government is asymmetric. This relation is reflective of the recognition of the Bangsamoro identity and their aspiration for self-governance. This makes it distinct from the regions and other local governments.”
A key word is “asymmetric” which, as far as I know, appears for the first time in our constitutional literature. The sharing of powers between the national and Bangsamoro governments is clear: “As a matter of policy, the Central Government shall ensure the participation and representation of the Bangsamoro in national agencies and other Central Government instrumentalities through the intergovernmental relations mechanism. The Bangsamoro Basic Law shall provide for the appointment of Bangsamoros to positions provided under Republic Act No. 9054.”
The governance structure. The form of government is “ministerial.” “The Bangsamoro shall have a democratically-elected assembly consistent with the principles of a ministerial form of government. The Bangsamoro Transition Commission may provide for the name of the assembly in the Bangsamoro Basic Law.”
Clearly, this is a departure from the presidential form of government in favor of an assembly form of government. Hitherto, the form of our local governments has been the “mayor-legislature” type.
There is a list of powers retained by the central government and a long list of shared
There is also a long list of powers given exclusively to the Bangsamoro government.
Two special areas of power sharing may be singled out for special discussion. What immediately caught my attention is the provision on powers over natural resources. It says: “The Bangsamoro Government shall have authority and jurisdiction over the exploration, development, and utilization of mines and minerals in its territory.” The constitutional provision on the subject says: “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 are owned by the State.” There is an obvious constitutional difference here. Whereas now the control over all natural resources is in the hands of the national government, a measure of control will be given to local governments.
Finally, if we go over the Annex on Wealth Sharing and on Water Rights, I am certain that there will be found other matters for discussion. Thus I believe what is clear is that the finalization of the Bangsamoro Basic Law will take more time than some of us would expect. If the expected constitutional issues come to a head, there will be a lot of heated debate. If constitutional amendment will be involved, necessarily the plebiscite for its ratification will have to be national. This is bound to delay matters.
We can only hope that even as we await the outcome of the debates on the final results of the Bangsamoro agreement, we will be able to achieve peace in Mindanao.
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