BBL a matter of public interest
The Mamasapano incident jolted Alliance for Good Governance, Peace and Social Justice, a civic advocacy group that I chair, into realizing that the continuing armed conflicts have exacerbated social injustices being suffered by our poor people in Mindanao.
Mamasapano was also a misgovernance by those who bungled the police Special Action Force (SAF) mission. Thus, there is a need to give justice to the Fallen 44. Let those pinpointed by the Senate investigation as being responsible for the debacle be made accountable before the proper government body. Meanwhile, let us recognize and give tribute to those who died in that battlefield.
The Alliance believes that the best tribute to the Fallen 44 for gallantry in action and the Moro Islamic Liberation Front (MILF) young rebels who died for a cause, including innocent civilians killed in the cross fire, is for us—the living—to help ensure that peace prevails through a refined Bangsamoro Basic Law (BBL) that can pass any constitutional test.
View Mamasapano as a microcosm of the larger intermittent and fratricidal war in Mindanao happening for more than 45 years. Think of the many tens or even hundreds of thousands of people killed in this war, Moro and non-Moro alike, and the grave impairment to the development of Mindanao and the country.
This war must be stopped. The early passage of a refined BBL is the answer.
The BBL intends to create a new political entity, the Bangsamoro, to replace the Autonomous Region in Muslim Mindanao (ARMM). Briefly the key features are:
In consonance with the Constitution, the Bangsamoro shall be an autonomous government in Muslim Mindanao.
It is democratic and parliamentary; it is given more powers than the ARMM; and the principles with which the Bangsamoro shall govern the autonomous region are consistent with those of the Constitution.
The Bangsamoro Police shall be part of the Philippine National Police whose organization and operation shall be consistent with the national law.
The national government may create a Bangsamoro Command of the Armed Forces of the Philippines (AFP) within the chain of command of the AFP.
The Bangsamoro shall be under the general supervision of the President.
BBL provides more funding resources to the Bangsamoro compared with those of ARMM to enable the former to build its capacity for self-governance and effectively undertake rehabilitation and development of the region.
The comments and recommendations here are intended to refine the draft BBL to make it more acceptable to our people and to ensure that it is constitutionally compliant.
- On the Preamble
- A preamble of a law tells the reasons for its enactment. It introduces what is to come; it must convey with clarity the intent of the law.
- The second paragraph of the preamble must convey that the political entity to be created, for emphasis, is not only in consonance with the Constitution but likewise within the national sovereignty and the territorial integrity of the Philippine republic.
- The Bangsamoro people have asserted their right to self-determination in the third paragraph. International law and jurisprudence state that self-determination has two meanings—internal self-determination being self-governance in an autonomy, and external self-determination in the context of independence or secession.
There must be no ambiguity that what is agreed upon and granted to the Bangsamoro is self-governance within the sovereignty of the republic.
- The third paragraph must also recognize the right of non-Moro indigenous inhabitants to their ancestral homeland.
- The term “Central Government” should be changed to “National Government” to be in accord with common legal usage of the latter term in our Constitution and laws. This usage should apply to all succeeding provisions of the BBL.
- On Article I, Name and Purpose
- The peace agreement states that the entity to be created in the BBL shall be an autonomous political entity.
- Hence, let it be described with clarity that the name of the political entity Bangsamoro is the autonomous government in Muslim Mindanao being referred to in the Constitution.
- On Article II, Bangsamoro Identity
- Section 1 must identify specifically who the Bangsamoro are—the Muslim inhabitants of the country. Section 1 should read:
“Those who, since time immemorial, were considered the native and original Muslim inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants, xxx-xxx-xxx.”
- The draft BBL states only two types of inhabitants in the Bangsamoro region, namely the Bangsamoro and the indigenous people. How about the non-Moro inhabiting the region?
Thus, under this Article II, add another provision to include all inhabitants therein, namely the Bangsamoro people, the indigenous people and the non-Moro people.
- The right of the Bangsamoro to adopt its own symbols like its flag, emblem and anthem should be recognized. But add a provision on the positioning and raising of the Bangsamoro flag in relation to the national flag, and the order of singing its anthem in relation to that of the national anthem. The National Commission on Culture and the Arts should be consulted on this provision.
- On Article III, Territory
- The Constitution does not cede or grant “territory” to an autonomous region or any local government unit; what is granted is territorial jurisdiction or the political authority of a regional or local government unit to govern a geographical area whose boundaries are delineated by law.
This is in accord with the goal of the State to secure its sovereignty and the integrity of its national territory. The term “territory” has a special and particular meaning in international law, as an essential attribute of a sovereign state, aside from the other attributes of people, government and sovereignty/independence.
Territory as defined includes the aerial domain above the landmass. With this grant of territory, the Bangsamoro Assembly can pass laws that will restrict the use of the aerial domain for military and civil aviation.
It is recommended that Article III be retitled from Territory to either Territorial Jurisdiction or Area of Autonomy.
- The definition of territory in Section 1 should be deleted. Section 1 is retitled Territorial Jurisdiction and under it, list down the constituent local government units and areas over which the Bangsamoro shall exercise jurisdiction, as stated in Section 2 of the draft law.
- Section 3 on Contiguous Territory states that the areas which are contiguous and outside the core territory may opt at anytime to be part of the Bangsamoro upon satisfying certain requirements.
Section 3 should be deleted because it will cause instability to local government units adjacent or contiguous to the Bangsamoro boundary, this section being open-ended. After the plebiscite, the Bangsamoro has no right to interfere with the inhabitants of these contiguous areas.
- On Article V, Powers of Government
- Defense and External Security as reserved power should be changed to Defense and Security. The inherent power of the republic to preserve its sovereignty and territorial integrity cannot be delimited to external security only.
- In consonance with jurisprudence on nonderogation of the powers of any major branch of government, the constitutional commissions and other independent bodies, add to the draft enumeration of Reserved Powers of the national government the following:
Administration of Justice; the Bangsamoro government may, however, legislate on matters covered by the Shariah which shall apply only to Muslims and tribal justice system for the indigenous inhabitants of the autonomous region; provided that their application shall be limited by the pertinent provisions of the Constitution, particularly the prohibition against cruel and unusual punishment and by the pertinent national legislations that promote human rights and the universally accepted legal principles and precepts
National Civil Service
Powers of the Office of the Ombudsman
Powers of the Commission on Human Rights
This is without prejudice to the Bangsamoro legislating and/or creating offices similar to those in the six items above, to strengthen or enhance respectively the electoral process, the auditing of funds, the professionalization of civil servants, the campaign against corruption, and the promotion and observance of human rights in the autonomous region. However, these regional offices shall be supplementary to the national offices concerned and their functions shall be consistent with pertinent national laws.
- Section 3 on Exclusive Powers should be retitled Devolved Exclusive Powers, as the enumerated powers therein are, in fact, being devolved to the Bangsamoro by the national government through Congress.
- Add National Education System to the Concurrent Powers, national education being an inherent function of the national government, which it shall fund.
This is without prejudice to the Bangsamoro to legislate on education and skills training suited and peculiar to the Moro culture, the funding of which shall come from its general funds.
- On Article XI, Public Order and Safety
- Re the Bangsamoro Police
The Bangsamoro Police (being part of the PNP), its organization and utilization shall be in conformity with the PNP law.
For stability at the beginning of implementation, it is better that the police composition be stated in the BBL itself, say to be composed of the existing PNP units in the autonomous region, the qualified MILF members and other qualified citizens with preference to the inhabitants therein.
- Re the Military
The AFP should have flexibility to accomplish its mission. It may deploy and employ its units or subordinate commands in any geographical area where an enemy force or security threat may exist. Thus, a command of the AFP should not be created only for a specific region, but may be stationed in that region and be given an area of responsibility within which to operate.
The standing coordination protocols to be established governing the movement of the AFP in the Bangsamoro shall be in such a way that the capability of the AFP to accomplish its mission shall not be impaired.
- On Article VII, The Bangsamoro Government
- The structure of the Bangsamoro Government shall be parliamentary. The people directly elect the members of the Bangsamoro Assembly/Parliament, and from among the members of the Parliament the Bangsamoro Governor/Chief Minister is elected; a majority of the Cabinet Ministers are parliament members themselves. The Bangsamoro Governor/Chief Minister and the Ministers forming the Cabinet constitute the executive department, and the Parliament is the legislative assembly.
- It is our view that this structure of government would pass a constitutional challenge—the executive body and the legislative assembly are both elective as provided by the Constitution; what is new is that the chief executive being further elected from among the members of the legislature. This manner of electing the chief executive is not specifically prohibited in Section 18, Art. X of the Constitution.
Jurisprudence on constitutional construction is replete with examples that can justify the above form of government for an autonomous region.
We note that the proposed BBL incorporated provisions of Republic Act No. 9054 on an expanded ARMM, authored by former Sen. Aquilino Pimentel Jr., based on the 1996 Philippine government-Moro National Liberation Front (MNLF) Final Peace Agreement. It is recommended that amending RA 9054 in lieu of the total repeal thereof is the better option so as to include the MNLF.
With the BBL being ultimately the improvement of RA 9054, the government shall have effectively honored the agreement with the MILF as well as implicitly with the MNLF. With the two major Moro rebel groups included in the BBL, peace would be achieved in Mindanao.
(Alexander P. Aguirre was principal negotiator of the Philippine government-Moro National Liberation Front peace process [1994-1996]. He is a former executive secretary , national security adviser [1998-2001], Presidential Management Staff head and secretary to the Cabinet [1996-1998]. He is also a major general [retired] and a lawyer.)
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