It matters if a state is created

This pertains to the proposed Bangsamoro Basic Law now pending in Congress. Reports say that it will be passed after the removal of   provisions which are deemed to be unconstitutional. The problem is, deleting provisions will not be enough because the BBL is vague as to the kind of political entity it wants to establish. As such, what it is would depend on the political interest of the person reading it.

Republic Act No. 6734, as amended by RA 9054, the organic act that established the Autonomous Region in Muslim Mindanao, is clear and unequivocal in creating an autonomous region. The BBL, on the other hand, seemed to deliberately avoid or minimize the use of the term autonomous region, and even the words “region” and “regional.” These terms only appear in very few provisions of the BBL, by way of erasing or repealing the existence of the ARMM and underscoring the transfer of powers, land area, facilities and properties of the latter to the Bangsamoro.

Of course, one may assert that “it is understood” that an autonomous region is being created. Lawyers down the ages have made a living on the supposed “it is understood” content of public and private documents.

More importantly, in the event of a dispute as to what was established, the argument that the BBL created a state or substate will have the upper hand. Article III on Guiding Principles and Policies of RA 9054 reads: “Section 1. Integral Part of the Republic.–The Autonomous Region in Muslim Mindanao shall remain an integral and inseparable part of the national territory of the Republic as defined by the Constitution and existing laws.” The BBL replaces this with Article IV on General Principles and Policies which reads: “Section 1. Self-Governance. In the exercise of its right to self-governance and self-determination, the Bangsamo is free to pursue its economic, social, and cultural development.”

The use of the terms “asymmetric relationship” and “parity of esteem” in Article VI on Intergovernmental Relations in the BBL would also support a possible claim that the law means to create a state. In federalism, an asymmetric relationship with a central authority occurs when established or recognized states are acceding to join a federation. A common example given is that of the states of Jammu and Kashmir in India. The term “parity of esteem,” on the other hand, assumes that the parties are stalemated and have opted to negotiate to end conflict. Is there a stalemate?

Again, it may be asserted: So what if we are recognizing or establishing a state as long as there is peace? Does it matter? It does matter. First, the Constitution does not authorize Congress to do so. Second, to use the language of Sen. Miriam Defensor Santiago, it facilitates secession. In short, if the Bangsamoro is a state, the temptation to secede may prove irresistible to those who desire dismemberment of the Republic, whether rebels, or third states such as Malaysia because of our Sabah claim. While there are arguments that the concept of status of belligerency is obsolete, it is best that we avoid greater conflict and bloodshed in the future by not exploring those waters.

—ELIAS JOSE M. INCIONG, [email protected]