From MindaNews (Jul 19): RIVERMAN’S VISTA: BBL 2014 vs BBL 2017: An initial analysis
After decades of armed struggle for self-determination and numerous failed attempts at forging peace, the Bangsamoro people are given another chance at peace with the submission on Monday, July 17, of a new draft of the proposed Bangsamoro Basic Law (BBL) to President Rodrigo Duterte. I hope the President will immediately certify it as urgent and announce this when he faces Congress for the second time and deliver his State of the Nation Address (SONA) on July 24.
The new BBL draft, which we shall call the 2017 BBL in contradistinction to the 2014 BBL, was prepared by the Bangsamoro Transition Commission (BTC), a joint panel composed of representatives from the government, the Moro Islamic Liberation Front (MILF) and a faction of the Moro National Liberation Front (MNLF).
The latest BBL draft is another draft for approval by Congress after an earlier version during President Aquino’s term failed to pass amid public outcry over the Mamasapano massacre. The urgency of establishing a Bangsamoro Homeland acceptable to the people, especially to our Muslim brothers cannot be underestimated. The siege of Marawi which has wrought untold destruction to the province and greatly undermined the peace and security in the entire Mindanao region illustrates to us the critical importance of preventing extremist ideology from taking hold among our Muslim brothers. Disillusionment and despair are the instruments which will push moderate Muslims from going over the side of Islamic extremism.
Never before in our political history are we more prepared to move forward towards a peaceful resolution of the Mindanao conflict. We have a President who is sympathetic to the flight of our Muslim brothers, who hails from the region and understands the problem. We have a super majority in Congress which the President can harness to push his legislative agenda for Mindanao. The two major armed groups in Mindanao, the MILF and the MNLF, have expressed their earnest desire to support and respond favorably to the government’s peace initiatives. In short, the present political climate presents a most opportune time to stop the bloodshed and create peace.
Overall, I support the enactment of the BBL. I congratulate the government, the MILF, and the BTC for getting us to this stage. I would specially laud the leadership of President Duterte, MILF Chairman Al Haj Murad Ebrahim, Presidential Adviser on the Peace Process Jesus Dureza, the two chairs of the implementation panels of the Comprehensive Agreement on the Bangsamoro (CAB) — Irene Santiago and Mohagher Iqbal, and Chairman Ghazali Jaafar and the members of the BTC.
I am also confident that with the President’s full support and Murad and Dureza’s guidance, and the continued stewardship of the process by Santiago and Iqbal, that this time, we will succeed in enacting the BBL. It might be good also to mention the hard work that former peace adviser Ging Deles and former government Chair Miriam Coronel- Ferrer did to push this process forward in the last years of the Aquino administration. Many ideas that worked on are in this version in the same way that the CAB was also a product of decades of negotiations and not just an achievement of the Aquino government.
But what is the 2017 BBL and how does it compare with it earlier version, the 2014 BBL? For purposes of this article I will highlight the salient features of both drafts to be able to identify their identity and differences, if any.
Recalling the 2014 BBL bill
The 2014 BBL was drafted by the Bangsamoro Transition Commission composed of Bangsamoro appointed by the president. It was designed to supplant the Autonomous Region jn Muslim Mindanao (ARMM) which shall be abolished upon the establishment of the Bangsamoro, a political entity consisting of people, political entity and territory that remains part of the government. It will have its own distinct political, economic and social systems suitable to the life and culture of the Bangsamoro people. It will enjoy political and fiscal autonomy. By political autonomy, it means the Bangsamoro will have less interference by the Central government and the Bangsamoro people given a greater latitude in governing themselves. Fiscal autonomy on the other hand means that the Bangsamoro shall be given the freedom to generate their own income and revenue which will make it more self-reliant and self-sustaining.
The 2014 BBL adopts an asymmetrical relation between the Central government and the Bangsamoro government, delineating their power sharing arrangement. It also defines the functions of a ministerial system of government, the sharing of powers and wealth from its natural resources, the process of normalization, provisions for transition and modalities, and fiscal autonomy.
Political Structure. The 2014 BBL provides for a ministerial government with the Bangsamoro Assembly exercising the legislative and executive powers. Thus, it will make the laws and policies and implement them through its cabinet. The cabinet will be composed of the Chief Minister who is elected by majority vote from among the members of the assembly, a Deputy Chief Minister, and such other ministers necessary to perform the functions of government.
Fiscal autonomy. The 2014 BBL provides for additional sources of funds such as capital gains tax, estate tax, documentary stamp tax and donor’s tax. This in top of the taxes already being collected by the ARMM. From national taxes, fees and charges collected in the Bangsamoro, 75% shall go to the Bangsamoro and 25% to the Central government. Moreover, annual block grant transfers from the Central government shall also be automatically appropriated and released. The Bangsamoro is also empowered to contract loans, credits and other forms of indebtedness with government or private banks and lending institutions except those requiring sovereign guaranty, including overseas development assistance (ODA) for priority development projects.
Accountability. Mechanisms and regulations to promote accountability in the use of funds of the Bangsamoro government are also provided including an auditing body with auditing responsibility over public funds of the Bangsamoro. This is without prejudice to the power, authority and duty of the national Commission on Audit to examine, audit and settle all accounts relating to revenues and use of funds.
The Bangsamoro Assembly may enact laws to ensure transparency mechanisms and the accountability of officials. The Basic Law also proposes the creation of the office of the hisbah, which is an office for public accountability, similar to the Ombudsman.
Justice Institutions. In the Bangsamoro, the competence of the Shari’ah justice system will established under the jurisdiction of the Shariah courts. However, Shari’ah shall only be made applicable to Muslims. Aggrieved parties residing in the Bangsamoro may have recourse to the local courts, or among Muslims to the Shari’ah district or circuit courts. Insofar as Indigenous Peoples are concerned, the settlement of conflicts through their own tribal laws, and traditional systems.
Rights of non-Bangsamoro and Property Dispute Resolution. The 2014 BBL guarantees the basis rights of all individuals irrespective of race, ethnicity or religion. Further, it guarantees and respects the vested property rights. Hence, any person who has a valid title to land he has acquired legally and fairly is protected. The rights, customs and traditions of indigenous peoples shall be respected.
Property rights shall be respected. However, legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenure or their marginalization will be acknowledged. In the event that restoration of the property is no longer possible, effective measures for adequate reparation shall be undertaken by both the Central government and the Bangsamoro government.
Plebiscite and Ratification. Once enacted by Congress and signed by the president into law, the Basic Law will be submitted to the people for ratification in a plebiscite. The plebiscite shall be participated in by registered voters in identified areas in Mindanao including residents of the ARMM, and other areas so included. However, those areas not listed but contiguous and outside the core territory where there are substantial populations of the Bangsamoro may opt anytime to be part of the territory upon petition of at least ten percent (10%) of the residents and approved by a majority of qualified voters in a plebiscite. It must be clarified however that a petition of 10% of qualified voters will only be for purposes of being included in the plebiscite. For a territory to be included in the Bangsamoro, a favorable vote of a majority of registered voters in a plebiscite is still necessary.
The 2017 BBL compared to 2014
Government Structure. The 2017 BBL retains much of the basic features of government found in the 2014 BBL. Thus, it also adopts a ministerial form of government. The listing of powers reserved to the Central government as well as the concurrent powers shared by both the Bangsamoro and the Central government remains identical to the listing in the earlier version. There is likewise no departure in the exclusive powers, i.e. powers vested in the Bangsamoro alone, as written in both versions. This notwithstanding, there are slight differences between the two, such as:
Section 7. Bangsamoro Government and Its Constituent Local Government Units. While they exercise the powers granted to them as provided under existing laws remain, the Parliament is specifically authorized to enact a Local Government Code for good governance. This is a slight departure from the 2014 draft which gives the parliament a sweeping power to alter, modify, or reform existing laws pertaining to LGUs.
Section 1. Seat of Government. Not found in the 2014 version is a provision, specifically Section 1 Art. VII, which spells out the power of the Bangsamoro Parliament to determine the seat of the Bangsamoro Government anywhere within the Bangsamoro territory. While not found in the earlier version, it can be said that the inclusion of this provision is only a matter of emphasis, after all, as the legislative body of the Bangsamoro it is understood that it has the power to determine the locus of its operations.
Section 3. Executive Authority. While, as in the 2014 draft, the executive functions is exercised by the Cabinet, headed by the Chief Minister, the latter however under the later version is authorized to appoint two (2), not one, deputy chief ministers, one for Southwestern Mindanao and another for Central Mindanao.
Section 4. Composition. The 2017 BBL also increases the composition of the parliament from sixty (60) as mandated in the old version to eighty (80).
Section 14. Qualifications. The 2017 BBL specifies the age and residency requirements of the youth representative and the district representative in the parliament. This distinction is not present in the 2014 BBL.
Protection of and Respect for Indigenous Peoples’ Rights. Both the 2014 and 2017 drafts vow to protect vested and inherent rights including civil and proprietary rights. Included in the guarantees are human and proprietary rights, customary rights and traditions of Indigenous Peoples (IP). Both versions also provide for a section on social justice with the intent to guarantee the protection of the rights of women and children and the youth. Also present in both is a section on education, health and sports. In my view, these provisions can still be improved, including an explicit reference to the Indigenous Peoples’ Rights Act. Otherwise, IP groups will again oppose the BBL.
Justice System. No changes were made in the 2017 BBL as regard the justice system in the Bangsamoro. Thus, identical are the provisions on Shari’ah courts, their jurisdiction, composition and compensation, the creation of the office of the Sharia’h jurisconsult in Islamic law and the creation of the Shari’ah Judicial and Bar Council and the Bangsamoro High Court including provisions on traditional or tribal justice system.
Public Safety and Order. Law enforcement and the maintenance of public safety and order shall remain under the care of the Bangsamoro Police which shall be “professional, civilian in character, regional in scope, effective and efficient in law enforcement, fair and impartial, free from partisan political control, and accountable under the law for its actions.” (Sec. 2 Art. XI)
Fiscal autonomy. Both drafts make it a binding principle to achieve economic self-sufficiency and genuine development through fiscal autonomy. There is identity on both drafts as to the establishment of the Bangsamoro Commission on Audit (BCA), its relations to the Commission on Audit, and the assistance by the central government.
However, the 2017 BBL has added two new sources of revenue for the Bangsamoro, and these are first, the share in the government revenues derived from the exploration, development, and utilization of natural resources and second, share in the Central Government taxes, fees, and charges collected in the Bangsamoro. Further the Bangsamoro parliament is allowed to enact legislation on the regulation of baitalmal, awqaf, and zakat.
The sharing arrangement in taxes of the Central Government in taxes, fees, and charges collected in the Bangsamoro, other than tariff and customs duties, remains at twenty-five (25%) percent to the Central Government; and seventy-five (75%) percent to the Bangsamoro. However, the annual block grant, which is the share of the Bangsamoro in the national revenue of the central government, was increased from Four (4%) to six (6%). Also, the provision in the 2014 BBL concerning the calling of the activation of the intergovernmental relations in times of unmanageable public sector deficit was deleted in the later draft.
The 2017 BBL provides that government revenues generated from the exploration, development and utilization of all natural resources in the Bangsamoro, inclusive of mines and minerals, shall pertain fully to the Bangsamoro Government. In the case of fossil fuels (petroleum, natural gas, and coal) and uranium, the same shall be co-managed and the revenues shared equally between the Central and Bangsamoro Governments. In contrast, the 2014 BBL provides for a different sharing arrangement of revenues between the two for non-metallic and metallic resources. As to fossil fuels, the 2017 BBL does not explicitly provide for a co-management scheme although the revenues by the government will remain to be shared equally between the two.
As regards transportation and communication, the 2017 BBL introduces a new portion which delimits the reserved, concurrent and exclusive powers of the two entities. This is not found in the 2014 BBL.
Plebiscite. Under the 2017 BBL, the conduct of the plebiscite for determining the actual jurisdiction of the Bangsamoro was extended from 90 to 120 days from the effectivity of the Basic Law. Unfortunately, the 2017 version continues to propose that the plebiscite for areas included in the core and expanded territory of the BBL should exclude their current home provinces. In my view, that is constitutionally flawed.
The BBL and federalism
The 2017 BBL is still anchored on the 1987 Constitution which allows for autonomy for Muslim Mindanao. The BBL, as envisioned by the CAB, offers the highest form of autonomy. New terms like self-governance and asymmetrical governance, controversial the last time around, are again introduced in the 2017 version. I would propose that a section on definition of terms be included to make sure that we are clear that we are in fact talking about autonomy here.
On its relationship with federalism, the Bangsamoro when created could actually be the template for a new governance system that transfers functions and powers from the center to regions. Personally, my vision of federalism is to simply create regional governments where they are feasible while retaining the system of provinces, but with greater autonomy, for islands that do not naturally belong to a region.
Alternatively, the BBL could just be a first step and a federal system composed of states with limited sovereignty would also mean that the Bangsamoro would have to evolve if indeed the Constitution is changed.
In sum, although essentially the two BBL drafts are the same particularly in respect to the structure of government sought to be established, there are some significant changes in the economic provisions specifically on the sharing arrangements of the revenues derived from the exploitation and utilization of natural resources. This notwithstanding, what is important is that both drafts recognize that the Republic retains its political sovereignty over the Bangsamoro which remains part and parcel of the Philippine territory and that the BBL is a legal document that will impart genuine autonomy to the Bangsamoro people and allow them the opportunity to achieve self-determination within the context of the Constitution.
In welcoming the new BBL last Monday, July 17, President Duterte committed to bring to existence a “Bangsamoro country.” He did not mean of course an independent state. He meant homeland or more technically an autonomous region. He would have been more politically safe if he just stopped at promising the creation of the Bangsamoro. That allows the Bangsamoro people lattitude and space to realize their dreams. The President also used the phrase “constitutionally consistent” several times to describe the BBL. That’s a code word for hard work in my view. The BBL text is just a proposal at this point; Congress must now wrestle with it and make sure that what comes out for the President’s signature and for ratification in the plebiscite is constitutionally defensible, politically acceptable, puts into a place a truly autonomous, responsive, and effective regional government, in sum one that meets the aspirations of the Bangsamoro people while respecting the rights of all other Mindanawons and especially the Lumad, and at the same time strengthening the Republic of the Philippines.
[MindaViews is the opinion section of MindaNews. Tony La Viña of Cagayan de Oro City is Executive Director of Manila Observatory, former dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, and De La Salle University College of Law. He was a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008.]