BBL will create 'sub-state' with 'equal strength' to national government - ex-UP Law Dean Magallona

From InterAksyon (Apr 18): BBL will create 'sub-state' with 'equal strength' to national government - ex-UP Law Dean Magallona



Former UP Law dean Merlin Magallona at a hearing of the House ad hoc committee on the BBL (photo from Office of the Presidential Adviser on the Peace Process - http://www.opapp.gov.ph/)

The proposed Bangsamoro Basic Law will create not just a new autonomous homeland but a "sub-state" with "equal strength" to the national government, a noted law expert warned ahead of Congress’ resumption of deliberations on the measure next week.

The BBL, borne out of the peace agreement signed by the government and the Moro Islamic Liberation Front last year, seeks "to establish the new Bangsamoro political entity and provide for its basic structure of government, in recognition of the aspirations of the Bangsamoro people."  

"If you go to the BBL, you might have the impression that what's being created is a political system of equal strength as the national government, with all the powers of the national government being divided," Merlin Magallona, former dean of the University of the Philippines College of Law, told a forum Thursday.

He pointed out that the 57 areas to be covered by the Bangsamoro region, including the provinces and cities under the current Autonomous Region in Muslim Mindanao that it will replace, would be given separate powers, "creating a system disconnected with the political system of the Philippines."

'Splitting' of powers

"Practically, in all areas of governance, there is splitting of powers despite the provision in the Constitution that says that powers shall reside under the national government," Magallona said.

These “reserved, concurrent and exclusive powers” that Magallona said would be granted to the Bangsamoro autonomous government might run counter to the Charter.

This would make the new homeland to be created by the proposed law would be little different from the "associative state" - the Bangsamoro Juridical Entity - that the Memorandum of Agreement on Ancestral Domain, which the Supreme Court declared unconstitutional in 2008, sought to create.

In the BBL, Article 5 (Powers of Government) defines the reserved, concurrent and exclusive powers sought for the new entity.

Reserved powers are matters over which authority and jurisdiction are exercised by the national government. Only the national government can exercise power or authority over national defense and security, foreign relations, monetary policy, and customs and tariffs among others. 

Concurrent powers refer to the powers shared by the national and the Bangsamoro governments. In the exercise of these concurrent powers, the concerned ministries of the Bangsamoro government are required to cooperate and coordinate with the national government. 

Exclusive powers are matters over which authority and jurisdiction pertain to the Bangsamoro government. All issues that may result in a dispute between the national and Bangsamoro governments, or may arise from the exercise of powers enumerated in Article 5, shall be resolved by an intergovernmental relations mechanism. Unresolved issues shall be elevated to the President through the Chief Minister.

'Demonized'

In a prepared statement at a Senate hearing in January, Miriam Coronel Ferrer, chairperson of the government peace negotiating panel, lamented that the word sub-state "has been unjustly demonized."

"This, when in fact a sub-state can only mean being a subdivision of  and therefore a part of the state  in the  subnational sense, in the same way that a subset -- as we learned from grade school math -- can only mean being part of a bigger set," Ferrer said.     

Ferrer said there are sub-states that exist as territorial autonomies such as China’s Hong Kong, Macau and Tibet; Finland’s Swedish-speaking Aland; and Indonesia’s Aceh, West Papua and Yogyakarta. 

"Territorial autonomies -- a genre that is applicable to our case on hand, are here distinguished from federal states and, obviously, independent states," she said as she stressed that "independence was never on the negotiating agenda of the government." 

Ferrer assured that "the whole idea of negotiation was precisely to keep the country intact."  

"Any notion of a sub-state can only mean a set up within the Philippine state and under the current Philippine Constitution," she added.  

http://www.interaksyon.com/article/109029/bbl-will-create-sub-state-with-equal-strength-to-national-government---ex-up-law-dean-magallona