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Experts’ forum: the evolution of autonomy, why benchmark BBL with the ARMM law and other takeaways





Last week, IAG gathered experts in a forum in Makati City and posed this question:


What is the framework of autonomy in the BBL approved by the House ad hoc committee? Is this framework a movement forward or a regression in the evolution of autonomy in southern Philippines?


The forum was a collaboration of IAG, Bangsamoro Study Group and Konrad Adenauer Stiftung.


The subject in question, House Bill 5811 or the “Basic Law of the Bangsamoro Autonomous Region”, is now awaiting its fate in the House plenary. The current form of the bill is a product of eight months of consultations, 51 public hearings, meetings, and executive sessions by the House ad hoc committee on the BBL.


Here are our top takeaways from the forum.


“So what if the BBL is a constitution? Why shouldn’t it be? It is a basic law.”


“People are spurring fears and criticisms the Bangsamoro would be a sub-state. Bavaria, a province in Germany, has a constitution and it’s not a country. Florida in the United States has a constitution and it’s not a country,” says Benedikt Seemann, country representative of the Konrad Adenauer Stiftung, a German foundation with over 50 years presence in the Philippines.


This is obviously a reaction to the critique that came out in the press – most notably, Sen. Miriam Santiago’s – that the “basic law” is a synonym for “constitutional law” and “organic law”, thus “the BBL is intended to have the same effect as the ‘constitution’ or ‘constitutional law’ of the Bangsamoro territory, in the same manner that the 1987 Constitution is supreme in the territory of the Republic of the Philippines.”


But one should also note that the earlier autonomy law, RA 6734, which established the ARMM, is an organic act.


“Having a constitution is to identify your region, your province, your federal state. It is no sign for separatism. Let’s be open and fair for the Bangsamoro to have its basic law, which could be a constitution but not a cause of worry. Giving yourself a constitution is about underlining and emphasizing your identity and it’s a good thing,” Seemann adds.


The Philippine Constitution recognizes the “otherness” and distinctness of some of its peoples. Article X constitutionalized autonomy as a political solution to demands of Muslim Mindanao and the Cordillera for self-determination.


But there’s a catch.


“In some literature, they say autonomy is an effective solution to conflict because it is a flexible solution, and you can customize the relations between the central government and the autonomous region through peaceful means of negotiations and constitutional or policy changes. In our Constitution, the details are already there so you already constrict autonomy as a flexible solution. That’s why we now have the problem whether the BBL is constitutional or unconstitutional even if you already determined that this is the right solution,” Bacani says.


A crisis of context on the BBL, Mamasapano-induced paranoia, obsession with the Constitution in the House 


Akbayan party list representative and House ad hoc committee on the BBL member Ibarra Gutierrez admits “the BBL was a very long, difficult, sometimes frustrating process.”


Besides the issue of constitutionality that he and his colleagues had to work under, Gutierrez points to the apparent lack of context as evident in how some representatives explained their votes. Gutierrez was among the 50 members of the House ad hoc committee who voted for the approval of the BBL draft adopted by the committee after a series of deliberations. Seventeen other members voted against the draft.


“If you listen to the explanations of some members of Congress who voted against the BBL, they were not talking about the substance of the law at all. They were talking about Mamasapano, they were insisting to tie the passage of BBL to some kind of resolution of Mamasapano issue like return of firearms, filing of cases by the DOJ, or ambiguous standards like MILF showing sincerity as peace partner,” Gutierrez says.


An exasperated Gutierrez points out why some constitutional issues that also apply to Republic Act 9054, the expanded ARMM law, are being raised only now and how some legislators are bent on making an issue out of the BBL provisions that were already granted in RA 9054.


“What is this? A belated review of RA 9054?” He quips.


Gutierrez also notes that there are legislators who voted yes to RA 9054, but are now questioning the same provisions copied and lifted by the BBL.


While the peace panels had already declared that the BBL will not require constitutional amendment, some legislators remain skeptical whether Article X, Section 15 of the Constitution on the creation of autonomous regions is enough basis, thus justifies the creation of the Bangsamoro.


Gutierrez says that issues of constitutionality hang heavily in the air in their deliberations on the BBL, so much so that some legislators would have wanted a reference to the Constitution in every provision of the BBL.


For instance, the asymmetric relationship between the Bangsamoro government and the central government simply means that the autonomous region will be granted greater power than an ordinary local government unit. This is a critical and definitive autonomy framework in the BBL but a concept that was very difficult to discuss in Congress, according to Gutierrez.


In the end, such definition of asymmetry was retained in the BBL, but further qualification that it will be in accordance with Article X, Section 15 of the 1987 Constitution was added. Such obsessive adherence to the Constitution affected the atmosphere of deliberations on the BBL in Congress.


To understand the BBL, we need to understand the evolution of autonomy in southern Philippines.


All attempts from the Tripoli Agreement of 1976 to the botched Memorandum of Agreement on Ancestral Domain (MOA-AD) during the Arroyo administration up to the present BBL point to autonomy as the preferred solution to the Mindanao conflict.


It is essential to know how this autonomy framework evolved over time since it was constitutionalized (in Article X of the 1987 Constitution) up until the “strengthening and expansion” of the Autonomous Region in Muslim Mindanao (ARMM) in RA 9054.


“The problem is there is no clear jurisprudence on this, because the ARMM has not really asserted itself before the Supreme Court the in terms of the limits and boundaries of its powers,” Bacani says.


The BBL talks about “asymmetric relations” as its framework of autonomy. Whether this is only to avoid using the term “associative relations” that was already declared unconstitutional by the Supreme Court in its decision on MOA-AD is now a bone of contention.


Bacani further notes that there is a wealth of development on autonomy in the Muslim region irrespective of the ongoing GPH-MILF peace process. Sadly, the Mamasapano incident blurred the big picture; the gains of the peace process are now perceived as concessions to the MILF at the expense of the Filipino nation.


What is the BBL’s framework of autonomy and what difference will it make to the lives of more than three million people in the region is a question that should hopefully sift the overwhelming noise created by the Mamasapano tragedy from the ongoing discourse in Congress.


Bacani cannot overemphasize the need to approach the BBL from an overarching perspective to consider not only the GPH-MILF peace process as the drivers of the autonomy in question, but other factors as well, such as the current ARMM law, Local Government Code, movement towards federalism and charter change.


Why benchmark the BBL with the ARMM, not just with the CAB?


The BBL’s consistency with the CAB is a legitimate issue, but one that would ultimately be determined by the MILF itself or the Third Party Monitoring Team. It’s not an issue that will be helpful at this time, according to Bacani.


Bacani notes that, indeed, the CAB is a bar, but it remains a political document at the moment.


“What is the source of rights and obligations and vested interests right now is RA 9054. It may be bad if the BBL us not consistent with the CAB, but it is worse if it less than ARMM. It does not serve the cause of autonomy as a solution to the conflict in southern Philippines.”


Another argument – that the BBL is an entirely new law and does not merit comparison with the ARMM law, is also not beneficial at this point.


“It is important to look at the policies that are already there (RA 9054) but were not implemented and ask the question why they were not implemented and whether they can now be implemented under the BBL,” Bacani says.


Lawyer Ishak Mastura of the Bangsamoro Study Group, meanwhile, urges a critical look at the violations of the CAB in the ad hoc committee’s version of the BBL. After which “we have to look at the current ARMM autonomy as a starting point of benchmarking.”


Mastura reminds us that the “passage of the BBL is not taking place in a vacuum. Standards have to be maintained, otherwise we have no way of knowing whether we are complying with CAB or getting an improved autonomy from that of the ARMM autonomy or not.”


What to watch out for as the House plenary finally deliberates on the BBL?


The quantitative approach to weigh in on the revisions the BBL incurred in the hands of the House ad hoc committee must be used sparingly because not all provisions of the BBL are created equal. A single phrase can change the entire autonomy framework, cautions Bacani.


Conflicting and contradicting provisions resulting from the many compromises because of the give-and-take nature of the peace negotiations and the BBL deliberations should also be flagged.


“Two or three conflicting provisions because of all the compromises and we will have a problem. Implementation will be paralyzed,” Bacani adds.


Mastura in his presentation that dealt on the fiscal autonomy and economic soundness of the BBL, for instance, points out that in Article XI, Section 6 of the current BBL, the national government shall continue to levy national taxes in the Bangsamoro region.


“This provision is contradictory to the devolution of taxing powers to the Bangsamoro as it allows the possibility of double taxation with regard to the national taxes supposedly devolved to the Bangsamoro, specifically, capital gains tax, donor’s tax, estate tax, and documentary stamp tax under Section 9, Article XI. Thus, these taxes are rendered inoperative or unimplementable,” Mastura who also chairs the ARMM Regional Board of Investments, says.


“The BBL as it is now in the House is less than the ARMM.”


The asymmetry preserved in the agreement is no longer in the ad hoc BBL, according to Mastura.


Among other amendments, the chief of ARMM board of investments laments that banking was reverted back to the national government as a reserved power. In comparison, “in RA 9054, banking is not a reserved power and it provides for the entry of ‘off-shore banking units’ and power over income tax of banks and other financial institutions principally doing business in the ARMM.”


Mastura argues that while the ad hoc committee retained the “block grant” provision in their version of the BBL, it cannot be a substitute to other economic provisions that should have been in the BBL in the first place to guarantee a functioning and robust fiscal autonomy for the Bangsamoro region.


Investment in the ARMM is growing and bad or weak economic provisions in the BBL once implemented may impact on it, Mastura warns.


Bangsamoro Study Group’s Naguib Sinarimbo believes that if the BBL seeks to address the Bangsamoro question, given all the amendments, it is not answering the question at all.


Sinarimbo cites the issue on territory as a concrete example: “Territory as enunciated in the Basic Law and the agreement of the parties is a way of resolving the unjust dispossession and marginalization of the Bangsamoro. If you continue to provide provisions that would not allow the Bangsamoro to be able to protect what remains a Bangsamoro area for them, then we are not answering the Bangsamoro question, we will continue to have rebellion. This would not be the last agreement that we will enter. This would not be the last conflict that we will see. There would still be Bangsamoro who will go back to the issue of dispossession and marginalization.”


The House ad hoc committee’s BBL dropped the term “territory” in favor of “geographical area”. It also limits petition for inclusion in the ratification of the basic law to contiguous “cities and provinces”, hence “municipalities, barangays, and geographical areas” can no longer be part of the Bangsamoro region. As well, it limits the expansion of the Bangsamoro from “anytime” to only two times, via a petition for inclusion to be conducted on the fifth and tenth year after its establishment.


A lawyer who once served as ARMM executive secretary, Sinarimbo has listed down all the amendments he says are violations of the CAB.


The BBL that was sent to the House plenary has at least 34 outright violations of the CAB and 17 bad amendments based on Sinarimbo’s presentation. Some of the most glaring of these violations deal with parity of esteem, deletion of Wali, deletion of the entrenchment provision, redefinition of the asymmetric relationship, and the provision for an assistant solicitor general for the Bangsamoro.


“The proposed amendments [are bound to] change the framework of the agreement of the parties on changing the status quo and of redefining the relation between the central government and the Bangsamoro to a point that the Bangsamoro has been reduced into the category of an LGU. Many of the amendments have reduced the powers of ARMM,” Sinarimbo concludes.


“4 game changers still in the BBL”


Notwithstanding the violations of the CAB pointed out by the Bangsamoro Study Group, Anna Tarhata Basman, chief legal counsel of the government peace panel, hails the passage on first reading of the BBL in the House.


Basman notes optimistically that “four game changers” are still in the draft BBL of the House. These are (1) the parliamentary form of government; (2) fiscal autonomy, particularly the block grant, Bangsamoro share in national taxes and national wealth; (3) possible expansion of territory beyond the current ARMM; and (4) devolution of powers.


Basman says there are two lingering questions at the moment: Is the House draft of the BBL consistent with the CAB? Is there a need to amend the Constitution?


Going back to the drawing board is still an option.


Ateneo School of Government Dean Antonio Laviña who served as member of the government peace panel in the previous administration reflects on “politically possible” scenarios given the challenges confronting the passage of the BBL in the House and Senate, but he stresses that the idea must always be “highest autonomy”.


This could also mean going back to the drawing board.


“If we did not comply with the CAB, we have to go back to the political process and figure out what would be the next step to try to come to compliance. The important thing is you are moving towards the goal of full autonomy and self-determination. You do not have to get it all at the same time,” Laviña adds.


Laviña urges us to think that if the BBL does not work, the alternative is not so bad, and might actually be even better from the implementation point of view.


“Assuming that the peace process is strong enough to withstand a one year extension of the deadline, and the military forces from both sides already committed to the peace process after Mamasapano, we’re probably better off taking our time and really getting this right than having to push a law that is worse than what we have now,” he says.


Laviña also believes “that a BBL that is owned by the next president is much better that the BBL owned by this President (Aquino). Ownership is important because of the transition. If the transition does not have the support of the president, it will not work.”


And President Aquino whom much of the progress of the peace talks is credited to because of his political capital will be gone by June next year.


For former representative and House deputy speaker Gerry Salapuddin, the solution to the Bangsamoro question is even simpler: “Amend RA 9054, incorporate the pertinent and applicable provisions of the Tripoli Agreement, the Final Peace Agreement (FPA), the CAB, and the relevant provisions of the draft BBL.”


Salapuddin is the principal author of RA 9054.


“If the measure suggested will be approved and put in place, there will be no issue of unconstitutionality because RA 9054 has already passed such test. In the enforcement of this measure, it ascertains inclusivity, which means the MILF and the MNLF can actually claim ownership of the measure thereby fostering and forging unity among them and their respective constituents,” he explains.


Salapuddin clarifies though that he has no objection to the BBL. But in essence, it must be a law that enriches and strengthens RA 9054, he says.


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