First published in the author's column in The Standard

The Ad Hoc Committee led by its brilliant and energetic chairman, Rep. Rufus Rodriguez of Cagayan de Oro City, votes this week on the draft Bangsamoro Basic Law (BBL) that will be submitted for debate and voting possibly next in the House plenary. In my last two columns, I suggested changes to ensure that indigenous peoples’ rights are respected in the law to be enacted. That is necessary so that Lumads will not join a petition against the constitutionality of the BBL, increasing the chances that the Supreme Court would invalidate such a law.

In any case, regardless of the issue of indigenous peoples’ rights, the constitutionality of the BBL will surely be questioned. And as the committee and the House votes, they must have that in mind. My fear is that is mistakes are made and the wrong BBL is enacted, the Supreme Court will not only invalidate the BBL but also include even the Comprehensive Agreement on the Bangsamoro. The latter would be so tragic and will set back peace efforts possible for decades.

I actually agree with the Peace Council led by Chief Justice Hilarion Davide: the BBL in essence is constitutional as it is simply an implementation of the relevant provisions on regional autonomy found in Article X of the 1987 Constitution. In a comprehensive and in-depth analysis my colleague Janice Lee and I undertook (published in full by the Ateneo de Davao and in installments by Mindanews) when the draft BBL was first filed, we concluded that the proposed law contained no patently unconstitutional provisions. In fact, the Bangsamoro that the BBL creates is nothing more than a strengthened Autonomous Region in Muslim Mindanao, one bestowed with the highest form of autonomy but certainly not independence nor even the qualities or powers of a sub-state. Definitely, Congress has plenary as well as specific powers to enact such a law.

Section 18, Article X of the 1987 Constitution provides the basis for the enactment of an organic act for the autonomous region created in Muslim Mindanao, thus this section provides: “The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.” The same section also provides: “The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”

The Constitution also provides that the organic act shall define: (1) the basic structure of government, consisting of the executive department and legislative assembly; (2) special courts with personal, family, and property law jurisdiction. Section 20, Article X of the Constitution provides for the powers that the said legislative assembly may exercise: “ (1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.”

As the Supreme Court has noted in the 2004 case of Disomangcop v. DPWH: “The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations . . . Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.”

Consistent with this pronouncement of the Supreme Court, the BBL must conform to, these boundaries of the 1987 Constitution. It must not create a separate state within the Philippines nor provide for powers, which are beyond what is granted to autonomous regions. As for a parliamentary system of government for the Bangsamoro, as long as it is elective and representative of the constituent political units, such a system at the regional level can pass constitutional scrutiny even under a presidential system.

While there is no doubt that the Bangsamoro autonomous region can be validly created,  a number of clarifications must be however made to the draft BBL in order to leave no space for any misinterpretation. In our paper, Lee and I suggested that Congress draft and incorporate a section in the law that would provide a definition of such key terms as “asymmetrical relationship”, “Bangsamoro”, and “exclusive powers”. These suggested definitions should not alter or diminish the rights granted to the Bangsamoro under the draft BBL, but simply aim to couch these terms in a language that will leave no room for misinterpretation as to their constitutional validity. In a position paper we submitted to the ad hoc committee of the House of Representatives, we also proposed to the revisions to certain provisions on natural resources, indigenous peoples’ rights, human rights, judicial review and the justice system in order to allay any concerns of them being beyond the fold of the Constitution.

Our study did point out legal issues related to the core territory of the Bangsamoro and the plebiscite to be conducted in those areas included. In particular, we are concerned with the provisions that allow municipalities and barangays to vote for, and become part of, the Bangsamoro without the participation of the provinces to which they belong may raise issues about governance and jurisdiction. These issues must be approached carefully so as not to violate any Constitutional provisions or Supreme Court pronouncements.

Is it possible to have a BBL that does not violate the 1987 Constitution? With extra caution and the right crafting, including making sure indigenous peoples are protected, I think it can be done.