Introduction

 

At the opening of the second regular session of the 16^th Congress, the leadership of both the Senate and the House of Representatives declared the Bangsamoro Basic Law (BBL) as one of the top priority measures in their legislative agenda. The passage of the BBL is considered to be a crucial step in the country’s pursuit of a just and lasting peace in the southern Philippines as it will operationalize the Framework Agreement on the Bangsamoro (FAB) and its Annexes entered into between the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) on October 15, 2012. The BBL will pave the way for the creation of the Bangsamoro political entity, replacing the current Autonomous Region in Muslim Mindanao (ARMM).

 

However, the deliberations on the bill suffered a setback in the aftermath of the Mamasapano tragedy.[1] The said incident opened the floodgates for a heated debate and inflicted a wide chasm of division not only among the country’s legislators but among the general Filipino populace as well. The incident eroded the public trust in the peace process aggravated in part by some misinformation and half-truths regarding the contents and objectives of the proposed BBL that are being propagated in both traditional and social media.

 

It is within this backdrop that the Institute for Autonomy and Governance (IAG) in coordination with the Local Government Development Foundation (LOGODEF) and the Senate Economic Planning Office (SEPO) decided to hold a forum last April 13-14, 2015 at the Sofitel Hotel, Manila. The forum, which took an academic approach, sought to discuss the important constitutional, legal and policy issues surrounding the proposed BBL and lay down options that may address the arguments for and against it.

 

The two-day forum brought together the legislative staff of the Senators, committee secretaries, officers and technical staff of the Senate Secretariat as well as representatives from the Congressional Planning and Budget Research Dept (CPBRD).   Attendees listened to a series of presentations by a distinguished set of resource persons who tackled the following aspects of the proposed measure: (1) political autonomy; (2) fiscal autonomy; (3) public order and security; and (4) constitutional commissions.

 

Senator Bongbong Marcos, chairman of the Senate Committee on Local Government and Urban Development which is the primary committee hearing the proposed BBL, likewise provided his valuable insights on the proposed law while IAG Executive Director Atty. Benedicto Bacani and LOGODEF head Prof. Edmund Tayao served as the forum moderators. Prepared by the Senate Economic Planning Office (SEPO), this policy report documents the proceedings and provides the highlights of the discussions during the said event.

 

DAY ONE

 

Prof. Tayao opened the forum with his welcome remarks. He started by stating that the absence of peace in Mindanao will result in an absence of peace in the country. The problem of recognition and development in Mindanao is a problem of recognition and development in the country. The problem of security in Mindanao is a problem of security in the country. This should have been the premise before taking any position on the proposed BBL. In fact, peace in Mindanao is an opportunity for the whole country to attain peace in the Southern part of Mindanao that many simply do not realize-- and this is explained by ignorance, apathy and even indifference.

 

Understanding autonomy is fundamental in a democracy for two reasons. One is essentially for recognition. Autonomy is a question of membership, of being recognized as a member; because it is a question of membership, it is a question of participation, of taking significant part in the political and therefore including economic process of the country. If we make sense of these, we can say it is essentially a question of one’s stake of one’s sense of being a stakeholder. Sequentially, autonomy is a question of entitlement.

 

He further explained that the issue of recognition is important especially for a country like the Philippines that is characterized by diversity. Nobleza-Lande in 1971 explains why we speak good English compared to our neighbors, and this is mainly because it was the language that became commonly used during the time of the American occupation absent an indigenous tongue that is used by everyone in the archipelago. And this was made official in the debate as to what is the national language when the 1935 Constitution was being drafted. The Philippines have more than 80 ethno-linguistic groups that there had to be a language that is acceptable and will be used by the majority noting especially that not one of the major linguistic groups then, namely the Tagalogs and the Visayans wanted to accept an indigenous language. The significance of multiple linguistic groups is that it explains the kind of State the Philippines is. And there had been many studies undertaken in this case for us to even debate now. Ultimately, autonomy has become popular to many new democracies, starting with the third wave of massive democratization that started in the late 70s and highlighted by the 1986 Edsa Revolution. The third wave of democratization has led many to consider a way to maintain unity in a diverse state like the Philippines, and this is to consider autonomy seriously.

 

According to Prof. Tayao, autonomy can be better understood by the second reason, which is public administration. This has been essential especially in large states where coordination between numerous political jurisdictions have to be ensured and allowing each political entity to be able to provide basic services and address issues that are unique to them. This has been the principle of subsidiarity where those functions, that is, policy making and functions are best undertaken at the sub-national level, has become integral to political and legal principles in many established democracies.

 

Furthermore, Prof. Tayao expounded that the idea of asymmetry like the idea of autonomy is not something new and should not be considered unusual. Again, based on the two reasons we cited explaining why autonomy is significant to democracy, the idea is to allow more leeway to sub-national governments. The main objective is to maintain unity in an environment of diversity. Asymmetry is not akin to independence, but a concrete means of recognition and public administration. This has been the strategy of the establishment of 17 autonomous communities in Spain without calling it a federal structure therefore skirting the difficult principle of share sovereignty and even that of the United States in accommodating the inclusion of territories that were originally under Spain and France. Asymmetry simply means a provision for sub-national governments to structure their political and public administration systems differently from what is done at the central or national level.

 

With these concepts in mind, Prof. Tayao encouraged the participants to learn from the discussions of the distinguished panel of resource persons for the two-day forum and broaden their perspectives in analyzing the different provisions in the BBL. Finally, Prof. Tayao welcomed the participants and greeted them a fruitful day ahead.

 

Proposed BBL: History and Context

 

Dean Bacani gave a short presentation on the history, context and role of the BBL in the Mindanao peace process. He pointed out that the passage of the BBL is a crucial but not the sole factor in the peace roadmap. Equally important is the normalization track which will be undertaken parallel to the establishment of the Bangsamoro government. The normalization process has three main components- security, socioeconomic development, and transitional justice and reconciliation- which will be done in phases to enable communities affected by the decades-long fighting to return to their peaceful and productive lives. However, the slow progress in the political track will not help in moving forward the normalization process as fast as expected. The security aspect which involves the decommissioning not only of the rebel weapons but also those of private armed groups and other lawless elements, is particularly challenging and whether it will be complied with faithfully as was drawn in the roadmap remains a question.

 

Dean Bacani then showed how the peace process and the arduous struggle for autonomy evolved since the 1976 Tripoli Agreement, when the quest for independence was effectively abandoned by the Moro National Liberation Front (MNLF) in exchange for greater autonomy. The MNLF accused President Marcos of breaching the said accord when instead of establishing a provisional government and holding more discussions as agreed upon by both parties, he issued Proclamation 1628-A which created two autonomous regions, one in Western Mindanao (Region 9) and another in Central Mindanao (Region 12). When the 1987 Constitution of the Philippines was crafted, it provided for the creation of autonomous regions, in Cordillera and in Muslim Mindanao. Congress then passed a law, RA 6734 or the Organic Act creating the ARMM. This was rejected by the MNLF as it was purportedly against “the letter and spirit” of the 1976 Tripoli Agreement. After the plebscite, only four provinces (Maguindanao, Lanao del Sur, Sulu and Tawi-Tawi) out of the 13 that were identified in the 1976 Tripoli Agreement opted for autonomy.

 

In 1992, the Ramos administration decided to revive the peace process with the MNLF, and this culminated in the signing of the Final Peace Agreement (FPA) in 1996. Part of the said agreement was the creation of a Special Zone of Peace and Developmet (SZOPAD) where most of the peace and development efforts will be poured into. A transitory body, the Southern Philippines Council for Peace and Development (SPCPD) was supposed to take charge of the promotion, monitoring, coordination and implementation of the peace and development projects in the SZOPAD as provided for in the 1996 FPA. However the SPCPD turned out to be “toothless”, devoid of any authority and adequate funding from the central government. In addition, MNLF Chair Nur Misuari who was then the ARMM governor was also appointed as the chair of the SPCPD. This, Dean Bacani said, was one of the biggest mistakes of Misuari as he became hostage to the day-to-day affairs of the bureaucracy and lost focus on the crucial task of reconfiguring the intergovernmental relations between the national government and the ARMM.

 

In 2001, Congress passed a law which amended the first Organic Act of the ARMM. RA 9054 aims to strengthen ARMM’s authority and expand its territory. The MNLF strongly objected to the amendment, arguing that it is another unilateral act of the central government on the Moro people. In the subsequent plebiscite, Basilan and Marawi City (in Lanao del Sur) opted to join the ARMM.

 

Meanwhile, the government also initiated peace talks with the Moro Islamic Liberation Front (MILF), a splinter group of the MNLF which held on to their separatist and religious agenda and continued the armed struggle leading up to the current peace negotiations. In 2008, the Arroyo government and the MILF entered into the Memorandum of Agreement on the Ancestral Domain (MOA-AD) with the MILF but it was later on declared unconstitutional by the Supreme Court. Six years after, the Comprehensive Agreement on the Bangsamoro(CAB), the final peace agreement between the MILF and the Philippine government was signed by both parties. The Bangsamoro Basic Law which the Congress is currently debating on will define the relations of the Bangsamoro government and the Central government.

 

Dean Bacani then went on to explain why the ARMM has been labeled as a “failed experiment”. ARMM has had limited success in living up to its promises because it had a flawed devolution and lacked fiscal autonomy. More power, and not only personnel, should have been devolved by the central government to the ARMM, and the regional government to the provincial governors. Inadequate resources likewise hampered the efforts of the regional government and the LGUs to provide responsive social basic services to the community. As a result, the ARMM did not become a mechanism for self-determination but a vehicle for co-optation.

 

The proposed BBL targets to address these gaps, however, it will have to wade through many challenges as the task of translating the peace agreement to public policies is not easy. There will be a “clash of symbols” in the public policy arena as the BBL is a “sui generis” legislation. Its constitutionality, legality, workability and acceptability will certainly be questioned. Nonetheless, a principled and informed acceptance of the peace roadmap and an active citizen’s engagement and public participation in the crafting of the law will help move the BBL forward.

 

PANEL DISCUSSIONS 1: POLITICAL AUTONOMY

 

Judge Soliman M. Santos, Jr. who is presently the presiding judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, Camarines Sur and Atty. Janice Lee of the Ateneo School of Government (ASOG) served as the resource persons on the panel discussion on political autonomy.

 

Context, Constitutional and Legal Issues

 

Judge Santos began his presentation by saying that a holistic perspective should be taken in understanding the nature of the Bangsamoro problem. The conflict, he said should be seen through broad lenses--historical, political, cultural, economic, ideological, legal, and religious, etc. In deliberating the BBL, Congress should therefore go beyond the measure’s substantive content and consider its context and role in the peace process. More than its constitutionality, legislators should ensure that the version it will pass will be faithful to the intent, spirit and substance of the agreement drawn up by the government and MILF negotiators.

 

Judge Santos then went on to discuss a number of Supreme Court decisions that may be relevant to the BBL. For instance, in Kida vs. Senate (G.R. No. 196271, October 18, 2011), the Supreme Court upheld the constitutionality of RA 10153 which mandated the postponement of the ARMM elections and allowed the presidential appointment of officers-in-charge of its regional government., The decision clarified the reserved powers of the National Government vis-à-vis the enumerated powers of the autonomous regions under Section 20 Article X of the 1987 Constitution. The SC pointed out that the reinstatement of the earlier removed Section 17 of Article X (“All powers, functions and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government”) was made by the framers in order to “make it clear, once and for all, that these are the limits of the powers of the autonomous government.” It then makes the pronouncement that ‘the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. [2]

 

The Kida Decision also showed that “from the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled ‘Local Government.’ Autonomous regions are established and discussed under Sections 15 to 21 of this Article – the article wholly devoted to Local Government…. the ARMM is a local government unit just like provinces, cities, municipalities, and barangays…”

 

This may seem in conflict with the provision in the proposed BBL which speaks of the Bangsamoro as “distinct from other regions and other governments” in the context of providing for the “asymmetric relationship” between the national government and the Bangsamoro government. However, there is actually an existing jurisprudence on what asymmetrical relationship means. In the case of the League of Provinces of the Philippines vs. the Department of Environment and National Resources (G.R. No. 175368, April 11, 2013), the Supreme Court, through Justice Leonen’s concurring opinion, declared:

 

“Autonomous regions are granted more powers and less intervention from the national government than territorial and political subdivisions. They are, thus, in a more asymmetrical relationship with the national government as compared to other local governments or any regional formation. The Constitution grants them legislative powers over some matters, e.g. natural resources, personal, family and property relations, economic and tourism development, educational policies, that are usually under the control of the national government. However, they are still subject to the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines.”

 

Judge Santos clarified that the “asymmetrical relationship” under the BBL should be distinguished from the “associative relationship” under the aborted 2008 MOA-AD. In the Province of North Cotabato, et.al. v. the Government of the Republic of the Philippines Peace Panel on Ancestral Domain, et.al, (G.R.No. 183591, October 14, 2008), the Philippine Supreme Court ruled that “the concept of association is notrecognized under the present Constitution”.

 

In Basco vs. Phil. Amusement and Gaming Corporation (G.R. No. 91649, May 14, 1991) the Supreme Court stated that “[i]n a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of a sovereign nation, it cannot be an imperium in imperio (an empire within an empire).”

 

In the proposed BBL, particularly under Section 3 Article V, there is an enumeration of the “exclusive powers” of the Bangsamoro government. Judge Santos recommends that “exclusive powers” be reformulated to “primary powers” as there is no such concept within a unitary system of government. Another option is to have a clear definition of the term “exclusive powers”.  

 

As to the contention that the ARMM being a constitutionally created body cannot be abolished without amending the Charter, Judge Santos reasoned that the BBL as an organic act that will govern the new autonomous political entity would only repeal the previous organic acts (RA 9054 and RA 6734) and not Article 10, Sections 15 and 18 of the Constitution.

 

Legal Evaluation of Key BBL Provisions: Options and Prospects

 

In her evaluation of the draft BBL together with Ateneo School of Law Dean Antonio La Viña, Atty. Janice Lee of the Ateneo School of Government came to a conclusion that the proposed measure has no patently unconstitutional provisions. She cited that Article X, Sections 18 and 20 of the 1987 Constitution provide the constitutional justification for the BBL. Section 18 offers the basis for the enactment of an organic act for the creation of an autonomous region in Muslim Mindanao while Section 20 confers it with legislative powers over matters such as administrative organization, creation of sources of revenue, ancestral domain and natural resources, regional planning, economic and social development, and preservation of the cultural heritage, among others.

 

The draft BBL will also not create a separate independent state. The Montevideo Convention on Statehood of 1933 sets out several requirements for statehood. These are: 1) a permanent population; 2) a defined territory; 3) government; and 4) capacity to enter into relations with other states. While the Bangsamoro government that will be established will satisfy the first three elements, it will not have the capacity to enter into relations with other states. Foreign policy will remain a reserved power of the national government.

 

Under Article V of the draft BBL, the national government will have reserved powers, while the Bangsamoro government will have its “exclusive” or devolved powers. There will likewise be concurrent or shared powers between the two. Any issue on power-sharing that may arise will be resolved by an intergovernmental relations body.

 

With regard to the asymmetric relationship between the national government and the Bangsamoro government, Atty. Lee pointed out that the term “asymmetric relationship” is actually more of a political rather than a legal term. It does not imply dismemberment of a state; it simply refers to the relationship between the national government and the Bangsamoro government as an autonomous region.

 

The parliamentary form of the Bangsamoro government is likewise in consonance with Section 18 Article X of the Constitution which states that “the organic act shall define the basic structure of government [for the region”. The only Constitutional limitation in the same section states that the structure of government must consist “of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.”

 

According to Atty. Lee, while the draft BBL is not violative of the 1987 Constitution, there are some provisions that can still be made clearer and more precise to avoid confusion or misinterpretation.

 

For instance, there may be a need to add a section that will provide a definition of important terms such as “asymmetric relationship”, “Bangsamoro”, “exclusive powers”, “parity of esteem”, “wali” and “indigenous people.” .

 

One potential source of misunderstanding could arise from the natural resources sharing provision between the National Government and the Bangsamoro Government contained in Section 8, Article XIII of the BBL where the latter “shall have the authority, power, and right to explore, develop and utilize the natural resources, including surface and sub-surface rights, inland waters, coastal waters, and renewable and non-renewable resources in the Bangsamoro”. This appears to be contrary to Section 2 Article XII of the Philippine Constitution reserving such right to the full control and supervision of the State. To harmonize these otherwise conflicting provisions, Atty. Lee suggested the addition of the phrase “without prejudice to the exercise of full control and supervision by the Central Government of such exploration, development and utilization.”

 

Another amendment that can be made is on the Bangsamoro justice system. Article X Section 7 of the draft BBL provides that “the decisions of the Shari’ah High Court shall be final and executory”. To avoid any conflict, it will be helpful to add a phrase stating that the Supreme Court will have the power of judicial review, as set forth in the Constitution.

 

Atty. Lee also proposed an additional section reflecting guiding principles which reiterate, among others, the nature of the Bangsamoro which shall remain an integral and inseparable part of the national territory of the Republic of the Philippines while its people shall uphold the Constitution as the fundamental law of the land and unequivocally owe allegiance and fidelity to the Republic of the Philippines.

 

Open Forum

 

In consideration of Judge Santos’ reference to Justice Leonen’s concurring opinion in the case of the League of Provinces of the Philippines vs Department of Environment and Natural Resources, a participant asked whether the same Supreme Court decision is related with the proposed powers under the BBL granting Bangsamoro the power to create legislative districts within the region. To this, Judge Santos said that Leonen’s opinion was just a concurring opinion of the said jurisprudence.  

 

It was raised that the exclusive powers for the Bangsamoro under the proposed BBL includes expropriation. Ironically, an expropriation law has yet to be crafted by Congress. According to Santos and Lee, the word “exclusive” may not be appropriate because the exercise of power by the Bangsamoro government granted under the BBL is still covered by national laws.

 

Given the debate on the proposed exclusive powers, a participant asked whether a categorization of the alluded powers is really needed in the BBL. In reply, Judge Santos said that the BBL is merely an implementation of a political agreement enshrined in the Comprehensive Agreement on the Bangsamoro (CAB). However, the categories of concurring, reserved, and exclusive powers manifest a federal form of government which, according to Santos, is way beyond the framework of the Philippine Constitution under the current unitary form of government. He then suggested accepting the definition of intergovernmental relations between the Bangsamoro and the LGUs prescribed under R.A. 9054. Should the BBL pass, he stressed that the provision could be amended through a constitutional amendment in the future.

 

The panelists were also asked to make an opinion on the idea of holding national plebiscites instead of just a local plebiscite. Judge Santos said that national plebiscites will defeat the very purpose of the BBL which is autonomy and self-determination.

 

Dean Bacani opined that, ideally, a constitutional court should be created or assigned to look into the legalities of the BBL and scrutinize the content and substance and other conflicting ideas relative to the Constitution.

 

Several definitions in the BBL were recommended for revisions. Relative thereto, Atty. Anwar Malang of the ARMM-DILG opined that definitions have been provided in the proposed BBL draft. He said that definitions provided therein need no deeper understanding as it has been made simple and understandable.   With respect to questions on the validity of plebiscites and the MILF leadership, Malang said that other non-MILF members are also entitled to run and be elected for a position in the Bangsamoro. As for the other provisions, he mentioned that some unclear directives in the BBL can be amended in the future.

 

Conversation with Senator Ferdinand “Bongbong” Marcos Jr.

 

Senator Ferdinand “Bongbong” Marcos Jr., Chairman of the Senate Committee on Local Government, was invited to shed light on the status and recent developments on the proposed BBL.

 

According to the Senator, it is unfortunate that the more substantive discussion on the content of the BBL is being sidelined by some peripheral matters, the most recent of which is the use of aliases of MILF Chief Negotiator Mohagher Iqbal. He said that while it may seem to be trivial to some, it raises questions on the validity of the peace agreement the MILF signed with the government and may have legal implication especially once the Bangsamoro Transition Commission starts dispensing its budget as part of the peace agreement. More importantly, the issue puts into question the good faith of the MILF as the government’s peace partner. He said that this is crucial because “it goes straight through the emotions of ordinary Filipinos and their support is absolutely necessary”.

 

Aside from the political fallout, the BBL is also facing constitutional challenges. In the hearings conducted by the Committee on Constitutional Amendments and Revision of Laws chaired by Sen. Miriam Defensor-Santiago, legal experts raised that under the BBL, the Bangsamoro government will have its own territorial domain, population, functional government and recognition by other countries which are all attributes of a state, according to the Montevideo Convention. He recalled the statement of the MILF that they should not be negotiating with anyone else because they have already negotiated with the President. The Senator said that with this assertion, the MILF seems to liken itself to a sovereign entering an international treaty.

 

Another concern raised is whether Congress has the power and authority to actually pass a law that will dissolve a constitutionally created entity such as the ARMM. The asymmetric relationship of the national government and the Bangsamoro government under the BBL will also have to be explained more clearly. He is particularly concerned with who will be in control of the police forces in the Bangsamoro territory and how the intergovernmental relations body will work especially in cases such as the one in Mamasapano. There are also administrative issues particularly those relating to the annexation of local governments to the Bangsamoro that are not contiguous to the proposed territory, as well as in the sharing of the national wealth. He also relayed that in the public hearings conducted in the south, one of the apprehensions is the displacement of ARMM government employees once it is replaced by the Bangsamoro government.

 

Senator Marcos urged the Executive and the public not to rush the passage of the bill. The Executive has set June 30, 2015 as the deadline for the passage of the BBL to allow enough time for transition and for the election of the Bangsamoro government officials to be held together with the 2016 national and local elections.

“Why are we trying to hurry something that is so important, so intricate and so complex?", he asked. Senator Marcos stressed that the BBL is a very important law and that discussions should not stop unless it has achieved the form that will work towards true and lasting peace in Mindanao. Putting a timetable or a deadline for its passage will prevent a methodical and thorough study of it by the Congress. He said that it is important for Congress to be meticulous especially because it will institutionalize a new regional government that has many unique features that have not yet been seen in any of the previous treaties or agreements. It did not help that the draft BBL lacked many details and that it was left to the legislators to work them out.

 

What is also clear, he said is that the BBL is not the magic potion that will finish the problems that Mindanao has had for hundreds of years. It has to be accompanied by many other initiatives and interventions. He identified the 1976 Tripoli agreement which was initiated by his father as the only successful peace treaty because it brought peace and massive development of infrastructure and services in Mindanao.

 

In so far as the status of the proposal, the Senator said that he has decided not to introduce a substitute bill and instead bring the BBL in its form to the plenary and introduce the committee and individual amendments. The findings of the Senate Committee on Constitutional Amendments and Revision of Laws chaired by Sen. Miriam Defensor-Santiago and the Committee on Peace and Unification chaired by Sen. Teofisto Guingona III will be considered in the introduction of the committee amendments.

 

Open Forum

 

Senator Marcos was asked of his opinion on the proposal to simply amend the Organic Act which created the ARMM and strengthen its powers based on the proposals in the BBL instead of passing an entirely new organic law. He answered that he actually supports it as it will preserve the gains of the previous accords, however, the proposal was already rejected by the Executive.

 

A participant asked if in the context of evolving autonomy, Congress intends to pass an “improved” BBL. Senator Marcos answered that Congress recognizes that the entire discourse on the BBL is self-determination and in many cases, the version of the bill that the legislature passes is animprovementover its earlierforms.

 

On whether the BBL should be subjected to a national or regional plebiscite, his personal view is for it to be a national plebiscite because every constituency in the country will be affected. However, he wants the debate to go on so that issues will be clarified further. He admitted though that in the present climate, the BBL will likely be rejected if the plebiscite will be conducted nationwide. He said that Mindanaoans themselves are polarized over the measure.

 

Asked if the government has a plan B in case the BBL is not passed and whether there is a probability that the next administration will sideline or not include it as priority legislation, the Senator replied that the next President would be delinquent of his duties if he ignores the continuing conflict and underdevelopment in Mindanao. The next administration, therefore, cannot afford to simply forget about the BBL.

 

A participant asked if it is possible to proceed with the transition process already while the government is still working on the best version of the BBL. Senator Marcos replied that they are actually proposing to change the process so that the transition of government can already begin, however, the system that the transitional body will be using, its legal standing, and its powers is still unclear. Congress will still have to pass a law for the transitional government. The bigger challenge to transition though is the hard deadline set to pass the BBL by June this year. According to the Senator, if that deadline is removed, the BBL will be much easier to deal with.

 

When asked of his view on the provision in the BBL which allows the areas contiguous and outside the core territory to opt at any time to be part of the Bangsamoro upon petition of at least ten percent (10%) of the registered voters and approved by a majority of qualified votes cast in a plebiscite, Senator Marcos confirmed that it is indeed a concern, and the immediate question that follows is why an “opt out” provision is not included. He said that the provision will make the Bangsamoro territory indefinite, and would result in administrative problems, particularly in the preparation of development plans.

 

PANEL DISCUSSION 2: FISCAL AUTONOMY

 

The panel discussion on fiscal autonomy had Atty. Naguib Sinarimbo, former Executive Secretary of the ARMM and Atty. Lynn Barcenas of the Ateneo School of Government as resource persons.

 

Fiscal autonmy: Context and status in the ARMM      

     

Atty. Sinarimbo presented the status of governance in the ARMM government, particularly the fiscal challenges it is facing. According to him, genuine fiscal autonomy did not accompany the creation of theARMM. It came with a lot of restraints, the taxing powers granted are limited, the budget priorities are decided by Congress and not by the regional government and there are no clear lines of accountability. He noted that the government failed to give special funds for the ARMM and the transitory bodies, it relied wholly on donor-assisted projects, and provided regular appropriations to the ARMM that were only sufficient for personnel salaries. He referred to the study made by Prof. Emilia Boncodin under INCITEGov[3] which concluded that the fiscal autonomy given to ARMM is not viable.

 

Atty. Sinarimbo also presented data to support his claims. For instance, the ARMM received a budget of Php20.5 billion in 2014, lower than what other nearby regions (Regions 9, 10, 11, 12, and 13) received that same year.[4]

 

The features of the BBL on fiscal autonomy vis-à-vis RA 9054 were then presented. Currently, theARMM receiveson a yearly basis a lump sum budget from the national government. The budget is appropriated by the Congress while the Autonomous Regional Government (ARG) and national agencies are in charge of the execution of the programs. Under the BBL, an annual block grant of 4% of the share of the national government in the total internal revenue allotment (IRA) will be given to the Bangsamoro government. Atty. Sinarimbo pointed out that the 4% block grant is comparable to the annual budget given to the ARMM under RA 9054. However, it will have “no lien” or hold back provision. The grant will be automatically appropriated and regularly released to the Bangsamoro government by the national government.

 

In addition to the taxing powers provided to the ARMM under RA 9054 and other legislations and issuances, the Bangsamoro government will also be allowed to collect capital gains tax, documentary stamp tax, donors tax, and estate tax. The revenue data over the years will show that revenue loss on the part of the national government will likely be minimal. In 2013, the national government was only able to collect an amount of PhP9.5 million from the ARMM for the collection of the said taxes. Four years after the full operation of the Bangsamoro government, revenues collected by the Bangsamoro from them as well as the shares in government income from natural resources will be deducted from the annual block grants.

 

On its first year, the total support for the Bangsamoro is estimated at around PhP35 billion- PhP27 billion for the block grant which will be complemented by a PhP7 billion special development fund and a PhP1 billion transition fund. Earlier media reports estimating the cost at PhP75 billion appear to be inaccurate.

 

Fiscal autonomy: issues, options and prospects

 

Atty. Barcena’s presentation largely focused on the proposed formula for the initial block grant for the Bangsamoro. She cited as main consideration the FAB Annex on Revenue Generation and Wealth Sharing which provides that the “block grant shall be based on a formula provided in the Bangsamoro Basic Law (BBL) which in no case shall be less than the last budget received by the ARMM (Autonomous Region in Muslim Mindanao) immediately before the establishment of the Bangsamoro Transition Authority.” The annex further stated that “the basic law shall also provide a system of automatic appropriation for and regular release of the block grant” and that the formula “shall be subject to review by the Central Government and the Bangsamoro Government after ten years, on the basis of need and actual revenues generated.”

 

Atty. Barcenas shared that her study explored three scenarios to come up with an alternative formula for the initial block grant. Alternative 1 utilized the 2013 total collection of the Bureau of Internal Revenue and the Bureau of Customs as the base for the 4% block grant minus the proportionate budget of national agencies given to the ARMM. In this scenario, the grant will amount to a total of PhP37.6 billion. Under Alternative 2, the study considered the population in the ARMM and the average per capita shares of the CAR, CARAGA and ARMM regions in the 2014 budget. The grant is estimated at PhP55.5 billion. The last formula considered the proportion of the national budget to the ARMM population less the share in NG agencies exercising “reserved powers” as per the Comprehensive Agreement on the Bangsamoro(CAB). This alternative yielded a P76.4 billion block grant, the highest estimate among the three alternative formulas.

 

Open forum

 

During the open forum, a question on the basis of the 4% annual block grant that will be given to the Bangsamoro government was raised whether it has a comprehensive plan that will identify what programs will be implemented in order to justify the allocation of such an amount. Likewise, the issue of institutional capacity was also raised as a concern.

 

Atty. Sinarimbo responded that the Comprehensive Bangsamoro Plan is not yet done but the Bangsamoro Development Authority is currently working on it. On the question about the basis of the block grant, Atty. Barcenas, pointed out that it shall not be less than the budget presently received by the ARMM. For instance, in 2015, the ARMM budget amounted to PhP24.3 billion while the computation of 4% block grant using 2013 internal revenue collection amounted to PhP26.8 billion, hence, there is no much difference in the amount.

 

The next question pointed out the equity consideration in giving out the block grant. Since the 4% block grant will be taken out from the total internal revenue collection of the national government, it raises a concern of national interest since the national government will be reduced. Are there mechanisms to ensure fiscal responsibility and accountability? With the provision of automatic appropriation just like the IRA, there is a tendency of sub-national governments to depend on transfers from the national government. How can we ensure that the national government is not subsidizing underperformance?

 

DILG Secretary of the ARMM Atty. Anwar Malang commented that the 4% block grant actually is not enough with all that has happened to the Moros based on history. That is why under the proposed BBL, the right to self-determination is invoked. Though other Filipinos might find that Moros have special treatment from the Philippine government, it is because they have been neglected since time immemorial.

 

DAY TWO

 

PANEL DISCUSSION 3: PUBLIC ORDER AND SECURITY

 

Prof. Tayao facilitated the discussion with the panel of distinguished experts in the field of public order and security. Human Rights Victims’ Claims Board Chair Lina Sarmiento and President of the Philippine Public Safety College (PPSC) retired Police Deputy Director General Ricardo de Leon, who were members of the Independent Commission on Policing, presented the Independent Commission on Policing Report. ARMM DILG Secretary Atty. Malang presented the Context and Issues while Atty. Jess Doque IV of the GPH Technical Working Group on Normalization presented the Options and Prospects.

 

Independent Commission on Policing

 

Chair Sarmiento opened her presentation by stating that the Independent Commission on Policing (ICP) was established pursuant to the Framework Agreement on the Bangsamoro (FAB) with its terms of reference specifically outlined therein. The ICP was composed of seven members chaired by Royal Canadian Mounted Police Deputy Commissioner Rondell Beck. Chair Sarmiento represented the GPH panel together with retired Police Deputy Director General de Leon as the designated local expert for the GPH along with an international expert for the GPH in the person of Mr. Cedric Netto, who is a very experienced former member of the Australian Federal Police. For the MILF side, Mr. Von Al Haq was the official representative of the MILF together with retired Police chief Superintendent Amerodin Hamdag as the designated local expert of the MILF along with Japanese Professor Yuji Uesegi, who was the international expert recommended by the MILF.

 

The ICP’s mandate is to produce recommendations to the peace panels for the appropriate policing model for a Bangsamoro Police Force. The crafting of the ICP report according to Chair Sarmiento was based on the legal framework of the 1987 Constitution where it states that, “[t]he State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.” This was duly reflected in its report which recommended that the Bangsamoro Police Force should be civilian in character, professional, free from partisan political control, effective and efficient in law enforcement, fair and impartial, accountable for its actions, and responsible both to the Central Government and the Bangsamoro Government and to the communities it serves. The ICP was given six months to come up with its recommendations wherein it started its work in October 2013 and submitted its report on April 14, 2014.

 

The ICP report came up with 108 recommendations on accountability both through a police board and within the PNP management, the Bangsamoro Police management and structure, human rights, education, training and development, ethos, values and symbols, strategic communication and messaging change, implementation, and a transition implementation roadmap, which would illustrate the strategic communications to be executed by both the GPH and the MILF in targeting internal and external audience. The ICP based its recommendations on best practices from different countries such as Northern Ireland, Solomon Islands, Aceh in Indonesia and Timor-Leste as well as results of consultations among stakeholders in Mindanao which included local government officials, civil society organizations, the AFP, the PNP, the MNLF and the MILF.

 

Chair Sarmiento presented the following highlights of the ICP recommendations:

 

■ Accordingly, the first recommendation was to have the name “Bangsamoro Regional Police”, which should be an integral part of the PNP, but the ICP failed to reach a consensus on the name because of the word “regional”. Nevertheless, the ICP recommended that the Bangsamoro Police will be a transformed and competent PNP Regional Office focusing on community policing and public safety roles with a high level of competence and sensitivity to human rights and the Shari’ah Law.

 

■ The BBL should enable the Bangsamoro Police to be accountable to the Bangsamoro Government with primary administrative accountability to the PNP National Headquarters. As much autonomy as possible should be given to the regional police having due regard to the role of the National Police Commission (NAPOLCOM) as mandated by the 1987 Constitution.  

 

■ A new police board to be referred to as the Bangsamoro Regional Police Board (BRPB)[5] should be created that will have governance over the police services which is patterned after the Northern Ireland Police Board. There was no recommendation for the number of the BRPB membership since the ICP agreed to leave the decision to the implementers.

 

■ The BRPB should be composed of both elected officials of the Bangsamoro Ministerial Assembly (BMA) and sectoral representation, majority of which are to be drawn from the members of the BMA, but none of whom should be holding Ministerial Office. There should be a transparent public selection process to be used for the sectoral representatives, in which the communities nominate individuals who are not elected officials at any level.

 

■ The BRPB members should be with high qualifications and of high standing in the community, and upon their selection should be automatically appointed as representatives of the NAPOLCOM. The appointment of BRPB members should be for a period limited to four years with a staggered scheme of appointments of not less than two year intervals.

 

■ Upon a majority vote of the police board members of non-confidence in the BRPB chairperson, the BMA through the responsible minister has the authority to remove and replace the chairperson. In the same manner, the BRPB has the authority to hold the police regional director accountable.

 

■ The BRPB should set long-term objectives and priorities for policing in the Bangsamoro while the police should implement such objectives and priorities and make a report to the BRPB on a regular basis. On the other hand, the local government units with their respective chiefs-of-police should formulate and develop short-term tactical plans to comply and deliver the strategic long-term objectives. The BRPB should monitor the Bangsamoro Police’s performance against policing priorities and objectives, crime trends and patterns as well as performance in areas of human rights, recruitment patterns and employment opportunities.

 

■ Having been patterned after the Northern Ireland Police Board model, the report of the chief-of-police to the BRPB is to be televised and on a regular basis. The BRPB members can interpellate the chief-of-police as far as the implementation of policing priorities is concerned. However, the obligation to report should extend to explaining operational decisions only at the appropriate time in order to afford the police officers some independence to exercise their own judgment based on professionalism. This is in line with the operational independence provided in the draft BBL to police officers for leadership and decision making relative to their functions and activities as well as their civilian staff that are under their direction and control.

 

■ The BRPB should have the authority to engage and request an inquiry and audit of police administration and, if deemed appropriate, request assistance from the Office of the Ombudsman, NAPOLCOM, PNP Internal Affairs Service and experts from the board itself in the conduct of such inquiry and audit.

 

■ The BRPB should be responsible for negotiating the annual policing budget with the Bangsamoro Government and the PNP.

 

■ The BRPB should have the exclusive authority in the Bangsamoro to select the police’s regional director, deputy regional directors, provincial directors and non-component city chiefs-of-police. For this purpose, the BRPB should create a selection committee. On the other hand, the provincial directors should have the authority to select the component city and municipal chiefs of police with clearance and in consultation with the local chief executives as distinguished from the provisions of Republic Act No. 6975 otherwise known as the “Department of the Interior and Local Government Act of 1990” as amended by Republic Act No. 8551 or the “Philippine National Police Reform and Reorganization Act of 1998.” This differs from the current practice and existing mandate of local chief executives to choose their respective chiefs of police.

 

■ The regional director, the deputies and the provincial directors, as the case may be, should have the authority to employ and deploy units and elements of the Bangsamoro Police within their respective levels of responsibility. As such, the BRPB, the responsible minister, the BMA or the local chief executive should not have the power to direct the police leadership as to how to exercise operational functions, which is another deviation from existing procedures and current practice.

 

■ There should be a clear management and communication structure for the Bangsamoro Police and its services to allow for the better delivery of policing services.[6]

 

■ With respect to human resource development, the PNP should identify a cadre of 50 trainers to undergo an extensive “Train-the-Trainer” program on human rights and cultural sensitivities to form the nucleus of a ‘Master Trainers’ team that will conduct workshops and information programs for all members of the transition policing service in 2015. The Bangsamoro Transition Commission (BTC) and the PNP will deliver the program which can be implemented through the assistance of non-governmental organizations (NGO) or bilateral partnerships.

 

■ There should be core curriculum for training in community policing particularly for building effective partnerships, problem solving organization, community organization and mobilization, and thorough understanding of local culture. As such, the current police personnel in the Bangsamoro should be subjected to intensive and continuing refresher training on the fundamental principles and standards of human rights, cultural tolerance, sensitivity and proficiency in understanding Shari’ah and its practical implications for policing in the Bangsamoro. Accordingly, during the conduct of public consultations, the ICP received suggestions from the stakeholders that the existing personnel of the police regional office in ARMM should be replaced due to the lack of trust resulting from numerous human rights violations. It was amenable however for them that should the current police personnel not be replaced, they should be subjected to intensive and continuing refresher training with qualifying examinations thereby giving the Bangsamoro Police a fresh start somehow.

 

■ In order to address and reinforce human rights compliance by the Bangsamoro Police, the ICP recommended the establishment of a civilian human rights complaint adjudication board composed of a judicial officer and community representatives to receive complaints on police conduct where there are allegations of human rights abuses.

■ Headed by a regional director with the rank of a police director, the Bangsamoro police regional organizational command structure will have two sub-regions (BaSulTa for Basilan, Sulu and Tawi-Tawi) and LaMag for Lanao and Maguindanao), which will be headed by the deputy regional directors having the rank of chief superintendent, supported by a “lean and mean” administrative staff.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

■ The institution of a community policing service in the Bangsamoro which will have two levels (law enforcement and peacekeeping) would be put in place. This means that policing service will be two-tiered wherein the peacekeeping role is handled by a Community Safety Officer while the law enforcement role by a Police Officer. Accordingly, this is also one way of reintegrating the combatants to society by allowing them to participate in peacekeeping by first becoming a Community Safety Officer, which is the preparatory level in becoming a full-fledged Police Officer. Upon completion of a college degree and obtaining the appropriate civil service eligibility, a Community Safety Officer can already become a Police Officer since the lowest rank of Police Officer I (PO1) is only given to college graduates possessing professional civil service eligibilities. The Community Safety Officer position is envisioned to serve as a “Bridging Program” intended for those combatants who will initially not be qualified for appointment with the PNP under the National Police Commission standard. The Community Safety Officers will also mentor and supervise the existing barangay peacekeeping action teams (BPATS), which is currently being implemented by the PNP under the BPAT Program.

 

■ The Bangsamoro police is given the authority to assess the competency levels and identify skill gaps of the existing local government public safety and enforcement units within the Bansgsamoro so that these units can be tapped and utilized for peacekeeping purposes.

 

■ There would be establishment of more national testing centers in the Bangsamoro to facilitate recruitment. This is in response to the issues raised that government eligibility exams are not readily available and would require a significant amount of travelling to go to the testing venue.  

 

Chair Sarmiento closed her presentation by saying that the ICP envisioned the Bangsamoro Regional Police to be immediately effective upon the BBL’s passage and approval in a plebiscite since the Bangsamoro Transition Authority will already be established. She said that by then the ARMM flag will be retired and a new Bangsamoro flag will be raised together with a new flag for the Basngsamoro Regional Police. As such, she underscored that a strong strategic communication plan should already be put in place.

 

Retired Police Deputy Director General de Leon presented the following comparative overview between the provisions of the proposed BBL and the ICP recommendations on Bangsamoro policing in order to provide a better appreciation of the draft BBL:

 

■ Under Section 2, Article V on the Powers of Government of the draft BBL, concurrent powers shall refer to the powers shared between the Central Government and the Bangsamoro Government within the Bangsamoro. ICP Recommendation No. 2, on the other hand, highlighted that no proposal be advanced for any constitutional amendments and that the ICP used the framework of the 1987 Constitution on the BBL wherein appropriate laws to be enacted by the Bangsamoro Government should support the ICP recommendations.

 

■ The matter of public order and safety is one of those where powers will be shared by the Central Government and the Bangsamoro Government, but as much autonomy as possible should be given to the Bangsamoro regional police having due regard to the role of the NAPOLCOM as mandated by the 1987 Constitution. As such, Section 1 of Article XI states that “The Bangsamoro Government shall have primary responsibility over public order and safety within the Bangsamoro. There shall be cooperation and coordination between the Central Government and the Bangsamoro Government through the intergovernmental relations mechanism”.

 

■ The ICP recommendation is for the Bangsamoro Government to enter into appropriate arrangements with other national law enforcement agencies to  enable them to operate in the Bangsamoro, and where appropriate, to have joint working arrangement with the Bangsamoro Regional Police. These arrangements will provide additional capacity for the fledgling Bangsamoro Regional Police to address organized crimes and armed groups involved in serious national and transnational criminal activities, in effect having a cross-border scope. Coordination would also involve the National Bureau of Investigation (NBI) and the Philippine Center on Transnational Crimes (PCTC).

 

■ While the word “Regional” was deleted from the Bangsamoro Police under Section 2 of Article XI of the draft BBL as there was accordingly no consensus reached during the discussions, ICP Recommendation No. 3 nonetheless advocated for a structure for the proposed transformed policing model to support the intent of Section 13 of Republic Act No. 8551 pertaining to increased police visibility and efficient and delivery of police services.

 

■ Section 3 of Article XI of the draft BBL provided for the specific powers and functions of the Bangsamoro Police. This was duly supported by ICP Recommendations No. 16 and 17 wherein the Central Government and the Bangsamoro Government, through concurrent powers, set the principles and establish overall objectives for policing, as well as set long-term objectives and priorities. Taking into account the Central Government’s policing priorities and ensuring that there is consistency and inclusion of those priorities, the BRPB will incorporate Bangsamoro priorities with the Integrated Area Community Public Safety Plan, which is being prepared by the police officials from the regional to the municipal police offices as having been presented and approved by the respective Peace and Order Councils of the different LGUs.

 

Context and Issues

 

ARMM-DILG Secretary Malang presented a comparison of the provisions of RA 6734 (An Act providing for an Organic Act for the ARMM) and RA 9054 (An Act to strengthen and expand the Organic Act for the ARMM, amending for the purpose RA 6734) with the proposed BBL on Public Order and Safety. He noted, however, that RA 9054 was never implemented that is why this law’s constitutionality was never questioned. He pointed out that some provisions of RA 9054 are obviously unconstitutional but were not discussed or dissected then by Congress. He averred that if RA 9054’s contents were properly discussed at that time then it would also be found out that there are so many provisions which are actually not so beneficial for the Bangsamoro. He believed that somebody might have probably gone to the Supreme Court and questioned the constitutionality of RA 9054 if it was implemented then. As such, he surmised that this is one of the reasons why no less than the President called the ARMM a failed experiment. He mentioned though that the failure could not be blamed solely to the leadership of the ARMM since its inception due to the fact that there are several structural defects provided within RA 9054 itself. He then highlighted the following comparisons and suggestions:

 

■ Under RA 9054, public order and security is lodged in the regional government wherein it will have its regional police force as provided under Section 4. Presently, this is the ARMM Police Regional Office and it is composed of the existing PNP and MNLF integrees. Its powers and functions under RA 9054 actually have no difference with the draft BBL.

 

■ Both the provisions of RA 9054 and the draft BBL on police force pertain to the internal security of the ARMM while the external security is under the National Government through the AFP. There is a provision under RA 9054 that there could be a separate command of the AFP that will take care of the ARMM only. However, the ARMM is presently still under the Western Mindanao Command (Wesmincom).

 

■ Since the provisions of RA 9054 are not fully implemented, the ARMM has a problem with respect to communication and jurisdictional issues such as with the convening of the Regional Peace and Order Council and with the operation of the Philippine Drug Enforcement Agency (PDEA), which under Region IX. Hence, it was suggested that the proposed BBL should include the establishment of a special unit of PDEA.

 

■ Per the provisions of RA 9054 that were not likewise implemented, the regional police force should be under the regional governor, who should also serve as an ex-officio member in the NAPOLCOM and that he may recommend to the President the appointment of the regional police director. As such, there is a problem on the operation and administration of the police force in the present setup of the ARMM considering that the BaSulTa area is nearer to Police Regional Office IX than the ARMM Police Regional Office which is in Parang, Maguindanao. As such, there were times that separate meetings were held for those in the mainland and in the BaSulTa area.

 

■ Apart from the police where the ARMM regional governor has no authority, the other agencies within the DILG that were not also devolved to the ARMM are the Bureau of Jail Management and Penology (BJMP) and the Bureau of Fire Protection (BFP). It was suggested that these agencies be placed under the regional police force.

 

■ As far as security is concerned, the intergovernmental or interagency relationships should be clarified because in the present setup there are several overlaps of functions and jurisdictions, or sometimes none, and that the chain of command is not clear. Thus, such relationships should be properly clarified to avoid untoward incidents in the future like what happened in the Mamasapano incident.

 

■ Most of the provisions of the draft BBL were apparently copied from RA 9054 as complemented by the PNP Law with some changes in nomenclature and terminologies. Hence, the proposed BBL taking into consideration the ICP recommendations could not be held unconstitutional.

 

Options and Prospects

 

Atty. Doque presented the following relevant provisions of the draft BBL on policing and from what existing laws such provisions came so as to address the issue of constitutionality:

 

■ The general provisions on peace, public order and safety and the words used in the creation of a Bansgamoro Police found in the draft BBL were taken from Section 21, Article X in relation to Section 6, Article XVI of the 1987 Constitution.

 

■ The whole of Section 3 on powers and functions of the Bangsamoro Police under the drat BBL was taken from Section 5, Article XIII of RA 9054 as well as from Section 24 of RA 6975. Moreover, these provisions are consistent with the 1987 Philippine Constitution.

 

■ However, Section 4 on the structure of the Bangsamoro Police Organization is a new provision although it was derived from the ICP recommendations which also designated particular areas for the Bansagmoro Police sub-regions. While the draft BBL did not specify the particular areas, it specified however that the Bangsamoro Police Director shall be assisted by two police deputies with their corresponding qualifications, which were taken from RA 8551 and RA 6975.

 

■ Section 5 on the Bangsamoro Police Board was taken from Section 14 of RA 6975 and Section 10 of RA 9054 while its functions therein were adopted from the ICP recommendations.

 

■ Section 6 on the composition of the Board was patterned after the ICP report except on the provision for the members coming from the Parliament. As for the chairman of the board who shall be an ex-officio commissioner of the NAPOLCOM, this was lifted from Section 10, Article XIII of RA 9054.

 

■ Section 7 on the terms of office of the members of the board, this was a recommendation of the ICP so that the terms of office of the members will not end at the same time.

 

■ Section 8 on the powers of the Chief Minister over the Bangsamoro Police is one of the more comprehensive sections of the draft BBL since it was sourced from different laws as follows:

 

a. To act as deputy of the National Police Commission in the Bangsamoro and as ex officio chair of the Bangsamoro Police Board; (from Section 51, RA 6975 and Section 64 of RA 8551)

 

b. To select the head of the Bangsamoro Police and his deputies; (from Section 51 (b) and Section 63 of RA 8551)

 

c. To exercise operational control and supervision and disciplinary powers over the Bangsamoro Police; (from Section 51(b) of RA 6975 and Section 62 of RA 8551)

 

d. To employ or deploy the elements of and assign or reassign the Bangsamoro Police through the Bangsamoro Police Director. The Bangsamoro Police Director shall not countermand the order of the Chief Minister unless it is in violation of the law; (from Section 62 of RA 8551)

 

e. To oversee the preparation and implementation of the Integrated Bangsamoro Public Safety Plan; (from Section 51 a(2) of RA 6975)

 

f. To impose, after due notice and summary hearings of the citizen’s complaints, administrative penalties on personnel of the Bangsamoro Police except those appointed by the President; (in relation to Section 52 of RA 8551) and 

 

■ Do everything necessary to promote widespread support for the Bangsamoro Police by residents of the Bangsamoro (which was not taken from any law since this is accordingly a safe provision).Section 9 on manning level was taken from Section 27 Chapter III of RA 6975.

 

■ Section 10 on the appointment of officers and members of the Bangsamoro Police was taken from Section 31 of RA 6975 with slight modifications requiring the recommendation of the head of the Bangsamoro Police and Chief Minister for the appointments of officers in the higher levels.

 

■ Section 11 on community police was borne out from the concept presented by the ICP in its recommendations.

 

■ Section 12 on law governing the Bangsamoro Police was taken from Section 3, Article XIII of 9054.

 

■ Section 13 on transitional arrangements was sourced from the Annex on Normalization, which will provide for some relations with the Bangsamoro Government since this was not implemented under RA 9054.

 

■ Section 14 on national support services is a new provision which provides for the relationship between the Bangsamoro Police and the National Support Services of the PNP such as the Special Action Force (SAF) and the Crime Laboratory shall be determined by the intergovernmental relations body.

 

■ Section 15 on defense and security was taken from Section 11, Article XIII of RA 9054.

 

■ Section 16 on calling upon the Armed Forces was taken from Section 12, Article XIII of RA 9054 although there was some modifications injected in it.

 

■ Section 17 on coordination is a new provision which provides for protocols and coordinative mechanisms between the Central Government and the Bangsamoro Government.

 

■ Section 18 on indigenous structure was taken from Section 13, Article XIII of RA 9054.

 

In closing, Atty. Doque stated that indeed almost all provisions on public order and safety in the draft BBL were either taken from RA 9054, RA 6975 and RA 8551. He agreed with the statement of ARMM DILG Secretary Malang that the provisions of RA 9054 were not fully implemented which caused it to be ineffective.

 

Open forum

 

On the question of how the operationalization of the BBL will be executed since there are doubts on the sincerity of the MILF due to the Mamasapano incident, Mr. De Leon replied that as part of normalization, the ICP was created. In that limited period a survey was conducted among different sectors which yielded results showing that the stakeholders want a police force with a new beginning. Looking at different models, it was regarded that the police organization must be owned with the Bangsamoro inclusive of all sectors. As regards the trust building, this will be born out of a strategic information and communication plan. While it is true that not all MILF’s will join the BRP, those who qualify can join the police and those who are not can participate in the bridging program while initially becoming community safety officers. Chairman Sarmiento also added that the BRP expectation cannot be met because of a constitutional provision saying that there should only be one national police. Basically, the recommendation to put a BRP in place is just a rebranding which entails the transforming and improving of the existing model to regain the trust of the people. Issues in the past involving members of the police force and members of private armed groups partaking in criminal activities and massacres should be placed in the past to give way to the aspiration of a new beginning. The new police will be made to account for all its deeds; accountable to the law and accountable to the community it serves.

 

A question was also raised on how the proposed regional structure under the BBL will appear vis-à-vis the whole PNP structure. Atty. Malang replied that the regional director would be the head as appointed by the Chief Minister. There will be two deputy directors but it is unclear if they are for administration and operation like the present PNP system or they would be deputy for BaSulTa and other areas like mainland Mindanao. Atty. Doque added that the PNP Chief will still head the organization and be superior to the regional police director. The Chief Minister selects the regional director while the BRPB recommends to the Chief Minister. The Chief Minister is part of the board. Although admittedly this is far from a perfect direction but the President can go in any time because he also has a direct line in the structure.

 

On matters relating to the voting rights of the chairman of the BRPB as ex-officio commissioner of the Napolocom and based on Section 6 Article XI of the proposed BBL, he can only vote on matters related to the Bangsamoro police and shall not be allowed to exercise his voting rights in any other matter.

 

On the query about the significance of the word “regional” in the Bangsamoro Regional Police, Mr. De Leon explained that the word “regional” indicates that the organization is under one PNP, i.e. Police Regional Office I, II, III, IV and so on.

 

In relation to the BBL and its annexes, a question was posted as to why the Normalization Annex was not incorporated in the BBL instead. Atty. Doque explained that normalization has three aspects: security, socioeconomic and transitional justice and reconciliation. As part of the security aspect, the decommissioning of armed groups in the MILF is an integral part. The normalization was not included in the BBL because it would run independently from it. The socioeconomic development aspect goes hand in hand with the direction of security issues. This is exemplified by providing for livelihood education and activities to armed combatants to aid in the decommissioning process. Lastly, the transitional justice and reconciliation aspect was created by the panels through a Transitional Justice and Reconciliation Commission which is in charge of studying the appropriate system that should address the transitional justice issues in the Bangsamoro.

 

A question was also asked in relation to the terms of the organizational structure of the BRP and direct lines available to the Chief Minister and the PNP Chief which may create confusion since BBL provisions state that the BRP should not countermand the instructions of the Chief Minister. Atty. Doque admitted that there will be instances of operational conflict. The direct line of the Chief Minister is consistent with his enumerated powers in the BBL of deputy, operational control and supervision and employ and deploy. Chairman Sarmiento added that as far as the ICP recommendations are concerned, there is a lengthy discussion in the ICP report under ‘operational independence’ which emphasizes the conflict of the BBL provisions on the BRP structure with operational independence of the police. As such, the ICP “takes the position that operational responsibility means that the police leadership and police officers, in execution of their duties, must have the right and authority to make operational decisions that neither the government nor the BRP should be able to influence or direct as to how to conduct police operations. It must be clear that the police leadership like any other public official must have the ability to make decisions, act and fulfill the responsibilities of office without undue influence or coercion. However, the balance is that the police also must be held accountable for the manner in which those powers were exercised subject to standard police procedures. It must never be the case that the police are immune from public scrutiny or that they cannot be held accountable to publicly respond or explain their actions.”

 

Also on the table of organization of the PNP and the BRP, there are allocated number of star ranks. A question was posited if it would increase the ranks in the PNP as a whole and if there would be an effect to the PNP budget. Mr. De Leon replied that based on the BBL, there will be no alteration since it did not carry the sub-regional. As far as the ranks are concerned, there is the same distribution. Atty. Doque replied to the fiscal question by saying that in terms of the budget and a corresponding increase, the PNP will be in charge and will have the duty to request the budget increase for personnel salaries. This is consistent with current practice that the power to request the budget is lodged with the PNP and the local government only augments it.

 

Another question that was raised relates to the Local Government Code where the local chief executive submits peace and order conditions to the DILG. The basis of the expenditure of the peace and order fund is under a plan which is submitted by the Peace and Order Council to the Sanggunian which is the basis for the budgeting. Atty. Doque explained that in case of the BBL, there is a provision which states that the board should implement a peace and order plan. It can be assumed that the regional command will do a plan as well. This will be submitted to the parliament because the Bangsamoro parliament makes the budget for the peace and order plan.

 

A question related to the provisions of the BBL on public order and safety was asked pertaining to the AFP Bangsamoro command and its creation by the central government should it choose to do so in accordance with national laws. Atty. Doque answered that both provisions are part of RA 9054 and were repeated only. This is consistent with the provision in the Bangsamoro Agreement which states that all powers and privileges given in RA 9054 should not be diminished. Atty. Malang chimed in by saying that the interpretation of the provisions in the BBL should not be limited to become too specific. If it is not stated in the law of whether or not the President may ‘call the shots’ then it should not be interpreted strictly since whether this provision is placed or not, it is an inherent power of the President. These types of provisions only cause unnecessary insecurities for the other party.

 

PANEL DISCUSSION 4: CONSTITUTIONAL COMMISSIONS IN THE BANGSAMORO

 

Atty. Rasol Mitmug, the ARMM Chief-of-Staff and former Speaker of the ARMM Regional Legislative Assembly, and Atty. Nasser Marohomsalic, a former CHR Commissioner, served as the resource persons for the panel discussion on constitutional commissions in the Bangsamoro.

 

Context, Constitutional and Legal Issues

 

Atty. Rasol Mitmug started his presentation by pointing out that he will not defend the provisions under the BBL with regard to the creation of constitutional bodies in the Bangsamoro such as the Civil Service Commission, (CSC), Commission on Audit (COA), Commission on Elections, (COMELEC), Commission on Human Rights (CHR), and Office of the Ombudsman. Instead, he will discuss the current situation in ARMM to shed light on where such proposed provisions in the BBL are coming from. He then recounted the history of the passage of R.A. 6734 and its amendatory law R.A. 9054, which strengthened and expanded the organic Act for the ARMM.

 

According to Atty. Mitmug, under R.A. 9054, the Regional Legislative Assembly of the ARMM has been authorized to i) adopt its own Civil Service law, rules and procedures; ii) establish its own audit rules; and iii) adopt its own rules for elections within the autonomous region but outside of national scope. He thinks that R.A. 9054 allows the CSC, COA and COMELEC to formulate rules specific for the autonomous region.

 

Likewise, the creation of a regional CHR is provided under R.A. 9054. But this was not done until the election into office of the present Governor of ARMM. This was made possible with the assistance from the central and local offices of the CSC, CHR, and the Department of Budget and Management (DBM) for the funding aspect of creating such office in the ARMM. He remembered that in the past, difficulties were encountered by the previous ARMM administrations due to a provision in R.A. 9054 which mandates the National Government (NG) to create a regional CHR instead of creating it by the Regional Legislative Assembly of the ARMM. The latter was adamant in creating a regional CHR at that time as it would entail funding to be taken from the ARMM budget.

 

The current CHR in ARMM offers salaries for its plantilla attorney positions two salary grades higher than their counterparts in the national and other local CHR. This has attracted new, dynamic and competent lawyers to join the CHR ARMM and do field work especially in conflict-affected areas in the region. In addition, a smooth coordination between the CHR central office and CHR ARMM has been established.

 

In the case of the Office of the Ombudsman, the creation for an office in the ARMM is not provided under R.A. 9054. Within the powers vested in him, the present ARMM governor issued Executive Order No. 2, series of 2005 which expanded the functions of the Attorney IV position under his office and provided it with responsibilities equivalent to that of a regional Ombudsman. Though it has been effective in terms of addressing cases in the ARMM in a speedy manner, it did not preclude the people in region from filing cases directly before the Office of Ombudsman at the national level.  

 

Furthermore, Atty. Mitmug explained the context for the proposal to create a CSC in Bangsamoro. Advocates of civil service reforms in the ARMM, particularly its present officials, differ with what has been the practice by the previous ARMM administrators and the CSC ARMM wherein positions were classified “one step lower” when pitted against the same positions in the national level. For instance, Secretaries of the executive offices under the ARMM Governor were just treated equivalent to Directors at the national level. It has also been the practice that Director level positions in the ARMM need not comply with the Career Executive Service Officer (CESO) eligibility requirement in getting CSC approval on ARMM appointments. Furthermore, the CSC ARMM approved promotions to higher positions of personnel who did not meet the required qualifications for political accommodations. Inevitably, this has resulted to a civil service system in the ARMM that was inept and ineffectual.

 

Atty. Mitmug discussed further that former ARMM Administrator Adiong sought clarifications from the Supreme Court (SC) regarding the required qualifications for the position of Department of Education (DepEd) Superintendent in ARMM. The ARMM regime at that time believed that the DepEd Superintendent in ARMM need not meet the CESO eligibility requirement to be appointed to the post. The SC ruled, however, that all DepEd Superintendent should have CESO eligibility even in the ARMM. The SC decision presented an opportunity for the current ARMM administration to initiate policy reforms replacing those personnel who do not meet the required qualifications. The MILF negotiated the inclusion of civil service reforms in the BBL which gave rise to the need for the establishment of a CSC Bangsamoro. Atty. Mitmug made an appeal to the participants to look at this proposal not just on the basis of its constitutionality, but on the need to pursue civil service and governance reforms in the Bangsamoro as well.

 

Atty. Mitmug explained that all national agencies have to go through the ARMM Governor when implementing a program in the ARMM.   For instance, the Department of Health (DOH) cannot transact directly with its ARMM counterpart as it would require first the national agency to enter into a Memorandum of Agreement (MOA) with the ARMM government for purposes of downloading funds into DOH ARMM. The downloading of funds is in the form of a cash advance.   Unfortunately, under this system, the previous ARMM administrations particularly during the time of Misuari obtained cash advances that remain largely unliquidated up to this day. This has created a setback in terms of implementing programs under the current ARMM administration as  national agencies are constrained to enter into new MOAs with the ARMM due to unliquidated cash advances. Auditing rules dictate that all cash advance should be liquidated at the end of every fiscal year.

 

However, Atty. Mitmug confessed that there were instances wherein national agencies would convince the ARMM government to enter into a MOA and download the funds even towards the end of the fiscal year. The current ARMM Administrator has been unenthusiastic about this posture by the national agencies and has made it a policy not to enter into a MOA with national agencies towards the end of the fiscal year. On the other hand, some national agencies would opt to implement a program on their own in order to avoid this downloading issue. Atty. Mitmug pointed out the recent case with the DOST which did not want to download funds to the ARMM and instead implemented a program in the region by itself. However, the COA central office issued an opinion that the DOST should have downloaded the funds to the ARMM.

 

As regards the COMELEC, it was also provided under R.A. 9054 that “…The Regional Assembly shall enact a law for the election of marginalized and under-represented sectors, following the principle of proportional representation…” According to Atty. Mitmug, there is no problem with regard to this as the present ARMM administration is following the COMELEC rules. His only misgiving is that, under the BBL, the power of the Regional Parliament to formulate laws on sectoral representations is placed under concurrent powers. He suggested that it should be placed under exclusive powers of the Bangsamoro for the protection of the future officials of the COMELEC Bangsamoro as well as the other Regional administrative bodies like CSC, COA, Ombudsman and the CHR.

 

Issues and Options

 

Atty. Nasser Marohomsalic started his discussion by explaining the nature and character of an autonomous region in order to understand the constitutionality of the proposed provisions in the BBL. Moving on, he referred to Article X, Section 20 of the Constitution which says “The devolution or grant of these powers to the Bangsamoro government is an exercise of sovereignty on the part of Congress.” The mantle of authority proceeds from Section 20, Paragraph 9 of Article X of the Philippine Constitution which read “Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of the autonomous regions shall provide for legislative powers over: (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) and such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.”

 

According to Atty. Marohomsalic, the general welfare provision in item number No. 9 above is the most relevant provision to justify the constitutionality of the controversial provisions in the BBL. Said general welfare provision is flexible as a porous sponge to absorb the terms of peace entered into by the national government with the Bangsamoro. Peace as a political value and a democratic right is a paramount principle enunciated in the Constitution, which read “The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment of all the people of the blessings of democracy.” He said that while the Constitution prescribes the attainment of peace especially in the Bangsamoro, it also does not provide for a restrictive or stingy policy in the pursuit of the State for autonomy in the Bangsamoro. The State policy recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

 

Moreover, Atty. Marohomsalic posited that granting autonomy to the Bangsamoro is a legal formulation for national unity and diversity. The United Nation’s Declarations on the Rights of the Indigenous Peoples prescribes for state to grant self-government to every indigenous group and allow them to enjoy their political, economic, social and cultural systems. Indigenous groups can only regain the socialization elements of their identity if granted powers to create institutions or make laws to enforce their ethnicity or identity.

 

With regard to the constitutionality of the establishment of constitutional commissions or bodies in the Bangsamoro particularly CSC, COA and COMELEC, he said that critics point to the fact that there are constraints in creating said bodies in the Bangsamoro because of the constitutional provisions that define the character and nature of these bodies. For instance, the COMELEC has the sole authority to administer and conduct elections at all levels whether national or local. For COA, it is the “sole” agency of government mandated with auditing functions. And for the CSC, it is the “central” personnel agency of government. The word “central” is similar to “sole.”

 

Atty. Marohomsalic further explained that the auditing body that is sought to be established in the Bangsamoro is empowered only to audit money, properties and transactions arising in the region and does not cover those arising from the national government. The reason for this is for internal housekeeping in the name of good governance. The COA central office is also not deprived of its jurisdiction to review or totally set aside the audit report coming from the COA Bangsamoro. He surmised that the reason for this proposal could be to show to the world that the Bangsamoro government is serious in cleaning itself of graft and corruption as it is considered as the hotbed of corruption in the country.

 

The other reason that may not be apparent in the BBL is that, the auditing practice of Muslim is different from the western world. Under Islam, audit practice does not only concern itself with numbers and the purpose for which money or transactions have been made. Moral standards are also embedded in the Islam audit system. For example, an officer in the Bangsamoro government who professes to be Muslim cannot spend on something that is prohibited by Islam such as pork or mini skirt to be given as a token to a visitor in his office. In the event that this rule is violated, the officer will have to be removed from office or will even have to pay for the cost of the goods. The Regional Legislative Assembly (RLA) will have to legislate this in order to establish the internal auditing rules for good housekeeping purposes. He said that this will not impede the constitutional powers of the COA central office.

 

With regard to the establishment of COMELEC in the Bangsamoro, he said that the concern of some legislators may be stemming from the way the provision in the BBL is formulated-- it is too general even if it says that the COMELEC in Bangsamoro is still “part” of the COMELEC central office. However, the RLA is authorized to legislate election rules suitable to a parliamentary form of government. Some sectors worry that the RLA may legislate a law that will give the Chief Minister the power to appoint the head of COMELEC in Bangsamoro. This will compromise the independence of that body. He suggested reformulating the provision in the BBL such as allowing the COMELEC en banc to appoint, instead of the President or Bangsamoro Chief Minister, the head of the COMELEC Bangsamoro. The Chief Minister may be given a recommendatory power but should not be binding. Alternatively, he suggested converting the current COMELEC ARMM into a commission with at least three (3) commissioners, the selection of which should be limited to the people in the Bangsamoro region.

 

He also suggested a similar set up with the CSC Bangsamoro. He said that this could be the solution so that Congress will no longer dilute the proposed BBL as it is a product of negotiations. He emphasized that it is not true that they are hurrying up the passage of the BBL because it took them 17 years of negotiating with the government to come up with the proposed BBL.

 

According to Atty. Marohomsalic, there is a vast literature on the Bangsamoro problem which prescribes solutions to the problem. He recalled what a former district governor from the United States during the American occupation said “the only solution to the Moro problem is to give them self-determination and make them fully enjoy their own religion.”

 

Atty. Marohomsalic explained that Muslims’ concept of religion is different from the concept of religion of the West, which is about one’s relationship with God. For the Muslims, religion is also a way of life defining man’s relationship with “man” and with the government. Some sectors’ opinion that the BBL will not pass under the doctrine of separation of Church and State may not hold because it is not about the separation of Church and State-- it is about one’s religious obligation to God that is different from one’s obligation to his fellow man and to the government. Religion is an overlay of everything people does and the goal is to go to heaven. Muslims are very serious about religion. They do not trivialize the observance of principles by allowing a caricature of Prophet Mohammad including the Saints because Muslims consider them as Holy.  

 

Open forum

 

On the status of the CHR as an independent constitutional body lower than that of the CSC, COA and COMELEC, a participant asked the details of the jurisprudence mentioned by Atty. Mitmug in his presentation. In reply, Atty. Mitmug cited the case “CHR Employees Association (CHREA) versus CHR” on whether or not CHR enjoys fiscal autonomy. The SC ruled that CHR does not enjoy full fiscal autonomy in the same manner as the other constitutional bodies like the CSC, COA and COMELEC.

 

The same participant also asked whether there will be follow up seminars on the BBL in the Senate in the near future as he sees the value of having this type of a seminar. Dean Bacani replied that he is contemplating of holding roundtable discussions or brown bag seminars in the Senate in coordination with the SEPO for purposes of elucidating the context of specific topics under the BBL. He further explained that there is really a need to level off the understanding of and broaden the discourse on the issues surrounding the BBL provisions so as to eliminate the biases, prejudices and suspicions coming from the many sectors of society. The strategy taken before by those involved in crafting the BBL was to keep as much as possible the BBL away from the people in order to avoid discussions and conflict of understanding, and just let the political capital of the President takes its course in pushing for the passage of the BBL in Congress. But that strategy failed with the collapse of the political capital of the President after the Mamasapano incident. So the only recourse now is to engage the public through an intelligent and informed discourse on context and reasons of the provisions in the BBL. Peace building is a long term endeavor. There are no short cuts to attaining peace. There were lessons learned throughout the BBL endeavor. If the BBL does not pass within the current administration, hopefully the next administration will build on these lessons and use it as a take off point in continuing the efforts of building peace in Mindanao. He assured the participants that advocates for autonomy and peace like him will continue supporting the whole process.

 

In the context of the reforms that have been introduced and are continuously being implemented with the current ARMM Administration, a participant asked whether these efforts to pursue reforms in the Bangsamoro region will be sustained once the BBL is passed and a Bangsamoro Transition Authority (BTA) is established noting that the BTA will be MILF-led. Atty. Mitmug replied by recounting that the peace talks with the MILF which started since 1998 provided ample time to train their members for potential administrative functions in the future. In fact, many of his colleagues now in the ARMM and in the civil society groups (CSOs) were either part of the MILF or MILF-biased persons as most of them grew up in a family where there were MILF members. It would be unfair to judge the MILF as without capacity as many of them just carry guns. What many do not know is that, those MILF members who were not carrying guns during the 2008 war in the Bangsamoro were able to join non-government organizations (NGOs) which were providing support to the indigenous peoples in Mindanao. Trainings were provided by the United Nations (UN) and by the national government. Hence, capacity in running the bureaucracy is not an issue.

 

With regard to the establishment of an Ombudsman in the ARMM, a participant asked a clarificatory question if it is really an Ombudsman in the ARMM and is different from the Office of the Deputy Ombudsman for Mindanao. Atty. Mitmug corrected that it is not an Office of the Ombudsman in ARMM but an Office of the Attorney General (AOG) lodged under the Office of the ARMM Regional Governor. The AOG only handles administrative cases of ARMM employees. Criminal cases concerning ARMM officials are filed before the regular courts or the Office of the Ombudsman in Manila.

 

In relation to the power given to the Bangsamoro Electoral Office (BEO) to formulate rules and regulations for local elections and plesbicite, a participant asked whether this power is limited to the formulation of rules related to pleadings and practice or does it include the power to choose a technology to be used in the elections. Atty. Marohomsalic explained that the BEO can be given a recommendatory power but the final decision should be with the COMELEC central office. Also, cases decided by the BEO should be appealable before the COMELEC central office. This way there will only be one COMELEC and its independence will be preserved.

 

Another participant asked a clarificatory question regarding the exclusivity of the auditing powers in the Bangsamoro that was suggested by Atty. Mitmug. Atty. Mitmug said that it was just his suggestion based on observations of the present situation in ARMM and the proposed audit structure under the Bangsamoro. He explicated that with the proposal to place the auditing power in Bangsamoro under the concurrent powers, there will be so many layers of audit that will be conducted and it might cause some apprehensions among the Bangsamoro personnel that it is too difficult to spend money downloaded from the national government because it will be subjected to many layers of audit. But Atty. Mitmug also understands that placing audit under exclusive powers of the Bangsamoro will face a humungous constitutional challenge. He accedes to just creating a regional office to be named Bangsamoro Commission on Audit.

 

The same participant asked Atty. Marohomsalic whether or not the peculiarity of the Islamic way of audit has been incorporated already in the BBL. Further, it was asked that should the Islamic way of audit be incorporated in the auditing standards, rules and procedures of the COA Bangsamoro, will it not be inconsistent with the national auditing standards, rules and procedures. Atty. Marohomsalc replied that the Islamic way of audit is not yet incorporated in the BBL. However, the Bangsamoro parliament is given the power to legislate laws which include auditing rules and regulations wherein the   Islamic way of audit can be incoroporated. Atty. Marohomsalic assured the participants that it will not be inconsistent with the national auditing standards, rules and procedures because it will only add some audit rules to conform to the Islam moral standards. It is constitutional as well because the Constitution provides flexibility by respecting the belief systems of the cultural communities in the country. It is also a recognized right under the United Nation’s Declaration for the Rights of the Indigenous Peoples that the rights of the indigenous peoples be recognized for them to enjoy their own systems—political, economic, social, cultural, and etc.

 

With regard to preparing the ARMM employees towards the transition to a Bangsamoro government, a question was asked whether the current ARMM employees are prepared losing their jobs should the BBL is passed and a BTA is established. Atty. Mitmug shed light on the issue of ARMM employees getting jobless once the BTA is established. He said that a re-organization will definitely be undertaken. In fact, an advisory committee for transition composed of Executive Secretary Laisa Alamia, Atty. Mitmug, OPAPP representative, DBM and some MILF representatives has been formed to craft the terms of reference for the transition. The ARMM employees started preparing for this since the start of the administration of Governor Hataman in 2013. Governor Hataman instructed all offices under him to undergo trainings and reformulation of strategic plans under the auspices of the Development Academy of the Philippines (DAP). All ARMM offices have developed a so-called “one and half- year game plan” and have readied the necessary office reports for the turnover when the transition comes.

 

In recognition of the independence and sole authority of the constitutional commissions, i.e., CSC, COA and COMELEC, a question was asked as to the need for a provision in the BBL to create these bodies in the Bangsamoro instead of just impressing upon these constitutional commissions to establish regional offices in Bangsamoro when the opportune time comes. To protect the independence of the aforementioned constitutional commissions, it should be allowed that these bodies exercise their authority to create regional offices that will take care of civil service matters, auditing rules, and election matters, respectively, in the Bangsamoro. Atty. Mitmug responded by saying that, it should have been done in the BBL as the ideal situation. In fact, it was already done with the current set up in the ARMM. However, experience would dictate that this set up would not work with an autonomous government. He suggested that these constitutional bodies should create special rules and guidelines fit for an autonomous region. At present, the rules and guidelines of these bodies apply to all the regions in the country regardless of whether a region is autonomous or not. He quipped that this is something that can be studied further.

 

Apropos to this, Dean Bacani shared his thoughts on the political dynamics within the ARMM and how it affects the acceptability of the proposed creation of constitutional bodies in the Bangsamoro. Local government leaders in the ARMM are against the creation of COMELEC in the Bangsamoro because they do not want the MILF to control the elections in Bangsamoro. They equate Bangsamoro with the MILF. They believe that every constitutional body that will be created in the Bangsamoro will be controlled by the MILF. Hence, the concern is not just about the constitutionality of these proposals but other factors as well that need to be analyzed altogether such as the political dynamics in the Bangsamoro and the feudalistic system where few powerful elite control the political, economic and social life in the region. The political interests prevailing in the region are controlled by the powerful feudal lords. The way, therefore, to analyze the proposal to create constitutional bodies in Bangsamoro is to focus on the functions of these bodies rather than look at it solely from the standpoint of creating an office because the latter is just an upshot of implementing a law, say a Bangsamoro electoral code. There are nuances as well that need to be taken into account such as the parliamentary form of government in Bangsamoro which will require a different set of rules that the Bangsamoro Legislative Assembly will have to enact.

 

Dean Bacani believes that the constitutional commissions cannot be dictated upon in terms of what to do should a new Bangsamoro region is established.  

 

As regards the creation of regional offices of the constitutional bodies in the Bangsamoro, a participant opined that it may not be feasible to create a regional COMELEC but may be doable for the CSC and COA. Specifically, instead of a CSC Bangsamoro, perhaps a central personnel office can be created. Said office can issue rules and procedures especially designed for the Bangsamoro employees in coordination with the CSC central office. And instead of a COA Bangsamoro, an internal audit office (IAO) can be created that will formulate auditing standards and principles specific for the Bangsamoro government. An analogy with the private sector was illustrated wherein there are internal audit offices in the private sector agencies and there is an external audit as well. In the public sector, there are also internal audit offices and the external audit is the COA. Atty. Marohomsalic steadfastly defended the proposals under the BBL which according to him were made in recognition of the right to self-determination and preservation of identities of the Muslims and other indigenous peoples in Southern Mindanao. The establishment of constitutional bodies in the Bangsamoro does not go against the Constitution and rules that will be promulgated under these bodies will be correlated with and will dovetail the national policies. According to Atty. Marohomsalic, it is a matter concerning operationalization of the principles of subsidiarity and devolution of powers.

 

A question was asked as to what would be the interplay between the Congress of the Philippines and the Bangsamoro Parliament and can Congress, in the exercise of its oversight function, call upon any official from the Bangsamoro parliament or executive body. Atty. Marohomsalic responded that there is an inter-legislative body to be created once the BBL is approved that will facilitate coordination between Congress and the Bangsamoro Parliament. Atty. Mitmug added that at present there is already coordination between the ARMM the national offices of the executive branch of government. The ARMM legislative body would from time to time request Secretaries of the national agencies to provide them with briefings and to advise them on legislating measures to address issues, e.g., education, concerning the ARMM. The Secretaries of the national agencies, due to their busy schedules, would oftentimes send the regional directors near the ARMM.

 

Furthermore, it was asked if the funds to be provided for the constitutional bodies that will be created in Bangsamoro will be sourced from the national government or from the budget of the Bangsamoro government. Atty. Mitmug replied that if these bodies were created by from the central offices, the funds should come from the budget of the national offices of these bodies. But if these bodies were created through the BBL, then the funds should be taken from the block grant.

 

Closing Remarks

 

Dean Bacani delivered the closing remarks. He recounted that the forum was just part of the many activities to broaden the discourse on the BBL and hear the different viewpoints from the independent resource persons and from those who were involved in the crafting of the proposed law. Such activity is just part of the many activities that are geared towards achieving the elusive goal of attaining peace in the Southern part of Mindanao. Indeed, realizing that goal is a long and a continuing process.

 

Moreover, he hoped that the forum has provided the participants a broader perspective of the BBL coming from what has been heard in the public hearings conducted by both houses of Congress, and from what was read in the newspapers. People’s assessment of the BBL has been largely based on their interpretations of symbols associated with specific provisions in the BBL. Symbols need to be defined so as to give clarity to their meanings as well as the specific objectives of the proposals.  

 

People’s assessment of the BBL has been shrouded with doubt and was made even more complicated after the Mamasapano incident. To clear out the cloud of doubt hanging in the minds of the Filipino people, it needs to be emphasized that the BBL has undergone the difficult process of negotiations between the government and the MILF. It is not solely an MILF initiative. Nevertheless, Congress will exercise its legislative power and provide wisdom in passing a BBL by looking at the middle ground between the status quo and the proposed changes under the BBL.

 

The intricacy of the issue at hand necessitates a sincere and serious dialogue among concerned stakeholders. Therefore, it is important to continue the dialogue and convince those who have taken up arms that there is a space for them in this democratic arena. Hence, there is a need to look at not just the content and the issues surrounding the provisions in the BBL but likewise the process that need to be developed in order to operationalize those provisions under the BBL.

 

This policy report was written by Merwin Salazar for IAG.

 

 

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1- On January 25, 2015, the Special Action Force (SAF) of the Philippine National Police (PNP) conducted a police operation to serve arrest warrants to high-ranking terrorists. The said mission led to the deaths of 44 SAF members, 18 from MILF and 5 from the BIFF, and several civilians.

2- Santos, Jr. S. (2012). “A Survey of Philippine Jurisprudence on Autonomous Regions for the GPH-MILF Peace Negotiations: 10 Cases. Naga City.

3- Boncodin, Emilia. “Towards Strengthening the Fiscal Capabilities of the ARMM – A Policy Paper,” International Center for Innovation, Transformation and Excellence in Governance (INCITEGov), 2007.

4- All agencies in 2014 GAA with regional breakdown.

5- Its ARMM counterpart, as per Republic Act No. 9054 is the REPOLCOM but it was never implemented.

6- Illustration from Gen. Lina Sarmiento’s Presentation during the BBL Workshop on April 14, 2015 held at the Sofitel Hotel, Manila.