"Eagle Eyes" is Dean Tony La Viña's column in Manila Standard Today. Follow him on Facebook: This email address is being protected from spambots. You need JavaScript enabled to view it. and Twitter: @tonylavs.

After nearly 20 years of negotiations, the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) finally forged last October 7, 2012 a Framework Agreement on the Bangsamoro (FAB) that provided for a road map towards comprehensive peace in Mindanao. Negotiations continued for another two years and four agreed annexes later, in a big ceremony in Malacaang Palace last 27 March 2014, the Comprehensive Agreement on the Bangsamoro (CAB) was entered into by the GPH and the MILF. The agreement consists of all the agreements between the two parties since the 1990s, but legally and historically it should be seen in a continuum with all the agreements with the Moro National Liberation Front (MNLF) as well, starting with the Tripoli Agreement of 1976 agreed after a bloody and conventional war that left thousands dead and hundreds of thousands displaced. 

Under the CAB, the Bangsamoro Transition Commission (BTC) was tasked to draft the Bangsamoro Basic Law (BBL) using the FAB and its annexes as bases, and to submit the draft to the Office of the President. The President was then expected to submit the proposed BBL to Congress as a legislative proposal, accompanied with the certification as urgent. In reality, it took months before the President did this as initially the draft submitted by the BTC had to be reviewed by the legal staff of Malacaang. After some back and forth, including calling back the peace negotiation panels of both the GPH and MILF to resolve some issues, a mutually accepted draft was agreed. Last 10 September 2014, the Office of the President submitted to Congress the draft BBL.

The Bangsamoro created under the BBL will replace the ARMM, the autonomous region created under Republic Act No. 6734, as amended by RA 9054, and provided for under the Constitution. The draft contains a Preamble and 18 Articles, categorized as follows: Name and Purpose, Bangsamoro Identity, Territory, General Principles and Policies, Powers of Government, Intergovernmental Relations, The Bangsamoro Government, Wali, Basic Rights, Bangsamoro Justice System, Public Order and Safety, Fiscal Autonomy, Economy and Patrimony, Rehabilitation and Development, Plebiscite, Bangsamoro Transition Authority, Amendments and Revisions, and Final Provisions.

Together with my colleague, Atty. Janice Lee, I have reviewed the draft BBL and have concluded that there are no patently unconstitutional provisions in the current draft. In essence, the Bangsamoro is an autonomous region authorized under Section 18, Article X of the 1987 Constitution, which provides the basis for the enactment of an organic act for the autonomous region created in Muslim Mindanao, thus: “The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.”

The same constitutional provision also states: “The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”

What the BBL does, if enacted into law, is to grant the highest form of local autonomy to Muslim Mindanao – no more (certainly not a status of and powers of a sub-state), no less (it will have more powers than other local governments and the current ARMM). As such, there is no need for a constitutional amendment to create the Bangsamoro. Even a review of the reserved, concurrent, and exclusive powers enumerated in the law is akin to what Congress has done in the case of The Local Government Code.

Having concluded that the draft BBL has no patently unconstitutional provisions, this is not to say it should be passed as it is. In my view, Congress must conduct due diligence through the hearings it is currently doing so that inclusivity becomes the rule both in the process of passing and the content of the BBL. And to make sure that congressional intent is clear, the final version of the BBL must have definitions that make clear that even the new concepts contained in the BBL are based or authorized by the 1987 Constitution.

The prudent approach is for the BBL to have a section defining specific terms so that  there will be no legal ambiguity about its meaning. Some examples: what the Bangsamoro is as a governance entity (it is an autonomous region, and the Bangsamoro government is a regional autonomous government); “the asymmetrical relationship” between the Bangsamoro and the national government” (it’s just a recognition that autonomous regions have more powers than other local governments and less powers than a central government); the ministerial and parliamentary system of government established in it (allowed by the Constitution as along as the executive and legal are elected; the Wali (a culturally ceremonial role akin to a Sultan) and the idea that some local government units like barangays and municipalities can vote to join the Bangsamoro even if their current province are not included in it (this could be a poison pill that could invalidate the BBL). It is too dangerous to leave these concepts legally undefined as, in a vacuum, the Supreme Court would be compelled to come in with its own interpretation that might not have been the intent of Congress but which would make the former conclude that the BBL is unconstitutional.

I support passage of the Bangsamoro Basic Law. It's needed for peace, justice, and development in Mindanao. It’s the right thing to do. Let's do it the right way.