Framing the discourse on amending the Bangsamoro Organic Law to extend the transition period to 2025
- IAG Philippines
This is the report on the roundtable discussion that the Institute for Autonomy and Governance convened on December 1, 2020. This report is written by IAG Senior Fellow Atty. Michael Henry Yusingco.
“Working with other groups and sectors, the two Parties shall ensure the establishment of a new Bangsamoro political entity that will protect individual and collective rights, and be truly democratic, representative of the diversity of the populace, and accountable to the communities therein.”
-Principles of Implementation
The Comprehensive Agreement on the Bangsamoro
Last July 26, 2018, President Rodrigo Duterte signed Republic Act No. 11054 or the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao (hereafter referred to as BOL). The Commission on Elections officially declared the BOL ratified last January 25, 2019, after an overwhelming majority “Yes” vote by the Bangsamoro electorate in the 2-day plebiscite. The BOL established the new Bangsamoro Autonomous Region in Muslim Mindanao (BARMM).
The creation of the BARMM marks the end of decades of armed conflict between Muslim revolutionary fronts and the government. Moreover, the inauguration of the Bangsamoro Transition Authority (BTA), tasked to govern the region during the 3-year transition period, was heralded as a “new dawn” for Mindanao.
Notably, the BOL provides that the 3-year transition period shall end upon the dissolution of the BTA, which will happen immediately upon the election and qualification of the Chief Minister under the first regular Bangsamoro Parliament to be elected by the Bangsamoro electorate in May 2022.
Clearly, the BTA, under enormous time pressure, faced a grueling path ahead. Mindanao peace activist, Mags Maglana, put it perfectly in a Tweet that the appointment of BTA members was indeed just the “beginning of another stretch of the road to peace─and possibly a more difficult one.”
Remarkably, the BTA in its first year of work has demonstrated the resolve to create a stable economic environment for the BARMM. In fact, three items in their list of achievements for 2019 bodes particularly well for the economic prospects of the autonomous region.
The first one is the holding of the Bangsamoro Energy Forum which initiated efforts to develop sustainable energy sources in the region. Second, the holding of the Bangsamoro Tourism Stakeholders’ Summit which signified the importance of tourism in grassroots development in the region. And third, a high investment record for the BARMM which indicates growing business confidence for the region.
Nevertheless, as the end of the transition period draws near, the BTA acting as the interim parliament issued last November 17, 2020, Resolution No. 93 urging the national Congress to extend the transition period to June 30, 2025 in order to give the BTA sufficient time to fulfil its mandate.
Pertinently, it was reported thereafter that President Rodrigo Duterte supported the proposal to extend the transition extension based on his cabinet members’ assessment of delays in the implementation of the BOL and the normalization process. Presidential Peace Adviser Carlito G. Galvez, Jr. likewise stated during a House Special Committee hearing on Peace, Reconciliation and Unity that, “If we want this transition to be successful, we have to give our brothers (in the Bangsamoro) ample time to lay down the foundation, and realistically we cannot achieve this in three years.”
The Duterte administration has correctly determined that the only way to extend the transition period is to amend the BOL. The President has vowed to assist the BTA in convincing Congress to work on this matter judiciously despite the other urgent challenges the nation is dealing with brought about by the Covid-19 global pandemic.
The proposal to extend the transition period, which means amending the BOL, has ignited a spirited discourse in the BARMM. For the people who agree with the extension there is no doubt that three years is not enough for the BTA. On the other hand, those who are hesitant to support the extension believe that the work involved in the transition can, and indeed should, be continued by the first elected Bangsamoro Parliament in 2022.
But a huge portion of the Bangsamoro community want more details and discussion about the merits and pitfalls of amending the BOL to extend the transition period. Heeding this call, the Institute for Autonomy and Governance moderated a roundtable discussion last December 1 to facilitate the articulation of various views on the issue of extension. This policy report is an organized summary of the stakeholders’ perspectives expressed in the meeting. The goal of this endeavor is to put the discourse in the proper frame to help the Bangsamoro community understand the various sides of the proposal. No endorsement will be made here because the determination to support or reject the proposed amendment of the BOL is the responsibility of the Bangsamoro electorate. Accordingly, this report hopes to contribute to the common effort aimed at ensuring this decision be as informed and calculated as possible when it is finally made.
“The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.”
- Disomangcop vs. Datumanong
G.R. No. 149848, November 25, 2004
How will NOT extending the transition period impact the peace process?
At the center of the proposed extension of the Bangsamoro transition period for three more years is the belief that more time is needed to complete the implementation of the provisions of the Comprehensive Agreement on the Bangsamoro (CAB). For example, the decommissioning of combatants, which is a key transition milestone, is far away from being finished given only 12,000 out of the 40,000 members of the Bangsamoro Islamic Armed Forces (BIAF) have completed this process. What will happen to the unfinished work in this area once the first elected Bangsamoro Parliament takes the reins of the regional government? Will they be able to work with the national government to complete the decommissioning of the remaining MILF combatants? Without a doubt these are serious questions that need to be confronted. Indeed, their resolution will also be relevant to concerns regarding the implementation of related peace agreements between the government and the Moro fronts.
The broader question here is how will the status quo affect the normalization process mandated by the BOL and the CAB. Basically, what will happen to this process once the 3-year transition period ends without being completed? There is a real fear that once the MILF-led BTA is no longer in charge, the process may lose some traction moving forward. Meaning, the combatants that have not been decommissioned can become a serious threat to peace and order in the region. Obviously, such a concern cannot be ignored. So, it is important to ask, if the transition period is not extended, what measures must be put in place to prevent a further deterioration of peace and order in the region?
It is worth remembering at this point that the peace process involves two tracks, normalization and political transition. It has been argued that pursuing both tracks should never be about prioritizing one over the other. Indeed, there is a school of thought that treats both as parallel pursuits. That while they are intricately related with each other, it is not a given that they should be pursued in perfect cadence. Neither should there be any thought of sacrificing one over the other. Both tracks have their own unique challenges that influence the pace of their execution. Making the task of harmonizing both tracks in the context of an unreasonably short transition period extremely difficult.
However, the BOL actually provides that, “The transition period shall be without prejudice to the initiation or continuation of other measures that may be required by post-conflict transition and normalization even beyond the term of the Bangsamoro Transition Authority.” In fact, there are prescribed normalization activities that are beyond the scope of the BTA. Nonetheless, it has been argued that the BOL actually requires both the BTA and the national government to work together to guarantee that the peace agreements, especially with regards to normalization (decommissioning), are fulfilled even beyond the expiration of the transition period. Indeed, it has been argued also that the first elected Bangsamoro Parliament bears the moral responsibility to ensure there is no disruption in the pursuit of both the normalization and political transition tracks.
The Plebiscite Question
Should the law amending the BOL be subjected to a plebiscite? It has been asserted that no plebiscite is necessary. Past experiences involving changes in regional elections have been alluded to in justifying this claim. The case of Abas Kida vs. Senate of the Philippines was cited in particular to show that laws concerning elections in the autonomous region need not be subjected to a plebiscite. It is worth mentioning though that the Supreme Court actually stated in this case:
“In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws – RA No. 9333 and RA No. 10153 – cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections.”
Apparently, the laws passed by Congress relating to past elections in the autonomous region did not amend the organic act and therefore need not be subjected to a plebiscite. So, the question remains whether a law amending the BOL requires the ratification of the Bangsamoro electorate? The Abas Kida case offers this answer:
“Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose." With these wordings as standard, we interpret the requirement to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act – require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region’s judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.”
Therefore, the plebiscite question can be rephrased this way- Is postponing the parliamentary elections scheduled in 2022 tantamount to a disruption of the basic structure of the regional government established by the BOL? If the answer is in the affirmative, then the amending law must be subjected to a plebiscite. A plebiscite of course brings with it serious considerations in this time of pandemic such as costs and logistics. Resolving these concerns will certainly involve the national government, in particular the Comelec.
Ostensibly, the plebiscite question is far from settled. Postponing the parliamentary elections can be seen as a benign modification that is not repugnant to the prescriptions of the BOL. Furthermore, there are practical limitations imposed by the health crisis that may rationalize foregoing a plebiscite if there is indeed unanimous support for the extension of the transition period. Needless to say, even if Congress itself precludes ratification for the amending law, there is no guarantee that this will not be brought to the Supreme Court. A protracted litigation of this very issue is a likely possibility.
It is worth mentioning at this stage that when the Bangsamoro electorate ratified the BOL in 2019, they had a clear intention and expectation of electing their parliament in 2022. It cannot be overemphasized enough that electing a Bangsamoro parliament is integral to the Bangsamoro’s right to self-determination. Indeed, the coming to fruition of the Bangsamoro Parliament signifies the “establishment of a new Bangsamoro political entity that will protect individual and collective rights, and be truly democratic, representative of the diversity of the populace, and accountable to the communities therein”. Therefore, it only seems fair that the Bangsamoro electorate should have a say over a law that aims to reschedule the election of the Bangsamoro Parliament from 2022 to 2025.
The Political Context of the Discourse
It is inevitable for the proposal to extend the transition period to be linked to the presidential elections in 2022. But proponents are quick to clarify that the extension pertains to the transition period only. It does not cover the extension of the tenure of the current members of the BTA. Their fate still depends solely with President Duterte. Which ironically only highlights the electoral calculus in pushing for the extension of the transition period beyond 2022.
It is also inevitable for the proposal to elicit queries as to the motives behind it, specifically as to how it connects to the parliamentary elections in the BARMM. Has the traditional alignment of political interests in the region begun? Is the fear of certain domination of mainstream politics in the parliamentary elections the “elephant in the room”, as one stakeholder has put it? There are concerns that the ways of the past will once again take over the rebuilding of the BARMM. Hence, the additional fear of the institution-building process initiated by the MILF-led BTA potentially falling by the wayside.
Concerns linked to local politics cannot be avoided as well. Based on Resolution 93, some local governments have already formally endorsed the extension. But what are the official positions of the other local governments in the region? Obviously, the proposed postponement refers only to the parliamentary election. Local elections in 2022 will carry on regardless if there is an extension of the transition period or not. Nonetheless, local interests will be impacted by the final resolution of this proposal. Peace and order, development projects, food security, and other community concerns will be affected, hence local politicians will also have a stake in this extension discourse. And some have raised concern that only the views of select local leaders are being listened to.
One regional leader pointed out that opening the BOL to amendment at this stage of the transition involves the risk of other matters in the law being changed as well. Some backers of the extension may have hedged their support on the condition that no other provision of the BOL will be amended. On the other hand, one regional leader raised the view that maybe this can also be an opportunity to revisit the “ratio legis” of the BOL. This amendatory process can also be used to incorporate the lessons learned during the so far short life of the organic law. But the heavy influence of politics hanging over the proposal will make it difficult to guarantee that this legislative effort will be as focused. Once the BOL is put in the hands of Congress again, all bets are off, as pundits would say.
Setting politics aside though, one regional leader ardently points out that any shortcoming in the implementation of the peace agreements must not be pinned only on the MILF for the national government has also been remiss in some of their deliverables. Neither can the MILF-led BTA be totally responsible for any slowdown in the completion of the BOL mandates. The reality is the region has been plagued by circumstances, both unforeseen and avoidable, that necessitate a rethinking of how to calibrate the transition envisioned by the BOL. Of course, this is easier said than done given the highly-charged political environment now pervading in the BARMM.
But even with several transition plans guiding the BTA, the possibility of an incomplete political transition beyond 2022 is still a legitimate concern. It has been argued that the first elected Bangsamoro Parliament is duty-bound to complete whatever is left unfinished by the BTA. Correspondingly, it has been argued as well that the mission of the national government and the MILF towards fulfilling the transition goals set by the CAB does not necessarily suddenly ends just because the 3-year period mandated in the BOL has expired. But again, this line of reasoning does not easily resonate given the tense political environment in the region.
All in all, the reality that the country is about to enter the electoral season means resolving the issue of extension will not be straightforward and smooth-sailing. The protagonists here will be challenged to make adjustments for the greater good. But it remains to be seen, if there is willingness to do so.
A Call for the Bangsamoro to Come Together
Deputy Speaker Mujiv Hataman expressed concern that the issue of extending the transition period has caused rifts among the people in BARMM. He also lamented that the Bangsamoro people cannot afford to be divided at a time when they are all working so hard to achieve lasting peace.
Poignantly, one stakeholder identified this very moment as an occasion for the Bangsamoro people to come together and resolve this issue in house, so to speak. A seasoned revolutionary rationalized, the ultimate question to answer here should be this, “Is the extension for the benefit of the Bangsamoro people?” While one regional leader declared that a collective approach is vital given the need to secure the “consent of the governed”. Thus, the emergence of a common view that a thorough study of the extension proposal must be undertaken by the Bangsamoro people themselves.
According to DS Hataman, “We cannot simply extend the period without studying it. Did the pandemic interfere with the BARMM transition’s timelines? That is a valid reason. But we need to sit down and discuss it exhaustively.” One local government executive said that the Bangsamoro people deserve to know what precisely has been achieved so far and what are the pending deliverables of the BTA. The accountability of regional officials in this regard is integral to the review process. This is a good way to give the community a high degree of confidence in making their own determination regarding this issue.
Clearly, one way of mitigating the divisiveness of the proposal to extend the transition period is for all the stakeholders to have a venue where they can deliberate on the merits and pitfalls of the extension. This is the chance for the Bangsamoro community to understand the justifications for extending the transition period and the reasons for simply abiding with the timeframe set by the BOL. It is worth mentioning that there is universal agreement that to produce a legitimate outcome acceptable to all, this deliberation process must be transparent.
Additionally, it must be noted as well that effective listening is central to any discursive undertaking. Only by “trying to understand how the world looks to other people will participants be flexible and open enough to undertake a genuine evaluation of their opinions”. And it cannot be emphasized enough that it is not just about giving all stakeholders a platform to express their views, but it is also about those holding power genuinely listening and understanding what the others are trying to convey.
Furthermore, while participants to this Bangsamoro coming together are expected to be passionate in advocating for their positions, they must not lose sight of the fact that their duty is to improve the lives of the whole and not just a few. Therefore, advocating should not be done via “buncome speeches” or discourse intended only to rile up base supporters in total disregard of the common good.
Pertinently, the BOL has provided a venue for this specific sort of community deliberation and this is the Council of Leaders. The latter is an intergovernmental mechanism established by the BOL tasked to give advice to the Chief Minister on matters of governance in the BARMM. It consists of the following members:
“(a) Chief Minister as head of the council;
(b) Members of the Congress of the Philippines from the Bangsamoro Autonomous Region;
(c) Provincial governors, and mayors of chartered cities in the Bangsamoro Autonomous Region;
(d) Representatives of traditional leaders, non-Moro indigenous communities, women, settler communities, the Ulama, youth, and Bangsamoro communities outside of the Bangsamoro Autonomous Region; and,
(e) Representatives of other sectors.”
Following the call for the Bangsamoro region to come together, the BTA can convene the Council of Leaders to collaborate on facilitating public engagement in the issue of extension and work towards building consensus around a viable path forward. Indeed, the framing of the extension discourse can be ultimately expressed this way- tackling this issue can be done either as an exercise reserved exclusively for the political elites of the region, or it can be a demonstration of regional leaders bringing the Bangsamoro community together and giving them the opportunity to realize how to “be in charge of their own business”.
“Imploring the aid of Almighty God, in recognition of the aspirations of the Bangsamoro people and other inhabitants in the autonomous region in Muslim Mindanao to establish an enduring peace on the basis of justice, balanced society….and their right to chart their political future through a democratic process that will secure their identity and posterity, and allow genuine and meaningful self-governance, the Filipino people, by the act of the Congress of the Philippines, do hereby ordain and promulgate this Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao.”
-Preamble, Republic Act No. 11054
The Preamble of the BOL is a perfect reminder of what is at stake in this discourse on the extension of the transition period. Issues regarding the implementation of peace agreements fall within the purview of the Moro fronts and the national government. But issues requiring the amendment of the BOL fall squarely on the people of the BARMM. The Bangsamoro community therefore, will have to bear in mind the following considerations as they address the proposal to extend the transition period to 2025.
First, how will the status quo, meaning no extension, affect the peace process? This is a very important question that needs to be thoroughly studied and discussed. The implications on national security raised by the proponents of the extension must not be overlooked or underestimated. The impact on the general welfare of communities in the region must be a primordial consideration.
Second, there is that question on whether a plebiscite for the amending law is needed or not. Jurisprudence is clear that amending the BOL, if it will substantially alter the regional government structure, requires a plebiscite. But as to whether postponing the parliamentary elections in 2022 is one such amendment remains to be determined. Given the contentious nature of this issue, it seems likely that this question will be brought to the Supreme Court. The possibility of more delays because of litigation cannot be discounted.
Third, there is the potential for political drama animating this discourse. This is understandable given the presidential election is just around the corner. Political alliances at both the national and local levels are currently being forged and it is only prudent to assume that the extension issue would be one of the items in these negotiations. Hence, the process of finding a workable resolution would unavoidably require having realistic expectations and openness to compromise.
Finally, there is the call for Bangsamoro solidarity in dealing with the question of extension. A collective effort to undertake a good faith review of the current state of the transition period is necessary to steer the region towards the right direction. But it cannot be emphasized enough that the BOL is the responsibility of the Bangsamoro people. The decision to make changes in the organic law must have their imprimatur.
The extension issue is clearly multi-faceted and highly nuanced. But hopefully, this policy report has shown that at the heart of it, the discourse surrounding the proposal to extend the transition period is really about demonstrating the capability of the Bangsamoro people “to chart their political future through a democratic process”.
 See Sections 1, 12 and 13 of Article XVI.
 G.R. No. 196271, October 18, 2011
 Note the role of the Third Party Monitoring Team (TPMT) here as the duly-designated body that will review, assess, evaluate and monitor the implementation of the Framework Agreement on the Bangsamoro (FAB) and its Annexes.
 Michael E. Morrell, “Listening and Deliberation”, The Oxford Handbook of Deliberative Democracy, Edited by Andre Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark Warren, pp237-250, (Oxford University Press 2018).
Roundtable participants whose views informed the writing of this policy report:
|MP Atty. Jose Lorena||-||BTA-BARMM|
|MP Engr. Baintan Adil||-||BTA-BARMM|
|MP Atty. Omar Yasser Sema||-||BTA-BARMM|
|MP Atty. Rasol Mitmug||-||BTA-BARMM|
|Atty. Ishak Mastura||-||RBOI-BARMM|
|Atty. Anwar Malang||-||Former DTI-ARMM Regional Secretary|
|Atty. Mary Ann Arnado||-||Secretary General, Mindanao Peoples Caucus|
|Fr. Jun Mercado||-||Oblates of Mary Immaculate|
|Mr. Gus Miclat||-||Executive Director, Initiatives for International Dialogue|
|Atty. Camilo "Bong" Montesa||-||Consultant|
|Mr. Robert Alonto||-||Former MILF Peace Negotiator Member, Bangsamoro Transition Commission|
|MP Atty. Suharto Ambolodto||-||BTA-BARMM|
|MP Zia Adiong||-||BTA-BARMM|
|Mr. Sam Chittick||-||Country Representative, The Asia Foundation Philippines|
|MP Engr. Don Mustapha Loong||-||BTA-BARMM|
|Mr. Ruel Punongbayan||-||Program Manager, International Alert|
|Mr. Delfin Borrero||-||International Alert|
|Ms. Shannen Ann Enriquez||-||Program Manager, Australian Embassy|
|Mr. Emmanuel Joseph Solis||-||Senior Program Officer (Political Section) Australian Embassy|
|Mayor Ramon Piang||-||Municipality of Upi, Maguindanao|