THE proposed Bangsamoro that is to replace the Autonomous Region in Muslim Mindanao (ARMM) has received support on the basis of its goal of achieving equitable autonomy for its people. However, as its proposed parliament has legislative powers similar to those of the individual member states of the United States of America, the political entity to be created under the Bangsamoro Basic Law (BBL), according to the draft, has been aptly described as a sub-state. The draft has clothed this entity with the elements of a state, having its own territory, its Bangsamoro people with a separate identity, its government with an asymmetric relationship with the Philippine central government, and bearing power to enter into economic agreements with other nations.
Under the draft BBL, its parliament has Exclusive Powers over a long list of matters (including education, culture and language), over which authority and jurisdiction shall pertain to the Bangsamoro government. This is similar to the federal system of the USA where the individual states have exclusive jurisdiction over certain matters and over which the federal government has no power to legislate. The grant of exclusive legislative powers to the Bangsamoro parliament contravenes the Philippine Constitution, which provides that the legislative powers of the autonomous regions shall be subject not only to the provisions of the Constitution but also to national laws.
If the objective is to establish a model of equitable autonomy, Congress has the responsibility of ensuring that the Bangsamoro does not become a sub-state and that the BBL does not contravene other provisions of the Philippine Constitution.
Congress should provide amendments that achieve this objective while hewing it as closely as can be to the basic outline of the draft BBL.
On the matter of Exclusive Powers, Congress should state that these are subject to national laws, for example, by adding a sentence to Article 6, Section 8 of the draft BBL: “The Philippine Congress – Bangsamoro Parliament Forum. There shall be a Philippine Congress – Bangsamoro Parliament Forum—for purposes of cooperation and coordination of legislative initiatives. The Philippine Congress may enact laws to harmonize conflicting legislation, when the general interest so requires.” (Proposal underscored).
The Spanish Constitution of 1978, a pioneer in setting up self-governing communities which are not sub-states, has this provision on this matter: “The State may enact laws laying down the necessary principles for harmonizing the rulemaking provisions of the Self-Governing Communities, even in the case of matters over which jurisdiction has been vested to the latter, where this is necessary in the general interest. It is incumbent upon the Cortes Generales, by overall majority of the members of each House, to evaluate this necessity.”
To avoid creating a sub-state, another change that needs to be made is replacing the term “territory” found in the draft BBL with the term “territorial jurisdiction,” the language employed by the Philippine Constitution, or with “territorial boundaries” as used by the Spanish Constitution, because “territory” has a legal connotation implying reference to a state. Likewise, Congress should revert to the definition of Bangsa Moro in the ARMM Expanded Organic Law, which states that Bangsa Moros are Filipino citizens. There should be no reason to object to this inclusion in the definition because the MILF spokesman has argued that this is already implied from other provisions of the draft BBL.
In light of the recent massacre, the MILF’s sincerity with the peace process can be tested by letting the MILF show that the group accepts the Philippine Constitution as its own.
(Ambassador Jaime S. Bautista is Secretary General of Philippine Ambassador’s Foundation Inc. (PAFI) and Professor of Law at the Ateneo de Manila and Philippine Christian University. The views expressed are his and not necessarily of the PAFI.)