The Society of Honor by Joe America

As the Philippine National government, or “Central government” as it is termed in the Bangsmoro Basic Law (BBL), wrestles with the aftermath of a horrid battle in the cornfields of Mindanao, let us take a different approach. The official government investigations will center on the battlefield and from that consider the BBL. We will start with the BBL and from that consider the battlefield encounter. That will point us to ways this document might be improved . . . or maybe lead us to decide it should be scrapped.

Others are also advocating that the BBL be looked at in a new light because of the encounter: “BBL ‘may need constitutional surgery’ ” (Inquirer). But that is for lawyers and academics. We are merely rational people with an overbearing desire to educate ourselves, and think about the BBL.

The BBL is a uniquely Filipino product, hammered out in good faith by representatives of the Bangsamoro region and the Central government, assisted by several international advisers. We will start with the first five articles because they frame much of the discussion that follows. Next we will explore the sections relevant to defense, crime and law enforcement. Then we will probe other sections that seem particularly important. Humorists might consider the approach akin to looking for “the good, the bad and the ugly.”

Some “understandings”

Let us start with some principles or “understandings” of how to approach this document, the BBL:

1. Our first understanding is aimed at opening our minds to the purpose of the Law, which is peace and prosperity, and not close it from the start because it is something new. Our view is that the BBL ought not be rejected because no one else has done it this way. Rather, we might take a measure of pride in the fact that the Philippines is proactive where other states are largely failing. The Philippines seeks to find a way to integrate those who have deep indigenous roots in Mindanao, and a strict religious faith, into a secular democratic state in a way that improves and invigorates both. The BBL seeks to improve the peace, order, prosperity and well-being both of the Moro community and of the larger Philippine nation.
2. Our second understanding is that trust is weak on both sides of the table. Muslim Mindanao feels abandoned and bullied, the broader Philippines feels threatened and betrayed. Yet, if we don’t work through that, and prove that good faith is possible, then there is little hope for peace.
3. Our third understanding is to consider that the rights and powers granted to the Bangsamoro government in the BBL are not the result of some kind of radical favoritism or unreasonable concession, but rather a way to give a heretofore neglected community considerable say it its own well-being. It may, indeed, be a prototype government, a model that works elsewhere, either within the Philippines or outside.
4. Our fourth understanding is that this is not a legal review. It is a layman’s review to learn the basics, to identify some questions, to point out what we perceive are some strengths, and to suggest some ways to improve the document. We will skip over a lot of the words in the document to try to grasp the essence, the meanings. If you want the complete document, it is here: Bangsamoro Basic Law.

Okay, now we are ready to look at the Preamble, and Articles I through V. That will get us oriented before we plunge into some specific issues.

Preamble

The preamble is both direct in that it “establishes the asymmetrical political relationship with the Central Government” and confusing in the statement that it is “founded on the principles of subsidiarity and parity of esteem.”

Asymmetrical means that it is unique, not the same as elsewhere. We view that as neither good nor bad. It can be either based on the execution. It’s good that this acknowledgement is up front.

The “subsidiarity” description seems to suggest that the Bangsamoro government is a subordinate part of the Central government. That’s good. It probably helps with any constitutional issues. The confusion: If “parity of esteem” means equality among peoples, that ought to be said. If it means we can be proud of both, that is what ought to be said. If it means to suggest either government – Central or Bangsamoro – ought not be insecure, then it is dealing with psychology and not governance and ought to be left out. In other words, this statement is not working, for this particular layman. I don’t know what it means and don’t like the word “esteem” in a legal document.

Article I, Name and Purpose

This section is short and sweet. Bangsamoro is a political entity to “secure their identity and posterity and allow for meaningful self-governance.” It is not a nation. It is like a province, a part of a larger and interwoven matrix of management functions. The goal is meaningful self-governance, which means it is designed to bring something important into governance. It is not independence or anything close to it.

Good. No issues, other than that it would seem that a lot of people are misinformed when they claim the agreement will lead to “autonomy” for the Bangsamoro.

Article II, Bangsamoro Identity

Bangsamoro are original natives living in the designated region (see Article III), and their descendants. The definition has nothing to do with religion, but heritage and roots.

I see the exercise akin to how the US dealt with Native Americans which was poorly done by assigning “Indians” to reservations that operated as independent nations within a nation, but had absolutely no economic power to promote self-sufficiency or equality. Only recently have Native Americans found an economic niche, running casinos, that afford many a better standard of life.

The “Bangsamoro identity” definition is reasonable for the purpose of the document. At issue is whether or not it designates a privileged class or ensures that the equality mandated in the Philippine Constitution is granted all citizens. More about that in a future article.

“Freedom of choice of other indigenous peoples shall be respected.” That is important. As we will see later, the BBL is not INTENDED as an imposition of the Muslim faith. We must try to see into the future and determine if, in practice, that will hold true.

Article III, Territory

Core Territory – The core territory of the Bangsamoro shall be composed of:

1. The present geographical area of the Autonomous Region in Muslim Mindanao;
2. The Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite;
3. The cities of Cotabato and Isabela; and
4. All other contiguous areas that “opt in”.

A map showing the approximate location of the Bangsamoro territory is shown here, courtesy of the Philippine Center of Investigative Journalism (PCIJ):

“Opt in” is my shorthand phrase for saying that it is a choice if residents now outside the Bangsamoro territory wish to join the region. Opting in requires a petition signed by at least 10% of the voting population, and then a plebiscite with majority vote in favor of joining. Areas must be contiguous to the existing region. The Bangsamoro government can’t go about the nation picking communities to join. It can expand if adjacent residents want in.

This article also defines water rights. There is one eccentric paragraph:

“Should [areas within the Bangsamoro territory and areas outside] be so situated that there is more than thirty (30) kilometers but less than 37.224 kilometers of waters between them, a line shall be drawn at the edge of the 15 kilometers municipal waters of the adjoining local government unit to demarcate it from the Bangsamoro Waters.” 

That is a 7.224 km advantage to the Bangsamoro, and one wonders why the line is not drawn down the middle. A small but irritating matter to perfectionists.

This Article is also a strange place for this:

“Section 7. Collective Democratic Rights of the Bangsamoro People. – The collective rights of the constituents of the Bangsamoro shall be recognized.”

What this actually MEANS is unclear in the context of “territory”. That the region is a democracy? The same thing is said in the next section. Suggestion:  either drop it or restate it so we know what it means and what its importance is.

Overall take: My take on this is that the region is actually quite small. It represents perhaps 20% of Mindanao’s land mass. It is large enough to build an economy (better than the Native American solution in theUS), but it is not dominant in relation to greater Mindanao.

Article IV, General Principles and Policies

Early sections of this article state that the Bangsamoro government is a democracy, parliamentary, using an electoral process, with civilian authority supreme over military authority. All good.

Section 5. Promotion of Unity. The Bangsamoro Government shall promote unity, peace, justice, and goodwill among all peoples, as well as encourage a just and peaceful settlement of disputes. The Bangsamoro abides by the principle that the country renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

This clearly is aimed at fitting the agreement to the Constitution. These are good principles.

Other sections promote right over wrong, state the goal of making sure “every citizen in the Bangsamoro is provided the basic necessities and equal opportunities in life”, and note that “The Bangsamoro Government shall respect and adhere to all international treaties and agreements binding upon the Central Government.”

Critical, critical understandings. All good.

Skeptics will ask if these principles will be employed in practice, for the recent Moro/government clash taxes one’s confidence. “If these values are important, why are they not being lived up to today?”

Article V, Powers of Government

This is a crucial section that assures the Central government that it can function as one nation, yet assigns considerable powers of self-governance to the Bangsamoro government. Duties and responsibilities are itemized to belong to one of three categories: (1) the Central government, or (2) concurrent and shared between Central and Bangsamoro governments, or (3) the Bangsamoro government. A separate section is dedicated to “Other Exclusive Powers” to clarify some duties and responsibilities belonging to the Bangsamoro government that are passed over from powers now held by ARMM.

I have trimmed the words a bit, but will list all the elements and elaborate on a couple of points so we can ferret out what is important for us to consider further. For example, matters such as defense, crime, military and policing will be examined in future articles.

Central Government

The following duties and responsibilities belong solely to the Central government:

1. Defense and external security;
2. Foreign policy;
3. Coinage and monetary policy;
4. Postal service;
5. Citizenship and naturalization;
6. Immigration;
7. Customs and tariff as qualified by Section 2(10), Article V
8. Common market and global trade, except as providedd in Article XII, Section
9. Intellectual property rights.

Note that Bangsamoro residents are citizens of the Philippines. They are as Filipino as the residents of luxury towers in Manila, or settlers on the river banks in the provinces.

Concurrent/Shared

Certain duties and responsibilities are allocated to the Bangsamoro government, but within the framework of the Central government’s overall jurisdiction.

1. Social security and pensions.
2. Quarantine.
3. Land registration.
4. Pollution control.
5. Human rights and humanitarian protection and promotion.
6. Penology and penitentiary.
7. Auditing.
8. Civil service (Bangsamoro shall discipline its own employees).
9. Coastguard.
10. Customs and Tariff.
11. Administration of justice – – Administration of justice shall be in accordance with the relevant provisions of this Basic Law and with due regard to the powers of the Supreme Court and the competence of the bangsamoro Government over Shari’ah courts and the Shari’ah justice system in the Bangsamoro. The supremacy of Shari’ah and its application shall only be to Muslims.
12. Funding for the maintenance of national roads, bridges, and irrigation systems.
13. Disaster risk reduction and management.
14. Public order and safety.

Essentially, the basic pattern in each of these areas is to assign fairly substantial duties and responsibilities to the Bangsamoro government, but always in coordination with or subject to oversight by Central.

I’ve included all the language on “Administration of Justice” to make clear that Shari’ah courts have authority only over Muslims. At issue is where these “secular courts” will be located and who will oversee them. More on that later.

Bangsamoro

The following 58 duties and responsibilities are assigned wholly to the Bangsamoro government, with a few caveats.

1. Agriculture, livestock and food security;
2. Economic and cultural exchange;
3. Contract loans, credits, and other forms of indebtedness with any government or private bank and other lending institutions, except those requiring sovereign guaranty, which require Central Government approval;
4. Trade, industry, investment, enterprises and regulation of businesses taking into consideration relevant laws;
5. Labor, employment, and occupation;
6. Registration of business names;
7. Barter trade and countertrade with ASEAN countries;
8. Economic zones and industrial centers;
9. Free ports. (shall cooperate with the Central Government on customs, immigration, quarantine service, and international commitments.)
10. Tourism;
11. Creation of sources of revenue;
12. Budgeting;
13. Financial and banking system – Without prejudice to the power of supervision of the Bangko Sentral ng Pilipinas (BSP)
14. Establishment of government-owned and/or controlled corporations (GOCCS) and financial institutions.
15. The Bangsamoro Government shall have authority to regulate power generation, transmission, and distribution operating exclusively in the Bangsamoro and not connected to the national transmission grid.
16. Public utilities operations in the Bangsamoro with inter-regional cooperation
17. Receive grants and donations;
18. Education and skills training;
19. Science and technology;
20. Research councils and scholarships;
21. Culture and language;
22. Sports and recreation;
23. Regulation of games and amusement operations within the Bangsamoro;
24. Libraries, museums, historical, cultural and archaeological sites.
25. Regulations on manufacture and distribution of foods, drinks, drugs and tobacco for the welfare of the Bangsamoro;
26. Hajj and Umrah. (Pilgrims from within or outside.)
27. Customary laws;
28. Declaration of Bangsamoro holidays;
29. Ancestral domain and natural resources;
30. Protection of the rights of the indigenous people in the Bangsmoro in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, and taking into account in addition to economic and geographical criteria,
31. Land management, land distribution, and agricultural land use reclassification.
32. Cadastral land survey.
33. Expropriation and eminent domain;
34. Environment, parks, forest management, wildlife, nature reserves and conservation.
35. Inland waterways for navigation;
36. Inland waters;
37. Management, regulation and conservation of all fishery, marine and aquatic resources;
38. Bangsamoro settlements;
39. Customary justice;
40. Shari’ah courts and Shari’ah justice system;
41. Public administration and bureaucracy for the Bangsamoro;
42. Health, provided that the Central Government and the Bangsamoro Government shall cooperate with and assist each other in the prevention and control of epidemic and other communicable diseases;
43. Social services, social welfare and charities;
44. Waste Management;
45. Establishment and supervision of humanitarian services and institutions;
46. Identification, generation and mobilization of international human resources for capacity building and other activities involving the same within the Bangsamoro. The Central Government shall cooperate with and assist the Bangsamoro Government towards ensuring access to such relevant human resources through the intergovernmental relations mechanism;
47. Establishment of Awqaf (endowment) and charitable trusts;
48. Hisbah office for accountability as part of the Shari’ah justice system;
49. Registration of births, marriages, and deaths, copies of which shall be forwarded to the Philippine Statistics Authority;
50. Housing and human settlements;
51. Development planning.
52. Urban and rural development;
53. Water supplies and services, flood control and irrigation systems in the Bangsamoro, , with cooperation
54. Public works and highways within the Bangsamoro;
55. Establishment of appropriate mechanisms for consultations for women and marginalized sectors;
56. Special development programs and laws for women, the youth, the elderly, labor, the differently-abled, and indigenous cultural communities;
57. Local administration, municipal corporations and other local authorities including the creation of local governments. – The Bangsamoro Government shall manage and build its own bureaucracy and administrative organization, in accordance with the ministerial form of government; (majority plebescite)
58. Establishment or creation of other institutions, policies and laws for the general welfare of the people in the Bangsamoro.

The Bangsamoro government has significant authority for the well-being of its population. Those powers that we will extract for further consideration are: (39) Customary justice, and policing, which is lodged within Concurrent/Shared powers under Number 14, “Public Order and Safety”. There is a section of the BBL dedicated to policing, and we will look at it in the next article.

Other Exclusive Powers

The following powers and competencies are transferred from ARMM to the Bangsamoro government as part of its exclusive powers:

(a) To regulate and exercise authority over foreign investments. Central may intervene in such matters only if national security is involved;

(b) To proclaim a state of calamity over its territorial jurisdiction or parts thereof;

(c) To temporarily take over or direct operation of any privately-owned public utility or business affected with public interest, in times of state of calamity;

(d) To recognize constructive or traditional possession of lands and resources by indigenous cultural communities subject to judicial affirmation;

(e) To adopt and implement a comprehensive urban land reform and land use program, to ensure the just utilization of lands;

(f) The Bangsamoro Parliament shall have the following powers:

1. To enact legislation on the rights of the people; to be consulted on matters that affect their environment; to call for a referendum on important issues affecting their lives; and, to recall regional or local officials;
2. To conduct inquiries or public consultations in aid of legislation;
3. To enact a law that would allow the Chief Minister, Speaker of the Parliament and the Presiding Justice of the Bangsamoro Shari’ah High Court to augment any item in the Bangsamoro General Appropriations Law for their respective offices from savings in other items of their respective appropriations;
4. To enact a law that shall regulate the grant of franchises and concessions, and empower the Chief Minister to grant leases, permits, and licenses over agricultural lands and for forest management;

(g) To create pioneering firms and other business entities needed to boost economic development;

(h) To establish and operate pioneering public utilities;

(i) To support and encourage the building up of entrepreneurial capability and to recognize, promote, and protect cooperatives;

(j) To supervise and regulate private schools;

(k) To be represented in the board of the state universities and colleges (SUCs);

(l) To supervise, through the appropriate ministry, the accredited madaris in the Bangsamoro;

(m) To adopt measures to protect and promote the rights of people’s organizations and other collective organizations;

(n) To adopt measures for the protection of the youth in the Bangsamoro and the promotion of their welfare;

(o) To enforce the policy against the appointment or designation of any member of the Armed Forces of the Philippines in the active service to a civilian position in the Bangsamoro Government, including government-owned and/or -controlled corporations, or in any of their subsidiaries or instrumentalities within the Bangsamoro.

These matters are reasonable undertakings for a local government. Given that the authorities already reside in ARMM laws, we can presume there are no constitutional issues. However one does make note of item (f) 3, which authorizes a discretionary spending program that allows redeployment of savings. This is like Central’s DAP program that failed constitutional challenge; the definition of “savings” is important.

Where do we go from here?

With this understanding of the basics, we can now start to probe some key issues. Our course of discovery has two important initiatives:

1. To get the views of and directives from readers as to their understandings, questions, and suggestions for future exploration.
2. We want to work through an issues-based agenda in further write-ups.

Readers are invited to identify problems and opportunities they see from this beginning jump-off point. It is not necessary to discuss the matters in depth at this point, as we will do that as we organize an agenda of topics to debate. But they should be raised to see if there is a place for them on the agenda.

Here are three topics identified during this overview of structure and powers:

• Defense, crime, military, policing (public order and safety). Will the BBL establish the framework to prevent further clashes between Moro/Government forces? Is there really a way to assure peace and order, or is it a hypothetical pipe dream? What about violence and intimidation outside the BBL territory aimed at expansion?
• Do Bansamoro become a privileged class? Is the notion of equality undermined? How, in practice, does the Bangsamoro government avoid imposing the Muslim faith on citizens?
• Will justice be done? Where will “secular courts” will be located and who will oversee them? Who drives prosecution?

These subjects form a tentative agenda for future discussion. Other topics can be suggested and we’ll slot them in, continuing the dialogue as long as it makes sense to do so.

It would seem that peace and order very clearly needs a look, so that is up next.