On amending the BOL to preserve peace dividends in the BARMM 1

On amending the BOL to preserve peace dividends in the BARMM

Michael Henry Ll. Yusingco, LL.M

Posted at Feb 08 2021 11:26 PM

Last November 17, 2020, the Bangsamoro Transition Authority (BTA), acting as the interim parliament, issued Resolution No. 93 urging Congress to amend the Bangsamoro Organic Law (BOL) to extend the 3-year transition period to June 30, 2025. 

At the heart of the proposed 3-year extension is the belief that more time is needed to complete the implementation of the Comprehensive Agreement on the Bangsamoro (CAB). 

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For example, the decommissioning of combatants, which is a key transition milestone, is still far away from being finished given only 12,000 out of the 40,000 members of the Bangsamoro Islamic Armed Forces 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 Moro Islamic Liberation Front (MILF) combatants? 

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 the peace process once the 3-year transition period ends? 

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, the prevailing view treats both as parallel pursuits. But 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. 

Accordingly, several bills have been filed in both chambers of Congress seeking to amend the BOL via the postponement of the regional parliamentary election in 2022. 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.

However, one vital question in this extension debate is, 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. 

Surprisingly, the Supreme Court actually ruled in this case that 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 cast 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. 

How then can Congress sidestep the plebiscite issue and still address the concerns raised by the MILF and the BTA about preserving the gains of the peace process? 

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. 

More importantly though, it has been argued as well that the first elected Bangsamoro Parliament bears the moral responsibility to ensure there is no interruption in the pursuit of both the normalization and political transition tracks. (See Section 5 (a) of Article VII and Sections 1 & 2 of Article IX of the BOL)

Therefore, instead of postponing the 2022 Bangsamoro parliamentary elections to extend the transition period, Congress can amend the BOL by providing a clear and viable transition roadmap for the first elected regular Bangsamoro Parliament to implement.

Specifically, the amendment must prescribe a more detailed and milestone-directed transition process from 2022 onwards. More importantly, it must place the responsibility to oversee this process directly on the first elected Bangsamoro Parliament regardless of which political party or group has control of the government of the day. 

This amendment does not change the basic structure of the regional government established by the BOL and hence, as per the Abas Kida case, need not be ratified by a plebiscite. 

But certainly, this modification ensures there is coherence in the implementation of the two tracks of the peace process. Ultimately making sure as well that the Bangsamoro autonomous region stays on its promising economic development trajectory.

(Author’s bionote: The author is a Senior Research Fellow of the Ateneo Policy Center for their Access Bangsamoro project.) 

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.