Where is the Bangsamoro Electoral Code?

A few weeks before the scheduled filing of the Certificate of Candidacies (COC) on October 1-8, 2021, the Bangsamoro Transition Authority (BTA), sitting as the ad hoc BARMM Parliament, has not yet passed the Bangsamoro Electoral Code since it first convened on March 29, 2019.

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The Electoral Code is the indispensable pre-condition to the holding of the first Bangsamoro Elections which under the Bangsamoro Organic Law (BOL) is scheduled to be synchronized with the May 9, 2022 National and Local Elections. It is intended to be the governing election law that will define the details and operationalize the holding of the said election.

To some observers, the Moro Islamic Liberation Front-led BTA is seen to have vested interests in the non-passage of the Electoral Code as without an elected Parliament they stand to gain three (3) extra years of power; and some even would even suggest that this delay is deliberate so as to force Congress to postpone the May 9, 2022 Bangsamoro Elections to May 12, 2025.

On the side of BTA, the Comprehensive Agreement on the Bangsamoro (CAB) signed between the Government of the Philippines and the Moro Islamic Liberation Front on March 27, 2014 guaranteed it “a transition period and the institution of transitional mechanisms in order to implement the provisions of the agreement.” This guaranteed transition period is unquestionably hampered by the current pandemic which can be a persuasive argument for its extension to 2025 for those pushing for it.

If the 2022 Bangsamoro Elections is successfully postponed, this would mean that the transition period will be extended to three (3) more years. However, the appointment of the new BTA members this time will fall in the hands of whoever will win in the 2022 Presidential Elections.

The second scenario is when no postponement law is passed and the BTA is able to pass the Electoral Code. This means that the 2022 Bangsamoro Elections will have to proceed as planned.

The third and the feared scenario is when there is no postponement and there is also no Bangsamoro Electoral Code. There are two views on the matter:

That first view is that it will result to a dreaded “no-election” or “no-el” scenario. Still, there is Article XVI, Section 4 (a) of the BOL which provides that until the Bangsamoro Electoral Code is enacted, “subsisting laws on elections and other electoral matters shall apply in the Bangsamoro Autonomous Region.” This means that even in the absence of the Bangsamoro Electoral Code, existing national laws can be applied by the Commission on Elections (COMELEC) to fill in missing electoral details necessary to carry out the first Bangsamoro Election.

There are two problems to this view. First, we do not have national laws or legal precedents that can govern or fill in all the crucial gaps. Second, there being no laws, COMELEC cannot by mere administrative issuance fill in these gaps. One example is in the case of District Representatives who shall compose 40% of the Parliament. To elect them, districts within the BARMM should first be created and COMELEC cannot do this as the power to create districts is legislative in character. There is also no existing national legislation on the parliamentary-type election of Party Representatives and on how their seats are apportioned or distributed. The same is the case with Reserved Seats and Sectoral Representatives, who under the BOL shall be elected in the manner that will be defined in the Electoral Code. While we can surely draw guidance from Republic Act No. 7941 or the Party-List System Act, they are not the same in concept and in design that it cannot be applied directly. There is also a question as to which province or municipality to attach the 63 barangays in North Cotabato which voted to be included in the BARMM for the purpose of the 2022 elections. Attaching them to an existing local government unit would be tantamount to a merger or substantial alteration of its territory which COMELEC cannot also do since this power is also legislative in character and may even require a plebiscite.

In other words, in this strict view of the situation, it can be argued that without the Bangsamoro Electoral Code, the 2022 Elections cannot be fully operationalized given the limitations in our subsisting laws on elections vis-à-vis the novelty of the BARMM electoral design. In sum, the Bangsamoro Electoral Code is viewed as akin to an enabling legislation of the 2022 Bangsamoro Elections – that without it, the Bangsamoro Elections would not only be legally impossible, but operationally too.

The second view necessitates COMELEC to bend backwards to enable the holding of the 2022 Bangsamoro Elections even in the absence of the Bangsamoro Electoral Code. As mentioned, this would require COMELEC to engage in legislation so as to bridge the wide chasm left by the BTA’s failure to adopt an Electoral Code. This would require COMELEC to create legislative districts, merge or alter local government territories, and even legislate new election rules over and beyond the subsisting ones. Treading towards this territory will not only test the limits of COMELEC’s constitutional powers to “enforce and administer all laws and regulations relative to the conduct of an election…,” but this adventurism will also bring it to a dangerous territory. This will not only invite suits questioning the constitutionality of the Bangsamoro Elections or their results, but COMELEC in Manila arrogating these powers rather belonging to the BARMM Parliament would be antithetical per se to the idea of autonomy and right to self-determination of the people of the Bangsamoro.

Are there funds for the 2022 Bangsamoro Elections?

The BOL grants greater fiscal autonomy to the Bangsamoro Government to determine their context-specific needs and to allocate funds to address them. Under the BOL, the BARMM is entitled to receive an annual block grant from the national government. This year, the BTA enacted a Php75.6 billion BARMM General Appropriations Act.

However, the current year’s budget of the BARMM does not include a specific line item allocation for any preparations related to the enactment of the Bangsamoro Electoral Code. There is also no allocation for the operationalization of the Bangsamoro Electoral Code better yet, the conduct of the 2022 BARMM Elections.

Assuming the second scenario in which no postponement law is passed and the BTA manages to enact the Bangsamoro Electoral Code, are there available funds for the 2022 Bangsamoro Elections? How can it proceed?

The COMELEC will certainly play a role in supervising the 2022 Bangsamoro Elections as well as in providing funds for it. In fact, Section 40 of the BOL mandates the COMELEC to establish a Bangsamoro Electoral Office (BEO). The BEO shall be under the supervision and control of the COMELEC. It shall likewise implement and enforce the Commission’s orders, rulings and decisions.

The BOL also explicitly mandated that the budget of the Bangsamoro Electoral Office shall be part of the yearly budget of the COMELEC. This is precisely the reason why there are no specific funds for election-related activities in the current budget of the BARMM.

The COMELEC has already established the Bangsamoro Electoral Office (BEO) as early as October 2020. As a constitutional and fiscally autonomous body, the COMELEC has the power to formulate and implement its organizational structure provided that it complies with the standards set by the DBM and submits to the DBM a resolution describing changes in their organization and staffing.

Through Resolution No. 10680, what the COMELEC did was it actually converted the former Office of the Regional Election Director in the ARMM into the BEO. With its establishment, the BEO will essentially be in charge of accrediting regional political parties and registering political parties based on the qualifications that will be prescribed by the Bangsamoro Electoral Code. Given this function, the same resolution created the Bangsamoro Registration and Accreditation Committee of the BEO. The committee is composed of the Regional Election Director, Assistant Regional Election Director, Provincial Election Director and Provincial Election Supervisor of the Province of Maguindanao.

In the 2021 General Appropriations Act, the COMELEC has a total budget of Php14.6 billion, with nearly 90% or Php13 billion of it set aside for its Election Administration Program. Of the Php13 billion allocation for election administration, Php117.4 million was allocated for the conduct and supervision of elections in the BARMM. This figure can be further broken down into Personnel Services amounting to Php113.7 million, and MOOE amounting to Php3.7 million.

Meanwhile, the proposed total budget of the COMELEC for 2022 increased by 45% from Php14.6 billion to Php26.5 billion. This is of course due to the budgetary requirements of the upcoming 2022 presidential elections. Nonetheless, the Php26.5 billion figure approved by the DBM is much lower than the original Php42 billion budget proposal of the COMELEC.

As in this year’s and previous years’ budget of the COMELEC, the largest chunk of the proposed budget will again go to election administration. For the BARMM, the proposed budget for 2022 stands at Php125.9 million. The increase in funding allocation mainly went to Personnel Services at Php122.3 million, while its MOOE allocation slightly decreased to Php3.5 million.

With the establishment of the Bangsamoro Electoral Office by the COMELEC in October last year, and the requirement of the BOL for the COMELEC to provide yearly allocations for the said office, financing the Bangsamoro Election is hardly a problem. The COMELEC can even tap into its own savings in case funds are insufficient to provide allowances for the Board of Election Inspectors or to purchase supplies, materials and logistics necessary for the elections.

In every annual appropriations law, there is always a special provision in the COMELEC budget that reiterates Section 25 (5), Article VI of the Constitution or the provision on the use of savings.

Whatever the scenario may be, the postponement or non-postponement of the Bangsamoro elections lies not in the politics and technicalities of the budget. It largely depends on the politics in the region. It depends too on the commitment of the BTA to meet the administrative and legal requirements of transition. But as the filing of COCs draws nearer, the possibility of enacting the Bangsamoro Electoral Code is also getting dimmer.

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ABOUT THE AUTHORS:

Atty. Emilio Marañon III is a research fellow of the Access Bangsamoro Project. He was the former Chief of Staff of former COMELEC Chairperson Sixto Brillantes, and has been practicing election law after his stint in COMELEC.

Ms. Zy-za Nadine N. Suzara is a research fellow of the Access Bangsamoro Project. Concurrently, she is also the Executive Director of the Institute for Leadership, Empowerment, and Democracy.

This article is written as part of the Access Bangsamoro Project. Access Bangsamoro is an online and social media portal that promotes the free flow of information, analysis, and discussions for the effective implementation of the Bangsamoro Organic Law (BOL) and the successful transition to the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM). The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views and opinions of Access Bangsamoro, its proponents, or affiliates.