This position paper was submitted by Atty. Benedicto Bacani, executive director of IAG and former dean of the College of Law at Notre Dame University in Cotabato City, on 16 February 2021 to the Committee on Suffrage and Electoral Reforms of the House of Representatives.

 

I thank the Honorable Chairpersons Juliet Marie De Leon Ferrer, Ansaruddin Abdul Malik A. Adiong and Esmael G. Mangudadatu and this Committee in a joint meeting with the Committee on Muslim Affairs and the Special Committee on Peace, Reconciliation and Unity for this opportunity to express the views of the Institute for Autonomy and Governance on the pending bills for resetting the BARMM elections. My greetings to the Honorable sponsors of the pending measures which are a testament to their dedication towards enduring peace and development in southern Philippines.

 

IAG is an independent policy research and training center based at the Notre Dame University in Cotabato City devoted to the development of autonomy and good governance as a way to sustainable peace and development. Since 2001, we have been monitoring, researching, consulting and studying developments particularly in the political track of the peace processes with the MNLF and the MILF, the evolving structures in the ARMM and now the transition to a regular BARMM government. The views I express today are a product of our studies and consultations with stakeholders.[1]

 

The main argument for the proposal to postpone the first regional elections and extend the term of the BTA is that the 3-year transition period is too short to deliver the peace dividends that people expect. To make things worse, the pandemic has hobbled the BTA to complete its tasks.  If the elections are held, there is no guarantee that the first regular government will be as committed as the MILF-led BTA to preserve and advance the gains and interests of the peace process.  

 

On the other hand, those who are critical of moving the elections have argued that the BTA’s mandate is primarily to organize the government which can be completed within the 3-year period. Postponing the elections will create more instability as the region will continue to be governed by an appointed BTA with weak political legitimacy. They believe that there will be no inclusive governance under the MILF-led BTA. Legal commentators have raised legal questions particularly in amending the BOL without a plebiscite and resetting the regional elections independently of local elections.

 

The arguments for or against these bills indicate the high stakes around this issue than simply changing the date of the first regional elections from May 2022 to 2025 or later. Whatever route Congress takes on these bills will have far reaching consequences, good or bad, to our quest for sustainable Mindanao peace and development.

 

We are now in this difficult situation because at the outset, the vision, mandate, goals and milestones for the BTA during the transition period have been the subject of different interpretations. The culprit: the BOL which provides that the mandate of the BTA is not only organize a new regional government but also to govern it.[2]

 

Here lies the fundamental problem: How can the BTA effectively govern when it is still organizing the government? And how can the BTA effectively govern when its members are appointed not elected?

 

Organizing the Bangsamoro government alone is already a huge and complex task. The BTA has to transition the ARMM from a presidential to a ministerial/parliamentary system. It has to fill in public offices and organize the ministries practically from scratch. It has to put in place the regional parliament which is a new and novel under our presidential system. It has to make inter-governmental relations with the national government and the local government units work efficiently because regional policies must be consistent with national laws.

 

On top of this, expectations are high that the BTA governs not only as if it is a regular government, but it governs better than its regional government-predecessors.

 

But the BTA, as a transition authority, is handicapped to govern. There are two (2) pre-requisites for governing effectively: First, that leaders enjoy political legitimacy thru democratic elections and second, strong political institutions and bureaucracy are in place. An appointed BTA, accountable not to constituents but to the President, governs with impaired political legitimacy.

 

The case can be made that the BTA must be given more time to organize the government to show its mettle to govern.  Congress may consider this argument but overcoming the political legitimacy deficit can only be thru elections, not extension of the term of the BTA.

 

How do we get out of this conundrum?

 

The key is to revisit and build consensus on the principal mandate of the BTA and to determine the indicators for its success.

 

As a transition authority, the principal task of the BTA is to facilitate the political transition. The milestones for a good political transition are: 1) a fair and credible electoral design and system for regional parliamentary elections; 2) interim regional Parliament, acting as the voice of the Bangsamoro citizens, that is consultative and deliberative; 3) bureaucracy consistent with the ministerial parliamentary system 4)  a stable inter-governmental relations with the national government and LGUs.

 

We must not lose sight of the vision of the political track in the CAB and the BOL. The key to peace is an autonomy arrangement where the Bangsamoro can meaningfully express their right to self-determination. The political transition establishes the institutions, policies and bureaucracy for autonomy and Bangsamoro self-determination pursuant to the BOL. The political transition is the pre-departure area to prepare for the lift-off of the regular regional government.  It is the regular government, not the transitory authority, that is the autonomous government. The transitory authority is appointed by the President and its members are accountable to the President. On the other hand, the elected regular government is accountable to the people as the platform for meaningful autonomy and self-determination.

 

Postponing the first regular elections means holding further the establishment of the regular government. The establishment of the regular government is the most significant peace dividend of the political track of the peace process because this is the structure for Bangsamoro self-determination.

 

There are those who posit the view that the peace process is fragile and strict adherence to law may get in the way of the peace process. But democracy and rule of law are keys to successful post-conflict political transitions. Peace process and rule of law are not mutually exclusive. In fact, rule of law is peace process in a political transition. The BOL is the implementing law of the political aspects of the CAB that has been ratified by the people. While the CAB is a product of the two-party negotiations, the BOL is the expression of the Bangsamoro people’s sovereign will. The BOL binds all and for all.

 

International Alert’s Senior Policy Adviser Pancho Lara[3] and former member of the legal panel of the GPH negotiating panel and University of Oxford Faculty of Law’s Atty. Armi Beatriz E. Bayot[4] pointed to the flaws in the proposal to postpone the first regular elections for the Bangsamoro Parliament in May 2022. They recommend that Congress should seriously consider that the Philippine Government and the MILF have, painstakingly, adhered to the Rule of Law and all the requirements of Law set by the Constitution from the Peace Negotiations that produced the 2004 CAB to the establishment of the Bangsamoro Transition Commission that drafted the BOL to the submission of the Draft BBL to Congress and to the final legislation and signing of RA 11054 or the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao to the Plebiscite of the Organic Law to the establishment of a new Bangsamoro Autonomous Region in Muslim Mindanao. Whether the transition set by law is too short and/or the specter of failures to deliver the committed deliverables during the transition are beside the point. The first regular elections (May 2022) and the establishment of the First Regular Bangsamoro Parliament (June 30, 2022) are commitments made by both the Philippine Government and the MILF. The people of the BARMM ratified these commitments when they ratified RA 11054.

 

One argument to extend the transition is for the BTA to see thru the completion of decommissioning and normalization. To extend the transition as if the primary responsibility for normalization and decommissioning rests on the BTA sets a dangerous precedent that puts in peril the swift completion of the political track which is critical in maintaining political stability and security in the Bangsamoro.

 

Normalization and decommissioning of the MILF are the mandate of the peace infrastructure of the government and the MILF, not the BTA. The critical distinction of the political and normalization tracks, while interrelated, must be maintained for practical purposes so mandates, responsibilities and milestones are clear.

 

Another argument for extending the transition is that the CAB has not been fully implemented.This is a dangerous argument that raises false expectations and frustrations among the people on what the political transition is mandated to achieve.

 

The implementation of the CAB involves different stages, milestones and actors. The political transition ends upon election of the regular government.  The peace panels of the GPH and the MILF sign the exit agreement upon full implementation of the agreement. The political transition and the BTA must not be held hostage to the implementation of the provisions of the CAB over which it has no mandate and control. The implementation of the CAB is not coterminous with the term of the BTA.[5]

 

As to the legal issues around postponing the elections, the ruling of the Supreme Court in Abas Kida vs. Senate of the Philippines[6] poses legal hurdles.  Deciding on a Motion for Reconsideration,[7] the Supreme Court declared that there are only two categories of elections in the country: national and local elections and the regional elections for the defunct ARMM are considered local elections. The Court allowed the resetting of the regional elections to comply with the constitutional mandate that national and local elections must be synchronized.  If the first regional elections are considered local elections, the legal issue is whether the regional elections can be moved independently of and without postponing the local elections in local government units?

 

Another issue is the legal requirement of plebiscite in amending the BOL to reset the elections. Proponents have advanced the legal opinion that there has been precedents that the regional elections were reset without subjecting the legislation to a plebiscite. The Abas Kida ruling is cited as precedent where the Court did not require the holding of the plebiscite for resetting the ARMM elections. But a careful examination of the Abas Kida ruling reveals that the Supreme Court did not require that a plebiscite be held as demanded by the petitioners because it rules that resetting the elections does not amend R.A. 9054 or the ARMM Organic Law. Under the proposed bills, the BOL is to be amended to reset the first regular elections in the BARMM from 2022 to 2025.

 

Legal scholar Atty. Michael Yusingco[8] reviewed the Abas Kida ruling where the Supreme Court ruled that those aspects mentioned in the Constitution which Congress must provide for in the Organic Law--- require subjecting the amendment or revision to 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.”

 

Atty. Yusingco poses this question: Is postponing the first regular 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 amendment to the Organic Law must be subjected to a plebiscite.

 

In conclusion, resetting the elections is not a simple and straightforward issue. There are benefits and potential perils in approving the proposal and Congress must weigh the benefits of resetting the elections against potential legal, political and security risks and its implications to the peace process. Whatever course of action Congress takes, it has to balance the imperatives to strengthen democracy and rule of law while ensuring that  the MILF continues to be engaged with a significant voice in the political track of the peace process. In balancing these interests, amending the BOL to reset the first regular elections may not be the solution or it is inadequate at the very least. A mix of political and legal measures may be needed.

 

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[1] IAG’s online resources are available at iag.org.ph

[2] Art. XVI, Sec. 3, BOL “Legislative and executive powers in the Bangsamoro Autonomous Region during transition shall be vested in the Bangsamoro Transition Authority xxx

All powers and functions of the Bangsamoro Government as provided in this Organic Law is vested in the Bangsamoro Transition Authority during the transition period.

[3] https://opinion.inquirer.net/136676/democracys-u-turn-in-the-bangsamoro

[4]http://www.iconnectblog.com/2021/02/democracy-on-hold-framing-the-debate-on-the-barmm-transition-in-the-philippines/?fbclid=IwAR0DnqXWW98UuR7A2dwLRTQgunhEBf6n4V-AN_cjJQ8dpFeUmvmz22Bggc0

[5] Art. XVI, Sec. 1 xxx 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.

[6] G.R. No. 196271, October 18, 2011

[7] G.R. No. 196271, February 28, 2012

[8] https://www.rappler.com/voices/ispeak/opinion-amending-bangsamoro-organic-law