On the Proposed BARMM Transition Extension

By Atty. Emilio Marañon III
Research Fellow, Access Bangsamoro
28 January 2021

 

Under the 1987 Constitution, the creation or even alteration of a political subdivision would require the approval of the people directly affected in a plebiscite that will be called by the Commission on Elections (COMELEC). A similar plebiscite requirement is expressly provided in the second paragraph of Section 18 of Article X as regards the creation of “autonomous regions in Muslim Mindanao” which provides that:

“The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”

The same constitutional process was followed in the creation of the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) which replaced the Autonomous Region in Muslim Mindanao (ARMM).

BARMM’s “Constitution” which is the “Bangsamoro Organic Law” (BOL) was signed into law by President Rodrigo Duterte on July 26, 2018 and took effect on August 10, 2018.

On January 21, 2019, a plebiscite was held for ARMM areas where its voters were made to answer one question:

Are you willing to adopt the Republic Act No. 11054 also known as “Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao”?

With 1,540,017 votes saying “yes” to the BOL (as against 198,750 “no” votes), the COMELEC sitting as the National Plebiscite Board of Canvassers (NPBOC) announced on January 25, 2019 that the BOL was “deemed ratified.”

Soon after the ratification, President Duterte on February 27, 2019 released the appointment papers of 77 Bangsamoro Transition Authority (BTA) members, including the appointment of MILF Chairman Murad Ebrahim as its Interim Chief Minister. More appointments were issued at later dates to complete BTA’s 80 seats allotted in the BOL.

Under Article XVI Section 2 of the BOL, the BTA will be serving as the interim government in the BARMM during the transition period until the Bangsamoro Government is elected in its first election which as stated shall be held and synchronized with the May 9, 2022 National and Local Elections.

However, more than 1 year and 8 months after the holding of its first session on March 29, 2019, there has been no news from the BTA on the Bangsamoro Electoral Code which would have been the indispensable pre-condition to make the first Bangsamoro election happen in 2022. No official draft has so far been released by the cabinet for consultation with the affected stakeholders and the general public.

Instead, Malacañang recently confirmed the rumored move of the BTA to urge President Duterte to rather extend the transition period from 2022 to 2025. In a statement on November 25, 2020, Presidential Spokesman Harry Roque disclosed that the President’s position is that moving the 2022 Bangsamoro election would require a law and that he is not only open, but willing to help in amending the BOL. Interestingly, the conversations around the planned election postponement do not seem to factor the holding of a plebiscite to ratify the proposed material changes in the BOL.

This move of both the BTA and Malacañang opens a novel legal question of whether Congress can amend the BOL to move the 2022 BARMM elections to 2025 by mere statutory amendment and without a holding a plebiscite.

It must be understood that the BOL is not an ordinary legislation that can be amended following the regular process of law-making. The text of the BOL have been approved by an overwhelming majority of Bangsamoro voters voting in the January 21, 2019 plebiscite. It is thus a very persuasive argument that the sitting BTA and Congress cannot unilaterally alter or change its ratified provisions without having the changes likewise ratified by the people of the Bangsamoro. This view is hinged on that simple logic that to amend this agreement would require the same power that put it into effect. This argument is further strengthened by the fact, that per the phrasing of the plebiscite question itself, what has been ratified was not just the creation of the BARMM, but the BOL as a law itself.

Apart from this legal objection, the other goes deeper. We have to note that with the process of ratification, the BOL has been transformed from a plain legislation to an agreement or a compact with the people of the Bangsamoro. It is now that “contract” that binds them to the BARMM as a governing entity, following John Locke’s social contract theory which is the philosophical bedrock of all constitutional regimes.

Seen in this lens, the provisions of the BOL—including the holding of the 2022 Bangsamoro elections—would partake the nature of contractual “terms” or “conditions” which the Philippine Government, as represented by its appointed BTA members, are bound to fulfill and honor in good faith. Obviously, these terms cannot unilaterally be changed at the whim of one party, without the consent of the other. As the people in voting “yes” to the creation of BARMM would have considered these attached provisions in casting that vote and had it not been expressly guaranteed they may have voted differently.

A unilateral amendment of the BOL likewise breaches that basic idea of non-derogability of a social contract, which what the BOL is. French philosopher Jean Jacques Rosseau wrote:

But the body politic or sovereign, deriving its existence only from the sanctity of the contract, can never bind itself, even to others, in anything that derogates from the original act, such as alienation of some portion of itself, or submission to another sovereign. To violate the act by which it exists would be to annihilate itself; and what is nothing produces nothing. (emphasis supplied)

Echoing this, our own Dean Vicente Sinco, in his seminal work Philippine Political Law, writes:

Some authorities have also considered the constitution as a compact, an “agreement of the people, in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves.” This notion expresses the old theory of the social contract obligatory on all parties and revocable by no one individual or group less than the majority of the people; otherwise it will not have the attribute of law. (emphasis supplied)

Thus, in unilaterally altering the salient provisions of the ratified BOL without the people re-ratifying the same, they cease to be bound by it. With the derogation, BARMM will stand to lose a foothold as it is from its people that it draws its legitimacy.

Further, it raises the novel question as to the legal effect on the Bangsamoro entity if the terms of the BOL are breached or not fulfilled in the period given? Can these terms be treated as akin to contractual resolutory conditions that their non-fulfillment would result to unmaking the BARMM ipso jure? Can those provinces and cities who previously voted to be included now opt out given the unilateral changes in the terms?

Without legal provisions governing this matter or existing jurisprudence to guide us, the move of the BTA and Malacañang sets the fate of the Bangsamoro adrift to an unchartered territory. More so that even if Congress would opt to hold a plebiscite to ratify the election postponement, COMELEC would be unable to hold it soon given that it has already entered the critical phase of its preparation for the 2022 National and Local Elections. It would also require a substantial budget which would likewise be impossible given the near-empty state of the country’s coffers. In other words, this move for postponement comes with a great risk and this risk should be seriously considered and weighed. As of now, the immediate passing of the Bangsamoro Electoral Code remains to be the most prudent—if not the only—option on the table for the BTA and the Duterte Government given the circumstances. It took so much struggle, time and resources to make Bangsamoro finally happen, now is not the time to drop it.

 


 

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. The views and opinions expressed in this article are those of the author and do not necessarily reflect the views and opinions of Access Bangsamoro, its proponents, or affiliates.