[OPINION] On amending the Bangsamoro Organic Law

Last July 26, 2018, President Rodrigo Duterte signed Republic Act No. 11054 or the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao (hereafter referred to as BOL). The Commission on Elections (Comelec) officially declared the BOL ratified last January 25, 2019, after an overwhelming majority “Yes” vote by the Bangsamoro electorate in the 2-day plebiscite. The BOL established the new Bangsamoro Autonomous Region in Muslim Mindanao (BARMM).

The creation of the BARMM marks the end of decades of armed conflict between Muslim revolutionary fronts and the government. Moreover, the inauguration of the Bangsamoro Transition Authority (BTA), tasked to govern the region during the 3-year transition period, was heralded as a “new dawn” for Mindanao.  

Notably, the BOL provides that the 3-year transition period shall end upon the dissolution of the BTA, which will happen immediately upon the election and qualification of the Chief Minister under the first regular Bangsamoro Parliament to be elected by the Bangsamoro electorate in May 2022.

Clearly, the BTA, under such enormous time pressure, faced a grueling path ahead. Mindanao peace activist Mags Maglana put it perfectly in a tweet that the appointment of BTA members was indeed just the “beginning of another stretch of the road to peace ─ and possibly a more difficult one.”

Remarkably, the BTA in its first year of work has demonstrated the resolve to create a stable economic environment for the BARMM. In fact, 3 items in their list of achievements for 2019 bodes particularly well for the economic prospects of the autonomous region.

The first one is the holding of the Bangsamoro Energy Forum which initiated efforts to develop sustainable energy sources in the region. Second, the holding of the Bangsamoro Tourism Stakeholders’ Summit which signified the importance of tourism in grassroots development in the region. And third, a high investment record for the BARMM which indicates growing business confidence for the region.

Nevertheless, as the end of the transition period draws near, the BTA acting as the interim parliament issued last November 17, 2020, Resolution No. 93 urging the national Congress to extend the transition period to June 30, 2025 in order to give the BTA sufficient time to fulfil its mandate. 

Pertinently, it was reported thereafter that President Rodrigo Duterte supported the proposal to extend the transition extension based on his cabinet members’ assessment of delays in the implementation of the BOL and the normalization process. 

The Duterte administration correctly determined that the only way to extend the transition period is to amend the BOL. 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. 

The proposal to extend the transition period, which means amending the BOL, has ignited a spirited discourse in the BARMM. For the people who agree with the extension there is no doubt that 3 years is not enough for the BTA. On the other hand, those who are hesitant to support the extension believe that the work involved in the transition can, and indeed should, be continued by the first elected Bangsamoro Parliament in 2022. 

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. Resolving these concerns will certainly involve the national government, in particular the Comelec.  

Ostensibly, the plebiscite question is far from settled. Postponing the parliamentary elections can be seen as a benign modification that is not repugnant to the prescriptions of the BOL. Furthermore, there are practical limitations imposed by the health crisis that may rationalize foregoing a plebiscite if there is indeed unanimous support for the extension of the transition period. Needless to say, even if Congress itself precludes ratification for the amending law, there is no guarantee that this will not be brought to the Supreme Court. A protracted litigation of this very issue is a likely possibility. 

However, it cannot be emphasized enough that when the Bangsamoro electorate ratified the BOL in 2019, they had the clear intention and expectation of voting for their very first parliament in 2022. Therefore, it only seems fair for the Bangsamoro electorate to have a say over an amendatory law which postpones the election of the inaugural Bangsamoro Parliament to 2025. – Rappler.com

Michael Henry Yusingco, LL.M is a Senior Research Fellow of the Ateneo Policy Center for its Access Bangsamoro project.