Senator Marcos' substitute BBL

my Trade Tripper column in the 14-15 August 2015 weekend issue of BusinessWorld:

Well, at least we know that one senator is working rather than being merely engrossed with political persecution or positioning for the presidency.

Senator Ferdinand “Bongbong” R. Marcos, Jr. released his “substitute” Bangsamoro Bill (Senate Bill No. 2894 and entitled, quite significantly I may add, the “Basic Law for the Bangsamoro Autonomous Region”) and it does seem like a better alternative to the disastrous (and highly unconstitutional) Bangsamoro Basic Law (BBL) that the House of Representatives still seem intent in passing.

Purportedly embodying the results of 12 public hearings, including those with “the Moro National Liberation Front, Sultanate of Sulu, indigenous people, religious groups,” as well as 115 amendments (equivalent to 80% of the original legislation), Senator Marcos’ product clocks in at 100 pages. But it is the contents thereof that are so far impressive.

With the caveat that more time is needed to study the minutiae of Marcos’ proposal, nevertheless, from the opening pages alone it does make one important change and that is the expression of the Constitution’s clear supremacy over the Bangsamoro.

The “original” BBL bizarrely made itself subject not only to the Constitution but also to “international law”, “system of life prescribed by [Muslim] faith”, and “harmony with our customary laws, cultures, traditions”.

Marcos’ version corrects this strange theocratic language, pointing out that “the Bangsamoro Autonomous Region” is a “political subdivision created by the Bangsamoro Basic Law which is an Autonomous Region as provided in Sec. 15, Article X of the 1987 Philippine Constitution,” and that the “Bangsamoro Autonomous Region forms an inalienable part of the Philippines.”

As for traditional Islamic institutions (presumably such pertaining to the “system of life prescribed by [Muslim] faith” mentioned in the original BBL), this has been properly relegated to that of a consultative function, with the “right to submit position papers, memoranda and proposals to Congress and to the Executive.”

And it goes on: the Bangsamoro Regional Government is expressly made to renounce “war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” This should include acquiescing to the fact that “secession” is anathema under international law.

Finally, the Republic -- under Marcos’ version -- reserved for itself the power over foreign relations, including that of global trade, except for certain functions delegated to the Bangsamoro Regional Government but again with the proviso that such function be subservient to the Constitution. This is significant because the Comprehensive Agreement on the Bangsamoro and the original BBL surreptitiously attempted to create a new State by resorting to the subtle act of providing capacity to engage in foreign relations as one of the powers of the Bangsamoro.

One immediate beef I do have with the Marcos version is that the necessary plebiscite ratifying the draft law involves only voters from the affected “constituent territories” or, in other words, those in “the present geographical area of the Autonomous Region in Muslim Mindanao (ARMM); the cities of Cotabato and Isabela; and those qualified for inclusion in the plebiscite, by way of resolution or petition.” I’ve always felt that this matter should be subject to the will of the Filipino people as a whole.

Unfortunately for Mr. Marcos (and for the rest of the Philippines), it is uncertain whether the substitute bill will be acceptable to the Moro Islamic Liberation Front (MILF), which signed the Comprehensive Agreement on the Bangsamoro (CAB) with the Executive with the understanding (so the MILF says) that “it was negotiating with the totality of the Philippine government or ‘whole government’.” (see Dec. 29, 2014 letter of MILF chairman Al Haj Murad Ebrahim to the House ad hoc BBL committee).

And, thus why MILF lead spokesman Mohagher Q. Iqbal can audaciously declare (Cotabato, July 29, 2015) that “the MILF wants a BBL based on the version agreed bilaterally by the government and the MILF. We cannot accept a weak BBL.”

And this therefore’s the rub and something that this column has long been warning about: no matter how good Marcos’ work is, the Executive’s eccentrically agreeing to both the MILF’s categorization of the CAB as an international agreement and the MILF’s posturing as an entity possessed of international personality effectively negates whatever Congress or the Supreme Court may do.

Because it is in the nature of international agreements that they are not to be thwarted by local laws and institutions (including the Constitution) and the MILF can disregard SB 2894 by simply saying it does not comply with a binding international agreement that is the CAB (which they can now bandy around internationally as proof of the Philippine’s “perfidy”).

A solution would be is for the Congress to make a law terminating the CAB, which the president is duty bound to enforce (Article VII, Section 17).

Or the CAB can be classified as a treaty, resulting in its rejection by the Senate, and thus freeing up Marcos’ SB 2894 to have full sway.