GOVeRNMENT Paalysis

Government Paralysis

 Joaquin G. Bernas, S.J.

When the Congress fails to pass the general appropriations act for the ensuing year, the effect on the general public can be alarming.  Paralysis of the US government was averted in the nick of time when the hold-out conservatives in Congress finally approved financial measures needed to keep the government going. 

The power exercised by the conservatives to hold the public hostage was a tool for forcing President Obama to submit to conservative wishes.  But the approval of the needed money was not a complete solution.  The solution is good only until January.  Meanwhile the battle goes on until a new budget is approved.

Is this something that can happen in the Philippines?  In the past, paralyzation of government was always a possibility.  Congress could always refuse money for the President to spend.  This, of course, was not true during the Marcos years.  Marcos, after all, was both executive and legislative during his years.  How about now?

We now have a first aid provision in the 1987 Constitution.  It says: “If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.”

As a matter of fact, however, our President has never been wanting for money to spend.  At this time, it has been quit obvious that the President is quite generous in making use of surpluses and even un-appropriated new money such as the Malampaya Fund.

Will there be a stop to this free use of public money?  The Supreme Court has finished listening to oral arguments on the constitutionality of the PDAF.  The tone of the oral arguments give the general impression that there may be a curtailment of the free flow of money.  Likewise cases have been filed and are mounting in the Supreme Court challenging the constitutionality of the DAP.  We should also be witnessing oral arguments in Court on the subject.

What will happen should the Supreme Court declare both PDAF and DAP unconstitutional?  Will this be the end of pork barrel?

It is not as simple as that.  Although the President himself has declared the death of pork barrel and the Palace advisers have intoned that the word of the President is equally powerful as God’s saying  “Let there be light!,” it will not be so.  We must remember that both PDAF and DAP are about public money and the Constitution clearly says that no money shall be taken out of the public treasury except in virtue of an appropriation made by law.  This means that Congress is the real master of the purse.  The President can exercise his veto power but Congress can override his veto.

It has been made clear by the pork barrel controversy that we have a lot of money.  It has also been made equally clear that the money has not been going to where it should go.  This is the difficult challenge not just to the congressional process but also to the executive process.  Principal agents in this delicate process aside from the President are the Secretary of Justice, the Budget Secretary, the Commission on Audit, and the Ombudsman among others.

Much is being expected by many from the anticipated appearance of Janet Napoles before the Senate investigation body.  This will be another topic of controversy.  We have to remember that, although Congress has the power to compel the attendance of witnesses, the Constitution also says “The rights of persons appearing in or affected by such inquiries shall be respected.”

In the celebrated ZTE case, the effort of the Senate to expose the truth was was foiled by Neri’s appeal to executive privilege.  There will be no occasion, to the best of my knowledge, for appeal to such privilege in the current case.  But standing tall is the right against self-incrimination of any person.

There are two distinct rights against self-incrimination: the right of an accused and the right of the witness who is not an accused.  An accused has the right to refuse even to take the witness stand; a witness who is not an accused may simply refuse to answer an incriminating question. 

I am not sure what the situation of Janet Napoles is.  Will she be appearing as a simple witness or as an accused?  As I recall she is already charged in court with offenses related to the pork barrel.  Can she claim the right of an accused or at least to due process on the ground that whatever she says now can affect the criminal case against her?  If she does appear but refuses to answer incriminating questions, can she be made to suffer the fate of Arnault in the Tambobong case.  But as I recall the case of Arnault was not an appeal to the right against self-incrimination.

The pork barrel controversy will be a long drawn out case and, as is usually said of novel cases, the Supreme Court can “enrich”jurisprudence.

21 October 2013

PORKBAARREL INVESTIGATIONS

Pork Barrel Investigations

Joaquin G. Bernas, S.J.

Every once in a while there is an encounter between Congress and the executive during legislative investigations.  Not too long ago it was about the ZTE controversy.  The dispute was about whether a witness could be compelled to answer questions which he claimed to be covered by executive privilege. When Neri maintained silence, the Senate left it at that.  Now it is about the pork barrel scam.  It started with the issue whether some witnesses could be compelled to appear.  

There are two provisions in the Constitution which provide for investigations.  One deals with legislative investigations in aid of legislation and the other deals with legislative investigations in aid of the “oversight function” of Congress.  Let me say something first about investigation in aid of the oversight function of Congress.

This function is dealt with in Section 22 of Article VI.  The oversight function is intended to enable Congress to determine how laws it has passed are being implemented.  In deference to separation of powers, however, and because Department Secretaries are alter egos of the President, they may not appear without the permission of the President.  Department Secretaries may appear on their own or upon the request of a congressional body but in either case only with the  consent of the President.

The more commonly used provision is Section 21 which deals with investigations in aid of legislation.  The power of legislative inquiry is an essential and appropriate auxiliary to the legislative function.  A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.  Where the legislative body does not itself possess the requisite information -- which is not infrequently true -- recourse must be had to others who might possess it.

Experience, however, has shown that mere requests for information are frequently unavailing and that information that is volunteered is not always accurate or complete.  Hence, the power of Congress necessarily includes the power to punish a contumacious witness for contempt.  No court can enjoin the appearance of a witness who has been summoned.

Can the Senate President prevent the summoning of a witness against the wishes of the Chairman of the Blue Ribbon Committee?  This issue arose on the opening day of the pork barrel investigation.  The answer depends on what the published rules of the Senate says.  I would give the same answer to the question whether the Senate as a body may bar the summoning of a witness.  The houses of Congress are free to formulate their rules of conduct and these rules must be published before they can affect outsiders.  But it would be good to know why Napoles is being protected.

The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body.  It is, however, a requirement which is not difficult to satisfy because , unlike in the United States, where legislative power is shared between the United States Congress and the state legislatures, the totality of legislative power is possessed by the Philippine Congress and its legislative field is well-nigh unlimited. It can therefore conduct investigation on anything which can be the subject of legislation. Nevertheless the Court can protect a witness from being compelled to answer questions that are more in aid of prosecution than of legislation

Who may be summoned to a legislative inquiry?  Anybody may be summoned, but because of separation of powers, the President and Justices of the Supreme Court may not be summoned.  But the Constitution also provides that “the rights of persons appearing in or affected by such inquiries shall be respected.”

The most common defense of a witness being compelled to answer a question is the right against self-incrimination.  A witness must take the witness stand when summoned.  The time to raise the defense of self-incrimination is when the incriminating question is asked. Refusal to answer can be punished as contempt and the witness may be yheld in custody by the legislative committee until he answers the question.  This is what happened to the witness Arnault in the Tambobong case.

A witness may also refuse to answer a question that asks for a matter covered by executive privilege.  But only the President can claim executive privilege.  Executive privilege  is the right of the President to refuse the disclosure of certain types of information.  Thus a witness claiming executive privilege must show that he is acting on instruction of the President, as Neri did in the ZTE case.

Another basis for refusing to answer a question may be a matter of fairness.  For instance, if the case is already being tried criminally, answers in the legislative investigation might prejudice a party in a criminal case.

The investigation of the pork barrel scam has just started.  I anticipate that it will be a long process and that it will be interrupted by disputes about the manner of conducting the investigation.

30 September2013

TO ABOLISH OR TO RESTRUCTURE

To Abolish or to Restructure?

Joaquin G. Bernas, S.J.

In my column last week I cited the 1994 decision upholding the constitutionality of pork barrel. The argument that had been used against the Fund was that, although appropriating money was the function of Congress, spending it was the prerogative of the executive department and Congress should not interfere with spending.  The Court ruled in favor of the Fund saying that, as the law stood, what the law allowed congressmen to do was simply to recommend projects.  If the recommended projects qualified for funding under the CDF, it was the President who would implement them.

Prior to the approval of the 1994 General Appropriations Act, pork barrel, which had been recognized by the 1935 Constitution as a legitimate institution, had not received much attention.  In the years from 1972 to 1986, there was no talk about pork barrel.  But those were unusual years because, for all practical purposes, President Marcos controlled the national treasury, both pork and beef.  After the restoration of democratic processes and during the years from 1986 to 1993, pork barrel was not a hot subject of debate.  It was only after the approval of 1994 General Appropriations Act that pork barrel became a frequent front page subject for debate.

One reason for this, of course, was that the amount involved had grown. In 1994 the total amount involved was 2.9 billion pesos.  By 2013, the total amount appropriated had ballooned to 24.7 billion.  But when we were discussing pork barrel in class in 1996, one of my students who had been studying the phenomenon, said to me that the amount alone could not be the reason for the heated dispute over the pork barrel.  After all, the amount involved was only a small fraction of the total budget.  He put the blame, you might find it strange, on the 1994 decision of the Supreme Court.  But I think, more appropriately, the blame could be put on the 1994 Congress.  How so?

My 1996 student pointed out to me that earlier pork barrel laws specifically stated that the money could be released only with the approval of the President, and that the Budget Secretary should promulgate rules and regulations for pork barrel funds.  Such requirements were removed by the GAA for FY 1994, R.A. 7663.  R.A. 7663 instead simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”

Who are these “officials concerned”?  They are Senators, Representatives and the Vice President.  There is nothing in the 1994 law about prior approval by the President.  The further implication seems to be that, if no list was submitted by the “officials concerned,” the President could not use the fund for other necessary projects.  In effect, R.A. 7663 gave to the members of Congress control over the release of approved funds.

I have not checked whether or how long this provision of R.A. 7663 survived in subsequent General Appropriation Acts.  I have been able to check only the provisions of the GAA for FY 2013 and I did not see a copy of the 1994 provision.  However, I did see a provision which indicates that there still is a continuing role for members of Congress in the actual implementation of the fund.  The allowable extent is not clear.  But if we may judge from continuing media reports on how, for instance, the indigents in hospitals can receive funds through legislators, the role of legislators is still extensive – extensive enough for them to be able to use their clout for reelection purposes.

The important question now is: What will the President do about it?  How will he respond to the rally of last week?  The Budget Secretary says that the 2014 Budget is already set.  I do not know whether this means that what happened under the 2013 GAA can still happen now.

The Inter-Agency Anti-Graft Coordinating Council manned, or “womanned”, by what Scripture might call mulieres fortes, is encouraging.  But its focus is on the investigation of the misuse of PDAF, the prosecution of legislators and others who have misused it, and the recovery of assets that have been wrongfully taken.  Responsibility for making these a success belongs to the executive department. How much success will the executive achieve?

Preventing past abuses from happening again cannot be achieved by the executive department alone.  We have to remember that PDAF is about the disposition of money of the public.  And the constitutional guardian of the public treasury is Congress.  Although the year’s budget is prepared by the executive department, it is not only much influenced by the input of members of Congress but it is also ultimately dependent on what Congress approves.  True, the President can veto items in what Congress produces.  But the President can do nothing if Congress overrides his veto.

What all this means is that what will happen to the pork barrel will test the President’s leadership – his biggest test, perhaps.

2 September 2013

THE CONSTITUTION AND RH LAW (continued)

LIBERTY OF SPEECH, OF RELIGION, AND EQUAL PROTECTION IN THE RH LAW

(continued)

Joaquin G. Bernas, S.J.

In my column last week I said that I would take up the RH Lawprovision on age appropriate education of children in public and private schools. I consider the subject very important since the concern of people about it is similar to the concern about religious instruction in public schools. I would not therefore consider it inappropriate for jurisprudence to look into the constitutional law on religious instruction in public schools. Sex education and religious instruction are closely related to morality education.

There are two constitutional provisions which should be considered.

First, Article II, Section 12 says: “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” This means that in the matter of education the power of the state is merely auxiliary to the primary right of parents.

Second, Article XIV, Section 4(3) emphasizes even more the primary right of parents: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”

Considering that sexual morality is closely related to religion, the rule for religious instruction mutatis mutandis may analogously if not strictly apply to sexual education.

For the moment, however, all we have about sexual education are the guidelines to be followed by officials in formulating the curriculum. They are the following:

Section 11.01 Age- and Development-Appropriate Reproductive Health Education. The State shall provide age- and development-appropriate responsible parenthood and reproductive health education to adolescents and school-age children which shall be taught by adequately trained teachers and educators in formal and non-formal educational system and integrated in relevant subjects . . . .:

Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials, civil society organizations, and other interest groups.

The Department of Education (DepEd) shall formulate a curriculum including concepts and messages on reproductive health, which shall be used by public schools. Private schools may adopt the DepEd curriculum or develop their own curriculum subject to approval by DepEd.

I am confident that that those charged with the responsibility of formulating the policies for age appropriate education will have the integrity and wisdom to respect constitutional commands on education. Before making our judgment, therefore, let us wait. We have no right to presume that the critics of the RH Law are the only persons who have noble intentions about the public welfare.

Let me move to the issue of equal protection.

The separate mention and separate provision for private schools in this matter has been criticized as a violation of equal protection. Even first year law students, however, know that equal protection is not an absolute rule. It allows for different treatment based on real differences. And there are substantial differences between public schools and private schools, especially religious schools, enough to allow different treatment of different schools. Jurisprudence has been doing this.

Another equal protection argument that has been brought up is that the state is being guilty of unconstitutional discrimination when it pays so much attention to and is ready to spend on enormous amount of money for reproductive health while not paying as much attention to other health issues. But in promoting the general welfare the state cannot be expected to attend to all problems at the same time. Prudence requires that the state prioritize which battles to fight and when.

I do not know what other major or minor arguments might be brought up by opponents of the RH Law. Whatever other issues may arise, one underlying principle that must be kept in mind is that the current Philippine government is a secular one. It is not governed by the Vatican nor by the Philippine Hierarchy nor by the religious majority of our population. Saying that, however, does not mean saying that our government is immoral or amoral. It is merely saying that it is different and that we must recognize and respect differences. As the Compendium on the Social Teaching of the Catholic Church says, “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

12 August 2013

SPEECH, RELIGION, AND EQUAL PROTECTION

Speech,  religion, and equal protection in the RH LAW

Joaquin G. Bernas, S.J.

In the course of the Supreme Court oral arguments on the RH Law, the first issue that came up was the meaning of “conception” in the constitutional provision which says “The State . . .  shall equally protect the life of the mother and the life of the unborn from conception.” The view which, to mind, prevailed during the first day of oral arguments was that conception happens at fertilization and not at implantation in the uterus.  This meaning is also implicit in the definition of abortion as the expulsion of a fetus anytime before its viability.  Expulsion after viability is already infanticide, no longer abortion.

The other issues that have arisen are liberty of speech, of religion, and equal protection.

I have been involved in the discussions of these issues even while the RH Law was still being debated in Congress  and I feel that it is my civic duty to continue my participation until the Supreme Court arrives at a decision. I propose to discuss the issues of speech, religion, and equality as they have cropped up in the oral arguments.

Any student of constitutional law will immediately see that by their nature the constitutional doctrine on speech and religion are closely intertwined.  Freedom of speech includes not just the right to speak but also the right not to speak.  Freedom of religion for its part involves not just the right to choose what to believe but also and especially the right to externalize or not to externalize one’s belief.  Externalization of one’s belief is done through speech or other forms of communication whether oral or symbolic.  Freedom of religion is violated when one is either forced to speak or in any manner communicate his belief or when one is prevented from expressing his religious belief.

All these take place in a pluralistic society where government may not prefer one religion over other religions.  It is against this background that I propose to discuss provisions of the RH Law which deal with speaking or not speaking about religion.

We must understand that the health workers under the RH Law have the public duty to implement its provisions for the common good and not just for the good of some religious adherents. Moreover, a public duty is a public trust to be exercised for the good of all and not for the good of the preferred religion of a majority.  And since our government is under a democratic system which respects plurality of religions, and considering that the Law is about sexual practices about whose morality our people are divided, it is inevitable that some health workers may encounter duties which their religion do not allow them to do.  This is recognized by the law and the Implementing Rules and Regulations contains a proviso on this matter, namely:

 “Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible . . .”

According to critics of the RH Law, however, for all its noble intention, this Rule violates freedom of speech and freedom of religion resulting in a two-fold violence of the conscience of the health worker.  First, by obliging the health worker to make a referral, the law is obliging him to speak contrary to his right not to speak.  Second, by obliging the health worker to make the referral, the health worker is being obliged to send the patient to where she or he can sin thereby making the health worker who makes the referral a participant in the sin.

Indeed, if the health worker believes that these are sinful acts which she or he cannot perform without violating his or her conscience, he or she should not be forced to do so.  Her belief, whether right or wrong in the view of government,  must be honored.  But the next question is, considering that this inability to perform a legal duty strikes at the very heart of the purpose for which the health center exists, is it reasonable or even just for the person to cling to the job?  In a labor law situation, when a laborer on strike refuses to follow a return to work order, he will not be forced to return to work, but he may have to look for another job. Or should we ask that such RH worker be retired as a pensionado martyr?

Another  objection which RH Law critics bring up is against the provision on age appropriate sexual education in public and private schools.  To evaluate this criticism intelligently it is necessary to see the provision on the subject.   It should be noted that the law does not yet attempt to impose a specific program.  Rather, it provides that a program be formulated following certain careful guidelines for the manner in which the program should be formulated. Since the law does not yet create the program itself, this is not yet the time to challenge this aspect of the RH Law.  Wait until the program is formulated.  Before that, there is no “case” to bring to Court. 

I shall take this up again next time since I am running out of space.

5 August 2013

RH LAW ON CENTER STAGE

Joaquin G. Bernas, S.J.

I have listened to more than ten hours of oral arguments on the constitutionality or unconstitutionality of the Reproductive Health Law.  No, I did not make a martyr of myself in the session hall of the Supreme Court.  But thanks to the Supreme Court website I was able to listen to two five-hours of not exactly scintillating sessions through my computer and at my leisure.  More five-hour sessions are promised.

So far we have heard two lawyers both arguing against constitutionality.  I admire the patience of the justices.  First I heard them bombarded with arguments heavily medical and biological in nature.  They evoked the comment of one Justice that perhaps they should first go to the Food and Drug Administration for an opinion on the safety of the drugs they were against.  I did not hear the name of the drugs which are considered culprits.

Second I also heard arguments on freedom of speech, free exercise of religion heavily laced with arguments from moral theology.  This one evoked the comment that perhaps the matter should be brought to the Congregation of the Faith in Rome.

The debate, of course, is by no means finished and it will go on with sustained intensity.  The battle lines will continue to be drawn along moral fronts, often dependent on factual issues and where our people divide largely on the basis of religious belief, and of course along constitutional lines.  I am also aware that people are often tempted to consider whatever they do not agree with as unconstitutional. 

I have written about constitutional issues and so let me recall some that are being dealt with in the oral arguments and the background of the position I have taken on those issues.

An area of constitutional law which cannot be avoided is Article II entitled

“Declaration of Principles and State Policies.”  The “policies” referred to are found in Sections 7 to 28.  Except for one or two of them, the Sections do not yet contain commands that are ready for implementation.  Unlike the provisions of the Bill of Rights, they await implementing legislation from Congress. 

There is a wide range of options open for Congress to use in implementing them.  In the process of choosing, there necessarily will be a wide room for debate to determine what is best for the welfare of the nation.  In the debate, conflicting value judgments will come into play. But as the Compendium on the Social Teaching of the Church notes, “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

Two provisions in Article II will play a starting role in the constitutional debate.  They are Sections 11 and Section 12.  They have already surfaced in the ongoing oral arguments.

Section 11 says: “The State values the dignity of every human person and guarantees full respect for human rights.”  But this provision will not give the judiciary a handle for passing judgment on the constitutionality of the RH Bill.  It is a motherhood statement.  And the supporters of the RH Law will simply say that this is precisely the reason why they have made an effort to make the Bill reflect this non-debatable value.  But the opponents of the RH Law say that the law promotes a “contraceptive mentality” that leads to disrespect for human rights.

Section 12 has a little more to say.  It says: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”

The first sentence has been the subject of a number of Court decisions which clearly declare that how to protect the family is for Congress to decide. The Constitution makes no specific prescription.  

As for the second sentence, the protection given to the unborn is “from conception,” that is, from the earliest moment of life.   In my earlier writings I have taken the position that the earliest that life begins is at the moment of fertilization.  This is enough to justify the prohibition of abortion clearly repeated in the RH Bill.  But it says nothing about what to prohibit before life begins.

This brings us to the use of contraceptive methods.  There are those who argue that contraception kills life.  That is true if the contraceptive means used have the effect of expelling a fertilized ovum.  You don’t kill life that does not yet exist.  Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devises that are abortive. A sweeping generalization is irresponsible. 

Very much involved in the debate about contraception is the matter of religious liberty. We have to be aware of the fact that we live in a pluralist society where various religious groups disagree about the morality of artificial contraception.

Freedom of religion means more than just the freedom to believe.  It also means the freedom to act or not to act according to what one believes.  And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief. 

I hope to say more about this later.

29 July 2013

MORE AUTONOMY FOR MUSLIM MINDANAO

Towards boader autonomy for Muslim Mindanao

The move for broader and broader autonomy for Muslim Mindanao is continuing beyond what has already been outlined in the 1987 Constitution.  The basic constitutional principle on the subject says “There shall be created autonomous regions in Muslim Mindanao and the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive  historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

Forming autonomous regions is in fact more than just a question of privilege for these two regions.  It is a question of right.  One of the riches of the Filipino nation is the diversity of cultures found in it.  These diverse cultures, as a matter of right, must be allowed to flourish.  No one culture should be allowed to crush any other.  Thus, the basis for the establishment of autonomous regions is homogeneity of the culture of the area and distinctiveness from other cultures, and not just geographic accident. 

The phrase "Muslim Mindanao" should not be construed as meaning that all of Mindanao is Muslim.  It simply means those areas of Mindanao which are predominantly Muslim. The phrase Muslim Mindanao is used in much the same way that the phrase Christian Philippines does not suggest that all of the inhabitants of the Philippines are Christian.

The creation of the autonomous regions, however, does not mean the establishment of sovereignties distinct from that of the Republic.  These autonomous regions can be established only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."

Autonomy in the Cordilleras has been at a stand-still.  Attempts at formulating a Basic Law for the Cordilleras have not been to the satisfaction of the inhabitants and therefore have been rejected.

Muslim Mindanao has succeeded in implementing an Organic Act which for several years now has formed the fundamental structure for the government of the region.  The Organic Act, however, is now slowly on the way to being replaced by the Organic Act for the Bangsamoro.  The process of replacement started with the approval of the Framework Agreement for the Bangsamoro.  But that was all it was – a framework.  The negotiators have been feverishly working to put flesh on the framework. 

The approval by the negotiators of the wealth sharing agreement is a major step in the direction of fortifying the desired autonomy.  The document embodying the agreement is entitled “Annex on Revenue Generation and Wealth Sharing.”  Principally it consists of formulas for the sharing of tax revenues and revenues from rich natural resources that are found in the territory. The details are found in the document.

The importance of the annex is highlighted thus: “The parties acknowledge that wealth creation (or revenue creation and sourcing) is important for the operation of the Bangsamoro, considering that that the Bangsamoro territory is among the most underdeveloped in the Philippine due to the decade-long conflict.  Moreover, the existing tax base therein is very limited.  There is a need to bridge the financial gap between the Bangsamoro’s prospective needs and the revenues being created therein.  In this way, the Bangsamoro can catch up with the more progressive areas of the country.”

What follows next?  A lot more work. 

An important point to remember is that the autonomous region is governed by two organic acts: the 1987 Constitution and the Organic Act for Muslim Mindanao.  When the Framework Agreement was announced we were assured that its completion will not involve constitutional amendment.  If it should and if the President wants it to go through, he may have to modify his position on amending the current Constitution.  Constitutional amendment  will require tremendous amount of work, not to mention controversies.

At this stage of the negotiations dealing only with wealth creation and sharing, however, I do not see any need for constitutional amendment.  What has been touched so far does not involve the control and development of natural resources but only taxes and revenues from natural resources found in the territory.  To a great extent this can be handled by ordinary legislation. 

However, the determination of which areas containing natural resources can be covered as special sources of revenue may have to await the determination of the extent of the Bangsamoro territory.  As I see it, the territory envisioned for the Bangsamoro is larger than what is covered under the Organic Act for Muslim Mindanao.  Under the 1987 Constitution the territories included in the Autonomous Region covered only provinces cities and municipalities and geographic areas which voted for inclusion in the Autonomous Region.  The Framework Agreement envisions a larger area.

So far, the general reaction to the draft revenue creation and sharing agreement has been positive.  Although it is still a draft, the negotiators deserve congratulations for the hard work.

22 July 2013