Authored by Atty. Laisa Masuhud Alamia, Minority Leader and Member of Parliament
20 September 2019
Here’s a hastily done draft of what I attempted to raise yesterday during our plenary session in the Bangsamoro Transition Authority (BTA) from a legal standpoint on BTA Resolution No. 103 dated September 20, 2019 “STRONGLY OBJECTING to the House of Representatives (HR) Resolution No. 333”.
HR Resolution 333 was signed by eight (8) Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) congressmen proposing the creation of a “DPWH National in BARMM focused on implementing the National Infrastructure Programs, Projects and Activities.” BTA Resolution No. 103, in effect, opposes the creation of such BARMM-focused DPWH National office or unit in the BARMM.
BTA Resolution No. 103 was authored by Member of Parliament (MP) Paisalin Tago, MP Joe Lorena, MP Nabil Tan, MP Omar Sema, and MP Jess Burahan. Upon division of the house, BTA Resolution No. 103 was carried, with forty (40) voting YES, 10 ABSTAINED (including OIC-Chief Minister MP Abdulrauf Macacua), nine (9) NO (7 Minority bloc, Deputy Speaker Hatimil Hassan, and MP Musa Diamla).
I will focus below on the main legal issue raised, that House of Representatives Resolution No. 333 violates the right to self-determination (RSD) of the Bangsamoro.
The controlling case for RSD of the Bangsamoro is Disomangcop vs Simeon Datumanong, applied during the existence of ARMM.
I will cite below only the relevant facts of the case, as applicable to the current issue.
1. In 1989, RA 6734 was passed. Only 4 provinces voted yes for inclusion: Lanao Del Sur, Maguindanao, Sulu and Tawitawi.
2. In October 1990, Pres. Corazon Aquino issued EO 426 placing DPWH within the ARMM under the jurisdiction of the ARMM.
3. Nine years after or on May 1999, DPWH Secretary issued DPWH Department Order (DO) No. 119 creating the Marawi City sub district engineering office. Take note: Marawi City was not yet part of ARMM at that time.
4. In January 2001, Pres. Joseph Estrada approved and signed into law RA 8999 establishing an engineering district in the 1st district of Lanao Del Sur province, which was already part of ARMM at that time.
5. Two months after, RA 9054 lapsed into law in March 2001. A plebiscite was held in August 2001. Basilan and Marawi City voted yes and became part of ARMM.
6. Before the plebiscite, i.e. on July 23, 2001, Disomangcop filed a petition to revoke DPWH DO 119 and to seek non-implementation of RA 8999. No action was taken by DPWH.
7. Disomangcop then filed the instant petition versus Datumanong before the Supreme Court, seeking to nullify RA 8999 and DPWH DO 119.
What was established by the SC decision?
1. EO 426 was an issuance by the President DEVOLVING the powers and functions of DPWH in ARMM to the ARMM. This power includes all forms of infrastructure and public works, including highways or national roads.
2. RA 9054 established the granting of political autonomy and RSD to ARMM. This has been a settled jurisprudence.
3. RA 9054 outlined the modality on the budgeting and implementation of infrastructure programs in ARMM, among other powers, through Article VI, Section 20:
Sec. 20. Annual Budget and Infrastructure Funds. – The annual budget of the Regional Government shall be enacted by the Regional Assembly. Funds for infrastructure in the autonomous region allocated by the central government or national government shall be appropriated through a Regional Assembly Public Works Act. Unless approved by the Regional Assembly, no public works funds allocated by the central government or national government for the Regional Government or allocated by the Regional Government from its own revenues may be disbursed, distributed, realigned, or used in any manner.
4. This power on infrastructure development under RA 9054 pertains to all forms of infra, including national highways, bridges, among others.
5. RA 9054 in effect, repealed and rendered unimplementable the previous issuances by the national government, i.e. RA 8999 and DPWH DO 119.
What are the Implications of this case on the current issue on DPWH’s mandated function under the Bangsamoro Organic Law (BOL) RA 11054:
1. Sec 37 Article XIII of RA 11054 provides:
“Public Works and Infrastructure. – The National Government SHALL FUND AND IMPLEMENT the construction and mintenance of the NATIONAL ROADS, bridges, water supply and services, and flood control and irrigation systems and for the maintenance of the existing airports, seaports, and wharves in the Bangsamoro Autonomous Region: Provided, That with regard to water supply and services, flood control and irrigation systems that connect or from facilities outside the Bangsamoro Autonomous Region, there shall be cooperation and coordination between the Bangsamoro Government and the appropriate national or local government bodies. All national roads and bridges in the Bangsamoro Autonomous Region shall be included in the National Road Network Information System. Nationally-funded infrastructure projects shall be implemented by the National Government.
The Bangsamoro Government shall submit proposals to the appropriate national government agency for the inclusion of the cost of such maintenance in the latters’ budget that shall be submitted to the Congress of the Philippines for inclusion in the General Appropiriations Act. Funding for national roads, bridges, and irrigation systems shall be regularly released to the relevant departments of the National Government.” (Emphasis mine)
2. Section 37 Article XIII of RA 11054, which places on the DPWH National the accountability and responsibility of funding and implementing projects on national roads et al, has no similar provision under RA 9054 (ARMM law for brevity).
3. Section 20 Article VI of RA 9054 pertaining to the requirement of passing an appropriations law for ARMM’s annual infrastructure program to be passed by the RLA for ALL FORMS of infrastructure, including national roads, bridges etc, has no similar provision under RA 11054.
4. RA 11054 repealed RA 9054. So the requirement under section 20 of Article VI of RA 9054 no longer applies for national roads, bridges, water supply and services, and flood control and irrigation systems and for the maintenance of the existing airports, seaports, and wharves. RA 11054 has effectively reverted back to the national government the mandate and accountability (and budget) to implement these programs.
5. RA 11054 effectively abolished DPWH-ARMM, including all its district engineering offices. It establishes the Ministry of Public Works. The word “Highways” has been removed pursuant to the provisions under RA 11054 on the ministries to be created, amplified by Section 37 Article XIII on national roads and etc which are now effectively under the control of DPWH national.
Does the National Government have mandate and jurisdiction on the implementation and maintenance of infra programs relating to national roads, bridges, water supply and services, flood control and irrigation systems, and maintenance of existing airports, seaports and wharves in the BARMM?
Yes. RA 11054 is explicit. “Nationally-funded infrastructure projects shall be implemented by the National Government.” The law itself states so. The mandate to implement nationally funded infra projects is placed on the NATIONAL GOVERNMENT. In doing so, nothing is being taken away from BARMM’s resources or powers. The law is clear as to the power of the Ministry of Public Works (provincial, municipal, barangay roads and others not explicitly mentioned in the law). National government, in fact, shall be adding an enormous amount of resources into BARMM over and in addition to its own Block Grant.
Can DPWH National, in order to implement its mandate under RA 11054, establish a MODALITY OF IMPLEMENTATION to put into effect or operationalize Section 37 Article XIII of the BOL (RA 11054)?
Yes. On its own, it can because the law, again, is explicit. It is mandated by law to implement these infra programs. Not doing so may be deemed an act of omission that can be compelled by law.
Does DPWH have discretion, based on its absorptive capacity and experiential determination of the best possible mechanism, to determine the MODALITY OF IMPLEMENTATION of Section 37 Article XIII RA 11054?
Yes, provided it complies with the spirit and intent of RA 11054 on inter governmental relations in establishing coordinating and monitoring mechanisms, pursuant to the President’s established power of supervision over autonomous regions. This means any modality of implementation that would be decided upon by DPWH shall need to be coordinated with the BARMM. “There shall be cooperation and coordination between the Bangsamoro Government and the appropriate national or local government bodies.”
What could be the possible modalities of implementation by DPWH of Section 37 Article XIII RA 11054?
1. Use the old modality implemented during the effectivity of RA 6734 (first ARMM Law) as a temporary measure while ARMM was being set up at that time which continued later on under RA 9054, despite recommendations to the contrary from ARMM, that is:
DPWH Regional offices 9 (for Basilan Sulu and Tawitawi), 10 (for Lanao Del Sur and Marawi), and 12 (for Maguindanao, Cotabato City and the 63 additional barangays from North Cotabato) shall implement the infra programs on national roads etc within the BARMM, in ADDITION to their existing workload for their respective regions. Based on experience, bureaucratic quagmire of program implementation beyond and outside an agency’s geographical area, absorptive capacity of the administrative regional offices of DPWH, and for practical reasons, this has not worked well in the ARMM and is not advisable to be implemented in the BARMM. (please refer to studies and evaluations conducted in ARMM on this modality of implementation)
2. Set up a geographic-specific and BARMM-focused unit or office that would specifically implement ONLY infra programs pursuant to Section 37 Article XIII on areas ONLY within BARMM, in coordination with the Bangsamoro Government.
What could be the role of BARMM in the determination and implementation of programs under Section 37 Article XIII of RA 11054?
Section 6 Article VI of RA 11054 states, thus:
“Section 6. Intergovernmental Infrastructure Development Board. – There is hereby created an Intergovernmental Infrastructure Development Board, which shall be responsible for coordinating and synchronizing national and Bangsamoro infrastructure development plans.
The intergovernmental infrastructure Development Board shall be composed of the heads or representatives of the appropriate ministries and offices in the Bangsamoro Government. The National Government shall likewise be represented in the Intergovernmental Infrastructure Development Board by the Secretary of Public Works and Highways and such other officials as may be necessary to be designated by the Secretary of Public Works and Highways.”
BARMM, therefore, shall have the authority to determine the actual infrastructure needs of the autonomous region as it may seem fit, and may submit budget proposals and Programs of Work (POWs) on national roads, bridges etc, to the DPWH through the Intergovernmental Infrastructure Development Board, for INCLUSION in their budget and implementation by the DPWH and other relevant national agencies. BARMM, through its Ministry of Public Works may also be included by DPWH in the monitoring and evaluation mechanism that would be set up to ensure quality and timely implementation of these nationally-funded programs.
Section 3 of the same article further provides, thus:
“Section 3. Philippines Congress-Bangsamoro Parliament Forum. – There shall be created a Philippines Congress-Bangsamoro Parliament Forum for purposes of cooperation and coordination of legislative initiatives.”
This is another venue where BARMM can cooperate and coordinate with Congress, and thus, submit proposals and POWs for programs and projects in BARMM that could be funded through the GAA of relevant national agencies such as DPWH, among others, including other legislative initiatives such as Redistricting/creation of congressional districts, and many other policies/laws.
How can the Bangsamoro people, aside from the two (2) IGR bodies above, participate in the implementation of Section 37 Article XIII of RA 11054?
The setting up of an office or unit by the DPWH that would focus only on the implementation of its mandate under Section 37 Article XIII RA 11054 does not preclude the people of BARMM from participating in DPWH’s mandate. They may, in fact, be the primary officials, employees and workforce that would be hired to implement Section 37. The same article XIII states, thus:
“Section 11. Bangsamoro Participation in National Government. – As far as practicable, the Bangsamoro Government shall be represented in the departments, offices, commissions, agencies and bureaus of the National Government that implement and enforce policies, programs, and projects of the National Government in the Bangsamoro Autonomous Region.” This provision is VERY CLEAR that it doesn’t need any further elucidation.
And, in closing:
The final question that is repeated in social media and raised during the BTA plenary session yesterday, agitating the public (perhaps for political reasons? Isn’t it too early for politics?):
Does DPWH (and the 8 BARMM Congressmen who support DPWH’s proposed modality of implementation of its mandate under Section 37) infringe on the right to self-determination of the BARMM by proposing the implementation of any of the possible MODALITIES OF IMPLEMENTATION of its mandate under Section 37 Article XIII of RA 11054 through the coordinative mechanisms also mandated under the same law? Simply put, does creating a BARMM-focused unit within the DPWH structure violate the Bangsamoro’s RSD?
No. Let me qualify.
The concept of RSD in the Philippines is clearly understood most of all by the Bangsamoro people — Not just by those who have physically and gruellingly fought for this right who’ve shed sweat and blood to achieve this, but by every person considered as a Bangsamoro by law and by spirit, who have also struggled and suffered through the years of conflict, injustice and discrimination. WE ARE ALL BANGSAMORO and not a single Moro or Moro group has the monopoly of that claim (that he/she/they are the only Bangsamoro to the exclusion of other Moros). Every Moro joins in this struggle, in whatever manner, to ensure that our RSD is respected. We understand fully that the non-infringement of this right is NON-NEGOTIABLE.
This right to self-determination is supported empathically by the Philippine Constitution itself and the Supreme Court has applied this principle in their judicial determination of the Disomangcop vs Datumanong case. This right to self-determination of the Bangsamoro is settled jurisprudence, in legal parlance, which means that it has not been overturned. This right is already established and entrenched in our laws and judicial decisions.
Beyond and in addition to this full comprehension of our RSD by every Bangsamoro, is the requirement as citizens of this country and of this autonomous region to respect the RULE OF LAW and the tenets of democracy. The rule of law, at its most basic, means that the law applies to everyone equally. It means that no one is above the law. No one can go beyond the law or skirt around it to achieve a desired end. It becomes punishable if the law is infringed.
Furthermore, If the law is explicit, there is no room for interpretation. If it does not include, it excludes. Expressio unius est exclusio alterius: That which is expressed is included and that which is not is excluded.
The provisions of RA 11054, drafted by the Bangsamoro Transition Commission (BTC) composed of both MILF and government representatives who put in Section 37 Article XIII itself, as deliberated upon and amended by Congress and approved by the President, supported by an overwhelming majority of the Bangsamoro in the plebiscite conducted for its passage, and fully supported by all the BARMM congressmen who signed House of Representatives Resolution No. 333, are explicit:
The Ministry of Public Works shall have jurisdiction over public works and other infrastructure in the BARMM.
National government shall have jurisdiction over funding, implementation and maintenance of national roads, bridges, water supply and services, flood control and irrigation projects, and maintenance of existing airports, seaports and wharves in the BARMM.
To operationalize these provisions, there are intergovernmental relation bodies that would be set up under RA 11054 where the BARMM shall be exercising its RSD by ensuring that decisions made across all sectors at the national level for the Bangsamoro shall be coordinated with the Bangsamoro Government, where BARMM can better provide information on the situation in its region and submit proposals to these bodies, so that any decision that is made by the national government as to policies, budgeting, program implementation and modalities of cooperation, shall be INFORMED DECISIONS, EVIDENCE-BASED, CONTEXT-BASED, and reached upon through consultation, dialogue and consensus and in coordination with the BARMM.
I am calling for sobriety and calm in arriving at a decision that keeps in mind foremost of all the welfare of the Bangsamoro, NOT our own respective interests. Bangsamoro muna, bago ang sarili.
Let us not muddle the issue. Let us be circumspect and fair in assessing the two sides of the coin. To be fair and objective is a divine imperative: “Do not let the hatred of a people cause you to swerve from justice; be just! For that is nearer to God-consciousness (taqwa).” (Qur’an, 5:8)
This is my opinion. You may or may not agree with it. And it’s okay. This does not preclude me from exercising my right to express my opinion. Every Moro (or any other person) is entitled to his own opinion. And I would defend every Moro’s right to express his opinion, even if this goes against my own opinion above.
Allaahumma ihdini feeman hadayta wa ‘aafini feeman ‘aafayta wa tawallani feeman tawallayta wa baarik li feema a’tayta, wa qini sharra ma qadayta.
O Allah, guide me among those whom You have guided, pardon me among those whom You have pardoned, turn to me in friendship among those on whom You have turned in friendship, and bless me in what You have bestowed, and save me from the evil of what You have decreed.
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