Democracy on Hold? Framing the Debate on the BARMM Transition in the Philippines

—Armi Beatriz E. Bayot, University of Oxford Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

When the Bangsamoro Transition Authority (BTA) took over as interim government of the new Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) in 2019, the BTA officials could not have foreseen that their tenure would coincide with a global pandemic. The BTA, which is led by the Moro Islamic Liberation Front (MILF)[1]  had to deal with the complex project of government transition in the face of COVID-19, and this resulted in considerable delays in its efforts[2] in establishing a new BARMM according to the terms of the 2014 peace agreement[3] and the organic law.[4] A mid-term review of the BTA’s performance conducted by the Mindanao Peoples’ Caucus[5] shows that the appointed body[6] is in danger of failing to meet all its targets when its term expires in 2022 to make way for a regularly elected parliament. The BTA is charged with various transition tasks, including the enactment of priority legislation and the organisation of the bureaucracy, among others.[7]

The release of the mid-term review has raised the question of whether the transition period ought to be extended by three more years to give the BTA more time to deliver on its transition plan.[8] The BTA itself, through Chief Minister Murad Ebrahim, has called for such an extension.[9] Or at least this is how the debate on the matter has been framed in some circles: a choice between extending the transition period under an extended BTA term or placing the transition project in limbo.[10]

Yet there is no reason why a new, popularly elected parliament could not take over the transition project. The BTA has no special powers or qualifications under the law that makes it uniquely placed to deliver on this task. It exercises exactly the same powers that a regularly elected government would exercise.[11]

The transition period is defined in the organic law as the period for the establishment of the BARMM, and it ends when the BTA is dissolved upon election of the new BARMM parliament.[12] The organic law provides, however, that the ending of the transition period shall not prejudice the initiation or continuation of other measures for post-conflict transition.[13] Indeed, the first BARMM parliament would have no choice but to proceed with the transition plan (or its own transition plan) considering that it will assume office with many planned laws and processes still in the works.

The real choice, therefore, is between extending the BTA’s term (through an amendment of the organic law) or proceeding with the popular election of a BARMM parliament as scheduled under the law. Either government could take leadership of the transition project come 2022. The current framing of the debate seems to conflate the BTA term extension with the transition project. This has steered the public debate towards the technical difficulties of creating new government institutions and processes and away from the fact that a BTA term extension amounts to the postponement of a popular election so that an appointed body could govern for an extended term.

The calls for BTA term extension raise important issues about representation, democratic legitimacy, and political participation in the region. The BTA is MILF-led according to the terms of the peace agreement.[14] While the MILF negotiated in advancement of Bangsamoro interest during the peace talks, it does not claim to have obtained the mandate of the people, either through election or other means of securing broad-based support. Once regular elections are held, the MILF will have to compete with other political contenders for the leadership of the BARMM. There is no telling how the MILF would fare against the machinery of long-time Mindanao politicians in the region but postponing the elections would certainly give the MILF more time to consolidate its political influence.

On the other hand, postponing the elections would also mean that the Bangsamoro people would be governed for three more years by a government that does not enjoy a popular mandate. If we begin to make the elections contingent on the completion of the transition project, then the Bangsamoro people might be unable to elect their own leaders for an uncertain period of time. It must also be remembered that when the organic law was ratified by the Bangsamoro people in a plebiscite, they approved of a law that provided for an election in 2022. It could be argued that the people’s consent and approval of that law was premised on the knowledge that they would finally be able to elect the first Bangsamoro parliament in 2022. As things stand, however, the very topic of the BARMM elections seems to have been eclipsed by debates about the technical difficulties of the transition. What is left out of discussions is the fact that in exchange for a BTA term extension, the Bangsamoro people will have to suspend their prerogative to select a new Bangsamoro parliament in a regularly scheduled election.

Among the causes of armed conflict in the region is the Bangsamoro people’s political marginalisation, and in the peace agreement, the creation of a new autonomous region was meant to provide a means through which the Bangsamoro people would be assured meaningful political participation. The peace agreement is an acknowledgment of the “aspiration (of the Bangsamoro people) to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance.”[15] The holding of elections in 2022 would be a step towards giving life to this aspiration. Moreover, the election of the first BARMM parliament would provide the post-conflict government with the democratic legitimation that it currently lacks. If the BTA successfully obtains an extension of its term, it will be given more time in office and a longer period within which to deliver on the transition project. If it chooses not to seek an extension, and instead puts in place a solid work plan for the elected parliament to continue with the transition project, the transition of the BARMM will likewise proceed beyond the BTA’s term.[16] While both options would allow for a longer period for pursuing the transition project, it falls on the BTA to demonstrate how a proposal to extend its term beyond that provided by law is consistent with the democratic ideals it agreed to in the peace agreement.

Suggested citation: Armi Beatriz E. Bayot, Democracy on Hold? Framing the Debate on the BARMM Transition in the Philippines, Int’l J. Const. L. Blog, Feb. 10, 2021, at: http://www.iconnectblog.com/2021/02/democracy-on-hold-framing-the-debate-on-the-barmm-transition-in-the-philippines/

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[1] With whom the Philippine government signed the Comprehensive Agreement on the Bangsamoro in 2014, ending almost 17 years of peace negotiations and almost 40 years of armed conflict (including the period of armed conflict involving the MILF’s predecessor, the Moro National Liberation Front).

[2] See, e.g., Jeshamar C. Villasis, MPA, and Atty. Dion Lorenz L. Romano, ‘BARMM Transition in the midst of COVID-19 pandemic’ (5 August 2020) available at <https://accessbangsamoro.ph/2020/08/05/barmm-transition-in-the-midst-of-covid-19-pandemic/> accessed on 8 February 2021 and ‘COVID-19 pandemic disrupting BARMM transition, says Mindanao Sociologist (31 August 2020) available at <https://www.onenews.ph/covid-19-pandemic-disrupting-barmm-transition-says-mindanao-sociologist>accessed on 8 February 2021.

[3] See The Power Sharing Annex and the Wealth Sharing Annex on the creation and the powers of the new BARMM government (and the dissolution of the antecedent Autonomous Region in Muslim Mindanao or ARMM).

[4] Republic Act No. 11054, also known as the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao (hereinafter referred to as R.A. No. 11054 or the organic law).

[5] Dated October 2020. The Mindanao Peoples’ Caucus is a network of civil society organisations that has been engaged in peace advocacy for many years.

[6] The BTA is appointed by the President, see Article XVI, Section 2 of R.A. No. 11054.

[7] R.A. No. 11054, Article XVI, Section 4 (on the BTA’s functions and priorities).

[8] The Mindanao Peoples’ Caucus itself recommends a term extension for the BTA. See also Bong S. Sarmiento and Edwin O. Fernandez ‘Calls to extend Bangsamoro transition period snowballs in Mindanao (25 January 2021) available at <https://newsinfo.inquirer.net/1387729/calls-to-extend-bangsamoro-transition-period-snowball-in-mindanao> accessed on 8 February 2021.

[9] Sheila Mae Dela Cruz, ‘Bangsamoro seeks 3 more years for transition’ (19 November 2020) available at https://newsinfo.inquirer.net/1362401/bangsamoro-seeks-3-more-years-for-transition.

[10] Ibid; Bong S. Sarmiento and Edwin O. Fernandez ‘Calls to extend Bangsamoro transition period snowballs in Mindanao (25 January 2021) available at <https://newsinfo.inquirer.net/1387729/calls-to-extend-bangsamoro-transition-period-snowball-in-mindanao> accessed on 8 February 2021.

[11] R.A. No. 11054, Article XVI, Section 3 (on the BTA’s powers and authorities).

[12] R.A. No. 11054, Article XVI, Section 1 (on the transition period)

[13] R.A. No. 11054, Article XVI, Section 1. While this could arguably refer to other transition activities not enumerated in the organic law, there is no reason not to consider the uncompleted portion of the BTA’s transition plan as falling under this proviso. Indeed, if transition measures not contemplated by the organic law are deemed not prejudiced by the ending of the transition period, it is all the more clear that legally mandated transition measures should not be prejudiced by its ending.

[14] Annex on Transitional Arrangements and Modalities (2013), Part II, Section B on the Bangsamoro Transition Authority.

[15] Comprehensive Agreement on the Bangsamoro (2014), Prefatory Section, paragraph 3

[16] R.A. No. 11054, Article XVI, Section 12 on the dissolution of the BTA requires the BTA to submit a final report and recommendations to the first BARMM parliament within 60 days of its assumption into office.