On the constitutionality of the Bangsamoro Electoral Code

The Bangsamoro Autonomous Region in Muslim Mindanao or BARMM is not a regular local government unit (LGU). It is a unique political subdivision of the state as prescribed in Article X of the 1987 Constitution.

Article X is essentially divided into two parts. Sections 1 to 14 is the first part covering regular LGUs such as provinces, cities, municipalities and barangays. On the other hand, Sections 15 to 21 cover Autonomous Regions only and refer specifically to Muslim Mindanao and the Cordillera. Therefore, the regional government apparatus for these two autonomous regions is a totally distinct constitutional prescription.

According to the case of Disomangcop vs. Datumanong [G.R. No. 149848, November 25, 2004]:

“Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government.”

This “basic internal government power” is exercised by the Bangsamoro Parliament pursuant to the Bangsamoro Organic Law (BOL). The Bangsamoro Parliament is obviously, a lawmaking body. The government of the day is comprised of members of the Bangsamoro Parliament and exercise executive functions. Presently, these roles are being carried out by the Bangsamoro Transition Authority (BTA).

The Bangsamoro Electoral Code, passed by the BTA acting as a parliament last March 8, 2023, is an exercise of this lawmaking power granted to the regional government. The scope of the Bangsamoro Parliament’s legislative power, currently being exercised by the BTA, can be summarized as follows:

First, the Bangsamoro Parliament can generally legislate only on matters allowed by the BOL. As per Section 2 of Article VII, “The powers of government shall be vested in the Parliament which shall exercise those powers and functions expressly granted to it in this Organic Law, and those necessary for, or incidental to, the proper governance and development of the Bangsamoro Autonomous Region.” These powers are enumerated in Section 2 of Article V.?

Second, correspondingly the Bangsamoro Parliament cannot legislate on matters that are not specifically conferred by the BOL as per Section 1 of Article V, “All powers, functions, and responsibilities not granted by the Constitution or by national law to the Bangsamoro Government shall be vested in the National Government.” Therefore, matters that are neither prescribed nor prohibited by the BOL, would still fall within the ambit of the national government.?

And finally, the Bangsamoro Parliament cannot enact laws that contravene in any way the 1987 Constitution and national laws as per the Supreme Court in the case of Sema vs Comelec [G.R. No. 177597, July 16, 2008], to wit:?

“It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly provides that the legislative powers of regional assemblies are limited "[w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national laws, x x x."”

Accordingly, assessing the constitutionality of the Bangsamoro Electoral Code, or any regional law for that matter, will have to be reckoned against this framework. It must be emphasized that all citizens must determine for themselves the constitutionality of laws. According to constitutional scholars Maartje De Visser and Jaclyn L. Neo in Pluralizing constitutional interpretation: An introduction:

“Constitutional interpretation is not solely a judicial exercise, nor are judicial constructions always as definitive or authoritative as they might appear at first blush. Other public institutions also have occasion to decide on the meaning of and to apply the constitution; and their understandings, too, may produce significant legal effects.”

And so, whether regional law or national statute, it is the responsibility of every citizen to form a view on its constitutionality. This means such law or statute must be thoroughly studied and discussed by the polity. This piece is a humble contribution to this effort as regards the Bangsamoro Electoral Code.

It can be argued that as per the BOL, the Bangsamoro Electoral Code must cover only matters directly related to the regional parliamentary elections.?Section 4 of Article IV of the BOL provides, “The Bangsamoro Government shall adopt an electoral system which shall be consistent with national election laws, allow democratic participation, encourage the formation of genuinely principled political parties, and ensure accountability.”

?

A plain reading of these provisions of the BOL suggests that the electoral code must principally cover the parliamentary elections in the BARMM, with particular focus on the formation of genuinely principled political parties.?

Moreover, it is evident as well from these provisions that the electoral code cannot cover election matters already governed by national election laws, such as the election of local government and barangay officials. Indeed, the code cannot cover election administration in the BARMM because this falls under the exclusive jurisdiction of the Comelec.

Applying the assessment framework therefore, leads to the view that certain portions of the Bangsamoro Electoral Code are inconsistent with the BOL and the 1987 Constitution. Specifically, those provisions which pertain to election matters already governed by the Omnibus Election Code (Articles VI to IX).?

Obviously, this piece represents the opinion of one individual only. Many others will have their own assessment of the Bangsamoro Electoral Code and other regional laws. A free and civil exchange of insights in this regard should be encouraged. The hope is that these views expressed in the public sphere will help the Bangsamoro community be more alert and assertive in holding their government to account.

Photo credit: PNA