BBL IN SENATE | Hearing with Peace Council, May 5, 2015

Republic of the Philippines

CONGRESS OF THE PHILIPPINES SENA TE Pasay City

COMMITTEE ON LOCAL GOVERNMENT

JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES

DATE : Tuesday, May 5, 2015 TIME : 10:00 a.m. VENUE : Sen. Ambrosio B. Padilla Room

2nd Floor, Senate of the Philippines Financial Center, Roxas Boulevard, Pasay City AGENDA : Senate Bill No. 2408 An Act Providing for

the Basic Law for the Bangsamoro and Abolishing the Autonomous Region in Muslim Mindanao, Repealing for the Purpose Republic Act No. 9054, Entitled An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, and Republic Act No. 6734, Entitled An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, and for Other Purposes (by Senators Drilon, Sotto, A. Cayetano, Legarda, Recto, Ejercito, Binay, Escudero, Aquino, Angara, P. Cayetano, Honasan and Guingona)

ATTENDANCE

SENATORS PRESENT:

Hon. Ferdinand Bongbong Marcos Jr. - Chairman, Committee on

Local Government Hon. Francis Chiz Escudero - Member

1

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Tuesday, May 5, 2015 Page 2 GUESTS/RESOURCE PERSONS: Rev. Fr. Orlando B. Cardinal Quevedo-Citizens Peace Council; Archbishop

Cotabato City Rev. Fr. Joel E. Tabora - Representing His Eminence Luis

Antonio Cardinal Tagle, Citizens Peace Council; President, Ateneo de Davao University

Hon. Hilario G. Davide Jr. - Citizens Peace Council; Former Chief Justice, Supreme Court Mr. Cayetano W. Paderanga Jr. - Representing Mr. Jaime Augusto

Zobel de Ayala, Citizens Peace Council; Former Secretary, National Economic and Development Authority

Mr. Edilberto C. de Jesus - Citizens Peace Council; Former Secretary, Department of Education Prof. Moner Bajunaid - Citizens Peace Council; Consultant, International Organization for Migration (IOM) Ms. Victoria P. Garchitorena - Citizens Peace Council; Former Head,

Presidential Management Staff Ms. Bai Rohaniza Sumndad-Usman - Citizens Peace Council; Founder,

Teach Peace, Build Peace Movement Atty. Christian Monsod - Citizens Peace Council; Constitutionalist SENATORS STAFF: Atty. Luzviminda D. Lavarias - O/S Marcos Atty. Jose R. Cadiz Jr. - O/S Marcos Mr. Julius Palamos - O/S Marcos Ms. Shiela Mae Enriquez - O/S Marcos Ms. Marivic Ching - O/S Marcos Ms. Charlotte Franco - O/S Escudero Mr. Ronnie Calumpita - O/S Escudero Ms. Zheanne Aeson M. Dantis - O/S P. Cayetano Atty. Jason Co - O/S A. Cayetano Ms. Kristela Castronuevo - O/S Recto Ms. Paola Deles - O/S Aquino Mr. Brian See - O/S Legarda

2

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Tuesday, May 5, 2015 Page 3 Ms. Chynna Lacuna Pangan - O/S Legarda Mr. Doni Capuyan - O/S Osmea Mr. Abel Maglanque - O/S Santiago Ms. Regine Tenorio - O/S Santiago Atty. Katrina Bianca T. Tamayao - O/S Villar Mr. Fabs Lapada Jr. - O/S Binay Ms. Rizza Calimag - O/S Binay Ms. Ron Reyes - O/S Guingona SENATE SECRETARIAT:

Ms. Assumption Ingrid B. Reyes - Legislative Committee Secretary Committee on Local Government

Mr. Elpidio A. Calica - Legislative Committee Secretary Committee on Peace, Unification and

Reconciliation Mr. Guillermo E. Sapinoso Jr. - Committee Stenographer

Ms. Cristina D.C. Astrero - Committee Stenographer Ms. Christine M. Nery - Committee Stenographer Ms. Jocelyn A. Dela Cruz - Committee Stenographer Ms. Cleofe P. Caturla - Committee Stenographer Ms. Cindell B. Gealan - Committee Stenographer Ms. Jeanne M. Baisa - Committee Stenographer Mr. Felipe A. Dahino - Committee Clerk

Mr. Daniel D. Diamzon - Committee Clerk Mr. Clinton S. Martinez - STSRO

Mr. Eric Jalandoon - Legislative Page Mr. Emerson Carreon - Legislative Page Mr. Ronnie Cabaero - Legislative Page Mr. Alfonso Beltran - OSAA-SES Mr. Teddy Fernandez - OSAA-SES Mr. Elvis Diaz - Audio Operator

(For complete list, please see attached Attendance Sheet.)

3

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-1 May 5, 2015 10:21 a.m. 1

AT 10:21 A.M., HON. FERDINAND BONGBONG R. MARCOS JR., CHAIRMAN OF THE COMMITTEE ON LOCAL GOVERNMENT, CALLED THE HEARING TO ORDER.

THE CHAIRMAN (SEN. MARCOS). Good morning ladies and

gentlemen.

The hearing of the Committee on Local Government joint with

the Committee on Peace, Unification and Reconciliation; the Committee

on Constitutional Amendments and Revision of Codes, of Tuesday, fifth

of May 2015, is called to order.

I would like to acknowledge the presence of Senator Chiz

Escudero and our resource persons who constitute some of the

members of the Citizens Peace Council. And it is precisely, the agenda

today is the report that the peace council has prepared and has

formally handed over to the Senate. You had witnessed it, the press

have witnessed it, the handover to the Senate President and once

again in the hearing room just moments ago.

So I would like to acknowledge for the record the presence of

different individuals who constitute the membership of the Citizens

Peace Councilthe former Chief Justice, Hilario Davide Jr.; Father Joel

Tabora, the president of the Ateneo de Davao University who is

representing His Eminence Luis Antonio Cardinal Tagle; Bai Rohaniza

Sumndad-Usman, the founder of Teach Peace, Build Peace Movement;

4

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-1 May 5, 2015 10:21 a.m. 2 the former NEDA Secretary, Secretary Cayetano Paderanga, who

represents today Mr. Jaime Augusto Zobel de Ayala, the chairman and

CEO of Ayala Corporation; the former secretary of Education and

presently the president of the Asian Institute of Management,

Secretary Edilberto de Jesus; Professor Moner Bajunaid; and Ms.

Victoria Garchitorena who is the former PMS head.

Welcome to the Senate, ladies and gentlemen.

I understand from Chief Justice Davide that the presentation that

they will be making today has been organized into four subjects for

which clusters have been organized within the peace council.

So perhaps, I would yield the floor to Chief Justice Davide for,

maybe, an outline as to how you would like to conduct the briefing.

MR. DAVIDE. Yes, Mr. Chairman and Honorable Escudero.

There will be an opening statement to be delivered on behalf of

Cardinal Tagle by Father Tabora. And after that, Cluster 1, chaired by

this representation, will make the report for Cluster 1. Then for

Cluster 2, on Economy and Patrimony, Mr. Jaime Augusto Zobel de

Ayala will be represented by Dr. Paderanga. Then for the chapter on

justice and human development, we will have the youngest member of

the peace council, Bai Rohanisa Usman. And finally, Cluster 4,

represented by Dr. De Jesus, he was a co-chair of the cluster.

5


So afterwards, we will propose that all of them should first be

heard before any interpellation can be made so it would be a little

faster movement.

So may I request that Father Tabora be recognized for the

opening statement?

THE CHAIRMAN (SEN. MARCOS). Thank you, Chief.

Father Tabora, please, for your opening statement.

MR. TABORA. Mr. Chairman and Senator Chiz.

Only a year ago, our government and the Moro Islamic Liberation

Front signed the Comprehensive Agreement on the Bangsamoro.

Amidst much celebration, the public and the media, we might recall,

welcomed the end to war that it promised. Much has happened since

then. A working group prepared a draft legislation which was awaiting

review by Congress. Sadly, the Mamasapano incident which cost the

lives of combatants and civilians including an eight-year-old girl,

reawakened suspicions about the Muslim Filipinos and derailed the

peace process. Congress decided to stop its deliberations on the

Bangsamoro Basic Law as some members raised questions about the

sincerity of the MILF to abandon its insurgency.

On March 27th, President Benigno Aquino III invited five of us to

gather other independent-minded Filipinos to study the Bangsamoro

Basic Law to see how we could help clarify the many issues

6

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-1 May 5, 2015 10:21 a.m. 4 surrounding it. Realizing the critical importance of the BBL to the

peace and development of Mindanao as well as to the peace and

development of the entire Philippines, we readily accepted the

challenge. Although we came from different fields of endeavor, we

were united in our desire for peace and believe that we should give its

every instrument a chance to prosper. This will require an effort to

understand the provisions of the BBL in the context of the history of

the insurgency waged by the MILF against the government and to

consider whether this law could effectively address the causes of

conflict. We would then give our views on the BBL and help move

forward the stalled peace process.

Cognizant of our limitations, we invited other leaders from

various sectors to join us as co-convenors and they in turn asked

others to come forward to undertake an independent evaluation of the

BBL provisions. We decided to focus only on contentious issues. We

were committed to seeking common ground. In all, 136 Filipinos,

Christians, Muslims and indigenous peoples, including religious leaders,

civil society representatives, deans of law schools, businessmen and

three of the framers of the 1987 Constitution came forward to

contribute their knowledge, experience and wisdom to the discussions.

We are truly grateful to all of them for their time, their sharing and

7

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-1 May 5, 2015 10:21 a.m. 5 their goodwill and have included all their names in an annex to our

report.

We divided ourselves into clusters and reviewed the BBL along

these four themes: first, constitutionality, forms and powers of

government; second, economy and patrimony; third, social justice and

human development; and, fourth, peace and order and human

security.

We held separate cluster meetings over a span of two weeks and

held a five-hour plenary on April 18th. As Ambassador Dee described

it, the plenary was an avenue for dialogue between and among

independent-minded citizens who believe in the importance of

understanding the BBL and discussing its implications for peace and

development in our country in a calm and reasonable manner. We

took time to learn from previous studies and from resource persons

who presented views informed by years of studying and attempting to

resolve the issues. We recognized some controversial aspects of the

draft but we also shared the view that the legislation for autonomy

requires a search for compromise and consensus. The entire process

involved the freewheeling exchange of ideas and views asking hard

questions, seeking clarification, engaging in debate and

argumentation.

8


Overall, we agreed that the BBL is overwhelmingly acceptable

and deserves the support of all Filipinos.

On the few provisions that needed some refinement, we offer our

recommendations. The BBL seeks to implement the constitutional

mandate for autonomy enshrined by the 1987 Constitution. This

process began with the good faith effort of the government to establish

the Autonomous Region of Muslim Mindanao.../jun

9

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CDAstrero II-1 May 5, 2015 10:31 a.m. 1

MR. TABORA. of Muslim Mindanao. To a large extent, the

grant of autonomy within the framework of national sovereignty had

prevented conflict from getting out of hand. Clearly, autonomy and

peace and development, all constitutional mandates have become

inseparable.

We also realized that the BBL will bring benefits that will redound

not only to the Bangsamoro but to all Filipinos. Mindanao holds the

nations untapped but already threatened resources. The potential for

development in that region will mean greater productivity for all. The

exercise has brought home to us the conviction that the BBL should be

passed; that to set it aside now would be imprudent and wasteful of

previous efforts. Peacemakers on both sides have spent no less than

17 years to bring us to this juncture. There is enough goodwill on both

sides, to bring this agreement to its conclusion, one that would renew

and refresh communities in the most deprived regions of the country

with a genuine fresh start.

So many others, some eminent public figures, others less known,

have given their time to this struggle for peace. They have engaged in

dialogue and discussion to bring their issues to the table to find

common ground. At no other time has so much political will been

10

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CDAstrero II-1 May 5, 2015 10:31 a.m. 2 invested in the peace process. It seems unwise for us to end this now

and try to restart in an indefinite future.

Before the plenary was adjourned, Cardinal Orlando Quevedo

graced the meeting and offered his own insights. He also offered a

partnership between his pro-peace group, the Friends for Peace, with

the members of the Council and encouraged us to reach out to other

groups with the same objectivespeace and development for all

Filipinos. Indeed, we saw our effort only as one of other citizen efforts

and those of government, some larger than our own whose work has

been more arduous, taking longer than our own.

We submit our report as our contribution to the search for peace

in Mindanao and in our country. We will communicate what we have

learned and make available the reading materials we reviewed.

We express in the report our support for the passage of the BBL

together with our recommendations on a few provisions. We hope that

the Congress and our people can overcome their prejudices. We

cannot pursue peace on the basis of mutual fear and distrust. All of us

must undertake an active search for justice, truth, respect, love and

peace. We will exert all efforts in disseminating our findings, assuring

everyone of the independence of the process. We do so with trust and

faith that other citizens like us will decide that the Bangsamoro Basic

11

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CDAstrero II-1 May 5, 2015 10:31 a.m. 3 Law places peace within our grasppeace for Mindanano and peace for

all Filipinos.

Thank you, Mr. Chair.

THE CHAIRMAN (SEN. MARCOS). Thank you, Father Tabora,

for the opening statement.

Perhaps, now, we can proceed to the first cluster which is to do

with constitutionality and I think that the former Chief Justice Hilario

Davide will be the one who will take us to the points on that subject in

the report of the councils.

So, Chief Justice, please.

MR. DAVIDE. Thank you very much, Mr. Chairman, and

Honorable Escudero.

Shalom! A very peaceful morning to all of us. Let me forthwith

express our profound gratitude to you honorable Chairman for inviting

us the Citizens Peace Council and to hear us on our final report.

I was designated chairman of Cluster 1 which was assigned to

study the proposed BBL and Senate Bill No. 2408 and House Bill No.

4994 and to focus on the principal issues concerning or relating to

constitutionality, form and powers of government and to plebiscite.

The cluster took special note of the fact that the proposed Bangsamoro

Basic Law (BBL) which is envisioned to fulfill one of the most significant

12

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CDAstrero II-1 May 5, 2015 10:31 a.m. 4 mandates of the 1987 Constitution is being questioned and threatened

with an abrupt end with arguments that it contravenes the

Constitution. The cluster members conducted a review of the

numerous position papers, studies and statements presented and

circulated both by those who are opposed to the BBL and those who

are defending the BBL. Shifting through the different positions, the

cluster then identified key contentious issues that need to be examined

and addressed. The task was difficult and challenging for both

oppositors and supporters articulated the respective positions with

strong arguments.

As to Senate Bill No. 2408, we have to immediately consider the

fact that it is authored and introduced by 13 senators or a majority of

the Senate already headed by our Senate President Franklin Drilon and

the Honorable Senators Sotto III, Alan Peter Cayetano, Legarda,

Recto, Ejercito, Binay, Escudero, Aquino IV, Angara, Pia Cayetano,

Honasan II and Guingona III. Since all of them are presumed to be

fully convinced that the BBL suffers from no constitutional infirmity,

the cluster could have forthwith closed the chapter, yes, he has all the

chapters of each study. But it could not for it had before it the

counterpart House Bill No. 4994, authored and introduced by only 17,

headed by Honorable Speaker Belmonte Jr., of the more than 300

13

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CDAstrero II-1 May 5, 2015 10:31 a.m. 5 members of the House of Representatives. The cluster had has to

move forward relentlessly up to the end.

The Senate also has given the Citizens Peace Council and its

Cluster 1 immeasurable joy. Its report is heard first by this

Committee. It is chaired by a highly respected chairman who is more

popularly known throughout the Philippines as Senator Bongbong

Marcos. It could be purely serendipity, Mr. Chairman, that the draft

BBL the Committee will now deliberate vis--vis the report of the

Citizens Peace Council can now have a new historic meaning of

transcendental significance. The meaning is Bongbong Law or

Bongbongs legacy.

Let me now take up my assigned task.

Major findings. The clusters meticulous analysis of the major

contentious issues on the BBL in light and on the basis of the

interrelated propositions constituting the framework of the discussions

which I shall take up later on led to the following major findings:

One, the BBL does not vest state status to the Bangsamoro

government. The provisions on people, territory and self-

determination are not vestiges of a separate state but are consistent

with the constitutionally mandated creation of autonomous regions.

14


Second, the Bangsamoro government, parliamentary in form, as

constituted in the BBL, is compliant with the requirements of the

Constitution. The government with an executive department and

legislative assembly has offices that are elective and representative of

the constituent political units.

Third, the intergovernmental relations between the national

government and the Bangsamoro government are consistent with the

allocation of powers mandated by the Constitution. It defined

relationship between the national government and the Bangsamoro

government embodies the essence of genuine autonomy based on

principles of subsidiarity and solidarity.

Fourth, the Supreme Court and the constitutional bodies

continue to maintain the powers that are given them under the

Constitution. There is neither substitution nor diminution of powers

intended or effected by the creation of the Bangsamoro human rights

auditing, civil service and electoral offices.

Fifth and finally, the plebiscite requirement of the BBL adheres to

the provision of the Constitution on the process for creation of the

autonomous region.

Now, our basis for the findings which I shall explain/cda

15

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CMNERY III-1 May 5, 2015 10:41 a.m. 1

MR. DAVIDE. which I shall explain in seriatim.

There are several objections to BBL provisions on people,

territory, and self-determination because of the fear of an intended or

unwitting creation or recognition of a separate Bangsamoro state. The

cluster finds no basis for such fear.

First, defining a Bangsamoro people does not create a new

citizenry or nationality. The definition of the Bangsamoro People in

the BBL is only an affirmation of identity, not a definition of citizenship

in the Bangsamoro area. The word peoples is used as a descriptive

term with respect to the indigenous peoples of which the

Bangsamoro people is a part. There does not appear to be any

indication or intent to create a new kind of citizen. The non-

Bangsamoro do not lose civil or political rights, and qualifications for

candidacy and the Bangsamoro do not require identification as a

Bangsamoro people.

Where the term citizen may be interpreted as restrictive as in

the case of the Social Justice provision (Article IV, Section 7), the term

constituent or inhabitant may be applied in its stead. In that case,

the BBL provisions describing a Bangsamoro people may stand

without need of clarification.

16


Second, defining a Bangsamoro territory does not create or imply

an independent state. The word territory whether in legal or in

ordinary parlance means generally an area under a particular

jurisdiction. An area with its own defined area, jurisdiction or rules

does not make that territory independent from its parent state. It is

used to describe trust territories, incorporated and unincorporated

territories, occupied territories, non-self-governing territories,

dependent territories or external and internal territories, each with

varying degrees of powers and independence and historical

antecedence.

The Constitution describes provinces, cities, municipalities and

barangays as territorial subdivisions and describes adjacent

territories of legislative districts. The Local Government Code frequently

refers to the areas of local government units as territories. Article X,

Section 20 of the Constitution speaks of the territorial jurisdiction of

the autonomous regions.

As with the current ARMM Organic Act, there is even a

declaration in the BBL that the Bangsamoro territory shall remain a

part of the Philippines. This is an unequivocal rejection of the idea of

statehood.

17


However, as regards the opt-in provisions of contiguous

territories, the core Bangsamoro territories should not be allowed to

increase indefinitely by the periodic vote of 10 percent of registered

voters in the outer territories. The establishment of a plebiscite that

fixes the territory is a congressional prerogative that cannot be

delegated.

A perpetual opt-in provision makes the Bangsamoro territory

indefinite and keeps the organic act in constant flux. Since the

creation of an autonomous region, including the definition of its

territory, is the sole function of Congress, such changes of territory

that establishes the limits of the region requires the specific acts of

Congress. An indefinite opt-in provision would be an undue delegation

of legislative power to a possible erratic 10 percent of an indeterminate

population.

For purposes of clarity, it is therefore recommended that

references to the opt-in provisions in Article III, Section 3, and Article

XV, Section 4 be deleted. With the deletions, the definition of the

Bangsamoro territory in the BBL may stand.

Third, the right of self-determination is a right of all peoples and

is not equivalent to the right to statehood. Its claim and use in the BBL is not a

promise of secession but a declaration of a right all Filipinos possess.

18

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CMNERY III-1 May 5, 2015 10:41 a.m. 4 The Constitutional promise to the Muslim Mindanao and the Cordilleras

of their own autonomous region is itself recognition of the need for the

peoples identified therein to exercise differently their own right to self-

determination as part of the larger Filipino nation.

The term self-determination was popularized around the early

20th century when there were increasing moves to decolonize. It is

within the era of decolonization that self-determination implied

secession. Outside of decolonization, there is no such link. Self-

determination is therefore generally understood to mean what our

Supreme Court has recognized as internal self-determination. While

international law recognizes the right to self-determination of peoples,

there is no right to statehood, and there is no right to secession. As

international law encourages peoples to determine their identity, it also

frowns upon the destabilization of states and breaches of international

peace that would occur if there was constant internal struggle to

secede, and where groups of peoples can be formed based not only on

religion, but on race or ethnicity, or any other criteria.

Thus, the BBL provision may stand without need of clarification.

The parliamentary form of government for the Bangsamoro is

permitted by our Constitution. The prescribed unitary and Presidential

form of government established in the Constitution refers to the

19

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CMNERY III-1 May 5, 2015 10:41 a.m. 5 national government. When it comes to the government of

autonomous regions, however, the Constitution only requires that it

shall consist specifically of the executive department and legislative

assembly, both of which shall be elective and representative of the

constituent political units. This is met in the BBL even though the Chief

Minister of the Bangsamoro government is elected by the Bangsamoro

parliament and not directly by the electorate, as there is no

requirement in the Constitution that the autonomous regions chief

executive be directly elected by the electorate. In fact, Congress may

provide a different government structure within all local government

units. The Constitution only requires Congress to enact a local

government code which shall provide for a more responsive and

accountable local government structure instituted through a system of

decentralization. What structure is more responsive

and accountable is left to the wisdom of legislature.

However, there are provisions to the parliamentary form of

government that need some refinements. (1) There is a need to

harmonize the use of terms. In Article IV, Section 2, the BBL provides

that the Bangsamoro Government shall be parliamentary. In Section 3 of the

same article, however, the BBL uses the term, ministerial form of

government. So also in No. 57 of Section 3, on exclusive powers, of

20

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CMNERY III-1 May 5, 2015 10:41 a.m. 6 Article V on powers of government, To avoid any confusion and

possible misinterpretation, it is recommended that the term

ministerial be dropped and replaced with parliamentary for

consistency and clarity.

Second, the BBLs Article VII, Section 34 provides for the call for

a new parliamentary election upon a two-thirds vote of no confidence

of all members of parliament against the government of the day.

While this may be one of the models of the parliamentary form of

government, it may mean the holding of elections for the Bangsamoro

parliament every time there is no confidence vote, that is not later

than 120 days from the date of dissolution. This will run counter to the

constitutionally mandated synchronization of national and local

elections, which, as held in the recent decision in Abbas Kida versus

Senate should include the ARMM elections, as it is a local election

based on the wording and structure of the Constitution.

To address this, it is recommended that the vote of no

confidence must affect the government of the day, not the parliament,

so that parliamentary elections in the Bangsamoro can be synchronized

with other national and local elections. In this connection, the issue of

separation of church and state may arise. Passing the BBL does not

constitute establishment of religion, much less enforce one upon

21

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CMNERY III-1 May 5, 2015 10:41 a.m. 7 Filipino citizens. The creation of an autonomous Muslim Mindanao or

the use of a Wali as a titular head of the Bangsamoro does not

violate the principle of separation of Church and State. Muslim

Mindanao is a term used in the Constitution to describe the

autonomous region and as a proper recipient of government money as

a government unit. It is meant to be as descriptive as the term

Christian majority is used to describe the rest of the country. The

BBL actually secularizes/cmn

22

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JADela Cruz IV-1 May 5, 2015 10:51 a.m. 1

MR. DAVIDE. The BBL actually secularizes the name further by

using the word Bangsamoro with more emphasis on their historic

character than as a religious one. And Wali is not required to be a

religious person, and as described or defined, is as much a guardian or

head. As it is, our Constitution does not prevent priests from holding

public office, only that there are no religious sectors.

I will now present the discussion of the cluster on the issues

relating to intergovernmental relations between the central

government and the Bangsamoro government.

The powers of government are classified in the BBL as: (1)

those that are reserved to the central government; (2) powers that are

concurrent between the central government and the Bangsamoro

government; and (3) powers that are exclusive or devolved to the

Bangsamoro government. This allocation of powers is consistent with

the mandate of the Constitution. The recommendations of the cluster

only pertain to minimal provisions and additional wordings.

The grant of exclusive powers to the Bangsamoro government is

not tantamount to a superior Bangsamoro government or a weakened

central government. It only refers to powers that are devolved to the

Bangsamoro government, which remains under central government,

but as an autonomous region. To remove such misunderstanding, the

23


title of the Section on exclusive powers may be amended to read:

Section 3. Exclusive and Devolved Powers. This will emphasize that

the source of this exclusivity is devolution of powers.

The difference with respect to the creation of autonomous

regions is the constitutional right to greater delegated powers with

more freedom to use it, not as compared to the national government

but as compared to other political subdivisions. Since the Constitution

does not allow the creation of any other state or the secession of any

peoples, the BBL provisions can imply nothing more than internal

organization and creation of the Bangsamoro nation as an internal

subdivision of the State with designated powers. Congress would have

no authority to do anything more.

Intergovernmental relations in the BBL refer to the concept of

devolution as inspired by the principles of subsidiarity. The President

exercises general supervision only over the Bangsamoro government

as required by the Constitution. This is clear in the BBL and there is no

provision that indicates a reduced power of the President. Running

parallel to the principle of subsidiarity is the principle of solidarity as an

inherent right and duty of the state and not just by the President. As

provided in Sections 1 and 6 of Article XII, all areas of economy,

whether in the declaration that all economic agents contribute to the

24


common good, where all regions are given the optimum opportunity

to develop or where the private sector is encouraged to broaden the

base of ownership and own and operate economic enterprises, these

rights are always subject to the duty of the state to promote

distributive justice and to intervene when the common good demands.

The principle of the solidarity is already reflected in the BBL

section on devolution and subsidiarity requiring all government

decisions to adhere to considerations of good governance and the

general welfare.

It is therefore suggested for greater emphasis, that Section 6 of

Article VI on devolution and subsidiarity be amended, to read:

Principles of Devolution and Subsidiarity, and of Solidarity, and that

all BBL provisions that refer to the principle of subsidiarity, such as the

preamble should concomitantly include the principle of solidarity.

I will now discuss the controversial term asymmetric

relationship. Some comments on the BBL equate the asymmetric

relationship between the central government and the Bangsamoro

government as similar to the associative relationship that was rejected

by the Supreme Court in the BBLs predecessor, the MOA-AD. A simple

perusal of the BBL in relation to the allocation of powers and the

intergovernmental relations, as discussed earlier, will clearly

25


demonstrate that asymmetric relationship is different from associative

relationship.

However, to obviate any doubt as to the meaning of

asymmetric relationship, a definition of the term in the BBL may be

inserted. The proposed definition will state that the term asymmetric

relationship refers to the relationship between the central government

and the Bangsamoro government as an autonomous region where, as

provided under Section 15, Article X of the 1987 Constitution, the

autonomous regions are granted more powers and less intervention

from the national government than territorial and political subdivisions.

The term territorial and political subdivisions refers to other local

government units. This is a combination of the definition proposed by

Dean Antonio G.M. La Via and the description provided by Justice

Marvic Leonen in his concurring opinion in the case of League of

Provinces of the Philippines versus DENR.

The enumeration of powers given to the Bangsamoro parliament

under the BBL is consistent with the the constitutional provision. Article

X, Section 20 of the Constitution is broad enough as it includes a

paragraph on such other matters as may be authorized by law for the

promotion of the general welfare of the people of the region. The

potential overlap between the legislative powers and the Congress and

26


the Bangsamoro parliament, which is objected to by some experts, is

an unavoidable consequence that is also true as far as the legislative

powers of regular local governments sanggunians are concerned.

These potential overlaps or even conflicts should be addressed by the

application of the principles on hierarchy of laws and on conflict of

laws.

The grant to the Bangsamoro government of the authority,

power and right to explore, develop and utilize the natural resources

within its territorial jurisdiction is an acceptable formulation. However,

it is proposed that such authorization given to the Bangsamoro

government must be understood as subject to the provisions of the

Constitution on national economy and patrimony.

As regards the fiscal autonomy provisions, we did not find any

constitutional infirmity in the provisions of the BBL. The block grant is

not akin to the PDAF that was declared unconstitutional by the

Supreme Court. The block grant referred to in the BBL is similar to the

Internal Revenue Allotment or IRA under the Local Government Code.

In fact, the wording of BBLs Article XII, Sections 15 to 17 is very

similar to the Local Government Codes formulation in its Sections 284

and 286. Similar to the provisions concerning the IRA for ordinary local

governments, the block grant for the autonomous region is a faithful

27


adherence to the constitutional mandate that local governments shall

have a just share, as determined by law, in the national taxes which

shall be automatically released to them.

On the justice system, the cluster also reviewed the BBL

provisions relating thereto. The BBL Section 3 of Article X provides for

the power of the Bangsamoro parliament to enact laws pertaining to

persons and family relations, and other civil law matters, commercial

law, criminal law, including the definition of crimes and prescription of

penalties thereof. This provision is within the powers of the legislature

to delegate to local governments as provided for in Article VI, Section

1 of the Constitution. Despite the restrictive wording in the

Constitutions Article X, Section 18 and Section 20, paragraph 4, which

provides that legislative powers of the autonomous region may only

extend to personal, property, and family relations, Section 20,

paragraph 9, also states that the Organic Act shall provide for

legislative powers over such other matters as may be authorized by

law for the promotion of the general welfare of the people of the

region.

Article X, Sections 5, 6, and 7 of the BBL provides for the

establishment of Shariah circuit courts, Shariah district courts, and

Shariah High Court, respectively. These provisions are within the

28


power of Congress to define and expand the jurisdiction of courts.

Under the Constitution, the Congress shall have the power to define,

prescribe and apportion the jurisdiction of the various courts, Article 8,

Section 2. Hence, this legislative power can be included in the

additional matters that Congress can authorize the autonomous

regions to possess. Furthermore, it should be clarified that judicial

authority is not being granted to Bangsamoro government. It must be

noted that/jad

29

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 1 MR. DAVIDE. noted that in BBLs Article VII on the

Bangsamoro government, there is a set of provisions on the

parliament, and a set of provisions on the executive officers, but none

on the judiciary. Judicial power remains with the Supreme Court,

which is vested by the Constitution with such power, Article VIII,

Section 1 of the Constitution. The BBL envisions the creation of special

lower courts under the control and supervision of the Supreme Court.

Article X, Section 1 of the BBL provides that the justice system in the

Bangsamoro shall consist of the Shariah Law--it should be court--

with application over Muslim only, the traditional or tribal justice

system for the indigenous peoples in the Bangsamoro local courts and

the alternative dispute resolution systems.

The BBLs provision in Article X, Section 7 may be seen as being

unconstitutional for apparently limiting the jurisdiction of the Supreme

Court provided under Section 5, Article VIII of the Constitution, which

jurisdiction Congress may not amend under Section 2 of Article VIII.

The provision states that the decisions the the Shariah High Court

shall be final and executory. This is not unique to the BBL. The Labor

Code, as an example is replete with provisions making decisions of the

secretary, the National Labor Relations Commission and the Voluntary

Arbitrator final and executory. Despite this wording, however, the

30

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 2 Supreme Court has consistently ruled that such decisions shall still be

subject to the review powers of the Supreme Court.

In order to avert any confusion, the provision may be amended

to include the clause Subject to the review powers of the Supreme

Court.

Now, on the constitutional bodies. The BBL introduces the

creation of the following bodies: Bangsamoro Human Rights

Commission; Bangsamoro Auditing Body; Bangsamoro Civil Service

Office; and the Bangsamoro Electoral Office. The validity of the

provisions on these bodies is being questioned on the main ground

that their creation and the power vested in them under the BBL are

unconstitutional as they unduly assume the expanded powers vested in

the national constitutional bodies.

The reference to the Human Rights Commission, Auditing Body,

and Civil Service, as constitutional bodies is inaccurate and may be

misleading. They can be distinguished from other offices, which the

Bangsamoro government may later establish, because they have been

specifically mentioned in the organic act, the BBL. They derive their

basis of existence not from any ordinary law that may be promulgated

by the Bangsamoro parliament, but from the organic act itself. This

does not mean, however, that they are constitutional bodies in the

31

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 3 sense that they can adversely affect the roles, mandates and powers

of the constitutional bodies established by the Constitution, COA, Civil

Service Commission, and Commission on Human Rights.

The wording of the BBL is clear. The Bangsamoro special bodies

were created with the goal of supplementing, not supplanting the work

of their national counterparts. As such, sections which provide for the

creation of these Bangsamoro bodies include the clause without

prejudice to the powers, authorities and duties of the national

constitutional bodies for the civil service and the auditing office, and

the clause, shall have a coordination and complementary relationship

for the Human Rights Commission.

The way that the BBL is structured will show that the powers

exercised by the Bangsamoro special bodies are not exclusive powers

but concurrent powers meant to be exercised in a coordinative and

complementary manner with the national constitutional bodies and

without prejudice to the constitutional bodies exercise of their

respective mandates and powers under the Constitution.

However, the comment of the Commission on Audit on the issue

is enlightening. In COAs position paper, it was recommended that the

Bangsamoro Auditing Office could only mean or refer to an internal

body or office, an internal auditor, in the nature of and within the

32

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 4 functions provided in Republic Act No. 3456, as amended by Republic

Act 4177, otherwise known as the Internal Auditing Act. This means

that the Bangsamoro government is not precluded from creating a

special body like an auditing office as long as it will be considered as

an internal body, which will not, in any way, prevent or obstruct the

functions and powers of the COA.

The Bangsamoro Electoral Office is distinct, for there is a

categorical provision saying that it shall be part of the Commission on

Elections. In fact, even its budget is part of the appropriations of the

Comelec. Thus, the electoral office is not among the concurrent

powers as the evident intent is for the Bangsamoro government not to

have its own election office, leaving these functions solely with the

national government.

It is, therefore, recommended that to the last sentence of Article

V, Section 2 Paragraph 8 of the BBL which reads: The Bangsamoro

government shall have primary disciplinary authority over its own

officials and employees, the clause without prejudice to the powers

of the Civil Service Commission and the Ombudsman be added to

address the Ombudsmans concern that said section diminishes the

Ombudsmans mandate over public officials and employees.

33

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 5

I shall not take up the issue of plebiscite. For the establishment

of the Bangsamoro and the determination of the Bangsamoro territory

to take effect, the BBL requires the ratification of the BBL itself by

majority of the votes cast in a plebiscite in the geographical areas

enumerated therein. This plebiscite requirement adheres to the

constitutional provision on the process for creation of the autonomous

region. The Constitution is categorical in saying that the creation of

the autonomous region shall be effective when approved by majority of

the votes cast by the constituent units in a plebiscite called for the

purpose, Article X, Section 18.

Section 3, Paragraph (e) of BBLs Article XV provides for the opt-

in of contiguous areas where there is a resolution of the local

government unit or petition of at least 10 percent of the registered

voters in the geographical area for their inclusion, and majority of the

registered voters vote for their areas inclusion in a plebiscite called for

that purpose. This must be distinguished from Section 4 of the same

article, which was discussed earlier in relation to territory. Section

3(e) refers to the inclusion of contiguous areas in the plebiscite for the

approval of the BBL, while Section 4 applies to the additional

contiguous areas after the ratification of the BBL.

34

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 6

For Your Honors information, one of the annexes to the final

report of the Citizens Peace Council contains some suggested

amendments or refinements to affected provisions of the BBL.

After our discussions of the Clusters major findings, and the

bases thereof, allow me now to briefly present the overall framework

that guided the Cluster in its review of the BBL.

The Clusters analysis of the BBL is premised on five interrelated

propositions that serve as the over-arching framework for the Clusters

task.

First, the passage of a law that creates an autonomous region is

a constitutional mandate.

Second, the passage of an organic law for the autonomous

region is compelled by the imperative of correcting the injustices of the

past, the urgency of the socioeconomic-political context at present,

and the uncertainty of having a similar opportunity in the future.

Third, autonomy, especially in the context of the Constitutions

mandate for the creation of autonomous region is, in itself, a

peculiarity, and the region that is given autonomy must be recognized

and respected for its uniqueness.

Fourth, the BBL must be understood as an extraordinary special

law, not only because of its nature as an organic act, but also, and

35

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Caturla V-1 May 5, 2015 11:01 a.m. 7 more importantly, as an embodiment of a peace agreement, the

product of prolonged negotiations.

Fifth, the Constitution must be interpreted liberally, so as to give

life to its provisions, and allow the fulfillment of the decades-old

mandate for genuine regional autonomy.

Unlike ordinary legislation, the passage of the BBL is not merely

part of the regular exercise of the States legislative powers. It is the

performance of a sacred constitutional duty. Viewed differently, as the

eminent constitutionalist Father Joaquin Bernas, S.J., would put it, the

establishment of the autonomous regions is not a question of

privilegecpc

36

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CBGealan VI-1 May 5, 2015 11:11 a.m. 1

MR. DAVIDE. of the autonomous regions is not a question of

privilege, but a question of right for the regions that were guaranteed

autonomy.

The statement of the 14 surviving members of the 1986

Constitutional Commission, myself included, aptly characterized the

realization of the constitutional promise as closing the gap between

law and justice.

The negotiations for the Bangsamoro Peace Agreement have

dragged on for 17 years. The result is an autonomous law that

broadens the original one and more fully complies with our

governments constitutional promise and duty. With the Aquino

governments commitment and the trust that it has generated among

the Bangsamoro people, the current context provides an auspicious

timing for the creation of the Bangsamoro Autonomous Region. And

with the fast approaching elections and the upcoming transition in

government, further delay in the completion of the process could

effectively derail the peace agreement. Autonomy and subgovernance

are not equivalent to independence or statehood. It is a statement of

national unity achieved, not just by acknowledging human diversity,

but allowing diversity to thrive.

37


The autonomous regions were created as special local

governments that were distinct from the territorial and political

subdivisions existing prior to the 1987 Constitution. The specific

provisions on the autonomous regions are not just token statements

about internally diverse histories and cultures of the Philippines. They

are a recognition that despite the case at, these different cultures

had not been served in any effective way by the national government.

The Constitution, therefore, contemplates that within the single

democratic and republican Philippine State, Congress would create

autonomous regions that could exercise all traditional powers of

governmentpolice power, taxation, and eminent domain in the same

way as all local government units, but would enjoy less interference

from the national government. This flexibility and freedom given to

the autonomous regions is the only way they could successfully chart

their own unique path.

Parenthetically, the creation of such a sui generis autonomous

region in Muslim Mindanao can be considered as a pilot case and model

for the future development of the rest of the country including

revisiting the effectiveness of the unitary system.

The BBL must be understood in its proper content. It is a non-

ordinary legislative proposal comes into being merely with the

38


sponsorship of a legislator or a group of legislators. It is likewise not

comparable to a number of legislative proposal that came out of a

process of drafting by stakeholders and eventually picked up by

champions among the legislators. The BBL is a product of a peace

agreement, forged after decades of peace negotiations, borne out of

the countrys exhaustion with war. The negotiations were done with

the participation of international facilitators and observers. The

drafting of the BBL underwent an elaborate process even necessitating

the creation of a composite Bangsamoro Transition Commission. This

does not mean however that the Congress as the repository of

legislative powers is deprived of rights at its constitutional

prerogative. On the contrary, understanding the nature of the BBL will

place greater significance on the legislative progress and put it in the

proper perspective.

In interpreting the BBL, any doubt may be construed liberally

and not restrictively so as to give life to the constitutional mandates.

The BBL does not guide the interpretation of the Constitution. The

Constitution guides the interpretation of the BBL.

Much of the confusion concerning about the constitutionality of

the BBL can be resolved by applying one and the most basic rules of

interpretation in Constitutional Law. That as the fundamental,

39


paramount and supreme law of the nation, the Constitution is deemed

written in every statute and contract. As a rule of statutory

construction, if there are provisions, statute irreconcilable with the

Constitution, the Constitution prevails.

When reading the proposed Bangsamoro Basic Law, it is

therefore presumed that all constitutional powers of government and

the constitutional commissions and bodies remain intact regardless of

whether the law explicitly provides for it or not. There is no creation of

a separate kind of citizen, and no creation, virtual or otherwise, of a

political territory that is greater than the national government that

creates it or beyond the reach of the Constitution that allows it. There

can be no surreptitious abandonment of the Constitution because even

if it is the intention, there can be no interpretation or statute that could

recognize it.

In sum, the BBL complies with the Constitutions mandate for the

creation of autonomous regions within the framework of the

Constitution and the national sovereignty as well as territorial integrity

of the Republic of the Philippines. While imperfect, it is a significant

document that should serve as catalyst for building national consensus

towards the realization of the long-term aspiration expressed by the

40


country three decades ago for justice, solidarity and peace for

Mindanao and the entire Philippines.

But I wish to end by emphasizing a very important point. In the

separate meetings of the clusters and in the plenary meeting on April

18, the issue of social justice and human development took a very

prominent role in the discussions. It came out as a common concern.

Indeed, it was a unified thing for the four clusters. So as the country

eagerly awaits the actions of the policymakers on this important

legislation, I must emphasize that the BBL is not just about the grant

of autonomy. It should not be seen as merely a matter of division of

powers, resources or responsibilities between the national government

and autonomous region. The BBL should be understood for what it

really is, an instrument to pursue social justice and development for

the constituents of the autonomous region, for the entire Mindanao,

and for the country in general.

The BBL is a path to peace. Though it cannot solve all the

problems of the country or of the autonomous region, but it is a

foundational element of a necessary first step without which many

worthy initiatives cannot even be tried. There is no guarantee of

success as no constitution or law or government can make such a

41


guarantee, but it is a momentous opening for opportunities, for a new

beginning to correct the mistakes of the past, to craft a better future.

We have all loss so much in waging war against each other for so

long. Now is the time for the country to try to win by being united in

pursuing justice, peace and development.

Thank you very much, Your Honor, for the time.

THE CHAIRMAN (SEN. MARCOS). Thank you, Chief Justice

Davide.

We will, as promised, proceed with the next presentation. We

make the observation, as you were making your presentation, Chief,

that there are significant divergences between the interpretation that

you have put forward and that of the OPAPP and the MILF, and for that

matter, the Executive Department. So perhaps those are the areas

which we will have toit puts the Committee in a bit of a quandary

because we have to now resolve those significant divergences as I

have mentioned them, but thank you for your inputs.

SEN. ESCUDERO. Mr. Chairman, if I may.

THE CHAIRMAN (SEN. MARCOS). Yes, Senator Escudero.

SEN. ESCUDERO. On that point, precisely, on those two points.

Una po, Chief Justice, salamat po sa inyong presentasyon.

Marami ho akong napakinggan na unang beses ko pa lang

42


napakinggan na kung OPAPP lang sana o MILF po ang nagsabi niyan,

malayong mas maganda siguro ang naging diskusyon kaugnay ng BBL.

I ask this question. So, therefore, the position of the Peace

Panel is this. BBL, as amended, not BBL as is. BBL is constitutional if

it is amended via the perfecting amendments that you presented.

Would that be a correct statement?

MR. DAVIDE. Our concentration was not on the BBL itself as

constitutional or unconstitutional. We selected certain provisions which

have been found to be unconstitutional. It would only be this part that

will be affected.

SEN. ESCUDERO. Opo.

MR. DAVIDE. So, okay.

And then we made recommendations. It would be very, very

clear from our recommendations that unless we do something about

these areas of concern and some refinements will be done, then the

constitutional issue/cbg

43

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Jmbaisa VII-1 May 5, 2015 11:21 a.m. 1

MR. DAVIDE. ...constitutional issue may remain. So, hence,

our proposal that probably we could improve and therefore submit one

which would really comply with the Constitution.

SEN. ESCUDERO. You are more diplomatic than I am, Mr. Chief

Justice, but the long and short of it is not as is. You are in favor of the

contentious provisions of the BBL that you discussed, but not as is. It

needs refinements.

MR. DAVIDE. Not the entire, as I said.

SEN. ESCUDERO. Not the entire, just those that you have

looked at.

MR. DAVIDE. Only those portions.

SEN. ESCUDERO. Yes.

MR. DAVIDE. Because we cannot simply declare the entire

thing as unconstitutional when only a few...

SEN. ESCUDERO. Definitely.

MR. DAVIDE. ...are found to be violative of the Constitution or

perceived to be violative of the Constitution.

SEN. ESCUDERO. I only raised that point, Mr. Chief Justice,

distinguished members of the panel, because that has been the mantra

of both the OPAPP, the MILF and the Executive Branch, including

Malacaang, as is where is.

44


I am glad that we cleared that now. That even the Peace Panel

is not suggesting an as is where is approval of the BBL, at least

insofar as the contentious provisions that you reviewed are concerned.

That is as kind as I can be to them, Mr. Chief Justice.

The second point, as the former chief justice, sir, as Senator

Marcos said, ano po ba ang kinalaman nito sa buong usapin kaugnay

ng BBL at pagpasa nito? Sabi nga po niya, iba ang sinasabi ninyo

mas magalang, mas mabait, mas maliwanagsa sinasabi po ng OPAPP

at MILF na siyang nagbalangkas, sumulat at naghubog nitong BBL na

ito.

Kung titingnan po natin sa perspektibo ng batas ang titingnan

intent o intensyon ng Kongreso base sa mga nagsulat nito, maliwanag

ho na hindi kami ang nagsulat nito. Alam naman ho ng buong bansa

na ang nagsulat nito, sa pagitan lamang ito ng MILF at ng OPAPP at ng

GRP. Iba ho iyong korte at maaaring iba ang pananaw ng korte

kaugnay sa constitutionality ng ilang mga probisyon.

May I ask, Mr. Chief Justice, what relation, if any, does the

opinion or do your opinions have and that of the peace panel as well to

the BBL that we will be passing? Ito ba ay may persuasive effect sa

interpretasyong ibibigay namin dito o sa ibibigay ng Korte Suprema

pagdating ng panahon? Because, for example, I have heard former

45


Concom members expressing their opinions about the BBL. But that

was never discussed in the Concom debates. Anything they say today,

even if they were a former Concom delegate, has no relation to the

BBL because they did not discuss that when they discussed Article X,

Sections 15 to 21 of the Constitution. So thats a bit unfair, to say the

least, when they are speaking as a former Concom member and

saying, This is constitutional, this is not, when that was not even in

the deliberation.

So in light of that, by analogy, what relation will this have, if

any? Because I am comforted by a lot of the statements you said, as

in marami ho sa ating mga kababayan ang makakatulog sa lahat ng

sinabi ninyo o sa interpretasyon o sa pagbasa ninyo ng BBL. Subalit

ano ho ba ang kinalaman niyan, kung mayroon man, sa aktwal na

magiging interpretasyon ng BBL? Dahil iba nga po ang pananaw ng

OPAPP at GRP at MILF sa mga sinasabi ninyo? Best example of which

would be the constitutional bodies. Ang sagot ho sa amin ng OPAPP at

GRP, regional offices lang ito. If these are regional offices, then we

dont even have to provide for it, we can remove it altogether. But

your interpretation is more sound, actually, more rational and

reasonable. And I do not know now where to place that in relation to

what has been told us by OPAPP, GRP and MILF.

46


Kindly help us sort through it, Mr. Chief Justice, or Secretary De

Jesus.

THE CHAIRMAN (SEN. MARCOS). Well, before we enter into

the discussion, because time is an element here, I think maliwanag na

between the members of the Committee that we find ourselves now in

that quandary, what is the context in which we apply the

recommendations that are being made.

At least sang-ayon ako kay Senator Escudero na iyong mga

suggestion ninyo, lalo na sa constitutionality, dahil ang amin laging

naririnig noon galing sa OPAPP, galing sa MILF, galing sa executive

department ay kahit isang tuldok ay hindi dapat palitan doon sa draft

BBL. Ngayon, sa inyo nanggagaling ang mga rekomendasyon na mga

pagbabago, mga amendment. That is why we are now presented with

very, as I said, fundamental and significant differences between the

interpretation of the Peace Council and of those who were involved in

writing the draft BBL.

So that is the situation we find ourselves in. And you will have

to help us as we go along this process kung papaano nga natin

ireresolba iyang ganyang klaseng sitwasyon.

47


So as I said, before we enter into the lengthy discussion on this,

unless you would like to respond, I would suggest we move on to the

next cluster.

MR. DAVIDE. Yes, very briefly.

THE CHAIRMAN (SEN. MARCOS). Yes, of course.

MR. DAVIDE. I might lose track along the way later on if I have

to wait.

First, the BBL was never taken into consideration during the

1986 Concom. Its very obvious. But we talked already about

autonomous regions and, therefore, it can be made applicable to any

other organic act. So, in short, the constitutional basis for the BBL is

that particular provision on the Autonomous Region. So only the

principles there must guide us.

Secondly, the Committee may have heard so many opinions

already; ours is only a little contribution. So in the end, the final

arbiter would be the Congress of the Philippines. And right now, we

commend to you our recommendation, subject to the collective

wisdom initially of the Committee and then later on of the Senate.

So... rare and distinct opportunity really to be able to hear many

sides and to come up later on with the best compromise that you can

have to attain the objectives of the BBL.

48


THE CHAIRMAN (SEN. MARCOS). Thank you, Chief, for that

explanation and clarification. I guess now

SEN. ESCUDERO. Mr. Chairman, forgive me, just a brief

rejoinder.

THE CHAIRMAN (SEN. MARCOS). Yes.

SEN. ESCUDERO. Actually, Mr. Chief Justice, ang hinihiling ko

po paano ang gagawin namin para maging bahagi at parte ng pormal

na diskusyon maliban sa aktwal na pag-effect ng mga amendments na

sina-suggest ninyo? Kasi gaya nga ng sabi ko, mas maganda ho

kayong pakinggan kaysa iyong OPAPP at GRP. Tama ho iyong simula

ninyo kanina, iyong shalom bago kayo nagsimula.

How can we make as an integral part the comments of the peace

panel thus far made insofar as Congress interpretation or how the

courts will interpret this particular law that we will be passing upon,

either in its current form or in another form?

MR. DAVIDE. I am sure, Your Honors, that the Committee will

go into executive session and probably will take up article by article

the proposed BBL. And I think that would be the most appropriate

time when you can reflect on the various ideas coming from the

various sectors. In the end, what will come out really would be a basic

law which will not require even interpretation at once, a basic law that

49


will require only application. The interpretation will come later on if

there are some questions regarding constitutionality. But I think even

on a particular aspect of constitutionality, you have to apply the rule of

statutory construction. And it is only by showing up grave, clear,

certain unconstitutionality that it may be. If there is any doubt,

sustain the constitutionality.

THE CHAIRMAN (SEN. MARCOS). Actually, Chief, ideally, the

questions on constitutionality, we would have remedied by the time

the final version will be discussed and finally passed by the Senate. So

that is the process within which we are hoping to achieve that.

So, again, thank you for your presentation, Chief Justice Davide.

We now move on to the economy and patrimony cluster. And I

believe Secretary Paderanga will be the one who will make that

presentation.

So, Secretary, please proceed.

MR. PADERANGA. Thank you very much, Your Honor, Mr.

Chairman.

And good morning to all the members of the panel, my fellow

members.

And following the lead of Chief Justice Davide, let me greet you

all Assalamu Alaikum.

50


I am representing Mr. Jaime Augusto Zobel de Ayala... /jmb

51


MR. PADERANGA. I am representing Mr. Jaime Augusto

Zobel de Ayala, Your Honors, who sends his regrets because he had to

be out of the country at this time.

During the part of the presentation, Your Honors, essentially,

many of the points will be put in a tabular manner for ease, for clarity

and also for economy.

In this study, the objective was to review drafts of the BBLs

Article XIII on economy and patrimony and to identify and discuss

potential issues that have arisen. The process was the review of

resource materials. Among others, the Bangsamoro Development

Plan, which actually turned out to be quite impressiveI say that as

former head of the planning agency of the governmentworking

papers and presentations from organizations such as the Philippine

Center for Islam and Democracy (PCID) and the Foundation for

Economic Freedom (FEF).

The cluster also consulted key resource persons. So in the end,

the discussion group actually was relatively highly qualified and also a

bit large with contributions from everybody, Your Honors.

The first, there were some key observations that we thought

might be important to remember. One, the majority of the potential

economy and patrimony related issues related to the BBL are not

52

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-2 May 5, 2015 11:31 a.m. 2 major and may be resolved by further clarification as the BBL is

written.

Second, devolution of laws is actually already happening. In

other words, some of the issues that have been raised are essentially

non-issues because these are already being done under present laws

and that could probably become clear as we go along.

Third, peace and order. Security is the key issue of potential

contention, these provisions.

And finally, Your Honors, the cluster deemed it important to

mention that the BBL is an opportunity to have a historic change rather

than a problem.

The review of the relevant plenary discussions, Your Honors.

First, the private sector is keenly watching how BBL and the eventual

establishment of the Bangsamoro government will affect the

investment environment and economic growth of the region. In the

meetings on Bangsamoro that was organized essentially, Your Honors,

by the FEF and the Philippine Center for Islam and Democracy, the

private sector were very strong participants of the meetings showing

their intense interest on how they could participate in the development

of this particular region.

53


Second, opportunities in the Bangsamoro should be highlighted

not only for the business sector but also for consumers, all of them

including Muslims, Christians and Lumads alike. It is also useful to

underscore positive aspects of having a Bangsamoro government. For

example, the attraction of new marketsASEAN as in majority Islamic

market including also the Middle Eastern countries. If, in fact, there is

very strong Bangsamoro presentation, then, in fact, these markets

would become much more open to Philippine products. And I think

with partnership between national government and Bangsamoro

government, the economic identity of us joining markets like this will

actually be highlighted.

The Bangsamoro government could be a model for ASEAN on

regional autonomy especially for countries like Thailand and Myanmar

where there are also significant minorities, in fact, Muslim minorities,

both of whom are facing similar secessionist challenges.

The Bangsamoro region creates possibility of exploitation and the

mitigation of inequitable distribution of economic benefits. Social

justice may be a useful guiding principle of BBL in relation to the

natural resource management especially in areas under stewardship by

marginalized groups.

54


The belief of the cluster, in fact, Your Honors, is that there might

actually be principles that are inherent or in the essence of Philippine

ethnic groupings that are actually quite attuned to the natural resource

endowments of this country.

Proper stewardship of environment with social justice hinges on

governance and leadership of future Bangsamoro government. BBL

presents the opportunity to do it right from the start with help, of

course, potentially from the business sector. This may include the

right of common good under concurrent powers, Article V, Section 2,

along with inter-generational responsibility to care for the

environment.

Investments will still have its own set of risks which is true for all

investments and not necessarily attributable to BBL.

We present in tabular form, Your Honors, some of the potential

issues and the consensus views of the cluster during the discussions.

First, on natural resources. The Bangsamoro government will

have the exclusive powers on ancestral domain and natural resources

including mining. How will this affect the private sectors ability to

invest in related sectors? It turns out, upon discussion with some of

the people who knew this, that devolution is already happening. For

55

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-2 May 5, 2015 11:31 a.m. 5 example, certain DENR authorities are already devolved to local

governments including the ARMM.

Second issue, labor matters. The Bangsamoro government may

organize its own social security and pension systems and enact new

laws on labor and employment applicable only in Bangsamoro thereby

creating uncertainty for businesses.

The cluster view, Your Honors, was that ARMM-DOLE already has

a degree of independence but actually needs clarity on how deviations

may be legislated by Bangsamoro. Any wage disparities between the

Bangsamoro region and the rest of the country actually will be

managed by the local wage boards in coordination with relevant

national agencies. In other words, Your Honors, there are actually

already regional wage boards that are present all over the country.

Third issue is land transfer. Land registration will be aligned with

central government but land acquisitions and transfers shall be

governed by the Bangsamoro government and may or may not be

consistent with the rest of the country.

The cluster view is that the land titles already registered under

the national system will be honored by the Bangsamoro government as

well. There may even be an opportunity to streamline land

56

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso I-2 May 5, 2015 11:31 a.m. 6 management and administration in Bangsamoro which if found to be

quite useful, may actually be replicated in other areas.

As it turns out, Your Honor, it seems that there are actually

several authorities and several layers where there is potential

overlapping but the reorganization of the government that may come

out may actually give us the opportunity to streamline the process.

Four, in customs and tariff. Enforcement of customs and tariff

laws to be done through intergovernmental relations mechanism

between the Bangsamoro and central governments. The fear has been

that this may promote more smuggling in the region. This may require

more clarification on the manner of enforcement.

On the other hand, Your Honors, ASEAN tariffs are already at

zero except for rice, sugar and a few other items. Smuggling to avoid

VAT is a temptation but is not unique.../jun

57


MR. PADERANGA. but is not unique to the Bangsamoro

region. VAT impact for imported goods for resale may actually be

quite limited.

On infrastructure. Its not clear whether central governments

infrastructure development programs, for example the PPP program,

will apply to Bangsamoro. Infrastructure investors may need more

clarity on this. This, I think, was expressed by the private sector

representatives. The cluster view, Your Honor, was that BDA, the

Bangsamoro Development Authority, which is their equivalent of the

Nat

BBL IN SENATE | Hearing with Peace Council, May 5, 2015

Documents

dantis os

lavarias os marcos

jesus citizens peace

citizens peace council

peace movement

tamayao os villar

marivic ching os marcos

julius palamos os marcos