IBP Journal Special Issue on the Proposed Bangsamoro Basic Law

Board of Editors

Merlin M. MagallonaEditor-in-Chief

Eduardo A. LabitagManaging Editor

Danilo L. ConcepcionFlorin T. Hilbay

Sedfrey M. CandelariaNasser A. Marohomsalic

Oscar G. RaroAmado D. Valdez

Vincent Pepito F. Yambao, Jr.Associate Editor

Vivian C. Capiznon Eumir C. Lambino Circulation Manager Layout/Design

thE iBP JournalINTEGRATED BAR OF THE PHILIPPINES

SPECIAL ISSUE NUMBER 4 (APRIL 2015)

IBP JOURNALSpecial Issue on the

Proposed Bangsamoro Basic Law(April 2015)

EditorialCasting Constitutionalism in Contempt

Vicente M. Joyas

ArticlesPosition Paper on the Draft Bangsamoro Basic Law .................................................................... 1 Ranhilio Callangan Aquino

A Liberal Interpretation of the Bangsamoro Basic Law .............................................................. 14 Pacifico A. Agabin and Oscar Franklin B. Tan

Comparative Analysis of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect on the GRP-MILF Tripoli Agreement on Peace of 2011 and Framework Agreement on the Bangsamoro (FAB) .................................... 36Sedfrey M. Candelaria

Statement on SB No. 2408 The Proposed Bangsamoro Basic Law ............................................ 81 Florentino P. Feliciano

A Struggle for Peace Under the Regime of the Constitution ..................................................... 83Pablo P. Garcia

Problem Areas in the Bangsamoro Basic Law ............................................................................. 104Merlin M. Magallona

The Proposed Bangsamoro Basic Law: Some Legal and Political Issues .............................. 121 Nasser A. Marohomsalic

SB No. 2408 Beyond the Power of Congress to Pass .................................................................. 163Vicente V. Mendoza

BBL: Sovereignty versus Sub-State ............................................................................................... 173Julkipli Wadi

DocumentsHouse Bill No. 4994 ........................................................................................................................... 179 Framework Agreement on the Bangsamoro ................................................................................ 280The Comprehensive Agreement on the Bangsamoro ................................................................. 294 Annex on Normalization ................................................................................................................. 299Annex on Transitional Arrangements and Modalities .............................................................. 309Annex on Power Sharing ................................................................................................................. 315Annex on Revenue Generation and Wealth Sharing ................................................................. 327Annex on Bangsamoro Waters and Zones of Joint Cooperation ............................................ 335

Official StatementsCheck and Balances in National Government vs. None in the BBL ....................................... 338Senen Bacani

Legislation vs. Constitutional Change .......................................................................................... 340Teresita Deles

On the Matter of Substate ............................................................................................................... 342 Miriam Ferrer

The BBL Fully Recognizes and Preserves the Territorial Integrity of the Philippines ........ 347Jose Luis Gascon

Position Paper of the Department of Justice .............................................................................. 353Leila M. De Lima

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Casting Constitutionalism in ContEmPt

Vicente M. JoyasNational President

Integrated Bar of the Philippines

So contemptuous is the way by which the Bangsamoro Basic Law (BBL) has been presented for approval before the nation that the people, including the Bangsamoro people, are promised a golden age of peace and reconciliation, despite its infirmities involving derogation of constitutional institutions. The BBL is the result not only of a few provisions of the Constitution violated; it is the product of a deliberate departure from Constitutionalism.

II

Constitutionalism is a system of political life founded on a Constitution which the people conceive in their sovereign status and thus they hold as law of paramount character. In its conception of limited government, Constitutionalism defines political power within given boundaries under the Constitution. It pertains to a complex of democratic practices, including the principle that the Constitution shall not be subject to change except by the sovereign act of the people.

III

1. The concern of the people as regards the BBL begins with the fact that it is merely an implementation of the Framework Agreement and the Comprehensive Agreement (FAB/CAB) on the Bangsamoro concluded with the Moro Islamic Liberation Front (MILF) by which, in the absence of their consent and without any means of consultation with them collectively, the present Administration pretended to represent the entire Filipino people as “Philippine Government (GPH)” to be bound by the contractual stipulations with the MILF.

By this false representation, the Administration has impressed upon the MILF as the other contracting party to the FAB/CAB that it was making a binding agreement with the entire Government, to the effect that in doing so it is in representation of the people.

In truth, however, what appears as “Philippine Government (GPH)” consists of the “Office of the Presidential Adviser on the Peace Process” (OPAPP), or liberally the “Office of the President of the Philippines.”

2. Considering that the Adviser of the Peace Process as well as the members of the negotiating panel and the members of the Transition Commission are all his appointees, plus his own central role in the realization of the FAB/CAB and the BBL, as pointed out below, the President becomes the real party on contract with the MILF in the FAB/CAB. He is the real co-maker of the contract and its performance is done by authority of his office alone.

3. This means that the accountability over the entire process of installing the Bangsamoro Sub-State belongs to the President, the vital elements of which are as

follows:

(a) The key factor in his accountability to the people lies in the fact that his performance is not on the basis of the Constitution but on the FAB/CAB and their implementation by the enactment of the BBL.

(b) The following acts of contractual performance by the President reflect the obligations of the “Philippine Government (PGH)” under the FAB/CAB. As provided in these Agreements, he performed the following:

* Created the Transition Commission to draft the Basic Law of the Bangsamoro, and appointed its members;

* He instructed the Transition Commission to ensure that the BBL draft shall conform to the FAB/CAB;

* His office reviewed the BBL as drafted by the Transition Commission;

* The BBL became his own legislative proposal when it was certified by him as urgent and transmitted by him as such to Congress, as required by the FAB/CAB;

* When, by means of Executive Order No. 120 of 17 December 2012, he makes it the commitment of the “Government … to exert all efforts towards realizing the full implementation of the [Framework] Agreement”;

* His Executive Order implies that in case the BBL occasions discrepancy with the Constitution, it is the fundamental law that Congress may amend to conform to the BBL;

* This Executive Order was issued by the President in compliance with the instruction provided in the Annex on Transitional Arrangements and Modalities which forms part of the FAB/CAB;

* Between the Constitution and the FAB/CAB, he would choose as he did, the Agreement.

4. It appears that the source of legality governing the acts of the President itemized above consists of the contractual stipulations provided in the FAB/CAB in which on the part of the “Philippine Government (GPH)” as a contracting party, relies only on the authority of the Office of the President.

5. In this context, the actuations of the President are under instruction of the FAB/CAB and in deliberate avoidance of constitutional mandate when this conflicts with the main provisions of the FAB/CAB that (a) “the status quo is unacceptable”; (b) “the relationship of the Central Government with the Bangsamoro Government shall be asymmetric”; and (c) “the Parties recognize Bangsamoro identity” as having its own territory, government ministerial in form, powers distinct from those of the

National Government conceptualized as reserved, concurrent and exclusive powers.

6. Having assumed the character of a sub-state within the Philippine State, the Bangsamoro as constituted under the FAB/CAB, has the BBL now as the full implementing mechanism of these Agreements, presented to Congress for enactment into national law of the Bangsamoro Sub-State.

7. But the BBL before Congress at the present legislative stage has changed its legal form and status. As transmitted to Congress by no less than the President as an urgent bill pursuant to the instruction of the FAB/CAB, the BBL has become a Presidential act. As a consequence, does this mean that all the constitutional infirmities in the BBL should be attributed to the Office of the President? Or, should this not mean as the act of deliberate rejection of the Constitution?

IV

Under the BBL, rejection of constitutional institutions and principles is pursued in dimensions larger than specific violation of legal provisions. In applying the concept of reserved powers drawn from the FAB/CAB, the BBL deals with the powers of the Philippine State, which by unauthorized contractual stipulations are reorganized and altered with the intent that the selected powers as stipulated by the FAB/CAB shall not be applied by the National Government in its relation with the Bangsamoro Sub-State.

As now presented to Congress as an urgent bill of the President, the BBL is now a new assembly of governmental powers in the creation of the Bangsamoro Sub-State as conceived under the concepts of reserved, concurrent and exclusive powers. This was achieved by contractual stipulations of the negotiation panels as a result of their dismantling and reorganizing the powers of he Philippine State as organized and structured in the Constitution, changes which are made prominent by the absence of the sovereign act of the people.

This comment should have began where the BBL started with its thesis that Congress has a new status: In acting on the BBL, Congress has become an instrumentality of the Bangsamoro people and impliedly not so much a legislative organ of the whole Filipino people. The BBL’s Preamble contains the following operative language:

We, the Bangsamoro people and other inhabitants of the Bangsamoro … do hereby ordain and promulgate this Bangsamoro Basic Law, through the Congress of the Republic of the Philippines … [Emphasis added]

Should this language be interpreted to the effect that the BBL has already been ordained and promulgated by the Bangsamoro people and is submitted to Congress for confirmation of this fact? Or, such act of BBL being ordained and promulgated is inchoate and the final act of completion would be done by Congress? At any rate, this preambular formula may be the ground for insistence that the enactment into law of the BBL without change is a matter of obligation on the part of Congress.

••• •••

1Speccial iSSue Number 4 - (april 2015 )

Position Paper on the Draft Bangsamoro Basic LawpoSitioN paper oN the Draft baNgSamoro baSic law

Ranhilio Callangan Aquino*

In response to the announced intention of The Honorable MIRIAM DEFENSOR-SANTIAGO, J.S.D, to invite me as a resource person for the committee she chairs for the purpose of reviewing the Draft Bangsamoro Basic Law, I respectfully submit the following Position Paper, begging Senator Santiago and the members of the Committee she chairs to excuse my absence from the hearing as I have to be in Baguio for my pre-scheduled teaching session at our regional seminary, especially since I meet the seminarians for my philosophy classes only once a month.

I submit most respectfully that draft BBL suffers from some serious constitutional infirmities. Quite obviously, the difficulties I will discuss below become irrelevant should Congress of the Philippines decide that the Constitution should be amended to accommodate this new political configuration that has gone by so many different labels: “entity”, “sub-state”, “Bangsa”, etc.

I will therefore start be addressing matters of policy, principally the question of whether or not the Constitution should be amended to admit the entity that, it is proposed, will be called “Bangsamoro”.

1. A constitution, ordaining as it does the basic groundwork of government and the organization of the body politic, is amended only for the most serious of reasons. It will not do to argue that “only some” provisions of the Constitution will be re-written to make the Bangsamoro entity fit, for I would like to believe that the Constitution was written as coherent document, and that the different articles of the Constitution were so drafted as to result in the desired coherence.

Before we set out on the amendment of the Constitution, the question must be asked anew: Is the agreement comprehensive enough in respect to the participants to the negotiations so that the agreements arrive at are satisfactory to all of Muslim Mindanao? There are however disturbing indications that significant segments of Muslim Mindanao believe that the agreement has nothing to do with them.

The following are excerpted from an on-line report of Manila Bulletin:

Former Autonomous Region in Muslim Mindanao (ARMM) Governor Nur Misuari, the founding chairman of the Moro National Liberation Front (MNLF), yesterday branded as “irrelevant” the signing of the Bangsamoro Framework Agreement, claiming it was cloned by President Benigno S. Aquino III in association with Malaysian Prime Minister Najib Abdul Razak…

Claiming that his group has one million members, Misuari said the media is welcome to attend the MNLF Summit in Davao City where salient points on the Bangsamoro Agreement will be discussed.

* Dean, Graduate School of Law, San Beda College and Professor VI, Graduate School, Cagayan State University.

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Ranhilio Callangan Aquino

He said the Organization of Islamic Cooperation (OIC) still recognizes the MNLF, citing an instance when a MILF representative was snubbed during an OIC meeting in Turkey.

Misuari explained that the United Nations and the other countries recognize the MNLF for its political programs unlike the MILF which is known for its religious set-up.

I have repeatedly raised the question at different forums on the proposed Basic Law and the antecedent Framework Agreement. Is “Muslim” when used in the phrase “Muslim Mindanao” which the Iqbal Panel claims to have represented a univocal term?

In a very telling report of Inquirer Mindanao, published online as well, some leaders of indigenous cultural communities were unequivocal about rejecting Bangsamoro as their identity.

DAVAO CITY, Philippines – Leaders of indigenous tribes within the proposed Bangsamoro territory have demanded that their ancestral lands be excluded, saying that if Philippine government refuses to exclude them from the draft law on Bangsamoro autonomy, it would violate their inherent and inalienable right to self-determination.

“We cannot accept Bangsamoro as our identity. We have our own identity and this is the Erumanen ne Menuvu,” Erumanen Datu Ronaldo Ambangan said as he read the declaration of the Erumanen ne Menuvu tribe during the June 24 congressional consultations on the proposed Bangsamoro in Midsayap, North Cotabato.

In Davao City, Timuay Alim Bandara, a Teduray leader, told the June 26 congressional committee hearing that peace should be given a chance, not only for the Bangsamoro but also for all affected communities in Mindanao.

“I especially mention here other affected communities and societies because it is not only the Bangsamoro community and society that has been affected by all the wars and armed encounters, by injustices and conflicts in this region,” Bandara said. “I am referring to the community and society of indigenous peoples specifically the Teduray, Lambangian and Dulangan Manobo in portions of Maguindanao in the Autonomous Region in Muslim Mindanao (ARMM) where the IPRA (Indigenous Peoples’ Rights Act) provisions are not implemented in the past 17 years simply because we are inside an autonomous region that is the product of the peace process.”

http://newsinfo.inquirer.net/615262/indigenous-tribes-want-ancestral-lands-excluded-from-

bangsamoro-autonomy#ixzz3OZWnwfIS

I received a Manifesto from a group that calls itself the “Mindanao Christian and Highlanders Alliance”, Cotabato Chapter, with one Mr. Mike Santiago, Chief


Position Paper on the Draft Bangsamoro Basic Law

Information Officer, acknowledging authorship. Whatever may be the status of this group, the Manifesto does raise interesting points that should be considered:

1. The cities of Cotabato and Isabela which did not vote for inclusion in the ARMM are included in the Bangsamoro territory.

2. The delivery of even basic services under the ARMM was already dismal. Will not the degree of devolution – if not abdication – in favor of Bangsamoro make matters even worse?

3. “The areas proposed for expansion were predomi-nantly Moro, but if examined, there are many Christians and Highlanders in those areas, even in the present are of ARMM. To note, Christians and Highlanders suffered and still suffering (sic) in these areas from abuses of the MILF and their co-terror-ists.” (Issue No. 9, Manifesto, MICHA)

2. Even before we entertain the possibility of amending the Constitution, a question that cries out for a coherent answer is: How has the 1987 Constitution failed the people of Muslim Mindanao? Because if it has not, and I maintain that it has not, then what compelling reason is there for amending the Constitution? That all this talk about amending the Constitution is more than sheer speculation is borne out by Part VII of the Framework Agreement on Bangsamoro that reads in part: “4. The Functions of the Transition Commision are as follows: xxx b. To work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements xxx”. If it ain’t broke, why fix it?

3. In setting forth the powers of the national government and the powers of local governments and political subdivisions of the State, the Constitution embodies a delicate balance and achieves the equipoise between national coherence and subsidiarity. Writing on the American Constitution, particularly on constitutional theory, Thomas Baker observes:

“The deep structure of the Constitution is vertically arrayed in federalism (the relation between the national government and the states) and horizontally arrayed in separation of powers (the elaborate system of checks and balances among the three branches of the national government.”

Thomas E. Baker, Constitutional Theory in a Nutshell, 13 Wm. & Mary Bill Rts. J. 57 (2004),

http://scholarship.law.wm.edu/wmborj/vol13/iss1/3

This being so, the elaboration of the powers of government and the diversification of roles and functions between the political subdivisions of the state ideally should not be

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accomplished by piece-meal amendments, but by a thorough overhaul of the Constitution. Sewing new patches on old cloth is never sound! Since it seems that no one welcomes yet a post-1987 Constitution, then what is reasonably foreseen – and anticipated by the transitory provisions of the Framework Agreement – is some kind of patch-work amendment.

Constitutional Framework

Whatever may be the political entity or subdivision created by law, the Constitution provides the basic framework, over and above all other ‘basic frameworks’ that may come about as a result of negotiation.

I maintain the fundamental position that the highest autonomous political entity that can constitutionally be created is the autonomous region. Under Article X of the Constitution, the following are the limits of ‘autonomy’ of such regions:

1. Under Section 1, the autonomous region is classed as a ‘political subdivision’ of the State, in the same way that provinces, municipalities and cities are. Characterizing an autonomous region as a ‘political subdivision’ guarantees the singularity of the State and forecloses the creation of any ambivalent entity such as a ‘sub-state’.

Discussing the nature of an autonomous region, the Supreme Court through the erudite Madame Justice Irene Cortes was clear that the autonomous region was meant to be the farthest that the grant of autonomy could go. Ruled the Court in Cordillera Broad Coalition v. Commission on Audit, G.R. 79956 (January 29, 1990):

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was no express guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in the country [Villegas v. Subido, supra.]

On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution contemplates the grant of political autonomy and not just administrative autonomy these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions [Art. X, sec. 18].

The creation of any entity granted powers vaster than those of an autonomous region



must perforce be constitutionally suspect.

2. The following item cannot be compromised by the creation of autonomous regions: The Constitution, national sovereignty and the integrity of national territory.

3. The power of the President of the Republic over autonomous regions is characterized as “general supervision”. While the Administrative Code of 1987 (Book III, Title I, Chapter 1, Section 1) grants the President “control of all the executive departments, bureaus and offices” this grant of control power should, I submit, be read in the light of the Constitutional limitation of the President’s power to “general supervision” in respect to autonomous regions.

4. The legislative competence of the legislatures of autonomous regions is limited to:

1. Administrative organization;2. Creation of sources of revenues;3. Ancestral domain and natural resources;4. Personal, family, and property relations;5. Regional urban and rural planning development;6. Economic, social, and tourism development;7. Educational policies;8. Preservation and development of the cultural heritage;

and9. Such other matters as may be authorized by law for the

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

I therefore reject the proposition that the draft Basic Law creates for Bangsamoro an entity superior to or other than an autonomous region.

Legal Obstacles

1. The government cannot lawfully commit itself to amending the Constitution

The assumption I am working on is that we do not intend to amend the Constitution. In Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel, G.R. 183591 (October 14, 2008) and companion cases – popularly referred to as the MOA-AD cases – the Supreme Court ruled very clearly that:

Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.

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And yet, despite this clear ruling of the Supreme Court that the Executive has no authority to guarantee amendments to the Constitution, we find in Part VII, paragraph 4 “b” of the Framework Agreement on the Bangsamoro the following function assigned the transition commission:

“b. To work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.”

Is it not thereby clearly suggested that there are provisions of the Frame-work Agreement as well as the Bangsamoro Basic Law that necessitate the amendment of the Philippine Constitution “to accommodate xxx” the agreements of the Parties? Even if the members of the Peace Panel should now protest till they are hoarse that the Framework and the Draft Basic Law are well within the Constitution, why should there be need to assign the Transition Commission the task of working on amendments to the Constitution?

2. The doctrine of non-delegation of legislative authority

Beyond the scope of competence of the government of the autonomous region to legislate as provided for in the Constitution, Congress of the Philippines cannot, without running afoul of the Constitution, delegate its legislative powers to the legislature of an autonomous region.

Where there is an attempt to confer on a person or a body the powers that only the Legislature may exercise, there is undue delegation, and the resultant acts are void. This, the Supreme Court clearly taught in Demetria v. Alba, G.R. 71977 (February 27, 1987):

It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.

It will be noted that the laxity of present Philippine jurisprudence in respect to ‘non-delegation’ cases does not apply in this case for what is contemplated is a transfer of the legislative powers of Congress of the Philippines to the legislature of Bangsamoro, nothing short of an abdication of legislative power by Congress in favor of the Bansamoro Legislature. In Lina v. Pano, G.R. 129093 (August 30, 2001), the High Court, rejecting extravagant claims in behalf of local autonomy, stressed the singularity of Congress as source of all legislation, and the derivative and delegated nature of the legislative authority of all other subordinate bodies.

Nothing in the present constitutional provision enhancing local autonomy dictates a



different conclusion.

The basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. (emphasis supplied)

That something very much more – and dangerously so – than the delegation of regulatory authority to administrative agencies, or the delegation of local legislative authority to local government units is contemplated by the draft Bangsamoro Basic Law is evident from the following provisions of the Draft Basic Law:

Art. IV, Section 1: Self governance. In the exercise of its right to self-governance and self-determination, the Bangsamoro is free to pursue its economic, social and cultural development.

The following table will also show that the grant of authority to legislate to Bangsamoro far exceeds what the Constitution allows autonomous regions to legislate on.

Article X, Section 20 of the Constitution

Art. V, Sec. 2, BBLConcurrent Powers

Art. V, Sec. 3Exclusive Powers

Administrative Organization Social security and pensions Agriculture, livestock and food security

Creation of sources of revenue

Quarantine Economic and cultural exchange

Ancestral domain and natural resources

Land Registration Contract loans, credits and other forms of indebtedness with any government or private bank and other lending institutions, except those requiring sovereign guaranty, which require Central Government approval;

Personal, family and property relations

Pollution control Trade, industry, investment, enterprises and regulation of businesses taking into consideration relevant laws

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Regional urban and rural planning development

Human rights and humanitarian protection and promotion

Labor, employment and occupation

Economic, social and tourism development

Penology and penitentiary Libraries, museums, historical, cultural and archaeological sites

Educational policies Auditing Hajj and umrah

Preservation and development of the cultural heritage

Civil Service Customary laws

Other matters authorized by law for the promotion of the general welfare of the people of the region

Coastguard Declaration of the Bangsamoro Holidays

Customs and Tariff Ancestral domain and natural resources

Administration of justice Protection of the rights of indigenous peoples

Funding for the maintenance of national roads, bridges and irrigation systems

Land management, land distribution and agricultural land use reclassification

Disaster risk reduction and management

Cadastral land survey

Public order and safety Expropriation and eminent domain

Environment, parks, forest management, wildlife, nature reserves and conservation

Inland waterways for navigation

Inland waters

Management, regulation and conservation of all fishery, marine and aquatic resources within the Bangsamoro territorial jurisdiction

Bangsamoro settlements

Shari’a courts and shari’a justice system

Health

Social services, social welfare and charities

Waste management



Establishment and supervision of humanitarian services and institutions

Identification, generation and mobilization of international human resources

Establish if awqaf and charitable trusts

Hisbah office for accountability as part of the Shari’a justice system

Registration of births, marriages and deaths, copies of which shall be forwarded to the Philippine Statistics authority

Housing and human settlements

Development planning

Urban and rural development

Water supplies and services, flood control and irrigation systems

Publicworks and highways

Establishment of appropriation mechanisms for consultations for women and marginalized sectors

Special development programs and laws for women

Local administration, municipal corporations and other local authorities including the creation of local governments

Establishment or creation of other institutions, policies and laws for the general welfare of the people in the Bangsamoro.

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Clearly, the enumeration of powers that are to be exercised by Bangsamoro and what is called the Central Government concurrently, and those granted Bangsamoro exclusively far exceed what the Constitution allows. This immediately provokes the query: What then is the provenance of this grant of power to Bangsamoro?

A closer examination of some of these points should clarify my position:

1. The creation of a distinct civil service for Bangsamoro is a classic example of ‘double-speak’ for while lip-service is paid the unitary civil service system established by the Constitution under Article IX, there is clearly created a Bangsamoro Civil Service. Of either the national Civil Service or the Bangsamoro Civil Service can it be correctly asked: What is it to do in view of the presence of the other? Art. IX-B, Sec. 1 of the Constitution reads: “The civil service shall be administered by the Civil Service Commission xxx” clearly contemplating a unitary civil service system. The draft Organic Law of Bangsamoro bifurcates the civil service. So, will the Bangsamoro Civil Service, for instance, have the authority to eliminate the distinction now in force between the ‘closed career service’ and the ‘open career service’? Suppose it issues a Memorandum Circular re-defining temporary and permanent service, how will the confused civil servants deal with these differences?

2. In respect to land registration, will Bangsamoro have the power to opt out of the Torrens system? I am not suggesting that it intends to. I am only pointing out the fact that conceding to Bangsamoro what in Section 2 appear to be concurrent powers but are actually exclusive powers under Section 3 can create insufferable confusion, on the assumption, of course, that we are still dealing with one State.

3. Shari’a courts and the shari’a justice system are under the “exclusive powers” of Bangsamoro. Now, either shari’a courts – as at present – are part of the integrated judiciary of the Republic of the Philippines or they are not. If they are, then they are under the administrative supervision of the Supreme Court. Sec. 6 of Art. VIII cannot be clearer: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof ”. The exclusive power of Bangsamoro over Shari’a courts perforce takes them out of the sphere of administrative supervision of the Supreme Court. The Constitution does not allow two ‘exclusive’ authorities over the courts. In Office of the Court Administrator v. Judge Macarine, A.M. No. MTJ-10-1770 (July 18, 2012), the Honorable Supreme Court characterized its administrative authority of supervision over lowers courts as inherent. But if the draft Basic Law confers on Bangsamoro exclusive power over Shari’a courts, what room can there be for administrative and disciplinary authority exercised by the High Court?

4. Sec. 10 of the draft Basic Law pre-empts Congressional power to appropriate. In respect to the power to appropriate, the Supreme Court has ruled in Philippine Constitution Association v. Enriquez, G.R. 113105 (August 19, 1994):



As the Constitution is explicit that the provision which Congress can include in an appropriations bill must “relate specifically to some particular appropriation therein” and “be limited in its operation to the appropriation to which it relates,” it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered “an inappropriate provision” which can be vetoed separately from an item. Also to be included in the category of “inappropriate provisions” are unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kind of laws have no place in an appropriations bill. These are matters of general legislation more appropriately dealt with in separate enactments. Former Justice Irene Cortes, as Amicus Curiae, commented that Congress cannot by law establish conditions for and regulate the exercise of powers of the President given by the Constitution for that would be an unconstitutional intrusion into executive prerogative.

In his erudite ponencia ruling the Disbursement Acceleration Program unconstitutional, Justice Lucas Bersamin had the occasion to teach, in the Court’s name, on the role of the legislature in the enactment of the budget:

The Budget Legislation Phase covers the period commencing from the time Congress receives the President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s approval of the GAA. This phase is also known as the Budget Authorization Phase, and involves the significant participation of the Legislative through its deliberations.

Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations Committee on First Reading. The Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to examine the PAPs of the departments and agencies. Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).

The GABis sponsored, presented and defended by the House of Representatives’ Appropriations Committee and Sub-Committees in plenary session. As with other laws, the GAB is approved on Third Reading before the House of Representatives’ version is transmitted to the Senate.

After transmission, the Senate conducts its own committee

12 the ibp JourNal


hearings on the GAB. To expedite proceedings, the Senate may conduct its committee hearings simultaneously with the House of Representatives’ deliberations. The Senate’s Finance Committee and its Sub-Committees may submit the proposed amendments to the GAB to the plenary of the Senate only after the House of Representatives has formally transmitted its version to the Senate. The Senate version of the GAB is likewise approved on Third Reading.

The House of Representatives and the Senate then con-stitute a panel each to sit in the Bicameral Conference Committee for the purpose of discussing and harmo-nizing the conflicting provisions of their versions of the GAB. The “harmonized” version of the GAB is next presented to the President for approval. The President reviews the GAB, and prepares the Veto Message where budget items are subjected to direct veto, or are identi-fied for conditional implementation.

If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed by the Congress.

But insofar as Section 10 of the BBL automatically appropriates 25% of all taxes collected in the Bangsamoro by the Central Government to the Central Government, and 75% to the Bangsamoro, the draft Basic Law pre-empts Congress’ power to appropriate and excises from the power to appropriate and to draft the legislative budget the constitutionally-granted prerogative to do so insofar as taxes collected from Bangsamoro territory are concerned!

5. Bangsamoro Waters? Under the UN Convention on the Law of the Sea, the Philippine territorial sea extends to a breadth of 12 nautical miles for the archipelagic baselines defined by Republic Act No. 9522. What is the relationship between the Bangsamoro Waters and the territorial sea of the Republic of the Philippines? There are only two possibilities:

a. Bangsamoro Waters are part of the territorial sea of the Republic of the Philippines. If this be the case, then designated the area of sea contiguous to the Bangsamoro core territory has only domestic effect: in the assignment of duties to police the waters, for example, but has no currency internationally.

b. Bangsamoro Waters are not part of the territorial sea of the Republic of the Philippines. If this be the case, then effectively, Bangsamoro is a different State entitled to its



own territorial sea!

And what of the zone of 200 nautical miles commencing from the baselines sea-wards? In international law, this is the Exclusive Economic Zone of the Republic of the Philippines. In that same area of sea adjoining what Section 5 of the draft Bangsamoro Basic Law characterizes as Bangsamoro Waters, do we also recognize a Bangsamoro Exclusive Economic Zone, or is the unqualified exercise by the Central Government of sovereign rights over the zone recognized? The latter, I submit, is the only option if the territory of the Republic is to remain integral!

Conclusion

I make no pretenses at having exhaustively analyzed the draft legislation. On the whole, while the tremendous work that has gone into crafting what is clearly an attempt at a compromise – both political, economic and territorial – should be lauded, the dangers and pitfalls to which I have pointed are only some of the flashing red lights that invite greater scrutiny and closer attention. Once more the underlying assumption of these comments is that it is the intention of Congress to work within constitutional limits. I hope I have also made clear why I do not subscribe to the idea of amending the Constitution to accommodate Bangsamoro.

••• •••

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Pacifico A. Agabin & Oscar Franklin B. Tana liberal iNterpretatioN of the baNgSamoro baSic law*

Pacifico A. Agabin**

Oscar Franklin B. Tan***

“[The Constitution] is an experiment, as all life is an experiment. Every year if not every day we wager our salvation upon some prophecy based upon imperfect knowledge.”

— Justice Oliver Wendell Holmes, Jr.1

“The law must be stable, but it must not stand still.”

— Dean Roscoe Pound2

INTRODUCTION

Senator Ferdinand Marcos, Jr., chair of the Senate committee on local government, proclaimed the Bangsamoro Basic Law3 in a state of coma after the ill-fated Mamasapano operation last January 25, 2015,4 where 44 elite Special Action Force policemen were killed in the mission that resulted in the death of the notorious terrorist and bombmaker Zulkifli bin Hir aka Marwan. There is currently great uncertainty regarding the fate of the BBL and the peace process and great tension in Mindanao. Although justice for the casualties at Mamasapano is well beyond the scope of this paper, it is written in the belief

* Submitted as the authors’ joint position paper to the House of Representatives Ad Hoc Committee on the Bangsamoro Basic Law, the Senate Committee on Constitutional Amendments and Revision of Codes through the Office of Senator Miriam Defensor-Santiago, the Integrated Bar of the Philippines and the Philippine Bar Association.

** General Counsel, Integrated Bar of the Philippines. Chair, Constitutional Law Department, Philippine Judicial Academy. Dean (1989-95) and Professorial Lecturer, University of the Philippines College of Law. Dean, Lyceum of the Philippines College of Law (2004-2009). J.S.D., LL.M. (Constitutional Law), Yale Law School (1965). LL.B., University of the Philippines (1960).

Most Outstanding Alumnus (Legal Education), UP Alumni Association (1996). National Book of the Year Awardee for Law, Manila Critics Circle (1997).

*** Co-chair, Committee on Constitutional Law, Philippine Bar Association. Columnist, Philippine Daily Inquirer. Lecturer in Constitutional Law (University of the East) and Securities Law (San Beda Graduate School of Law). Chair, Philippine Law Journal (2005). LL.M. (International Finance Concentration), Harvard Law School (2007). LL.B., University of the Philippines (2005). Double-major in B.S. Management Engineering / A.B. Economics Honors, Ateneo de Manila University (2001).

The Outstanding Young Men Awardee for Law (2014). First Violeta Calvo-Drilon-ACCRALAW Scholar for Legal Writing (2004). First Freshman and First Two-Time Awardee, Justice Irene R. Cortes Prize for Best Paper in Constitutional Law (2002, 2005). Professor Myres S. McDougal Prize for Best Paper in Public International Law and Jurisprudence (2005). First Awardee, Justice Vicente V. Mendoza Prize for Best Critical Analysis of a Supreme Court Decision (2005). First Awardee, Professor Gonzalo T. Santos, Jr. Prize for Best Paper in Securities Law (2005). First awardee, Professor Bienvenido C. Ambion Prize for Best Paper in Private International Law (2004). Professor Esteban B. Bautista Prize for Best Paper in Intellectual Property Law (2005). Awardee, Professor Araceli T. Baviera Prize for Best Paper in Civil Law (2003).

1 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

2 Roscoe Pound, InteRPRetatIons of LegaL HIstoRy 1 (1923).

3 H. No. 4994 (2014); S. No. 2408 (2014) [hereinafter, the “BBL”].

4 Maila Ager, BBL is in ‘coma,’ says Marcos, PHIL. daILy InquIReR, Feb. 11, 2015.


A Liberal Interpretation of the Bangsamoro Basic Law

that the BBL represents this generation’s best hope for lasting peace in Mindanao and a historical imperative for the Moro people of the Philippines, and that the thoughts put to paper herein may offer guidance to legislators, jurists the electorate given the present stalemate among legal scholars on the BBL’s constitutionality.

Before wading into the BBL’s myriad details, what is crucial is to adopt the broad mindset in interpretation that the BBL was negotiated under. The BBL’s propositions are of such a high level and gravity that few have straightforward answers direct from the textbooks. Rather, they must necessarily be handled with more than a pure legal approach and there is a necessary element of political judgment.

In constitutional law parlance, it is useful for legal scholars to take a step back and consider novel questions of law in the BBL as political questions, where a lack of judicially manageable standards5 should give way to an opportunity for lawmakers to conduct political experiments instead of declaring these unconstitutional and stillborn at the outset. Any doubt in doctrine must be construed in favor of allowing the BBL’s experiment, and not construed restrictively against.

In plain language, the BBL will not be decided by a poll of legal experts. This paper’s co-author described the futility of the present poll:

The [House of Representatives] ad hoc committee’s first hearing might have appeared frustratingly inconclusive. The legendary retired justice Vicente V. Mendoza, who taught the Constitution to a generation of University of the Philippines lawyers, firmly opined that the Bangsamoro bill was beyond Congress’ power to pass. He argued that the “asymmetric” relationship with the Bangsamoro in the bill was little different from the proposed “associative” relationship struck down by the Supreme Court in 2008, and undermines the President’s power to supervise local governments and enforce national laws. Further, defining a Bangsamoro people may restrict the rights of other peoples in Mindanao.

In complete contrast, retired justice Adolfo Azcuna, chancellor of the Philippine Judicial Academy and an author of the 1987 Constitution, argued that it is constitutional to recognize a distinct Bangsamoro people within the country. He accepted that the bill’s innovations could generally be read in the context of the Constitution. And he prominently stated he is from Zamboanga.

Various legal circles mirror the intellectual stalemate. The Integrated Bar of the Philippines’ Nasser Marohomsalic and myself for the Philippine Bar Association strongly supported the bill at the hearing. On the other hand, the Philippine Constitution Association under Manuel Lazaro has taken a critical, adverse position. IBP general counsel and former UP Law dean Pacifico Agabin told me history demands that we recognize

5 Oscar Franklin Tan, Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review, 86 PHIL. L.J. 523, 535 (2012) (citing Baker v. Carr, 69 U.S. 186 (1962); JoaquIn BeRnas, s.J., tHe 1987 constItutIon of tHe PHILIPPInes: a commentaRy 953-54 (2003 ed.)).

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Pacifico A. Agabin & Oscar Franklin B. Tan

how our Muslim brethren remained independent from foreign colonizers even before we thought of our archipelago as the Philippines. But IBP Journal editor and former UP Law dean Merlin Magallona wrote at length of the bill’s many infirmities.

Ateneo Law dean emeritus Joaquin Bernas, SJ, and School of Government Dean Tony La Viña accept the bill’s general structure, subject to minor adjustments. I do not envy the committee chair, Rep. Rufus Rodriguez, for his task of mediating among experts with his unique mix of legal credentials and political savvy.6

In plain language, the BBL’s constitutionality will be, at least initially, determined by statesmen, not law professors, with a methodology that goes beyond law and ideally taps the electorate’s broader reservoir of wisdom and experience. Statesmen are entitled to recall that a constitution is not an ordinary legal document, but intended to be read very broadly and plainly as a document capable of serving as a framework and a repository of ideals to empower future generations. To quote Chief Justice John Marshall’s classic line: “We must never forget that it is a constitution we are expounding.”7

There are substantial reasons why the BBL’s critics take restrictive views and cite important and well-established legal doctrines against individual BBL provisions. Of all the reasons to refute such criticisms, the most important is simply that law and legal attitudes change with time. The atrocious, impertinent proposition of today may well be the hornbook doctrine of tomorrow. Faced with so momentous a legislative enterprise as the BBL, one might be prudent to give way to the political experiment unless one is absolutely sure both of one’s doctrine and that it will resonate with future generations of Filipinos into eternity. And in gauging whether one is absolutely sure that a BBL provision contradicts our laws and Constitution, one must recall that in the United States’ experience, slavery and racial segregation were but mere decades ago upheld not just as legal truth by the finest minds of the day, but ordained by God and part of the laws of nature.

Finally, an open, liberal mindset on the BBL is an imperative of history and the evident need to uphold the Moro people of the Philippines’ dignity in our law and history. It is all too easy to overlook that they maintained their culture while the rest of the archipelago was Hispanized, and were ironically marginalized as a result. As one of this paper’s co-authors wrote:

The Spaniards occupied the Philippines with the avowed objective of Christianizing the islands. Even the Americans professed the same objective, but Christianization to them meant Protestant evangelization. When the Spaniards encountered the Moros in Manila (they called they Moros as they associated the Muslims with the warriors from Morocco

6 Oscar Franklin Tan, Commentary: Bangsamoro Bill Can’t Be Analyzed Legally, PHIL. daILy InquIReR, Nov. 7, 2014. The mindset reflected in this introduction was first articulated in this newspaper column, in Oscar Franklin Tan’s speech at the House of Representatives Ad Hoc Committee on the Bangsamoro Basic Law’s first hearing on October 27, 2014, and in Oscar Franklin Tan’s speech at Malacañang Palace on February 3, 2015 on behalf of The Outstanding Young Men awardees of 2014.

7 McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819).



who once overran parts of Spain), they were surprised to meet their old antagonists whom they had just driven away from their country a century earlier. The old animosities between Christian Spaniards and the Muslims flared anew, and this time with a vengeance.8

And as Cardinal and Cotabato Archbishop Orlando Quevedo articulated: “The various campaigns, military and otherwise, by Spanish, American, and Filipino governments to subjugate, assimilate and integrate the Bangsamoro into the mainstream body politic, apparently without regard to their historical and cultural make-up, is an injustice to the Bangsamoros’ religious, cultural and political identity.”9 And beyond culture, Mindanao remains the country’s poorest region today.

ANALYSIS

A. BAngsAmoro Entity As VAlid PoliticAl suBdiVision

When one decides for oneself whether the BBL’s proposed Bangsamoro Entity (and its asymmetric relationship to the Philippine State) is a valid legal subdivision of the Philippines or is a substate one tiny step away from becoming a separate country altogether, one also largely decides whether one considers the rest of the BBL valid or not.

The most fundamental critique against the BBL is that Article III gives the Bangsamoro Entity a distinct territory. Because other provisions provide for a government, an apparent citizen base in the definition of the Bangsamoro people, and the ability to enter into certain relationships abroad, critics argue that the Bangsamoro Entity is given all the requisites of a state and may thus secede any time.

The most straightforward answer is that if the Bangsamoro people wanted to secede, and the peace process has addressed armed groups advocating secession, a piece of paper like the BBL will certainly not stop them.

The lengthier answer is that the BBL clearly does not intend to imbue the Bangsamoro Entity with statehood and rigid readings should not force the opposite conclusion. First, all Philippine local government units have a defined territory. Defining a territory in itself does not turn a political subdivision into a separate state, and the MOA-AD Decision10 certainly did not make this conclusion. The Bangsamoro Entity does not claim sovereignty over its defined territory, and Article III, Section 1 explicitly reiterates: “The Bangsamoro territory shall remain a part of the Philippines.”

Article III of the BBL defines the Bangsamoro Entity’s territory as including: (a) the present Autonomous Region of Muslim Mindanao; (b) the municipalities of Baloi, Munai, Namungan, Pantar, Tagoloan and Tangkal in Lanao del Norte, and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and

8 PacIfIco agaBIn, mestIzo: tHe stoRy of tHe PHILIPPIne LegaL system 62 (2011) (published as part of the UP Law Centennial Textbook Project).

9 Carolyn Arguillas, Abp Quevedo to GPH, MILF: “forge ahead with determination”, mIndanews, Oct. 7, 2012, at http://mindanews.com/peaceprocess/news-features/2012/10/abp-quevedo-to-gph-milf-forge-ahead-with-determination.

10 McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819).

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Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite; (c) the cities of Cotabato and Isabela; and (d) all other contiguous areas where the local government passes a resolution to join or where at least 10% of the registered voters in the area ask for their inclusion at least two months prior to the ratification of the BBL and delimitation of the Bangsamoro. The defined territory includes the inland waters such as lakes, rivers, river systems, and streams within the Bangsamoro territory, as well as 12 nautical miles from the low water mark of the coasts. While this definition of territory is identical with the delineation in MOA-AD Decision, the basic difference is that the Article XV of the BBL requires a plebiscite before the listed areas become part of the Bangsamoro Entity. This precludes the MOA-AD Decision objection “that the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.”

Second, the definition of “Bangsamoro People” in Article II, Section 1 is only an affirmation of identity, not a definition of citizenship in the Bangsamoro Entity. Other BBL provisions show that a non-Bangsamoro does not lose any civil or political rights within the Bangsamoro entity. For example, BBL qualifications for candidacy and other privileges examine residency within the Bangsamoro entity and not whether one falls within this definition of a Bangsamoro person. (If one then asks why a definition of identity with no seeming legal effect is in the BBL, the simple answer is that such seeming surplusage is a pittance for peace.)

The BBL’s preamble affirms the Bangsamoro people’s right to conserve and develop their patrimony, their distinct historical identity and birthright to their ancestral homeland, internal self-determination (distinguished from external self-determination) and to chart their political future, and genuine and meaningful self-governance (again, in the context of internal self-determination). Article II identifies the Bangsamoro people as the natives or original inhabitants of Mindanao and the Sulu archipelago, including Palawan, and their descendants. The Bangsamoro Parliament even adopts an official flag, emblem, and national anthem. We must realize that what we have here is a nation within the Philippine State. A “nation” is defined simply as “comprising people sharing the same historical experience, a high level of cultural and linguistic unity, and living in a territory they perceive as their homeland by right”.11

Is this allowed by the Constitution? Yes, article X, section 15 provides:

There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

While the Constitution may call it an “autonomous region,” it falls within the popular denotation of a “nation.” The use of the term “Muslim Mindanao” in the Constitution has raised the issue of the accuracy of the phrase, but it was clarified to refer only to those

11 Roy e.H. meLLoR, natIon, state and teRRItoRy 4 (1989).



areas in Mindanao which are predominantly Muslim. It is also historically accurate, for long before Ferdinand Magellan stumbled into Limasawa, a number of coastal regions, most of them in Mindanao, were already thriving commercial centers with a central government modeled on the Muslim states in the South. Further, we have to recognize the role of religion in the making of nations. Protestantism in Britain gave birth to the British nation after its struggle with Catholic Spain in the era of the Tudors, in much the same way that Catholicism fermented the national identity of the Irish, which led to the founding of the Irish Free State in 1921. Islam and Hindu divided India and Pakistan after independence, and Sunni and Shiite separated Iraq from Iran.

Third, the foreign relationships the Bangsamoro Entity is empowered to enter into are not the diplomatic relationships that make a state a state. Provinces, cities and municipalities are separate corporate entities and may thus enter into legal relationships, such as raising debt and borrowing money. So long as it is clear that the President remains the Philippines’ sole voice in foreign affairs as contemplated in constitutional law and that the President as Commander-in-Chief remains solely responsible for external defense, nothing prevents a political subdivision such as the Bangsamoro Entity from entering into these other legal relationships, especially not ones that capitalize on the entity’s unique demographic such as certain relationships with Muslim countries and their political subdivisions that could well stimulate investment in Mindanao.

Note that article XI (Public Order and Safety) of the BBL explicitly provides that the external defense of the Bangsamoro Entity shall remain the national government’s responsibility, and there is no separate armed forces (as opposed to a civilian police force) for the Bangsamoro Entity. This key detail further undercuts allegations that the Bangsamoro Entity is one step away from becoming a separate country.

B. thE AsymmEtric rElAtionshiP

Further, the concept of asymmetric relationship in the BBL is defined:

The relationship between the Central Government and the Bangsamoro Government shall be asymmetric. This is reflective of the recognition of their Bangsamoro identity, and their aspiration for self-governance. This makes it distinct from other regions and other local governments.12

Justice (and the immediate former government chief peace negotiator) Marvic Leonen provided a jurisprudential definition of asymmetric relationship in a 2013 concurring opinion:

Autonomous regions are granted more powers and less intervention from the national government than territorial and political subdivisions. They are, thus, in a more asymmetrical relationship with the national government as compared to other local governments or any regional formation. The Constitution grants them legislative powers over some matters, e.g. natural resources, personal, family and property relations, economic and tourism development, educational policies, that are usually under the control of the national government. However, they

12 BBL art. VI, § 1.

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are still subject to the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines.

The exact contours of the relationship of the autonomous government and the national government are defined by legislation such as Republic Act No. 9054 or the Organic Act for the Autonomous Region in Muslim Mindanao. …13

Taken in this spirit and in the BBL’s context, the asymmetric relationship appears to mean nothing more than what Leonen discusses and is a simple affirmation that a larger autonomous area such as the Bangsamoro Entity necessarily has a different relationship with the national government compared to ordinary local government units, and enjoys more powers. This is thus not the associative relationship criticized in the MOA-AD Decision.

While “asymmetrical” is seemingly as double-edged as “associative”, the use of the latter term was unfortunate as it was seized on by the majority of the Supreme Court as one of the essential grounds for holding the predecessor agreement to be violative of the Constitution. The international definition of the term as formulated by two authorities is, in the MOA-AD Decision, “an association is formed when two states of unequal power voluntarily establish durable links; in the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state.” The Court cited as examples the Marshall Islands and Micronesia, which are associated states of the United States. An associated state is not recognized by the Constitution, the Court held. Indeed, the MOA-AD Decision criticized an agreement that partook of a treaty’s nature, one that seemed to prepare the other party for independence or at implicitly recognize an existing independent status.

Indeed, the BBL avoids the semantic traps triggered in the MOA-AD Decision and the Bangsamoro Entity in the BBL is a “political” instead of “juridical” entity. Someone insisting that the BBL’s asymmetric relationship and the associative relationship from its predecessor are the same dogs with different collars might be asked to concede that where an interpretation that is not unconstitutional is available as a ready alternative to the unconstitutional interpretation, this should be upheld.

c. usurPAtion of mindAnAo’s Autonomous rEgion

A related objection is that the Bangsamoro Entity usurps the Autonomous Region of Muslim Mindanao and that the former cannot be the autonmous region in Mindanao contemplated by the Constitution.

This objection is difficult to understand because all the Constitution broadly states is that “There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras….”14 The Constitution provides only very broad requirements for such

13 League of Provinces of the Phils., v. Dept. of Env’t & Nat. Res., G.R. No. 175368, Apr. 11, 2013 (Leonen, J., concurring).

14 const. art. X, § 15. See const. art. X, § 1.



autonomous regions, such as their remaining subject to the President’s general power of supervision over local governments.15 The Constitution provides that an autonomous region’s organic act must provide for legislative power over an enumerated list of fields, but this is flexible because the legislature may add, “Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.”16

The current ARMM is not specified in the Constitution. Rather it is a statutory creation within the above constitutional framework that may be altered and expanded by statute. So long as the Bangsamoro Entity does not transgress against any of the broad constitutional guidelines for autonomous regions, it must be a valid replacement of the ARMM that is within Congress’ power to create.

d. VAlidity of ministEriAl form of goVErnmEnt

One must further note that the Bangsamoro Entity’s proposed ministerial form of government detailed in the BBL is acceptable because the presidential system of the national government outlined in the Constitution is not required to be mirrored in autonomous regions and local government units. The Constitution only requires that the government of an autonomous region “consist[ ] of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.”17 This is met in the BBL even though the Chief Minister of the Bangsamoro Entity is elected by the Bangsamoro Parliament and not directly by the electorate, as there is no requirement in the Constitution that the autonomous region’s chief executive be directly elected.

Note that we allow very different forms of government for indigenous peoples and amendments to the Local Government Code could also create local government structures very different from those in the national government. Finally, again, it is the better attitude to allow political experiments not explicitly prohibited by the Constitution’s text. Beyond the ministerial form of government, this applies to the wali or ceremonial head of the Bangsamoro Entity detailed in article VIII of the BBL.

E. rElAtionshiP BEtwEEn nAtionAl And BAngsAmoro BodiEs

Finally, the BBL’s nuanced drafting intentionally avoids transgressing against the Constitution’s explicit powers assigned to national bodies. These are summarized:

1. The President does not have the power of control but retains the power of supervision over the Bangsamoro Entity, as required for an autonomous region in the Constitution;

2. The President and other bodies such as the Judicial and Bar Council and Commission on Appointments retain their discretion in appointments whose requirements are specified in the Constitution, as BBL provisions dealing with such appointments are interpreted as policy recommendations;

3. The Supreme Court retains its ultimate power of judicial review

15 § 16.

16 § 20.

17 § 18.

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and administration of Shari’ah courts and a Shari’ah bar in the Bangsamoro Entity;

4. The Bangsamoro Police and Bangsamoro Police Board shall be part of the Philippine National Police and the National Police Commission, in compliance with the constitutional provision that there be only one police force;

5. The Armed Forces of the Philippines retains responsibility for the external defense of the Bangsamoro Entity and the latter shall have no separate armed forces;

6. The Commission on Audit retains its power to audit all government bodies, including in the Bangsamoro Entity, as the Bangsamoro Commission on Audit parallels (and parallel audits are allowed in jurisprudence) but does not replace COA;

7. The Bangsamoro Electoral Office shall be a part of the Commission on Elections and thus cannot supplant the latter;

8. The Bangsamoro Civil Service Office is tasked to develop a professional civil service corps in the Bangsamoro Entity but without prejudice to the national Civil Service Commission’s powers; and

9. The Bangsamoro Human Rights Commmission cannot prejudice the primarily recommendatory functions of the national Human Rights Commission and is probably prudent given the special human rights issues that may arise in the Bangsamoro Entity due to its special demographics.

f. A notE on thE moA-Ad dEcision

Going beyond the BBL’s bare text, a critical difference between the Comprehensive Agreement on Bangsamoro (CAB) and the MOA-AD that was invalidated by the Supreme Court in the 2008 MOA-AD Decision is one of political and constitutional imperative: the CAB’s provisions need legislative approval, while the MOA-AD contained a government commitment to amend the Constitution to conform to the MOA-AD. The MOA-AD Decision noted that the government peace panel has no power to guarantee to a third party that the required amendments will eventually be put in place nor even be submitted to a plebiscite. In his MOA-AD concurring opinion, former Chief Justice Reynato Puno noted that the MOA-AD is heavily loaded with self-executing components which are well beyond the powers of the President to grant, whether as Chief Executive or as Commander-in-Chief. “Nemo dat quod non habet. You cannot give what you do not have. Hindi mo maibibigay ang hindi sa iyo,” added Justice Ruben Reyes in a separate opinion.

The BBL, therefore, is the big difference between the two peace agreements; its passage and approval is the suspensive resolutory condition that would give life to the CAB’s specific terms. It omits, however, the guarantees of its predecessor and is currently subject to Congress’ judgment.

g. othEr AnAlysis

Objections to individual BBL provisions are easier to resolve after one takes a position on the more fundamental objections discussed above. The rest of the authors’ analysis is presented in this simple table:



Provision Comment

Article I, Section 3. Purpose. – The purpose of this Basic Law is to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance.

Article IV, Section 1. Self-Governance. In the exercise of its right to self-governance and self- determination, the Bangsamoro is free to pursue its economic, social and cultural development.

This is acceptable because the Bangsamoro people’s identity may be recognized in law in the same way we recognize indigenous peoples’ identities.

Further, “self-governance” does not imply independence or secession because it is in the context of “internal self-determination” or self-governance within the context of an existing state. The concept of internal self-determination was explicitly recognized in the MOA-AD Decision.

For the avoidance of all doubt, it may be prudent to explicitly state that “self-governance” here is in the context of internal, not external, self-determination.

Article II, Section 2(4). Core Territory – The core territory of the Bangsamoro shall be composed of … all other contiguous areas where there is resolution of the local government unit or a petition of at least ten percent (10%) of the registered voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.

The BBL might be further clarified regarding what “contiguous” will mean and what the smallest local government unit (municipalities or baranggays, for example) allowed to join the Bangsamoro Entity will be.

Further, the BBL might be further clarified whether sub-units of a province may join the Bangsamoro Entity but remain part of a province itself not a part of the Bangsamoro Entity, or whether provinces will have to be redrawn.

Article III, Section 4. Inland Waters. – All inland waters, such as lakes, rivers, river systems, and streams within the Bangsamoro territory shall be part of the Bangsamoro. The preservation and management thereof shall be under the jurisdiction of the Bangsamoro Government.

Section 5. Bangsamoro Waters – The Bangsamoro waters shall extend up to 22.224 kilometers (12 nautical miles) from the low-water mark of the coasts that are part of the Bangsamoro territory. The Bangsamoro Waters shall be part of the territorial jurisdiction of the Bangsamoro political entity.

This is acceptable because a local government unit may manage inland bodies of water within its assigned territory.

Further, nothing prevents the delegation of the management of certain territorial waters to a local government unit.

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Article IV, Section 5. Promotion of Unity. The Bangsamoro Government shall promote unity, peace, justice, and goodwill among all peoples, as well as encourage a just and peaceful settlement of disputes.

The Bangsamoro abides by the principle that the country renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

It is curious why a law creating an autonomous region would mention war, a matter among states, but a reiteration of the constitutional policy renouncing war in any law is not invalid.

Article V, Section 2, Subsection 5. Human rights and humanitarian protection and promotion. – The Bangsamoro Government may organize its own bodies for human rights and humanitarian protection and promotion that will work cooperatively with relevant national institutions.

Article IX, Section 7. Bangsamoro Human Rights Commission. – There is hereby created a Bangsamoro Human Rights Commission, which shall be independent and impartial, to ensure the promotion and protection of human rights in the Bangsamoro. In the performance of its mandate, the Commission may exercise, among others, investigatory powers, prosecutorial powers and powers to compel attendance of witnesses and the production of evidence.

The Commission shall submit a report on its activities and performance at least once a year to the Bangsamoro Parliament. Other state instrumentalities in the Bangsamoro shall assist the Commission and ensure its independence, impartiality, dignity and effectiveness. The Commission shall have a coordinative and complementary relationship with the national Commission on Human Rights in carrying out its mandate.

This is acceptable because the Constitution’s Commission on Human Rights has generally recommendatory powers and would not be supplanted by regional human rights bodies.

Anticipating human rights questions involving race and religion specific to the Bangsamoro Entity’s unique demographics, creating a specific Bangsamoro human rights body might be prudent.



Article V, Section 2, Subsection 7. Auditing. – The Bangsamoro auditing body shall have auditing responsibility over public funds utilized by the Bangsamoro, without prejudice to the power, authority and duty of the national Commission on Audit (COA). The Bangsamoro Government shall ensure transparency mechanisms consistent with open government practices.

Article XII, Section 2. Auditing. – All public funds of the Bangsamoro are subject to auditing. For this purpose, a Bangsamoro Commission on Audit (BCA) is hereby created. It shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to the public funds utilized by the Bangsamoro. The utilization of the revenue generated by the Bangsamoro Government and block grants or subsidies from foreign or domestic donors shall be subject to the auditing rules and regulations of the Bangsamoro Government and to auditing by the BCA auditors.

The BCA’s power, authority and duty shall be without prejudice to the power, authority and duty of the Commission on Audit (COA) to examine, audit and settle all accounts, pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality, including GOCCs.

With due regard to the BCA’s responsibility to ensure the judicious use of funds within the Bangsamoro, disbursement vouchers of the Bangsamoro Government shall be submitted immediately to the BCA.

This is acceptable because the COA, a constitutional body, remains responsible for auditing Bangsamoro government entities, but nothing prevents the creation of a parallel audit body.

Development Bank of the Philipines v. Commission on Audit 1 ruled that another audit parallel to COA’s is allowed under the Constitution.

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Article V, Section 2, Subsection 8. Civil Service. – The Bangsamoro Government shall develop and administer a professional civil service corps, to include the powers and privileges on civil service matters provided in R.A. No. 9054, and without prejudice to the power, authority, and duty of the national Civil Service Commission.

There is hereby created a Bangsamoro Civil Service office that shall develop and administer a professional civil service corps, without prejudice to the power, authority and duty of the national Civil Service Commission. The Bangsamoro Government shall enact a civil service law for this purpose. This law shall govern the conduct of civil servants, the qualification for non-elective positions, adopt the merit and fitness system, and protect civil service eligibles in various government positions, including government-owned and/or controlled corporations with original charters, in the Bangsamoro. The Bangsamoro Government shall have primary disciplinary authority over its own officials and employees.

This is acceptable because the CSC, a constitutional body, remains responsible for the civil service.

It might be further clarified, however, how exactly the CSC and Bangsamoro Civil Service office will work together and how the Bangsamoro government’s “primary disciplinary authority” will function in practice.

Article V, Section 2, Subsection 10. Customs and Tariff. – The Bangsamoro Government and the Central Government shall cooperate and coordinate through the intergovernmental relations mechanism with regard to the enforcement of customs and tariff laws and regulations to ensure the effective exercise of its powers on barter trade and countertrade with ASEAN countries as well as the regulation of the entry of haram goods in the Bangsamoro territorial jurisdiction.

This is acceptable because nothing prevents a government from delegating customs authority over a certain area to a local government.

Existing Philippine provinces and cities enter into barter trade with other ASEAN countries.



Article V, Section 2, Subsection 11. Administration of justice. – Administration of justice shall be in accordance with the relevant provisions of this Basic Law and with due regard to the powers of the Supreme Court and the competence of the Bangsamoro Government over Shari’ah courts and the Shari’ah justice system in the Bangsamoro. The supremacy of Shari’ah and its application shall only be to Muslims.

Article X, Section 1. Justice System in the Bangsamoro. -- The justice system in the Bangsamoro shall consist of Shari’ah law which shall have supremacy and application over Muslims only; the traditional or tribal justice system, for the indigenous peoples in the Bangsamoro; the local courts; and alternative dispute resolution systems.

For Muslims, the justice system in the Bangsamoro shall give primary consideration to Shari’ah, and customary rights and traditions of the indigenous peoples in the Bangsamoro.

Nothing herein shall be construed to operate to the prejudice of non-Muslims and non- indigenous peoples.

This is acceptable because the Bangsamoro Entity’s Shari’ah courts remain subject to the original powers of the Supreme Court under the Constitution.

The Constitution explicitly provides: “The organic acts [of autonomous regions] shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.”

Article X, Section 10. Shari’ah Judicial and Bar Council. - The Shari’ah Judicial and Bar Council shall recommend to the Judicial and Bar Council applicants for the position of judges of Shari’ah District and Circuit Courts in the Bangsamoro and the justices of the Shari’ah High Court. The Judicial and Bar Council shall give utmost consideration to the Shar’iah Judicial and Bar Council nominees in recommending appointees to the President. The President shall issue the appointments within ninety (90) days from the submission by the Judicial and Bar Council of the list.

This is acceptable because recommendatory authority to the national Judicial and Bar Council does not restrict its discretion.

Note, further, that there is no religious test involved in the appointment of Shari’ah judges or creation of a Shari’ah bar, as non-Muslims with the requisite knowledge would qualify.

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Article V, Section 3. Exclusive Powers. - Exclusive powers are matters over which authority and jurisdiction shall pertain to the Bangsamoro Government. The Bangsamoro Government shall exercise these powers over the following matters within the Bangsamoro…

Article XII, Section 22. Foreign and Domestic Loans; Bills, Bonds, Notes and Obligations. – (a) Loans, Credits, and Other Forms of Indebtedness. – The contracting of loans, credits, and other forms of indebtedness by the Bangsamoro Government shall be for the development and welfare of the people of the Bangsamoro.

Subject to acceptable credit worthiness, such loans may be secured from domestic and foreign lending institutions, except foreign and domestic loans requiring sovereign guaranty, whether explicit or implicit, which would require the approval of the Central Government. The Bangsamoro Parliament may authorize the Chief Minister to contract such domestic or foreign loans. The loans so contracted may take effect upon approval by a majority of all the members of the Bangsamoro Parliament.

Section 25. Economic Agreements. – The Bangsamoro government may enter into economic agreements and receive benefits and grants derived therefrom subject to the reserved powers of the Central Government over foreign affairs.

Section 26. Cultural Exchange, Economic and Technical Cooperation. – Consistent with the reserved powers of the Central Government, the Bangsamoro Government may establish linkages for cultural exchange, economic and technical cooperation with countries with diplomatic relations with the Philippines, with assistance of Philippine embassies or consulates, or through some other arrangements with Central Government supporting such undertakings.

This is acceptable because the list of powers delegated to an autonomous region in article X, section 20 of the Constitution is not exclusive and lawmakers may add other fields.

Certain powers such as the ability to contract loans (without sovereign guarantees) and enter into barter trade with other ASEAN countries are already enjoyed by existing Philippine provinces and cities. These relationships are not the type of diplomatic relationships that make a state a state.

Congress may delegate certain powers to the Bangsamoro Entity such as determining the location of free ports (with the incentives offered under existing national laws), the creation of government corporations with original charter intended to operate within the Bangsamoro Entity, and the creation of legislative franchises for public utilities within the Bangsamoro Entity subject to constitutional restrictions.



Article XIII, Section 25. Barter Trade and Countertrade with ASEAN Countries. – The Bangsamoro Government shall regulate traditional barter trade and counter-trade with ASEAN countries. The goods or items that are traded with the said countries shall not be sold elsewhere in the country without payment of appropriate customs or import duties.

Traditional barter trade and counter-trade refer to all cross-border trade of all goods not otherwise considered illicit since time immemorial between the Bangsamoro areas with ASEAN countries. The Bangsamoro Government shall ensure compliance with national standards and safety product standards requirements. Any dispute in relation to compliance or non-compliance shall be brought to the intergovernmental relations mechanism.

Section 26. Economic Zones, Industrial Estates and Free Ports. – The Bangsamoro Government may establish economic zones, industrial estates and free ports in the Bangsamoro. Through the intergovernmental relations mechanism, the Bangsamoro Government and the Central Government shall cooperate on customs, immigration, quarantine service including the attendant international commitments thereto, to implement and make fully operational such economic zones, industrial estates, and free ports within one (1) year from their establishment. Business and other enterprises operating within the Bangsamoro economic zones, industrial estates and free ports shall be entitled to the fiscal incentives and other benefits provided by the Central Government to special economic zones. The Bangsamoro Government shall implement the fiscal incentives and other benefits to investors in economic zones, industrial estates and free ports. Bangsamoro free ports shall be contiguous/adjacent to a seaport or airport. The area of coverage of a free port may be so much as may be necessary of that portion of the constituent local government unit/s of the Bangsamoro, subject to such criteria as the Bangsamoro Parliament may provide in law for that purpose. Existing free ports in the ARMM are hereby transferred to the Bangsamoro Government.

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Article V, Section 3, Subsection 57(2)-(3). Local administration, municipal corporations and other local authorities including the creation of local governments. The Bangsamoro Parliament may create, divide, merge, abolish or substantially alter boundaries of provinces, cities, municipalities or barangays in accordance with a law enacted by the Bangsamoro Parliament, and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Subject to the criteria provided in said law, the Bangsamoro Parliament may likewise create appropriate local government units in the areas inhabited predominantly by indigenous peoples;

However, when such acts require the creation of a congressional district, the Bangsamoro Government shall cooperate and coordinate with Central Government through the Philippine Congress – Bangsamoro Parliament Forum to prioritize the deliberations on the creation of the congressional district;

Article XV, Section 5. Reconstitution of Local Government Units. – The Bangsamoro Parliament, may, by regional law, provide for the constitution of geographic areas in the Bangsamoro into appropriate territorial or political subdivisions depending on the results of any of the plebiscites herein.

Nothing herein shall be construed to allow the Bangsamoro Parliament to create congressional districts.

This is acceptable because Congress can delegate to the Bangsamoro Entity the authority to alter the territory assigned to the local government units within it, in the same way (albeit the Bangsamoro Entity enjoys a much broader delegation) that the Local Government Code allows the alteration of baranggays within a larger government unit.

The BBL recognizes that the Constitution explicitly states that it must be Congress that reapportions congressional districts,2 but there is no such constitutional requirement for the alteration of provincial, city or municipal boundaries.

Article VI, Section 3. General Supervision. Consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government, the President shall exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed.

This provision emphasizes that the Bangsamoro Entity shall be subject to the President’s power of supervision, one of the most important requirements for autonomous regions in article X (Local Government) of the Constitution.



Article VI, Section 9. Bangsamoro Participation in Central Government. – It shall be the policy of the Central Government to appoint competent and qualified inhabitants of the Bangsamoro in the following offices in the Central Government: at least one (1) Cabinet Secretary; at least one (1) in each of the other departments, offices and bureaus, holding executive, primarily confidential, highly technical, policy-determining positions; and one (1) Commissioner in each of the constitutional bodies.

Article X, Section 27. Justices from Bangsamoro. It shall be the policy of the Central Government that at least one (1) justice in the Supreme Court and two (2) justices in the Court of Appeals at any one time who shall be qualified individuals of the Bangsamoro territory. For this purpose, the Chief Minister may, after consultations with the Bangsamoro Parliament and the Shari’ah Judicial and Bar Council, submit the names of qualified persons to the Judicial and Bar Council for its consideration. The appointments of those recommended by the Chief Minister to the judicial positions mentioned above are without prejudice to appointments that may be extended to other qualified inhabitants of the Bangsamoro to other positions in the Judiciary.

This is acceptable because it is nonbinding policy (albeit morally binding) and not a strict legal requirement.

Note that it is not possible to add requirements for appointment to an office whose requirements are set out in the Constitution, such as a Supreme Court Justice or Commissioner of a constitutional body.

Article VII, Section 9. Bangsamoro Electoral Code. – The Bangsamoro Transition Authority shall enact the Bangsamoro Electoral Code, which shall be correlated to national election laws, insofar as these are consistent with this Basic Law. The electoral system shall allow democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties.

There is hereby created a Bangsamoro Electoral Office which shall be a part of the Commission on Elections, and which shall perform the functions of the Commission on Elections in the Bangsamoro.

This is acceptable because the Bangsamoro Electoral Office is part of the national Commission on Elections and presumably under its control and supervision, and because the Bangsamoro Electoral Code shall be subsidiary to national election laws.

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Article VII, Section 18. Privileges and Immunities. – No member of the Bangsamoro Parliament may be arrested while the Bangsamoro Parliament is in session, except for crimes punishable by more than six (6) years of imprisonment. The members of the Bangsamoro Parliament may not be questioned in any other place of held liable for any speech or debate delivered in the Bangsamoro Parliament sessions or meetings of its committees.

This is acceptable because Congress may grant by statute to Bangsamoro Parliament members privileges and immunities mirroring those of national legislators granted in the Constitution.

Article VII, Section 23. Proceedings. – The legislative proceedings in the Bangsamoro Parliament shall be recorded in its original form and translated in the Filipino, Arabic and English languages. Unless otherwise provided by law or the House Rules of the Bangsamoro Parliament, the members of the Bangsamoro Parliament may use any of the commonly understandable native languages during legislative deliberations.

This is acceptable because legislative proceedings of the Bangsamoro are accessible to citizens outside the Bangsamoro in Filipino and English.

The Constitution provides that languages other than Filipino may be recognized as the country’s official language, recognizes regional languages as “auxilliary official languages,” and provides for the promotion of Arabic “on a voluntary and optional basis.”3

Article IX, Section 19. Preservation of Bangsamoro Cultural Heritage. – To preserve the history, culture, arts, tradition and the rich cultural heritage of the Sultanates, such as the Sultanates of Sulu, Maguindanao, and Buayan, and the Royal Houses of the Maranaos and the indigenous peoples of the Bangsamoro, there shall be created a Bangsamoro commission for the preservation of cultural heritage.

This is acceptable because the thrust is to preserve the cultural heritage of the named groups, not grant any title of royalty or nobility which would violate the Constitution.



Article XI, Section 2. Bangsamoro Police. – There is hereby created a Bangsamoro Police which shall be organized, maintained, supervised, and utilized for the primary purpose of law enforcement and maintenance of peace and order in the Bangsamoro. It shall be part of the Philippine National Police.

The Bangsamoro Police shall be professional, civilian in character, regional in scope, effective and efficient in law enforcement, fair and impartial, free from partisan political control, and accountable under the law for its actions. It shall be responsible both to the Central Government and the Bangsamoro Government, and to the communities it serves.

Section 5. Bangsamoro Police Board. – There is hereby created a Bangsamoro Police Board, which shall perform the functions of the National Police Commission in the Bangsamoro. The board shall be part of the National Police Commission (NAPOLCOM). The NAPOLCOM shall ensure that the Bangsamoro Police Board performs its powers and functions within the bounds of its authority. In addition, it shall perform the following functions….

This is acceptable because the Constitution provides that there be “one police force,”4 which is complied with because the Bangsamoro Police Force is to be part of the national police force. Further, the Bangsamoro Police Board is to be part of the National Police Commission.

Note that article XI, section 10 of the BBL explicitly states that appointments to the Bangsamoro Police Force, depending on rank, shall be subject to the Civil Service Commission, the Chief of the Philippine National Police, the President and/or the Commission on Appointments.

Section 15. Defense and Security. - The defense and security of the Bangsamoro shall be the responsibility of the Central Government. The Central Government may create a Bangsamoro Command of the Armed Forces of the Philippines for the Bangsamoro, which shall be organized, maintained, and utilized in accordance with national laws. Qualified inhabitants of the Bangsamoro shall be given preference for assignments in the said Bangsamoro Command.

The BBL is explicit that the external defense of the Bangsamoro Entity shall remain the national government’s responsibility, and there is no separate armed forces (as opposed to a civilian police force) for the Bangsamoro Entity. This key detail undercuts allegations that the Bangsamoro Entity is one step away from becoming a separate country.

Article XII, Section 6. Revenue Sources. – The Bangsamoro Government shall have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to the provisions of this law and consistent with the principles of devolution of powers, equalization, equity, accountability, administrative simplicity, harmonization, and economic efficiency, and fiscal autonomy. Such taxes, fees, and charges shall accrue exclusively to the Bangsamoro Government.

This is acceptable as there are no restrictions in the Constitution to empowering an autonomous region to raise its own revenues and levy its own taxes. Such power is in fact explicitly granted to local government units in article X, section 5 of the Constitution.

Further, nothing in the Constitution restricts sharing of tax revenue with an autonomous region or local government unit, which is described in the rest of the BBL’s Article XII.

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Article XIII, Section 8. Natural Resources, Nature Reserves and Protected Areas. – The Bangsamoro Government shall have the authority, power, and right to explore, develop and utilize the natural resources, including surface and sub-surface rights, inland waters, coastal waters, and renewable and non-renewable resources in the Bangsamoro.

This neither violates the Regalian doctrine nor asserts that the Philippine State no longer owns the natural resources within the Bangsamoro Entity. As a legitimate political subdivision of the Philippines, the Bangsamoro Entity may be authorized to develop the resources within its assigned territory.

Further, similar power has been granted by Congress to indigenous peoples under the Indigenous Peoples Rights Act.5

Article XVII, Section 1. Amendments and Revisions. – All proposals to amend or revise the provisions of this Basic Law shall be first discussed and endorsed by the Philippine Congress-Bangsamoro Parliament Forum to Congress.

Such amendment or revision, as enacted by Congress, shall become effective upon approval by a majority vote of qualified voters in the Bangsamoro cast in a plebiscite called for the purpose.

Article XVII of the BBL will have to be treated as a recommendation to Congress because the Constitution does not state that amendments to an autonomous region’s organic law must be approved by plebiscite within the autonomous region.6 Nothing stops Congress from respecting the recommended extra step of a plebiscite, however.

CONCLUSION

After considering the broadest objections against the BBL such as how it allegedly imbues the proposed Bangsamoro Entity with all the requisites of a state and taking a broad view that would prohibit a feature of the BBL only if there is an explicit constitutional provision or cardinal postulate of constitutional or international law violated, it is fairly straightforward to dismiss such broad objections and more specific section-level objections in favor of allowing a political experiment when it is not explicitly prohibited. From the above table, any adjustments that might be made to address such explicit prohibitions are minor and straightforward, such as clarifying the use of international law terms such as “self-governance” to specifically refer to the context of internal self-determination, or clarifying that the plebiscite to ratify amendments to the BBL is a policy recommendation only.

It must be stressed that the BBL continues to represent the best hope for lasting peace in Mindanao and is a matter of historical imperative to give the Moro people of the Philippines their due. As one of the co-authors of this paper stated in Malacañang Palace last February 3, 2015 on behalf of The Outstanding Young Men awardees of 2014, the BBL’s passage and achieving lasting peace in Mindanao would dwarf the achievements of every person who received that great honor. The BBL’s passage must be made with



statesmanship, political conviction and a sense of social justice, beyond mere intellectual agreement from the law professors.

And as the other co-author summed up:

The question that crops up foremost in the mind of Christian Filipinos is: But would not recognition of a Moro nation ultimately lead to think of itself as a potential state? Will this not lead to the Balkanization of the country, with its frightening connotations?

The answer to this question is, of course, “Yes,” unless we strengthen our democratic institutions to guarantee equality and justice to the Muslims. When a state grows and develops inclusively, when it changes its discriminatory laws against ethnic minorities, when our political leaders realize that it is advantageous to appeal across religious and ethnic lines, and when it allows free expression of cultural identity within the institutions of the country, and when it devolves some degree of power and autonomy to the ethnic minorities, such acts will defuse sentiments of secession and aspirations of independence.18

Table Footnotes

1 G.R. No. 88435, Jan. 16, 2002.2 const. art. VI, § 5(4).3 const. art. XIV, § 7.4 const. art. XVI, § 6.5 Rep. Act No. 3491 § 7 (1997).6 const. art. X, § 18.

••• •••

18 Pacifico Agabin, unpublished manuscript submitted for publication by the UP College of Law.

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Sedfrey M. Candelariacomparative aNalySiS of the memoraNDum of agreemeNt

oN the aNceStral DomaiN (moa-aD) aSpect oN the grp-milf tripoli agreemeNt oN peace of 2011 aND

framework agreemeNt oN the baNgSamoro (fab)

Sedfrey M. Candelaria*

I. INTRODUCTION

A. Peace Processes and Peace Agreements, In General1

Peace processes, which often culminate in the adoption of agreements, have been used traditionally in international law to end armed conflicts. The form within which negotiated settlements have been contained are primarily up to the negotiating parties to determine. However, the legal characterization of these agreements are independently and objectively governed by a set of rules either under the municipal legal system or at the level of international law.

A peace treaty is an “agreement or contract made by belligerent powers, in which they agree to lay down their arms, and by which they stipulate the conditions of peace and regulate the manner in which it is to be restored and supported.”2 Apart from being a source of international obligations, treaties have been utilized at a national level to transfer territory, settle disputes, protect human rights, and regulate commercial relations.3

Peace agreements, as presently applied, are often used as a mode to end hostilities between a state and a non-state entity due to secessionist struggles or problems. This is especially so at a time when non-state entities are standing firm in their demands for self-determination as they incessantly fight for independence.

Self-determination is closely intertwined with the right to independence. At present, self-determination has come to mean one of three things:

(1) independence for new states emerging from the collapse of communism (e.g., Ukraine or Slovenia);

(2) independence for homogenous sub-units within nation-states (e.g.,Quebec or Eritrea); or

(3) greater internal autonomy for smaller identity groups within existing states (e.g., Aaland Islands under Finland or Faeroe Islands under Denmark).4

* Dean of the Ateneo de Manila Law School. He formerly served as chief legal consultant of the GRP peace panel for talks with the Moro Islamic Liberation Front.

1 Discussions herein have been derived from the present writer’s co-authored discourse in a related article in “An Overview of the International Legal Concept of Peace Agreements as Applied to Current Philippine Peace Processes,” 53 ateneo. L.J. 263, 266-270 (2008).

2 BLack’s Law dIctIonaRy 1502 (6th ed. 1990).

3 JoaquIn g. BeRnas, s.J., An Introduction to Public International Law 25 (1st ed. 2002) [hereinafter BeRnas,PIL].

4 Michael J. Kelly, Political Downsizing: The Re-Emergence of Self-Determination, and the Movement Toward Smaller, Ethnically Homogenous States, 47 DRAKE L. REV. 209, 221 (1999).


Comparative Analysis of the Memorandum of Agreement on the Ancestral Domain Aspect on the GRP-MILF Tripoli Agreement on

Peace of 2011 and Framework Agreement on the Bangsamoro

In international law, an entity’s right to self-determination covers two important rights:

(1) the right to freely determine their political status and freely pursue their economic, social and cultural development; and

(2) the right to freely dispose of the natural wealth and resources for their own ends without prejudice to any obligations arising out of international cooperation.5

Self-determination is supported by international law and embodied in international instruments such as the Charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The great urge of peoples to determine their own economic, social, and cultural development causes opposition or hostilities within a state or nation. Therefore, peace agreements are relevant, particularly at the national level, in trying to resolve these hostilities.

Most peace agreements have one common feature — they are used as a means to an end, which is to attain peace, by leading towards building a positive momentum for a final and comprehensive settlement. Peace agreements are generally “contracts intended to end a violent conflict, or to significantly transform a conflict, so that it can be more constructively addressed.”6 There are various types of peace agreements, each with their own distinct purpose.

The United Nations uses the following classifications to differentiate the various types of peace agreements:

Ceasefire Agreements – These typically short-lived agreements are “military in nature” and are used to temporarily stop a war or any armed conflict for an “agreed-upon timeframe or within a limited area.”7

Pre-Negotiation Agreements – These agreements “define how the peace will be negotiated” and serve to “structure negotiations and keep them on track” in order to reach its goal of ending the conflict.8

Interim or Preliminary Agreements – These agreements are undertaken as an “initial step toward conducting future negotiations,” usually seen as “commitments to reach a negotiated settlement.”9

Comprehensive and Framework Agreements – Framework Agreements are agreements which “broadly agree upon the principles and agenda upon which the substantive issues will be negotiated” and are usually accompanied by Comprehensive Agreements which “address

5 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

6 Nita Yawanarajah & Julian Ouellet, Peace Agreements, available at http://www.beyondintractability.org/essay/structuring_peace_agree/ (last accessed Sep. 3, 2008).

7 Id.

8 Id.

9 Id.

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Sedfrey M. Candelaria

the substance of the underlying issues of a dispute,” seeking to find the “common ground between the interests and needs of the parties to the conflict, and resolve the substantive issues in dispute.”10

Implementation Agreements – These agreements “elaborate on the details of a Comprehensive or Framework Agreement” to facilitate the implementation of the comprehensive agreement.11

As to its components, most peace agreements address three main concerns: procedure, substance, and organization.12 The procedural components provide for the methods that establish and maintain peace such that they delineate the how of a peace process.13 These include the setting up of schedules and institutions that “facilitate the implementation of substantive issues such as elections, justice, human rights and disarmament.”14 The substantive components provide for the changes to be made after the peace agreement is reached such as political, economic, and social structural changes that are needed to “remedy past grievances and provide for a more fair and equitable future.”15 The organizational or institutional components are mechanisms intended to “promote the peace consolidation efforts”16 such that they address the who aspect of the agreement.17

The components of peace agreements are illustrated in the following:

Subjects Procedure Substance

North Korea & South Korea

The leaders of North Korea and South Korea agreed to set up the first regular freight train service for half a century, linking the two countries divided by a heavily fortified border.1

They also agreed to hold meetings with the ministers and defense officials, and to establish a cooperation zone around a contested sea border on the west of the Korean peninsula.2

Both parties agree to formally end the 1950-1953 Korean War, which technically is still going on because a peace treaty has yet to be signed.3 North Korea would also have to give up all its nuclear weapons as part of their deal.4

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.




Indonesian Government & Rebels from the Free Aceh

Movement

There was disarmament by the rebels overseen by a joint European and ASEAN monitoring team, as well as by the pro-government militias in Aceh.5 A human rights court and a truth and reconciliation commission was also established.6

Both parties signed a peace deal intended to end their nearly 30-year conflict.7 Under the agreement, the rebels have agreed to set aside their demand for full independence, accepting instead a form of local self-government and the right to eventually establish a political party.8 In turn, the Indonesian government has agreed to “release political prisoners and offer farmland to former combatants to help them reintegrate into civilian life.”9

Nepalese Government & Nepal Maoists

There was disarmament by the Maoist Combatants, monitored by the United Nations, as well as by the Nepali Army.10 Both parties also agreed to form a transitional government and to hold elections for a constituent assembly to establish a new constitution and governmental system.11

A Comprehensive Peace Agreement was signed by the Chairman of the Communist Party of Nepal and the Prime Minister of Nepal to end 11 years of civil war.12

The agreement provided for the progressive restructuring of the state to resolve existing problems in the country, based on class, caste, religion and sex.13

It can be gleaned then that although the main goal of peace agreements is to achieve peace or to end hostilities between or among parties, each and every peace agreement varies as to its procedural and substantive components. Peace agreements adopt various measures in addressing their own respective dilemmas and each has its own distinct way of enabling the parties involved in the agreement to cooperate and comply with the agreed terms to ensure the success of the measures adopted.

B. Current Challenges to On-going Peace Process in a Philippine Context

In an armed conflict with secessionist undertones, the form and content of a peace agreement are crucial in terms of its eventual implementation at the domestic level where the arena of the armed conflicts is in place. As a matter of fact the success of a peace settlement is measured not only in the signing of the peace agreement by the negotiating parties, but, more importantly, when accepted by the public at large.

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Our Government continues to negotiate with a number of armed groups for a final peace settlement. A previous Final Peace Agreement with the Moro National Liberation Front is in the process of review. The Memorandum of Agreement on the Ancestral Domain (MOA-AD) with the Moro Islamic Liberation Front in 2008 was struck down by the Supreme Court in the Province of North Cotabato, et al. v. The GRP Peace Panel on Ancestral Domain, et al., G.R. Nos. 183591, 183752, 183893, 183951 and 183962, October 14, 2008. But a new agreement had finally emerged, i.e., the Framework Agreement on the Bangsamoro (FAB) of 2012.

The fate of the FAB is presently awaiting final determination by the Supreme Court. This comparative study of the MOA-AD and the FAB is not intended to predict the outcome of the deliberations of the Court but to incisively inquire into the art or technique of drafting peace agreements and, consequently, appreciate the unique characteristics defining peace negotiations.

This study concludes with the thought that a peace agreement, no matter how well crafted, remains vulnerable to the constant test of public scrutiny at every stage of its implementation. Negotiating parties must remain steadfast in their resolve to see the logical conclusion to their agreement by maintaining the trust they have reposed upon each other at the negotiating table.

II. ON TITLE

MOA-AD FAB

“Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001”

“Framework Agreement on the Bangsamoro”

Commentary:

The FAB does not make any reference to Ancestral Domain. This is conceptually significant in that the MOA-AD was principally intended to be a preliminary document on consensus points preparatory to the adoption of a separate agreement on Governance and the final Comprehensive Compact. On the other hand, the FAB is intended to be an enumeration of principles and processes awaiting further negotiations which will incrementally generate Annexes that will form part of FAB.

It is readily apparent that the MOA-AD centered on the concept of ancestral domain of the Bangsamoro derived from both international law and municipal law instruments. At the international level, ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples are immediate legal sources. The Indigenous Peoples’ Rights Act of 1997, which draws from the two international instruments, provides the domestic legal framework on the concept of ancestral domain as provided by the 1987




Constitution.

III. ON OUTLINE OF THE MOA-AD AND FAB

MOA-AD FAB

Terms of Reference Concepts and Principles Territory Resources Governance

Establishment of the Bangsamoro Basic Law Powers Revenue Generation and Wealth-Sharing Territory Basic Rights Transition and Implementation Normalization MiscellaneousAnnex on Transitional Arrangements and Modalities Annex on Revenue Generation and Wealth Sharing

Commentary:

The outline of the FAB indicates clearly that the two negotiating panels had deferred discussions on some fundamental components of the FAB through the use of Annexes attached therein, e.g. Annex on Transitional Arrangements and Modalities and Annex on Revenue Generation and Wealth-Sharing. This may have been deliberately designed to avoid possible contentious details in the FAB which may make the FAB vulnerable to immediate constitutional challenge as suffered by the MOA-AD. A calibrated discussion of details of the FAB, such as, transition, implementation and normalization in various phases is more likely to delay any widespread reaction from unconvinced stakeholders on the process.

IV. ON TERMS OF REFERENCE

MOA-AD FAB

• Agreement for Cessation of Hostilities dated July 18, 1997

• General Framework of Agreement of Intent dated August 27, 1998

• Agreement on General Framework for Resumption of Peace Talks dated March 24, 2001

(no counterpart)

42 the ibp JourNal


• Tripoli Agreement dated June 22, 2001 between GRP and MILF

• Tripoli Agreement dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement dated September 2, 1996 between GRP and MNLF

• R.A. No. 6734, as amended by R.A. No. 9054 (ARMM Law)

• ILO Convention No. 169 • UN Declaration on the Rights of the

Indigenous Peoples • R.A. No. 8371 (IPRA) • U.N. Charter • UN Universal Declaration on Human

Rights • International Humanitarian Law (IHL) • Internationally recognized human

rights instruments • Compact rights entrenchment from

regime of dar-ul-mua’ hada (territory under compact)

• Compact rights entrenchment from regime of dar-ul-sulh (territory under peace agreement)

• Treaty as solemn agreement in writing that sets out understandings, obligations, and benefits for both parties

(no counterpart)

Commentary:

The FAB does not contain a set of Terms of Reference (TOR) at all. One can only surmise that after the decision of the Supreme Court on the MOA-AD, the present Government Peace Panel had taken extra precaution to avoid “internationalizing” the agreement by declaring, through the direct pronouncement of the President himself, that the FAB should be within the framework of the Constitution.

An examination of the TOR of the MOA-AD shows citations of ILO 169, UNDRIP, U.N. Charter, Universal Declaration of Human Rights, International Humanitarian Law and “internationally recognized human rights.” The Philippines is a party to all these international instruments and, therefore, the enumeration merely confirms adherence to our legal commitments. Besides, the doctrine of incorporation, as treated in the case of Tañada v. Angara, 272 SCRA 18 (1997), allows the applicability of generally accepted principles of international law, such as, human rights, to a domestic setting. The FAB may be measured in accordance with these norms.

Of immediate interest is the use of the terms “territory under compact” (regime of dar-ul-mua’hada) and “territory under peace agreement” (regime of dar-ul-sulh). One writer clarifies the meaning of these terms as follows:




“With all due respect, this is not a new tool in the promotion of foreign relations, especially in the area of security and peace. During the nascency of political Islam in the City State of Madinah the Prophet Muhammad (peace be upon him) established a commonwealth with non-Muslim tribes within its surrounding environs – the Jews in the oases of Maqna, Adhruh and Jarba to the south and the Christians of Aqaba, who were taken under the protection of the city state in consideration of a payment later called jizyah, which included land and head tax. For intents and purposes, these areas are territories under compact, each an associate state of Madinah,”18

Finally, the use of the term “treaty” in the MOA-AD raised some concerns as the North Cotabato decision directly addressed. Oppositors to the MOA-AD have argued that the term treaty may seem to impart the sovereign status of the other signatory to the MOA-AD. It is submitted, however, that the concept of treaty may be used in a domestic sense. In the case of Canada, treaty simply means an agreement between people.19 The Government of Canada and the courts understand treaties between the Crown and the indigenous peoples to be solemn agreements that set out promises, obligations and benefits for both parties.20 Treaty in the Canadian setting means a negotiated agreement between a First Nation and the Central Government that spells out the rights of the First Nation with respect to lands and resources over specified areas. The Treaty of Waitangi of the Maori people in the context of New Zealand is another example that may be cited.

The problem of legal characterization of agreements signed by States with non-state parties had been dealt with by Christine Bell in her authoritative work on the peace agreements.21

Bell identifies the legal problematique within the context of Vienna Convention on the Law of Treaties which defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever particular designation.”22 But Bell proceeded to expound on the difficulty of applying this test on certain groups, such as, armed opposition groups, indigenous peoples and sub-state regions and minorities if the traditional notion of “subjects of international law” would underlie these groups’ legal status and posits as follows:

“The difficulty is that deciding whether some or all the agreements signed by these non-state groups constitute binding international agreements is a tautological exercise. . . . Rosalyn Higgins has suggested that the notion of international participants in an international legal system conceived of as a ‘particular decision-making process; may be more conducive to understanding the current status of non-state actors than traditional

18 Nasser A. Marohomsalic, “The Framework Agreement on the Bangsamoro: Towards Hurdling the Constitutional Obstacle to Moro Self-Determination,” IBP Journal, Special Issue No. 2, December 2012, p. 16.

19 http://nwt-tro.inac-ainc.gc.ca/youthbuzz/gl_e.htm.

20 http://www.reconciliationmovement.org/resources/glossary.html.

21 Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria, Oxford University Press, Great Britain, 2008.

22 Id., p. 128, citing VCLT, May 23, 1969, 115 UNTS 331.

44 the ibp JourNal


subject-object dichotomies.”23

The Philippine Supreme Court in the MOA-AD judgment had strictly applied the

subject-object dichotomy by declaring the MOA-AD as a non-treaty instrument using the VCLT definition.

V. ON CONCEPTS AND PRINCIPLES

A. Bangsamoro

MOA-AD FAB

• Bangsamoros: Moros Indigenous Peoples

• Bangsamoro People: Natives or original inhabitants

of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest and their descendants

• I.5. Bangsamoro identity:Natives or original inhabitants of

Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood with right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and their descendants as Bangsamoro.

• “Freedom of choice” of the Indigenous Peoples

• I.5. “Freedom of choice” of other Indigenous Peoples.

• VI.3 Indigenous Peoples’ rights respected.

Commentary:

The differences in the description of Bangsamoro are as follows: (1) MOA-AD enumerated Moros and Indigenous Peoples as Bangsamoros; (2) FAB used the term Bangsamoro identity; (3) while both MOA-AD and FAB retained the identical reference to natives or original inhabitants in Mindanao and adjacent islands, FAB further extended coverage to descendants, “whether of mixed or full blood” with right to identify themselves as Bangsamoro or self-ascription; and, (4) FAB included “spouses and their descendants as Bangsamoro.”

It appears that the FAB derived the IPRA concept of self-ascription to identify the Bangsamoro people. Section 3(h) of IPRA states:

“(h) Indigenous Cultural Communities/Indigenous Peoples – refer to a

23 Id., pp. 129-135.




group of people or homogenous societies identified by self-ascription and ascription by others, x x x”

The “freedom of choice of Indigenous Peoples” while conceptually identical requires a closer examination when FAB used the term “other Indigenous Peoples.” The latter contemplates presumably the lumads of Mindanao currently settled within the ARMM and adjacent islands identified as part of the Bangsamoro as the New Autonomous Political Entity (NPE).

B. Ancestral Domain

MOA-AD FAB

• Ownership of homeland vested exclusively in them by virtue of prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.

• Ancestral domain not part of public domain native title inclusive of ancestral,

communal, customary lands, maritime, fluvial and alluvial domains and all natural resources.

• IPRA definition of ancestral domain and ancestral land.

• Right to self-governance derived historically under the “Suzerain authority of the sultanates and the Pat a Pangampong ku Ranaw.” Sultanates as states or Karajaan/

Kadatuan with elements of nation-state

“First Nation” Entered into treaties of amity and

commerce

• Respect for one’s identity and parity of esteem of everyone in the political community.

• Vested property rights recognized. • VI.2. Vested property rights recognized.

46 the ibp JourNal


Commentary:

1. Bangsamoro Homeland

The second provision under “Concepts and Principles” of the MOA-AD provides for the foundation of the Bangsamoro homeland, to wit:

“2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.”

The foundation of the Bangsamoro homeland to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations is synonymous to or legally approximates the declaration of the state policy under Republic Act (R.A.) No. 8371, otherwise known as the “The Indigenous Peoples’ Rights Act of 1997 (IPRA)”, of protecting the rights of indigenous peoples over the ancestral domain to ensure their economic, social and cultural well-being:

“Section 2. Declaration of State Policies. – The State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:

x x x

b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;

x x x.”

2. Native Title

The third paragraph under the heading “Concepts and Principles” of the MOA-AD makes use of the concept of native title as basis for acknowledging the rights of the Bangsamoro people over ancestral land and domain. Thus:

“3. Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of native




title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.”

Existing provisions of IPRA confirm the rights of indigenous peoples over ancestral domain, inclusive of ancestral land, based on native title. There is no reason why the Bangsamoro people could not invoke this, subject to the enjoyment by other indigenous peoples of vested rights within the territory of the Bangsamoro Juridical Entity (BJE).

Sections 3 (1) and 4 of the IPRA provide:

“Section 3. Definition of Terms. – For purposes of this Act, the following terms shall mean:

x x x

1) Native Title – refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs,24 have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest;

x x x

Section 4. Concept of Ancestral Lands/Domains. – Ancestral lands/domains shall include such concepts of territories which cover not only the physical environment but the total environment including the spiritual and cultural bonds to the area which the ICCs/IPs possess, occupy and use and to which they have claims of ownership.”

3. Ancestral Domain and Ancestral Land

The above-quoted provision under “Concepts and Principles” of the MOA-AD likewise made reference to the terms “ancestral domain” and “ancestral land”. The description of the terms “ancestral domain” and “ancestral land” is similar to the definitions of the same terms under the IPRA:


a) Ancestral Domains – Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising

24 Under the Definition of Terms of IPRA, “ICC/IP” means indigenous cultural communities/indigenous people.

48 the ibp JourNal


lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals, corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral land, forests, pasture, residential, agricultural and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

b) Ancestral Lands – Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots;

x x x.”

4. Right to Self-Governance

The Bangsamoro people’s right to self-governance is expressly provided in the MOA-AD, particularly under “Concepts and Principles”:

“4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. x x x.”

The right to self-governance is not a new and unique concept in the Philippine legal history. Under the IPRA, the legislature explicitly recognized the right to self-governance




of indigenous peoples:

“Section 13. Self-Governance. – The State recognizes the inherent right of ICCs/IPs to self-governance and self-determination and respects the integrity of their values, practices and institutions. Consequently, the State shall guarantee the right of ICCs/IPs to freely pursue their economic, social and cultural development.”

5. First Nation

The MOA-AD uses the term “First Nation” to describe the Bangsamoro people:

“Concepts and Principles

x x x

“4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.” (Underscoring supplied)

The use of the term “first nation” to describe the Bangsamoro people may be justified in the context of the use of the term in the case of Canada. “First nation,” referring to many aboriginal peoples and the assembly of First Nations, specifically pertains to the various governments of the first peoples of Canada. “First nation” is a term used to describe the Indians, tribes, and bands that are frequently utilized by the federal, provincial, and territorial governments in Canada. There are over six hundred (600) first nations across Canada with forty-six (46) first nations in Alberta. The main Alberta-based tribal communities include the Blackfoot, Tsu’uT’ina, Stoney, Plains Cree, Woodland Cree, Chipewyan, Beaver and Slavey. No inference of co-equal or parity status in international law may be drawn from this concept.25

6. Entrenchment of the Bangsamoro Homeland26

The second paragraph of provision no. 4 under “Concepts and Principles” of the MOA-AD provides:

“4. x x x. The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to

25 Assembly of First Nations and Aboriginal Studies Glossary; http://www.education.gov.ab.ca/FNMI/

fnmiPolicy//Glossary .asp.

26 See MOA-AD, Concepts and Principles, No. 4.

50 the ibp JourNal


establish a system of governance suitable and acceptable to them as a distinct dominant people. For this purpose, the treaty rights emanating from the principles of territorial treaty regime or territory under peace agreement as are consistent with internationally recognized humanitarian laws and human rights instruments shall entitle them to fully determine their future political status by popular consultation.” (Underscoring supplied)

The ultimate objective of entrenching the Bangsamoro homeland is analogous to the declared state policy under the IPRA. Thus:

“Section 2. Declaration of State Policies. – The State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:

a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity and development;

b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;

c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies;

d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall equally enjoy the full measure of human rights and freedoms without distinctions or discriminations;

e) The State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; and

f) The State recognizes its obligations to respond to the strong expression of the ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the direction of education, health, as well as other services of ICCs/IPs, in order to render such services more




responsive to the needs and desires of these communities.

Towards these ends, the State shall institute and establish the necessary mechanisms to enforce and guarantee the realization of these rights, taking into consideration their customs, traditions, values, beliefs, their rights to their ancestral domains.”

The use of the term “treaty rights” in the above-quoted provision of the MOA-AD may be justified in light of our comment on the meaning of treaty in the context of this peace agreement.

7. Authority and Jurisdiction Over Ancestral Domain and Ancestral Land

Under “Concepts and Principles,” the MOA-AD states that the BJE shall have authority and jurisdiction over ancestral domain and ancestral lands:

“6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.”

The grant of authority and jurisdiction over ancestral domains and ancestral land to the Bangsamoro people is justifiable as it is similar to the rights of indigenous peoples to their ancestral domains and ancestral lands under Sections 7 and 8 of the IPRA:

“Section 7. Rights to Ancestral Domains. – The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:

a. Rights of Ownership – The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;

b. Right to Develop Lands and Natural Resources – Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and

52 the ibp JourNal


implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;

c. Right to Stay in the Territories – The right to stay in the territory and not be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. Where relocation is considered necessary as an exceptional measure, such relocation shall take place only with the free and prior informed consent of the ICCs/IPs concerned and whenever possible, they shall be guaranteed the right to return to their ancestral domains, as soon as the grounds for relocation cease to exist. When such return is not possible, as determined by agreement or through appropriate procedures, ICCs/IPs shall be provided in all possible cases with lands of quality and legal status at least equal to that of the land previously occupied by them, suitable to provide for their present needs and future development. Persons thus relocated shall likewise be fully compensated for any resulting loss or injury;

d. Right in Case of Displacement – In case displacement occurs as a result of natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support system: Provided, that the displaced ICCs/IPs shall have the right to return to their abandoned lands until such time that the normalcy and safety of such lands shall be determined: Provided, further, That should their ancestral domain cease to exist and normalcy and safety of the previous settlements are not possible, displaced ICCs/IPs shall enjoy security of tenure over lands to which they have been resettled: Provided, furthermore, That basic services and livelihood shall be provided to them to ensure that their needs are adequately addressed:

e. Right to Regulate Entry of Migrants – Right to regulate the entry of migrant settlers and organizations into the domains;

f. Right to Safe and Clean Air and Water – For this purpose, the ICCs/IPs shall have access to integrated systems for the management of their inland waters and air space;




g. Right to Claim Parts of Reservations – The right to claim parts of the ancestral domains which have been reserved for various purposes, except those reserved and intended for common and public welfare and service; and

h. Right to Resolve Conflict – Right to resolve land conflicts in accordance with customary laws of the area where the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts of Justice whenever necessary.

Section 8. Rights to Ancestral Lands. – The right of ownership and possession of the ICCs/IPs, to their ancestral lands shall be recognized and protected.

a. Right to transfer land/property – Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

b. Right to Redemption – In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer.”

8. Vested Rights

The MOA-AD, under “Concepts and Principles”, provides:

“7. Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources.”

It is worth stressing the value of including a provision on the recognition of and respect for vested property rights in the MOA-AD similar to Section 56 of the IPRA, as follows:

“Section 56. Existing Property Rights Regimes. – Property rights within the ancestral domains already existing and/or vested upon effectivity of this Act, shall be recognized and respected.”

It is instructive to note that the FAB dispenses with the references to ancestral domain but retained the concept of vested property rights.

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C. Rights

MOA-AD FAB

• Protection of civil rights and religious liberties.

• V. Collective democratic rights of constituents in Bangsamoro shall be recognized in Bangsamoro Basic Law.

• VI.1. Basic Rights and Freedoms Life and inviolability of one’s

person and dignity; Freedom and expression of

religion and beliefs; Privacy; Freedom of speech; Express political opinion and

pursue democratically political aspiration;

Seek constitutional change by peaceful and legitimate means;

Women’s meaningful political participation, and protection from all forms of violence;

Freely choose one’s place of residence and the inviolability of the home;

Equal opportunity and non-discrimination in social and economic activity and public service, regardless of class, creed, disability, gender and ethnicity;

Establish cultural and religious associations;

Freedom from religious, ethnic and sectarian harassment; and

Redress of grievances and due process of law.

Commentary:

Unlike the MOA-AD, the FAB elaborated on the basic rights and freedoms of the constituents in the Bangsamoro. Renunciation of any form of violence is guaranteed through an express reference to constitutional change by peaceful and legitimate means. The FAB underscores the role of women in the political life of the Bangsamoro.

The classification of basic rights in FAB is indicative of the specific human rights concerns besetting the region subject of the agreement. However, this is not an exclusive enumeration but must be viewed in the whole spectrum of rights regime under the Philippine Constitution and other treaty-based human rights protection mechanisms. As it is, the FAB regime of rights is a special legal regime which will be interpreted in light of the specific social, political and economic milieu of the constituents in Bangsamoro.




D. Entity

MOA-AD FAB

• Bangsamoro Juridical Entity (BJE) as authority

• I.1. Bangsamoro is the New Autonomous Political Entity (NPE)

Commentary:

There is a marginal distinction between the contemplated entities under both agreements. It is clear, however, that both agreements intended to replace the existing Autonomous Region in Muslim Mindanao.

VI. ON TERRITORY

MOA-AD FAB

• “Bangsamoro homeland and historic territory” refers to: land mass maritime domain terrestrial domain fluvial domain alluvial domain aerial domain atmospheric space above

territory

• V.5. Territory refers to: land mass maritimeterrestrial fluvial and alluvial domains aerial domain atmospheric space above it

[note: Governance to be agreed upon in sections on wealth and power sharing]

• Mindanao territory – Sulu – Palawan

• I.3. Provinces, cities, municipalities, barangays and geographic areas within Bangsamoro as “constituent units” with authority to regulate its own responsibility. Privileges enjoyed by LGUs shall not be diminished unless modified pursuant to Bangsamoro local government code.

• Agreed Schedules (Categories)

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• Core of Bangsamoro Juridical Entity: ARMM Lanao del Norte Municipalities of:

– Baloi – Munai – Nunungan – Pantar – Tagoloan – Tangkal

[note: These voted for inclusion in the ARMM during 2001 plebiscite.]

• plebiscite within 12 months from signing of MOA-AD in covered areas as listed in Category A (Annex)

• 15 months from signing MOA-AD to finish Comprehensive Compact.

• V.1. Core of Bangsamoro Provinces ARMM Lanao del Norte Municipalities of:

– Baloi – Munai – Nunungan – Pantar – Tagoloan– Tangkal

[note: These voted for inclusion in the ARMM during 2001 plebiscite, inclusive of all other barangays in the municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, Midsayap]

Cotabato City Isabela City All other contiguous areas where

there is a resolution of the local government unit or a petition of at least 10 percent of the qualified voters in the area asking for their inclusion at least 2 months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.

V.2. International third party monitoring team to ensure credible process in V.1.

• Category B (Special Intervention Areas) – outside BJE but subject of special socio-economic and cultural affirmative action not earlier than 25 years from signing of Comprehensive Compact, pending conduct of plebiscite to determine the question of accession to the BJE.

• V.3. Option of contiguous areas and those outside core territory with substantial populations of Bangsamoro to be part of the territory upon petition of at least 10 percent of the residents and approved by a majority of qualified voters in a plebiscite.

• VI.4. Central Government to protect Bangsamoro people outside territory and undertake programs for their rehabilitation and development.

• Category B subject to further negotiations by the Parties.




• Internal Waters (15 kms. from coastline of BJE) BJE with jurisdiction over

management, conservation, development, protection, utilization and disposition of all natural resources living and non-living.

• V.4. Internal and territorial waters determined in Annexes on Wealth and Power Sharing.

• Territorial Waters (beyond BJE internal waters up to the Republic of the Philippines baselines south east and south west of mainland Mindanao) Joint jurisdiction, authority and

management over areas and all natural resources, living, and non-living

Details in a later agreement Boundaries of territorial waters

shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws.

In the southern and eastern part of the BJE demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines.

In the northwestern part, demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan.

In the western part of Palawan, demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines

Final demarcation determined by a joint technical body.

• V.4. Internal and territorial waters determined in Annexes on Wealth and Power Sharing.

• Sharing of Minerals on Territorial Waters in favor of BJE through production sharing or economic cooperation all potential source of energy petroleum in situ hydrocarbon natural gas other minerals deposits or fields

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• Allowed activities on Territorial Waters: exploration and utilization of

natural resources establishment and use of

artificial islands, installations and structures

Joint * marine scientific research Joint * protection and preservation of

environment conservation of living resources regulation of shipping and fishing

activitiesenforcement of police and safety

measures, including interdiction of the entry and use of the waters by criminal elements and hot pursuit of criminal elements.

Regulation and control of contraband and illegal entry of prohibited materials and substances, including smuggling

Others agreed upon mutually

[note: *Exploration and utilization of non-living resources and marine research and environmental protection shall be done jointly through production-sharing or joint development agreements.]

• Joint Commission for implementing joint management of resources 1 representative each consensus decision-making recommendatory

• BJE “associative governance” to cover: those under proclamation

for agricultural and human settlements intended for Bangsamoro people

all alienable and disposable lands pasture lands timberlands




Commentary:

1. Composition of the Bangsamoro territory

The first paragraph of the heading “Territory” of the MOA-AD states:

“1. The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. However, delimitations are contained in the agreed Schedules (Categories).”

It is important to point out that the quoted provision on Territory in the MOA-AD should be viewed as legally limited by the constitutional definition of the National Territory as follows:

“ARTICLE I

NATIONAL TERRITORY

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

The FAB similarly refers to the same scope of the territory found in the MOA-AD. However, the FAB has modified the process of accommodating Category B (Special Intervention Areas) of the MOA-AD by committing Central Government to undertake rehabilitation and development as initially intended in the MOA-AD.

2. Plebiscite

The conduct of a plebiscite is stipulated under Territory 2 (d) of the MOA-AD, as follows:

2. Toward this end, the Parties entered into the following stipulations:

x x x

d. Without derogating from the requirements of prior agreements, the government stipulates to conduct and deliver, within six (6) months following the signing of the Memorandum of Agreement on the Ancestral Domain, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein

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(the “Annex”). The Annex constitutes an integral part of this framework agreement.”

x x x.”

The conduct of plebiscite under the MOA-AD is analogous to the provisions of ARMM Law, to wit:

“Section 1. Expanded Autonomous Region. – (1) The Autonomous Region in Muslim Mindanao which, under the provisions of Republic Act No. 6734, the Organic Act for the Autonomous Region in Muslim Mindanao, is composed of the four provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi, is hereby expanded to include the provinces and cities, enumerated hereunder, which vote favorably to be included in the expanded area of the autonomous region and for other purposes, in a plebiscite called for that purpose in accordance with Sec. 18, Article X of the Constitution. The new area of autonomy shall then be determined by the provinces and cities that will vote/choose to join the said autonomy. It is understood that Congress may by law which shall be consistent with the Constitution and in accordance with the provisions of Republic Act No. 7160, the Local Government Code of 1991, provide that clusters of contiguous-Muslim-dominated municipalities voting in favor of autonomy be merged and constituted into a new province(s) which shall become part of the new Autonomous Region.

(2) Plebiscite Coverage. The plebiscite shall be conducted in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, Sarangani, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, Zamboanga del Sur and the newly created Province of Zamboanga Sibugay, and (b) in the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Kidapawan, Marawi, Pagadian, Puerto Princesa, Digos, Koronadal, Tacurong and Zamboanga.”

Both MOA-AD and FAB comply with the constitutional requirement of a plebiscite

in areas subject of the core territory.

3. Territorial Waters

The MOA-AD expressly includes a provision on territorial waters under paragraph 2 (g) of the heading “Territory”, to wit:

“2. Toward this end, the Parties entered into the following stipulations:

g. Territorial Waters:

(1) The territorial waters of the BJE shall stretch beyond the




BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and [of] all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.

(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines.

The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.”

The provision on territorial waters of the MOA-AD may be justified under Article

1 of the Constitution on National Territory, the concept of municipal waters under Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and the concept of waters within ancestral lands under IPRA. It is submitted that the grant of territorial waters to the BJE may be allowed considering that it is akin to the grant of municipal waters to local government units and rights over waters within ancestral lands of the indigenous peoples, which are culled out from the internal waters of the Philippines.

For appropriate guidance, the following provisions of the Constitution and other existing laws are instructive:

Constitution

Article 1-National Territory

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago,

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regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” Section 2, Article XII – National Economy and Patrimony “Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large- scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.”

Local Government Code

“Section 131. Definition of Terms. – When used in this Title, the term:

x x x

(r) ‘Municipal Waters’ includes not only streams, lakes, and tidal waters




within the municipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and fifteen (15) kilometers from it. Where two (2) municipalities are so situated on the opposite shores that there is less than fifteen (15) kilometers of marine waters between them, the third line shall be equally distant from opposite shores of the respective municipalities;”

x x x.”

ARMM Law

Article XII – Economy and Patrimony

“Section 24. Aquatic and Fisheries Code. – The Regional Assembly may enact an aquatic and fisheries code which shall enhance, develop, conserve, and protect marine and aquatic resources, and shall protect the rights of subsistence fisherfolk to the preferential use of communal marine and fishing resources, including seaweeds. This protection shall extend to offshore fishing grounds, up to and including all waters fifteen (15) kilometers from the coastline of the autonomous region but within the territorial waters of the Republic, regardless of depth and the seabed and the subsoil that are included between two (2) lines drawn perpendicular to the general coastline from points where the boundary lines of the autonomous region touch the sea at low tide and a third line parallel to the general coastline.

The provinces and cities within the autonomous region shall have priority rights to the utilization, development, conservation, and protection of the aforementioned offshore fishing grounds.

The provinces and cities concerned shall provide support to subsistence fisherfolk through appropriate technology and research, adequate financial, production, marketing assistance, and other services.

The Regional Assembly shall enact priority legislation to ensure that fish-workers shall receive a just share from their labor in the utilization, production, and development of marine and fishing resources.

The Regional Assembly shall enact priority legislation to develop science, technology, and other disciplines for the protection and maintenance of aquatic and marine ecology.”

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IPRA


(a) Ancestral Domains – Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/lPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/lPs, themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals, corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral land, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which their traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

x x x.

(o) Sustainable Traditional Resource Rights – refer to the rights of ICCs/IPs to sustainably use, manage, protect and conserve a) land, air, water, and minerals; b) plants, animals and other organisms; c) collecting, fishing and hunting grounds; d) sacred sites; and e) other areas of economic, ceremonial and aesthetic value in accordance with their indigenous knowledge, beliefs, systems and practices; and

x x x.”

Finally, the creation of a Joint Commission under the MOA-AD does not mean an abdication of sovereign rights and functions over the maritime areas.

The FAB deferred the details on the internal and territorial waters in the Annexes on Wealth and Power-Sharing.

4. Associative Character

The MOA-AD uses the term “associative governance,” as follows:




“Territory

x x x

3. From and after entrenchment of compact rights over the Bangsamoro homeland and the territorial jurisdictions for associative governance shall likewise embrace those under proclamation for agricultural and human settlements intended for the Bangsamoro people, all alienable and disposable lands, pasture lands, timberlands together with all existing civil and military reservations, parks, old growth or natural forests declared as forest reserves, watersheds, mangroves, fishponds, wetlands, marshes, inland bodies of water; and all bays, straits and channels found within the BJE.”

An associative character of governance in the MOA-AD is merely descriptive of a relationship between two (2) entities, in this case between the Government of the Republic of the Philippines and the Bangsamoro people. It may mean the two institutions are related to each other but not of equal status.

5. Formation or Constitution of Political Subdivisions

Paragraph 4 under “Territory” of the MOA-AD states:

“4. All territorial and geographic areas in Mindanao and its adjacent islands including Palawan, and the Sulu archipelago that have been declared recognized, and/or delineated as ancestral domain and ancestral land of the Bangsamoro people as their geographic areas, inclusive of settlements and reservations, may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions subject to the principles of equality of peoples and mutual respect and to the protection of civil, political, economic, and cultural rights in their respective jurisdictions.” (Underscoring supplied)

The right of the Bangsamoro people to form or constitute political subdivisions is analogous to the right to create, divide or abolish provinces, cities, municipalities or barangay under R.A. No. 6734, as amended by R.A. No. 9054, otherwise known as the Organic Act for the Autonomous Region in Muslim Mindanao (ARMM Law).

Section 19, Article VI of the ARMM Law provides:

“Section 19. Creation, Division or Abolition of Provinces, Cities, Municipalities or Barangay. – The Regional Assembly may create, divide, merge, abolish, or substantially alter boundaries of provinces, cities, municipalities or barangay in accordance with the criteria laid down by Republic Act No. 7160, the Local Government Code of 1991, subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected. The Regional Assembly may prescribe standards

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lower than those mandated by Republic Act No. 7160, the Local Government Code of 1991, in the creation, division, merger, abolition, or alteration of the boundaries of provinces, cities, municipalities, or barangay. Provinces, cities, municipalities, or barangay created, divided, merged, or whose boundaries are altered without observing the standards prescribed by Republic Act No. 7160, the Local Government Code of 1991, shall not be entitled to any share of the taxes that are allotted to the local governments units under the provisions of the Code.

The financial requirements of the provinces, cities, municipalities, or barangay so created, divided, or merged shall be provided by the Regional Assembly out of the general funds of the Regional Government. The holding of a plebiscite to determine the will of the majority of the voters of the areas affected by the creation, division, merger, or whose boundaries are being altered as required by Republic Act No. 7160, the Local Government Code of 1991, shall, however, be observed.

The Regional Assembly may also change the names of local government units, public places and institutions, and declare regional holidays.”

6. Joint Determination of Geographic Areas

The MOA-AD states that the Parties have agreed to the joint determination of the subject geographic areas, specifically Paragraph No. 5 under “Territory” thereof:

“5. For purposes of territorial delimitation, the Parties have agreed to the joint determination of geographic areas encompassed within the territorial borders of the Bangsamoro homeland and territory based on the technical maps and data submitted by both sides as provided above.”

The foregoing clause is defensible on the basis of Article 14 of ILO 169. Thus:

“2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.”

VII. ON RESOURCES

MOA-AD FAB

• BJE authority over natural resourcesland usedevelopmentconservationdisposition

• IV.2. Bangsamoro Basic Law – power to create own sources of revenue and to levy taxes, fees, and charges, including power to determine tax bases and tax rates.




• BJE may enter into joint development of natural resources designed as commons or shaped resources.

• IV.8. Intergovernmental body to be created by Bangsamoro legislative body to ensure harmonization of environmental and development plans composed of representatives from Bangsamoro and Central Government.

• Bangsamoro People “appropriate juridical entity” authority over natural resources within its territorial jurisdictiondevelop ancestral domainprotect environmentdevelop natural resources in

ancestral domain or enter into joint development on strategic minerals designated as commons or shared resources

revoke or grant concessions, timber license, contracts for utilization of natural resources designated as commons, mechanisms for economic cooperation with respect to strategic minerals

enact agrarian laws over ancestral land

• BJE and Central Government wealth-sharingmutually agreed percentage ratio

in favor of the BJE from revenues derived from development of any resources for the benefit of the Bangsamoro people.

• IV.4. Bangsamoro to have a just and equitable share in revenues for exploration, development or utilization of natural resources in all areas within jurisdiction of Bangsamoro in accordance with formula agreed upon by the Parties.

• IV. 6. See Annex on Revenue Generation and Wealth Sharing, July 13, 2013.

• BJE authority to enter into trade relations with foreign countries and to open trade missions.

• IV.3. Bangsamoro authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from the Central Government, including authority to contract loans from domestic and foreign lending institutions (except those requiring sovereign guaranty, which would require the approval of the Central Government).

• Central Government in charge of external defense.

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• Participation in international meetings, Philippine official missions engaged in negotiation of border agreements for environmental protection, equitable sharing of revenues in the areas of sea and bodies of water adjacent to or between islands forming part of the ancestral domain.

• Strategic resources operations subject to Central Government direction in times of national emergency.

• BJE share 75:25 in favor of BJE from total production.

• Annex on Revenue Generation and Wealth Sharing

• BJE share 75:25 in favor of BJE from royalties, bonuses, taxes, charges, custom duties, imposts on natural resources and mineral resources.

• Reparation to Bangsamoro people for unjust dispossession of territorial and proprietary rights.

• VI.2. Legitimate grievances arising from unjust dispossession of territorial and proprietary rights subject of reparation

• VIII.2. Program on transitional justice.

• Proclamations over natural forests and watersheds to remain until modified by BJE.

• Land tenure instruments issues (e.g. MPSA, IFMA, concessions) by Government and ARMM to remain unless modified by BJE.

• Establishment of 5-member BJE economic-export mission for the conduct of BJE’s associative parallel relationships.

• IV.7. Intergovernmental fiscal policy board composed of representatives from Bangsamoro and Central Government to address revenue imbalances and fluctuations in regional financial needs and revenue-raising capacity. Once full fiscal autonomy is achieved by Bangsamoro, Central Government representative may no longer be necessary.

• Third Party Facilitator to invite international development agencies to appoint 2 members and designate 1 as Chairperson for the Mission; BJE to designate 1 Co-Chairman while 2 members designated by Central Government and BJE.




• IV.5. Bangsamoro auditing body to be created without prejudice to power of national COA over accounts of government instrumentality, including GOCCs.

Commentary:

1. Authority Over Natural Resources

Paragraph 1 under “Resources” of the MOA-AD provides, among others, that “(t)he Bangsamoro juridical entity is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland.”

Furthermore, the MOA-AD, as provided in its Paragraph 2 under “Resources”, states that “The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction: x x x.”

This provision is consistent with the constitutional framework for allowing Autonomous Regions to legislate on ancestral domain and natural resources, particularly Section 20, Article X of the 1987 Philippine Constitution:

“Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion

of the general welfare of the people of the region.”(Underscoring supplied)

The foregoing constitutional mandate is reflected in Section 7, Article III of the ARMM Law:

“Section 8. Regional Government Authority Over Natural Resources. – Subject to the provisions of the Constitution and this Organic Act, the Regional Government shall have the authority, power and right to

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explore, develop and utilize the natural resources including surface and sub-surface rights, in-land and coastal waters, and renewable and non-renewable resources in the autonomous region. Muslims and the other indigenous cultural communities shall, however, have priority rights to explore, develop and utilize the said resources in the areas designated as parts of their respective ancestral domains.”

Similarly, Section 57 of IPRA clearly confers upon the indigenous peoples priority rights in the harvesting, extraction, development or extraction of natural resources within their ancestral domains. Thus:

“Section 57. Natural Resources within Ancestral Domains. – The ICCs/IPs shall have the priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the all extractions shall be used to facilitate the development and improvement of the ancestral domains.”

The FAB again deferred discussion on details on natural resources in the Annex on Revenue Generation and Wealth Sharing. However, the concept of a just and equitable share is the same as the MOA-AD. Compared to the MOA-AD, the FAB does not refer to trade relations with foreign countries but recognizes Bangsamoro authority to receive grants and donations even from foreign sources, including authority to contract loans from foreign lending institutions, except those requiring sovereign guaranty which would require approval of the Central Government.

2. Right to Develop and Utilize Natural Resources

Paragraph 1 (a) under “Resources” of the Agreement states:

“1. The Bangsamoro Juridical Entity is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the Bangsamoro Juridical Entity, the land tenure and use of such resources and wealth must reinforce their economic self -sufficiency. Among the purposes or measures to make progress more rapid are:

a. Entry into joint development, utilization, and exploitation of natural resources designed as commons or shared resources, which is tied up to the full setting of appropriate institution, particularly affecting strategic minerals”;




This clause is justifiable on the basis on the right over ancestral domain to develop land and natural resources under Section 7 (b) of IPRA:

“Section 7. Rights to Ancestral Domain. – The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:

x x x

b. Right to Develop Lands and Natural Resources. Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used: to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights; x x x.” (Underscoring supplied)

3. Right to Revoke or Grant Forest Concessions, Timber License, Contracts or Agreements

Paragraph 2 (d) under “Resources” of the MOA-AD, provides that the Bangsamoro people shall, as regards their authority or jurisdiction over the natural resources within its territorial jurisdiction, have the right:

“d. To revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources designated as commons or shared resources, mechanisms for economic cooperation with respect to strategic minerals, falling within the territorial jurisdiction of the Bangsamoro Juridical Entity; x x x.”

The foregoing provision is analogous to Section 5, Article X of the ARMM Law on the validity of similar agreements entered into by the Government of the Republic of the Philippines:

“Section 5. Ecological Balance. – x x x. Forest concessions, timber licenses, contracts, or agreements of any kind or nature whatsoever

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granted by the central government or national government or by the Regional Government as of the date of the approval of this Organic Act, are hereby cancelled, nullified and voided, and shall not be renewed until thirty (30) years after the approval of this Organic Act. x x x.”

4. Right to Enact Agrarian Law

The MOA-AD, particularly under the “Resources” heading, likewise states that the Bangsamoro people shall have the power to enact agrarian laws:

“2. The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction:

x x x

e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory within the competence of the Bangsamoro juridical entity; x x x.”

This right is clearly granted to the autonomous regions, under Section 8, Article X of the ARMM Law, as follows:

“Section 8. Regional Land Reform. – Subject to the provisions of the Constitution, the Regional Assembly may enact an agrarian reform law suitable to the special circumstances prevailing in the autonomous region.”

5. Strategic Minerals

The wording on the right over strategic minerals provided in paragraph 5 of the heading “Resources” of the MOA-AD reads:

“5. Jurisdiction and control over, and the right of exploring for, exploiting, producing and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore, is vested in the Bangsamoro juridical entity as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.




6. Wealth-Sharing

Paragraph 3 under “Resources” of the MOA-AD provides:

“3. The Bangsamoro Juridical Entity, and the Central Government agree on wealth-sharing based on a mutually agreed percentage ratio in favor of the Bangsamoro juridical entity through an economic cooperation agreement or arrangement over the income and revenues that are derived from the exploration, exploitation, use and development of any resources for the benefit of the Bangsamoro people.”

This is consistent with the principle of jura regalia or regalian doctrine wherein the National Government does not concede ownership of strategic minerals and other potential sources of energy. However, the principle of “sharing” may be legally justified with the BJE as in the provisions on local autonomy and the autonomous regions.

7. Profit Split

The MOA-AD provides for profit sharing between the National Government and the BJE in favor of the latter, specifically:

“Resources

x x x

6. The Bangsamoro government-take or profit split from total production shall be shared with the Central Government on a percentage ratio of 75:25 in favor of the Bangsamoro juridical entity. All royalties, bonuses, taxes, charges, custom duties or imposts on natural resources and mineral resources shall be shared by the Parties on a percentage ratio of 75:25 in favor of the Bangsamoro juridical entity.”

The exact sharing ratio with the government on strategic minerals is not found in any law (i.e., ARMM Law, Local Government Code, Mining Act, People’s Small-scale Mining Act.). It may be argued, however that the 75:25 profit split in terms of total production, and 75:25 profit split as regards royalties, bonuses, taxes, etc. on natural resources, both in favor of the BJE, are justifiable to assist the BJE in their own economic development.

8. Unjust Dispossession

Paragraph 7 under “Resources” of the MOA-AD acknowledges the right of the BJE against unjust dispossession of territorial and proprietary rights:

“7. The legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, the GRP shall take effective measures

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or adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties.”

The foregoing right is analogous to the indigenous peoples’ right to stay in their territories. Thus, under Section 7(c) of the IPRA:

“Section 7. Rights to Ancestral Domains. – The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:

x x x

c. Right to Stay in the Territories – The right to stay in the territory and not be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. Where relocation is considered necessary as an exceptional measure, such relocation shall take place only with the free and prior informed consent of the ICCs/IPs concerned and whenever possible, they shall be guaranteed the right to return to their ancestral domains, as soon as the grounds for relocation cease to exist. When such return is not possible, as determined by agreement or through appropriate procedures, ICCs/IPs shall be provided in all possible cases with lands of quality and legal status at least equal to that of the land previously occupied by them, suitable to provide for their present needs and future development. Persons thus relocated shall likewise be fully compensated for any resulting loss or injury;

x x x.”

The FAB similarly recognizes the concept of reparation for legitimate grievances arising from unjust dispossession of territorial and proprietary rights of the Bangsamoro and aims to implement a program on transitional justice.

VIII. ON GOVERNANCE

MOA-AD FAB

• Consultations with Bangsamoro people to resolve conflict




• Secure identity and posterity

• Protect property rights

• System of governance suitable to a distinct dominant people with freedom of choice of Indigenous Peoples

• II.3. Basic Law reflects Bangsamoro life and meets internationally accepted standards.

• Multinational third-party to monitor implementation of Comprehensive Compact

• “Associative relationship”Shared authority and

responsibilityStructure defined in

Comprehensive CompactPeriod of transition in

Comprehensive Compact to specify relationship between Central Government and the BJE

• I.4. “Asymmetric relationship”

• III.1. Central Government with reserved powers; Bangsamoro with exclusive powers; shared concurrent powers; (Annex on Power-Sharing).

• “Entrenchment” is the creation of a process of institution building to exercise shared authority over territory and defined functions of associative character.

• Deferral of modalities of governance to settle outstanding political issues after MOA-AD signing.

• Basic Law of BJE to contain institutions for governance in a Comprehensive Compact.

• II. “Basic Law” ... consistent with all agreements of the Parties.

• II.4. Formulated by Bangsamoro and ratified within its territory.

• Compliance with associative arrangements upon entry into force of Comprehensive Compact.

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• Mechanisms for implementation of MOA-AD to be spelt out in Comprehensive Compact.

“Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.”

• VII. Transition and ImplementationAnnex on Transitional

Arrangements and Modalities (VII.2.) February 27, 2013

E.O. to create Transition Commission (TC) with Congressional Resolutions (VII.3.)

TC to draft Basic Law (VII.4.a.) and certified urgent (VII.7.)

TC “to work on proposals to amend Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements” (VII.4.b.)

TC to coordinate development agreements (VII.4.c.)

7 members selected by GPH and 8, including Chairman, selected by MILF (VII.5.)

Basic Law to create Bangsamoro Transition Authority (BTA) rendering ARMM abolished (VII.8.)

BTA during interim period to give rise to ministerial form and Cabinet system (VII.9.)

BTA replaced in 2016 by Bangsamoro Government upon assumption of Legislative Assembly (VII.10.)

Third party monitor composed of international bodies (VII.11–12.)

• Institutions to be built by BJE:civil serviceelectoralfinancial and banking educationlegislationlegaleconomicpolice and internal security forcejudicial systemcorrectional institutions

• I.2. Ministerial form under an electoral system contained in the Bangsamoro Basic Law to be implemented through legislation enacted by the Bangsamoro Government and correlated with national laws.

• III.2. Central Government powers:defense and external securityforeign policycommon market and global tradecoinage and monetary policycitizenship and naturalizationpostal service




• Details of agreed consensus points on Governance to be discussed in negotiations of the Comprehensive Compact.

• III.3. Bangsamoro powersShari’ah justice system – applies

only to Muslims

• III.4. Bangsamoro Basic Law may provide for the power of the Bangsamoro Government to accredit halal-certifying bodies in the Bangsamoro.

• III.5. Bangsamoro Basic Law to provide justice system; including improving local civil courts and ADR.

• III.6. Recognition of indigenous processes as ADR.

• VIII. NormalizationPolice system (VIII.3.)Independent Commission (VIII.4.)Decommissioning of MILF forces

(VIII.5.)Ceasefire monitoring until

decommissioning completed (VIII.6.)

Parties to work on reduction and control of firearms and disbandment of private arms and armed groups (VIII.8.)

Timetable in Annex on Normalization (VIII.9.)

Trust Fund (VIII.11.)

• IX.1. No unilateral implementation

• IX.2. Complete Comprehensive Compact by end of 2012.

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Commentary:

1. Basic Law in Relation to Comprehensive Compact

The MOA-AD and the FAB both have the concept of a Basic Law which elaborates the institutions of governance.

Unlike the FAB, the MOA-AD specifically reserved the Governance strand in a standalone agreement to distinguish the scope of the MOA-AD.

The FAB elaborated on the modalities of the transition period, such as, the creation of a Transition Commission to draft a Basic Law which will form part of a final Comprehensive Compact.

2. Relationship between Central Government and New Autonomous Political Entity

Both MOA-AD and the FAB preferred a relationship between the Central Government and the New Autonomous Political Entity envisioned by the Bangsamoro people.

The MOA-AD described the relationship as “associative” while the FAB characterized it as “asymmetric” wherein the Central Government has reserved powers with the Bangsamoro exercising exclusive powers and shared concurrent powers to be enjoyed by both.

In the North Cotabato case, the Supreme Court struck down the MOA-AD concept of an associative relationship. The FAB deferred the contents of the asymmetric character of the relationship with the Central Government in another Annex on Power-Sharing.

3. Changes to Existing Legal Framework

Of particular interest is the following provision in the MOA-AD which was also struck down by the Supreme Court as unconstitutional:

“7. The parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the “Comprehensive Compact.”

It is instructive to compare the tenor of the quoted MOA-AD provision with the following text of the FAB under VII.4.b:

“VII. Transition and Implementation




x x x

4. The functions of the Transition Commission are as follows:

x x x

b. To work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the parties whenever necessary without derogating from any prior peace agreements;”

In the North Cotabato case, the Supreme Court observed that the MOA-AD provision in question was an expression of a legal commitment by the GRP Negotiating Panel in grave abuse of discretion amounting to lack or excess of jurisdiction notwithstanding the position taken by the Panel that this was consistent with the mandate of the Panel under E.O. No. 3 of 2001 that the comprehensive peace process may require administrative action, new legislation, or even constitutional amendments.

IX. CONCLUSION

The FAB is incrementally being enfleshed with the full spectrum of a more comprehensive comparative analysis to unfold in the next few months of intense negotiations between the two panels.

At this stage, it may be the better part of wisdom and the exercise of utmost prudence to observe the process rather than to telegraph an immediate judgment on the validity of the contents of the FAB. A definitive discourse on the FAB and the Annexes will be appropriate at a more opportune moment.

Meanwhile, one may tentatively view the FAB as reminiscent of the spirit of the MOA-AD as this initial phase of the study has constantly depicted.

(Table Footnotes)

1 North Korea and South Korea Peace Agreement, available at http://warsigns.isins.com/2007/10/04/north-korea-and-south-korea-peaceagreement/(last accessed Sep. 3, 2008).

2 Id.3 Id.4 Id.5 British Broadcasting Corporation, Aceh Rebels Sign Peace Agreement, available

at http://news.bbc.co.uk/1/hi/world/asia-pacific/4151980.stm (last accessed Sep. 3, 2008).

6 Id.

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7 Id.8 Id.9 Id.10 Revolutionary Communist Party, USA, Nepal Maoists and Government Sign

Peace Agreement, available at http://rwor.org/a/072/nepalagree-en.html (last accessed Sep. 3, 2008).

11 Id.12 Id.13 Id.

••• •••


SB No. 2408: The Proposed Bangsamoro Basic LawStatemeNt oN Sb No. 2408

the propoSeD baNgSamoro baSic law (propoSeD bbl)

Florentino P. Feliciano*

1. The Proposed Bangsamoro Basic Law is not just a piece of proposed legislation by the Congress of the Philippines. This Proposed BBL also constitutes the so-called “Comprehensive Agreement on the Bangsamoro” between the Government of the Republic of the Philippines (GROP) and the Moro Islamic Liberation Front (MILF). It purports, in other words, to be the result of prolonged negotiations for peace be-tween the sovereign ROP and the rebel group MILF, between two (2) juridical en-tities, each presumably claiming the capacity to enter into agreements which have some binding effect under some if unnamed system of law.

2. Whether viewed as either a bill or daft legislation submitted to our Congress, or the consequence of an agreement-making process, it must be clear to everyone that the Proposed BBL must be consistent with the provisions of the 1987 Constitution of the Philippines. Otherwise, the Proposed BBL cannot have any legal effectivity or conse-quence as a matter of Philippine law.

3. I wish to refer, at this point, to the Statement on SB No. 2408 made by Mr. J.V.V. Mendoza (ret.). In the interests of economy of time and effort, I agree with the prin-cipal points made by J. Mendoza in his statement and will hence avoid elaborating on those points, although making a few comments on them.

a. In respect of the term “territory” as used in both SB No. 2408 and in the Comprehensive Agreement on the Bangsamoro (CAB), it may be noted that one of the essential elements of a state in the international law is the “territory” of the entity seeking recognition as an inde-pendent and sovereign state under public international law. Under Philippine Administrative law, provinces, municipalities, municipal districts, etc. do have defined territories as designating the earthly limits of exercises of their legislative and law enforcement authori-ties. The concerns many have over Bangsamoro territory as indicat-ing demands for a separate state have, to some extent, been eased by addition of the sentence “The Bangsamoro Territory shall remain a part of the Philippines.” But this statement has to be given forceful meaning; it is cannot be treated as a mere window dressing measure.

b. The important remaining concern I have is based on Art. III, Sec. 2(d) of the Proposed BBL – which provisions expressly provides for expansion of Bangsamoro territory by a simple resolution of the lo-cal government unit or a petition of at least 10% of the voters of

* Associate Justice (Ret.), Supreme Court of the Philippines.

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a contiguous area asking for inclusion in the territory of Bangsam-oro, plus a “popular ratification” within such area of the BBL. In other words, no historical or anthropological basis need be shown justifying absorption in the territory of the Bangsamoro. Further, the structures and processes set up by the existing administrative law of the ROP may be modified or swept away by acts of the Bangsamoro Government. This is not something that can be authorized to be done by statute enacted by the Philippine Congress.

c. The distribution of governmental powers and functions between the GROP and the Bangsamoro Government needs particular attention.

GROP – will have “reserved powers” – e.g., defense and external security; foreign policy; citizenship and naturaliza-tion; economic agreements with third countries; immigra-tion, etc.

Bangsamoro Government – will have “exclusive powers” – e.g., agriculture, livestock, food security; loans with foreign corps or countries; trade, industry, foreign investment, labor regulation, free ports; banking system; education; public utilities operations in Bangsamoro; ancestral domain and natural resources; land management and distribution; sharia courts and justice system; local administration and munici-pal corporations; education, etc. Please note that those ex-clusive BM powers are all reductions or diminutions of the general sovereign authority of the GROP over the so called Bangsamoro territory and the population thereof.

GROP + Bangsamoro Government – concurrent, e.g. pri-vate schools, public utilities, etc.Note that the GROP will have more limited functions and duties than the Bangsamoro Government touching the daily lives of people. Consitutional amendments will be required to put the distribution of powers envisaged by the Proposed BBL into effect.

••• •••


A Struggle for Peace Under the Regime of the Constitutiona Struggle for peace uNDer the regime of the coNStitutioN*

Pablo P. Garcia**

i. the firSt formiDable aND iNSurmouNtable obStacle – the total abSeNce iN the coNStitutioN of coNgreSSioNal authority aND competeNce to create the New baNgSomoro political eNtity.

1. The Constitution has authorized and recognized only Five (5) Territorial and Political Subdivisions or Local Government Units of the Republic of the Philippines, namely: (a) provinces, (b) cities, (c) municipalities, (d) barangays and (e) autonomous regions.

Section 1, Article X- LOCAL GOVERNMENTS of the Constitution provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided {Emphasis supplied].

It will be noted that nowhere in Section 1 or in the other Sections of Article X – referred to in “as hereinafter provided” is there any mention of any other political entity, much less, the Bangsamoro, which may be authorized and recorgnized as a component Local Government Unit (LGU) of the Republic of the Philippines.

To carry out the Constitution’s mandate to create the autonomous regions in Muslim Mindanao and in the Cordilleras, the Constitution tasked the first Congress elected under the 1987 Constitution to pass the Organic Acts for the two (2) autonomous regions, within eighteen (18) months from the organization of both Houses of Congress. Thus,

Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the Organic Acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

The first Congress elected under the 1987 Constitution, which was actually the 8th Congress as reckoned from Philippine Independence in 1946, served from 1987 to 1992. I was privileged to be a Member of the 8th Congress.

It should be noted also that the Constitution is very specific: only “the

* Delivered as a statement before the Senate Joint Committees on Constitutional Amendment and Codification of Laws, Peace and Reconciliation and Local Governments on February 23, 2015; title supplied by Editors.

** Former Cebu Governor and Congressman

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first Congress” (or the 8th Congress) and not any other Congress is empowered to pass the Organic Acts. And it should be noted further that what are to be passed are “Organic Acts” and not “laws” no matter how “basic”.

2. Within the time frame of eighteen (18) months from its organization, set by the Constitution, the 8th Congress passed R.A. No. 6734 or the Organic Act for the Autonomous Region in Muslim Mindanao and R.A. No. 6766, or the Organic Act for Autonomous Region in the Cordilleras.

3. The question that has been asked from time to time is: After the passage or enactment of the two (2) Organic Acts, as mandated by the Constitution, for the creation of the autonomous regions in Muslim Mindanao and in the Cordilleras, may the Congress create other autonomous regions in other parts of our country? For example: the Autonomous Region for the Ilocos, Bicol, etc.

The resounding answer is NO.

In the first place, the Constitution has authorized or empowered only the first Congress elected after the adoption of the Constitution or the 8th Congress to pass the Organic Acts for the creation of the autonomous regions. Secondly, the language of the Constitution is clear, “there shall be created autonomous regions in Muslim Mindanao and in the Cordilleras (Section 15, Article X).” Thirdly, from the Records of the Constitutional Commission that drafted the Constitution, the intent of the framers is evident.

Father Joaquin Bernas, an acknowledged authority on Constitutional Law and Member of the Constitutional Commission that drafted the 1987 Constitution says:

Thus, only the Cordilleras in the extreme North and Muslim Mindanao in the South are given the distinctive privilege of forming autonomous regions. To the question whether Congress could created autonomous regions other than for Mindanao and the Cordilleras, the clear and categorical answer was that any other area which wishes to become an autonomous region should seek a constitutional amendment.(Bernas, Constitution of the Republic of the Philippines, Vol. II, p.. 388-389; emphasis supplied).

The opinion of Father Bernas is borne out by the records of the Constitutional Commission. Thus, we find the following:

FR. BERNAS. Before we vote, may I ask one clarificatory question.

THE PRESIDENT. Commissioner Bernas may proceed.


A Struggle for Peace Under the Regime of the Constitution

FR. BERNAS. Is it then the sense of the Committee that besides recognizing the Cordilleras and Muslim Mindanao as autonomous regions, Congress is prohibited from creating other autonomous regions?

MR. NOLLEDO. Yes, Madam President. I said that we are adopting the Rodrigo observation during the caucus that if there should be other regions aside from Muslim Mindanao and the Cordilleras which would like to create themselves into autonomous regions, they should seek a constitutional amendment.

FR. BERNAS. They should seek a constitutional amendment?

MR. NOLLEDO. Yes, Madam President.

THE PRESIDENT. The body is now ready to vote on the amendment. (Vol. III, Records, p. 373; emphasis supplied).

Commissioner Nolledo was the Chairman of the Committee on Local Governments.

ii. the baNgSamoro political eNtity (bpe) iS a total “StraNger” to the coNStitutioN. it woulD be a New “legiSlative” creatioN, that iS vaStly DiffereNt aND DiStiNct from aND far more powerful thaN the autoNomouS regioN iN muSlim miNDaNao or the armm.

1. For example, on being more powerful: Under R.A. No. 6734, the powers granted to the ARMM are those which are “within the framework of the Constitution and the national sovereignty as well and the territorial integrity of the Republic of the Philippines.” And, under Section 20 of Article X of the Constitution, the legislative power of the ARMM is subject to the provisions of the Constitution and national laws.

Unbelievably, under the proposed Bangsamoro Basic Law, the Bangsamoro Political Entity or BPE is granted powers that are on parity or CONCURRENT with the Central Government of the Republic of the Philippines (Section 2, Article V).

And what is shocking and imponderable is that in addition, the BPE is granted EXCLUSIVE POWERS, which it can exercise to the exclusion of the Central Government of the Republic of the Philippines (Sections 3 & 4 of Article V). There are 14 subject-matters under Section 2 for concurrent powers and more than 75 subject-matters under Sections 3 & 4 for exclusive powers.

And since the powers of the Bangsamoro Political Entity will be exercised

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by the Bangsamoro Parliament which is to be created by Congress, in effect, Congress is being asked to create a legislative body that will be more powerful than Congress itself. Indeed, this is a travesty and makes a mockery of the power and dignity of Congress!

2. Then, as to its being different and distinct: Section 1 of Article VI of the Bangsamoro Basic Law provides:

Section 1. Asymmetric Relationship. - The relationship between the Central Government and the Bangsamoro Government shall be asymmetric. This is reflective of the recognition of their Bangsamoro identity and their aspiration for self-governance. This makes it distinct from other regions and other local governments.

* Asymmetric means lack of symmetry, and symmetry means the quality being well-balanced, well-coordinated. Now, we ask:

If it is distinct from an autonomous region or other local government unit authorized and recognized under Article X-LOCAL GOVERNMENTS of the Constitution, then Congress should not be asked to entertain a bill that would create an entity that would not operate within the ambit of the provisions of the Constitution. Congress cannot legislate “outside” the framework of the Constitution. It’s just as simple as that.

iii. aND Now, to the burNiNg QueStioN of the Day:

DoeS the coNgreSS poSSeSS the authority aND competeNce, uNDer

the coNStitutioN, particularly article X thereof, to create the

New baNgSamoro political eNtity aS propoSeD iN the baNgSamoro

baSic law?

the aNSwer iS a more reSouNDiNg No! abSolutely NoNe whatSoever!

Here’s why:

Since it has been shown, that Congress, under the Constitution, does not even have the authority and the competence and is EVEN PROHIBITED to create another Autonomous Region in other parts of the country, aside from the Autonomous Region in Muslim Mindanao and in the Cordilleras, WITHOUT A CONSTITUTIONAL AMENDMENT, then, it stands to REASON and LOGIC, nay, plain COMMON SENSE dictates that Congress does not have any authority and competence whatsoever to create the BANGSAMORO, an entirely new political entity that is vastly different and distinct from and far more powerful than that of the constitutionally-mandated Autonomous Region in Muslim Mindanao and in the Cordilleras.

The BBL expressly admits that the Bangsamoro Political entity or BPE is different and distinct from the autonomous regions and other LGUs authorized and recognized in Article X of the



Constitution. In effect, the BPE is excluding and exempting itself from the provisions of the Constitution. This is too much! Sobra na!

Indeed and to put it bluntly: Of the eighteen (18) Articles of the Constitution, there’s not a single Article, Section, paragraph or line from which the authority of Congress to create the Bangsamoro Political Entity can be inferred or even imagined! And yet, House Bill No. 4994 wants Congress, in spite of such utter lack of authority, to do it. But the BBL says: “Let there be the BPE. Never mind the Constitution!”

Sovereignty resides in the people and all government authority emanates from them. The Filipino people have expressed and made manifest their sovereign will through the Constitution. And the Constitution has INDUBITABLY not given that authority to create the Bangsamoro to Congress and, in fact, is PROHIBITED from doing so. The question is: May Congress openly ignore, disregard and defy the Constitution? This is one question where a negative answer is not only predictable but inevitable. Congress is a creation of the Constitution so, it cannot and should not be over and above its CREATOR.

The Explanatory Note of the proposed Bangsamoro Basic Law states that the “design for the new political entity known as the Bangsamoro was “inspired” by the constitutional foundation on autonomous regions under Article X of the 1987 Constitution.” This inspiration is sadly misplaced. In fact, this is an implied admission that it was not filed in accordance with the provisions of said Article X of the Constitution.

We all should know that legislation is not just a matter of “inspiration” but rather of “devotion”, meaning: legislation that is faithful to the provisions of the Constitution. The legislation must be in conformity with such provisions since the Constitution is the fundamental law of the land. And looking at Article X of the Constitution in its proper perspective, it cannot serve as an “inspiration” because it is actually a total negation of the creation of another new and distinct political entity as the Bangsamoro. Article X has authorized and identified the creation of only two autonomous regions and not anything else more. As the Latin maxim goes: “Expressio unius est exclusio alterius.”

1. The Necessity of a Constitutional Amendment or Revision

In order for Congress to possess that authority and competence to create the Bangsomoro Political Entity, the only way it can be done is to get a new specific mandate from the Filipino people, through the Constitution, in the same way that in Section 15 of Article X, the Constitution commands that “there shall be created Autonomous Regions in Muslim Mindanao and in the Cordilleras”.

For this purpose, the Constituion has to be amended or revised by the FILIPINO PEOPLE through the process prescribed by the Constitution itself. So for the present, and for as long as the Members of Congress remain true and faithful to their Oath: “to support and defend the Constitution and bear true faith

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and allegiance to the same”, the creation of the Bangsamoro Political Entity at this time shall remain an impossible dream.

iv. the SecoND formiDable aND iNSurmouNtable obStacle: the armm iS

a coNStitutioNal creatioN aND aS Such, it caNNot be aboliSheD aND

eraSeD by legiSlatioN from the pageS of the coNStitutioN iN orDer

to be replaceD by a complete StraNger: the baNgSamoro political

eNtity.

From the Records of the Constitutional Commission that drafted the 1987 Constitution, we find the following:

MR. OPLE. Thank you.

Is it the intent of the Commmittee that the creation of the two autonomous regions is actually delegated to Congress? Or is it to be done under the heading of “LOCAL GOVERNMENTS AND AUTONOMOUS REGIONS” right in the Constitution, although mandating Congress to pass the enabling laws and the organic acts to implement this action of the Constitution?

MR. NOLLEDO. It is understanding of the Committee that the Members of the Commission incaucus intended to mandate Congress to create the autonomous regions in Muslim Mindanao and the Cordilleras. So, the Constitution itself provides that there shall be autonomous regions in Muslim Mindanao and the Cordilleras and that Congress shall pass the necessary organic acts.

MR. OPLE. Yes, but is the act or the creation by the Constitution denied by the Committee?

MR. NOLLEDO. It is, in effect a constitutional creation because we are authorizing congress to enact the organic acts for Muslim Mindanao and the Cordilleras.

MR. OPLE. That intent seems to be clear now. Thank you Madam President. (Records, Vol. III, p. 375; emphasis supplied).

The Autonomous Region in Muslim Mindanao is therefore a “creation” of the 1987 Constitution and it has been in inexistence for more than two decades since its creation. According to the proposed Bangsamoro Basic Law (Section 5, Article XIII) “after the ratification of the Basic Law, the ARMM shall be deemed abolished.” This



is because the two cannot co-exist. They have the same geographical area of jurisdiction and the same constituencies. In short, one should have to DISAPPEAR from the scene in order that the other can APPEAR to take its place.

But, this intended abolition of ARMM cannot legally be done! It would be total ultra vires on the part of Congress and patently unconstitutional. The ARMM as a constitutional creation cannot be abolished by mere legislation. In the same way that the Congress cannot, by legislation, abolish such constitutional offices as the COMELEC, the Ombudsman, the COA, or the Civil Service Commission, Congress cannot by legislation nullify the Constitutional mandate (Sections 1 and 15 of Article X) for the creation of the ARMM, and thereby, abolish it. The Spring cannot rise higher than its Source!

In the Case of the Autonomous Region in Muslim Mindanao, its creation and its powers and functions are set forth in several Sections of the Constitution (Sections 1 and 15 to 21 of Article X). These Sections shall remain, as written by the Filipino people, on the pages of our Constitution and cannot simply be erased or obliterated by a mere Act of Congress, such as the proposed Bangsamoro Basic Law. Only the sovereign Filipino people can abolish the ARMM from the pages of our Constitution through the Constitutional process of amendment or revision.

We have had three (3) Constitutions – the 1935, 1973 and 1987. We exclude the revolutionary Freedom Constitution. Yet, no one but no one can point to a single section of any of these Constitutions that has been repealed or “abolished” by legislation. The Constitution is a living and vibrant document – ageless and timeless, and every part thereof must remain relevant and inviolate until the Constitution is amended or revised by the people.

On the question of whether any of the FIVE political and territorial subdivisions of the Republic of the Philippines as authorized and recognized by the Constitution, can be abolished by Congress, Father Bernas in his book – “Constitution of the Republic of the Philippines” says:

Thus, the constitutional significance of Section 1 is that provinces, cities, municipalities and barrios (now barangays) have been fixed as the standard territorial and political subdivisions of the Philippines. To these the 1987 Constitution has added the “autonomous regions”. This manner of subdividing the Philippines cannot get out of existence except by a constitutional amendment. (Bernas, Constitution of the Republic of the Philippines, Vol. II, p. 375).

And so, since the ARMM cannot be abolished by Congress, unless and until the Constitution is amended or revised by the Filipino people, there’s no way, at the moment, for the proposed Bangsamoro Political Entity,

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a total stranger, to gain entry into the exclusive political and territorial domain of the FIVE (5) Local Government Units of the Republic of the Philippines, as declared and identified in Section 1, Article X – LOCAL GOVERNMENTS of the Constitution.

During the hearing held by the Ad Hoc Committee on the Bangsamoro in Cebu City on December 15, 2014, Prof. Miriam Ferrer, Head of the GRP Peace Panel, explained that the ARMM could be abolished by legislation because Congress can repeal R.A. No. 6734, the Organic Act of the ARMM or R.A. No. 9034, the amendatory Act. She was being so naïve and was just probably acting on mere impulse or perception. Following her line of thinking, Congress can abolish Office of the Ombudsman by simply repealing R.A. No. 6770 or the Ombudsman Act or abolish the Civil Service Commission by repealing P.D. No. 807 and R.A. No. 2260.

R.A. No. 6734 or the Organic Act for Muslim Mindanao is just an implementation of the mandate of the Constitution for the creation of the ARMM in Sections 1 and 15 to 21, inclusive, of Article X thereof. If you want to improve the ARMM, do not abolish it, you cannot “improve” a person by killing him. You can amend its Organic Act as it was done with the passage of R.A. No. 9034. And what is most sacrilegious: Do not tamper or tinker with the terms enshrined in the Constitution such as: from “Autonomous Region in Muslim Mindanao” to “Bangsamoro Political Entity” and from “Organic Act” to “Basic Law”. Unfortunately, the members of the GRP Peace Panel were unmindful about the significance and implications of these constitutional aberrations.

v. puttiNg aSiDe, iN the meaNtime, the iSSue oN the total abSeNce of

authority aND competeNce oN the part of coNgreSS, uNDer the

coNStitutioN, to create the baNgSamoro political eNtity, for the

purpoSe of acaDemic DiScuSSioN let uS further ScrutiNize other

SeriouS coNStitutioNal traNSgreSSioNS iN the propoSeD baNgSamoro

baSic law, for thiS purpoSe, it muSt be recalleD:

1. That the Constitution, in mandating the creation of the Autonomous Regions in Muslim Mindanao and in the Cordilleras, expressly prescribes that the creation must be carried out “within the framework of the Constitution and the national sovereignty, as well as the territorial integrity of the Republic of the Philippines.” (Section 15, Article X; emphasis supplied).

2. Even in the Tripoli Agreement of December 23, 1976, it is provided, among others:

First: The establishment of Autonomy in the Southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines.

3. In the 1996 Final Peace Agreement between the GRP and the MNLF for the implementation of the Tripoli Agreement, and participated in by the Secretary General of the OIC and the OIC Ministerial Committee of the Six, headed by



Indonesia, the Parties affirm the “sovereignty, territorial integrity of the Republic of the Philippines”.

4. In the Preamble of R.A. No. 9034, amending R.A. No. 6734, which was passed after the 1996 Final Peace Agreement, in its Preamble, it implores, among others “in order to establish an Autonomous Government within the framework of the Constitution and national sovereignty as well as the territorial integrity of the Republic of the Philippines”.

vi. aSiDe from the ultra-vireS aND uNcoNStitutioNal graNt of “coNcurreNt” aND “eXcluSive powerS” to the baNgSamoro political eNtity aS alreaDy poiNteD out above, there are Some other proviSioNS of the baNgSamoro baSic law which are iNcoNSiSteNt with the coNStitutioN aND repugNaNt to the NatioNal SovereigNty aND territorial iNtegrity of the republic of the philippiNeS. here are a few of them:

1. On Natural Resources

Section 8 of Article XIII of the proposed Bangsamoro Basic Law, provides:

Section 8. Natural Resources, Nature Reserves and Protected Areas. - The Bangsamoro Government shall have the authority, power, and right to explore, develop and utilize the natural resources, including surface and sub-surface rights, inland waters, coastal waters, and renewable and non-renewable resources in the Bangsamoro.

This is inconsistent with and in gross violation of Section 2 of Article XII of the Constitution, which among others, provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources, shall be under the full control and supervision of the State [Emphasis supplied].

2. On the Parliamentary System of Government in the Bangsamoro:

(a) Under the Bangsamoro Basic Law, the Bangsamoro Government shall be Parliamentary and the powers of Government will be vested in the Bangsamoro Parliament.

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This is inconsistent with the type of Republican Government enshrined in our Constitution.

Throughout our political history and experience, the chief executives or our national, regional and local governments (the President, Regional Governor, Provincial Governor, City or Municipal Mayor and Barangay Captain) are elected directly by the people. But in the Bangsamoro Government, the Chief Minister is not directly elected by the people but by the Members of Parliament.

(b) Under the Constitution, all elected local officials except barangay officials, are elected for a term of three (3) years (Sec. 8, Article X). Under the Bangsamoro Basic Law, the Parliament can be dissolved at any time, even before the expiration of three (3) years and new elections will have to be called.

(c) Under the Constitution, no elective official can be appointed or designated to any other public office or position during his term (Section 7, Article IX [b]). Under the Bangsamoro Basic Law, the Members of Parliament may be appointed to the Cabinet.

(d) Under our republican and democratic system of Government, at all levels – from the national down to the local, there is separation of executive and legislative powers. This has been observed in our country for more than a century. Under a parliamentary system, the executive and legislative powers are merged in parliament. There is neither rhyme nor reason why we should break away from this century-old tradition unless there is another hidden agenda for future implementation.

(e) And, as a clincher, Section 18 of Article X of the Constitution provides, among others: “The Organic Acts shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the political units.”

So, if the Bangsamoro Political Entity is to be created (if at all) WITHIN and not OUTSIDE of the provisions of the Constitution, there’s NO WAY it can establish a parliamentary system of government.



vii. the timeleSS, opeN-eNDeD aND ever-eXpaNDiNg baNgSamoro political eNtity, which putS the zamboaNga, cotabato, Davao proviNceS, aND eveN palawaN “at riSk” of eveNtual abSorptioN or aSSimilatioN.

There is something strange about the proposed Bangsamoro Basic Law. Originally, the idea of regional autonomy in Mindanao was limited to the area which was, at that time, repeat, at that time, predominantly occupied by people of the Muslim faith. That is why Congress passed R.A. No. 6734 as the Organic Act for the Autonomous Region in Muslim Mindanao.

Strangely, the Bangsamoro Basic Law expands the meaning of the term “Bangsamoro People” so as to include not only people of the Muslim faith, but also “those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and Sulu archipelago and its adjacent islands including Palawan and their descendants, whether mixed or full blood shall have the right to identify themselves as Bangsamoro by ascription or self-ascription, spouses and their descendants are classified as Bangsamoro (Section 1, Article II – Bangsamoro Identity).

So, this definition can embrace the inhabitants of the entire island of Mindanao, the Sulu Archipelago and the island of Palawan. And this is reckoned not only from the present, but also from as far back as the 16th Century – at the time of conquest and colonization, and regardless of race, color or creed. And this is to include their descendants who may now be residing outside of Mindanao.

With the above definition, it would not be difficult to expand the territory and political hegemony of the Bangsamoro Political entity, because of Section 3 of Article III of the Bangsamoro Basic Law, which provides:

Section 3. The areas which are contigious and outside the core territory may opt at any time to be part of the territory upon petition of at least ten percent (10%) of the registered voters and approved by qualified votes cast in a plebiscite.

It is to be noted that this “option” to be part of the Bangsamoro territory can be exercised “at any time”, even 15 or 20 years after the establishment of the Bangsamoro Political Entity. It has no time limit. And it is easy to get the ten percent (10%) in order to start the “ball” rolling (meaning the process of expansion) because under the definition of the “Bangsamoro people”, one can identify himself or herself as “Bangsamoro” by simply saying so (by ascription or self-ascription)regardless of birth or religion. And for purposes of obtaining majority of the votes cast in a plebiscite, the same situation can happen or made to happen. Especially when there is armed conflict or trouble or even the threat of it in a place, where peace-loving people will be forced to quit their homes to escape to safer places. The “armed conflict or trouble” can easily be ‘created’ or made to happen” by those interested in the expansion of the Bangsamoro Political Entity.

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This is something for the people of the Zamboanga, Davao, Cotabato provinces, Palawan and even other provinces in Mindanao to seriously consider and ponder upon. There is much more than meets the eye in the proposed Bangsamoro Basic Law.

viii. aND Now for the moSt SeriouS aND crucial coNcerN oN the paSSage

of the baNgSamoro baSic law – the DaNger of political aND

territorial DiSmembermeNt of the republic of the philippiNeS

1. It will be recalled that in the celebrated case of “Province of North Cotabato, v. GRP Peace Panel, G.R. No. 183591 [Oct. 14, 2008]”, involving the MOA-AD (Memorandum of Agreement on Ancestral Domain) entered into between the GRP and MILF peace panels, during the previous Arroyo Administration, one of the principal issues involved was the constitutionality of the creation of the Bangsamoro Juridical Entity or JPE as proposed by the MOA-AD.

The powers of the Bangsamoro Juridical Entity or BJE under the MOA-AD were similar but even much less than those of the Bangsamoro Political Entity as proposed in the Bangsamoro Basic Law. Yet, the Supreme Court in its classic and insightful Decision penned by Justice Conchita Carpio-Morales (now Ombudsman) declared that the BJE would be unconstitutional.

Said the Supreme Court:

The BJE is a far more powerfulEntity than the autonomous regionRecognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.” (Province of North Cotabato, et. Al. vs. GRP Peace Panel, G.R. No. 183591) [Oct. 14, 2008]



Among others, the Supreme Court declared that the creation of the BJE, by its nature and functions, would require an amendment of the Constitution. However, the Supreme Court’s declaration was somewhat tentative because it would depend upon the validity and effectivity of the MOA-AD as a binding international agreement or as a binding unilateral declaration. For this purpose the Supreme Court proceeded to give a lengthy and enlightening discussion on the fine points of International Law on the subject.

The Supreme Court finally concluded that the MOA-AD was neither a binding international agreement nor a binding unilateral declaration under International Law. Nevertheless, the Supreme Court said:

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents’ act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

2. The Wind Beneath the Wings of the Bangsamoro Basic Law – The Real Agenda Emerges LOUD AND CLEAR

In the Preamble of House Bill No. 4994 – or the Bangsamoro Basic Law, it is stated, among others, as follows:

Affirming the distinct historical identity and birthright of the Bangsamoro people to their ancestral homeland and their right to self-determination- beginning with the struggle for freedom of their forefathers in generations past and extending to the present- to chart their political future through democratic process that will secure their identity and posterity, and allow for genuine and meaningful self-governance as stipulated under the Comprehensive Agreement on the Bangsamoro (CAB).

Paragraph 3 of the CAB, provides:

Underlying the CAB is the recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance.

And Section 3 of Article 1 of the Bangsamoro Basic Law, provides:

Section 3. Purpose. – The purpose of this Basic Law is to establish a political entity, provide for its

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basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance.

IT IS ABUNDANTLY CLEAR, THEREFORE, THAT THE MOTIVATING AND DRIVING FORCE BEHIND THE ENACTMENT OF THE BANGSAMORO BASIC LAW IS THE ASSERTION BY THE BANGSAMORO PEOPLE OF THEIR RIGHT TO THEIR ANCIENT HOMELAND AND THEIR RIGHT TO SELF-DETERMINATION WHICH INCLUDES THE RIGHT TO CHART AND DETERMINE THEIR OWN POLITICAL FUTURE AND STATUS.

3. The UN DRIP- or the United Nations Declaration of the Rights of Indigenous People, adopted by the UN General Assembly on September 13, 2007 was lengthily discussed by the Supreme Court in the MOA-AD case since the “Bangsamoro” people would fall within the definition of “Indigenous People” under DRIP.

Among the rights of the indigenous peoples recognized in the UN DRIP, are:

(1.) The rights to self-determination and, by virtue of this, to freely determine their political status and freely pursue their economic, social and cultural development.

(2.) The right to lands, territory, and resources which they have traditionally owned, occupied, or otherwise used.

(3.) The right to autonomy and self-government.

However, this UN Declaration, unlike treaties and conventions, does not per se create any binding obligation on the States signing the Declaration. UNLESS the State does something more: a Unilateral Declaration creating a Binding Obligation in International Law.

For the Philippine State when or how shall she have made, a binding unilateral declaration?

4. CROSSING THE RED LINE. THE CAB AND THE ENACMENT OF THE BANGSAMORO BASIC LAW WOULD CONSTITUTE AS A BINDING UNILATERAL DECLARATION UNDER INATIONAL LAW.

According to the Supreme Court, the objectionable and unconstitutional provisions of the MOA-AD, such as the creation of the BJE could not be given force and effect because the MOA-AD itself was neither a binding international obligation nor a binding unilateral declaration of the Republic of the Philippines.

According to the Guiding Principles Applicable to Unilateral Declarations of States, capable of creating an obligation is that the declaration is made by one vested with power to do so.



In the Philippines, that “one” is Congress, which has the power to express the will of the State through the enactment of a law. And so, when Congress expresses itself through the enactment of the Bangsamoro Basic Law, the Government of the Republic of the Philippines will have crossed the red line and fallen into the “trap” of a binding unilateral declaration.” In the eyes of International Law, the GRP will be bound to comply with its provisions, such as granting the Bangsamoro Political Entity the right to self-determination which includes the right to chart and determine its political status.

In R.A. No. 6734, or the Organic Act for Muslim Mindanao, as well as in R.A. 9034, amending the Organic Act following the 1996 Final Peace Agreement between the GRP and the MNLF and participated in by the OIC, there is a provision in both Acts to the effect: That the area of the Autonomous Region in Muslim Mindanao shall remain an integral and inseparable part of the national territory of the Republic of the Philippines and that the people shall uphold the constitution and unequivocally owe allegiance to the Republic of the Philippines.”

THERE IS NO SUCH MANDATE IN THE CAB OR IN THE PROPOSED BANGSAMORO BASIC LAW. IT WOULD NOW SEEM THAT SUCH OMISSION WAS NOT JUST AN “OVERSIGHT” BUT A DELIBERATE ONE.

The most relevant and crucial question is: Why has it been deliberately: “omitted”? Does not the Constitution expressly provide that the creation of the two autonomous regions must be “within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines?

And the intriguing if not mystifying question is: Did not the Members of the GRP Peace Panel detect the potentially undesirable implications of such omission In any case and without making any comparison, we have to recognize and acknowledge the superior savvy, experience, dedication and negotiating caliber of the members of the MILF Peace Panel. They really knew their objective and were equipped with the knowledge, skill and dedication to achieve it.

In fairness to President Benigno S. Aquino III, this accommodating and concessionary posture of the Government towards the MILF and the Bangsamoro problem, did not start with his Administration. This started with the shift in the Government’s official attention and recognition from the MNLF to the MILF during the Arroyo Administration as shown by a series of negotiations between the GRP and the MILF which started in 2001 and culminated in the aborted MOA-AD between the Government and the MILF and during the closing months of the Arroyo Administration.

The MOA-AD is the precursor of the Bangsamoro Basic Law. In fact, there are provisions in the Bangsamoro Basic Law which are verbatim

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reproductions of some provisions of the MOA-AD.

IX. THE MOMENT OF TRUTH AND THE UPCOMING SCENARIO: A PREVIEW OF THINGS TO COME After the creation of the Bangsamoro Political Entity and the establishment of the Bangsamoro Government.

Suppose, just supposing, that sometime in the future, following the example of the people of Crimea who seceded from Ukraine and joined with Russia, the Bangsamoro people, after a referendum, and in the exercise of their right to self-determination and to freely determine their political status, as recognized by the CAB and the Bangsamoro Basic Law, will DECLARE their political “liberation” and DECIDE to separate and secede from the Republic of the Philippines and join with Malaysia or Indonesia?

And supposing, further that after their separation or secession, the Bangsamoro Political Entity is admitted as a regular Member of the OIC or Organization of Islamic Conference? And, as a Member, seeks the assistance of the OIC Muslim countries in expanding its territory and political hegemony to the other parts of Mindanao and to Palawan? Under the Bangsamoro Basic Law, there is no limit to such expansion.

Alas, when these things shall have come to pass, what is the Government of the Republic of the Philippines supposed to do? Shall the Government resist the separation or secession or shall it just allow it to happen?

If the Government resists – how can it resist when such resistance is virtually foreclosed by the CAB and the enactment of the Bangsamoro Basic Law?

And since the Government allows the secession to happen, what is the Government going to do with our Christian brothers and sisters and other Filipino ethnic groups living in the expanding Bangsamoro Territory in Mindanao and Palawan, who are loyal and law-abiding citizens of this Republic, but who will suddenly become “strangers” in their own land and in danger of being absorbed or overwhelmed into submission by the Bangsamoro? Will they not resist and fight for their rights and identity as Filipino citizens? And will the Government intervene to help them? Will this not result in armed confrontation between the GRP and the Bangsamoro Government and other Muslim countries coming to the assistance of the latter? The consequences and resulting developments of such situations are too complicated and too frightening to contemplate.

These are difficult questions to which we have no easy answers but which can only provoke many more unanswerable questions. Indeed, as things are moving on this subject of the Bangsamoro and listening to the pronouncements of our leaders on its necessity, you can get a feeling of inevitability – like being led to the edge of a cliff but with your eyes looking straight ahead for fear of seeing the things down below.



X. AN APPEAL TO THE MEMBERS OF THE 16TH CONGRESS:

For an abundance of caution, sound and sober judgment, and a deep sense of history.

1. From the very start of the secessionist rebellion in Mindanao in the early 1970’s led by a separatist Muslim rebel group known as the Moro National Liberation Front or MNLF who wanted to establish a separate and independent Bangsamoro nation, and during the subsequent peace talks between the Government of the Republic of the Philippines or GRP and the MNLF which was brokered by the Organization of Islamic Conference or OIC, the position of the GRP had always been firm, loud and clear:

1. The National Sovereignty and Territorial Integrity of the Republic of the Philippines must be supreme, inviolable and beyond challenge from within and from without.

2. An expanded regional autonomy may be authorized, but within the framework of the Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines.

These principles are embodied in the Tripoli Agreement that was signed by the GRP and the MNLF under the auspices of the OIC and as participated in by representatives of Libya and Indonesia, in Tripoli, Libya, on December 23, 1976.

Shortly after the signing of the Tripoli Agreement, then President Marcos created, by Presidential Decrees, two Autonomous Regions in Southern Philippines; Regions IX and XII.

3. After the EDSA Revolution and under the Administration of President Cory Aquino, peace talks between the GRP and the MNLF for the implementation on the Tripoli Agreement continued. During the deliberations in the Constitutional Commission that drafted the 1987 Constitution, the Members agreed to create only two (2) Autonomous Regions, in Muslim Mindanao and in the Cordilleras, “within the framework of the Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines.” This is now embodied in Article X of the 1987 Constitution. And as already pointed out earlier, the Constitution authorized and empowered the First Congress elected under the Constitution to pass the Organic Acts for the two autonomous regions. This First Congress already passed these Organic Acts: R.A. No. 6734 for Muslim Mindanao and R.A. No. 6766 for the Cordilleras.

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4. It must be noted that in the series of agreements before the Tripoli Agreement of 1976 and in subsequent agreements thereafter and up to the signing of the 1996 Final Peace Agreement between the GRP and MNLF under the auspices of the OIC, it was never provided nor even intimated that the Bangsamoro people shall have any “right to self-determination or the right to chart their future and freely determine their political status”. They were only granted an expanded regional autonomy.

On the other hand, from the Tripoli Agreement, Republic Act No. 6734 or the Organic Act for the Autonomous Region in Muslim Mindanao, the 1996 Final peace Agreement and Republic Act No. 9034 amending the Organic Act for the Autonomous Region in Muslim Mindanao, it is expressly provided that the Autonomous Region shall continue to be subject to the National Sovereignty of the Republic of the Philippines” and “shall remain an integral and inseparable part thereof, uphold the Constitution and unequivocally owe allegiance and fidelity to the Republic of the Philippines.”

Significantly and ominously, however these very fundamental and non-negotiable principles on the relationship between the people of the Autonomous Region in Muslim Mindanao and the National Government of the Republic of the Philippines with regard to “remaining an integral and inseparable part of the Republic, upholding its Constitution, and owing unequivocal allegiance and fidelity to the Republic”, are not found either in the CAB or in the proposed Bangsamoro Basic Law. It is now quite clear that this omission is not just an “oversight” but is deliberate because these principles would stand in the way of the real objective of the Bangsamoro Basic Law.

True, the Muslim sultanates in the Philippine Archipelago during pre-colonial times were separate and independent political units or institutions and had their own rulers. Manila used to belong to a Muslim sultanate. But many permanent and enduring changes have taken place, over the centuries, in the political environment of our country which cannot now be undone, much less, reversed. In a manner of speaking, as a result of complex and inexorable historical events, we have been thrust into the living Present and we cannot now re-create, re-inhibit, and re-live the distant Past. As the Bible tells us: “Let the dead past bury its dead”. And so, after all is said and done, let the present united and



indivisible Philippines move on, as it is AT PRESENT to meet its appointment with Destiny!

5. We are a nation of diverse ethnic and cultural aggrupations, such as: Tagalogs, Ilocanos, Bicolanos, Visayans and Muslims with their own storied and varied past. Yet, we all have come together and united as Filipinos – under one Nation, One Government and One Flag. And we all take pride in our unity in diversity. So, it would be inconceivable, if we now say, after more than a hundred years of such unity, that the Tagalogs, or the Ilocanos, or the Bicolanos, or the Visayans, shall have the right to “self-determination and the right to freely determine their political future and status”, such that they cannot establish their own separate Tagalog nation, Ilocano nation, Bicolano nation, or Visayan nation.

6. Unfortunately, what is happening in our country right now is a sudden and radical “climate change” in or political direction as a nation. And what is sad is that a great majority of our people do not even know about it.

With the express recognition and grant to the Bangsamoro people of the special and favored right to “self-determination as well as the right to chart their future and determine their political status”, not only in the CAB but also in Bangsamoro Basic Law, there is every reason to believe or even expect that the Bangsamoro people, through the Bangsamoro Government, and invoking the provisions of UN DRIP, will, in the near future, determine their “political status” and DECLARE their separation from the Republic of the Philippines and join with another powerful Muslim country.

And sadly, there is nothing that the Government of the Republic of the Philippines can do about it. By its own unilateral declaration, which is binding in International Law, as expressed in the CAB and by the provisions of the Bangsamoro Basic Law, it shall have provided the legal basis and justification for its own political and territorial self-disintegration! Very sad indeed!

Is this really what the sovereign Filipino people – our “bosses” wants to happen in our country? Are we as a people disposed to give up part of our territory in order to buy “peace in our time” because the Government is no longer willing or capable of defending the national sovereignty and territorial integrity of the Republic? What a terrible

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price to pay for such an illusory peace!

However, if this is really what the Filipino people want, then let it be! Sovereignty resides in the people. But the only way it can and should be done is to ask the people to amend or revise the Constitution – the ultimate expression of the people’s sovereign will. The Supreme Court, in the celebrated MOA-AD case, said:

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any way it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens, Respondents, however, may not preempt it in that decision. (The Province of North Cotabato et. Al. vs. the GRP Peace Panel on Ancestral Domain, G.R. No. 183591)

Ergo: Congress should not pre-empt the Filipino people in making that decision to change the Constitution.

In the meantime, however, before the Constitution is amended or revised by the Filipino people, it is hoped and prayed that all public officials of the land, from the highest to the lowest, should abide y the Constitution, to which they have taken a solemn oath: “to support and defend” and “bear true faith and allegiance to the same!”

7. There are crossroads or turning points in the history of any nation which can leave profound and lasting impact on the lives of its succeeding generations of people. Our beloved Philippines is at such crossroad or turning point. And the choice on which way the nation must go falls on the Members of the 16th Congress of the Republic of the Philippines.

Inevitably, the stakes on such a choice are very high and these are: the prospect of a lasting peace or the danger of a much larger conflict in Mindanao, the Constitution and National Sovereignty as well as the Territorial Integrity of the Republic of the Philippines.

It has been said that “there are moments in the lives of men



and women, when they are called to certify, to seal with their action, what they believe and what they preach”. Such a moment has come to the Members of the 16th Congress. The Filipino people hope and pray that in making their choice, they will so certify.

May God Bless the Philippines!

••• •••

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Merlin M. Magallonaproblem areaS iN the baNgSamoro baSic law

Merlin M. Magallona*

I. iNtroDuctory: the coNStitutioN aND the powerS of the State

By the promulgation of the Constitution, the people have entrusted the powers of the State, which they possess, to the Government established under the fundamental law by endowing it with a complex of functions, authority, jurisdictions, immunities, and limitations as are now ordained in the present Constitution. Embodying the Philippine State, the people have proclaimed the foundation principle in Article II, Section 1 of the Constitution affirming that “Sovereignty resides in the people and all government authority emanates from them.” This affirmation encapsulates the promulgation of the Constitution as the people’s act of sovereignty, together with the establishment of the Government.

Inherently an act of sovereignty, the Constitution is out of reach of contravention. In that respect, more than the formal law of the national community, it is its political and economic formula for self-determination, its social framework growing out of the historical roots of its people.

This holds true whatever may be the fascination or attraction that any political theory may seize the mind outside of the binding force of the Constitution. On the same premises, the Constitution as an act of sovereignty becomes the supreme standard for determining the validity of the Comprehensive Agreement on the Bangsamoro,1 together with its implementing instrument in the Bangsamoro Basic Law as proposed in House Bill No. 4994 and in Senate Bill No. 2408.

II. the powerS of the State uNDer the baNgSamoro baSic law

Proceeding from the foregoing premises, it is axiomatic that the powers of Government as constituted under and pursuant to the Constitution are beyond the juridical competence of any person or subject, in private or official capacity, to engage them by way of bargaining or negotiation in contractual relation, as is done in the Comprehensive Agreement on the Bangsamoro (CAB) by the GPH Peace Negotiating Panel purporting to represent the Philippine Government, with the Moro Islamic Liberation Front (MILF).2

The CAB, as implemented by the Bangsamoro Basic Law (BBL), reorganizes the powers of Government and restructures them into a hierarchy, in the relationship between the National Government and the Bangsamoro Government. On the whole, the powers of Government are reduced to contractual arrangement between the Parties

* Professorial Lecturer and Former Dean and Professor of Law, University of the Philippines College of Law; Chair, Department of International and Human Rights Law, Philippine Judicial Academy of the Supreme Court; Member, Panel of Arbitrators, Permanent Court of Arbitration, The Hague, Netherlands.


Problem Areas in the Bangsamoro Basic Law

to the CAB, resulting in a new configuration of political authority. In the first place, such authority raises the fundamental issue as to whether a government office together with a non-government organized group may assume the function of re-organizing and restructuring the powers of Government as spelled out in the CAB, in usurpation of the act of sovereignty expressed in the Constitution. Obviously, their legal competence in the exercise of such function, objectionable as it is, is excluded by the fundamental law. The Constitution cannot be the derivative of powers in contradiction to its principles.

The CAB has installed the categories of powers provided in Part III, paragraph 1, which reads:

The Central Government will have reserved powers, the Bangsamoro Government shall have its exclusive powers, and there will be concurrent powers shared by the Central Government and the Bangsamoro Government.3

In implementation, the BBL deals with reserved powers in Section 1, concurrent powers in Section 2, and exclusive powers in Section 3, in Article V on “Powers of Government”.

Forming part of the CAB is the Annex on Power Sharing (APS) that “contains details about the particular competencies and authorities of the Central Government and the Bangsamoro Government which shall serve as guide in the drafting of the Basic Law pursuant to the Framework Agreement on the Bangsamoro (FAB)”.4 Further, the APS explains as follows:

“The Comprehensive Agreement delineates powers at different levels. The Central Government will have its reserved powers, the Bangsamoro Government will have its exclusive powers within its territorial jurisdiction and their will be concurrent powers shared by the Central Government and the Bangsamoro Government ….5

1. Reserved powers

The FAB provides that “The Central Government will have reserved powers … .”6 It goes on to stipulate that the Central Government shall have powers on:

a) Defense and external securityb) Foreign policyc) Common market and global trade ….d) Coinage and monetary policye) Citizenship and naturalizationf) Postal service

This list is without prejudice to additional powers that may be agreed upon by the Parties.7

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How is the concept of reserved powers designed? The APS of the CAB has conceptualized reserved powers as “powers or matters over which authority and jurisdiction are retained by the Central Government.”8 Apparently, these powers pertain to those which the Central Government may exercise affecting its relationship with the Bangsamoro Government.

By way of implementing the FAB or the CAB, the BBL in Section 1, Article V repeats the enumeration of reserved powers in FAB, with the addition of immigration, customs and tariff, and intellectual property rights. There appears to be the emphasis in this provision that these specified powers are “retained” by the Central Government. The addition of more reserved powers must have resulted from the intent of the parties to the FAB that the “list [of reserved powers] is without prejudice to additional powers that may be agreed upon by the Parties.”9

By managing the concept of power, the Parties to the CAB have achieved results with the following implications. They assume that they have the legal competence and personality to engage in contractual relation for determining the powers of Government and in creating the relation between the National Government and its constituent autonomous regions by means of reorganizing and restructuring those powers. These matters pertain to the sovereign act of the people and are subsumed in their promulgation of the Constitution; they can only be changed by amendment or revision of the fundamental law. In conceptualizing reserved powers, the CAB Parties have usurped the sovereign function which the people have already enthroned in the Constitution.

After providing the list of reserved powers in Part III of the FAB, the Parties added the stipulation that “This list is without prejudice to additional powers that may be agreed upon by the Parties”. Indeed, in Section 1, Article V of the BBL, additional reserved powers are added, as indicated above. These provisions signify that powers of Government are treated by the Parties as subject-matter of free stipulation, left to their contractual intention.

The Parties appear to be of the impression that powers of Government are of such broad range that they are unable to determine in the CAB; however, in their agreement they singled out only those that are listed in Part III of FAB and finally those listed in Section 1, Article V of the BBL. In doing this exercise, the Parties have resorted to the scheme of dividing the so-called reserved powers into two categories: those that will not be applied by the National Government in dealing with the Bangsamoro Government and those that will be applicable in its relation with the Bangsamoro Government. The second category is referred to in the CAB and in the BBL as “reserved powers”.

This categorization of powers necessarily implies it is the intent of the CAB and the BBL that certain powers of the National Government are not to be applied in its relation with the Bangsamoro Government. In effect, the CAB and the BBL have intended to deprive the National Government of certain powers in its relation with the Bangsamoro Government. This consequence appears clearer by reason of the provision in the Annex on Power Sharing that it is by the nature of “reserved powers” that “authority and



jurisdiction are retained by the Central Government.” This means that those that are not retained are not exercisable by the National Government in dealing with the Bangsamoro Government.

The emergent principle under the CAB and the BBL is that the National Government has no power and authority over the Bangsamoro Government unless as provided under the CAB and as implemented by the BBL. This non-retention scheme of powers is the product of the contractual discretion of the Parties derived outside the constitutional box; it is proposed under the mistaken notion that Congress by means of enacting the BBL assumes the competence to amend the fundamental law through the normal legislative process.

This fragmentation of government powers find no basis in the Constitution of course, in particular the categorization of powers into reserved powers and those which are not reserved powers. Are there powers of the National Government which are not reserved powers under the Constitution and thus not exercisable by its authority in relation to the autonomous regions? In the first place, this categorization is alien to the fundamental law and to our system of government. Emphasis must be on the constitutional prescription that all powers not provided by the Constitution and the national laws to the autonomous regions pertain to the National Government.10

2. Concurrent powers

In Section 2, Article V, the BBL provides that “Concurrent powers shall refer to the powers shared between the Central Government and the Bangsamoro Government within the Bangsamoro, as provided in this Basic Law”. What is meant by “concurrent powers” is defined in the fourth paragraph of APS of the CAB: “Concurrent powers shall refer to the shared powers between the Central Government and the Bangsamoro Government as contained in this Annex and as shall be further provided in the Bangsamoro Basic Law.”

Part Three (III) of the APS contains 14 matters in which “the Central Government and the Bangsamoro Government shall exercise powers within the Bangsamoro”. The same matters are provided in Section 2, Article V of the BBL; among the more important of these appear to be authority in land registration, human rights and humanitarian protection, auditing, civil service, customs and tariff laws and regulations, administration of justice, and public order and safety.

The installation of “concurrent powers” involves the process of according to the Bangsamoro Government the grant of independence in the exercise of powers of Government and the concomitant transfer to it by the National Government of its own powers. It also means the institutionalization of powers by the Bangsamoro Government. Thus, in the implementation of the CAB, the BBL envisages “to organize its own social security system and pension system” of its own, to create its own office of land registration, to have the “Bangsamoro auditing body” quite apart from the Commission on Audit of the National Government, and to build the Bangsamoro Civil Service office with its own “professional civil service corps,” despite the existence of the Civil Service

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Commission, among other cases of institutional separation.11 This institutionalization may lend permanence to the fragmentation of powers of national character.

The provisions pertaining to concurrent powers involve the root issue as to the constitutional basis of their creation, in particular because they are segmented from powers which the Constitution has mandated as belonging to the National Government. The result is that in the hierarchy of authority, the Bangsamoro Government as it stands in the BBL is in parity with the National Government, in the main subject only to “cooperation and coordination” with the latter as the BBL stipulates. This may find justification in Part One, paragraph 2 of the APS which inter alia provides that “The Central Government and the Bangsamoro Government shall be guided by the principle of parity of esteem and accepted norms of good governance.”

The concurrent powers which are institutionalized by the BBL through the establishment of separate Bangsamoro offices are at present provided by respective national laws as integral powers of the National Government; these laws would require revision by effecting the reorganization of powers of the National Government to pave way for the exercise of the Bangsamoro concurrent powers, if permissible. Hence, the creation of concurrent powers may ramify into how congressional authority may be exercised.

3. Exclusive powers

Section 3, Article V of he BBL is a litany of 57 areas of governance described as “exclusive powers” of the Bangsamoro Government; they are “matters over which authority and jurisdiction shall pertain to the Bangsamoro Government” in its territory. This provision of exclusive powers necessarily implies that they are exercisable only by the Bangsamoro Government to the exclusion of the National Government. In fact, by the nature of these powers the Bangsamoro Government is the only governing authority in its territory, displacing in the process the National Government in its current areas of governance pursuant to the fundamental law.

Under this provision the BBL appears to be in compliance with the CAB in its APS which refers to “exclusive powers” as “powers or matters over which authority and jurisdiction pertain to the Bangsamoro Government”.12 Deserving focus is the mandate of the CAB in APS that “The Central Government shall respect the exercise of the competences and exclusive powers of the Bangsamoro Government.”13 Emphasis on exercise of exclusive powers is further affirmed by the concept of devolution which “the Parties accept” in the APS as “[involving] a process of empowerment, mobilization, capacity building and financing”;14 this may imply further justification to the powers granted to the Bangsamoro Government exclusively in addition to its concurrent powers.

The BBL areas within the scope of exclusive powers in the Bangsamoro territory are so extensive that they cover the entire range of governmental authority, effecting the exclusion of the National Government and, as a consequence, eliminating the accountability of the latter as a duly constituted government established by the sovereign



authority of the Constitution.15

There can be no recognition of powers and jurisdictions exclusive to the Bangsamoro Government; otherwise, the Republic would be conceding that it does not possess internal sovereignty or supreme authority over matters within the exclusive powers of the Bangsamoro Government. National sovereignty is indivisible.

III. the coNStitutioN’S autoNomouS regioN aND the baNgSamoro

In Section 1, Article X, the Constitution mandates that “There shall be created autonomous region in Muslim Mindanao.” Together with the appropriate provisions of the fundamental law, national laws form part of the constitutional standards for the creation and governance of autonomous regions.16

The core directive of the fundamental law is that the autonomous region “shall be created … within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines”.17 Thus the elements integral to the creation of the autonomous region are: (1) conformity to the directives of the Constitution; (2) the Republic’s national sovereignty; and (3) its territorial integrity.

1. Constitutional framework

As to the first element, the Bangsamoro appears to found its creation not on the Constitution, but on the basis of the contractual relations between the GPH Peace Negotiating Panel and the MILF to be implemented by the BBL. As a consequence, the definitive features of the BBL in terms of powers, jurisdiction, rights and accountability, charged upon the Bangsamoro Government appear as implementation of the CAB, together with all the Annexes. In other words, the CAB is the BBL shaped into legislative form for the formality of enactment by Congress.

To be emphasized is the extraordinary character of the BBL in that it affirms in its Preamble common to both House Bill No. 4994 and Senate Bill No. 2408, that its promulgation into law is done by the Bangsamoro people themselves. It reads as follows:

We, the Bangsamoro people and other inhabitants of the Bangsamoro, imploring the aid of the Almighty, … for genuine and meaningful self-governance as stipulated under the Comprehensive Agreement on the Bangsamoro (CAB); … do hereby ordain and promulgate this Bangsamoro Basic Law, through the Congress of the Republic of the Philippines, as the basic law of the Bangsamoro ….18

In this light, the Congress, which is the sole repository of plenary legislative power under the Constitution becomes merely an instrumentality of the Bangsamoro people’s self-determination. This may imply that Congress, in the exercise of its legislative function in the process of enacting the BBL, is circumscribed by the mandate of the Bangsamoro

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people expressed in the CAB and the BBL.

Moreover, the President of the Republic has committed himself to the enforcement of or compliance with the CAB vis-à-vis the enactment into law of the BBL. In his Executive Order No. 120 of 17 December 2013, issued for “Constituting the Transition Commission” in compliance with the CAB, he made the following commitment:

[1] …[T]he Government entered into the 2012 Framework Agreement …, which is envisioned to pave the way for the peaceful resolution of the armed struggle in Mindanao ….

[2] [T]he Government acknowledges its commitment to exert all efforts towards realizing the full implementation of the Agreement; ….19

[3] The Transition Commission shall have the function “To draft the proposed Bangsamoro Basic Law with provisions consistent with the 2012 Framework Agreement on the Bangsamoro; ….20

The Presidential act of creating the Transition Commission appears to be the President’s implementation of the FAB’s directive in Part VII, in particular addressed to him, namely:

[1] “There shall be created a Transition Commission through an Executive Order ….”21

[2] “The draft Bangsamoro Basic Law submitted by the Transition Commission shall be certified as an urgent bill by the President”.22

As indicated above, the President has ordered that the BBL should be drafted “with provisions consistent with the 2012 Framework Agreement on the Bangsamoro.” It is to be wished that he should have desired that it be consistent with the Constitution. Instead, he intended it is the Constitution that is to be amended. His Executive Order says in section 3(b) that “Whenever necessary, [the Transition Commission] recommend[s] to Congress… the proposed amendments to the 1987 Philippine Constitution.” Apparently, he is of the view that it is the Constitution which must comply with the CAB or the FAB.

The President has complied with the foregoing mandate derived from the CAB, not from the Constitution and not from the existing national laws. After considerable delay in its submission to Congress on account of amendments to the Commission’s draft by the Office of the President, the BBL formally has become the act of the President by reason of his certification of the BBL as his urgent bill in compliance with the CAB.

Section 17, Article X of the Constitution provides: “All powers, functions, and responsibilities not granted by the Constitution or by law to the autonomous regions shall be vested in the National Government.” In extensive departure from the fundamental law in this mandate, the BBL, in implementation of the CAB, creates an entire political



system constituted by powers, functions and responsibilities independent of the National Government; in fact, the impact of that system consists in the intrusion of concepts of government alien to the Constitution’s own political system. Under the fundamental law, the organic act of the autonomous regions shall have as “the basic structure of government for the region consisting of the executive and the legislation assembly.”23 This is understood to require that such structure shall be “consistent with the provisions of this Constitution and [existing] national laws”.24 The constitutional system as thus prescribed undergoes a radical revision, both the CAB and the BBL establishing the “asymmetrical political relationship” between the National Government and the Bangsamoro Government. As a result, the CAB and the BBL have the effect of rejecting the cornerstone principle of the Constitution, namely, the separation of powers. What may have become asymmetrical is the Constitution.

Taking into account the violence done on the Constitution as brought out in the present review, incredible, to say at least, is the direct involvement of the President and the Congress in the inordinate claims of the CAB and the BBL, as shown above.

2. National sovereignty

The second premise of the Constitution in the creation of an autonomous region is that it is to be established within the framework of national sovereignty. Under the fundamental law, national sovereignty pertains to the people’s act of sovereignty pursuant to the supremacy clause of the Constitution in Section 1, Article II that “Sovereignty resides in the people and all government authority emanates from them.” The powers of the National Government that the fundamental law ordains are expressive of sovereignty, the contravention of which by the CAB and the BBL is effected by the derogation, of such powers. How the Parties to the CAB derived their authority to this effect and by what legal capacity empower them to do so continue to be a juridical vacuum.

At any rate, the concept of “reserved powers”, together with that of “current powers” and “exclusive powers” are creations of the Parties that are at war with national sovereignty. In the concept of “concurrent powers”, the CAB and the BBL set up a reorganized structure of power into a hierarchy unknown in the Constitution where the Bangsamoro Government stands in parity with the National Government, and, in specified areas of authority, exercises power in relative independence of the National Government.

Consequently, the entire system of governmental powers is split into two by the concept of powers exclusive to the Bangsamoro, leaving the Bangsamoro in the exercise of exclusive powers covering vast areas of authority. Thus, national sovereignty itself is subjected to dichotomy of powers, functions, and responsibilities, from which emerges the Bangsamoro entity under the CAB and BBL imbued with “internal sovereignty”, by which it will maintain relation with the National Government. Overall, the BBL in implementation of the CAB presents a creation of a political system within the Philippine State, with its own territory, population, government, and natural resources, intended to function in relative independence from the National Government.

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From the projected concept that the National Government delegates or devolves powers to the Bangsamoro Government, the latter is said to derive, in the language of the CAB’s APS, the “process of empowerment, mobilization, capacity building and financing that can be strengthened by strong cooperation and partnership” between the two governments.25 But this arrangement is a reversal of constitutional principles and therefore impermissible; only such powers and responsibilities as the Constitution grants to autonomous regions may be exercised or applied by the Bangsamoro Government and those “not granted by the Constitution or by law to the autonomous regions shall be vested in the National Government.”26 And as granted to the National Government, they are not delegable or transferable by devolution or by any other means to any political subdivision.

The limits which the Constitution imposes on the powers, functions and responsibilities of autonomous regions are not confined to those explicitly provided by the fundamental law; the Constitution sets additional limits by means of “law” in Section 17 or by “national laws” in Section 20, both of Article X. A reasonable interpretation of these provisions is that these national laws or statutory enactments of national character are not subject to amendment or repeal by the BBL or any other legislative enactments if they are intended to, or for the purpose of, changing the constitutionally ordained powers and status of autonomous regions. To this extent or under these limitations, the BBL suffers from basic infirmity and may justifiably be pronounced as in contravention of the fundamental law.

In providing for the organic act of autonomous regions expressly subjecting their legislative power to be governed by national laws, the Constitution creates a secondary tier of legislative enactment, namely, the organic act below and subordinate to national laws.

3. Territorial integrity

Integrated into national sovereignty is the element of territorial integrity; in particular, this may pertain to how the Constitution characterizes the nation’s natural wealth and resources. On two fundamental principles, the Constitution prescribes that

[1] All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna and other natural resources are owned by the State.”27

[2] The exploration, development and utilization of natural resources shall be under the full control and supervision of the State.28

The ownership and control of the State do not pertain or relate to the exclusive authority and jurisdiction of any local government unit or autonomous region. That the natural resources belong to the State, together with full control of their exploration, development utilization, is a designation of the people’s ownership as their act of sovereignty for their life’s support, derived from the premise that “all government authority emanates from



them”. Inherent in the People’s ownership is the principle of intergenerational equity that looks forward to the interest of future generations of Filipinos.

So essential is this mandate that as embodied in the international law of human rights, it is more appropriately described as the “right of the people”. Common to Articles 25 and 47, respectively, of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights is the following text:

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

Both Covenants provide as well in common paragraph 2, Article 1, that

“In no case may a people be deprived of its own means of subsistence.”

The two Covenants have the force of law on the Philippines, being a State Party to both.29

On the other hand, both the CAB and the BBL are of the assumption that the natural resources of the State in the Bangsamoro territory are matters consigned exclusively to the Bangsamoro; in their long litany of exclusive powers, for example, are listed natural resources, wildlife, natural reserves, marine and aquatic resources, inland waters, agricultural land use, and power generation.30

Under the “power sharing” arrangement of the CAB, and as provided in Section 8, Article XIII of the BBL, the Bangsamoro Government

shall have the authority, power, and right to explore, develop and utilize the natural resources including surface and sub-surface rights, inland waters, coastal waters, and renewable and non-renewable resources in the Bangsamoro.

All these matters are covered by the exclusive powers of the Bangsamoro Government. In particular, as to mineral resources, the BBL in Section 13, Article XIII provides that “The Bangsamoro Government shall have authority and jurisdiction over the exploration, development, and utilization of mines and mineral resources in its territory.”

In the extraordinary grant of preferential rights, Section 11, Article XIII of the BBL reads:

Qualified citizens who are bona fide inhabitants of the Bangsamoro shall have preferential rights over the exploration, development, and utilization of natural resources, including fossil fuels (petroleum, natural gas, and coal) and uranium, within the Bangsamoro territory.31

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The conception of territory in our constitutional system is that it is an element in the formation and praxis of the Philippines as a State; the fundamental law characterizes it as a unity in “national territory … with all the islands and waters embraced … and all other territories over which the Philippines has sovereignty and jurisdiction.”32 The territory as a geographic area is unified by national sovereignty, not fragmented into exclusive jurisdictional control of local government units or autonomous regions.

However, the CAB and the BBL conceive of the Bangsamoro territory as an integration of essential features, namely, its own powers and jurisdiction constituted into a government, population, and territory, which are in relative independence from the National Government, and independent as well from the Constitution.

iv. DerogatioN of NatioNal goverNmeNt to co-eQuality with the autoNomouS regioN

In establishing the validity of the creation and governance of autonomous region in Muslim Mindanao, the mandate of the Constitution adopts national laws as the basis, together with those which the fundamental law itself stipulates. Thus the Constitution in Section 16, Article X directs the President to exercise general supervision over autonomous regions “to ensure that the laws are faithfully executed.”33 Section 17 of that Article says that “All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government”;34 this provision necessary implies that the autonomous region in Muslim Mindanao shall only have “powers, functions, and responsibilities” as are granted by the Constitution and the national laws. This provision controls the interpretation and application of Section 20 of the same Article even as it provides that the organic act of autonomous regions shall provide for legislative powers . . .” in specified areas of governance. Such legislative powers are “subject to the Constitution and national laws.”35

As constituted under the CAB and the BBL, the Bangsamoro political entity is created outside the constitutional box. It is imbued with powers, functions and responsibilities far in excess of the nature attributed to the autonomous region by the Constitution or to any of the political division of the Republic. It is something else other than the autonomous region as characterized by the Constitution.

However, under the CAB and the BBL, it is the Bangsamoro Government that establishes limitations to the power of Congress. Beginning with the concept of reserved powers, Congress may provide general or special power or jurisdiction exercisable by the National Government in its relation with local government units, including autonomous regions. On account of the CAB and the BBL, the Bangsamoro would be excluded from the application of such national laws. Derogation of national legislative power would necessarily be implied or expressly provided if exercised within the scope of concurrent powers and, in particular, within the coverage of exclusive powers as exercised by the Bangsamoro Parliament.



For example, what is the implication of the general welfare clause that may be enacted by the Bangsamoro Parliament? It provides in Section 24, Article VII of the BBL: “The Bangsamoro Parliament shall pass laws that promote the general welfare of the people in the Bangsamoro”. In the event that Congress enacts laws of the same nature, would the scope of their application or enforcement be implied or expressly articulated as excluding the Bangsamoro population on account of Bangsamoro’s own legislative powers as stipulated by the BBL? Or would congressional enactments retain their national scope? Beyond this specific area, the authority of the Bangsamoro Parliament is plenary “on matters that are within the powers and competences of the Bangsamoro Government”,36 which may embrace all the concurrent powers and exclusive powers, together with the powers which the CAB and the BBL exclude from the reserved powers attributed to the National Government. Moreover, the expansive jurisdiction of the Bangsamoro Parliament may overlap with the entire field of national legislation owing to the conception that, in matters with respect to Bangsamoro

The powers of government shall be vested in the Bangsamoro Parliament, which shall exercise those powers and functions expressly granted to it in this Basic Law, and those necessary for or incidental to the proper governance and development of the Bangsamoro.37

With the Bangsamoro Parliament endowed with such expanse of power and accountability, it stands in the CAB and the BBL in equal standing with the Congress of the Republic. This parity status gains recognition by means of the following provisions of the BBL in implementation of the CAB:

[1] There shall be a Philippine Congress — Bangsamoro Parliament Forum for purposes of cooperation and coordination of legislative initiatives.38

[2] The Central Government and the Bangsamoro Government shall establish a mechanism at the highest levels that will coordinate and harmonize their relationships.

….[A] primary mechanism shall be a Central Government-Bangsamoro Government Inter-governmental Relations Body to resolve issues on intergovernmen-tal relations. All disputes and issues relating to these intergovernmental relations shall be resolved through regular consultations and continuing negotia-tions in a non-adversarial manner.39

The disputes and issues referred to in the foregoing provisions of the BBL arise from incidents in the relations of two political systems or entities which are relatively equal in status and thus the assumption is that the Bangsamoro Government is in intergovernmental relationship with the National Government at the same “highest level”. However, it should be obvious that, as the Constitution prescribes, all autonomous regions and subdivisions

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are subject to, and under the supreme authority, of the National Government, in particular of its Legislative Department.

In the established legal system, the ordinances, rules and regulations promulgated by the legislative bodies of the local government units operate as binding within their respective local jurisdictions. In striking difference from such localized “laws”, the BBL institutes a new category of a legal system of but a mere political subdivision of the Republic, the binding scope of which is of the same national character as the enactments of Congress. Of the same subject-matter and nature of applicability are the legislative enactments of the Bangsamoro Parliament, as well as the concurrent and exclusive powers of the Bangsamoro Government; they are inherently to the interest of the nation or people as a whole, such as human rights, natural resources, waters, environment, and matters covered by the general welfare clause.

In our constitutional system, an autonomous region in Muslim Mindanao is a territorial and political subdivision of the Republic of the Philippines. A part cannot be higher than the whole, nor can it stand in co-equality. This may appear axiomatic in the nature of things, but in the down-to-earth reality of the living Constitution, its juridical status is enforced by a dynamic hierarchy of power where the autonomous region of Muslim Mindanao is without power except as endowed by the Constitution and the national laws. It cannot be asymmetrical to the fundamental law. The concept of autonomous region remains immutable in the Constitution as it stands without amendment. And it stands impervious to change by contractual stipulation.

v. coNcluDiNg StatemeNt

With all these infirmities, it is submitted that the Bangsamoro Basic Law (BBL) is way outside the legislative process involved in the bill becoming a law as set forth in Article VI of the Constitution; it may be constituted as a major constitutional reform that pertains to the function of Congress under Article XVII of the Constitution on “Amendments or Revision”. Its substantive content may be transformed into an Ordinance to be appended to the Constitution.

NOTES

(Endnotes)

1 Executive Order No. 120 constituting the Transition Commission, uses the nomenclature “Comprehensive Agreement on the Bangsamoro”.

However, House Bill No. 4994 employs the expression “Comprehensive Agreement on the Bangsamoro” in the Explanatory Note.

Paragraph 2 of Part IX of the Comprehensive Agreement stipulates:



The Parties commit to work further on the details of the Comprehensive Agreement in the context of this document and complete a comprehensive agreement by the end of the year.

The components of the Comprehensive Agreement on the Bangsamoro are: (1) Framework Agreement on the Bangsamoro; (2) Annex on Transitional Modalities and Arrangements; (3) Annex on Revenue General and Wealth Sharing; (4) Annex on Normalization; (5) Annex Power Sharing; and (6) Addendum on the Matter of Bangsamoro Waters.

2 CAB was signed by both Parties on 27 March 2014, the Comprehensive Agreement on 15 October 2012.

3 Emphasis added.

4 See first paragraph of the Annex on Power Sharing (APS).

5 See Second para. of the APS.

6 CAB Part III, para. 1.

7 CAB, Part III, para. 2. Emphasis added.

8 APS, third para.

9 See supra, note 7.

10 See Constitution, Art. X, Sec. 17.

11 See APS, Part Three, II; BBL, Art. V, Sec. 2.

12 APS, Fifth paragraph

13 See APS, Part One, paragraph 2.

14 Exclusive powers in BBL as provided in Section 3, Article V apply to the following areas or matters: Agricultural, livestock and food security; Economic and cultural exchange; Contract loans, credit and other forms of indebtedness with any government, private bank and other lending institutions, except those requiring sovereign guaranty; Trade, industry, investment, enterprises and regulation of businesses taking into consideration relevant laws; Labor, employment, and occupation; Registration of business names; Barter trade and counter trade with ASEAN countries; Establishment of Free ports; Tourism; Creation of sources of revenue; Budgeting; Financial and banking system; Establishment of Bangsamoro government-owned and/or controlled corporations and financial institutions; Authority to regulate power generation, transmission and distribution

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operating exclusively in the Bangsamoro; Operation of public utilities; Receive grants and donations; Education and skill training; Science and Technology; Research councils and scholarships; Culture and language; Sports and recreation; Regulation of games and amusement operations; Libraries, museums, historical, cultural and archaeological sites; Regulations on manufacture and distribution of foods, drinks, drugs and tobacco; Haff and Umrah; Customary laws; Declaration of Bangsamoro holidays; Ancestral domain and natural resources; Protection of the rights of the indigenous people; Land management, land distribution, and agricultural land use reclassification; Cadastral land survey; Expropriation and eminent domain; Environment, parks, forest management, wildlife, nature reserve and conservation; Inland and waterways for navigation; Inland waters; Customary justice; Shariah courts and Shariah justice system; Public administration and bureaucracy for the Bangsamoro; Health; Social services, social welfare and charities; waste management; Establishment and supervision of humanitarian services and institutions; identification, generation and mobilization of international human resources; Establishment of Ausqaf (endowment) and charitable trusts; Hisbah office for accountability as part of Shariah justice system; Registration of births, marriages, and deaths; Housing and human settlements; Development planning; Urban and rural development; Water supplies and services, flood control and irrigation systems in Bangsamoro; Public works and highways within the Bangsamoro; Establishment of appropriate mechanisms for consultations for women and marginalized sectors; Special development programs and laws for women, the youth, elderly, labor, the differently-abled, and indigenous cultural communities; and Local administration, municipal corporations and other local authorities including the creation of local governments. In addition to these 57 matters which the CAB in Part III also provides it includes a general welfare clause which says “Establishment or creation of other institutions, policies and laws for the general welfare of the people in the Bangsamoro.

15 Constitution, Art. X, sec. 17. See also Section 16 of this Article

16 For reference to national laws as constitutional standards, see sections 16, 17, 18, and 20 of Article X of the fundamental law.

17 Constitution, Article IX, Sec. 15. Emphasis added.

18 Emphasis added.

19 Executive Order No. 120, sec. 3(a). This is in pursuance of FAB in Part VII, para. 4(a).

20 Part VII, para. 3.

21 Para. 7.



22 Art. X, Sec. 18.

23 Id.

24 APS, Part One, para 5.

25 Const., Art. X, sect. 17.

26 Article XII Sec. 2. Emphasis added.

27 Id. Emphasis added.

28 Emphasis added.

29 Respectively: 993 UNTS 3, entered into force 3 January 1976; 993 UNTS 171, entered into force 23 March 1976.

30 CAB, Annex on Power Sharing; Part III. BBL, Art. V, sec. 3.

31 Section 16: “The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed; Sec. 17: “All powers, functions, and responsibilities not granted by the Constitution or by law to the autonomous regions shall be vested in the National Government”; Sec. 18: “The Congress shall enact an organic act for each autonomous region…. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of the Constitution and national laws”; Sec. 20: “Within its jurisdiction and subject to the provisions of the Constitution and national law, the organic act of autonomous regions shall provide for legislative powers…” (Emphasis added.)

32 These legislative powers are over: “Administrative organization; Creation of sources of revenue; Ancestral domain and natural resources; personal, family, and family relations; Regional, urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region”.

33 Emphasis added.

34 Emphasis added.

35 Emphasis added.

36 BBL, Art. VII, sec. 2. Emphasis added.

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37 BBL, Art. VII, sec. 1. Emphasis added.

38 BBL, Art. VI, Sec. 8.

39 BBL, Art. VI, Sec. 4. Emphasis added.

••• •••


The Proposed Bangsamoro Basic Law: Some Legal and Political Issuesthe propoSeD baNgSamoro baSic law:

Some legal aND political iSSueS

Nasser A. Marohomsalic*

For the Bangsamoro, the road to autonomy is a pitfall of pockmarks, potholes and what-have-you. The capitulation of the Moro Sultanates to the American colonialists on some terms of amity through the 1900s did not quench the spirit of the Bangsamoro to be free.

Road to Autonomy

In the 1934 Constitutional Convention, they registered their opposition to any plan to include their homeland as part of the Philippine Republic. But their protestations were ignored1. From then on Moro revolutionary leaders would emerge and keep on the struggle, which the Philippine Government would suppress every time as an act of outlawry, the undertakers and spearheaders of the revolution treated as a fair game. If not dead in battle, all cajolery resorted to for their surrender and thereafter imprisoned and tried, no room for leniency in some cases given the terms of their surrender an unwritten commitment from the powers-that-be in Manila.2

In the closing decade of the 1960s3, the Moro National Liberation Front (MNLF) emerged to continue with the armed struggle for self-determination of the Bangsamoro. Negotiation after negotiation with the rebel organization proved futile, until a peace deal between the Philippine Government (GPH) and the MNLF was concluded in 1996. With the autonomous government in Muslim Mindanao in the hands of the MNLF from 1997

* Presently, National Secretary of the IBP and Member of the IBP Law Journal. He was IBP Governor of Western Mindanao Region (2009-2011), former Commissioner of Human Rights (1994-2001), former Com-missioner of the 1988 Regional Consultative Commission for Muslim Mindanao, founding Convenor of the Philippine Council for Islam and Democracy which spun off into the Philippine Center for Islam and Democ-racy, founding Member of the Board of the Legal Network for Truthful Elections and founding Chair of the Muslim Legal Assistance Foundation. He is the author of a book on the history of the Bangsamoro entitled, Aristocrats of the Malay Race, 2001. A collection of his Speeches as Human Rights Commissioner entitled, Towards Peace, Autonomy and Human Rights was published by the Institute of Foreign Service in 1999 in commemoration of the 50th anniversary of the Universal Declaration of Human Rights. Many of his articles were published in various journals and media. Atty. Marohomsalic receives a plaque of recognition from President Aquino III for invaluable services to the Indigenous Peoples through his scholarly defense of the constitutionality of the Indigenous Peoples Rights Act of 1997 on the occasion of the 15th anniversary of the law at GSIS Theater on October 30, 2012.

This article was submitted to the AD-HOC Committee on the Bangsamoro Basic Law of the House of Repre-sentatives during the hearing on the bill on November 28, 2014.

1 See Nasser A. Marohomsalic, Aristocrats of the Malay Race: A History of the Bangsa Moro in the Philippines. 2001: Art Angel Printshop, 1st edition, pp. 142-146.

2 Id., pp. 146-149. The Kamlon Rebellion is a case in point. Moro leaders negotiated for his surrender. First, he sent his wife who met with President Magsaysay. Magsaysay did not appreciate the gesture, a highest form of courtesy in Muslim tradition. Later Kamlon met him in Malacañang and, instead of granting him amnesty, he was imprisoned, tried and convicted. Another case is Ibrahim Mama-O, one of the leaders of the Ikhlas which laid siege Camp Keitley in Marawi City on October 21, 1972. After his release from prison, he worked at Amanah Bank and later at the Saudi Embassy as Economic Adviser.

3 For a full discussion of the revolutionary period in the annals of the Moro armed struggle, see Marohomsalic’s Aristocrats of the Malay Race, id., pp. 151-170.

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to 2001, the MNLF kept the peace. Out of Government, the MNLF leadership figured in a leadership crisis, breaking up into three factions. Except for Misuari’s wing, the two (2) renegades collaborated with GPH. Misuari went back to armed struggle and in 2014 declared independence for the Bangsamoro.

Through all these years, the Moro Islamic Liberation Front (MILF) that broke away from the MNLF formally in 1981, has grown strength. They waited on during the peace settlement between the MNLF and the GPH. As early as 1995 the GPH negotiated for peace with the MILF. Seventeen years thence and through a rough-and-tumble course, the parties signed the Framework Agreement on the Bangsamoro (FAB) on October 15, 2012.

Framework Agreement on the Bangsamoro

On March 27, 2013, the GPH and the MILF signed the Comprehensive Agreement on the Bangsamoro (CAB). This agreement is an enumeration of all agreements previously entered into by both Parties.

Among these agreements, the most substantial is the Framework Agreement on the Bangsamoro (FAB), signed on October 15, 2012.

The FAB has the following components, namely:

1) The establishment of the Bangsamoro Government in a Basic Law that is ministerial in form;

2) The delineation of powers between the Bangsamoro Government and the Central Government including the strengthening of the Shariah Judicial System;

3) Revenue Generation and Wealth Sharing;4) Mechanisms for the legislation or enactment of the Basic

Law and the establishment of the Bangsamoro Transition Authority to govern the affairs of the Bangsamoro Government until the election of 2016;

5) Basic Rights of the Bangsamoro; and6) Normalization or the return to pre-war status.

Under these subject headings are provisions fleshing them into form and shape. But couched in general terms, they only etched a general outline of the picture, so to speak. Annexes are incorporated therein to further provide legal resolution to these provisions. But what comes out for a by-product is still a sketchy political entity lacking so much substantive details and trimmings to acquire a full name.4

4 Speech of President Aquino on the FAB, posted at www.gov.ph. In this speech the President said: “There are still details that both sides must hammer out. Promises must be kept, institutions must be built nationally and regionally in order to administer the Bangsamoro.”


The Proposed Bangsamoro Basic Law: Some Legal and Political Issues

Product of Peace Agreement

President Benigno Simeon “Noynoy” Coquangco Aquino III has this to say of the FAB, thus:

This framework agreement is about rising above our prejudices. It is about casting aside the distrust and myopia that has plagued the efforts of the past; it is about learning hard lessons and building on the gains we have achieved. It is about acknowledging that trust had to be earned – it is about forging a partnership that rests on the bedrock of sincerity, good will, and hard work.5

He denounced the Autonomous Region in Muslim Mindanao (ARMM) created in 1990 by Republic Act No. 9054, as a “failed experiment.”6

For the abolition of the ARMM and the creation of a parliamentary government in its stead, the FAB provided modalities prescribing the passage of a Bangsamoro Basic Law by Congress and participation thereof by the Bangsamoro, among others. Accordingly, the President issued Executive Order No. 120 on December 18, 2012 creating the Bangsamoro Transition Commission (BTC) with 15 members, seven selected by GPH and eight by the MILF including its chairman and appointed its membership. The BTC submitted its draft of the Bangsamoro Basic Law to the President and after a reformulation thereof by the peace panels of both parties7, the President certified it as a priority bill and endorsed it to Congress on September 9, 2014.

In fine, unlike Republic Act 9054 the proposed Bangsamoro Basic Law is a product of peace negotiations between the GPH and the MILF. Opines Carolyn O. Arguillas of Mindanao News, “Contrary to popular perception the ARMM is ... a product of the national government’s interpretation of how to end the Bangsamoro struggle.”8

Social Obstacles

Interest groups have registered their opinions on the bill, some raising political issues, others legal. So far, the public pulse is an uneven graph on the political seismometer. Particularly, legal luminaries are divided on the constitutionality of some of its provisions, which does not surprise me.

Lawyers are bred for disputation, and legal advocacy is their occupation. They can take a position on legal or political issues even without affection. In keeping with their duties to society, they are bound “never to reject, for any consideration personal to (themselves) the cause of the defenseless or oppressed; (and) in the defense of a person 5 Id.

6 Newsinfo.inquirer.net posted on February 5, 2011, entitled Palace Says ARMM failed experiment by Norman Bor-dadora of the Philippine Daily Inquirer.

7 A four-member Panel of Independent Lawyers participated in the undertaking, which included the author.

8 Carolyn O. Arguillas, Why Offer a “tailed experiment as Platform for Peace? Dated September 8, 2011 and posted at Mindanao News at www.mindanews.com.

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accused of a crime, by all fair and honorable means, regardless of (their) personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.”9

Fear and Prejudice

Perhaps, there is no other bill as closely scrutinized with hostility by critics as the proposed Bangsamoro Basic Law. Some of them even turned alarmist, expressing their fears that the self-government envisioned in the PBBL will be a stepping board for independence. At the hearing in the House of Representatives last November 28, 2014, a representative of the uniform sector of society batted for the inclusion of a provision to the effect that the Bangsamoro must not secede from the country or that they have no right to secession, which is a contravention of international law.

I remember an incident when I was Commissioner of Human Rights. After a media forum held in a function of a pricey restaurant and, while closeted in its comfort room taking relief, a Cabinet member and his undersecretary, who took to the urinals and did not see me entering the CR, were talking to each other, expressing their incredulity at my representation before the press.

“Iyan si Nasser, maniwala ka jan na he is for genuine autonomy. Lahat ng Muslim ang gusto ay independence,” the Secretary said.

“Bigyan mo sila ng meaningful autonomy, they’ll continue on with their revolution and demand for a better deal,” his undersecretary agreed.

The Cabinet Secretary has a military background while his deputy is a non-Moro lawyer who was once a provincial chief executive in Muslim Mindanao.

The hostility by the majority Filipino population towards the Bangsamoro is a stark reality. I have documented instances in my research on the subject, which happened in schools, restaurants and the media. One incident in 1995 landed in court and memorialized in MVRS Publications, Inc. vs. Islamic Da’wah Council of the Philippines10. In here, a reporter in a tabloid said that the Muslims hold the pig sacred and even worship the animal, and so they don’t eat pork. I quote the exact words, thus:

ALAM BA NINYO?

Na ang mga baboy at kahit anong hayop sa Mindanao ay hindi kinakain ng mga Muslim?

Para sa kanila ang mga ito ay sagradong bagay. Hindi nila ito kailangan kainin kahit na sila pa ay nagutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang “Ramadan.”

9 Canon I (8)(9), Chapter 1, Code of Professional Responsibility.

10 210 SCRA 236, 2003.



The Supreme Court dismissed the libel case. But Associate Justice Antonio Carpio dissented and classified the news item as scurrilously libelous. I cannot imagine a news item more scurrilously libelous. I cannot imagine a news reporter and the management of a tabloid so ignorant as people were in the Dark Ages not to know about the teaching of Islam on pork as a verboten food, prohibited for religious and scientific or medical reason. Christians who read the Old Testament and are serious of their religion would know that the meat of cloven-hoofed swine is a forbidden food.11

Early Social Advocates

J.B.L. Reyes, former Associate Justice of the Supreme Court and first president of the Integrated Bar of the Philippines (IBP), prescribes for lawyers an inter-disciplinary education so they become more relevant to society as spearheaders in the resolution of the social ills that plaque society and retard developments. Among non-Muslim lawyers, he and Raul Manglapus were the first to recognize the need to address the Moro Problem and recognize their legal system. On May 7, 1973 and for his inaugural address as IBP president, JBL Reyes said, thus:

... apparently neglected up to present, is the need for a thorough study of the basic legal rules of the Islamic law, as applied and observed by their own judges and jurists. A thoughtful contrast thereof with our own basic tenets could delineate the areas where the Islamic law may be left to govern those professing the Moslem faith without endangering national unity, thus effectively answering the claim of our brothers from the South that they are discriminated against by a general and compulsory application of jural rules of Christian origin. The experience of countries with large Moslem minorities, like Lebanese Republic, deserves careful observation, for we may derive from them lessons in legal coexistence that may contribute to the pacification of certain regions in Mindanao.12

As early as 1972 or even earlier, Manglapus had gone on record on the extent of the national debt to the Bangsamoro. Before the conference entitled, Islam: Its Demands Upon the Muslims and Their Leaders, he said:

It has not really occurred to us to recognize [the Bangsamoro] as they are, a proud indigenous component of our national mosaic pattern.

In Christian-Muslim Lebanon, the Muslims by constitutional order are assured a role in government commensurate with their numbers.

11 Leviticus 11:7.

12 JBL Reyes, Prospects of the Integrated Bar, IBP Journal, Vol. 1, No. 1, June 1973 issue.

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It is time that we do so in our own constitution, as a recognition not of a religion but of the realities of our cultural pluralism. There are many multi-cultural nations which have achieved greatness by the acceptance of a national unity amid cultural diversity.13

In the post-Edsa Senate, Manglapus sponsored Resolution No. 10 at its earliest sessions expressing greater participation of the Bangsamoro in Central Agencies of Government including Government-owned and controlled corporations in pursuit of representative democracy.

My point is, in tackling the legal and political issues on the proposed Bangsamoro Basic Law, there could be no better guidance than the wisdom of the icon of the IBP who is a civil libertarian of the highest order and one statesman par excellence Senator Raul S. Manglapus.

It is my submission that the proposed Bangsamoro Basic Law is an objectification of self-government as envisioned in the Constitution and the United Nations Declaration of the Indigenous Peoples.

Let me go then through the provisions of the proposed BBL where lawyers and other sectors take issue.

Preamble

The preamble of the bill is a long construction, and some lawyers took issue with it. This is how facile and feeblish critics have become in their prejudice. For easy reference, the preamble reads:

We, the Bangsamoro people and other inhabitants of the Bangsamoro, imploring the aid of the Almighty, aspiring to establish an enduring peace on the basis of justice in our communities and a justly balanced society, and asserting our right to conserve and develop our patrimony;

In consonance with the Constitution and the universally accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international law, reflective of our system of life prescribed by our faith, and in harmony with our customary laws, cultures and traditions;

Affirming the distinct historical identity and birthright of the Bangsamoro people to their ancestral homeland and their right to self-determination – beginning with the struggle for freedom of their forefathers in generations

13 Raul S. Manglapus, Towards a Muslim-Christian Manifesto, July 2, 1972. In Amado Luis Lagdameo, ed., Christian-Muslim Democracy: Waive of the Future. 1996: Inkwell Publishing, p. 62. (Bracket supplied)



past and extending to the present – to chart their political future through a democratic process that will secure their identity and posterity, and allow for genuine and meaningful self-governance as stipulated under the Comprehensive Agreement on the Bangsamoro (CAB);

With the blessings of the Almighty, do hereby ordain and promulgate this Bangsamoro Basic Law, through the Congress of the Republic of the Philippines, as the basic law of the Bangsamoro that establishes the asymmetrical political relationship with the Central Government founded on the principles of subsidiarity and parity of esteem.

Many do not know that this provision is a reformulation of the Bangsamoro Transition Commission’s Draft and is crafted with the strong influence of Atty. Jose Luis Martin C. Gascon, who served as member of the 1996 Constitutional Commission that drafted the 1987 Constitution.

No doubt, the draft BBL is the Constitution of the Bangsamoro Government, providing as it does for a structure of power, a bill of rights and obligations and, as an added feature owing to its nature as a bigger local unit of the Philippine State, an inter-governmental mechanism to iron kinks over jurisdictional issues in matters of governance or problems in connection with the delineation of powers between the Bangsamoro Government and the Central Government or the Philippine Government. They argued that by the nature of the Philippine State as a unitary one, the provision of a preamble in a Bangsamoro Basic Law is odd, promoting disunity instead of unity and thus threatening the break up or the stability of the Philippine State.

It is my submission at the outset that no legal faultlines threaten to torn asunder the political fabric of the nation. If there is any, it is the insurgency of the revolutionary champions of the Bangsamoro. Precisely, the grant of self-government to the Bangsamoro under the proposed BBL is the political formulation to end their separatist insurgency.

The visions and aspirations of the Bangsamoro as enunciated in the Preamble of the PBBL check out with the principles and policies of the State in the Preamble of the 1987 Constitution or the policy objectives of the Philippine Constitution, which guarantee to the Bangsamoro autonomy within the framework of national unity and development as provided for in Article X of the Constitution.

Finally, for the cultural resolution of the issue, it suffices to point out that the Bangsamoro Preamble adduces the adherence by the Bangsamoro to the Philippine Constitution. Let me quote the pertinent passages in the Bangsamoro Preamble, thus:

We, the Bangsamoro people, . . . imploring the aid of the Almighty . . .

In consonance with the Constitution and the universally accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international

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law. . .

x x x

. . . do hereby ordain and promulgate this Bangsamoro Basic Law . . .

International Customary Law also embodies these rights or political values in abundance and are guaranteed to the Bangsamoro as indigenes. Let me quote only the pertinent general provisions of the United Nations Declaration of the Rights of the Indigenous Peoples (UN DRIP). Thus:

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.14

x x x

Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights in particular based on their indigenous origin or identity.15

x x x

Indigenous peoples have the right to selt-determination. By virtue of that right they freely determine their political status and freely pursue their economic social and cultural development.16

x x x

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-goverment in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.17

x x x

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social

14 Article 1, UN DRIP.

15 Article 2, id.

16 Article 3, id.

17 Article 4, id.



and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.18

The scope and extent of self-government for the indigenous peoples under the UN DRIP is expansive enough to lead even legal luminary to entertain the view that the kind of self-government defined herein is one of substate.

Indeed, this early and in all candor, I would like to believe that the objection to the inclusion of the preamble in the bill and the expression of the aspirations therein of the Bangsamoro is more political than legal.

Flag and Anthem

The same observation goes for the sentiments against the adoption of a flag and anthem for the Bangsamoro. In Article II, Section 3 of the proposed BBL, the Bangsamoro Parliament is empowered to adopt the official flag, emblem and anthem of the Bangsamoro.

In olden times and especially during the age of monarchism where absolute power over the realm was exercised by kings, princes and emperors, who claimed divinity or divine authority, the nobles were granted heraldries or emblems and sigils for authority including standards with heraldic signs to identify them. They’re flown over their manors and castles, battlements and parapets together with the standards of their overlord or king.

In the United States, every State flies its own flag. The Indian tribes sport their own individual flags too more in affirmation of their nationhood and social dignity than as a manifestation of their membership in the Union. And the U.S. Federal Government recognized their statehood and nationhood even where these Indian tribes were possessed of no formal, written Constitution but oral customs and traditions or laws in separate parchments. The United considered them as the governing body of laws or constitution of concerned Indian tribes.19

There’s no reason to deprive the Bangsamoro of the right to fly their own flag and sing their own anthem too. The Bangsamoro is a juridical entity exercising the power of self-government, impressed with such political character resulting from peace agreement between its people and the majority Filipinos. It’s people, sizeable of which are the Bangsamoro, have their own distinct history and social systems, thus, possessed of nationality or cultural identity that comes by as Bangsamoro. Their territorial domain is bigger than many independent states, including the principality of Monaco, Marianas, Singapore, Kuwait, Oman, Bahrain and some other independet States.

Much earlier, the Philippine Government acknowledged the historical identity of the Bangsamoro. In many of its literature, it denominated the problem in southern Philippines as a Moro Problem. It has gone into negotiation with the revolutionary organizations of the Bangsamoro and entered into peace agreements with them, which 18 Article 5, id.

19 William C. Camby, Jr., American Indian Law, 4th ed., West Publishing, p.

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organizations bandied around their identity as Bangsamoro. Spain and America called derisively the Muslim natives of southern Philippines as Moros. But the name is annealed in the cauldron of history as the finest and fierciest enemy of the white colonizers and the most freedom-loving people of all history.

Thus, Section 1, Article II of the proposed BBL is but a legislative affirmation of what the Philippine Government or the Filipino majority population of the country has already acknowledged of the Bangsamoro as possessed of historical identity. The provisions reads, thus:

The Bangsamoro people (are) those at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and heir descendants, whether of mixed or of full blood, shall have the right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and descendants are classified as Bangsamoro.

The right to identity and nationality is guaranteed in the UN DRIP (2007) and the Indigenous and Tribal Peoples Convention (1989).

Particularly under the UN DRIP, every indigenous individual has the right to nationality,20 and indigenes collectively have the right to live in freedom, peace and security as distinct peoples.21 They are regarded as indigenes on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.22

Nationality and identity come by in symbols more poignantly and pointedly than in

verbiage. As in olden times, characters and symbols are written or embossed on the flag not merely for artistry but to invest it with charm and magic or announce the ethos of the nation.

It is utter jingoism to prohibit a nation from donning out their flag and singing their anthem while recognizing their self-government and cultural identity.

Indeed, there is no better system to identify a nation. The flag, emblem and anthem are political perquisites of nationhood and the Bangsamoro wish to manifest their identity through their own flag and anthem.

20 Article 6 (1), id.


22 Part I, Article 1 (1b), Indigenous and Tribal Peoples Convention.



Territory

In Section 2, Article III of the proposed BBL, the core Bangsamoro Territory includes the areas of the Autonomous Region in Muslim Mindanao (ARMM), as follows: The provinces of Lanao del Sur including Marawi City, Maguindanao, Basilan including Isabela City, Sulu and Tawi-Tawi. Other areas include the municipalities and barangays which voted for the plebiscite in 2001 resulting in the ratification of Republic Act No. 9054, which amended Republic Act No. 6734. They include the following: the Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangay in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Madsayap. Included too are the cities of Cotabato and Isabela and all other areas where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the registered voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro. The maritime, terrestrial, fluvial and alluvial domains in these areas of land mass and the aerial domain above this land mass are considered Territory of the Bangsamoro.

These political units are to vote in a plebiscite for inclusion in the Bangsamoro. Only those voting in favour will constitute the Bangsamoro Government, the rejectionist out of its governance but still recognized as Bangsamoro Territory.

Representative Celso Lobrigat questioned the inclusion of municipalities and barangays in the plebiscite. He argued that in the proceedings of the 1986 Constitutional Commission, only provinces and cities voting in favor are considered for membership in the autonomous region in Muslim Mindanao.23

In response to his question at the hearing in the House of Representatives on November 28, 2014, former Associate Justice of the Supreme Court Jose Azcuna, who is a member of the 1986 Constitutional Commission which drafted the 1987 Constitution and who actively participated in the deliberation on the autonomy provisions of the Constitution, clarified that despite the discussion limiting cities and provinces for membership in the autonomous region in Muslim Mindanao, the phrase “geographic areas” was still included in the final draft of the Constitution following the words, provinces and cities. He further explained that the terms “geographic areas” was not defined by the ConCom and egged Congress to define it.

Nevertheless, Lobrigat took issue with the provision allowing geographic areas other than cities and provinces to participate in the plebiscite or to opt at anytime to join the Bangsamoro Governnment on a petition by 10% of the registered voters in a political unit and by a majority vote of its qualified voters in a plebiscite called for the purpose.24 He explained that problem of administration will ensue should municipalities and barangays belong to another region or province, which is not a part of the Bangsamoro territory, voted to join the Bangsamoro self-government. Dean Laviña of the School of Government of Ateneo de Manila addressed the problem by investing concerned local government units dual membership, that is, membership in the Bangsamoro Government while retaining its membership, in the case of a barangay, with the municipality or city it is adjoined to or, in the case of a municipality, its mother province. In terms of its 23 Proceedings of the 1986 ConCom, dated August 19, 1986, p. 490.

24 Section 2(d), Article III, PBBL.

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internal Revenue Allotment and financial assistance, a windfall will pour in to the coffer of political units with a dual membership.

Indeed, Lobrigat’s objection is political rather than legal. His resort to the history of the Constitutional provision does not lend support, in view of the clear provision of the Constitution that includes geographic areas in the enumeration of these areas or political units to compose the territory of the autonomous region in Muslim Mindanao. In legal construction, elementary is the rule that where the law is clear and unequivocal, thereby entertaining no room for interpretation, what controls is the provision of the law, not the intention of lawmakers expressed during Congressional deliberation.25

In the PBBL the intention to include the municipalities, the barangays and geographic areas within the Bangsamoro is direct and clear. Thus:

The provinces, cities, municipalities, barangays and geographical areas within its territory shall be the constituent units of the Bangsamoro.26

The use of the word, territory, to denominate the areas of the Bangsamoro impinges

on the Constitution, according to former Associate Justice of the Supreme Court Vicente Mendoza, at the hearing in the House of Representatives on November 28, 2014, adverting to its political signification as an element of statehood under the Montevido Convention. Without explanation, former Associate Justice of the Supreme Court Jose Azcuna, who is a member of the 1986 ConCom, expressed curtly a contrary view. I joined him, explaining that the word, territory, is used to describe the lands of the indigenous peoples in abundant provisions in the UN DRIP and the indigenous and Tribal Peoples Convention in 1989. Thus:

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.27

x x x

Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and deeds.28

x x x25 Lazariaga Hermanos vs. Yap Tico, 24 Phil. 504 (1933), etc.; Chartered Bank Employees Assn. vs. Ople, 138

SCRA 273, 1985, etc.

26 Section 6, Article III, PBBL.

27 Preamble (6), UN DRIP.

28 Preamble (10), id.



Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world.29

x x x

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.30

x x x

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.31

x x x

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.32

States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.33

x x x

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due

29 Preamble (12), id.

30 Article 10, UN DRIP




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recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.34

x x x

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.35

Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.36

x x x

Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programs for indigenous peoples for such conservation and protection, without discrimination.37

x x x

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.38

x x x

Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a

34 Article 27, id.







relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.39

States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.40

x x x

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.41

Another international instrument describes the lands occupied or otherwise used by the Indigenous and Tribal peoples as territories. Thus:

In applying the provisions of this Part of the Convention, governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.42

The use of the term lands in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.43

The UN DRIP is posited as an international customary law in North Cotabato Case44 and is a part of the Constitution according to its Incorporation Clause.45




42 Article 13(1), Indigenous and Tribal Peoples Convention.

43 Article 13(2), id.

44 North Cotabato Province, et. al. vs. Government of the Republic of the Philippine Peace Panel on Ancestral Domain, et. al., 568 SCRA 402, 523 (2008).

45 Section 2, Article II, Philippine Constitution.

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Constructive Patrimony

All inland waters, such as lakes, rivers, river system, and streams within the Bangsamoro territory are made part of the Bangsamoro.46 But the functional relation of the Bangsamoro as regards its inland waters is limited to regulation, management, protection and preservation of their resources,47 not strictly ownership in the tradition of the Civil Code on property, which if otherwise, would impinge on the Regalian Doctrine of the Constitution.48

As regards the scope of the Bangsamoro waters, the PBBL draws up 12 nautical miles from the low-water mark of the coasts that are part of the Bangsamoro territory49. It is made a part of the territorial jurisdiction of the Bangsamoro political entity.50 The PBBL has not categorically defined the functional relation of the Bangsamoro Government to its Bangsamoro Waters. But its power thereover could be well governed by the same rules prescribing its jurisdiction over its Inland Waters, which comes as an exercise of domestic authority like the authority of local government units over their respective Municipal Waters that projects outward from its shoreline by seven miles.51

Nevertheless, the patrimonial concern of the Bangsamoro over these waters including their ancestral land is addressed with the grant of usufructuary rights for them over the resources therein,52 coupled with the grant of preferential rights in their favor to explore, develop and utilize the natural resources, including fossil fuels (petroleum, natural gas and coal) and uranium, within the Bangsamoro territory.53 The Bangsamoro Government and the Central Government jointly exercise the power to grant rights, privileges and concessions over the exploration, development and utilization of fossil fuels (petroleum, gas and coal) and uranium in the Bangsamoro.54


47 Section 5, id; Section 22, Article XIII, PBBL.

48 Isagani Cruz, et. al. vs. DENR Secretary, et. al. G.R. No. 135385 (2000).


50 id.

51 Section 16, Article I, Chapter II, Republic Act No. 8350, The Fisheries Code of 1998. Also, Section 4 (58), Chapter 1, id.

52 Central Government income from taxes derived from the exploration, development and utilization of all natu-ral resources within the Bangsamoro shall be allocated as follows:

a. For non-metallic minerals (sand, gravel, and quarry resources), such revenues shall per-tain fully to the Bangsamoro and its local government units;

b. For metallic minerals, seventy-five percent (75%) shall pertain to the Bangsamoro;c. For fossil fuels (petroleum, natural gas and coal); and uranium, the same shall be shared

equally between the Central and Bangsamoro Government.

Such sharing scheme shall be applicable to the natural resources found in the land mass that comprise the Bang-samoro territory as well as the waters that are within the territorial jurisdiction of the Bangsamoro. (Section 32, Article XII, PBBL).

53 Section 8, 11, id.

54 Section 10, id.



Zones of Joint Cooperation

Legal alarums were raised against the provisions of the PBBL delineating the Moro Gulf and the Sulu Sea as Zones of Joint Cooperation between the Bangramoro Government and the Central Government55 and the creation of a Joint Body for the zones of joint cooperation with representation from both governments, among other sectors,56 which is the body responsible for drawing up of policies in relation to the coordinates of the Bangsamoro territory including the Bangsamoro Waters and the Zones of Joint Cooperation.57

The areas of the Moro Gulf and the Sulu Sea go beyond the 12 nautical miles of the Bangsamoro Waters between the baselines of islands that may compose the Bangsamoro territory, which areas are subject to international law on navigation under the United Nations Law of the Sea (UNCLOS), specifically allowing innocent transit or passage to foreign vessels.58 Hence, the argument that the participation by the Bangsamoro Government in whatever capacity over the Moro Gulf and the Sulu Sea is an infringement of the exclusive power of the State on foreign affairs, which is a mark of external sovereignty.

It is my submission that the legal resolution of this issue is provided in the PBBL itself, which delimits the nature of the participation of the Bangsamoro Government in the determination of policies on the Zones of Joint Cooperation. Thus:

The Central and the Bangsamoro Governments shall work together to regulate the waters that comprise the Zones of Joint Cooperation in the Sulu Sea and the Moro Gulf. Policies shall be jointly drawn up for the following purposes:

a. Protection of the traditional fishing grounds;b. Benefitting from the resources therein;c. Ensuring the interconnectivity of the islands

and mainland parts of the Bangsamoro so that they are cohesive Bangsamoro entity; and

d. Ensuring the exercise of the preferential rights of the Bangsamoro people, other indigenous peoples in the adjoining provinces, and the resident fishers in the Bangsamoro over fishery, aquamarine, and other living resources in the Zones of Joint Cooperation. The Joint Body shall promulgated rules and regulations as to the exercise of these preferential rights. The preferential rights granted to the Bangsamoro people under this section shall extend only to those who can establish that they are

55 Section 18, Article XIII, id.

56 Section 19, id.

57 Section 18, 19, id.

58 Articles, 17, 18 and 52 (1), UNCLOS.

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Bangsamoro as defined in this Basic Law or descendants of a Bangsamoro as of February 2, 1987.

The Bangsamoro Government and the Central Government shall ensure that there shall be free movement of vessels, goods and people in these Zones of Joint Cooperation.59

By definition of the PBBL this participation does not in anyway relate to foreign affairs, and concern for the ability of the Philippine State to perform its obligations under conventional international law or objective international law finds no basis in the light of the last paragraph of Section 19, Article XIII of the proposed law, which ensures free movement of vessels, goods and people in these Zones of Joint Cooperation.

At this point, it is in order to discuss the nature of our Archipelagic Waters which refers to all the waters around between and connecting the different islands of the country irrespective of its width or dimension, which can go far beyond the 12 nautical miles from baselines from opposite shores.

As early as 1955, in a Note Verbale of the Philippine Permanent Mission to the United Nations addressed to the UN Secretary General, the Philippine Government made it known its position considering these waters as inland waters, not a part of the high seas but “are necessary appurtenance of [the land] territory [of the country], forming an integral part of the national or inland waters, subjected to the exclusive sovereignty of the Philippines . . .”60

In the deliberations in the 1960 UN Conference on the Law of the Sea, the Philippine Government reiterated the same position, excepting to any new rule on the breadth of the territorial sea that may be adopted in the conference on the basis of the country’s historic title on its waters proceeding from the Treaty of Paris of 1898 and its exercise of uninterrupted sovereignty thereover since independence.61

In brief, the conduct by the Philippine State on its archipelagic waters is beyond the pale of international law. Our Baseline Law sees to it. Republic Act 3046 as Amended by 5446 (1961) considers our Archipelagic Waters as Internal Waters.

Indeed, long before the UNCLOS our archipelagic waters are taken out of the ambit of international law by legislation, which may be considered as exception to the Incorporation Clause of the Constitution as a general rule. If the Philippine government treads the line of the UNCLOS, it is at best in pursuance of objective international law to keep up its stature as member of the international community, rather than as an act of compliance to the Constitution or its treaty obligations. Apropos is the opinion of Dean Magallona, thus:62

59 Section 19, id.

60 See Note Verbale, dated 12 December 1955. Cited in Merlin M. Magallona, A Framework for the Study of National Territory: A Statement of the Problems, IBP Law Journal, Vol. 33 No. 2 (September 2008), p. 1. (Bracket supplied).

61 Id., p. 11.

62 Id., pp. 25-27. Citations omitted.



. . . Resolution No. 121 of the Batasan by its own terms cannot be binding as an act of concurrence for the reason that the UNCLOS impairs the rights of sovereignty of the Philippines under the Constitution and those under the Treaty of Paris and that it effects amendments to Philippine laws, contrary to the mandates of the Declaration as part of the said Resolution, which has the force of law in Philippine jurisdiction.

. . . Even on the assumption that as a treaty the UNCLOS becomes binding law by virtue of ratification based on valid concurrence by the Batasan, its implementation involving as it does the reorganization of Philippine territorial sovereignty is open to question under the international law of treaties. The subject matter of the UNCLOS implementation is the territorial status of the Philippines which has been established and settled long before the negotiations for the UNCLOS started in the Third UN Conference on the Law of the Sea and much longer before the entry into force of the UNCLOS on 16 November 1994.

Thus, UNCLOS is to be accorded retroactive application, which customary international law does not allow. As codified in the Vienna Convention on the Law of treaties of which the Philippines is a party, the non-retroactivity rule provides that –

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Under the UNCLOS, there appears no intention to apply its provisions retroactively. Article 308 of the UNCLOS stipulates that it “shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession,” which took place on 16 November 1994.

Article 310 of the UNCLOS allows a State party to make declarations or statements with a view “to the harmonization of its laws and regulations with the provisions of this Convention.” But this provision does not intend to define an obligation; it pertains to a unilateral act or declaration of a state party which is left

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to its discretion to make.

x x x

Above all, the UNCLOS cannot effectuate any alteration of international agreements defining the territorial sovereignty without derogation of state sovereignty. It is a basic principle of international law under the Charter of the United Nations as affirmed in the UN Declaration on Principles of International Law that all states enjoy sovereign equality. By the principle, each state has the duty to respect the personality of other states; the territorial integrity of the state as inviolable.

Idiosyncratic System

In fine, the apprehension by critics over the legality and constitutionality of the provisions of the PBBL on the Bangsamoro preamble, flag, anthem and territory feeds on prejudices born of history specifically in the failure to integrate the Bangsamoro into the country’s political and spiritual worldview. Democracy that underwrites our government and practical way of life should not be an idiosyncratic majoritarian system as to subjugate the minorities and make them shed off their ethnicity. It should be liberalist, not literalist, its adherents cosmopolitan, not bred in bigotry and bigittism, hearts suffused in kindness and humility, minds stoked up with enlightenment and understanding.

At this point, I wish to remember here the nascent days of Islam before the Hijrah, when the Prophet’s followers in Makkah escaped from the persecution of the Qu’raish, the ruling nobility, and migrated to Abyssinia where its King Negus granted them refuge. The Qur’an memorialized this Christian spirit, thus:

And nearest among them in loveTo the Believers wilt thoughFind those who say,“We are Christians”:Because amongst them areMen devoted to learningAnd men who have renouncedThe world, And theyAre not arrogant.63

In the City State of Madinah, the Prophet formed a Commonwealth with the Jews and the Christians in the surrounding environs of the city. Except for the payment of Jizya, the tax for their protection and defense, the head and land tax, they were an independent polity.64

Indeed, the Bangsamoro feel the recalcitrance of critics like a stiletto in their hearts for another reason. The sultanic system of the Bangsamoro is the highest political organization 63 Surah 5, Maida or Table Spread, verse 85, Qu’ran.

64 Philip K. Hitti, History of the Arabs. 1985: Chicago, p. 37.



ever attained unaided in the Malay World. If not snapped off by colonialism, Moroland could have been as much progressive as, if not more progressive than, Malaysia. There is no reason to get dungeoned still in the bigotry and colonialist spirit of the past. There’s no basis for worriment. As defined in the PBBL, the Bangsamoro are leased to the future of the country. Section 1, Article III of the bill sees to that. Thus:

. . . The Bangsamoro territory shall remain a part of the Philippines.

Whatever wistful memoirs on the sultanic system, its glory and grandeur, only provide the Bangsamoro a good read before night rest, proscribed as it is by the Constitution in Article IV, Section 10, which provides, thus:

No law granting a title of royalty or nobility shall be enacted.

As early as the Commonwealth (1935-1945), government saw to it that the sultanic system is knocked into rubbles under the weight of western democracy, a scrap of which is what actually was imported in and appropriated into our political system by the elite, the forefathers of Philippine democracy. In one of his early edicts, President Manuel L. Quezon disdained the sultans and instructed government functionaries to treat them as any ordinary citizen.65

Political Asymmetry

But it does well that the Bangsamoro has looked into their sultanic past and found the political legacy of their ancestors. Theirs is not only a personal quest. The mantle of their authority is the Constitution itself. Thus:

The State recognizes and promotes the rights of indigenous cultural community within the framework of national unity and diversity.66

x x x

The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities, by equitably diffusing wealth and political power for the common good.67

65 Manuel L. Quezon, The Good Fight. 1946: D. Appletion – Century Co., New York, p. __

66 Section 22, Article II, Philippine Constitution.

67 Section 1, Article XIII, Philippine Constitution (Emphasis supplied).

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Parliamentary Government

One such instrumentality in governance in the sultanic system is the parliamentary system of government. So the PBBL provides for it in its Preamble and General Principles and Policies. Specifically, Section 2, Article IV of the PBBL provides, thus:

The Bangsamoro Government shall be parliamentary.

Easily the Bangsamoro will relate to it for a form of government. They have every reason to set great store by it. Their ancestors, under this political system, succeeded to hold themselves together in the homeland of Islam and freedom in the midst of crusading colonialism. The marriage of the Executive and the Legislative in a parliamentary government got the respective leaderships of the Moro Sultanates to forge a united front and resist foreign incrusion. At this point, it is pertinent to peek into the past and take a glimpse at the character of the system as practiced in olden times.

Then, in every agama in Lanao, which political unit is roughly equivalent to a town, executive power resided in an upper house called Astana (or roughly equivalent to the House of Lords) presided over by the Sultan. This House of Nobility is composed of a peerage of ascendant lineage. Law-making originates from a lower house of parliament called Babaya-sa-Taritib (literally, the Legislators) composed of datus of lesser ranks who kept regnancy over their own corners or barangays in the agama. In the Federal Principalities of Lanao — Unayan, Bayabao, Masiu and Baloi (a 20th century addition) — the Astana was composed of the respective heads of the paramount royal houses in every principality, 15 or 16 of them, and the House of the Babaya-sa-Taritib the respective heads of servile houses of nobility.68

In the Sultanate of Sulu69 though the crown is hereditary, royal datus and commoners who rose to influence, wealth and prestige participated in the election or enthronement of the Sultan. Thus, the influence and power of a sultan in the realm depended in no small measure on the loyalty of the royalties and the mass leaders, many of whom composed the Ruma Bichara, the Legislature, presided over by the Rajah Muda, the heir apparent. In the parliament, decisions were reached by simple majority vote. Although no incident is known where the Ruma Bichara deposed a sultan, royal datus and members of the peerage of commoners had rose up in open rebellion against the Sultan over concerns and affairs of State.

Like Sulu, the sultanship in Maguindanao is a birthright. But politics also played a role as royal heirs fought for the throne and enlisted the support of royal datus and their blood and collateral kin. The legislative branch of the Sultanate is also called Ruma Bichara, composed of royal datus and allies of the Sultan who assumed importance in the polity by wealth and dyadic relations, among other things.70

Thus, in terms of experience in political democracy, among others, “the Bangsamoro”, to quote the language of Commissioner Ople during the deliberations in the Constitutional Commission on the provisions of regional autonomy, “do not belong to the dominant 68 Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro, IBP Journal, Special Issue No. 2, December

2012, p. 18.

69 See Cesar Mogul, Muslims in the Philippines, 1999: U.P. Press, Quezon City, p. 392.,

70 Nasser A. Marohomsalic, The Framework Agreement, supra.



national community.”71 “The Moro is not Filipino,” to quote an American military-writer, “by any ties of race, government, or religion.”72

In order to keep our sultanic system attuned to modern times, the PBBL afforded a kind of “political system (that) is democratic, allowing its people to freely participate in the political processes within its territory.”73 Towards this end, the PBBL mandates the “Bangsamoro Government (to) adopt an electoral system suitable to a ministerial form of government, which shall allow democratic participation, encourage formation of genuinely principled political parties, and ensure accountability.”74

The adoption of a different system of government for the Bangsamoro other than a presidential and unitary type is preponderantly intimated by the 1986 ConCom, providing its justification therefor. Thus:

“[Autonomy]”, notes Commissioner Jose Nolledo, who was the Chairman of the Committee which drafted the regional autonomy provisions of the 1987 Constitution, “is an indictment against the status quo of a unitary system that . . . has intellectually tied the hands of progress in our country . . . Our varying regional characteristics are factors to capitalize on to attain national strength through decentralization.”75 This proceeding in the Constitutional Commission was quoted by the Supreme Court with approval in the Disumangcop case. Therein, the High Court took a dig against the assimilationist character of the legislative policy of the Philippine Government. Thus:

Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by an assimilationist approach. Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result democracy becomes an irony to the minority group.76

71 Disomangcops, et. al. vs. DPWH, et. al., G.R. No. 149848, 2004, p. 228.

72 Lt. Col. Loan D. Finley, The Mohammedan Problem in the Philippines. In the Journal of Race Development, vol. 5, No. 4, April 1915, p. 353.

73 Section 2, Article IV, PBBL (Bracket supplied).

74 Section 3, id. (Bracket supplied).

75 III Records, 182-183, 11 August 1986. In Disumangcop, et. al., vs. DPWH, et. al., G.R. No. 149848, 2004.

76 Disomangcop, id.

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But critics see in this political asymmetry a subterfuge to put asunder the unity of this country, concluding thence that the term is constitutionally obnoxious. They argue that this parliamentary system does not hew to the political system of the country, which is presidential in form and thus unitary and election thereunder popular, where the President of the country is elected nationally and his Cabinet may come from different sectors. If recruited to the Cabinet, members of Congress would have to resign from their legislative seats. Under the PBBL, members of the Bangsamoro Parliament are elected by their respective districts in a popular election and the sectoral members with reserved seats in a popular region-wide voting. The Parliament in turn will elect the Chief Minister of the Bangsamoro among themselves, who will in turn appoint the members of his Cabinet mostly from among the members of Parliament.77 Obviously, a political incongruity exists.

But it is my submission that the political asymmetry here is not constitutionally odd. There is no definitive provision in the Constitution that says that the autonomous region in Muslim Mindanao should not be parliamentary. All that the Constitution requires is that the Philippines is a democratic and republican State.78 Corollarily, all political instrumentalities of government exercising sovereignty or a portion thereof shall be democratic and republican. In our jurisdiction, periodic election is the main benchmark to characterize our political system as a democracy and republican. And election is prescribed for the constitution of the Bangsamoro Government. Thus:

The Bangsamoro Government shall be parliamentary. Its political system is democratic, allowing its people to freely participate in the political processes within its territory.79

x x x

The Bangsamoro Government shall adopt an electoral system suitable to a ministerial form of Government, which shall allow democratic participation, encourage formation of genuinely principled political parties, and ensure accountability.80

The incongruity in the relation between the Bangsamoro Government and the Central Government begs the question: Are they different institutions?

I grow more poignant and say that the criticism is decidedly de minimis. In terms of physical values, all natural things in this world are asymmetrical. So are their characteristics. Human beings too are asymmetrical in relation to size, skin and outlook. Even in their latent potentials exist a variety. Even identical twins have dissimilarities. Or a person himself may have in one organ a mix of features. And why can’t humans create asymmetrical institutions in terms of their political relationships, delineating their functions, which of them exercise primary or secondary role when possessed of the same powers, or which of them has the power of external sovereignty, or delegated power, or

77 See Article VII, PBBL.

78 Section 1 Article 11, Philippine Constitution.

79 Section 2, Article IV, PBBL.

80 Section 3, id.



subsidiary power or power of internal sovereignty.

It is apt to adduce as arguments to dispose of the negative proposition the General Principles and Policies governing the conduct and direction of self-government by the Bangsamoro which clarify the fact that the Bangsamoro Government is a special subsidiary State of the Philippine Government. Thus:

The Bangsamoro abides by the principle that the country renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adhere to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.81

x x x

The Bangsamoro Government shall respect and adhere to all international treaties and agreements binding upon the Central Government.82

x x x

. . . the President shall exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed.83

The PBBL hews to the Constitution. The term of office for members of the Bangsamoro Parliament is the same as that of the term of three years of local government officials, they being a local government officials although categorized differently in view of the stature of the Bangsamoro Government as a bigger structure exercising powers of internal sovereignty owing to its nature as a form of self-government.84 The same three-year term is prescribed for members of the House of Representatives.85 No member of the Bangsamoro Parliament shall serve for more than three consecutive terms.86 The same restriction is provided in the Constitution for members of the House of Representatives87 and elective local officials.88

But I entertain some apprehension on the constitutionality of the provision of the PBBL mandating the dissolution of the Bangsamoro Parliament on a No Confidence Vote by two-thirds of all members of the Parliament against the government of the day 81 Section 5, Article IV, PBBL.

82 Section 8, Article IV, id.

83 Section 3, Article VI, PBBL. This provision is a reinstatement of Section 16, Article X of the Philippine Con-stitution: “The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.”

84 Section 11, Article VII, PBBL, Section 8, Article X, Philippine Constitution.

85 Section 7, Article VI, Philippine Constitution.

86 Section 11, Article VII, PBBL.

87 Section 7, Article VI, Philippine Constitution.

88 Section 8, Article X, id.

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and the holding of an election thereafter for a new Parliament on a date not later than one hundred twenty (120) days from the date of dissolution.89

The Constitution provides for the synchronization of all national and local elections, except barangay election, on the second Monday of the year every three years.90 Although the election in ARRM is called “regional elections,” the Supreme Court ruled in the Kida case that the synchronization of all national and local elections except barangay election, includes election in the autonomous government in Muslim Mindanao, which interpretation is patent in the Transitory provisions of the Constitution.91

With a No Confidence Vote, as provided in the PBBL, resulting in the dissolution of the Bangsamoro Parliament, an election is called for the establishment of a New Parliament. Certainly, this disrupts synchronization of the election as mandated by the Constitution as the term of office of the members of parliament might either be shortened or lengthened.

During the reformulation of the PBBL by the negotiating panels of the GPH and the MILF, the Panel of Independent Lawyers recommended the adoption of a Constructive No Confidence Vote, which provides for the dissolution of the leadership of the Bangsamoro Government or of the Parliament but not the whole Parliament. Under this arrangement, the Parliament stays and its members may elect among themselves a new leadership or government, or a new Chief Minister preserving thus the mandate of the Constitution for the synchronization of elections.

Constitutional Offices

It may be said that the PBBL hews to the Constitution. Four constitutional offices in the Bangsamoro territory are created and made adjuncts of their respective mother national agencies like the Commission on Audit (COA), Commission on Elections (COMELEC),92 the Civil Service Commission (CSC),93 the Philippine National Police (PNP),94 and the National Police Commission (NAPOLCOM).95

The PBBL also created a Bangsamoro auditing office which has auditing responsibility

over moneys realized from transactions within the Bangsamoro territory and utilized by the Bangsamoro Government, without prejudice to the power, authority, and duty of the national Commission on Audit to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any governmental instrumentality, including GOCCs.96


90 Osmeña, et. al. vs. Commission on Elections, et. al. 288 SCRA 477-480 (1998).

91 Datu Michael Kida, et. al. vs. Senate, et. al., 659 SCRA 270-328.


93 Section 218. Article V, id.

94 Section 2, Article XVII, id.

95 Section 5, 6, Article XVI, id.

96 Section 2(7), Article V, id.



It is my submission that the Bangsamoro auditing office does not impinge on the authority of the national COA, it being only internal to the Bangsamoro Government designed to do good house-keeping, with its report not binding to the national COA.

One problem area relative to the creation of the COMELEC, CSC and the said offices in the Bangsamoro territory relates to the appointment of their respective upper echelon/s including their personnel. This is not provided for in the PBBL. This is a critical issue determinative of the nature of these offices – whether they belong to their respective mother agencies and are vested with independence. If they’re an adjunct of their mother agencies, the appointment of their office-bearers be lodged in the authorities of their mother agencies and the appointment of their personnel left to the former. As an objectification of the right to self-government, the Bangsamoro may be invested with authority to recommend residents in the Bangsamoro territory to the leadership of the said agencies.

Delineation and Devolution of Powers

The PBBL delineates powers between the Bangsamoro Government and the Central Government into Exclusive Powers of the Bangsamoro, Concurrent Powers of both and Reserved Powers of the Central Government.

A closer look at the powers devolved to the Bangsamoro Government as its exclusive domain will reveal that these powers are better exercised by the Bangsamoro Government, being directly and intimately connected with the life of the people in the Bangsamoro territory. Where the exercise of some of these powers may impinge on the sovereignty of the State, especially vested contractual obligations, foreign relations and security concerns, appropriate provisos and add-ons are provided to canalize these powers within the parameters of self-government.

The power to contract loans, credits and other forms of indebtedness with any government or private bank and other lending institutions, is granted to the Bangsamoro Government, except those requiring sovereign guaranty, which require Central Government approval.97 Financial and banking system is a corporate endeavor among the Banko Sentral ng Pilipinas (BSP), the Department of Finance (DOF) and the National Commission on Muslim Filipinos (NCMF), to include the establishment of a Shari’ah Advisory Board. The power of supervision over the system is still retained by BSP.98 Regulation of power generation, transmission, and distribution operating exclusively in the Bangsamoro and not connected to the national grid is the exclusive power of the Bangsamoro Government. Where it involves connection to the national grid, coordination with the Central Government through the intergovernmental relations mechanism is made a prerequisite.99 The Bangsamoro Government may establish by law GOCCs, but registered with the Securities and Exchange Commission obviously in pursuit of good governance.100 The Bangsamoro Government may only legislate in relation to the affairs of the non-Moro indigenes in pursuance of the UN DRIP and to promote and protect their individual and

97 Section 3, Article V, PBBL.

98 Section 13, id.

99 Section 15, id.

100 Section 14, id.

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communal property rights, cultural integrity, customary beliefs, historical and community traditions.101 The PBBL envisioned the creation of a ministry for the indigenous peoples within the Bangsamoro territory.102

The sharing of concurrent powers by the Bangsamoro Government and the Central Government serves the interest of good government. As provided in the PBBL, the arrangement mandates close cooperation between the two governments in the areas of social security and pensions,103 quarantine,104 land registration,105 pollution control,106 human rights and humanitarian protection and promotion,107 penology and penitentiary,108 coastguard,109 customs and tariff,110 funding for maintenance of national roads; bridges and irrigation systems,111 disaster risk reduction and management.112 Three areas of concurrent powers, namely, auditing,113 administration of justice114 and public order and safety115 are discussed elsewhere in the article.

Representative Lobrigat raised alarums on the sharing of concurrent power on quarantine between the Bangsamoro Government and the Central Government. The exercise of this power is not a mark of external sovereignty, but more an aspect of administrative governance, one shoring up the exercise of self-government. It can even be devolved to the Bangsamoro Government as its exclusive power where the latter becomes competent in the area of pandemic diseases and contagions.

It needs to be stressed that the exercise of the power is not an absolute grant to the Bangsamoro Government. The Central Government may raise objections in their execution by the Bangsamoro Government in the interest of good governance, public welfare, public health and safety, public order, and public morals. This power of objection is also available to the Bangsamoro. And where such a situation arises, an intergovernmental relations mechanism is provided in the PBBL116 to iron out kinks.

Other powers which are devolved exclusively to the ARMM under Republic Act No. 9054 are inserted in Section 4, Article V of the PBBL. Generally, they are matters that pertain to self-government, delimiting the exercise thereof where they impinge on

101 Section 30, id.

102 Id.

103 Section 1, id.

104 Section 2, id.

105 Section 3, id.

106 Section 4, id.

107 Section 5, id.

108 Section 6, id.

109 Section 9, id.

110 Section 10, id.

111 Section 12, id.

112 Section 13, id.

113 Section 7, id.

114 Section 17, id.

115 Section 14, id.

116 Article VI, PBBL.



national sovereignty and vested rights.117

Congressional Exercise of Sovereignty

The devolution or grant of these powers to the Bangsamoro Government is an exercise of sovereignty on the part of Congress, their mantle of authority proceeding from Section 20(9) of Article X of the Philippine Constitution: Thus:

Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of the autonomous region shall provide for legislative power over:

1) Administrative organization;2) Creation of services of revenues;3) Ancestral domain and natural resources;4) Personal, family, and property relations;5) Regional urban and rural planning development;6) Economic, social and tourism development;7) Educational policies;8) Preservation and development of the cultural

heritage; and 9) Such other matters as may be authorized by law

for the promotion of the general welfare of the people of the region. (Underlining supplied)

This “general welfare clause” provision on autonomy in the Constitution118 is flexible as a porous sponge to absorb the terms of peace with the Bangsamoro as enshrined in the PBBL. Peace as a political value underwrites our democracy. This is a paramount principle enunciated in the Philippine Constitution. Thus:

The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment of all the people of the blessings of democracy.119

And the Constitution prescribes for the attainment of peace, especially with the Bangsamoro, not to mention the Cordillerans, with the grant of autonomy to them under Article X of its provisions which empowers Congress to grant additional powers of autonomy. Remarkably too, the Constitution does not provide for a restrictive or stingy policy in the pursuit by the State for autonomy for the Bangsamoro. It mandates the State policy that “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”120 In the articulation of the 1986 ConCom, which drafted the 1987 Constitution, the autonomy

117 Section 4(a)(b)(h), id.)

118 Section 20(9), Article X, Philippine Constitution.

119 Section 5, Article II, id.


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grant to the Bangsamoro is a legal formulation for “national unity in diversity.” For sure the term, “national unity”, is not a dead or stale concept, without social signification or cognation to our political experience and international law. The UN DRIP prescribes for State to grant self-government to its indigenous peoples and allow them to enjoy their political, economic, social and cultural systems. And they can only regain the socialization elements of their identity if granted powers to create institutions or make laws to enforce their ethnicity or identity.

Judicial Asymmetry

Asymmetry also exists between the legal systems of the Bangsamoro and the majority Christian population of the country. The PBBL prescribes for the Bangsamoro a Shari’ah legal system, which is apart and different from the Philippine legal tradition which owes its paternity to the Western legal experience, especially American and Spanish. It mandates 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.121 Criminal laws enacted by the Bangsamoro Parliament shall only be effective within the territory of the Bangsamoro and shall be in accordance with the universally accepted principles and standards of human rights.122

The sources of Shari’ah law are the Al-Qur’an, Al-Sunnah, Al-Qiyas and Al-Ijima.123

For the interpretation of Shari’ah laws in relation to judicial controversies, the PBBL has created Shari’ah Circuit Courts equivalent to the Municipal Trial Courts, the Shari’ah District Courts equivalent to the Regional Trial Courts and the Shari’ah High Court,124

equivalent to the Court of Appeals. One goes through the courts by way of appeal or through appropriate mode of remedies. The PBBL defines their respective jurisdictions. The Bangsamoro Shari’ah High Court exercises exclusive original jurisdiction, whether or not in aid of its appellate jurisdiction over: a) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes, in aid of its appellate jurisdiction; b) All actions for annulment of judgments of Shari’ah District Courts in the Bangsamoro.125 The Bangsamoro Shari’ah High Court also exercises exclusive appellate jurisdiction over cases under the jurisdiction of the Shari’ah District Courts in the Bangsamoro, and the Decisions of the Shari’ah High Court shall be final and executory.126

This is a recognition of the Shari’ah or Islamic legal system as different from the Philippine legal system. In the past the Philippine legal system recognized some of its features. The practice of polygamy was granted to Muslims under the New Civil Code. In 1974, Islamic law on persons and family relations were prescribed for Muslims under Presidential Decree No. 1084. Under the PBBL, Shari’ah as an Islamic legal system is sought to be expanded to include all matters of civil law, commercial law and criminal

121 Section 3, Article X, PBBL. The laws on Shari’ah shall only be applicable to Muslims, id.

122 Section 3, Article X, PBBL.

123 Section 4, id.

124 Sections, 5, 6 and 7, Article X, id.

125 Section 7(a)(b), Article X, id.

126 Section 7, id.



law.127

Concerns were raised against the provision of the PBBL on the finality and executory character of the decisions of the Bangsamoro Shari’ah High Court.128 This authority may be conceded to the Bangsamoro Government, for being constitutional under and within the purview of the Philippine Constitution. Although scant of details there is nothing in the Congressional grant of authority to the Bangsamoro Shari’ah High Court to derogate against the constitutionally mandated power of the Supreme Court, as follows:

The Supreme Court shall have the following powers:

x x x

Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a) All cases in which the constitutionality of validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

c) All cases in which the jurisdiction of any lower court is in issue.

d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

e) All cases in which only an error or question of law is involved.129

At this juncture it may be in order to digress on the central role of Shari’ah in the life of a Muslim in particular and the well-being of society in general.

Islamic law is the water of life for Muslims. This can be deduced from the root meaning of the word, Shari’ah, which means, path or water, in Arabic lexicography. Given functional construction, it could mean the path to water or the watering place. In its social and cultural construction, it could mean, the path to God or salvation or purity, in brief, the straight path.130 Broadly, it may be said that Shari’ah is Islam, it’s foundation and pillar; its not only a legal construct but a political, social, cultural and economic construct. Thus, the



129 Section 5(2), Article VIII, Philippine Constitution.

130 See Islamiclearningmaterials.com/sharia.

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actuation of every Muslim is passed upon according to Shari’ah. Even the most mundane matters are governed by Shari’ah. One’s Muslimness does not consist only of reciting the profession of faith or Tauhid, There is no god but God and that Prophet Muhammad is His Messenger. It encompasses every aspect of life of a Muslim, his relationship to God, wife and kin, the people and the ruler, including himself which is God’s ownership. In fine, Islam and Shari’ah are interchangeable terms.

I remember my first meeting with MILF Chairman Salamat Hashim, pining for Shari’ah to govern the affairs of Muslims. In his mind, the centrality of Islam is Shari’ah, it is the “balance”, which word is used to describe an Islamic polity, a “balanced community.” In a manner of speaking, Shari’ah is central to the life of a Muslim, and it is his observance of Shari’ah that defines him.

Thus, observance of Shari’ah is what makes one a Muslim. Necessarily, a non-Muslim cannot make judicial pronouncement or interpretation of its precepts, principles and provisions. As a divine law, it is shirk or an act of blasphemy to entrust judgeship to a non-Muslim who does not subscribe to or believe in Shari’ah even as a system or a way of life, let alone his religious belief.131 The PBBL shows sensitivity to this ordinance of faith when it provides for the decisions of the Bangsamoro High Court as final and executory.132

Logic is an argument too for this asymmetry. Why should a tier of our governance system or a social sector of our society which is not concerned or has no social nerve to get pricked be involved in matters that are outlandish to their faith and values? Matters which will not affect or disturb them? Shari’ah is not made applicable to non-Muslims, even in situations where a Muslim and a Christian are the subjects of a controversy.133 The PBBL provides that nothing in the Bangsamoro Justice System be construed to operate to the prejudice of non-Muslims and non-indigenous peoples.134

The Bangsamoro Judicial System hews to the Constitution. The PBBL concedes to the power of the Supreme Court to promulgate rules concerning procedure in all courts.135 Thus:

The rules of court for the Shari’ah courts in the Bangsamoro should be promulgated by the Supreme Court, giving utmost consideration to the recommendations of the Bangsamoro Shari’ah High Court. In the meantime, the special rules of court for Shari’ah courts, as promulgated by the Supreme Court, shall continue to be in force.136

Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.137

131 Section 9 (a), Article X, PBBL.



134 Id.

135 Section 5(5), Article VIII, Philippine Constitution.


137 Id.



The PBBL reiterates the constitutional provision investing the Supreme Court the power to appoint all officials and employees of the judiciary in accordance with the Civil Service Law.138 Thus:

The Supreme Court shall appoint the Shari’ah court personnel, and shall have the power of discipline over them. The Shari’ah Judicial and Bar Council shall conduct investigations over erring personnel in Shari’ah courts in the Bangsamoro, and submit the results of such investigation to the Supreme Courts for the latter’s action.139

The Constitution invests the Supreme Court with the power of administrative supervision over all courts and the personnel thereof.140 In Islamic law, only Muslim may supervise the administration of the Shari’ah Judicial System. The PBBL offers a political resolution to this legal contradiction with the appointment of a Deputy Court Administrator for the Bangsamoro by the Supreme Court, who, by necessary implication, could only be Muslim. Thus:

The Office of the Deputy Court Administrator for the Bangsamoro is hereby created. The Deputy Court Administrator for the Bangsamoro shall be appointed by the Chief Justice of the Supreme Court from among three (3) recommendees submitted by the Chief Minister upon previous consultation with the Bangsamoro Parliament and with the concerned sector of the Bangsamoro.141

Shari’ah Judicial and Bar Council

The PBBL creates a Sharia’h Judicial and Bar Council to be composed of five (5) members: a senior member of the Shari’ah High Court, as ex-officio Chairman, the Head of the Shari’ah Academy, and one (1) representative from the Bangsamoro Parliament as ex-officio members. Other regular members of the Council shall be one (1) representative each from the accredited organization of Shari’ah lawyers and other appropriate accredited organizations in the Bangsamoro.142

The regular members of the Council shall be appointed by the Chief Minister with a team of five (5) years without reappointment.143

The Council is empowered: 1) to recommend nominiees to the Shari’ah Courts in

138 See Section 5 (6), Article VIII, Philippines Constitution


140 Section 6, Article VIII, Philippines Constitution.



143 Id.

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the Bangsamoro which shall be submitted to the Judicial and Bar Council; and 2) to conduct investigations over erring members of the Shari’ah Bar in the Bangsamoro and over judges and personnel of the Shari’ah Courts in the Bangsamoro, and submit the results of such investigation to the Supreme Courts for the latter’s action.144

The Shari’ah Judicial and Bar Council created for the Bangsamoro in the PBBL is not legally inconsistent with the Judicial and Bar Council defined in the Constitution. For one thing, the Shari’ah Judicial and Bar Council only recommends nominees to the Shari’ah Courts in the Bangsamoro, which list is submitted to the Judicial and Bar Council for its final disposition. In a way, said institution in the Bangsamoro only serves to assist the Judicial and Bar Council in the screening process for the appointment of Shari’ah judges and justices. Except for the respectability of its recommendation, the Shari’ah Judicial and Bar Council is not any structure of power. In our democratic system and under the Constitution, civil society may even perform such function in the spirit of volunteerism.145

Logic is always an appurtenance to legalism. If the Bangsamoro is allowed to live by their social system, why can’t they be allowed to govern the institutions or instrumentalities created to enable them to carry out their way of life. Otherwise, the promise of autonomy or self-government as guaranteed in the Constitution and the United Nations Declaration of the Rights of Indigenous Peoples is a hollow or an empty rhetoric. There can be no bitter-ender for the cause of the Bangsamoro but themselves.

A Sub-State or a Subsidiary State?

Some legal luminaries would classify the Bangsamoro Government as a Sub-State. Without qualms and while defending the constitutionality in most parts of the proposed Bangsamoro Basic Law, Jose Azcuna, former Associate Justice of the Supreme Court and member of the 1986 Constitutional Commission called it a Sub-State. The ponencia in the North Cotabato Case146 struck down as unconstitutional in clear terms the Memorandum of Agreement on Ancestral Domain (MOA-AD) for creating an Associated State in the Bangsamoro region similar to the Federation of Micronesia and the country of Marianas, among others.

I scored against the ponencia in our motion for reconsideration therefrom for its misplaced categorization of the Bangsamoro Juridical Entity as an Associated State like the two countries. For one, Micronesia and Marianas are independent States with all the right to conduct their own foreign relations and send their respective Ambassadors to foreign countries. What the two countries ceded is their defense and security to the United States. But anytime they can cut off their treaty association with America. Unfortunately, the Supreme Court did not grant the motion a second look.

However one calls the Bangsamoro Government, the fact remains that by definition of the PBBL, the Bangsamoro Government is the subsidiary arm of the Philippine Government and its territory a part of the Philippine Territory, as discussed earlier.

144 Section 13, id.

145 Section 23, Article II, Philippine Constitution: “The State shall encourage non-governmental, community-based, or sectoral organization that promote the welfare of the nation.”

146 North Cotabato, et. al. vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, et. al., 568 SCRA 402-523 (2008).



For sure, the delineation in the PBBL of the powers between the Bangsamoro Government and the Central Government into Exclusive, Concurrent and Reserved Powers would fuel impression that the Bangsamoro is a substate or a state within a state. Offhand, I am even inclined to the idea that it is a substate, if by substate, it means it is under a mother State, exercising some powers of internal sovereignty or self-government or the administrative aspects of the exclusive powers of the State.

Evolution of Sovereignty

To put things in perspective and clarify legal subtleties, it behooves that we focus discussion on the development of the right to self-determination and the concept of state power or sovereignty in International Law.

In remote times when the State was personified by monarchs and strongmen that went by the title of king, prince, emperor or similar absolutist ruler, who claimed divinity or grabbed or assumed power and reigned under some apocryphal vestment from the Almighty, the ruler had monopoly of power or sovereignty. Even when he came to power by the collective will of the governed or as personification of the people by whatever arrangement, ruler assumed and exercised power as the Leviathan in the idea of Thomas Hobbes,147 determining and directing the affairs of his dominion and reining in his subjects to put order in society, man being egotistic and self-regarding, mistrustful of and in perpetual competition with each other, seeking glory for himself and going by his passion. This is Hobbe’s Law of Nature, man in a state war. Thus, a ruler has to be a despot and govern with free rein in the Commonwealth, as Hobbes prefers to call the state, and self-determination was not a social currency for appropriation by the people or a sector thereof. He is exempt from the operation of the covenant that put him to power. Conveniently, with the introduction of Hobbes’ Leviathan in the 17th Century and despite his aversion to the divine right theory, the monarchs of the period found in Hobbes a champion.

A countervailing philosophy of Jean-Jacques Rousseau came a century later which challenged political centralism in the ruler or the State and qualifies the State as a Social Organism brought about by a Social Contract among the people who constitutes the true sovereign.

Rousseau founds his social contract on man’s nature as basically good and gregarious, explaining that in his heart are innate principles of justice and virtue by which he judges the action of man as good or bad.148 Vice is not natural to him; it is a distortion of his nature.149 When men come together to establish a political society and its laws and choose their chief, the act is a conscious, common effort150 among them to assure not only their property and life but also their liberty151 and the realization of their potentials

147 Hobbe’s Moral and Political Philosophy at Stanford Encyclopedia of Philisophy, plato standford by Sharon A. Lloyd <[email protected]>; Frederick Copleston, S.J. A History of Philosophy. 1994: Doubleday, New York, pp. 1-57.

148 Frederick Copleston, S.J. A History of Philosophy. 1994: Doubleday, New York, pp. 77-78.

149 Id., p. 77.

150 Id., p. 69.

151 Id., p. 73

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more fully than they could in a state of nature152 when man is free to go by his light.153

As covenanters they commit to observe the laws, which form the bonds of their union154

and, despite their opposition thereto, submit to punishment for their breach thereof.155

Otherwise, recalcitrants shall be subjected to compulsion.156 Heads of government and instrumentalities of political society are obliged to work for the common good or interest of the people according to the general will,157 being a party to the covenant,158 very much unlike Hobbe’s Leviathan who stands outside of the covenant, free from its demands and requirements.159

With much of Europe feudal and monarchical during the century of Rousseau and embroiled in turmoil in the following century with the war of conquest by imperial powers and their hegemonic rivalry as well as the war for liberation by colonized peoples in Latin America against European colonialism, especially Spain and Portugal, Rousseau’s discourses did not run up much interest but the French who overthrew their monarchy for its royal absolutism and seigniorial system. The State as a total sovereign continued to underwrite monarchic and undemocratic rule.

This centralism of sovereignty in the monarch or in the state was circumscribed with the Peace of Westphalia, a series of treaties in 1648 that brought an end to the 30-year war between Catholicism and Protestantism in Europe. In this peace settlement, states had to give up their dominions or overseas provinces to become independent or dependencies of other states or kingdoms. The Holy Roman Empire and the House of Hapsburg were lessened. The sovereignty of the German States was recognized, and the empire continued only in name. France became a dominant power in Europe and exercised sovereignty over a wide realm. Sweden rose to power and increased its territories too. The Swiss Confederation and the independent Netherlands were explicitly recognized. The elector of Bradenburg received compensation for Pomerania which went to Sweden. So did the duke of Mecklenburg for Pol and part of Wismar which went also to Sweden. Protestantism survived and flourished in Europe and general religious toleration began life in the Christian World.160

But even much earlier during Medieval Times, absolutism or the idea that the State,

or the monarchy, or the aristocracy, or a political corporate is the sole seat of sovereignty met revulsion from among servile nobles and feudal lords. And kings had to secure their sovereign will by compromissory politics.

On June 15, 1215 and in the face of the rebellion of 25 leading barons of England, King John of the realm issued a document, which later came to be called the Magna Carta (Great Charter), at Runnymede, England, acquiescing to the demands of the

152 Id., p. 82.

153 Id., p. 73.

154 Id., p. 69.

155 Id., p. 91.

156 Id.

157 Id., pp. 71-72.

158 Id., p. 81.

159 Id.

160 See C.V. Wedgwood, The Thirty Years War. 1938: The Columbia Electronic Encyclopedia, 6th ed. In www.infoplease.com.



nobility and promising protection for church rights, institution of due process or process of the law before punishment or imprisonment, freedom from illegal imprisonment, review of scutage and other forms of contribution to the Crown with the end in view of limiting them, respect for private property and appanage and their non-sequestration for non-payment of debts where debtors have other means to pay off their obligations and popular access to justice irregardless of indigency, among others. Designed to check the excesses of despots, the document was reissued several times by a sucession of English kings. The Magna Carta was used by English jurist Sir Edward Coke extensively in the early 17th Century for an argument against the claim of Stuart monarchs of divine rights or the investiture in them by God for rulership. The document became a symbol of the American revolution against England which began in 1775.161

Ironically, development and progress in international law are still hamstrung in the centralism of sovereignty in the State. After World War II and with the introduction of the 1948 Charter of the United Nations and the Universal Declaration of Human Rights (1948), colonized States were granted independence and colonialism toddled on its knees. Portugal and Spain bore the brunt losing their dominions in Latin America. Some freed States which could not stand on their own were brought under the trusteenship project of the United Nations.162 However, the grant of the right to self-determination to peoples in the Charter and later in the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights in 1966 applied only to conquered peoples and colonized countries, not ethnic or cultural minorities in a State.163 With sovereignty then considered as an indivisible and rubrical attribute of a State, these conventions only helped promote and protect the individual human rights of citizens in a State.

Drawn in to the experience of the United Nations, which is an aggrupation in the first place of independent states supercilious of their power of sovereignty even as they are respectful of the principle of equality of states, Filipino legal commentarists secured themselves in the myopia of international law on the institution of the right to self-determination.

Nachura and Isagani Cruz, who both became Associate Justices of the Supreme Court, quoted with approval in their law books American author Garner’s definition of sovereignty as the “supreme and uncontrollable power inherent in a State by which that State is governed.”164 By this definition, sovereignty bears three (3) characteristics and attributes, namely, “inherent”, “absolute” and “supreme”. Citing Laurel vs. Misa,165 Justice Cruz adduced four (4) attributes of sovereignty, such as, “permanent”, “exclusive”, “comprehensive”, “absolute”, “indivisible”, “inalienable” and “imprescriptible”.166 Instead of the term “indivisibility”, Filipino author Magsalin prefers to ascribe and use

161 See www.historytoday.com; en.m.wickipedia.org; and www.historylearning.com.

162 Much of Africa and Oceania were placed under the program. The last country to be weaned from trusteenship and became independent in 1994 is Palau. (See en.m.wikipedia.org).

163 Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro, supra, p. 2.

164 See Jemy Gatdula, The Sovereignty Concept Under Philippine Law and International Economic Law, IBP Law Journal, Vol. 32 No. 3 (July-September 2006), p. 94, citing James Wilford Garner, Political Science and Government. 1928: American Book Co., New York.

165 77 Phil. 856 (1947).

166 Jemy Gatdula, supra, P. 94.

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the term “unity” for and as an attribute of sovereignty.167

Nevertheless, Gatdula expresses his condescending regard for the definition of sovereignty as such. Thus:

The concept of sovereignty is highly ambiguous and this is essentially why there is this tension between international trade and domestic laws, between national rights and the multilateral trading system. If there is indeed a defined concept of sovereignty, then that definition would most probably be only in the mind with only the most tenuous link to reality.168

These characteristics and attributes of sovereignty, he pointed out, “are all pretty well and good for law students to study and memorize… [But] in practice they are hard to actually put down in the messy world of reality.”169

Indeed, a closer look at the Laurel case will reveal the messy state of sovereignty as a source or political tool of power and governance.

Herein, the accused was charged of treason for adhering to the enemy (Japanese Occupation Forces) and giving the latter aid and comfort under Article 114 of the Revised Penal Code committed during World War II. For his defense he argued that he cannot be tried for treason since his allegiance to the Philippine Government was suspended or servered during the occupation.

In disposing of the issue the Supreme Court ruled that allegiance to the Philippine Government by its citizens cannot be suspended or severed temporarily during the interregnum of Japanese Rule for sovereignty inheres permanently in the Philippine State and its citizens owe total and lifelong loyalty to it. Despite deprivation of its effective control and administration over its territory, the Supreme Court opined, the Philippine Government still stood as sovereign to its people and over its territory and only its exercise of sovereignty was suspended.

Easily one discerns the weakness of this judicial decretory. What if the occupying forces won the war and effectively administered the country, installing its puppet but popular government? What will happen now to the inviolability, indivisibility, permanency and absolutism of sovereignty? Will sovereignty still inheres in the “defeated or ousted” Philippine State? Or, transferred to the “victor” or its sponsored Philippine government under the Japanese Great East Asia Co-Prosperity Sphere? At the latter instance, sovereignty then becomes a malleable political organism atrophied of its characteristics and attributes.

The Supreme Court factored into its discussion on sovereignty the political status of the country as a Commonwealth. For all intents and purposes the Philippines then was a colony of the United States, allowed to exercise self-government under its tutelage presided over by the Office of the American High Commissioner acting as personal representative

167 Id., p. 95, citing Mariano F. Magsalin, Jr., Philippine Political Law, p. 68 (2002).

168 Id.

169 Id. (Bracket supplied)



of the President of the United States. Specifically, said Office was charged with overseeing the transition of the country from direct American Rule to its independence on July 4, 1946 as provided in the Tydings-McDuffie Act of 1934. This transition period started off in 1935.

Unfortunately, the High Court only granted this factual antecedent a cursory consideration, dismissing any complication it engendered by according the country as a sovereign state even while the United States was its overlord in the light of Section I, Article II of the 1935 Constitution that states that “Sovereignty resides in the people [the Filipino people] and all government authority emanates from them.” (Bracket supplied). It braided its Opinion with the argument that the 1935 Philippine Constitution was recognized by the United States as an Ordinance appended to its Constitution.

Following through the logic of the ponencia, it means that sovereignty is divisible and alienable and could be reposed in two (2) political entities, either of them supreme or absolute in its exercise of the power of sovereignty, which supposition, of course, is ridiculous, if not impossible.

Indeed, the inadequacy of Gatdula to apprehend the concept of sovereignty as laid out in legal texts, commentaries and jurisprudence is understandable. As projected to in Laurel vs. Misa, sovereignty is still an amorphous legal organism, to borrow the words of Gatdula, “in the world of reality”.

Modern exegetes on international law and the concept of self-determination and sovereignty dichotomized the right to self-determination into the right to independence or external determination or external sovereignty and the right to internal self-determination or sovereignty or self-government.170 The United Nations gives vent to the latter right and vests in indigenous peoples the right to internal sovereignty or self-determination by mandating State to grant self-government to the indigenous and tribal peoples. This is provided in the United Nations Declaration of the Rights of Indigenous People in 2007, which the Supreme Court posited in the North Cotabato case as international customary law, hence, as much as pertinent may be considered as part of the Constitution by incorporation.171

Too Long Awaited

To be sure, as a legal and political concept, sovereignty is undergoing of late a formative growth and development with international law sheering towards the recognition of non-State actors, including especially insurgent communities as subjects of international law impressed with legal personality and actionable or demandable rights. Western countries have done strides in this direction. The Northern Ireland Question was resolved through the Earned-Sovereignty Approach which recognizes insurgent people with a history of self-determination as possessed of the right to choose independence.172 It found application

170 See Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro, supra.

171 North Cotabato case, supra.

172 See Nasser A. Marohomsalic, et. al., The Memorandum of Agreement on Ancestral Domain: A Commentary, IBP Law Journal, Vol. 33 No. 2 (September 2008), pp. 85-87.

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too in the resolution of the issue of southern Sudan.173

Even before the introduction of UN DRIP in 2007, the world is a witness to developments in our part of the globe that portend for the strengthening of the doctrine of internal sovereignty in international law. Aceh and Papua, two provinces of Indonesia, were granted special autonomy in 2005 and 2001, respectively. East Timor overstepped the bounds and declared its independence from Indonesia in 1999. It gained international recognition as an independent nation on May 20, 2002.

In contemporary times the United States had gone strides to empower federally recognized Indian tribes in reservations.

In his special message to the U.S. Congress on March 6, 1968, President Lyndon Johnson announced the policy, thus:

The needs of the Indians should be identified from the Indians’ viewpoint – as they should be… This principle is the key to progress for the Indians.174

In 1975, self-government was granted to these Indian tribes with the passage by the U.S. Federal Congress of the Indian Self-Determination and Education Act.175

At this point, it is pertinent to quote the opinion of Marck Malloch Brown, a former UN Deputy Secretary-General, UK Foreign Office Minister of State for Africa and Member of the World Economic Forum Global Agenda Council on Global Governance. Thus:

This is a tricky time to be a state, and an even trickier time to be a citizen. The nation-state, the classic provider of security and basic wellbeing in exchange for citizens’ loyalty, is under threat--both at home and as the fundamental unit of international affairs.

New types of loyalties and associations are challenging the state’s traditional role. Some are geographic. In Europe alone, there at least 40 would-be Scotlands seeking separation of some kind from the countries in which they now find themselves. Other loyalties are based on other kindred identities – not on just religious or ethnic, but on shared commercial, political or other interests. Today, many more of us are supporters of NGOs than are members of political parties.

In short, our allegiances, particularly in the West, have rarely seemed more divided than they do now. Amartya Sen, the Nobel laureate economist, has argued that we

173 Id., pp. 86-87.

174 Frances Paul Prucha, ed., Documents of United States Indian Policy. 1990: University of Nebraska Press, 2nd Edition, p. 249.

175 Id., pp. 274.



can learn to live with these multiple identities and even thrive with the diversity of citizenships and loyalties that they allow us.176

The point is, the Bangsamoro Government as an exemplification of the right to internal sovereignty under the Philippine Constitution and the UN DRIP or International Law is long overdue. Doubtless, this legal and political ideal fosters in general the dignity of everyman and in particular the dignity of every Filipino and every Moro. It is retrogressive to now quarrel with this Ideal.

A Way of Peace

The PBBL provides for the ratification of the Bangsamoro Basic Law by the majority of the votes cast in the provinces, cities, and geographical areas in a plebiscite conducted for the purpose.177 These areas are enumerated in Article XV of the PBBL.

Some critics expressed the view that the whole country should be involved in the ratification of the Bangsamoro Basic Law, arguing that the self-government envisioned in the law is far different from the autonomy defined in Republic Act No. 9054. Indeed, the envisioned law, if enacted, is a revision of Republic Act No. 9054, the current autonomy law for the Bangsamoro.

But I bat for the ratification of the BBL by the Bangsamoro themselves and the indigenes and residents of Muslim Mindanao.

The Philippine State is a democracy, its legislature run by the representatives of the people. To require the whole Filipino voters to decide on the political fate of an insurgent section of the population is a negation of our representative form of government. What will obtain then is direct democracy, which is not in anyway prescribed for the ratification of a basic or autonomy law for the Bangsamoro.

The idea for a national plebiscite is also a throwback to remote and wilder times when a society of clans was the highest form of political organization, with each clan an aggrupation of families related by blood huddled in rustic country and misty, rugged heights.

As early as Biblical times, representative democracy was practiced by the prophets, the best representatives of their people who were divinely inspired. Prophet Moses selected capable men from all the people to share with him the burden of leadership and governance — men who feared God, men of truth and honor who hated dishonest gain and covetousness — and appointed them as officials over thousands, hundreds, fifties and tens to decide cases by themselves and bring the difficult ones to him.178 Prophet Muhammad had his select companions to lean an ear to. In the City State of Madinah where he sought refuge and began his vicegerency, he maintained the leadership of the naquibs or leaders of the tribes in his administration.

176 Mark Malloch Brown, The New Frontiers of Loyalty, Philippine Daily Inquirer, December 10, 2014 issue, p. A19.

177 Section 1, Article XV, PBBL.

178 Exodus 18:13-24.

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The suggestion for a national plebiscite for the enactment or ratification of the Bangsamoro Basic Law is a joker too, a big hole on the pathway of peace. The war for self-determination by the Bangsamoro in contemporary times has already run by half a century, leaving its deleterious imprints in the psychology of both protagonists. Thus, in surveys, the feeling of ill-will towards the Bangsamoro among the majority Filipino population is high. Doubtless, the Bangsamoro are also most poignant in their resentment at the majority. For sure, the envisioned Bangsamoro Basic Law will take a beating in the polls among the majority.

For another reason, the Constitution does not prescribe for a national plebiscite for the ratification of any autonomy law for the Bangsamoro, but only within its constituent units. Thus:

The creation of the autonomous region shall be effective when approved by the majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.179

In the plebiscite for the ratification of the first autonomy law for the Bangsamoro, Republic Act No. 6734, these constituent units consisted of the 13 provinces and nine cities mentioned therein.180 In said plebiscite only 10 provinces joined the autonomous region with their respective cities. The Supreme Court ratiocinates, thus:

The constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature’s discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of government powers.181

To emphasize, the proposal for a national plebiscite is a road map towards the precipice. I pray that the majority choose love over faith and hope as prescribed in the First Epistle of Paul the Apostle to the Corinthians.182 This is the Way of the Prince of Peace.

Without love, you have gained nothing.183

••• •••

179 Section 18(2), Article X, Philippine Constitution.

180 Section 1(2), Article II, R.A. 6734, See Abbas, et. al. vs. Commission on Elections, et. al., 179 SCRA 296, 1989.

181 Id., p. 298.

182 1 Corinthians 13:13: “Of faith, hope and love, the greatest of these is love.”

183 Id., 13:3.


SB No. 2408 is Beyond the Power of Congress to PassS.b. No. 2408 iS beyoND the power of coNgreSS to paSS*

Vicente V. Mendoza**

Senate Bill No. 2408 proposes the Bangsamoro Basic Law. It incorporates the Comprehensive Agreement on the Bangsamoro (CAB) and its Annexes, which the Government of the Republic of the Philippines peace panel and the counterpart panel of the Moro Islamic Liberation Front (MILF) entered into on March 27, 2014. A counterpart bill (H.B. No. 4994) has been filed in the House of Representatives, apparently so that the measure can be simultaneously considered and enacted by Congress by March of this year. This fact cautions prudence in the consideration of so important a measure as this one which is designed to achieve peace in a troubled part of our land. I am certain the honorable members of Congress are aware of this.

The CAB is actually the second attempt by the parties to end the armed conflicts in Muslim Mindanao. The first one, the Memorandum of Agreement on Ancestral Domain, or MOA-AD, which was made in 2008, was declared void by the Supreme Court for being beyond the power of the Government to make under the Constitution.1 The question is how different is the CAB from the MOA?

Comparing the two agreements, I find much that has been done to make the Bangsamoro Basic Law conform to the Constitution and to put stress on development and the attainment of peace. Nonetheless, the Bill contains declarations of principles and provisions which, when read together, still reveal secessionist inclinations, notwithstanding the claim in the Preamble that the Bill is “consistent with the Constitution” and in its definition of the “Bangsamoro Territory” that the territory “remains a part of the Philippines.” The recognition of the “right [of the Bangsamoro people] to self-determination -- beginning with the struggle for freedom of their forefathers in generations past and extending to the present -- to chart their political future”2 reinforces the impression that Bangsamoro is a political entity that is only a little different from the “associated state” called Bangsamoro Juridical Entity in the MOA-AD.

Let me discuss briefly the concepts and provisions of the Bill which give special concern.

The Bangsamoro Territory

The reference in the Bill to the autonomous region in Muslim Mindanao as a “territory” of the Bangsamoro people is contrary to the Constitution under which the

* Statement of Justice Vicente V. Mendoza before the Senate Committee on Constitutional Amendments at the hearing on S.B. No. 2408 on January 26, 2015.

** Associate Justice of the Supreme Court (Ret.) of the Republic of the Philippines.

1 Province of North Cotabato v. Gov’t of the Republic of the Philippines Peace Panel on Ancestral Domain, 568 SCRA 402 (2008).

2 S.B. No. 2408, Preamble, Art. I, Sec. 3, Art. IV, Sec. 1, and Art VI, Secs. 1 and 3.

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autonomous region is a part of the Philippine Archipelago.3 The term “territory”, as defined in Black’s Law Dictionary, means “A part of a country separated from the rest and subject to a particular jurisdiction, a geographical area under the jurisdiction of another country or sovereign power.” Such, for example, was the Philippines as an “unincorporated territory” of the United States before it was granted independence on July 4, 1946, or the trust territories under the Charter of the United Nations, which are former colonies under administration by other countries under commission by the United Nations, pending the eventual grant of independence to them, like the Marshall Islands and Mariana Islands in the Pacific, and the French and the British Cameroons in West Africa. To call the autonomous region the “Bangsamoro Territory”4 is to imply that it is a separate part of the Philippines waiting to become independent.

It is said that self-determination is a principle recognized in the Charter of the United Nations. It is, but self-determination in that context refers to the rights of the former colonies which, as already stated, were placed under the international trusteeship system of the United Nations following World War II in order to prepare them for self-government and eventual statehood.5 The principle cannot be applied to ethnic groups like the Bangsamoro, which is not a colony but a part of the Philippines, for which regional autonomy is what is granted by the Constitution.

Moreover, as the Supreme Court noted in its decision in the MOA-AD case, the international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing sates. The various international documents that support the existence of a people’s right to self-determination also contains statements supportive of the conclusion that the exercise of such right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.6 Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to “internal self-determination.”7

Indeed, the dismemberment of the national territory can result from such provisions of the Bill. As has been pointed out by a professor of international law, “Groups do not secede merely because they are ethnically distinct, and if they did they would probably not get much support. . . . When a group seeks to secede, it is claiming a right to a particular

3 CONST., ART. I, SEC. 1 provides: “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction. . . .” The phrase “other territories” refer to Philippine claim to Sabah.

4 S.B. No. 2408, Art. III, Sec. 1.

5 U.N. Charter, Chap. I, Arts. I (2) and 55, Chap. XII, Art. 77 (b). See also U.N. General Assembly Resolution No. 1514, Dec. 14, 1960, declaring “(1) that “the subjection of peoples to alien subjugation and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the Nations and is an impediment to the promotion of world peace and co-operation, and (2) “all peoples have a right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Para. 2 is reiterated in the U.N. International Covenant on Civil and Political Rights, Art. I, para. 1, Dec. 16, 1966.

6 Province of North Cotabato, 568 SCRA, at 490-49, citing Re Secession of Quebec, 2 S.C.R. 217 (1998).

7 Id., 568 SCRA, at 494.


SB No. 2408 is Beyond the Power of Congress to Pass

territory.”8 This will be the result of considering the area occupied by the Bangsamoro people a “territory” and their “ancestral land”. However, as the Court has said, “the Constitution does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.”9

The Bangsamoro People

By defining who are to be considered Bangsamoros,10 the Bill in effect gives the Bangsamoro Parliament the power to pass a law, such as the Electoral Code,11 limiting suffrage and membership in the Bangsamoro Government to Bangsamoro people, thereby denying the rights and privileges of national citizenship guaranteed in the Constitution to others.12 Non-Bangsamoros, although Filipino citizens and residents of the region for the requisite period, can be disqualified from election to the elective positions in the provinces, cities, municipalities, barangays and geographical areas in Bangsamoro or from appointment within the Bangsamoro Government. This is because the definition in the Bill of who are considered Bangsamoros performs the same function that the definition of who are citizens of a nation or state does in a national constitution, namely, to screen out outsiders from certain privileges of national life.

The Form of Government

The Bill provides for a parliamentary system of government. It vests the powers of government in the Parliament, which is composed of at least 60 members, 50% of whom are representatives of political parties which have won in the election, 40% are directly elected from the districts, and 10% are sectoral representatives. The Cabinet performs executive functions.13 It is headed by a Chief Minister, who is elected by the majority vote of the Parliament from among its members. There is a Deputy Minister who, together with the majority of the Cabinet, are appointed by the Chief Minister from the members of Parliament.14 Upon the vote of two-thirds (2/3) of the members of the Parliament and the advice of the Chief Minister, the Wali must dissolve the Parliament and call new elections within seventy (72) hours. The Wali is the titular head of the Bangsamoro and is appointed by the Parliament for a term of six (6) years. He performs purely ceremonial

8 Lea Brylmayer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. OF INT’L LAW 177, 201 (1991).

9 Province of North Cotabato, 568 SCRA, at 481.

10 S.B. No. 2408, Art. II, Sec. 1 provides: “Those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, including Palawan, and their descendants, whether of mixed or of full blood, shall have a right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and their descendants are classified as Bangsamoro.”

11 Id., Art. VII, Sec. 9.

12 CONST., ART. V, SEC. 1.

13 S.B. No. 2408, Art. VII, Secs. 1, 5.

14 Id., Secs. 2, 29, 33

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functions.15

The Constitution provides, however, that the government of the autonomous regions should consist of “the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.”16 While the Chief Minister and at least at least half of the members of the Cabinet are to be chosen from the members of the Parliament and therefore are elected officials, the fact is that the Constitution contemplates that the executive be directly elected as such by the people. The Constitution does not provide for any other kind of election than direct election by the people. It is a presidential type of government, whether national or local, that is provided in the Constitution.

Indeed, a parliamentary system in an otherwise presidential system of government is an oddity and an incongruity. Even in Malaysia, the form of governments of the states follows the structure of the federal government which is parliamentary except for minor native judiciary powers in Sabah and Sarawak and the state legislatures which consist of a single chamber. Our Constitution recognizes differences in “historical and cultural heritage, economic and social structures” of the two regions of Muslim Mindanao and Cordilleras, but not differences in their political structures. For their governments are required to be structured “within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”17

The Powers of Government

Under the Bill, the Bangsamoro Government will enjoy extensive “exclusive powers,” including the power to trade with ASEAN countries,18 to contract foreign loans, credits and other forms of indebtedness,19 and to receive foreign grants and donations.20 It will likewise have “concurrent powers” over matters enumerated therein.21

In contrast, the powers of the Central Government will be limited to those enumerated in Art. V Sec. 1, called “reserved powers,” and to those enumerated in Art. V, Sec. 2, which it will share with the Bangsamoro Government. The “reserved powers” refer to the following:

1. Defense and external security;2. Foreign policy;3. Coinage and monetary policy;

15 Id., Secs. 1-3.

16 CONST., ART. X, SEC. 18.

17 Id., ART. X, SEC. 15.

18 S.B. No. Art. V, Sec. 3 (7).

19 Id., Art. XII, Sec. 22.

20 Id., Art. X11, Sec. 24; Art. V, Sec. 3 (17).

21 Id., Art. V, Secs. 2-4.



4. Postal service;5. Citizenship and naturalization ;6. Immigration;7. Customs and tariff, as qualified by Section 2 (10), Article V of the Bill;8. Common market and global trade, provided however that the power to enter

into economic agreements given to the ARRM under R.A. No. 9054 shall be transferred to the Bangsamoro Government; and Intellectual property rights.

The government is given “concurrent powers” over the following matters:22

1. Social security and pensions 2. Quarantine 3. Land registration 4. Pollution control 5. Human rights and humanitarian protection and promotion 6. Penology and penitentiary 7. Auditing8. Civil Service 9. Coastguard 10. Customs and Tariff 11. Administration of Justice 12. Funding for the maintenance of national roads, bridges, and irrigation

systems 13. Disaster risk reduction and management Public order and safety

Thus, under the Bill, the Central Government would be like the Federal Government of the United States – a government of enumerated powers with the balance of powers retained by the governments of the several states. The Philippine Government, however, is a unitary government. Under the Constitution, it possesses all powers of sovereignty, except only those given to the autonomous regions in the Constitution, to wit:

1. Administrative organization;2. Creation of sources of revenues;3. Ancestral domain and natural resources;4. Personal, family, and property relations;5. Regional urban and rural planning development;6. Economic, social, and tourism development;7. Educational policies;8. Preservation and development of the cultural heritage; and9. Such other matters as may be authorized by law for the promotion of the

general welfare of the people of the region,23 and those which may be granted by law.24

22 Id., Art. V, Sec. 2.

23 CONST., ART. X, SEC. 20.

24 Id., ART. X, SEC. 17.

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The lopsided allocation of powers to the national government and the Bangsamoro Government is due in part to the fact that some powers granted to its Parliament are not legislative, but constituent in nature, whereas the Constitution categorically provides that only “legislative” shall be delegated to regional governments and such grant shall be “subject to the provisions of this Constitution and national laws.”

Consider the following provisions on mining of Article VIII of the Bill:

Section 13. Mines and Mineral Resources. – The Bangsamoro Government shall have authority and jurisdiction over the exploration, development, and utilization of mines and minerals in its territory permits and licenses and the granting of contracts for his purpose shall be within the powers of the Bangsamoro Government.

Sec 14. Financial and Technical Assistance Agreements. – The applications for financial and technical assistance agreements shall be commenced at and recommended by the Bangsamoro Government to the President.

The manner by which the Bangsamoro Government shall make the recommendation shall be in accordance with the mining policy that shall be adopted by the Bangsamoro Parliament.. . . .

Section 17. – Bangsamoro Mining Policy. – Policies on mining and other extractive industries shall be drawn up by the Bangsamoro Parliament in accordance with Comprehensive Sustainable Development Plan, as well as its over-all medium term and long term Bangsamoro Development Plan.

Section 13 of the Bill, as quoted above, is contrary to Article XII, Section 2 of the Constitution, which provides that the exploration, development and utilization of the natural resources shall be under the “full control and supervision” of the National Government which may either undertake these activities itself or enter into co-production, joint venture, or production-sharing agreements with Filipino citizens or corporations 60 percent of the capital of which is owned by Filipino citizens. Further, in violation of the constitutional provision that the grant of legislative powers to regional governments “shall be subject to the provisions of national laws,” the Bill gives the Bangsamoro Government the power to amend the Philippine Mining Act of 1995 (R.A. No. 7942), among other national laws.25

Nor can Congress give the Bangsamoro Government the power to “adopt” or “draw up” a policy concerning mining. The policy on mining is set forth in the Constitution and, therefore, cannot be changed except by constitutional amendment. The Constitution provides that the natural resources belong to the State; that with the exception of agricultural lands, natural resources cannot be alienated; that the

25 S.B. No. 2408, Art. XIII, Sec. 8.



exploration, development, and utilization of the natural resources shall be under the full control and supervision of the State; that although the State may make agreements for others to undertake these activities, the party it contracts with must be Filipino citizens or corporations or associations 60 percent of the capital of which is owned by Filipino citizens; that the President of the Philippines may make agreements with foreign owned corporations for technical or financial assistance for the large-scale exploration and utilization of minerals, petroleum, and other mineral oils, “based on real contribution to the economic growth and general welfare of the country, . . . the State shall promote the development and use of the local scientific and technical resources.” This constitutional policy applies to mining in the entire country.26

The Bangsamoro Government cannot be given the power to determine the mining policy in the region without giving it the power to amend the Constitution, which of course cannot be done.

Another provision of the Bill which is of doubtful constitutionality is Article VII, Sections 9-11, which create a Bangsamoro Electoral Office. The Electoral Office will be composed of three members who shall be appointed by the President of the Philippines upon the recommendation of the Bangsamoro Parliament. It will form part of the Commission on Elections, and it will perform the functions of the COMLEC in the Bangsamoro.

To be sure, the office will be created not by the Bangsamoro Government but by Congress in the event the Bill is passed. The question remains, however, whether Congress can create such office, considering that the organization, composition, and functions of the COMELEC are governed the Constitution.27

So here again is the basic flaw in the Bill, i.e., the failure to distinguish between constituent matters and legislative matters.

General supervision of the Bangsamoro Government

Under the Constitution the President has general supervision of autonomous regions “to ensure that laws are faithfully executed.”28 This power cannot be diminished, modified or qualified. The Bill provides, however, that the President shall exercise shall exercise general supervision over the Bangsamoro Government “consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government.”29

Already reduced to “general supervision,” or mere oversight as distinguished from control, the Bill further emasculates the President’s power by providing that its exercise

26 CONST. ART. XII, SEC. 2.

27 Id., ART. IX, C, SECS.1-11.

28 Id., ART. X, SEC. 16.

29 S.B. No. 2408, Art. VI, Sec. 3.

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should be “consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government.”

This can make the strict enforcement of national laws within the Bangsamoro territory difficult to secure as law enforcement may have to take account of the local custom of the people. That can make a mockery of the laws of the Republic, as the “asymmetric relation” of the two governments can always be invoked to overrule any constitutional objection.

Interestingly, Article VI, Section 3, which provides that “The Wali, as part of the Bangsamoro Government, shall be under the general supervision of the President,” is unqualified. As already noted, however, the Wali’s powers are purely ceremonial. He cannot even countermand the advice of the Chief Minister to dissolve the Parliament and call new parliamentary elections.

Thus, S.B. No. 2408 converts an autonomous region provided in the Constitution into a territory, with its own territorial waters, declares the territory to be the “birthright” of a people whom it defines as Bangsamoros, recognizes their right to self-determination to chart their political future, provides a parliamentary form government, with almost all powers of internal and external sovereignty, and, above all, embodies principles incompatible with the notion of the Constitution as a social compact. The support shown by foreign governments to the proposed government can easily translate into support and recognition for the Bangsamoro claim for statehood legitimate.30

The “Asymmetric Relationship” of the National and Bangsamoro Governments

Under the Constitution Congress is authorized to create local governments, special metropolitan political subdivisions, like the Metropolitan Manila Development Authority, and autonomous regions and delegate to them legislative powers to regulate local affairs and concerns. Which of these is the Bangsamoro Government, because Congress has no authority to create any other agency of local government.

Art. VI, Sec. 1 of the Bill states that the Bangsamoro is “distinct from other regions and other local government.” This implies that it is none of them. Indeed, Bangsamoro appears to be more similar to the Bangsamoro Juridical Entity created in the MOA-AD of 2008. What the Court said in the case of such entity applies mutatis mutandis to the Bangsamoro political entity provided in S.B. No. 2408:

[The] BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population,

30 Compare Milena Sterio, On the Right to External Self-Determination: “Selfistan,” Secession, and the Great Powers’ Rule, 19 MINN. J. OF INT’L LAW 1, 176 (2010): “It is the Great Powers that control the outcome of most self-determination struggles in today’s world, through their military, political, financial, and economic dominance, exercised in international organizations and directly through concepts such as humanitarian intervention and involuntary sovereignty waiver.”



a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter to the national sovereignty and territorial integrity of the Republic.31

Indeed the Bangsamoro is similar to the Commonwealth status of the Philippines before the withdrawal of American sovereignty from its territory – sovereign although not fully independent. The creation of the Bangsamoro follows the same process in creating the present government of the Philippines. As described by the U.S. Supreme Court in Hooven & Allison v. Evatt,32 that process was as follows:

Step by step, Congress has conferred greater power upon the territorial government, and those of the federal government have been diminished correspondingly, although Congress retains plenary power over the territorial government until such time as the Philippines are made independent. This process culminated in the Act of March 24, 1934, c. 84, 48 Stat. 456 providing for the independence of the Islands. The adoption by the Philippines and the approval by the United States of a constitution for the Commonwealth of the Philippine Islands, as provided in the Act, have prepared the way for their complete independence.

Accordingly, the Supreme Court held that the Commonwealth Government was “a sovereign government, though not absolute but subject to certain limitations imposed in the Independence Act” and as such was entitled to the allegiance of the Filipino people even during the Japanese Occupation of this country.33

Of course the Philippine Congress does not have the authority to create a sovereign state as the U.S. Congress has with respect to its territories and possessions. So by what authority of Congress is the Bangsamoro Government is justified to be created? It is said that its relation to the Central Government is “asymmetric”, meaning to say, it is “distinct from other regions and other local government.”

This is to beg the question, namely, whether Congress has authority to create a political entity that is different from the other forms of local governments by simply describing the relation of such entity to the National Government as “asymmetric.” In the case of the autonomous regions, their creation is subject to provision that (1) they are created “within the framework of [the] Constitution and the national sovereignty as well

31 Province of North Cotabato, 568 SCRA, at 481-482; Vicente V. Mendoza, The Legal Significance of the MOA on Ancestral Domain, 83 PHIL. L.J. 489, 493-495 (2008).

32 324 U.S. 652, 89 L.Ed. 1252, 65 S.Ct. 870 (1945)

33 Laurel v. Misa, 77 Phil. 856 (1947) (res.).

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as territorial integrity of the Republic of the Philippines,”34 and (2) the powers delegatedto them are “subject to the provisions of [the] Constitution and national laws.”35 Indeed the limitation that anything Congress does in creating or granting powers to autonomous regions must be subject to the Constitution and the national laws is so clear for anyone not to hear or not to see.

For if Congress can ignore such limitation by simply declaring that a political entity it creates is “distinct from other regions and other local government” and that its relation to the National Government is “asymmetric,” then Congress must have the power to amend the Constitution, other than as given to it by the Constitution in Article XVII.

The Need to Amend the Constitution Before S.B. No. 2408 Can be Passed

Indeed, if the Bangsamoro is to be created as the price of peace in Mindanao, it must be by the will of the Filipino people as a whole, not solely by the will of the Bangsamoro people living in the Bangsamoro Territory, and it must be by constitutional amendment and not by an act of Congress. It is noteworthy that in the Framework Agreement between the peace panel of the Philippine Government and that of the MILF, the creation of a Transition Commission was provided for, the task of which was to draft the Bangsamoro Basic Law and “to work on proposals to amend the Constitution for the purpose of accommodating and entrenching in the Constitution the agreement of the Parties whenever necessary without derogating from any prior peace agreement.”36

However, only the draft of Bangsamoro Basic Law was submitted by the Transition Commission. Why no proposals for constitutional amendments were also prepared has not been explained. But whatever may be the reason for the absence of such proposals, implicit in the assignment of the Transition Commission is an acknowledgment by the parties to the Comprehensive Agreement on the Bangsamoro that the essential provisions of the agreements, which were to be embodied in the Basic Law, were incompatible with the provisions of the Constitution. Hence the need to amend the Constitution to obviate any constitutional objections before the Basic Law is considered.

••• •••

34 CONST., ART. X, SEC. 15. See also id., SEC. 18.

35 Id., ART. X, SEC. 20.

36 Framework Agreement on the Bansamoro, Oct. 15, 2012, VII, 4 (a) (b), Annex on Transitional Arrangements and Modalities, I, C-D.


BBL: Sovereignty versus Sub-Statebbl: SovereigNty verSuS Sub-State1

Julkipli Wadi

It is an honor to be given the opportunity to share my view in today’s Joint Committee hearing of the Senate on the Bangsamoro Basic Law (BBL). In the invitation’s guideline provided by the Senate Joint Committee, resource person is requested to take affirmative or negative position relative to the BBL while given four topics to choose from and identify one topic as a focus of discussion. The four topics are:

1. Legislation v. Constitutional Change2. Checks and balances in National Government v. None in BBL3. Sovereignty v. Sub-State; and,4. Territorial Integrity v. Functional Division

As a supporter of BBL, I would like to discuss the subject, “Sovereignty v. Sub-State”, with emphasis on the latter (i.e., sub-state) in the context of Philippine experience in Mindanao and the Sulu Archipelago.

Last Monday, the chair of the Philippine panel on the GPH-MILF peace process exhorted this august body to consider the broad and dynamic field of political Science – not solely the legal construction of Philippine Constitutional Law – as a prism in understanding the BBL, its nature, and the vision it purports to entrench known as the Bangsamoro Political Entity.

If I may interpret the tone of argument of GPH Peace Panel Chair Prof. Miriam Coronel-Ferrer, she is almost making a Plea for Congress to use a broader and dynamic scale in weighing the merits (or demerits) of the BBL. It is a scale that is able to harness the tools of political and legal concepts, theories and principles relative to today’s trend of sub-national level governance discourses and development in many parts of the world. One of the recent works on this subject is the book given to you last Monday by Prof. Ferrer, Markku Sukksi’s “Sub-State Governance Through Territorial Autonomy: A Comparative Study in Constitutional Law of powers, Procedures and Institutions (2011)

If I quote Ferrer’s plea and the work of Sukksi, it does not mean that I conspire with her in pushing for particular perspective on the issue of sub-state and its cases as articulated quite comprehensively by Markkus Sukksi. Although we are friends with Prof. Ferrer, we hardly talk or share views as she is too absorbed with her position as Peace Chair, given the fact, too, that I do not wholly toe the line OPAPP on issues relative to strategic questions of the peace process. It is just that Sukksi’s work is readily available in the internet where any student of Political Science, Public Administration and Political and Constitutional Law could easily read.

But there is another scale that I would like to add as part of a weighing instrument to assess the BBL and its sub-state proposal. It is the scale of history. Perhaps, the field of history (particularly Filipino-Moro history) would provide a comprehensive frame

1 A paper presented during the Joint Committee Hearing on the Bangsamoro Basic Law held at Recto and Lau-rel Rooms, 2/F, Senate Building, Roxas Boulevard, Pasay City on February 2015. The author is Dean of the Institute of Islamic Studies, University of the Philippines.

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together with Constitutional Law and Political Science for our understanding of the issue at hand.

The logic in using these three instruments of weighing scale as tools in assessing the draft BBL is obviously to make our judgment dynamic and creative while aware of the Lounge duree surrounding the political dynamics of Constitutional interpretation for, without stating the obvious, even the fundamental law of the land is historically constituted. This provides us with a bigger canvass as we paint our thought on an issue of supreme importance.

To begin with, allow me to express (and this is not to raise myself), like any others, that we have followed quite persistently the issue of Mindanao peace proves these past several years. In 2000, the year when peace talks between the Estrada Administration and the Moro Islamic Liberation Front (MILF) were in tatters, I published in the Diliman Review a paper entitled: “Tier-Making and Tier-Changing in Mindanao and the Sulu Archipelago (2000).”

In that paper, I explored the puzzle regarding the instability of national-local relation between the Philippine government and Moro areas and the futility of what I refer to as tier-making and tier-changing approach that come in the form of military, political, and administrative units that were created and then abolished as other ones were created and later abolished and so on and so forth.

So that, the trend of creating and abolishing tiers continued since the American colonial period until the expansion of the Autonomous Region In Muslim Mindanao in 2001, and possibly, until the entrenchment of the Bangsamoro in 2016. This is not to include small and sometimes ad hoc tiers or offices including proposals that were promised by the Philippine government to Moro fronts that never materialized.

For historical appraisal, it is worthy to remember that there were nine (9) tiers or military, administrative and ad hoc units in Mindanao and the Sulu Archipelago that were created and eventually abolished successively during the American colonial period. Some of these were: Military District of Mindanao and Jolo (created in 1899), Moro Province (created in 1903), Office of Commissioner for Mindanao and Sulu (created in 1937), and a few others.

During the succeeding Philippine administrations, there were fourteen (14) tiers created and abolished successively starting with Commission on National Integration (created in 1957), and many others like Mindanao Development Authority, Office on Muslim Affairs (OMA), Southern Philippine Development Authority (SPDA), Autonomous Region in Muslim Mindanao (ARMM), Southern Philippine Council for Peace and Development (SPCPD), Expanded ARMM, Maglanco-Socsargen Council (Government proposal in 1999), until the Bangsamoro Juridical Entity (BJE) Political arrangement in the Memorandum of Agreement on Ancestral Domain (MoA-AD) in 2009.

So that, if we count the number of tiers created and abolished successively since the American period until these days including the present ARMM and the proposed Bangsamoro in 2016, there were/are already twenty-four (24) tiers, unit or entities. In this regard, it was not surprising when Malacanang declared three or four years ago that the ARMM is a “failed political experiment”. Truth is, Mindanao and the Sulu Archipelago had been subjected to continuing political experiments for 117 years if we include the


BBL: Sovereignty versus Sub-State

critical years of 2016.

Before I present my conclusion as to why Mindanao and the Sulu Archipelago was subjected to this morass of tier-making and tier-changing as I would argue that the subject of sub-state presents as relatively new mode of tier-making with its attendant politics with the national government and its tendency, as feared by many, in becoming a gateway for secession, I would like to note another paper that I wrote when President Arroyo’s administration was in its twilight year after being bruised heavily due to the bungled Memorandum of Agreement of Ancestral Domain (MoA-AD) in 2008 and the Maguindanao Massacre in 2009. It is entitled, “The Philippine and the Bangsamoro Policy: Breaking the Sisyphean Ordeal (2012.)”.

Here, with added but unimplemented tier called the BJE while increasing the number of political experiments in the south, I articulated my frustration after years of peace process between the government and MILF during the Arroyo Administration, only to end up slugging it out once again. I thought the metaphor of Sisyphus fits in explaining the morass wherein whenever the peace process is about to reach the peak of the mountain, the weight of of its load becomes too heavy that it would cascade down the mountain rendering useless all peace efforts and other peace dividends; so that, it would take succeeding Philippine administrations to take the cudgel of rolling up the stone of the peace process once again.

In today’s presentation, I raise two questions: What explains the continuing tier-making and tier-changing in Mindanao and the Sulu Archipelago Could the sub-state project as contemplated in the BBL break the cycle and stabilize Philippine intergovernmental relation in Mindanao and the Sulu Archipelago?

These questions entail much time to discuss and elaborate. For brevity, let me quote the first paper mentioned above:

“The man source of instability is anchored on a century of unresolved contestation over the political status of Mindanao and Sulu. Moreover, the colonial mixture of Philippine political system that failed to address the “power vacuum” in Mindanao and Sulu reinforces intergovernmental instability. The unitary set-up of the Philippine government was a legacy of Spain… Yet, the set-up was institutionalized by the “Philippine Commission to facilitate the extension of American sovereignty to the Philippines” including Mindanao and Sulu. The separation of powers (executive, legislative , and judiciary) was copied from the US. The unitary set-up defines the “vertical” divisions of powers (structure of government) between the national and local government units while the “horizontal” separation of power defines the form of government (e.g., presidential or parliamentary).

In all indications, the colonial-political mixture is what creates a disjuncture between the “horizontal” and “vertical” relations of powers because, from the point of view of governance, a unitary set-up requires a relatively homogenous society while an effective application of separation of powers presupposes a stable system of democracy… As a consequence, it emboldened inter-governmental problem and rendered futile the national government effort of tier-making and tier-changing and further worsened the ‘power vacuum” in southern Philippines (Diliman Review 2000).

Despite my rather grim view about the relation of the Philippine government vis-a-vis the Bangsamoro in terms of gaps especially their historically asymmetrical intergovernmental position ever since, I thought the concept of sub-state provides an

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option where the two fundamental basis of power in a democratic system of polity (i.e., separation of power; and, division of power) could be adjusted in such a way that while the former is made to share power horizontally (e.g. concurrent, exclusive powers) with the Bangsamoro, “structural relation of power” (i.e. division of powers in terms of national–local relation) must also be adjusted from previously strong-executive type to strong-legislature kind (e.g. parliamentary, ministerial form) to allow the latter to have a sub-government that does not necessarily have the power of national government relative to the first fundamental source or arrangement of power (i.e. separation of power), but which is able to have enough power under the division of power (e.g. vertical power; national-local relation) that reflects partly a federal form of government but which still enjoys an autonomous character under a unitary set-up of government as in the case of the Philippines.

As a clarification, this notion of sub-state is closed to Suksi’s definition as that political space of “organizational options which include federalism with its “intermediate” state-level entities, normally distributed over the entire sovereign territory, and also a variety of different territorial autonomy arrangements” (2011:1). According to Suksi, “both federal solutions and autonomy arrangements are used to accomplish the same thing, to bring about the creation of public authority of a devolved nature for territorially circumscribed entities as the sub-state level.: Sukksi’s notion of public authority” is normally the power to make laws, that is, the legislative power or the law-making competence, managed through institutions of self government.

The need to have such an adjustment from strong executive to strong legislature is in consonance with the essentially and historically asymmetric power relation of the Moros that even the Americans recognized when they organized the Moro Province in 1903. Although the Legislative Council of the Moro Province, composed obviously of Moros from different districts and tribal wards as organized was not an explicit recognition by the US for such legislature to co-exist with the Governor under the Insular Government headed by a Governor General and a Philippine Commission. This proves, however, America’s respect for Moro asymmetrical relation during US colonial administration in the Philippines.

Moreover, the dispersal of power under a unitary set-up by simply touching on the powers of national government under the separation of powers principle or the traditional strong executive approach without adjusting the corollary structure of division of power (e.g. powers in nation-local relation) assumes a symmetrical relation between the national government and the Moros, which, in my view, is responsible for the cycle of tier-making and tier-changing in Mindanao and the Sulu Archipelago.

Understandably, and from the perspective of the State, the traditional approach of power dispersal through autonomy using strong-executive approach is favorable to the national government in terms of maintaining national power down the line. However, such an approach rests on the assumption that local areas are relatively homogeneous and fully integrated with the national community. But given the political and cultural distinction of Moro society honed by a separate history different from Philippine history, then the autonomous, integrative and strong executive approach of power relation in inappropriate as it continuously creates political disjuncture in national-local relation between the two communities (Filipinos and Moros).


BBL: Sovereignty versus Sub-State

If such an approach of unitary, strong-executive type is made to persist, we would be perpetuating patron-client relationship, with local or regional executives in Moro areas forced to kowtow to the national government particularly to the Executive.

As local executives act as alter ego of the President and thereby dominating the local and regional political system, local and regional legislatures are consequently rendered weak and under-utilized, autonomy and decentralization reduced to a hollow concept. On the ground institutions of autonomy are swiped under by patronage politics, warlordism, as so on. For sure, patronage system, political dynasties and political bossism are prevalent not only in the south but the whole country as a whole. I would contend though that due to the depth of political and cultural asymmetry between Moro society and the national community, there is both qualitative and quantitative difference of patron-client relation, affecting thus the working of intergovernmental condition in the area.

There is a need to adjust the fulcrum of separation of powers structure (horizontal) with the division of power relation (vertical) away from strong-executive type of strong-legislature in mid-tier or regional level where check and balances are made to operate not in traditional presidential form where the three branches of government are conceived to be independent and co-equal but along parliamentary arrangement where the parliament as legislature minus the judiciary co-exists with Executive referred to as Prime Minister or Chief Minister for that matter. The rationale of having a strong legislature, like a parliament, is for the real meaning of autonmy to be fully realized in the regional or local level.

The Constitutional question, thus, is: Can a State with a unitary structure and a presidential form of government accommodate a tier or “sub-state” that carries a strong-legislature feature generally understood as parliamentary or ministerial form of government.

I would leave this question for our Constitutional lawyers to argue. My end at this juncture is to articulate the impact of power dispersal through traditional mode of autonomy using strong-executive approach without making adjustment in the fulcrum of power relation on both relation on both separation and division of power that often results in the instability of political and administrative tiers between the national government and regional and local government as shown vividly in continuing political experiments in Moro areas.

It must be noted, however, that the long political experiment did not only hamper autonomy and democratization in the south; it practically exhausted national resources suggesting that Moro demand for power and autonomy is insatiably endless thus burdening the State almost perpetually. Traditionally, the national impulse is to lay the blame on the Moros with their doggedness and tenacity in pursuing their struggle for self-determination. But as Moro fronts like the MILF begins to redefine self-determination generally in its internal dimension not its external aspects, the government should also be ready to make corresponding recalibration beyond traditional approach of autonomy.

At this point, I would like to leave this major Constitutional question and address the fear of some that the BBL may serve as a gateway for secession of the Bangsamoro. Arguably, this fear is not necessarily unfounded. The draft BBL is not simply a political or legal document. The BBL is a vision of possibilities whose tendency could tread in many

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Julkipli Wadi

ways.

One of the possibilities may be captured with the question: Given that the fulcrum of power in the Bangsamoro as contemplated in the BBL would change from the Executive (previously the Regional Governor) to the parliament with difficulty on the part of the President to control at least 60 people, what if the Bangsamoro Parliament becomes too nationalistic where situation could possibly reach a point where there would be polarization of positions between the National Government and Bangsamoro Government?

While the BBL provides that the supervisory power of the President overarches on various Bangsamoro political and military entities with the attendant intergovernmental bodies, Congress-Bangsamoro Parliament Forum and Sub-constitutional bodies as venues to resolve possible tension between the national Government and the Bangsamoro, I would say, in fact, I should be frank, these are not enough to ward off possibility of Moro’s growing appetite for secession through the Bangsamoro Parliament. Like any politics, the Bangsamoro politics, by that time remains a terrain of possibilities. But for us to fail to distinguish a phantom or ghost out of such possibilities as if they are real would be to grip us in fear before we realize that, on its flipside, the BBL can be viewed to as a key in addressing in a rather different way in the political experiments in Mindanao and the Sulu Archipelago.

At this point, what I would like to point out in order to avoid the risk of polarization as mentioned above is to raise a basic postulate that may be captured with what indigenously call a “tambusah” or knapsack metaphor. It is akin to a natural law or common sense that as one increases the load of power unto a bag, it is necessary to strengthen the ties that bind so they won’t break altogether.

In other words to avoid the Bangsamoro becoming a gateway for secession, the process of power dispersal that is distributed along the division of power structure must correspondingly be countered not simply through the President’s power of supervision and the various intergovernmental bodies as such bodies could also be “politicized” when rough comes to shove, the Moros should even more be able to identify with the national aspiration through ample representation in major branches of government as these remain the critical sources of power that determine the working of separation of power principle. This way the fundamental basis or structure of national power is fully utilized not simply as source of empowering the Bangsamoro with optimum potential of autonomy called sub-state extended to them but as a guarantee in making them glued to the Republic and thus ascertaining the country’s territorial integrity remains intact.

Finally, as the BBL is faced with serious challenge with the so-called Fallen 44 tragedy in Mamasapano, Maguindanao last week, the onus is with the MILF and all the branches of government, including the legislators. Like Sisyphus, they face the grand task of rolling up the BBL stone even more doggedly; and with precious time ticking, they could not afford to succumb to despair and helplessness, as they are just a distance away from the mountain top.

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DocumentshouSe bill No. 4994

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Official Statementsofficial StatemeNtS

check aND balaNceS iN the NatioNal goverNmeNt vS. NoNe iN the bbl

Senen BacaniMember, Negotiating Panel for the Peace Talks with the MILF

To say that there are no checks and balances in the proposed BBL as compared to those existing in the national government can only be due to a complete misreading of the proposed BBL. In fact, the proposed law that will establish the framework for the future Bangsamoro government is replete with so many examples of checks and balances on the powers to be exercised by the new political entity. The proposed BBL in the first place is a classic example of trying to balance autonomy, subsidiarity and devolution with sufficient internal controls.

Overarching the whole concept of checks and balances is the fact that the President will continue to exercise general supervision over the Bangsamoro government to ensure that National laws are faithfully executed. It is worthy to note that National laws cannot be amended by the Bangsamoro Parliament unless authorized to do so by Congress. Moreover it is clear in the proposed BBL that reserved powers (both expressed and residual) of the national Government can at anytime be exercised within the Bangsamoro territory without any limitation whatsoever. For example, the Bangsamoro Government’s power to enter into economic agreements, and to establish linkages for cultural exchange, economic and technical cooperation with other countries is subject to the Central Government’s reserved powers over foreign affairs. In addition, the exercise of the concurrent or shared powers by the Bangsamoro government can only be done with the coordination and cooperation of the national government.

To supplement the work of the Constitutional bodies in the Bangsamoro (COA, CSC, COMELEC, CHR) is the proposed establishment of auditing, civil service, election and human rights units in the Bangsamoro without prejudice of course to the powers, authorities and duties of these Constitutional bodies. The only goal is to assist, and not to replace in any manner whatsoever the powers and authorities of these bodies.

The Ombudsman shall have the power to act on erring Bangsamoro officials. The Supreme Court will continue to exercise the powers of supervision and judicial review over all courts including Shari’ah Courts.

Moreover, there are clear statements in the proposed BBL that the Bangsamoro government will have to adhere to the commitments of the National Government as embodied in international treaties and agreements.

The draft law also provides for additional intergovernmental bodies to be established in order to ensure cooperation and coordination between the National and Bangsamoro Governments. These are:

1) The Central Government - Bangsamoro Government intergovern-mental Relations Body to resolve issues on intergovernmental rela-


Official Statements

tions;

2) The Intergovernmental Fiscal Policy Board that shall address rev-enue unbalances and fluctuations in regional financial needs and revenue-raising capacity of the Bangsamoro;

3) The Philippine Congress - Bangsamoro Parliament Forum for pur-poses of cooperation and coordination of legislative initiatives;

4) The Bangsamoro Sustainable Development Board to ensure the har-monization of environmental and development plans, as well as to formulate common environmental objectives; and

5) The Joint Body for the Zones of Joint Cooperation which shall be responsible for drawing up of policies in the zones of joint coopera-tion in the Sulu Sea and the Moro Gulf.

Also worthy of note is the provision on the possible vote of no confidence against the Government of the day which can serve as a further check on the performance of the Bangsamoro government by the duly elected representatives of the Bangsamoro. Another is the full disclosure policy of the Bangsamoro government of its budget and finances and of bids and public offerings.

Regarding public order and safety, there will be a Bangsamoro Police Board which shall perform the functions of the Napolcom in the Bangsamoro. The board shall be part of the Napolcom with the Napolcom ensuring that the Bangsamoro Police Board performs its powers and functions within the bounds of its authority.

Above all of these controls within and outside the Bangsamoro however, what is of paramount importance would be the demand of the governed for complete accountability of those who govern and supported by a strong press and strong civil society organizations. That way we can further strengthen the democratic institutions that will be established and ensure the general welfare of the people in the Bangsamoro.

••• •••

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Official StatementslegiSlatioN vS. coNStitutioNal chaNge

Teresita DelesPresidential Adviser on the Peace Process

When the negotiations between the Government and the Moro Islamic Liberation Front (MILF) restarted in 2010, we knew that we had a daunting task ahead of us. The Supreme Court’s decision to render the contents and the manner by which the Memoran-dum of Agreement on Ancestral Domain (MOA-AD) was drafted as unconstitutional and contrary to law weighed heavily on our scale of decision-making. Even more, the immedi-ate repercussions of a botched peace process – the re-ignition of violence, the many lives and properties lost and horribly affected, the general sentiment of hopelessness – were our constant reminders that we cannot take every word, phrase, or statement in any of the political agreements lightly. Thus we made it our mission to prevent any misstep in forging the Comprehensive Agreement on the Bangsamoro (CAB) – to keep all the provi-sions therein within the flexibilities of our Constitution and as guided by the Supreme Court ruling in the landmark case of the Province of North Cotabato v. Government of the Republic of the Philippines or the MOA-AD case.

Since the Government Panel under the Aquino administration started, we have con-ducted 442 consultations across the nation, in keeping with the commitment to make this process inclusive, participative, and consultative. Nowhere in the CAB can the term “associative” be found, nor any of its features entrenched or alluded to in the peace agreement. We will also not find a single guarantee for charter change to accommodate the CAB. The most accurate statement that can be made is that, although the main goal of the road map to 2016 is the legislation of a new organic act that would establish the Bangsamoro government, the agreement recognizes the right of any citizen of the Re-public, including those who are appointed in the Bangsamoro Transition Commission (BTC), to propose amendments to the Supreme Law, through the modalities provided in our Constitution. This is in keeping with President Aquino’s unequivocal instruction that all commitments must be kept within the framework of the Constitution, and the belief that the MILF is better off holding on to something concrete and attainable by regular legislation, rather than pinning our hopes on something as uncertain as charter change.

These features – wide consultations, regular legislation, autonomy, among others – distinguish the CAB from the declared unconstitutional MOA-AD.

The draft Bangsamoro Basic Law or Senate Bill No. 2408, the translation of the CAB into a proposed legislation, is one that can be well accommodated by the provisions of our Charter. Even as the Constitution is deemed read into any legislation passed by the National Congress, SB No. 2408 explicitly guarantees that it will be in consonance with the Constitution (Preamble) and thus its provisions, in case of ambiguity, should be read with the parameters of the 1987 Constitution in mind.

The establishment of a parliamentary form of government in the Bangsamoro in-tends to bring life to the text of the Charter that leaves to the wisdom of Congress the de-termination of the structure of government for the region, provided only that the execu-tive and legislative branches will be elective and representative of its constituent political units (Section 18, Article X of the Constitution). The draft BBL, as it gives improved au-tonomy to the Bangsamoro, continues to honor its place as an integral part of the country (Section 1, Article III)) whose government remains under the general supervision of the


Official Statements

President (Section 3, Article VI). The Bangsamoro Police (Article XI), a unit of the Phil-ippine National Police and is an integral part of its law enforcement functions, remains true to the constitutional proscription of maintaining only one national police under the administration and control of the NAPOLCOM (Section 6, Article XVI, Constitution).

But perhaps the most glaring difference between the MOA-AD – a political docu-ment – and Senate Bill No. 2408 – a proposed legislation – is the operationalization of the constitutional requirement to conduct a plebiscite and allow those provinces, cities, and GEOGRAPHIC AREAS which favorably vote for the BBL to be part of the Bangsamoro (Section 18, Article X, Constitution). In this bill, for the first time, we recognize the spirit of the provision that gives primacy to the consent of the governed in determining their political status. By allowing municipalities and barangays - not just provinces and cities – to participate in the plebiscite, we intend to right the wrong committed against the phrase “geographic areas” when it was all but rendered a mere surplusage in past legislations.

Senate Bill No. 2408 proposes many novel changes for the proposed Bangsamoro. From the use of the word “we” or the first person in the preamble (so worded because the law becomes effective after ratification by the people), the recognition of the right to self-determination (a basic right recognized in international law, but often misunderstood in our domestic context), and the acknowledgment of the historical injustices committed against a people with a distinct identity, this proposed legislation is bound to invite ques-tions of legality and technicality, even prudence. As demonstrated, this however does not mean that there is no constitutional basis for all of these, or that a mere legislation without charter change can enforce them. We maintain that a closer scrutiny of the provisions of the draft BBL and a more comprehensive understanding – even beyond the textual or tra-ditional interpretation – of the words of the Constitution, will bring us to the conclusion that the framers and the people who ratified the Charter had the foresight to entrench a unique set-up in the autonomous region. One that respects the peculiar situation in the area that is not inconsistent with but is in fact a means to preserve our national sovereignty and territorial integrity under the 1987 Constitution.

••• •••

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Official StatementsoN the matter of SubState

Miriam FerrerChairman, Negotiating Panel for the Peace Talks with the MILF

Madame Chair Senator Miriam Defensor-Santiago, Honorable Senators Ferdinand Marcos, Jr., Senator Teofisto Guingona III, Senator Pia Cayetano.

I speak before you this blessed morning as a student and practitioner of politics, and less of law, as I am not a lawyer. Politics, and not just constitutional law, I believe, is the best discipline with which to approach the questions before us: Is the Bangsamoro a sub-state? Corollarily, is being a substate in/by/for itself, necessarily unconstitutional?

Why do I say that political science relative to jurisprudence is our best recourse in getting to the heart of the matter of the Bangsamoro?

We all know that matters of state are foremost matters of politics rather than law. Over and above law, is the matter of peace and justice which, to go back to the Greek classics, constitute the reason for being of the polity or of the state. Stretching forward to the Enlightenment period, peace and justice, likewise, are the ends of the social contract.

Madame Chair, the “substate” word has been unjustly demonized. As in any de-monized term, waive it like a red flag, and people will rail against it. It is almost like the term “Moro” – say it and in the minds of many, you generate fear, distrust, suspicion, hate. Such is the unfortunate state of mind that we have inherited from Spanish and American colonial rule. Such hatred has led us to continue to think like the colonials: A good Moro is a dead Moro. Fast forward 100-500 years later: A good substate is a dead substate. Unconstitutional! Bang, you’re dead.

This, when in fact a “substate” can only mean being a “subdivision” of and therefore a part of the state in the “subnational” sense, in the same way that a “subset” – as we learned from grade school math – can only mean being part of a bigger set.

Madame chair, the word substate is not even a legal term.

It is merely a descriptive word pertaining to one part or unit of a state.

How can we judge legality or illegality, constitutionality or unconstitutionality, by mere mention of the word?

This is not to say that substates or substate entities do not exist.

I have here a copy of the book, Substate Governance through Territorial Autono-my, A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (2011) written by the Finnish professor of comparative law and politics, Markku Suksi. Madame Chair, if I may, may I respectfully give you a copy, a humble contribution to your library?

This book provides us with a survey of substate entities that are of particular interest to us. These are substate entities that are in the form of territorial autonomies such as one finds in countries like China, with Hong Kong, Macau and Tibet; Finland, with Swedish-


Official Statements

speaking Aland; Indonesia, with Aceh, West Papua and Yogyakarta.

Territorial autonomies – a genre that is applicable to our case on hand are here dis-tinguished from federal states and obviously, independent states.

Madame Chair, independence was never on the negotiating agenda of the govern-ment. The whole idea of negotiation was precisely to keep the country intact. Any notion of a substate can only mean a set up within the Philippine state and under the current Philippine Constitution.

Some critics insist that the Bangsamoro in the signed documents is still the substate as originally conceived when we began negotiations in 2010. They do not realize how the Comprehensive Agreement on the Bangsamoro, for the sake of peace, national unity and social justice, had arrived at the necessary compromises in accordance with the 1987 Con-stitution and its flexibilities, without prejudice of course to future constitutional change.

This brings us to the second level of the claim of unconstitutionality before us: that the Bangsamoro, being a substate, is NOT the autonomous region contemplated in the Constitution. Specifically, that the powers that have been enumerated in the signed docu-ments go beyond what is possible in a unitary set-up.

Notably, our constitution did not explicitly say that we are a unitary state. In fact com-ing from a highly centralized state under martial rule where the Executive branch was able to wield wide powers both formally and informally, the crafters of the 1987 Constitu-tion took pains to devolve powers through principles and provisions on local autonomy, decentralization and autonomous regions that it ensconced in Article X, “On Local Gov-ernments.” Moreover, equally significant, they wrote up a whole article on Social Justice to correct the political, social and cultural exclusion in our country.

Markku Suksi writes, in the case of Europe: “If states that include one or several autonomous entities are counted together with the number of federal states, the result at least in Europe is that the ‘regular’ text-book example of state, the entirely monolithic unitary state, finds itself in a minority and is no longer the prime example of a state.”

Evidently, there are so many existing possibilities to structure a relationship between government and its multiple constituencies that a binary system of political ordering (fed-eral – unitary) can no longer accommodate.

The members of the Constitutional Commission in 1986 grappled with adopting a federal system of government. But in the end, they settled for this unique animal – so unique it may be set up only in two parts of the country – in the Cordillera and in Muslim Mindanao. They called this animal “autonomous region.” In so doing, they also produced a model that is distinct but also finds a semblance in other non-federal repub-lics such as Indonesia with its three autonomous regions and China with its three special administrative regions, that I mentioned earlier; Spain with its ___ autonomous regions; and the United Kingdom with its four constituent parts, the most appropriate term for which has not been found. These constituent parts are Northern Ireland, Wales, Scotland and England.

All these are variations of that much derided, although affably neutral and practical,

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Official Statements

generic word, substate.

Regardless, other critics say that the structure of government and the powers enu-merated in the Powersharing and Wealthsharing Annexes and now the BBL partake of the nature of a federal state. Proof to such claim is the concept introduced in the docu-ments of an “asymmetrical relationship” between the Bangsamoro and the Central Gov-ernment.

To the Supreme Court’s credit, we have recently been provided with jurisprudence on what asymmetry means. In the League of Provinces of the Philippines and the DENR, the Supreme Court ruled:

“Autonomous regions are granted more powers and less intervention from the na-tional government than territorial and political subdivisions. They are thus in a more asymmetrical relationship with the national government sa compared to other local gov-ernments or any regional formation. The Constitution grants them legislative powers over matters… that are usually under the control of the national government…” (GR No 175368 (2013),

While the ruling did not define asymmetry, it provides us with the context clues by which we can understand the concept within Constitutional boundaries.

Another claim put forward to argue violation of the constitution is the list of powers enumerated in the Powersharing Annex: reserved, concurrent and exclusive.

• Reserved powers are powers or matters over which authority and jurisdiction are retained by the Central Government

• Concurrent powers shall refer to the shared powers between the Central Government and the Bangsamoro Government

• Exclusive powers shall refer to powers or matters over which author-ity and jurisdiction pertain to the Bangsamoro Government.

Is there anything in this definition and the list of powers that violate the constitution? Does the granting of exclusive powers to the Bangsamoro effect its separation from the state?

Not so, in many ways.

Exclusive powers, which are exercised within the Bangsamoro territorial jurisdiction, may be clipped by the reserved powers of the Central Government, which are exercised in the whole country, including the Bangsamoro.

Indeed Justice Mendoza is right. There is no perpendicular “separation of powers” as indeed we are not establishing a federal state.

In the case of conflict of laws as mentioned by Senator Nene Pimentel, it is under-stood that national laws shall prevail. But if it is a matter of differences of interpretation or assertion of powers, then it is for the Supreme Court to decide. To be more specific,


Official Statements

for example, regulation of trade, banking and finance inside the Bangsamoro may have been devolved but this matter is governed by national fiscal and monetary policies, foreign treaties and conventions our country has entered into, foreign policy, customs and tariff laws – all reserved powers of the Central Government.

Clipping of the powers of the Bangsamoro can very well be effected by these reserved powers, not only as enumerated in the draft law but the totality of Central Government powers as well as those of the Supreme Court, Congress, and constitutional bodies, pro-vided for in the Constitution. But then what we envision here is a democratic relationship based on mutual respect – or parity of esteem –as public officals and leaders vested with their respective authorities.

Moreover, when the exercise of the Bangsamoro Government’s powers impacts out-side of the territorial jurisdiction of the Bangsamoro, it is understood that the neighbor-ing LGUs and the Central Government can take the appropriate action – again, based on the respective powers vested on them.

This is fairly well understood in that the president, as provided for in the Constitution, shall exercise general supervisory powers over of the autonomous region as provided in Art. X, Sec. 16 of the Constitution and reiterated in Art. VI, Sec. 3 of Senate Bill 2408: “The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.”

Finally, the Constitution itself grants the parameters for the autonomous jurisdiction of the autonomous regions when it said that these regions shall have the following legis-lative powers, subject of course to the Constitution and national laws (although existing national laws shall be qualified by the forthcoming BBL in so far as the Bangsamoro is concerned, as is the nature of a more recent national law albeit of special application).

Art. X, Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over :

(1) Administrative organization;(2) Creation of sources of revenues;(3) Ancestral domain and natural resources;(4) Personal, family, and property relations;(5) Regional urban and rural planning development;(6) Economic, social, and tourism development;(7) Educational policies;(8) Preservation and development of the cultural heritage; and(9) Such other matters as may be authorized by law for the promotion

of the general welfare of the people of the region

All so-called exclusive powers listed in the Annex on Powersharing and the draft BBL fall under any one of this category, not to mention that fairly encompassing category of matters for the promotion of the general welfare of the people in the region. All powers shall not prejudice the powers and authority of Constitutional bodies, the Supreme Court and Congress. If certain provisions may have given rise to such misinterpretation, then certainly we can improve and fine-tune the languaging.

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Truth to tell, many of these powers actually were already given to the ARMM. How-ever, many of these powers – for examples, the power to enact its own indigenous people’s rights act and civil service code and to expand Shariah courts including appellate courts – were never exercised.

To say that giving such powers as one now finds in the BBL compromises the sov-ereignty of the state is to deny the powers which the Constitution itself allocates to the autonomous regions.

Remember sovereignty is not just about our standing before other states and relations with them – a matter that remains in the hands of the national government. Sovereignty is first and foremost the exercise of the people’s will, and the people’s will operates at different territorial and political subdivisions of the state, including autonomous regions and that is why we have local and regional plebsicites, as well as our law on initiatives and recall.

Modern political and legal thinking on devolution, decentralization and autonomy, and the right to self-determination not only of colonies but of indigenous peoples and minorities are all pointing in this direction of a multi-layered sovereignty within states, as we can glean from this quotations from authoritative sources:

“Sovereignty, like the atom, can be split.”

“In modern times, sovereignty is divisible”.

Indeed, Madame Chair, the world has changed much since the Peace of Westphalia was forged in the 17th century with its emphasis on state sovereignty.

We credit the framers of our Constitution for their wisdom in finding the balance between the sovereignty of the Philippine state and the sovereignty of the people of the Philippines. We thank them for showing us the manner by which such sovereignty may be shared among the various peoples and groups making up the Philippine Republic. And among these groups of people, among the Filipinos, as we know, are the Bangsamoro.

Let us give to them their due, even as we ensure the protection of rights and the pro-motion of welfare of all.

Toward these ends, we have noted the specific proposals that we heard today and past consultation that we believe will enhance the viability of the BBL.

Thank you very much.

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Official Statementsthe bbl fully recogNizeS aND preServeS the territorial iNtegrity of the philippiNeS

Jose Luis Martin C. GasconUndersecretary, Office of Political Adviser

Madame Chair, the Honorable Chairman of the Committee on Constitutional Amendments and Revision of Codes, together with the Chair of the Committee on Local Government, distinguished members of the Senate, other resource persons, good afternoon.

I would like to thank the Committee for the opportunity to present my views as a friend of the Peace Process and as former member of the Constitutional Commission. At the outset, I think it is important to recall the specific instructions given by President Aquino to his negotiating panel as they began to negotiate peace agreement with the MILF, their counterparts. He said that whatever they sign in terms of an agreement should be and must be in full consonance with the limits and flexibilities of the Constitution. These instructions were given with a clear appreciation of the recently decided Supreme Court ruling on the ill-fated MOA-AD and so this was certainly part of the context upon which negotiations began in earnest with the MILF in 2010 and has resulted in fruition with the Framework Agreement and the Comprehensive Agreement of the Bangsamoro and the draft basic law.

It is without doubt that the BBL as it is proposed is innovative and challenges us to expand our frontiers of understanding and appreciation of what the Constitution allows and does not allow regarding the structure of governance for autonomy in Muslim Mindanao, hence, these last two hearings here of the Committee on Constitutional Amendment.

It’s also in that context that the remaining members of the Constitutional Commission have come out very strongly and issued a statement highlighting that there is an essential constitutionality to the proposal to establish the Bangsamoro autonomous entity. And it is also well within the mandate of Congress if it abused certain aspects as constitutionally objectionable that they could very well amend or modify the same accordingly.

Thus, the enactment of the BBL does not partake of a constitutional restructuring of the entirety of the system of governance of this country. It will not restructure Congress or local governments, generally speaking. It addresses a small aspect that is referred to in the Constitution and that is the autonomous government provided for in Article X of the local — the chapter, the article on local governments in the Constitution.

So we believe that the BBL should be understood in that context and any effort at enacting the BBL should be understood also in the context of the needs, of the time and what is needed in Mindanao. Ultimately, constitutions endure when they are understood and applied in accordance with the needs, developments and requirements of contemporary society. This is for this reason, for example, that the United States constitution has lasted for over 300 years because it has also been flexible enough to meet the demands of the time.

Thus, when statements are made that it is unconstitutional, I cannot quite understand

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because every single aspect of the BBL is written in consonance with the provisions on local autonomy that are found from Section 15 onwards of our Constitution and should be understood in that basis.

So for some to say that replacing the Autonomous Region of Muslim Mindanao with a new entity called Bangsamoro is unconstitutional is actually outside the frame of the discussion of the Constitution itself. Because the Constitution certainly allows Congress the power and authority to enact laws and the organic law for autonomy is certainly one of those that is mandated by the Constitution. I’ve been asked to focus my discussion on matters involving territorial integrity in the draft BBL and I shall begin to address them.

The proposed Bangsamoro Basic Law (BBL), now Senate Bill no. 2408, fully recognizes and preserves the territorial integrity of the Republic of the Philippines. Nothing in the proposed legislative measure is incongruent with the time-honored principle of “territorial integrity” because the bill, in Article III, Section 1 thereof, emphatically and categorically affirms the preservation of the wholeness of the Philippine national territory, to wit:

“Territory refers to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain above it. And the Bangsamoro territory shall remain a part of the Philippines.”

This should more than adequately set aside any fear that the BBL would threaten any dismemberment of the Philippine territory. The bill clearly guards against any and all possibility of the proposed Bangsamoro territory from being separated from the Philippines-- as it unequivocally determines where the Bangsamoro territory shall belong. In plain language, Article III, Section 1 states that whatever may be the final configuration of the Bangsamoro territory; the same shall remain to be part of the Philippines. The word “remain” must be underscored because it evinces a powerful meaning of peculiar significance of this all-important BBL provision in connection with the inviolability and integrity of our national territory. The verb remain is defined in the dictionary as “to continue in the same state”1 or “to continue to be specified.”2 The use of the word remain in the BBL hence imports a dual recognition — one retrospective (as to origin) and the other prospective (as to the result) — of where and to whom such territory really belongs, i.e. the Philippines and the Filipino people, that of course includes the people of the Bangsamoro, are sovereign and the Bangsamoro authority shall be a component part of that sovereignty. The BBL recognizes that — (1) the territories that may eventually comprise the Bangsamoro are originally from the establishment of it part of the Philippines and will continue to be, therefore, prospectively from the establishment of the Bangsamoro remain part of Philippine territory. Significantly, this provision comes without any qualification or conditionality whatsoever. Under no circumstances, therefore, shall the Bangsamoro territory not remain to be part of the Philippines. Evidently, this important provision, after all, carries with it such potent and forceful meaning that our last hearing Mr. Justice Feliciano had also referred to it as sufficient to dispel any concerns on this matter. Thus, it is not merely window dressing.

It should be clarified that Article III, Section 1 of the BBL does not, in relation to the powers of the Bangsamoro over its territory, partake of a total exclusivity to the Bangsamoro. Thus, to the fullest extent of the Bangsamoro’s territory, the Central Government’s authority and jurisdiction shall nevertheless remain present and be felt. This finds application for instance, when the army, navy and air force of the Armed Forces


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of the Philippines shall exercise full authority therein as directed by the commander-in-chief and depending on the demands of national security.

As to jurisdiction over the aerial domains, the Bangsamoro will likewise exercise jurisdiction only in so far as the power involved is exclusive. An example of the Bangsamoro’s authority over air space is similar to the Local Government Code (Republic Act no. 7160) over the regulation of high-rise buildings by zoning. On the matter of air transportation, specifically, it should be noted that exclusive powers over the same have not been given to the Bangsamoro. As proposed in the BBL, these matters will be determined thru the Intergovernmental Relations mechanisms,3 whereupon we could expect that airside operation will be retained as pertaining to national competencies while landside operations, for example, maintenance and management of airports therein, could be shared or concurrent. The same is true with respect to pollution control, where the extent of coordination and cooperation between the Bangsamoro and Central government shall be determined thru the intergovernmental mechanisms. All of these indicate that there shall be no actual diminution or reduction in the powers of Central Government inside the Bangsamoro which they already exercise particularly as part of their reserve or concurrent powers. There would, instead, be a system of devolution of powers between or from the Central Government to the Bangsamoro under the BBL, consistent with the framework of autonomy ordained under the 1987 Philippine Constitution and not beyond it. This cannot be interpreted as a limitation over the general sovereignty of the Republic of the Philippines because it precisely conforms to the very expression of the sovereign will of the people in the Constitution.4

Also, we must recall that what are devolved under the BBL are mere governmental powers, and not the exercise of sovereignty that at such. And this was, of course, highlighted by my colleague, Justice Azcuna, when he said that while we establish a people, a territory and a government, this does not partake of the fourth essential element of independence or sovereignty. This sovereignty still resides with the sovereign Filipino people and from whom all governmental authority emanates including the authority of the Bangsamoro government itself.5 Respectfully, the sovereign will is adequately reflected in the BBL as it categorically states that all powers to be devolved shall be “in consonance with the Constitution”.6 Thus, whatever Congress enacts in the BBL will be undertaken with that in mind making sure that it is in consonance with the Constitution. More to the point, we must remember that the source of all the powers that will be delegated or devolved in the BBL is the Central/National government. And Section 17 of Article X specifically states that all powers, functions and responsibilities not granted by this Constitution or by law, a.k.a. the BBL, to the autonomous region, shall be vested in national government. So residual powers remain, of course, also with national government. The autonomous region cannot rise higher than the source of its authority. Thus, it is a misplaced notion to believe that the Bangsamoro Government has the authority to abrogate or negate national policies. There is nothing in the BBL that empowers the Bangsamoro government, on its own, to change or disregard the application national laws within the Bangsamoro territory. If at all, it will be the BBL itself, a piece of national legislation once passed by Congress, that will effectively modify other affected existing national laws of the land accordance with the doctrine of specificity.

The Autonomy mandates that governmental powers be shared, or otherwise clearly delineated as either reserved or exclusive. This, however, does not necessarily imply any specific functional division of powers as commonly seen in “cooperative federalisms”. We

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are after all, Your Honors, not establishing a federal government in this country as that is specifically prohibited by the Constitution. What the Constitution allows is autonomy for the Muslim Mindanao area and what we are exploring with this BBL is the extent of the maximum autonomy that might be possible within the current constitutional frame. It should be stressed that in cooperative federalism, the vast majority of competencies are ‘concurrent’ or ‘shared’, thus requiring a strong representation of the federal units at the central level.7 Also, there is a ‘functional division’ of labor in such jurisdictions because there the central level makes policies while the federal units are responsible for implementing them.8 Such is clearly not the case for the Bangsamoro. Under the BBL, one can easily glean that the delineation of powers favors the devolution of powers for the autonomous region (with over fifty exclusive powers), rather than the concurrent or shared ones (only fourteen). Hence, the autonomous region is manifestly not reduced to mere administrative agents of the Central Government. It is distinguishing itself not vis-à-vis the ARMM, it is distinguishing itself from other administrative regions in the country as well as from the other local government provinces, cities and municipalities. It is after all a regional government. There is no requirement under the BBL for strong representation of the Bangsamoro in the Central Government — only adequate Bangsamoro participation in Central Government9 is sought in the BBL and the same is strictly provided as a matter policy, not as a mandate.

Neither does the BBL propose a duality type of federalism. As retired Supreme Court Justice Adolf Azcuna previously pointed out, “in the US, the states retain powers unless given to the federal government… in our set-up, the unspecified powers are retained by the national government.” This is consistent with Article X, Section 17 of the Constitution, which states: “All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.” It is therefore false to believe that under the BBL, there will be a Central Government “of limited powers”. This residual clause in the fundamental law is fully adopted in a BBL as the same is being ordained under its Preamble to be consistent with the Constitution.

In any case, the fact is, the BBL does not promote or adopt any kind of federalism at all. Full stop. Rather, it creates and establishes an autonomous region as provided in the Philippine Constitution.

The import of Article III, Section 1 indeed gains further legal significance in favor of preserving the territorial integrity of the Philippines when it is read together with the statement of intent in the bill’s proposed Preamble that the BBL shall be

“In consonance with the Constitution and the universally accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international law.”

As a matter of interpretation, it becomes apparent that the measure of what comprises the Philippine national territory under the BBL is no other than the Philippine Constitution, in particular Article I thereof. Perforce, when the BBL mentions that the Bangsamoro territory shall remain a part of the Philippines, it refers to Philippine national territory as defined in Article I of the Constitution, nothing else. As such, the Bangsamoro territory is evidently an integral part of the national territory of the Philippines as defined in the Constitution, not separate therefrom. This should properly address the concerns raised on the appropriateness of using of the term “territory” (to refer to the territorial


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breadth of the Bangsamoro autonomous region) or even the reference in the Preamble to the Bangsamoro “ancestral homeland” — since all of these areas shall, in all cases, be subsumed under the fullness of the Philippine national territory. Parenthetically, the Local Government Code (Republic Act no. 7160) itself uses the term ‘territory’ to refer to the areas covered by the jurisdiction of the different local government units.10 In the words of Mr. Justice Feliciano (ret.) last hearing,

“Under Philippine Administrative law, provinces, municipalities, municipal districts, etc. do have defined territories as designating the earthly limits of exercises of their legislative and law enforcement authorities”. (emphasis supplied)11

This is the sole import of defining the territory of the Bangsamoro — to repeat, to delimit the earthly bounds of its legislative and law enforcement authorities. As defined in Article III, Section 1 of the BBL, territory pertains to physical (or earthly) realms, not to political ones as mistakenly understood by some. It is, hence, plainly inaposite to refer to other political definitions of the word, e.g., “as a geographical area under the jurisdiction of another country or sovereign power” when the BBL already supplies us the definition.

Finally, from the point of view of international law, we are reminded that the principle of territorial integrity remains to be a fundamental and “important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4.”12 This principle continues to underlie the contemporary rules of international law, notwithstanding significant inroads and challenges to it by the emerging influence of international human rights law, including that of the right to self-determination.13 Indeed, international law still affords a central place to [preserving] territorial integrity, even in the context of self-determination.14 This has been interpreted to mean that the principle of territorial integrity exists even within the context the right to self-determination.

With respect to the BBL, there have been criticisms raised against the provision of the BBL recognizing the Bangsamoro peoples’ “right to self-determination… to chart their political future”.15 Manifestly, these have lost sight of the prevailing principles of international law that, by the incorporation clause, are adopted “as part of the law of the land.”16 The BBL’s recognition of the Bangsamoro peoples’ right to self-determination is not necessarily opposed to the inviolability of the country’s territorial integrity. In fact, under the precise status of the prevailing international legal principles on territorial integrity and the right to self-determination, such provision of the BBL can only be interpreted to mean that the Philippines’ territorial integrity takes a central place in the context of the Bangsamoro’s right to self-determination.

Speaking of the Bangsamoro people, the definition in the BBL of who the Bangsamoro people are is actually far from the concept of citizenship, contrary to what has been intimated in the last hearing. We find the analogy decidedly out of place because there is in fact nothing in the BBL that allows the denial of any privilege (whether political, social, cultural or economic) to a non-Bangsamoro. Conversely, it does not unduly privilege only those who would subscribe to the Bangsamoro identity. Contrary to what has been claimed, the definition of such identity does NOT function whatsoever “to screen out outsiders from certain privileges of national life.”17 Proof of this can be abundantly found in many provisions of the BBL. On the matter suffrage, we look at Article VII, Section 12 on the qualifications of Members of Parliament and we find there that, among others, the

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requirement speaks only of ‘residency’ in the Bangsamoro, not identity as a Bangsamoro. The same is true for the qualification to become Chief Minister (Article VII, Section 28) or Wali (Article VIII, Section 3). As to economic privilege, the same non discriminatory policy is found. Thus, in terms of preferential rights to fishing in the Zones of Joint Cooperation, for example, the same is extended not only to the Bangsamoro people but to all other resident fishers in the Bangsamoro (Article XIII, Section 19, paragraph 3 [d]). When we say ‘residents’, of course that is blind as to cultural or even religious identity. Therefore, under the BBL, anyone and everyone so long as they qualify under the residency rules regardless of their subscription to the Bangsamoro identity can enjoy the political and economic privileges that are provided in the law.

Lastly, we invite everyone to recall that the very reason for the adoption of the autonomous arrangement is to preclude any separation or secession, that is, to favor internal and not external self-determination. The international support for the peace process is there precisely because of this fundamental premise.

In view of the foregoing, we stand firm in our conviction that the BBL fully preserves and maintains the territorial integrity of the Republic of the Philippines.

ENDNOTES

1 Dictionary.com2 Ibid.3 BBL, art. XIII, sec. 31.4 See CONST., art. X, sec. 1 and sec. 15-215 CONST., art II, sec. 16 Preamble of BBL7 Tanja A. Börzel & Madeleine O. Hosli, “Brussels between Berlin and Bern: Comparative

Federalism meets the European Union.” Working Papers Political Science No. 02/2002 (ISSN 1569-3546), Vrije University. Amsterdam, October 2002.

8 Ibid.9 See BBL, art. VI, sec. 9.10 See Rep. Act no. 7160, sec. 15; sec. 386; sec. 442; sec. Statement of Mr. Justice Florentino

Feliciano delivered orally during the hearing on 26 January 2015 of the Senate Committee on Constitutional Amendments, joint with the Committee on Local Government; presided by the Chair Senator Miriam Defensor-Santiago461, among others.

1112 International Court of Justice, Accordance with international law of the unilateral

Declaration of Independence of Kosovo, Advisory Opinion, ICJ Reports (2010), para. 80.

13 Encyclopedia Princetoniesis14 Ibid.15 BBL, Preamble par. 316 CONST, art. II, sec. 2.17 Statement of Mr. Justice Vicente V. Mendoza, submitted to the Senate Committee on

Constitutional Amendments entitled SB no. 2408 Beyond the Power of Congress to Pass

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Official StatementspoSitioN paper of the DepartmeNt of JuStice

Leila M. De LimaSecretary of Justice

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Integrated Bar of the Philippines15 J. Vargas Avenue, Ortigas Center, Pasig City 1600Telephone: (632) 631-3014/18 Fax: (632) 634-4697

Website: www.ibp.ph Email: [email protected]

intEgratEd Bar of thE PhiliPPinEs

BOARD OF GOVERNORS(2013-2015)

EDWIN O. BETGUEN Governor for Northern Luzon

RAMON S. ESGUERRA Governor for Southern Luzon

JOSE VICENTE R.M. OPINION Governor for Eastern Visayas

DALE BRYAN D. MORDENO Governor for Eastern Mindanao

MARIA IMELDA Q. TUAZON Governor for Central Luzon

AVELINO V. SALES, JR. Governor for Bicolandia

VON LOVEL D. BEDONA Governor for Western Visayas

NOEL A. BEN Governor for Western Mindanao

ROSARIO T. SETIAS-REYESExecutive Vice President &Governor for Greater Manila

NATIONAL OFFICERS

NASSER A. MAROHOMSALICNational Secretary

ALICIA A. RISOS-VIDALNational Executive Director

DOMINIC C.M. SOLISNational Director for Bar Discipline

VICTOR C. FERNANDEZNational Director for Special Concerns

VICTORIA V. LOANZONPresidential Liaison Officer

MERLIN M. MAGALLONAEditor-in-Chief, IBP Journal

GRACE P. QUEVEDO-PANAGSAGANAssistant National Treasurer

EMMANUEL S. BUENAVENTURADeputy Legal Counsel

MARIA TERESITA C. SISON GONational Treasurer

MINERVA M.B. AMBROSIONational Director for Legal Aid

OLIVIA VELASCO-JACOBA National Director for Peer Assistance Program

PACIFICO A. AGABINChief Legal Counsel

MELANO ELVIS M. BALAYANPresidential Assistant on Chapter Affairs

PATRICIA ANN T. PRODIGALIDADAssistant National Secretary

FLORENDO B. OPAYDeputy Director for Bar Discipline

RODOLFO G. URBIZTONDODeputy Director for Peer Assistance Program

VICENTE M. JOYASNational President &

Chairman of the Board

IBP Journal Special Issue on the Proposed Bangsamoro Basic Law

Documents

draft bangsamoro basic

bangsamoro waters

bangsamoro fab

framework agreement

memorandum of agreement

comprehensive agreement

grpmilf tripoli agreement

power sharing