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IBP JOURNAL
Articles
Position 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) .................................... 36
Sedfrey 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 ..................................................... 83
Pablo P. Garcia
Problem Areas in the Bangsamoro Basic Law ............................................................................. 104
Merlin 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 .................................................................. 163
Vicente V. Mendoza
BBL: Sovereignty versus Sub-State ............................................................................................... 173
Julkipli Wadi
Documents
House Bill No. 4994 ........................................................................................................................... 179
Framework Agreement on the Bangsamoro ................................................................................ 280
The Comprehensive Agreement on the Bangsamoro ................................................................. 294
Annex on Normalization ................................................................................................................. 299
Annex on Transitional Arrangements and Modalities .............................................................. 309
Annex on Power Sharing ................................................................................................................. 315
Annex on Revenue Generation and Wealth Sharing ................................................................. 327
Annex on Bangsamoro Waters and Zones of Joint Cooperation ............................................ 335
Official Statements
Check and Balances in National Government vs. None in the BBL ....................................... 338
Senen Bacani
Legislation vs. Constitutional Change .......................................................................................... 340
Teresita Deles
On the Matter of Substate ............................................................................................................... 342
Miriam Ferrer
The BBL Fully Recognizes and Preserves the Territorial Integrity of the Philippines ........ 347
Jose Luis Gascon
Position Paper of the Department of Justice .............................................................................. 353
Leila M. De Lima
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:
*
*
*
*
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
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
In response to the announced intention of The Honorable MIRIAM DEFENSORSANTIAGO, 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.
I received a Manifesto from a group that calls itself the Mindanao Christian
and Highlanders Alliance, Cotabato Chapter, with one Mr. Mike Santiago, Chief
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
Speccial iSSue Number 4 - (april 2015 )
Administrative organization;
Creation of sources of revenues;
Ancestral domain and natural resources;
Personal, family, and property relations;
Regional urban and rural planning development;
Economic, social, and tourism development;
Educational policies;
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.
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 Presidents 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.
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 Framework 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 selfgovernance 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.
Art. V, Sec. 3
Exclusive Powers
Administrative Organization
Creation of sources of
revenue
Quarantine
Land Registration
Pollution control
Libraries, museums,
historical, cultural and
archaeological sites
Educational policies
Auditing
Preservation and
development of the cultural
heritage
Civil Service
Customary laws
Coastguard
Declaration of the
Bangsamoro Holidays
Administration of justice
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
Sharia 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.
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. Sharia courts and the sharia justice system are under the exclusive powers
of Bangsamoro. Now, either sharia 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
Sharia 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 Sharia 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):
10
11
12
13
a liberal iNterpretatioN of
the baNgSamoro baSic law*
Pacifico A. Agabin**
Oscar Franklin B. Tan***
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).
14
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
Maila Ager, BBL is in coma, says Marcos, PHIL. daILy InquIReR, Feb. 11, 2015.
that the BBL represents this generations 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 BBLs constitutionality.
Before wading into the BBLs myriad details, what is crucial is to adopt the broad
mindset in interpretation that the BBL was negotiated under. The BBLs 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 BBLs
experiment, and not construed restrictively against.
In plain language, the BBL will not be decided by a poll of legal experts. This papers
co-author described the futility of the present poll:
The [House of Representatives] ad hoc committees 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 Presidents 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 bills 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.)).
15
16
Oscar Franklin Tan, Commentary: Bangsamoro Bill Cant 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 Tans speech at the House of Representatives Ad Hoc Committee on the Bangsamoro Basic Laws first
hearing on October 27, 2014, and in Oscar Franklin Tans speech at Malacaang Palace on February 3, 2015
on behalf of The Outstanding Young Men awardees of 2014.
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 countrys poorest region today.
ANALYSIS
A. BAngsAmoro Entity As VAlid PoliticAl suBdiVision
When one decides for oneself whether the BBLs 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 Entitys 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).
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-withdetermination.
10
17
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 BBLs preamble affirms the Bangsamoro peoples 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
18
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 entitys 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 governments
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
19
20
13
League of Provinces of the Phils., v. Dept. of Envt & Nat. Res., G.R. No. 175368, Apr. 11, 2013 (Leonen, J.,
concurring).
14
autonomous regions, such as their remaining subject to the Presidents general power
of supervision over local governments.15 The Constitution provides that an autonomous
regions 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 Entitys 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 regions 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 Constitutions 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 BBLs nuanced drafting intentionally avoids transgressing against the
Constitutions 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.
21
4.
5.
6.
7.
8.
9.
22
Provision
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.
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.
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.
Comment
This is acceptable because the Bangsamoro
peoples 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 selfdetermination was explicitly recognized in
the MOA-AD Decision.
For the avoidance of all doubt, it may
be prudent to explicitly state that selfgovernance here is in the context of
internal, not external, self-determination.
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.
23
24
25
26
27
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.
28
29
30
31
32
33
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 Malacaang Palace
last February 3, 2015 on behalf of The Outstanding Young Men awardees of 2014, the
BBLs passage and achieving lasting peace in Mindanao would dwarf the achievements
of every person who received that great honor. The BBLs passage must be made with
34
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
2
3
4
5
6
18
Pacifico Agabin, unpublished manuscript submitted for publication by the UP College of Law.
35
Sedfrey M. Candelaria
I.
INTRODUCTION
36
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.
Discussions herein have been derived from the present writers 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).
JoaquIn g. BeRnas, s.J., An Introduction to Public International Law 25 (1st ed. 2002) [hereinafter BeRnas,
PIL].
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).
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
Id.
Id.
Id.
37
Sedfrey M. Candelaria
38
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
Procedure
Substance
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.
39
Sedfrey M. Candelaria
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.
MOA-AD
Memorandum of Agreement on the
Ancestral Domain Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001
ON TITLE
FAB
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
40
Constitution.
III.
MOA-AD
FAB
Terms of Reference
Concepts and Principles
Territory
Resources
Governance
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
(no counterpart)
41
Sedfrey M. Candelaria
(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 Taada 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-muahada) and territory under peace agreement (regime of dar-ul-sulh). One
writer clarifies the meaning of these terms as follows:
42
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.
43
Sedfrey M. Candelaria
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.
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
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
44
Ancestral domain
not part of public domain
native title inclusive of ancestral,
communal, customary lands,
maritime, fluvial and alluvial
domains and all natural
resources.
FAB
45
Sedfrey M. Candelaria
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 peoples 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 peoples
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:
xxx
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 MOAAD 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
46
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:
xxx
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;
xxx
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:
Section 3. Definition of Terms. For purposes of this Act, the following
terms shall mean:
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.
47
Sedfrey M. Candelaria
48
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
xxx
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, TsuuTina, 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
26
49
Sedfrey M. Candelaria
50
51
Sedfrey M. Candelaria
52
53
Sedfrey M. Candelaria
C. Rights
MOA-AD
FAB
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.
54
D. Entity
MOA-AD
FAB
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
55
Sedfrey M. Candelaria
56
57
Sedfrey M. Candelaria
58
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 MOAAD 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:
xxx
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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62
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
Section 3. Definition of Terms. For purposes of this Act, the following
terms shall mean:
(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;
xxx
.
(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:
64
Territory
xxx
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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Sedfrey M. Candelaria
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
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FAB
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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.
68
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)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Administrative organization;
Creation of sources of revenues;
Ancestral domain and natural resources;
Personal, family, and property 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.(Underscoring
supplied)
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Sedfrey M. Candelaria
explore, develop and utilize the natural resources including surface and
sub-surface rights, in-land and coastal waters, and renewable and nonrenewable 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 twentyfive (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;
70
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:
xxx
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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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
xxx
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, Peoples 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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Sedfrey M. Candelaria
VIII.
MOA-AD
74
ON GOVERNANCE
FAB
Associative relationship
Shared authority and
responsibility
Structure defined in
Comprehensive Compact
Period of transition in
Comprehensive Compact to
specify relationship between
Central Government and the BJE
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Sedfrey M. Candelaria
76
VIII. Normalization
Police 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.)
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Sedfrey M. Candelaria
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
Autonomous Political Entity
Government
and
New
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
78
xxx
4.
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
2
3
4
5
6
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Sedfrey M. Candelaria
7
8
9
10
11
12
13
Id.
Id.
Id.
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).
Id.
Id.
Id.
80
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 between the sovereign ROP and the rebel group MILF, between two (2) juridical entities, 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 consequence 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 principal 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 independent 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 authorities. The concerns many have over Bangsamoro territory as indicating 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 local government unit or a petition of at least 10% of the voters of
*
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Florentino P. Feliciano
a contiguous area asking for inclusion in the territory of Bangsamoro, 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 naturalization; economic agreements with third countries; immigration, 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 municipal corporations; education, etc. Please note that those exclusive 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. private 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.
82
i.
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.
**
83
Pablo P. Garcia
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.
proceed.
84
Commissioner
Bernas
may
85
Pablo P. Garcia
86
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, theres 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.
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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,
theres no way, at the moment, for the proposed Bangsamoro Political Entity,
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Pablo P. Garcia
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 nave 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
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92
vii.
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94
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 Courts 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 selfdetermination- 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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X.
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102
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. Magallona
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
*
104
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.
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)
b)
c)
d)
e)
f)
This list is without prejudice to additional powers that may be agreed upon by
the Parties.7
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Merlin M. Magallona
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
106
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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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 CABs 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
112
them. Inherent in the Peoples 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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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 Bangsamoros 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 intergovernmental relations. All disputes and issues relating to these intergovernmental relations
shall be resolved through regular consultations and continuing negotiations 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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Merlin M. Magallona
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:
116
Emphasis added.
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120
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 Commissioner 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 Democracy, 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 Representatives during the hearing on the bill on November 28, 2014.
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.
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 Malacaang 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.
For a full discussion of the revolutionary period in the annals of the Moro armed struggle, see Marohomsalics
Aristocrats of the Malay Race, id., pp. 151-170.
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Nasser A. Marohomsalic
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 Misuaris 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; and
6) 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
122
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
Id.
Newsinfo.inquirer.net posted on February 5, 2011, entitled Palace Says ARMM failed experiment by Norman Bordadora of the Philippine Daily Inquirer.
A four-member Panel of Independent Lawyers participated in the undertaking, which included the author.
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.
123
Nasser A. Marohomsalic
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, theyll 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 Dawah 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 dont 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.
124
10
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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.
125
Nasser A. Marohomsalic
126
Raul S. Manglapus, Towards a Muslim-Christian Manifesto, July 2, 1972. In Amado Luis Lagdameo, ed., ChristianMuslim Democracy: Waive of the Future. 1996: Inkwell Publishing, p. 62. (Bracket supplied)
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
127
Nasser A. Marohomsalic
law. . .
xxx
. . . 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
xxx
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
xxx
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
xxx
Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgoverment in matters relating to their internal and local
affairs, as well as ways and means for financing their
autonomous functions.17
xxx
Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic, social
128
14
Article 1, UN DRIP.
15
Article 2, id.
16
Article 3, id.
17
Article 4, id.
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
Article 5, id.
19
William C. Camby, Jr., American Indian Law, 4th ed., West Publishing, p.
129
Nasser A. Marohomsalic
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.
130
20
21
22
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 Lavia 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
24
131
Nasser A. Marohomsalic
internal Revenue Allotment and financial assistance, a windfall will pour in to the coffer
of political units with a dual membership.
Indeed, Lobrigats 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
xxx
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
xxx
132
25
Lazariaga Hermanos vs. Yap Tico, 24 Phil. 504 (1933), etc.; Chartered Bank Employees Assn. vs. Ople, 138
SCRA 273, 1985, etc.
26
27
28
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
30
31
32
33
133
Nasser A. Marohomsalic
134
34
35
36
37
38
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
39
40
41
42
43
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
135
Nasser A. Marohomsalic
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
46
47
48
Isagani Cruz, et. al. vs. DENR Secretary, et. al. G.R. No. 135385 (2000).
49
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 natural resources within the Bangsamoro shall be allocated as follows:
a.
b.
c.
For non-metallic minerals (sand, gravel, and quarry resources), such revenues shall pertain fully to the Bangsamoro and its local government units;
For metallic minerals, seventy-five percent (75%) shall pertain to the Bangsamoro;
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 Bangsamoro territory as well as the waters that are within the territorial jurisdiction of the Bangsamoro. (Section 32,
Article XII, PBBL).
136
53
54
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
56
57
58
137
Nasser A. Marohomsalic
138
59
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
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
139
Nasser A. Marohomsalic
140
63
64
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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. Theres
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
xxx
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
67
141
Nasser A. Marohomsalic
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
142
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
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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
74
75
III Records, 182-183, 11 August 1986. In Disumangcop, et. al., vs. DPWH, et. al., G.R. No. 149848, 2004.
76
Disomangcop, id.
143
Nasser A. Marohomsalic
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
xxx
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 cant 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
144
77
78
79
80
Section 3, id.
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
82
83
Section 3, Article VI, PBBL. This provision is a reinstatement of Section 16, Article X of the Philippine Constitution: The President shall exercise general supervision over autonomous regions to ensure that laws are
faithfully executed.
84
85
86
87
88
145
Nasser A. Marohomsalic
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
146
89
90
Osmea, 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.
92
93
94
95
96
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 theyre 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 Shariah 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
98
99
100
147
Nasser A. Marohomsalic
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
148
101
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
111
112
113
Section 7, id.
114
115
116
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
Administrative organization;
Creation of services of revenues;
Ancestral domain and natural resources;
Personal, family, and property relations;
Regional urban and rural planning development;
Economic, social and tourism development;
Educational policies;
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
118
119
120
149
Nasser A. Marohomsalic
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 Shariah
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 Shariah law are the Al-Quran, Al-Sunnah, Al-Qiyas and Al-Ijima.123
For the interpretation of Shariah laws in relation to judicial controversies, the PBBL has
created Shariah Circuit Courts equivalent to the Municipal Trial Courts, the Shariah
District Courts equivalent to the Regional Trial Courts and the Shariah 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 Shariah 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 Shariah District
Courts in the Bangsamoro.125 The Bangsamoro Shariah High Court also exercises
exclusive appellate jurisdiction over cases under the jurisdiction of the Shariah District
Courts in the Bangsamoro, and the Decisions of the Shariah High Court shall be final
and executory.126
This is a recognition of the Shariah 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, Shariah as an Islamic legal system is
sought to be expanded to include all matters of civil law, commercial law and criminal
150
121
Section 3, Article X, PBBL. The laws on Shariah shall only be applicable to Muslims, id.
122
123
Section 4, id.
124
125
126
Section 7, id.
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
law.127
Concerns were raised against the provision of the PBBL on the finality and executory
character of the decisions of the Bangsamoro Shariah 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 Shariah High Court to derogate
against the constitutionally mandated power of the Supreme Court, as follows:
The Supreme Court shall have the following powers:
xxx
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 Shariah 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, Shariah, 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 Shariah is Islam, its foundation and pillar; its not
only a legal construct but a political, social, cultural and economic construct. Thus, the
127
128
129
130
See Islamiclearningmaterials.com/sharia.
151
Nasser A. Marohomsalic
actuation of every Muslim is passed upon according to Shariah. Even the most mundane
matters are governed by Shariah. Ones 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 Gods ownership. In fine,
Islam and Shariah are interchangeable terms.
I remember my first meeting with MILF Chairman Salamat Hashim, pining
for Shariah to govern the affairs of Muslims. In his mind, the centrality of Islam is
Shariah, it is the balance, which word is used to describe an Islamic polity, a balanced
community. In a manner of speaking, Shariah is central to the life of a Muslim, and it
is his observance of Shariah that defines him.
Thus, observance of Shariah 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 nonMuslim who does not subscribe to or believe in Shariah 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? Shariah 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 Shariah courts in
the Bangsamoro should be promulgated by the
Supreme Court, giving utmost consideration to the
recommendations of the Bangsamoro Shariah High
Court. In the meantime, the special rules of court for
Shariah 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
152
131
132
133
134
Id.
135
136
137
Id.
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 Shariah court
personnel, and shall have the power of discipline over
them. The Shariah Judicial and Bar Council shall
conduct investigations over erring personnel in Shariah
courts in the Bangsamoro, and submit the results of
such investigation to the Supreme Courts for the latters
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 Shariah 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
Shariah Judicial and Bar Council
The PBBL creates a Shariah Judicial and Bar Council to be composed of five
(5) members: a senior member of the Shariah High Court, as ex-officio Chairman,
the Head of the Shariah 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 Shariah 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 Shariah Courts in
138
139
140
141
142
143
Id.
153
Nasser A. Marohomsalic
the Bangsamoro which shall be submitted to the Judicial and Bar Council; and 2) to
conduct investigations over erring members of the Shariah Bar in the Bangsamoro and
over judges and personnel of the Shariah Courts in the Bangsamoro, and submit the
results of such investigation to the Supreme Courts for the latters action.144
The Shariah 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 Shariah Judicial and Bar Council only recommends nominees to the Shariah
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 Shariah judges
and justices. Except for the respectability of its recommendation, the Shariah 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 cant 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.
154
144
145
Section 23, Article II, Philippine Constitution: The State shall encourage non-governmental, communitybased, 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).
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 Hobbes 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 mans 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
Hobbes Moral and Political Philosophy at Stanford Encyclopedia of Philisophy, plato standford by Sharon A.
Lloyd <Lloyd@usc.edu>; 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
155
Nasser A. Marohomsalic
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 Hobbes 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, Rousseaus
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
156
152
Id., p. 82.
153
Id., p. 73.
154
Id., p. 69.
155
Id., p. 91.
156
Id.
157
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.
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 selfdetermination.
Nachura and Isagani Cruz, who both became Associate Justices of the Supreme
Court, quoted with approval in their law books American author Garners 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
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
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
166
157
Nasser A. Marohomsalic
158
167
Id., p. 95, citing Mariano F. Magsalin, Jr., Philippine Political Law, p. 68 (2002).
168
Id.
169
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
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 nonState 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
171
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.
159
Nasser A. Marohomsalic
160
173
174
Frances Paul Prucha, ed., Documents of United States Indian Policy. 1990: University of Nebraska Press, 2nd Edition,
p. 249.
175
The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
Mark Malloch Brown, The New Frontiers of Loyalty, Philippine Daily Inquirer, December 10, 2014 issue, p. A19.
177
178
Exodus 18:13-24.
161
Nasser A. Marohomsalic
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 legislatures 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
162
179
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.
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 selfdetermination -- beginning with the struggle for freedom of their forefathers in
generations past and extending to the present -- to chart their political future2 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.
Province of North Cotabato v. Govt of the Republic of the Philippines Peace Panel on Ancestral Domain, 568
SCRA 402 (2008).
S.B. No. 2408, Preamble, Art. I, Sec. 3, Art. IV, Sec. 1, and Art VI, Secs. 1 and 3.
163
Vicente V. Mendoza
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.
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.
164
Province of North Cotabato, 568 SCRA, at 490-49, citing Re Secession of Quebec, 2 S.C.R. 217 (1998).
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 INTL LAW 177, 201
(1991).
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
12
13
14
165
Vicente V. Mendoza
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;
166
15
16
17
18
19
20
21
4.
5.
6.
7.
8.
Postal service;
Citizenship and naturalization ;
Immigration;
Customs and tariff, as qualified by Section 2 (10), Article V of the Bill;
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.
Administrative organization;
Creation of sources of revenues;
Ancestral domain and natural resources;
Personal, family, and property 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,23 and those which may be granted
by law.24
22
23
24
167
Vicente V. Mendoza
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
168
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 Presidents power by providing that its exercise
26
27
28
29
169
Vicente V. Mendoza
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 Walis 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
170
Compare Milena Sterio, On the Right to External Self-Determination: Selfistan, Secession, and the Great Powers Rule,
19 MINN. J. OF INTL LAW 1, 176 (2010): It is the Great Powers that control the outcome of most selfdetermination struggles in todays 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.
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
33
171
Vicente V. Mendoza
as territorial integrity of the Republic of the Philippines,34 and (2) the powers delegated
to 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.
172
34
35
36
Framework Agreement on the Bansamoro, Oct. 15, 2012, VII, 4 (a) (b), Annex on Transitional Arrangements
and Modalities, I, C-D.
A paper presented during the Joint Committee Hearing on the Bangsamoro Basic Law held at Recto and Laurel 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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Julkipli Wadi
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
174
175
Julkipli Wadi
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
nationallocal 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 Suksis definition as that political
space of organizational options which include federalism with its intermediate statelevel 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.: Sukksis 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,
Americas 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).
176
177
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 Moros
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 wont 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 Presidents 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 countrys 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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official
tatemeNtS
OfficialS
Statements
check aND balaNceS iN the
NatioNal goverNmeNt vS. NoNe iN the bbl
Senen Bacani
Member, 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 Governments 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 Governments
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 Shariah 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 intergovernmental Relations Body to resolve issues on intergovernmental rela-
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tions;
2) The Intergovernmental Fiscal Policy Board that shall address revenue unbalances and fluctuations in regional financial needs and
revenue-raising capacity of the Bangsamoro;
3) The Philippine Congress - Bangsamoro Parliament Forum for purposes of cooperation and coordination of legislative initiatives;
4) The Bangsamoro Sustainable Development Board to ensure the harmonization 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 cooperation 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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President (Section 3, Article VI). The Bangsamoro Police (Article XI), a unit of the Philippine 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 document 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 questions 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 traditional 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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Exclusive powers shall refer to powers or matters over which authority 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 understood 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,
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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, provided 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 Governments powers impacts outside of the territorial jurisdiction of the Bangsamoro, it is understood that the neighboring 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 legislative 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)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Administrative organization;
Creation of sources of revenues;
Ancestral domain and natural resources;
Personal, family, and property 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
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. However, many of these powers for examples, the power to enact its own indigenous peoples
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 sovereignty 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 peoples will, and the peoples 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 promotion 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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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. Ive 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 state1 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 Bangsamoros territory, the Central
Governments 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-inchief 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
Bangsamoros 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--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 bills 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 BBLs recognition of the Bangsamoro peoples right to self-determination
is not necessarily opposed to the inviolability of the countrys 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 Bangsamoros 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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11
12
13
14
15
16
17
Dictionary.com
Ibid.
BBL, art. XIII, sec. 31.
See CONST., art. X, sec. 1 and sec. 15-21
CONST., art II, sec. 1
Preamble of BBL
Tanja A. Brzel & 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.
Ibid.
See BBL, art. VI, sec. 9.
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.
International Court of Justice, Accordance with international law of the unilateral
Declaration of Independence of Kosovo, Advisory Opinion, ICJ Reports (2010), para.
80.
Encyclopedia Princetoniesis
Ibid.
BBL, Preamble par. 3
CONST, art. II, sec. 2.
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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DepartmeNt of JuStice
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Leila M. De Lima
Secretary of Justice
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Official Statements
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Official Statements
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Official Statements
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Official Statements
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(2013-2015)
VICENTE M. JOYAS
National President &
Chairman of the Board
ROSARIO T. SETIAS-REYES
Executive Vice President &
Governor for Greater Manila
EDWIN O. BETGUEN
Governor for Northern Luzon
RAMON S. ESGUERRA
Governor for Southern Luzon
NOEL A. BEN
Governor for Western Mindanao
NATIONAL OFFICERS
NASSER A. MAROHOMSALIC
National Secretary
ALICIA A. RISOS-VIDAL
National Executive Director
OLIVIA VELASCO-JACOBA
National Director for Peer Assistance Program
VICTOR C. FERNANDEZ
National Director for Special Concerns
PACIFICO A. AGABIN
Chief Legal Counsel
VICTORIA V. LOANZON
Presidential Liaison Officer
MERLIN M. MAGALLONA
Editor-in-Chief, IBP Journal
GRACE P. QUEVEDO-PANAGSAGAN
Assistant National Treasurer
FLORENDO B. OPAY
Deputy Director for Bar Discipline
EMMANUEL S. BUENAVENTURA
Deputy Legal Counsel
RODOLFO G. URBIZTONDO
Deputy Director for Peer Assistance Program