Bangsamoro Basic Law

Memorandum on the unconstitutionality of the BBL

Constitutional Law 1A
Members:
Potayre, Alcel
Ortega, Laurever
Roa, Ma Alyssa
Arnado, Sheilla

Table of Contents:

What is the Bangsamoro Basic Law? ...................2

Issues......3

Arguments
Argument 1.4
Argument 2.4
Argument 3.6
Argument 4.7
Argument 5.8
Argument 6.8

Submissions/Prayer.10

Sources..12

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The Bangsamoro Basic Law is the legal basis of the establishment of the
Bangsamoro. It will lay down the structure of government of the Bangsamoro, the
relationship of the Bangsamoro with the Central Government, the rights of the residents,
and other important matters in the governance of the Bangsamoro. In drafting the BBL,
the TC will be guided by the provisions of the comprehensive peace agreements, and by the
recommendations of the different sectors that the TC will consult.
The draft BBL will be submitted by the TC to the Office of the President. The bill
shall be certified by the latter so that it can be urgently acted upon by Congress.
If there is a recommendation to amend the Philippine Constitution, such
recommendation shall be submitted to the Office of the President so that it can be given
appropriate action and for the process for the amendment of the Constitution can be
initiated.
The proposed BBL will be submitted to Congress and will be subjected to
deliberations by the members of the House of Representatives and the Senate, for passage
into law. In the enactment of the law, both chambers should be able to muster a majority
vote of the members present. If and when the required number of votes are achieved, the
law shall be submitted to the President for his signature.
When the law is enacted in accordance with the procedure stated above, it will be
submitted to the registered voters of the Bangsamoro territory for their ratification.
When a majority of the registered voters in the Bangsamoro vote for the BBL at the
plebiscite, the ARMM shall be abolished and the Bangsamoro Transition Authority (BTA)
is established.
Majority of the BTA will come from the MILF. Its primary task is to set up the
structure of government in the Bangsamoro, in accordance with the provisions of the
angsamoro Basic Law. At this point, the residents of the Bangsamoro shall be prepared for
the regular election of those who will sit in the Bangsamoro government.

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Issues:

A.) Can the Supreme Court exercise the power of judicial review over the enactment of the
Bangsamoro Basic Law? Is this not a political question given that the executive and legislative
branches of government overwhelming support it? Should this not be a matter of the people of
the Bangsamoro to decide through a plebiscite?

B.) Is the creation of the Bangsamoro authorized by the Constitution? In particular, is the
asymmetrical political relationship between the Bangsamoro and the Central Government
ordained by the Constitution? Is the classification of powers as exclusive, reserved, and shared
constitutionally permissible? (See Article VI?)

C.) Is the definition of the Bangsamoro core territory, contiguous territory, inland waters, and
Bangsamoro waters in Sections 2-6 valid? Can local government units join the Bangsamoro even
when the bigger (province) unit they belong to have voted no in previous referendums? Is the
procedure for joining the Bangsamoro for contiguous areas constitutional? Are the definitions of
inland and Bangsamoro waters authorized by the Constitution?

D.) Is the establishment of a parliamentary/ministerial form of government authorized under the

1987 Constitution? See Article VII of the BBL.
E.) Are the provisions on indigenous peoples adequate to protect their rights? Does the BBL
violate the Indigenous Peoples Rights Act or can they co-exist?

F.) Are the provisions on natural resources in Article XIII, Sections 8-23 constitutional? Is it
consistent with the regalia doctrine?

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Arguments:
A.)
The power of judicial review is limited to actual cases or controversies. Courts decline to
issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic
questions. The limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of government.
An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence. The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.
The Agreement is between the Philippine Government (GPH) and the MILF. It is
misleading for the Agreement to identify that one party is the "Philippine Government." The
reality is that only one of the three branches of government - the executive branch, consisting of
the Office of the President acting through a peace panel of negotiators - represented the
government. The executive branch alone does not represent the Philippine Government. Thus,
the executive branch, in negotiating the Agreement had no power to bind the two other branches
- legislative and judicial. In negotiating for the government, I am afraid that the executive branch
not only exceeded its powers, but may have infringed upon the powers of the legislative branch.
B.)
It is the asymmetric relation qualification that waters down the President's general
supervision. This can make the strict enforcement of national laws in the Bangsamoro difficult to
secure. The right to self-determination cannot be used to justify this kind of relationship between
the Bangsamoro government and the central government.
An asymmetrical relationship implies a special status of the Bangsamoro vis-a-vis the
Central government that is different from that of local governments and administrative regions.
The autonomous regions for Muslim Mindanao and the Cordillera contemplated in the
Constitution partakes of this special and distinct status and can thus be described as
asymmetrical.
In the new Framework Agreement, asymmetric was taken to mean as follows: given a
unitary setup, the Central government shall have the powers on: (in addition to reserved and
concurrent powers)
1. Defense and external security
2. Foreign policy
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3.
4.
5.
6.

Common market and global trade

Coinage and monetary policy
Citizenship and naturalization
Postal service

The Moro entity, on the other hand, shall have exclusive powers concerning its Shariabased judicial system (which applies only to Muslims), the creation of its own sources of
revenues and to levy taxes, fees and charges; it also has the authority to receive grants and
donations from both domestic and foreign sources and to contract loans from domestic and
foreign lending institutions except those requiring sovereign guaranty, among others.
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.
At least, in such case, theres a recognition of the nature of the relationships between
autonomous regions vis--vis the national government and they are described as such
asymmetric, but this is as compared to other local governments or any regional formation, as
what the obiter of the case has mentioned.
sec. 20, Art. X of the 1987 Constitution, the legislative powers of autonomous regions are as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of
the people of the region.
The asymmetry can be found when these powers of the autonomous regions are
compared with the other local political subdivisions of the country identified in sec. 1 of the
same Art. X of the 1987 Constitution which are the provinces, cities, municipalities and
barangays. The powers of these local government units as per sec. 3 of the same art. X of the
1987 Constitution, are to be further elaborated by a local government code, which later was
passed by Congress as Republic Act 7160 or the Local Government Code of 1991. There is
therefore a variance, or asymmetry, between the powers granted by the Constitution to
autonomous regions, vis--vis, the other local government units.
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Reserved powers are matters over which authority and jurisdiction are exercised by the
National Government. The reserved powers enumerated in the Annex on Power Sharing remains
the same. Only the National Government can exercise power or authority over national defense
and security, foreign relations, monetary policy, and customs and tariffs among others.
Concurrent powers refer to the powers shared between the National Government and the
Bangsamoro Government. In the exercise of these concurrent powers, the concerned ministries
of the Bangsamoro Government are required to cooperate and coordinate with the National
Government.
Exclusive powers are matters over which authority and jurisdiction pertain to the
Bangsamoro Government (Article V, Sections 1 to 4). All issues that may result in a dispute
between the National and Bangsamoro Governments, or may arise from the exercise of powers
enumerated in Article V, shall be resolved by an intergovernmental relations mechanism.
Unresolved issues shall be elevated to the President through the Chief Minister (Article VI).

C.)
To call the proposed political entity as a "Bangsamoro territory" is to consider it a
separate part of the Philippines although under its jurisdiction. Such a political entity is only a
little different to the "associative relationship" of the Bangsamoro Juridical Entity under the
MOA-AD. The Constitution does not contemplate any state in the jurisdiction of the state much
less does it provide for a transition status that prepares any part of the Philippines for
independence.
The Bangsamoro territory is composed of the land mass, maritime, terrestrial, alluvial
and aerial domain. Section 1 expressly states that the Bangsamoro territory remains part of the
Philippines.
Likewise, the draft Basic Law provides that the Bangsamoro shall respect and adhere to
the Philippines international treaties and agreements. Thus, whatever power the Bangsamoro
may exercise over its territory must be consistent with and not contravene the countrys
international obligations and commitments (Article IV, Section 8).
The local government units that will comprise the Bangsamoro territory will be
determined through a plebiscite for the ratification of this Basic Law (Article XV, Section 3).
A plebiscite will be held to ratify the Basic Law and particularly the so-called "core
territory" of the Bangsamoro by 2015. The President will then appoint a 15-member Bangsamoro
Transition Authority to govern the region. Finally, a regional parliament for the Bangsamoro
with 50 seats will be elected during the national elections scheduled for May 2016.
When the executive branch misrepresenting itself as the Philippine Government enters
into an agreement with the rebel group, the result is not a mere autonomous region as provided
for by our Constitution, but a substate. Thus, the Agreement is concluded between one branch
mistakenly identifying itself as the government, and what will turn out to be a substate.
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That Bangsamoro will be a substate is revealed by the following provisions:

a. The powers of the central government shall be determined by the Agreement, thus
turning Bangsamoro into a substate.
b. The Autonomous Region for Muslim Mindanao, which is provided for by the
Constitution, will be abolished by mere agreement with the MILF, which is not surprising if you
consider that the Bangsamoro has become a substate.
c. Allocation to the Bangsamoro of all powers exercised by the national government over
local government units.
d. Although the Constitution provides that natural resources belong to the state, in the
Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources.
e. The Annex on Power Sharing gives to Bangsamoro so-called "exclusive powers,"
which is defined as a tautology, as "powers or matters over which authority and jurisdiction
pertain to the Bangsamoro government."
f. Only the Bangsamoro shall be under a ministerial form of government, while the rest of
the country will operate under a presidential form of government.

D.)
A parliamentary system is a form of government having the real executive power vested
in a cabinet composed of members of the legislature who are individually and collectively
responsible to the legislature, while Democracy is a system of government in which the supreme
power is vested in the people and exercised by them directly or indirectly through a system of
representation.
The Bangsamoro Government is democratic because all members of Parliament will be
elected as representatives of the Bangsamoro People. Consistent with the 1987 Philippine
Constitution, both the executive and the legislative in a parliamentary system shall be elective
and representative of their constituent political units.
The 1987 Philippine Constitution left it to the Congress to determine the appropriate
government structures for local government units and autonomous regions. The 1987 Philippine
Constitution provides that the Organic Act for Autonomous Regions shall define the basic
structure of government consisting of the executive department and the legislative assembly.
The Bangsamoro Basic Law, states that the Bangsamoro government shall have a
"democratically-elected assembly consistent with the principles of a ministerial form of
government."
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The Philippine Constitution provides for the powers of the state. The Constitution is
supreme. The Agreement reserves to the central government the exercise of certain so-called
"reserved powers," which are described as powers "retained by the central government." Thus,
the Agreement diminishes the sovereignty of the Philippine Government by listing what are the
powers that the central government can retain. In other words, the Agreement attempts to
redefine the sovereignty of the Philippine state. In addition, the Agreement provides that the
powers reserved to the central government will depend upon further negotiation by providing:
"This list is without prejudice to additional powers that may be agreed upon by the parties."
Thus, the Agreement not only reduces the sovereignty of the central government, but also
provides that in the future, such sovereign powers as have been reserved may be further
increased, provided the Bangsamoro agrees. It will therefore be the Bangsamoro which will
determine what should be the remaining sovereign powers of the central government.
E.)
Republic Act 8372 is an act to recognize, protect and promote the rights of Indigenous
Cultural Communities (ICCs) or Indigenous Peoples (IPs), creating a national commission on
indigenous peoples, establishing implementing mechanisms, appropriating funds therefor, and
for other purposes.
The provisions are merely guidelines for those involved, both the ICCs and IPs and the
state. The provisions should be exercised to be adequate to be able to protect their rights.
The case of Isagani Cruz vs DENR states that the right of ownership and possession by
the ICCs and IPs of their ancestral domains is a limited form of ownership and does not include
the right to alienate the same. The ICCs/IPs are given the option to secure a certificate of title
over their individually-owned ancestral lands. The option is limited to ancestral lands only, not
domains, such lands must be individually, not communally, owned.
The Bangsamoro Basic Law and IPRA can co-exist because the proposed BBL and IPRA
has the same goal, to ensure that there will be no conflict of laws in the issue of fundamental
rights over ancestral territory.

F.)
Once approved, the BBL will not only provide the basic law for the Bangsamoro but will
also abolish the ARMM. One of the provisions of the BBL that will probably get it into hot
waters with the Supreme Court is Article XII Section 32 on Sharing on the Exploration,
Development and Utilization of Natural Resource. The draft law provides that taxes derived
from the non-metallic resources like sand gravel and quarry shall fully go to the Bangsamoro.
However, 75% of taxes derived from the exploration, development and utilization of metallic
minerals will go to the Bangsamoro while taxes from fossil fuels including petroleum, natural
gas, coal and uranium shall be shared equally by the Central government and the Bangsamoro.

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Atty. Paul L. Montejo, a constitutional expert, pointed out Article XII on National
Economy and Patrimony of the 1987 Constitution as a probably basis for questioning the
constitutionality of this particular provision in the Bangsamoro Law in case it gets approved.
That provision will clearly violate Article XII Section 2 of the Philippine Constitution
said Salvador Panelo, a prominent attorney. The provision holds that All lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State. It also provides that the exploration, development and utilization of all other natural
resources shall be under the control and supervision of the State and with the exception of
agricultural lands, these resources shall not be alienated.
Lawyer Rodolfo C. Rapista, dean of the St. Thomas More Law School in Tagum City,
said the proposed BBL is valid and will not violate the constitution because it is for the best
interest of the entire country. Mr. Rapista said the provision on natural resources and patrimony
will only hasten the development of the countrys natural resources.
It will all depend on whether it will run afoul of the Regalian Doctrine in the Constitution
according to Atty. Caesar S. Europa, former president of the Integrated Bar of the PhilippinesDavao Chapter. The Regalian Doctrine, which has been adopted under the 1935, 1973 and 1987
Constitutions, provides that all lands of the public domain belong to the State and that the latter
is charged with its conservation and patrimony.
Europa said that since the provision is also by law then it can also be a valid act of the
state just like the local government code which provides shares for the Local Government Units
and the Indigenous People Rights Act which provides share to the Indigenous Peoples.
While still working at the Office of the Presidential Adviser on the Peace Process way
back in 2006, Dureza said he started a tripartite review of the 1996 MNLF peace agreement
involving the MNLF, Government of the Republic of the Philippines and the Organization of
Islamic Conference. At that time, he said, the governments road map was and should still be the
consolidation of all peace agreements so that the enabling law would be for all Bangsamoro.
Once the proposed BBL is approved by Congress, it will pave the way for the
Bangsamoro Transition Authority (BTA) which will be composed of presidential appointments.
Mr. Dureza said instead of the BTA being all MILF-led, it should also include proportionate
representatives from the MNLF and other sectors.
He also suggested a longer transition period for the BTA because this is crucial
considering that the Bangsamoro area will be subjected to a plebiscite where the affected areas
will vote for inclusion or non-inclusion. By making the BTA inclusive and well-represented, he
said, it will stand a better chance of surviving the first challenge which is the plebiscite.
Another contentious issue that behooves the proposed Bangsamoro Law is Article III
Section 4 on Inland Waters which provides that all inland waters such as lakes, rivers, river
systems and streams within the Bangsamoro territory shall be part of the Bangsamoro and its
preservation and management under the jurisdiction of the Bangsamoro Government.
This could mean that Lake Lanao, the main source of hydropower in Mindanao, will be under the
Bangsamoro jurisdiction once the law is approved. Mindanao businessmen, through a resolution
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passed during the 23rd Mindanao Business Conference held in General Santos City during the
first week of September this year, however called on the government to exclude Lake Lanao
from the areas under exclusive authority of the Bangsamoro.
Lake Lanao is one of the major cheap sources of hydropower and through the Agus
Power Plant Complex, has an installed capacity of 727 megawatts. The resolution states that
since Lake Lanao plays a vital role in Mindanaos power supply, the government should retain
full control of the lake if it wants to achieve a reliable, sustainable and affordable power supply
for Mindanao.
The Bangsamoro Agreement apparently contains provisions very similar to those
contained in the Memorandum of Agreement on Ancestral Domain (MOA-AD) which the
Supreme Court declared as unconstitutional. Both the MOA-AD and the Bangsamoro Agreement
appear to facilitate the secession of the Bangsamoro from our country.
Submissions/Prayer:
The Bangsamoro shall have the power to create its own sources of revenues, as well as to
have an equal share in the revenues derived from natural resources. The Central Government will
have reserved powers on defense and external security, foreign policy, common market and
global trade, coinage and monetary policy, citizenship and naturalization and postal service; and
the Bangsamoro will have its exclusive or devolved powers.
Once the Bangsamoro Basic Law is signed by the President, a plebiscite shall be
conducted in the envisioned territory of the Bangsamoro, which includes the current ARMM
provinces, the cities of Cotabato and Isabela, and a number of named municipalities and
barangays in Lanao del Norte and North Cotabato and The Bangsamoro Transition Authority
shall be created to organize the ministerial form of Bangsamoro government asymmetrically
related to the Central Government of the Philippines.
While the Bangsamoro Basic Law has many laudable provisions that can help achieve
peace in Mindanao, no one can discount the fact that there are also many contentious provisions
and issues that may be challenged in the Supreme Court by just about anyone who can prove to
have a legal standing in the issue.
The Bangsamoro Basic Law needs to go through two rounds of voting before it can be
passed into law in Congress and through a plebiscite.
The Bangsamoro Basic Law is unconstitutional for these reasons.
The Transition Commission which drafted it is void because President Aquino III has no
power to create a public office. No constitutional provision or law allows its creation. In no way
can it be considered an existing agency prior to its creation. It cannot be justified as a means by
which the President ensures that the laws are faithfully executed precisely because its creation
is for the purpose of abrogating the existing organic act of the ARMM an existing law the
execution of which must be ensured by the President in the first place. Legally speaking,
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therefore, the draft Bangsamoro Basic Law does not exist, and because it does not exist, the
President cannot certify it as urgent, and the Congress cannot act on the same.
Allowing the Bangsamoro Government to keep 75% of the taxes in the autonomous
region, to get the lions share of revenues from natural resources in the region, and to get 50% of
the revenues from fossil fuel exploitation there, inevitably reduces the corresponding shares of
the Philippine provinces, municipalities and cities which are not included within the Bangsamoro
region. That reduction in their shares of revenues will translate to a substantial reduction in
government services and will trigger more taxes if basic state services are to continue to be
delivered. In other words, the Bangsamoro Basic Law affords extra-ordinarily special treatment
to the Bangsamoro Government, to the prejudice of and damage to other local government units
in the Philippines.
Fairness dictates that if the people in Luzon, the Visayas, and the bulk of Mindanao will
end up with a substantial reduction in their shares of the national revenues pursuant to the
Bangsamoro Basic Law, then the plebiscite to be held on the Bangsamoro Basic Law should not
be limited to the Bangsamoro territory. Every qualified voter all over the country must be
allowed to vote in that plebiscite. To deny the people their right to vote in that plebiscite is to
countenance class legislation. The equal protection clause of the 1987 Constitution forbids class
legislation.

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Sources:
1.)
2.)
3.)
4.)
5.)
6.)
7.)

http://www.saligan.org/
http://www.gov.ph/2014/09/10/document-the-draft-bangsamoro-basic-law
http://manilastandardtoday.com
www.senate.gov.ph
http://asj.upd.edu.ph
http://ceap.org.ph
http://opapp.gov.ph

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