IBP Journal Special Issue On The Proposed Bangsamoro Basic Law

thE iBP Journal
INTEGRATED BAR OF THE PHILIPPINES
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Associate Editor
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SPECIAL ISSUE NUMBER 4 (APRIL 2015)
IBP JOURNAL
Special Issue on the

Proposed Bangsamoro Basic Law
(April 2015)
Editorial
Casting Constitutionalism in Contempt
Vicente M. Joyas
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
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
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
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expressed therein.
Casting Constitutionalism in ContEmPt

Vicente M. Joyas
National President
So contemptuous is the way by which the Bangsamoro Basic Law (BBL) has been
presented for approval before the nation that the people, including the Bangsamoro
people, are promised a golden age of peace and reconciliation, despite its infirmities
involving derogation of constitutional institutions. The BBL is the result not only of a few
provisions of the Constitution violated; it is the product of a deliberate departure from
Constitutionalism.
II
Constitutionalism is a system of political life founded on a Constitution which the
people conceive in their sovereign status and thus they hold as law of paramount character.
In its conception of limited government, Constitutionalism defines political power within
given boundaries under the Constitution. It pertains to a complex of democratic practices,
including the principle that the Constitution shall not be subject to change except by the
sovereign act of the people.
III
1.
The concern of the people as regards the BBL begins with the fact that it is
merely an implementation of the Framework Agreement and the Comprehensive
Agreement (FAB/CAB) on the Bangsamoro concluded with the Moro Islamic
Liberation Front (MILF) by which, in the absence of their consent and without any
means of consultation with them collectively, the present Administration pretended to
represent the entire Filipino people as Philippine Government (GPH) to be bound
by the contractual stipulations with the MILF.
By this false representation, the Administration has impressed upon the MILF as
the other contracting party to the FAB/CAB that it was making a binding agreement
with the entire Government, to the effect that in doing so it is in representation of the
people.
In truth, however, what appears as Philippine Government (GPH) consists of
the Office of the Presidential Adviser on the Peace Process (OPAPP), or liberally
the Office of the President of the Philippines.
2.
Considering that the Adviser of the Peace Process as well as the members of
the negotiating panel and the members of the Transition Commission are all his
appointees, plus his own central role in the realization of the FAB/CAB and the
BBL, as pointed out below, the President becomes the real party on contract with the
MILF in the FAB/CAB. He is the real co-maker of the contract and its performance
is done by authority of his office alone.
3.
This means that the accountability over the entire process of installing the
Bangsamoro Sub-State belongs to the President, the vital elements of which are as
follows:
(a) The key factor in his accountability to the people lies in the fact
that his performance is not on the basis of the Constitution but
on the FAB/CAB and their implementation by the enactment of
the BBL.
(b) The following acts of contractual performance by the President
reflect the obligations of the Philippine Government (PGH)
under the FAB/CAB. As provided in these Agreements, he
performed the following:
*
*
*
*
Created the Transition Commission to draft the

Basic Law of the Bangsamoro, and appointed its
members;
He instructed the Transition Commission to ensure
that the BBL draft shall conform to the FAB/CAB;
His office reviewed the BBL as drafted by the
Transition Commission;
The BBL became his own legislative proposal when
it was certified by him as urgent and transmitted by
him as such to Congress, as required by the FAB/
CAB;
When, by means of Executive Order No. 120 of
17 December 2012, he makes it the commitment
of the Government to exert all efforts towards
realizing the full implementation of the [Framework]
Agreement;
His Executive Order implies that in case the BBL
occasions discrepancy with the Constitution, it is
the fundamental law that Congress may amend to
conform to the BBL;
This Executive Order was issued by the President
in compliance with the instruction provided in the Annex on
Transitional Arrangements and Modalities which forms
part of the FAB/CAB;
Between the Constitution and the FAB/CAB, he
would choose as he did, the Agreement.
4.
It appears that the source of legality governing the acts of the President itemized
above consists of the contractual stipulations provided in the FAB/CAB in which on
the part of the Philippine Government (GPH) as a contracting party, relies only on
the authority of the Office of the President.
5.
In this context, the actuations of the President are under instruction of the FAB/
CAB and in deliberate avoidance of constitutional mandate when this conflicts with
the main provisions of the FAB/CAB that (a) the status quo is unacceptable; (b)
the relationship of the Central Government with the Bangsamoro Government
shall be asymmetric; and (c) the Parties recognize Bangsamoro identity as having
its own territory, government ministerial in form, powers distinct from those of the
National Government conceptualized as reserved, concurrent and exclusive powers.

6.
Having assumed the character of a sub-state within the Philippine State, the
Bangsamoro as constituted under the FAB/CAB, has the BBL now as the full
implementing mechanism of these Agreements, presented to Congress for enactment
into national law of the Bangsamoro Sub-State.
7.
But the BBL before Congress at the present legislative stage has changed its legal
form and status. As transmitted to Congress by no less than the President as an urgent
bill pursuant to the instruction of the FAB/CAB, the BBL has become a Presidential
act. As a consequence, does this mean that all the constitutional infirmities in the BBL
should be attributed to the Office of the President? Or, should this not mean as the
act of deliberate rejection of the Constitution?
IV
Under the BBL, rejection of constitutional institutions and principles is pursued in

dimensions larger than specific violation of legal provisions. In applying the concept
of reserved powers drawn from the FAB/CAB, the BBL deals with the powers of the
Philippine State, which by unauthorized contractual stipulations are reorganized and
altered with the intent that the selected powers as stipulated by the FAB/CAB shall not
be applied by the National Government in its relation with the Bangsamoro Sub-State.
As now presented to Congress as an urgent bill of the President, the BBL is now
a new assembly of governmental powers in the creation of the Bangsamoro Sub-State
as conceived under the concepts of reserved, concurrent and exclusive powers. This
was achieved by contractual stipulations of the negotiation panels as a result of their
dismantling and reorganizing the powers of he Philippine State as organized and
structured in the Constitution, changes which are made prominent by the absence of the
sovereign act of the people.
This comment should have began where the BBL started with its thesis that Congress
has a new status: In acting on the BBL, Congress has become an instrumentality of the
Bangsamoro people and impliedly not so much a legislative organ of the whole Filipino
people. The BBLs Preamble contains the following operative language:
We, the Bangsamoro people and other inhabitants of
the Bangsamoro do hereby ordain and promulgate
this Bangsamoro Basic Law, through the Congress of the
Republic of the Philippines [Emphasis added]
Should this language be interpreted to the effect that the BBL has already been
ordained and promulgated by the Bangsamoro people and is submitted to Congress
for confirmation of this fact? Or, such act of BBL being ordained and promulgated is
inchoate and the final act of completion would be done by Congress? At any rate, this
preambular formula may be the ground for insistence that the enactment into law of the
BBL without change is a matter of obligation on the part of Congress.
Position Paper on the Draft Bangsamoro Basic Law
poSitioN paper oN the Draft baNgSamoro baSic law

Ranhilio Callangan Aquino*
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.
Speccial iSSue Number 4 - (april 2015 )
He said the Organization of Islamic Cooperation (OIC) still recognizes

the MNLF, citing an instance when a MILF representative was snubbed
during an OIC meeting in Turkey.
Misuari explained that the United Nations and the other countries
recognize the MNLF for its political programs unlike the MILF which is
known for its religious set-up.
I have repeatedly raised the question at different forums on the proposed Basic
Law and the antecedent Framework Agreement. Is Muslim when used in the phrase
Muslim Mindanao which the Iqbal Panel claims to have represented a univocal term?
In a very telling report of Inquirer Mindanao, published online as well, some leaders
of indigenous cultural communities were unequivocal about rejecting Bangsamoro as
their identity.
DAVAO CITY, Philippines Leaders of indigenous tribes within the
proposed Bangsamoro territory have demanded that their ancestral lands
be excluded, saying that if Philippine government refuses to exclude
them from the draft law on Bangsamoro autonomy, it would violate their
inherent and inalienable right to self-determination.
We cannot accept Bangsamoro as our identity. We have our own
identity and this is the Erumanen ne Menuvu, Erumanen Datu Ronaldo
Ambangan said as he read the declaration of the Erumanen ne Menuvu
tribe during the June 24 congressional consultations on the proposed
Bangsamoro in Midsayap, North Cotabato.
In Davao City, Timuay Alim Bandara, a Teduray leader, told the June 26
congressional committee hearing that peace should be given a chance,
not only for the Bangsamoro but also for all affected communities in
Mindanao.
I especially mention here other affected communities and societies
because it is not only the Bangsamoro community and society that has
been affected by all the wars and armed encounters, by injustices and
conflicts in this region, Bandara said. I am referring to the community
and society of indigenous peoples specifically the Teduray, Lambangian
and Dulangan Manobo in portions of Maguindanao in the Autonomous
Region in Muslim Mindanao (ARMM) where the IPRA (Indigenous
Peoples Rights Act) provisions are not implemented in the past 17 years
simply because we are inside an autonomous region that is the product
of the peace process.
http://newsinfo.inquirer.net/615262/indigenous-tribes-want-ancestral-lands-excluded-frombangsamoro-autonomy#ixzz3OZWnwfIS
I received a Manifesto from a group that calls itself the Mindanao Christian
and Highlanders Alliance, Cotabato Chapter, with one Mr. Mike Santiago, Chief
the ibp JourNal
Information Officer, acknowledging authorship. Whatever may be the status of this

group, the Manifesto does raise interesting points that should be considered:
1. The cities of Cotabato and Isabela which did not
vote for inclusion in the ARMM are included in the
Bangsamoro territory.
2. The delivery of even basic services under the
ARMM was already dismal. Will not the degree
of devolution if not abdication in favor of
Bangsamoro make matters even worse?
3. The areas proposed for expansion were predominantly Moro, but if examined, there are many
Christians and Highlanders in those areas, even in
the present are of ARMM. To note, Christians and
Highlanders suffered and still suffering (sic) in these
areas from abuses of the MILF and their co-terrorists. (Issue No. 9, Manifesto, MICHA)
2. Even before we entertain the possibility of amending the Constitution, a question
that cries out for a coherent answer is: How has the 1987 Constitution failed
the people of Muslim Mindanao? Because if it has not, and I maintain that it
has not, then what compelling reason is there for amending the Constitution? That
all this talk about amending the Constitution is more than sheer speculation is borne
out by Part VII of the Framework Agreement on Bangsamoro that reads in part: 4. The
Functions of the Transition Commision are as follows: xxx b. To work
on proposals to amend the Philippine Constitution for the purpose of
accommodating and entrenching in the Constitution the agreements
of the Parties whenever necessary without derogating from any prior
peace agreements xxx. If it aint broke, why fix it?
3. In setting forth the powers of the national government and the powers of local
governments and political subdivisions of the State, the Constitution embodies
a delicate balance and achieves the equipoise between national coherence and
subsidiarity. Writing on the American Constitution, particularly on constitutional
theory, Thomas Baker observes:
The deep structure of the Constitution is vertically arrayed in
federalism (the relation between the national government and the
states) and horizontally arrayed in separation of powers (the elaborate
system of checks and balances among the three branches of the national
government.
Thomas E. Baker, Constitutional Theory in a Nutshell, 13 Wm. & Mary Bill Rts. J. 57 (2004),
http://scholarship.law.wm.edu/wmborj/vol13/iss1/3
This being so, the elaboration of the powers of government and the diversification
of roles and functions between the political subdivisions of the state ideally should not be
accomplished by piece-meal amendments, but by a thorough overhaul of the Constitution.

Sewing new patches on old cloth is never sound! Since it seems that no one welcomes
yet a post-1987 Constitution, then what is reasonably foreseen and anticipated by
the transitory provisions of the Framework Agreement is some kind of patch-work
amendment.
Constitutional Framework
Whatever may be the political entity or subdivision created by law, the Constitution
provides the basic framework, over and above all other basic frameworks that may come
about as a result of negotiation.
I maintain the fundamental position that the highest autonomous political entity
that can constitutionally be created is the autonomous region. Under Article X of the
Constitution, the following are the limits of autonomy of such regions:
1. Under Section 1, the autonomous region is classed as a political
subdivision of the State, in the same way that provinces, municipalities
and cities are. Characterizing an autonomous region as a political
subdivision guarantees the singularity of the State and forecloses the
creation of any ambivalent entity such as a sub-state.
Discussing the nature of an autonomous region, the Supreme Court through the
erudite Madame Justice Irene Cortes was clear that the autonomous region was meant to
be the farthest that the grant of autonomy could go. Ruled the Court in Cordillera Broad
Coalition v. Commission on Audit, G.R. 79956 (January 29, 1990):
It must be clarified that the constitutional guarantee of local autonomy
in the Constitution [Art. X, sec. 2] refers to the administrative autonomy
of local government units or, cast in more technical language, the
decentralization of government authority [Villegas v. Subido, G.R. No.
L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique
to the 1987 Constitution, it being guaranteed also under the 1973
Constitution [Art. II, sec. 10]. And while there was no express guarantee
under the 1935 Constitution, the Congress enacted the Local Autonomy
Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185),
which ushered the irreversible march towards further enlargement of
local autonomy in the country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions
in Muslim Mindanao and the Cordilleras, which is
peculiar to the 1987 Constitution contemplates the grant
of political autonomy and not just administrative autonomy
these regions. Thus, the provision in the Constitution for an
autonomous regional government with a basic structure consisting of an
executive department and a legislative assembly and special courts with
personal, family and property law jurisdiction in each of the autonomous
regions [Art. X, sec. 18].
The creation of any entity granted powers vaster than those of an autonomous region
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must perforce be constitutionally suspect.

2. The following item cannot be compromised by the creation of
autonomous regions: The Constitution, national sovereignty and the
integrity of national territory.
3. The power of the President of the Republic over autonomous regions is
characterized as general supervision. While the Administrative Code
of 1987 (Book III, Title I, Chapter 1, Section 1) grants the President
control of all the executive departments, bureaus and offices this grant
of control power should, I submit, be read in the light of the Constitutional
limitation of the Presidents power to general supervision in respect to
autonomous regions.
4. The legislative competence of the legislatures of autonomous regions is
limited to:
1.
2.
3.
4.
5.
6.
7.
8.
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
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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.
Article X, Section 20 of the

Constitution
Art. V, Sec. 2, BBL

Concurrent Powers
Art. V, Sec. 3
Exclusive Powers
Administrative Organization
Social security and pensions
Agriculture, livestock and

food security
Creation of sources of
revenue
Quarantine
Economic and cultural

exchange
Ancestral domain and

natural resources
Land Registration
Contract loans, credits and

other forms of indebtedness
with any government or
private bank and other
lending institutions, except
those requiring sovereign
guaranty, which require
Central Government
approval;
Personal, family and

property relations
Pollution control
Trade, industry, investment,

enterprises and regulation
of businesses taking into
consideration relevant laws
Regional urban and rural

planning development
Human rights and

humanitarian protection and
promotion
Labor, employment and

occupation
Economic, social and tourism

development
Penology and penitentiary
Libraries, museums,
historical, cultural and
archaeological sites
Educational policies
Auditing
Hajj and umrah
Preservation and
development of the cultural
heritage
Civil Service
Customary laws
Other matters authorized

by law for the promotion of
the general welfare of the
people of the region
Coastguard
Declaration of the
Bangsamoro Holidays
Customs and Tariff
Ancestral domain and

natural resources
Administration of justice
Protection of the rights of

indigenous peoples
Funding for the maintenance

of national roads, bridges
and irrigation systems
Land management, land

distribution and agricultural
land use reclassification
Disaster risk reduction and

management
Cadastral land survey
Public order and safety
Expropriation and eminent

domain
Environment, parks, forest
management, wildlife,
nature reserves and
conservation
Inland waterways for
navigation
Inland waters
Management, regulation
and conservation of all
fishery, marine and aquatic
resources within the
Bangsamoro territorial
jurisdiction
Bangsamoro settlements
Sharia courts and sharia
justice system
Health
Social services, social welfare
and charities
Waste management
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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
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As the Constitution is explicit that the provision which

Congress can include in an appropriations bill must
relate specifically to some particular appropriation
therein and be limited in its operation to the
appropriation to which it relates, it follows that any
provision which does not relate to any particular item,
or which extends in its operation beyond an item of
appropriation, is considered an inappropriate provision
which can be vetoed separately from an item. Also to be
included in the category of inappropriate provisions
are unconstitutional provisions and provisions which
are intended to amend other laws, because clearly
these kind of laws have no place in an appropriations
bill. These are matters of general legislation more
appropriately dealt with in separate enactments. Former
Justice Irene Cortes, as Amicus Curiae, commented that
Congress cannot by law establish conditions for and
regulate the exercise of powers of the President given by
the Constitution for that would be an unconstitutional
intrusion into executive prerogative.
In his erudite ponencia ruling the Disbursement Acceleration Program
unconstitutional, Justice Lucas Bersamin had the occasion to teach, in
the Courts name, on the role of the legislature in the enactment of the
budget:
The Budget Legislation Phase covers the period
commencing from the time Congress receives the
Presidents Budget, which is inclusive of the NEPand
the BESF, up to the Presidents approval of the GAA.
This phase is also known as the Budget Authorization
Phase, and involves the significant participation of the
Legislative through its deliberations.
Initially, the Presidents Budget is assigned to the House
of Representatives Appropriations Committee on First
Reading. The Appropriations Committee and its various
Sub-Committees schedule and conduct budget hearings
to examine the PAPs of the departments and agencies.
Thereafter, the House of Representatives drafts the
General Appropriations Bill (GAB).
The GABis sponsored, presented and defended by the
House of Representatives Appropriations Committee
and Sub-Committees in plenary session. As with other
laws, the GAB is approved on Third Reading before the
House of Representatives version is transmitted to the
Senate.
After transmission, the Senate conducts its own committee
11
hearings on the GAB. To expedite proceedings, the Senate

may conduct its committee hearings simultaneously
with the House of Representatives deliberations. The
Senates Finance Committee and its Sub-Committees
may submit the proposed amendments to the GAB
to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to
the Senate. The Senate version of the GAB is likewise
approved on Third Reading.
The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference
Committee for the purpose of discussing and harmonizing the conflicting provisions of their versions of the
GAB. The harmonized version of the GAB is next
presented to the President for approval. The President
reviews the GAB, and prepares the Veto Message where
budget items are subjected to direct veto, or are identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have
failed to pass the GAB for the ensuing fiscal year, the
GAA for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the
GAB is passed by the Congress.
But insofar as Section 10 of the BBL automatically appropriates 25% of
all taxes collected in the Bangsamoro by the Central Government to the
Central Government, and 75% to the Bangsamoro, the draft Basic Law
pre-empts Congress power to appropriate and excises from the power
to appropriate and to draft the legislative budget the constitutionallygranted prerogative to do so insofar as taxes collected from Bangsamoro
territory are concerned!
5. Bangsamoro Waters? Under the UN Convention on the Law of the Sea,
the Philippine territorial sea extends to a breadth of 12 nautical miles for
the archipelagic baselines defined by Republic Act No. 9522. What is the
relationship between the Bangsamoro Waters and the territorial sea of
the Republic of the Philippines? There are only two possibilities:
a. Bangsamoro Waters are part of the territorial sea of the Republic
of the Philippines. If this be the case, then designated the
area of sea contiguous to the Bangsamoro core territory
has only domestic effect: in the assignment of duties
to police the waters, for example, but has no currency
internationally.
b.
12
Bangsamoro Waters are not part of the territorial sea of the

Republic of the Philippines. If this be the case, then
effectively, Bangsamoro is a different State entitled to its
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own territorial sea!

And what of the zone of 200 nautical miles commencing from
the baselines sea-wards? In international law, this is the Exclusive
Economic Zone of the Republic of the Philippines. In that same area
of sea adjoining what Section 5 of the draft Bangsamoro Basic Law
characterizes as Bangsamoro Waters, do we also recognize a Bangsamoro
Exclusive Economic Zone, or is the unqualified exercise by the Central
Government of sovereign rights over the zone recognized? The latter, I
submit, is the only option if the territory of the Republic is to remain
integral!
Conclusion
I make no pretenses at having exhaustively analyzed the draft legislation. On the
whole, while the tremendous work that has gone into crafting what is clearly an attempt at
a compromise both political, economic and territorial should be lauded, the dangers
and pitfalls to which I have pointed are only some of the flashing red lights that invite
greater scrutiny and closer attention. Once more the underlying assumption of these
comments is that it is the intention of Congress to work within constitutional limits. I hope
I have also made clear why I do not subscribe to the idea of amending the Constitution
to accommodate Bangsamoro.
13
Pacifico A. Agabin & Oscar Franklin B. Tan
a liberal iNterpretatioN of
the baNgSamoro baSic law*
Pacifico A. Agabin**
Oscar Franklin B. Tan***
[The Constitution] is an experiment, as all life is an experiment. Every year if not

every day we wager our salvation upon some prophecy based upon imperfect knowledge.
Justice Oliver Wendell Holmes, Jr.1
The law must be stable, but it must not stand still.
Dean Roscoe Pound2
INTRODUCTION
Senator Ferdinand Marcos, Jr., chair of the Senate committee on local government,
proclaimed the Bangsamoro Basic Law3 in a state of coma after the ill-fated Mamasapano
operation last January 25, 2015,4 where 44 elite Special Action Force policemen were
killed in the mission that resulted in the death of the notorious terrorist and bombmaker
Zulkifli bin Hir aka Marwan. There is currently great uncertainty regarding the fate of
the BBL and the peace process and great tension in Mindanao. Although justice for the
casualties at Mamasapano is well beyond the scope of this paper, it is written in the belief
*
Submitted as the authors joint position paper to the House of Representatives Ad Hoc Committee on the
Bangsamoro Basic Law, the Senate Committee on Constitutional Amendments and Revision of Codes through
the Office of Senator Miriam Defensor-Santiago, the Integrated Bar of the Philippines and the Philippine Bar
Association.
**
General Counsel, Integrated Bar of the Philippines. Chair, Constitutional Law Department, Philippine Judicial
Academy. Dean (1989-95) and Professorial Lecturer, University of the Philippines College of Law. Dean,
Lyceum of the Philippines College of Law (2004-2009). J.S.D., LL.M. (Constitutional Law), Yale Law School
(1965). LL.B., University of the Philippines (1960).
***
Most Outstanding Alumnus (Legal Education), UP Alumni Association (1996). National Book of the Year
Awardee for Law, Manila Critics Circle (1997).
Co-chair, Committee on Constitutional Law, Philippine Bar Association. Columnist, Philippine Daily Inquirer.
Lecturer in Constitutional Law (University of the East) and Securities Law (San Beda Graduate School of Law).
Chair, Philippine Law Journal (2005). LL.M. (International Finance Concentration), Harvard Law School
(2007). LL.B., University of the Philippines (2005). Double-major in B.S. Management Engineering / A.B.
Economics Honors, Ateneo de Manila University (2001).
The Outstanding Young Men Awardee for Law (2014). First Violeta Calvo-Drilon-ACCRALAW Scholar
for Legal Writing (2004). First Freshman and First Two-Time Awardee, Justice Irene R. Cortes Prize for
Best Paper in Constitutional Law (2002, 2005). Professor Myres S. McDougal Prize for Best Paper in Public
International Law and Jurisprudence (2005). First Awardee, Justice Vicente V. Mendoza Prize for Best Critical
Analysis of a Supreme Court Decision (2005). First Awardee, Professor Gonzalo T. Santos, Jr. Prize for Best
Paper in Securities Law (2005). First awardee, Professor Bienvenido C. Ambion Prize for Best Paper in Private
International Law (2004). Professor Esteban B. Bautista Prize for Best Paper in Intellectual Property Law (2005).
Awardee, Professor Araceli T. Baviera Prize for Best Paper in Civil Law (2003).
14
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
Roscoe Pound, InteRPRetatIons of LegaL HIstoRy 1 (1923).
H. No. 4994 (2014); S. No. 2408 (2014) [hereinafter, the BBL].
Maila Ager, BBL is in coma, says Marcos, PHIL. daILy InquIReR, Feb. 11, 2015.
the ibp JourNal
A Liberal Interpretation of the Bangsamoro Basic Law
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
how our Muslim brethren remained independent from foreign colonizers

even before we thought of our archipelago as the Philippines. But IBP
Journal editor and former UP Law dean Merlin Magallona wrote at
length of the bills many infirmities.
Ateneo Law dean emeritus Joaquin Bernas, SJ, and School of Government
Dean Tony La Via accept the bills general structure, subject to minor
adjustments. I do not envy the committee chair, Rep. Rufus Rodriguez,
for his task of mediating among experts with his unique mix of legal
credentials and political savvy.6
In plain language, the BBLs constitutionality will be, at least initially, determined by
statesmen, not law professors, with a methodology that goes beyond law and ideally taps
the electorates broader reservoir of wisdom and experience. Statesmen are entitled to
recall that a constitution is not an ordinary legal document, but intended to be read very
broadly and plainly as a document capable of serving as a framework and a repository of
ideals to empower future generations. To quote Chief Justice John Marshalls classic line:
We must never forget that it is a constitution we are expounding.7
There are substantial reasons why the BBLs critics take restrictive views and cite
important and well-established legal doctrines against individual BBL provisions. Of all
the reasons to refute such criticisms, the most important is simply that law and legal
attitudes change with time. The atrocious, impertinent proposition of today may well be
the hornbook doctrine of tomorrow. Faced with so momentous a legislative enterprise
as the BBL, one might be prudent to give way to the political experiment unless one is
absolutely sure both of ones doctrine and that it will resonate with future generations
of Filipinos into eternity. And in gauging whether one is absolutely sure that a BBL
provision contradicts our laws and Constitution, one must recall that in the United States
experience, slavery and racial segregation were but mere decades ago upheld not just as
legal truth by the finest minds of the day, but ordained by God and part of the laws of
nature.
Finally, an open, liberal mindset on the BBL is an imperative of history and the evident
need to uphold the Moro people of the Philippines dignity in our law and history. It is all
too easy to overlook that they maintained their culture while the rest of the archipelago
was Hispanized, and were ironically marginalized as a result. As one of this papers coauthors wrote:
The Spaniards occupied the Philippines with the avowed objective
of Christianizing the islands. Even the Americans professed the same
objective, but Christianization to them meant Protestant evangelization.
When the Spaniards encountered the Moros in Manila (they called they
Moros as they associated the Muslims with the warriors from Morocco
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.
McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819).
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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
McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819).
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
Roy e.H. meLLoR, natIon, state and teRRItoRy 4 (1989).
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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
BBL art. VI, 1.
19
are still subject to the supervision of the President. Their establishment

is still subject to the framework of the Constitution, particularly, sections
15 to 21 of Article X, national sovereignty and territorial integrity of the
Republic of the Philippines.
The exact contours of the relationship of the autonomous government
and the national government are defined by legislation such as Republic
Act No. 9054 or the Organic Act for the Autonomous Region in Muslim
Mindanao. 13
Taken in this spirit and in the BBLs context, the asymmetric relationship appears to
mean nothing more than what Leonen discusses and is a simple affirmation that a larger
autonomous area such as the Bangsamoro Entity necessarily has a different relationship
with the national government compared to ordinary local government units, and enjoys
more powers. This is thus not the associative relationship criticized in the MOA-AD
Decision.
While asymmetrical is seemingly as double-edged as associative, the use of the
latter term was unfortunate as it was seized on by the majority of the Supreme Court as
one of the essential grounds for holding the predecessor agreement to be violative of the
Constitution. The international definition of the term as formulated by two authorities is,
in the MOA-AD Decision, an association is formed when two states of unequal power
voluntarily establish durable links; in the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal, while maintaining its international status
as a state. The Court cited as examples the Marshall Islands and Micronesia, which
are associated states of the United States. An associated state is not recognized by the
Constitution, the Court held. Indeed, the MOA-AD Decision criticized an agreement that
partook of a treatys nature, one that seemed to prepare the other party for independence
or at implicitly recognize an existing independent status.
Indeed, the BBL avoids the semantic traps triggered in the MOA-AD Decision and
the Bangsamoro Entity in the BBL is a political instead of juridical entity. Someone
insisting that the BBLs asymmetric relationship and the associative relationship from its
predecessor are the same dogs with different collars might be asked to concede that where
an interpretation that is not unconstitutional is available as a ready alternative to the
unconstitutional interpretation, this should be upheld.
c. usurPAtion of mindAnAos Autonomous rEgion
A related objection is that the Bangsamoro Entity usurps the Autonomous Region of
Muslim Mindanao and that the former cannot be the autonmous region in Mindanao
contemplated by the Constitution.
This objection is difficult to understand because all the Constitution broadly states
is that There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras.14 The Constitution provides only very broad requirements for such
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
const. art. X, 15. See const. art. X, 1.
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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.
and administration of Shariah courts and a Shariah bar in the

Bangsamoro Entity;
The Bangsamoro Police and Bangsamoro Police Board shall be
part of the Philippine National Police and the National Police
Commission, in compliance with the constitutional provision that
there be only one police force;
The Armed Forces of the Philippines retains responsibility for the
external defense of the Bangsamoro Entity and the latter shall have
no separate armed forces;
The Commission on Audit retains its power to audit all government
bodies, including in the Bangsamoro Entity, as the Bangsamoro
Commission on Audit parallels (and parallel audits are allowed in
jurisprudence) but does not replace COA;
The Bangsamoro Electoral Office shall be a part of the Commission
on Elections and thus cannot supplant the latter;
The Bangsamoro Civil Service Office is tasked to develop a
professional civil service corps in the Bangsamoro Entity but without
prejudice to the national Civil Service Commissions powers; and
The Bangsamoro Human Rights Commmission cannot prejudice
the primarily recommendatory functions of the national Human
Rights Commission and is probably prudent given the special
human rights issues that may arise in the Bangsamoro Entity due to
its special demographics.
f. A notE on thE moA-Ad dEcision

Going beyond the BBLs bare text, a critical difference between the Comprehensive
Agreement on Bangsamoro (CAB) and the MOA-AD that was invalidated by the Supreme
Court in the 2008 MOA-AD Decision is one of political and constitutional imperative: the
CABs provisions need legislative approval, while the MOA-AD contained a government
commitment to amend the Constitution to conform to the MOA-AD. The MOA-AD
Decision noted that the government peace panel has no power to guarantee to a third party
that the required amendments will eventually be put in place nor even be submitted to a
plebiscite. In his MOA-AD concurring opinion, former Chief Justice Reynato Puno noted
that the MOA-AD is heavily loaded with self-executing components which are well beyond
the powers of the President to grant, whether as Chief Executive or as Commander-inChief. Nemo dat quod non habet. You cannot give what you do not have. Hindi mo maibibigay
ang hindi sa iyo, added Justice Ruben Reyes in a separate opinion.
The BBL, therefore, is the big difference between the two peace agreements; its
passage and approval is the suspensive resolutory condition that would give life to the
CABs specific terms. It omits, however, the guarantees of its predecessor and is currently
subject to Congress judgment.
g. othEr AnAlysis
Objections to individual BBL provisions are easier to resolve after one takes a position
on the more fundamental objections discussed above. The rest of the authors analysis is
presented in this simple table:
22
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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.
This is acceptable because a local

government unit may manage inland bodies
of water within its assigned territory.
Further, nothing prevents the delegation of
the management of certain territorial waters
to a local government unit.
23
Article IV, Section 5. Promotion of Unity.

The Bangsamoro Government shall promote
unity, peace, justice, and goodwill among
all peoples, as well as encourage a just and
peaceful settlement of disputes.
The Bangsamoro abides by the principle that
the country renounces war as an instrument
of national policy, adopts the generally
accepted principles of international law
as part of the law of the land and adheres
to the policy of peace, equality, justice,
freedom, cooperation, and amity with all
nations.
It is curious why a law creating an

autonomous region would mention war, a
matter among states, but a reiteration of the
constitutional policy renouncing war in any
law is not invalid.
Article V, Section 2, Subsection 5. Human

rights and humanitarian protection and
promotion. The Bangsamoro Government
may organize its own bodies for human
rights and humanitarian protection and
promotion that will work cooperatively with
relevant national institutions.
Article IX, Section 7. Bangsamoro Human
Rights Commission. There is hereby
created a Bangsamoro Human Rights
Commission, which shall be independent
and impartial, to ensure the promotion
and protection of human rights in the
Bangsamoro. In the performance of its
mandate, the Commission may exercise,
among others, investigatory powers,
prosecutorial powers and powers to compel
attendance of witnesses and the production
of evidence.
This is acceptable because the Constitutions

Commission on Human Rights has generally
recommendatory powers and would not be
supplanted by regional human rights bodies.
Anticipating human rights questions
involving race and religion specific to the
Bangsamoro Entitys unique demographics,
creating a specific Bangsamoro human rights
body might be prudent.
The Commission shall submit a report on its

activities and performance at least once a
year to the Bangsamoro Parliament. Other
state instrumentalities in the Bangsamoro
shall assist the Commission and ensure
its independence, impartiality, dignity
and effectiveness. The Commission shall
have a coordinative and complementary
relationship with the national Commission
on Human Rights in carrying out its mandate.
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Article V, Section 2, Subsection 7. Auditing.

The Bangsamoro auditing body shall
have auditing responsibility over public
funds utilized by the Bangsamoro, without
prejudice to the power, authority and duty
of the national Commission on Audit (COA).
The Bangsamoro Government shall ensure
transparency mechanisms consistent with
open government practices.
Article XII, Section 2. Auditing. All public
funds of the Bangsamoro are subject to
auditing. For this purpose, a Bangsamoro
Commission on Audit (BCA) is hereby
created. It shall have the power, authority,
and duty to examine, audit, and settle all
accounts pertaining to the revenue and
receipts of, and expenditures or uses of
funds and property, owned or held in trust
by, or pertaining to the public funds utilized
by the Bangsamoro. The utilization of the
revenue generated by the Bangsamoro
Government and block grants or subsidies
from foreign or domestic donors shall be
subject to the auditing rules and regulations
of the Bangsamoro Government and to
auditing by the BCA auditors.
This is acceptable because the COA, a

constitutional body, remains responsible for
auditing Bangsamoro government entities,
but nothing prevents the creation of a
parallel audit body.
Development Bank of the Philipines v.
Commission on Audit 1 ruled that another
audit parallel to COAs is allowed under the
Constitution.
The BCAs power, authority and duty shall be

without prejudice to the power, authority
and duty of the Commission on Audit (COA)
to examine, audit and settle all accounts,
pertaining to the revenues and the use of
funds and property owned and held in trust
by any government instrumentality, including
GOCCs.
With due regard to the BCAs responsibility
to ensure the judicious use of funds within
the Bangsamoro, disbursement vouchers
of the Bangsamoro Government shall be
submitted immediately to the BCA.
25
Article V, Section 2, Subsection 8. Civil

Service. The Bangsamoro Government
shall develop and administer a professional
civil service corps, to include the powers and
privileges on civil service matters provided in
R.A. No. 9054, and without prejudice to the
power, authority, and duty of the national
Civil Service Commission.
There is hereby created a Bangsamoro
Civil Service office that shall develop and
administer a professional civil service
corps, without prejudice to the power,
authority and duty of the national Civil
Service Commission. The Bangsamoro
Government shall enact a civil service law
for this purpose. This law shall govern the
conduct of civil servants, the qualification
for non-elective positions, adopt the
merit and fitness system, and protect civil
service eligibles in various government
positions, including government-owned
and/or controlled corporations with
original charters, in the Bangsamoro. The
Bangsamoro Government shall have primary
disciplinary authority over its own officials
and employees.
Article V, Section 2, Subsection 10.
Customs and Tariff. The Bangsamoro
Government and the Central Government
shall cooperate and coordinate through the
intergovernmental relations mechanism
with regard to the enforcement of customs
and tariff laws and regulations to ensure
the effective exercise of its powers on
barter trade and countertrade with ASEAN
countries as well as the regulation of the
entry of haram goods in the Bangsamoro
territorial jurisdiction.
26
This is acceptable because the CSC, a

constitutional body, remains responsible for
the civil service.
It might be further clarified, however,
how exactly the CSC and Bangsamoro Civil
Service office will work together and how
the Bangsamoro governments primary
disciplinary authority will function in
practice.
This is acceptable because nothing prevents

a government from delegating customs
authority over a certain area to a local
government.
Existing Philippine provinces and cities
enter into barter trade with other ASEAN
countries.
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Article V, Section 2, Subsection 11.

Administration of justice. Administration
of justice shall be in accordance with the
relevant provisions of this Basic Law and
with due regard to the powers of the
Supreme Court and the competence of the
Bangsamoro Government over Shariah
courts and the Shariah justice system in the
Bangsamoro. The supremacy of Shariah and
its application shall only be to Muslims.
Article X, Section 1. Justice System in the
Bangsamoro. -- The justice system in the
Bangsamoro shall consist of Shariah law
which shall have supremacy and application
over Muslims only; the traditional or tribal
justice system, for the indigenous peoples
in the Bangsamoro; the local courts; and
alternative dispute resolution systems.
For Muslims, the justice system in the
Bangsamoro shall give primary consideration
to Shariah, and customary rights and
traditions of the indigenous peoples in the
Bangsamoro.

Entitys Shariah courts remain subject to the
original powers of the Supreme Court under
the Constitution.
The Constitution explicitly provides: The
organic acts [of autonomous regions]
shall likewise provide for special courts
with personal, family, and property law
jurisdiction consistent with the provisions of
this Constitution and national laws.
Nothing herein shall be construed to operate

to the prejudice of non-Muslims and nonindigenous peoples.
Article X, Section 10. Shariah Judicial and

Bar Council. - The Shariah Judicial and Bar
Council shall recommend to the Judicial
and Bar Council applicants for the position
of judges of Shariah District and Circuit
Courts in the Bangsamoro and the justices
of the Shariah High Court. The Judicial and
Bar Council shall give utmost consideration
to the Shariah Judicial and Bar Council
nominees in recommending appointees
to the President. The President shall issue
the appointments within ninety (90) days
from the submission by the Judicial and Bar
Council of the list.
This is acceptable because recommendatory

authority to the national Judicial and Bar
Council does not restrict its discretion.
Note, further, that there is no religious test
involved in the appointment of Shariah
judges or creation of a Shariah bar, as nonMuslims with the requisite knowledge would
qualify.
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.
This is acceptable because the list of powers

delegated to an autonomous region in
article X, section 20 of the Constitution is
not exclusive and lawmakers may add other
fields.
Certain powers such as the ability to contract
loans (without sovereign guarantees) and
enter into barter trade with other ASEAN
countries are already enjoyed by existing
Philippine provinces and cities. These
relationships are not the type of diplomatic
relationships that make a state a state.
Congress may delegate certain powers to the
Bangsamoro Entity such as determining the
location of free ports (with the incentives
offered under existing national laws), the
creation of government corporations with
original charter intended to operate within
the Bangsamoro Entity, and the creation
of legislative franchises for public utilities
within the Bangsamoro Entity subject to
constitutional restrictions.
Section 26. Cultural Exchange, Economic

and Technical Cooperation. Consistent
with the reserved powers of the Central
Government, the Bangsamoro Government
may establish linkages for cultural exchange,
economic and technical cooperation with
countries with diplomatic relations with the
Philippines, with assistance of Philippine
embassies or consulates, or through
some other arrangements with Central
Government supporting such undertakings.
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Article XIII, Section 25. Barter Trade and

Countertrade with ASEAN Countries. The
Bangsamoro Government shall regulate
traditional barter trade and counter-trade
with ASEAN countries. The goods or items
that are traded with the said countries shall
not be sold elsewhere in the country without
payment of appropriate customs or import
duties.
Traditional barter trade and counter-trade
refer to all cross-border trade of all goods
not otherwise considered illicit since time
immemorial between the Bangsamoro areas
with ASEAN countries. The Bangsamoro
Government shall ensure compliance with
national standards and safety product
standards requirements. Any dispute in
relation to compliance or non-compliance
shall be brought to the intergovernmental
relations mechanism.
Section 26. Economic Zones, Industrial
Estates and Free Ports. The Bangsamoro
Government may establish economic zones,
industrial estates and free ports in the
Bangsamoro. Through the intergovernmental
relations mechanism, the Bangsamoro
Government and the Central Government
shall cooperate on customs, immigration,
quarantine service including the attendant
international commitments thereto, to
implement and make fully operational such
economic zones, industrial estates, and
free ports within one (1) year from their
establishment. Business and other enterprises
operating within the Bangsamoro economic
zones, industrial estates and free ports shall
be entitled to the fiscal incentives and other
benefits provided by the Central Government
to special economic zones. The Bangsamoro
Government shall implement the fiscal
incentives and other benefits to investors
in economic zones, industrial estates and
free ports. Bangsamoro free ports shall be
contiguous/adjacent to a seaport or airport.
The area of coverage of a free port may be
so much as may be necessary of that portion
of the constituent local government unit/s
of the Bangsamoro, subject to such criteria
as the Bangsamoro Parliament may provide
in law for that purpose. Existing free ports
in the ARMM are hereby transferred to the
Bangsamoro Government.
29
Article V, Section 3, Subsection 57(2)(3). Local administration, municipal

corporations and other local authorities
including the creation of local governments.
The Bangsamoro Parliament may create,
divide, merge, abolish or substantially
alter boundaries of provinces, cities,
municipalities or barangays in accordance
with a law enacted by the Bangsamoro
Parliament, and subject to the approval by
a majority of the votes cast in a plebiscite in
the political units directly affected. Subject
to the criteria provided in said law, the
Bangsamoro Parliament may likewise create
appropriate local government units in the
areas inhabited predominantly by indigenous
peoples;
However, when such acts require the
creation of a congressional district, the
Bangsamoro Government shall cooperate
and coordinate with Central Government
through the Philippine Congress
Bangsamoro Parliament Forum to prioritize
the deliberations on the creation of the
congressional district;
Article XV, Section 5. Reconstitution of
Local Government Units. The Bangsamoro
Parliament, may, by regional law, provide
for the constitution of geographic areas in
the Bangsamoro into appropriate territorial
or political subdivisions depending on the
results of any of the plebiscites herein.
This is acceptable because Congress can

delegate to the Bangsamoro Entity the
authority to alter the territory assigned to
the local government units within it, in the
same way (albeit the Bangsamoro Entity
enjoys a much broader delegation) that the
Local Government Code allows the alteration
of baranggays within a larger government
unit.
The BBL recognizes that the Constitution
explicitly states that it must be Congress that
reapportions congressional districts,2 but
there is no such constitutional requirement
for the alteration of provincial, city or
municipal boundaries.
Nothing herein shall be construed to allow

the Bangsamoro Parliament to create
congressional districts.
Article VI, Section 3. General Supervision.
Consistent with the principle of autonomy
and the asymmetric relation of the
Central Government and the Bangsamoro
Government, the President shall exercise
general supervision over the Bangsamoro
Government to ensure that laws are
faithfully executed.
30
This provision emphasizes that the

Bangsamoro Entity shall be subject to the
Presidents power of supervision, one
of the most important requirements for
autonomous regions in article X (Local
Government) of the Constitution.
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Article VI, Section 9. Bangsamoro

Participation in Central Government.
It shall be the policy of the Central
Government to appoint competent and
qualified inhabitants of the Bangsamoro
in the following offices in the Central
Government: at least one (1) Cabinet
Secretary; at least one (1) in each of the
other departments, offices and bureaus,
holding executive, primarily confidential,
highly technical, policy-determining
positions; and one (1) Commissioner in each
of the constitutional bodies.
Article X, Section 27. Justices from
Bangsamoro. It shall be the policy of the
Central Government that at least one (1)
justice in the Supreme Court and two (2)
justices in the Court of Appeals at any one
time who shall be qualified individuals of
the Bangsamoro territory. For this purpose,
the Chief Minister may, after consultations
with the Bangsamoro Parliament and the
Shariah Judicial and Bar Council, submit the
names of qualified persons to the Judicial
and Bar Council for its consideration. The
appointments of those recommended by
the Chief Minister to the judicial positions
mentioned above are without prejudice to
appointments that may be extended to other
qualified inhabitants of the Bangsamoro to
other positions in the Judiciary.
Article VII, Section 9. Bangsamoro Electoral

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

policy (albeit morally binding) and not a
strict legal requirement.
Note that it is not possible to add
requirements for appointment to an office
whose requirements are set out in the
Constitution, such as a Supreme Court
Justice or Commissioner of a constitutional
body.

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

Electoral Office which shall be a part of the
Commission on Elections, and which shall
perform the functions of the Commission on
Elections in the Bangsamoro.
31
Article VII, Section 18. Privileges and

Immunities. No member of the
Bangsamoro Parliament may be arrested
while the Bangsamoro Parliament is in
session, except for crimes punishable by
more than six (6) years of imprisonment. The
members of the Bangsamoro Parliament may
not be questioned in any other place of held
liable for any speech or debate delivered
in the Bangsamoro Parliament sessions or
meetings of its committees.
Article VII, Section 23. Proceedings. The

legislative proceedings in the Bangsamoro
Parliament shall be recorded in its original
form and translated in the Filipino, Arabic
and English languages. Unless otherwise
provided by law or the House Rules of the
Bangsamoro Parliament, the members of the
Bangsamoro Parliament may use any of the
commonly understandable native languages
during legislative deliberations.
Article IX, Section 19. Preservation of

Bangsamoro Cultural Heritage. To
preserve the history, culture, arts, tradition
and the rich cultural heritage of the
Sultanates, such as the Sultanates of Sulu,
Maguindanao, and Buayan, and the Royal
Houses of the Maranaos and the indigenous
peoples of the Bangsamoro, there shall be
created a Bangsamoro commission for the
preservation of cultural heritage.
32
This is acceptable because Congress may

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

proceedings of the Bangsamoro are
accessible to citizens outside the
Bangsamoro in Filipino and English.
The Constitution provides that languages
other than Filipino may be recognized as
the countrys official language, recognizes
regional languages as auxilliary official
languages, and provides for the promotion
of Arabic on a voluntary and optional
basis.3
This is acceptable because the thrust is

to preserve the cultural heritage of the
named groups, not grant any title of
royalty or nobility which would violate the
Constitution.
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Article XI, Section 2. Bangsamoro Police.

Police which shall be organized, maintained,
supervised, and utilized for the primary
purpose of law enforcement and
maintenance of peace and order in the
Bangsamoro. It shall be part of the Philippine
National Police.
The Bangsamoro Police shall be professional,
civilian in character, regional in scope,
effective and efficient in law enforcement,
fair and impartial, free from partisan political
control, and accountable under the law for
its actions. It shall be responsible both to the
Central Government and the Bangsamoro
Government, and to the communities it
serves.
Section 5. Bangsamoro Police Board.
There is hereby created a Bangsamoro Police
Board, which shall perform the functions
of the National Police Commission in the
Bangsamoro. The board shall be part of the
National Police Commission (NAPOLCOM).
The NAPOLCOM shall ensure that the
Bangsamoro Police Board performs its
powers and functions within the bounds of
its authority. In addition, it shall perform the
following functions.
Section 15. Defense and Security. - The
defense and security of the Bangsamoro
shall be the responsibility of the Central
Government. The Central Government
may create a Bangsamoro Command of
the Armed Forces of the Philippines for
the Bangsamoro, which shall be organized,
maintained, and utilized in accordance
with national laws. Qualified inhabitants of
the Bangsamoro shall be given preference
for assignments in the said Bangsamoro
Command.
Article XII, Section 6. Revenue Sources.
The Bangsamoro Government shall have the
power to create its own sources of revenues
and to levy taxes, fees, and charges, subject
to the provisions of this law and consistent
with the principles of devolution of powers,
equalization, equity, accountability,
administrative simplicity, harmonization, and
economic efficiency, and fiscal autonomy.
Such taxes, fees, and charges shall accrue
exclusively to the Bangsamoro Government.
This is acceptable because the Constitution

provides that there be one police force,4
which is complied with because the
Bangsamoro Police Force is to be part
of the national police force. Further, the
Bangsamoro Police Board is to be part of the
National Police Commission.
Note that article XI, section 10 of the BBL
explicitly states that appointments to the
Bangsamoro Police Force, depending on
rank, shall be subject to the Civil Service
Commission, the Chief of the Philippine
National Police, the President and/or the
Commission on Appointments.
The BBL is explicit 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 undercuts
allegations that the Bangsamoro Entity is
one step away from becoming a separate
country.
This is acceptable as there are no restrictions
in the Constitution to empowering an
autonomous region to raise its own revenues
and levy its own taxes. Such power is in fact
explicitly granted to local government units
in article X, section 5 of the Constitution.
Further, nothing in the Constitution restricts
sharing of tax revenue with an autonomous
region or local government unit, which is
described in the rest of the BBLs Article XII.
33
Article XIII, Section 8. Natural Resources,

Nature Reserves and Protected Areas.
The Bangsamoro Government shall have
the authority, power, and right to explore,
develop and utilize the natural resources,
including surface and sub-surface rights,
inland waters, coastal waters, and renewable
and non-renewable resources in the
Bangsamoro.
Article XVII, Section 1. Amendments and

Revisions. All proposals to amend or revise
the provisions of this Basic Law shall be first
discussed and endorsed by the Philippine
Congress-Bangsamoro Parliament Forum to
Congress.
Such amendment or revision, as enacted
by Congress, shall become effective upon
approval by a majority vote of qualified
voters in the Bangsamoro cast in a plebiscite
called for the purpose.
This neither violates the Regalian doctrine

nor asserts that the Philippine State no
longer owns the natural resources within
the Bangsamoro Entity. As a legitimate
political subdivision of the Philippines, the
Bangsamoro Entity may be authorized to
develop the resources within its assigned
territory.
Further, similar power has been granted by
Congress to indigenous peoples under the
Indigenous Peoples Rights Act.5
Article XVII of the BBL will have to be

treated as a recommendation to Congress
because the Constitution does not state
that amendments to an autonomous
regions organic law must be approved by
plebiscite within the autonomous region.6
Nothing stops Congress from respecting the
recommended extra step of a plebiscite,
however.
CONCLUSION
After considering the broadest objections against the BBL such as how it allegedly
imbues the proposed Bangsamoro Entity with all the requisites of a state and taking a broad
view that would prohibit a feature of the BBL only if there is an explicit constitutional
provision or cardinal postulate of constitutional or international law violated, it is fairly
straightforward to dismiss such broad objections and more specific section-level objections
in favor of allowing a political experiment when it is not explicitly prohibited. From the
above table, any adjustments that might be made to address such explicit prohibitions
are minor and straightforward, such as clarifying the use of international law terms such
as self-governance to specifically refer to the context of internal self-determination, or
clarifying that the plebiscite to ratify amendments to the BBL is a policy recommendation
only.
It must be stressed that the BBL continues to represent the best hope for lasting peace
in Mindanao and is a matter of historical imperative to give the Moro people of the
Philippines their due. As one of the co-authors of this paper stated in 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
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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
G.R. No. 88435, Jan. 16, 2002.

const. art. VI, 5(4).
const. art. XIV, 7.
const. art. XVI, 6.
Rep. Act No. 3491 7 (1997).
const. art. X, 18.
18
Pacifico Agabin, unpublished manuscript submitted for publication by the UP College of Law.
35
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)
Sedfrey M. Candelaria*
I.
INTRODUCTION
A. Peace Processes and Peace Agreements, In General1

Peace processes, which often culminate in the adoption of agreements, have been
used traditionally in international law to end armed conflicts. The form within which
negotiated settlements have been contained are primarily up to the negotiating parties to
determine. However, the legal characterization of these agreements are independently
and objectively governed by a set of rules either under the municipal legal system or at
the level of international law.
A peace treaty is an agreement or contract made by belligerent powers, in which
they agree to lay down their arms, and by which they stipulate the conditions of peace
and regulate the manner in which it is to be restored and supported.2 Apart from being a
source of international obligations, treaties have been utilized at a national level to transfer
territory, settle disputes, protect human rights, and regulate commercial relations.3
Peace agreements, as presently applied, are often used as a mode to end hostilities
between a state and a non-state entity due to secessionist struggles or problems. This is
especially so at a time when non-state entities are standing firm in their demands for selfdetermination as they incessantly fight for independence.
Self-determination is closely intertwined with the right to independence. At present,
self-determination has come to mean one of three things:
(1) independence for new states emerging from the collapse of
communism (e.g., Ukraine or Slovenia);
(2) independence for homogenous sub-units within nation-states (e.g.,
Quebec or Eritrea); or
(3) greater internal autonomy for smaller identity groups within existing
states (e.g., Aaland Islands under Finland or Faeroe Islands under
Denmark).4
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).
BLacks Law dIctIonaRy 1502 (6th ed. 1990).
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).
the ibp JourNal
Comparative Analysis of the Memorandum of Agreement on the

Ancestral Domain Aspect on the GRP-MILF Tripoli Agreement on
Peace of 2011 and Framework Agreement on the Bangsamoro
In international law, an entitys right to self-determination covers two important

rights:
(1) the right to freely determine their political status and freely pursue
their economic, social and cultural development; and
(2) the right to freely dispose of the natural wealth and resources for
their own ends without prejudice to any obligations arising out of
international cooperation.5
Self-determination is supported by international law and embodied in international
instruments such as the Charter of the United Nations, the International Covenant on
Civil and Political Rights, and the International Covenant on Economic, Social and
Cultural Rights. The great urge of peoples to determine their own economic, social, and
cultural development causes opposition or hostilities within a state or nation. Therefore,
peace agreements are relevant, particularly at the national level, in trying to resolve these
hostilities.
Most peace agreements have one common feature they are used as a means to
an end, which is to attain peace, by leading towards building a positive momentum for a
final and comprehensive settlement. Peace agreements are generally contracts intended
to end a violent conflict, or to significantly transform a conflict, so that it can be more
constructively addressed.6 There are various types of peace agreements, each with their
own distinct purpose.
The United Nations uses the following classifications to differentiate the various types
of peace agreements:
Ceasefire Agreements These typically short-lived agreements are
military in nature and are used to temporarily stop a war or any armed
conflict for an agreed-upon timeframe or within a limited area.7
Pre-Negotiation Agreements These agreements define how the
peace will be negotiated and serve to structure negotiations and keep
them on track in order to reach its goal of ending the conflict.8
Interim or Preliminary Agreements These agreements are
undertaken as an initial step toward conducting future negotiations,
usually seen as commitments to reach a negotiated settlement.9
Comprehensive and Framework Agreements Framework
Agreements are agreements which broadly agree upon the principles
and agenda upon which the substantive issues will be negotiated and
are usually accompanied by Comprehensive Agreements which address
5
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
Nita Yawanarajah & Julian Ouellet, Peace Agreements, available at http://www.beyondintractability.org/essay/

structuring_peace_agree/ (last accessed Sep. 3, 2008).
Id.
Id.
Id.
37
the substance of the underlying issues of a dispute, seeking to find the

common ground between the interests and needs of the parties to the
conflict, and resolve the substantive issues in dispute.10
Implementation Agreements These agreements elaborate on the
details of a Comprehensive or Framework Agreement to facilitate the
implementation of the comprehensive agreement.11
As to its components, most peace agreements address three main concerns: procedure,
substance, and organization.12 The procedural components provide for the methods that
establish and maintain peace such that they delineate the how of a peace process.13 These
include the setting up of schedules and institutions that facilitate the implementation
of substantive issues such as elections, justice, human rights and disarmament.14 The
substantive components provide for the changes to be made after the peace agreement
is reached such as political, economic, and social structural changes that are needed
to remedy past grievances and provide for a more fair and equitable future.15 The
organizational or institutional components are mechanisms intended to promote the
peace consolidation efforts16 such that they address the who aspect of the agreement.17
The components of peace agreements are illustrated in the following:
Subjects
North Korea & South Korea
38
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
Procedure
Substance
The leaders of North Korea

and South Korea agreed
to set up the first regular
freight train service for half
a century, linking the two
countries divided by a heavily
fortified border.1
Both parties agree to formally

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

meetings with the ministers
and defense officials, and
to establish a cooperation
zone around a contested sea
border on the west of the
Korean peninsula.2
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Indonesian Government &

Rebels from the Free Aceh
Movement
Nepalese Government &

Nepal Maoists
There was disarmament by

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

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

by the Maoist Combatants,
monitored by the United
Nations, as well as by the
Nepali Army.10 Both parties
also agreed to form a
transitional
government
and to hold elections for
a constituent assembly to
establish a new constitution
and governmental system.11
A Comprehensive Peace
Agreement was signed by the
Chairman of the Communist
Party of Nepal and the Prime
Minister of Nepal to end 11
years of civil war.12
The agreement provided for
the progressive restructuring
of the state to resolve existing
problems in the country,
based on class, caste, religion
and sex.13
It can be gleaned then that although the main goal of peace agreements is to achieve
peace or to end hostilities between or among parties, each and every peace agreement
varies as to its procedural and substantive components. Peace agreements adopt various
measures in addressing their own respective dilemmas and each has its own distinct way
of enabling the parties involved in the agreement to cooperate and comply with the
agreed terms to ensure the success of the measures adopted.
B. Current Challenges to On-going Peace Process in a Philippine Context
In an armed conflict with secessionist undertones, the form and content of a peace
agreement are crucial in terms of its eventual implementation at the domestic level where
the arena of the armed conflicts is in place. As a matter of fact the success of a peace
settlement is measured not only in the signing of the peace agreement by the negotiating
parties, but, more importantly, when accepted by the public at large.
39
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
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Constitution.
III.
ON OUTLINE OF THE MOA-AD AND FAB
MOA-AD
FAB
Terms of Reference
Concepts and Principles
Territory
Resources
Governance
Establishment of the Bangsamoro

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

Agreement for Cessation of Hostilities

dated July 18, 1997
General Framework of Agreement of
Intent dated August 27, 1998
Agreement on General Framework
for Resumption of Peace Talks dated
March 24, 2001
FAB
(no counterpart)
41
Tripoli Agreement dated June 22, 2001

between GRP and MILF
Tripoli Agreement dated December
23, 1976 and the Final Agreement
on the Implementation of the 1976
Tripoli Agreement dated September 2,
1996 between GRP and MNLF
R.A. No. 6734, as amended by R.A.
No. 9054 (ARMM Law)
ILO Convention No. 169
UN Declaration on the Rights of the
Indigenous Peoples
R.A. No. 8371 (IPRA)
U.N. Charter
UN Universal Declaration on Human
Rights
International Humanitarian Law (IHL)
Internationally recognized human
rights instruments
Compact rights entrenchment from
regime of dar-ul-mua hada (territory
under compact)
Compact rights entrenchment from
regime of dar-ul-sulh (territory under
peace agreement)
Treaty as solemn agreement in
writing that sets out understandings,
obligations, and benefits for both
parties
(no counterpart)
Commentary:
The FAB does not contain a set of Terms of Reference (TOR) at all. One can
only surmise that after the decision of the Supreme Court on the MOA-AD, the present
Government Peace Panel had taken extra precaution to avoid internationalizing the
agreement by declaring, through the direct pronouncement of the President himself, that
the FAB should be within the framework of the Constitution.
An examination of the TOR of the MOA-AD shows citations of ILO 169, UNDRIP,
U.N. Charter, Universal Declaration of Human Rights, International Humanitarian Law
and internationally recognized human rights. The Philippines is a party to all these
international instruments and, therefore, the enumeration merely confirms adherence
to our legal commitments. Besides, the doctrine of incorporation, as treated in the case
of 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
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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
subject-object dichotomies.23
The Philippine Supreme Court in the MOA-AD judgment had strictly applied the
subject-object dichotomy by declaring the MOA-AD as a non-treaty instrument using the
VCLT definition.
V.
ON CONCEPTS AND PRINCIPLES
A. Bangsamoro
MOA-AD

FAB
Bangsamoros:
Moros
Indigenous Peoples

Bangsamoro People:
Natives or original inhabitants
of Mindanao and its adjacent
islands including Palawan and the
Sulu archipelago at the time of
conquest and their descendants
Freedom of choice of the

Indigenous Peoples
I.5. Bangsamoro identity:

Natives or original inhabitants of
Mindanao and the Sulu archipelago
and its adjacent islands including
Palawan, and their descendants
whether of mixed or of full blood
with right to identify themselves
as Bangsamoro by ascription or
self-ascription. Spouses and their
descendants as Bangsamoro.
I.5. Freedom of choice of other
Indigenous Peoples.
VI.3 Indigenous Peoples rights
respected.
Commentary:
The differences in the description of Bangsamoro are as follows: (1) MOA-AD
enumerated Moros and Indigenous Peoples as Bangsamoros; (2) FAB used the term
Bangsamoro identity; (3) while both MOA-AD and FAB retained the identical reference
to natives or original inhabitants in Mindanao and adjacent islands, FAB further extended
coverage to descendants, whether of mixed or full blood with right to identify themselves
as Bangsamoro or self-ascription; and, (4) FAB included spouses and their descendants
as Bangsamoro.
It appears that the FAB derived the IPRA concept of self-ascription to identify the
Bangsamoro people. Section 3(h) of IPRA states:
(h) Indigenous Cultural Communities/Indigenous Peoples refer to a
23
44
Id., pp. 129-135.
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group of people or homogenous societies identified by self-ascription and

ascription by others, x x x
The freedom of choice of Indigenous Peoples while conceptually identical requires
a closer examination when FAB used the term other Indigenous Peoples. The latter
contemplates presumably the lumads of Mindanao currently settled within the ARMM
and adjacent islands identified as part of the Bangsamoro as the New Autonomous
Political Entity (NPE).
B. Ancestral Domain
MOA-AD

Ownership of homeland vested

exclusively in them by virtue of prior
rights of occupation that had inhered
in them as sizeable bodies of people,
delimited by their ancestors since
time immemorial, and being the
first politically organized dominant
occupants.
Ancestral domain
not part of public domain
native title inclusive of ancestral,
communal, customary lands,
maritime, fluvial and alluvial
domains and all natural
resources.
IPRA definition of ancestral domain

and ancestral land.
Right to self-governance derived

historically under the Suzerain
authority of the sultanates and the Pat
a Pangampong ku Ranaw.
Sultanates as states or Karajaan/
Kadatuan with elements of
nation-state
First Nation
Entered into treaties of amity and
commerce
Respect for ones identity and parity

of esteem of everyone in the political
community.
Vested property rights recognized.
FAB
VI.2. Vested property rights

recognized.
45
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
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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
lands, inland waters, coastal areas, and natural resources

therein, held under a claim of ownership, occupied or
possessed by ICCs/IPs, themselves or through their
ancestors, communally or individually since time
immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by
force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by
government and private individuals, corporations, and
which are necessary to ensure their economic, social
and cultural welfare. It shall include ancestral land,
forests, pasture, residential, agricultural and other lands
individually owned whether alienable and disposable
or otherwise, hunting grounds, burial grounds, worship
areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively
occupied by ICCs/IPs but from which they traditionally
had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs
who are still nomadic and/or shifting cultivators;
b) Ancestral Lands Subject to Section 56 hereof, refers
to land occupied, possessed and utilized by individuals,
families and clans who are members of the ICCs/IPs
since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or
traditional group ownership, continuously, to the present
except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence
of government projects and other voluntary dealings
entered into by government and private individuals/
corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden
farms and tree lots;
x x x.
4. Right to Self-Governance
The Bangsamoro peoples right to self-governance is expressly provided in the MOAAD, particularly under Concepts and Principles:
4. Both Parties acknowledge that the right to self-governance of the
Bangsamoro people is rooted on ancestral territoriality exercised
originally under the suzerain authority of their sultanates and the Pat a
Pangampong ku Ranaw. x x x.
The right to self-governance is not a new and unique concept in the Philippine legal
history. Under the IPRA, the legislature explicitly recognized the right to self-governance
48
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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
Assembly of First Nations and Aboriginal Studies Glossary; http://www.education.gov.ab.ca/FNMI/

fnmiPolicy//Glossary .asp.
26
See MOA-AD, Concepts and Principles, No. 4.
49
establish a system of governance suitable and acceptable to them as a

distinct dominant people. For this purpose, the treaty rights emanating
from the principles of territorial treaty regime or territory under peace
agreement as are consistent with internationally recognized humanitarian
laws and human rights instruments shall entitle them to fully determine
their future political status by popular consultation. (Underscoring supplied)
The ultimate objective of entrenching the Bangsamoro homeland is analogous to the
declared state policy under the IPRA. Thus:
Section 2. Declaration of State Policies. The State shall recognize and
promote all the rights of Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) hereunder enumerated within the framework of the
Constitution:
a) The State shall recognize and promote the rights of
ICCs/IPs within the framework of national unity and
development;
b) The State shall protect the rights of ICCs/IPs to their
ancestral domains to ensure their economic, social and
cultural well being and shall recognize the applicability
of customary laws governing property rights or relations
in determining the ownership and extent of ancestral
domain;
c) The State shall recognize, respect and protect the rights
of ICCs/IPs to preserve and develop their cultures,
traditions and institutions. It shall consider these rights
in the formulation of national laws and policies;
d) The State shall guarantee that members of the ICCs/
IPs regardless of sex, shall equally enjoy the full measure
of human rights and freedoms without distinctions or
discriminations;
e) The State shall take measures, with the participation
of the ICCs/IPs concerned, to protect their rights and
guarantee respect for their cultural integrity, and to
ensure that members of the ICCs/IPs benefit on an
equal footing from the rights and opportunities which
national laws and regulations grant to other members of
the population; and
f)
50
The State recognizes its obligations to respond to the

strong expression of the ICCs/IPs for cultural integrity
by assuring maximum ICC/IP participation in the
direction of education, health, as well as other services
of ICCs/IPs, in order to render such services more
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responsive to the needs and desires of these communities.

Towards these ends, the State shall institute and establish the necessary
mechanisms to enforce and guarantee the realization of these rights,
taking into consideration their customs, traditions, values, beliefs, their
rights to their ancestral domains.
The use of the term treaty rights in the above-quoted provision of the MOA-AD
may be justified in light of our comment on the meaning of treaty in the context of this
peace agreement.
7. Authority and Jurisdiction Over Ancestral Domain and Ancestral Land
Under Concepts and Principles, the MOA-AD states that the BJE shall have
authority and jurisdiction over ancestral domain and ancestral lands:
6. Both Parties agree that the Bangsamoro Juridical Entity (BJE)
shall have the authority and jurisdiction over the Ancestral Domain
and Ancestral lands, including both alienable and non-alienable lands
encompassed within their homeland and ancestral territory, as well as
the delineation of ancestral domain/lands of the Bangsamoro people
located therein.
The grant of authority and jurisdiction over ancestral domains and ancestral land to
the Bangsamoro people is justifiable as it is similar to the rights of indigenous peoples to
their ancestral domains and ancestral lands under Sections 7 and 8 of the IPRA:
Section 7. Rights to Ancestral Domains. The rights of ownership and
possession of ICCs/IPs to their ancestral domains shall be recognized
and protected. Such rights shall include:
a. Rights of Ownership The right to claim ownership
over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting
and fishing grounds, and all improvements made by
them at any time within the domains;
b. Right to Develop Lands and Natural Resources Subject
to Section 56 hereof, right to develop, control and use
lands and territories traditionally occupied, owned,
or used; to manage and conserve natural resources
within the territories and uphold the responsibilities for
future generations; to benefit and share the profits from
allocation and utilization of the natural resources found
therein; the right to negotiate the terms and conditions
for the exploration of natural resources in the areas
for the purpose of ensuring ecological, environmental
protection and the conservation measures, pursuant to
national and customary laws; the right to an informed
and intelligent participation in the formulation and
51
implementation of any project, government or private,

that will affect or impact upon the ancestral domains and
to receive just and fair compensation for any damages
which they sustain as a result of the project; and the
right to effective measures by the government to prevent
any interference with, alienation and encroachment
upon these rights;
c. Right to Stay in the Territories The right to stay in the
territory and not be removed therefrom. No ICCs/IPs
will be relocated without their free and prior informed
consent, nor through any means other than eminent
domain. Where relocation is considered necessary as
an exceptional measure, such relocation shall take place
only with the free and prior informed consent of the
ICCs/IPs concerned and whenever possible, they shall
be guaranteed the right to return to their ancestral
domains, as soon as the grounds for relocation cease to
exist. When such return is not possible, as determined by
agreement or through appropriate procedures, ICCs/
IPs shall be provided in all possible cases with lands
of quality and legal status at least equal to that of the
land previously occupied by them, suitable to provide
for their present needs and future development. Persons
thus relocated shall likewise be fully compensated for
any resulting loss or injury;
d. Right in Case of Displacement In case displacement
occurs as a result of natural catastrophes, the State shall
endeavor to resettle the displaced ICCs/IPs in suitable
areas where they can have temporary life support
system: Provided, that the displaced ICCs/IPs shall have
the right to return to their abandoned lands until such
time that the normalcy and safety of such lands shall
be determined: Provided, further, That should their
ancestral domain cease to exist and normalcy and safety
of the previous settlements are not possible, displaced
ICCs/IPs shall enjoy security of tenure over lands to
which they have been resettled: Provided, furthermore,
That basic services and livelihood shall be provided to
them to ensure that their needs are adequately addressed:
e. Right to Regulate Entry of Migrants Right to regulate
the entry of migrant settlers and organizations into the
domains;
f.
52
Right to Safe and Clean Air and Water For this

purpose, the ICCs/IPs shall have access to integrated
systems for the management of their inland waters and
air space;
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g. Right to Claim Parts of Reservations The right to

claim parts of the ancestral domains which have been
reserved for various purposes, except those reserved and
intended for common and public welfare and service;
and
h. Right to Resolve Conflict Right to resolve land conflicts
in accordance with customary laws of the area where
the land is located, and only in default thereof shall the
complaints be submitted to amicable settlement and to
the Courts of Justice whenever necessary.
Section 8. Rights to Ancestral Lands. The right of ownership and
possession of the ICCs/IPs, to their ancestral lands shall be recognized
and protected.
a. Right to transfer land/property Such right shall include
the right to transfer land or property rights to/among
members of the same ICCs/IPs, subject to customary
laws and traditions of the community concerned.
b. Right to Redemption In cases where it is shown that
the transfer of land/property rights by virtue of any
agreement or devise, to a non-member of the concerned
ICCs/IPs is tainted by the vitiated consent of the ICCs/
IPs, or is transferred for an unconscionable consideration
or price, the transferor ICC/IP shall have the right to
redeem the same within a period not exceeding fifteen
(15) years from the date of transfer.
8. Vested Rights
The MOA-AD, under Concepts and Principles, provides:
7. Vested property rights upon the entrenchment of the BJE shall
be recognized and respected subject to paragraph 9 of the strand on
Resources.
It is worth stressing the value of including a provision on the recognition of and
respect for vested property rights in the MOA-AD similar to Section 56 of the IPRA, as
follows:
Section 56. Existing Property Rights Regimes. Property rights within
the ancestral domains already existing and/or vested upon effectivity of
this Act, shall be recognized and respected.
It is instructive to note that the FAB dispenses with the references to ancestral domain
but retained the concept of vested property rights.
53
C. Rights
MOA-AD
FAB

Protection of civil rights and religious

liberties.
V. Collective democratic rights of

constituents in Bangsamoro shall be
recognized in Bangsamoro Basic Law.
VI.1. Basic Rights and Freedoms
Life and inviolability of ones
person and dignity;
Freedom and expression of
religion and beliefs;
Privacy;
Freedom of speech;
Express political opinion and
pursue democratically political
aspiration;
Seek constitutional change by
peaceful and legitimate means;
Womens meaningful political
participation, and protection from
all forms of violence;
Freely choose ones place of
residence and the inviolability of
the home;
Equal opportunity and nondiscrimination in social and
economic activity and public
service, regardless of class, creed,
disability, gender and ethnicity;
Establish cultural and religious
associations;
Freedom from religious, ethnic
and sectarian harassment; and
Redress of grievances and due
process of law.
Commentary:
Unlike the MOA-AD, the FAB elaborated on the basic rights and freedoms of the
constituents in the Bangsamoro. Renunciation of any form of violence is guaranteed
through an express reference to constitutional change by peaceful and legitimate means.
The FAB underscores the role of women in the political life of the Bangsamoro.
The classification of basic rights in FAB is indicative of the specific human rights
concerns besetting the region subject of the agreement. However, this is not an exclusive
enumeration but must be viewed in the whole spectrum of rights regime under the
Philippine Constitution and other treaty-based human rights protection mechanisms. As
it is, the FAB regime of rights is a special legal regime which will be interpreted in light
of the specific social, political and economic milieu of the constituents in Bangsamoro.
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D. Entity
MOA-AD

FAB

Bangsamoro Juridical Entity (BJE) as

authority
I.1. Bangsamoro is the New

Autonomous Political Entity (NPE)
Commentary:
There is a marginal distinction between the contemplated entities under both
agreements. It is clear, however, that both agreements intended to replace the existing
Autonomous Region in Muslim Mindanao.
VI.
ON TERRITORY
MOA-AD

Bangsamoro homeland and historic

territory refers to:
land mass
maritime domain
terrestrial domain
fluvial domain
alluvial domain
aerial domain
atmospheric space above
territory
FAB

[note: Governance to be agreed upon

in sections on wealth and power
sharing]

Mindanao territory Sulu Palawan
Agreed Schedules (Categories)
V.5. Territory refers to:

land mass
maritime
terrestrial
fluvial and alluvial domains
aerial domain
atmospheric space above it
I.3. Provinces, cities, municipalities,

barangays and geographic areas within
Bangsamoro as constituent units
with authority to regulate its own
responsibility. Privileges enjoyed by
LGUs shall not be diminished unless
modified pursuant to Bangsamoro
local government code.
55
Core of Bangsamoro Juridical Entity:

ARMM
Lanao del Norte Municipalities of:
Baloi
Munai
Nunungan
Pantar
Tagoloan
Tangkal
[note: These voted for inclusion in

the ARMM during 2001 plebiscite,
inclusive of all other barangays in the
municipalities of Kabacan, Carmen,
Aleosan, Pigkawayan, Pikit, Midsayap]
Cotabato City
Isabela City
All other contiguous areas where
there is a resolution of the local
government unit or a petition
of at least 10 percent of the
qualified voters in the area asking
for their inclusion at least 2
months prior to the conduct of
the ratification of the Bangsamoro
Basic Law and the process of
delimitation of the Bangsamoro.
[note: These voted for inclusion in the

ARMM during 2001 plebiscite.]

plebiscite within 12 months from

signing of MOA-AD in covered areas as
listed in Category A (Annex)
15 months from signing MOA-AD to

finish Comprehensive Compact.
V.1. Core of Bangsamoro Provinces

ARMM
Lanao del Norte Municipalities of:
Baloi
Munai
Nunungan
Pantar
Tagoloan
Tangkal
V.2. International third party

monitoring team to ensure credible
process in V.1.
56
Category B (Special Intervention

Areas) outside BJE but subject of
special socio-economic and cultural
affirmative action not earlier than 25
years from signing of Comprehensive
Compact, pending conduct of
plebiscite to determine the question
of accession to the BJE.
V.3. Option of contiguous areas and

those outside core territory with
substantial populations of Bangsamoro
to be part of the territory upon
petition of at least 10 percent of the
residents and approved by a majority
of qualified voters in a plebiscite.
VI.4. Central Government to protect
Bangsamoro people outside territory
and undertake programs for their
rehabilitation and development.
Category B subject to further

negotiations by the Parties.
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Internal Waters (15 kms. from

coastline of BJE)
BJE with jurisdiction over
management, conservation,
development, protection,
utilization and disposition of all
natural resources living and nonliving.
Territorial Waters (beyond BJE internal
waters up to the Republic of the
Philippines baselines south east and
south west of mainland Mindanao)
Joint jurisdiction, authority and
management over areas and all
natural resources, living, and nonliving
Details in a later agreement
Boundaries of territorial waters
shall stretch beyond the 15-km.
BJE internal waters up to the
Central Governments baselines
under existing laws.
In the southern and eastern
part of the BJE demarcated by
a line drawn from the Maguling
Point, Palimbang, Province of
Sultan Kudarat up to the straight
baselines of the Philippines.
In the northwestern part,
demarcated by a line drawn from
Little Sta. Cruz Island, Zamboanga
City, up to Naris Point, Bataraza,
Palawan.
In the western part of Palawan,
demarcated by a line drawn from
the boundary of Bataraza and
Rizal up to the straight baselines
of the Philippines
Final demarcation determined by
a joint technical body.
V.4. Internal and territorial waters

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

determined in Annexes on Wealth and
Power Sharing.
Sharing of Minerals on Territorial

Waters in favor of BJE through
production sharing or economic
cooperation
all potential source of energy
petroleum in situ
hydrocarbon
natural gas
other minerals
deposits or fields
57
Allowed activities on Territorial

Waters:
exploration and utilization of
natural resources
establishment and use of
artificial islands, installations and
structures
Joint *
marine scientific research
Joint *
protection and preservation of
environment
conservation of living resources
regulation of shipping and fishing
activities
enforcement of police and safety
measures, including interdiction
of the entry and use of the waters
by criminal elements and hot
pursuit of criminal elements.
Regulation and control of
contraband and illegal entry
of prohibited materials and
substances, including smuggling
Others agreed upon mutually
[note: *Exploration and utilization
of non-living resources and marine
research and environmental
protection shall be done jointly
through production-sharing or joint
development agreements.]
58
Joint Commission for implementing

joint management of resources
1 representative each
consensus decision-making
recommendatory
BJE associative governance to cover:

those under proclamation
for agricultural and human
settlements intended for
Bangsamoro people
all alienable and disposable lands
pasture lands
timberlands
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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
59
(the Annex). The Annex constitutes an integral part of

this framework agreement.
x x x.
The conduct of plebiscite under the MOA-AD is analogous to the provisions of
ARMM Law, to wit:
Section 1. Expanded Autonomous Region. (1) The Autonomous
Region in Muslim Mindanao which, under the provisions of Republic
Act No. 6734, the Organic Act for the Autonomous Region in Muslim
Mindanao, is composed of the four provinces of Lanao del Sur,
Maguindanao, Sulu and Tawi-Tawi, is hereby expanded to include the
provinces and cities, enumerated hereunder, which vote favorably to be
included in the expanded area of the autonomous region and for other
purposes, in a plebiscite called for that purpose in accordance with Sec.
18, Article X of the Constitution.
The new area of autonomy shall then be determined by the provinces and
cities that will vote/choose to join the said autonomy. It is understood that
Congress may by law which shall be consistent with the Constitution and
in accordance with the provisions of Republic Act No. 7160, the Local
Government Code of 1991, provide that clusters of contiguous-Muslimdominated municipalities voting in favor of autonomy be merged and
constituted into a new province(s) which shall become part of the new
Autonomous Region.
(2) Plebiscite Coverage. The plebiscite shall be conducted in the provinces
of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur,
Maguindanao, Palawan, Sarangani, South Cotabato, Sultan Kudarat,
Sulu, Tawi-Tawi, Zamboanga del Norte, Zamboanga del Sur and the
newly created Province of Zamboanga Sibugay, and (b) in the cities
of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Kidapawan,
Marawi, Pagadian, Puerto Princesa, Digos, Koronadal, Tacurong and
Zamboanga.
Both MOA-AD and FAB comply with the constitutional requirement of a plebiscite
in areas subject of the core territory.
3. Territorial Waters
The MOA-AD expressly includes a provision on territorial waters under paragraph 2
(g) of the heading Territory, to wit:
2.
Toward this end, the Parties entered into the following
stipulations:
g. Territorial Waters:
(1) The territorial waters of the BJE shall stretch beyond the
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BJE internal waters up to the Republic of the Philippines (RP)

baselines south east and south west of mainland Mindanao.
Beyond the fifteen (15) kilometers internal waters, the Central
Government and the BJE shall exercise joint jurisdiction,
authority and management over areas and [of] all natural
resources, living and non-living contained therein. The details
of such management of the Territorial Waters shall be provided
in an agreement to be entered into by the Parties.
(2) The boundaries of the territorial waters shall stretch beyond
the 15-km. BJE internal waters up to the Central Governments
baselines under existing laws. In the southern and eastern part
of the BJE, it shall be demarcated by a line drawn from the
Maguling Point, Palimbang, Province of Sultan Kudarat up to
the straight baselines of the Philippines. On the northwestern
part, it shall be demarcated by a line drawn from Little Sta. Cruz
Island, Zamboanga City, up to Naris Point, Bataraza, Palawan.
On the western part of Palawan, it shall be demarcated by a
line drawn from the boundary of Bataraza and Rizal up to the
straight baselines of the Philippines.
The final demarcation shall be determined by a joint technical
body composed of duly-designated representatives of both
Parties, in coordination with the appropriate Central Government
agency in accordance with the above guidelines.
The provision on territorial waters of the MOA-AD may be justified under Article
1 of the Constitution on National Territory, the concept of municipal waters under
Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and
the concept of waters within ancestral lands under IPRA. It is submitted that the grant
of territorial waters to the BJE may be allowed considering that it is akin to the grant
of municipal waters to local government units and rights over waters within ancestral
lands of the indigenous peoples, which are culled out from the internal waters of the
Philippines.
For appropriate guidance, the following provisions of the Constitution and other
existing laws are instructive:
Constitution
Article 1-National Territory
The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
61
regardless of their breadth and dimensions, form part of the internal

waters of the Philippines.
Section 2, Article XII National Economy and Patrimony
Section 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water rights
for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and
limit of the grant.
The State shall protect the nations marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for largescale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its execution.
Local Government Code
Section 131. Definition of Terms. When used in this Title, the term:
xxx
(r) Municipal Waters includes not only streams, lakes, and tidal waters
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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:
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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
65
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

66
BJE authority over natural resources

land use
development
conservation
disposition
FAB

IV.2. Bangsamoro Basic Law power

to create own sources of revenue
and to levy taxes, fees, and charges,
including power to determine tax
bases and tax rates.
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BJE may enter into joint development

of natural resources designed as
commons or shaped resources.
Bangsamoro People appropriate

juridical entity authority over
natural resources within its territorial
jurisdiction
develop ancestral domain
protect environment
develop natural resources in
ancestral domain or enter into
joint development on strategic
minerals designated as commons
or shared resources
revoke or grant concessions,
timber license, contracts for
utilization of natural resources
designated as commons,
mechanisms for economic
cooperation with respect to
strategic minerals
enact agrarian laws over ancestral
land
BJE and Central Government wealthsharing

mutually agreed percentage ratio
in favor of the BJE from revenues
derived from development of any
resources for the benefit of the
Bangsamoro people.
BJE authority to enter into trade

relations with foreign countries and to
open trade missions.
Central Government in charge of

external defense.
IV.8. Intergovernmental body to be

created by Bangsamoro legislative
body to ensure harmonization of
environmental and development plans
composed of representatives from
Bangsamoro and Central Government.
IV.4. Bangsamoro to have a just

and equitable share in revenues for
exploration, development or utilization
of natural resources in all areas
within jurisdiction of Bangsamoro in
accordance with formula agreed upon
by the Parties.
IV. 6. See Annex on Revenue

Generation and Wealth Sharing, July
13, 2013.
IV.3. Bangsamoro authority to receive

grants and donations from domestic
and foreign sources, and block grants
and subsidies from the Central
Government, including authority to
contract loans from domestic and
foreign lending institutions (except
those requiring sovereign guaranty,
which would require the approval of
the Central Government).
67
Participation in international
meetings, Philippine official missions
engaged in negotiation of border
agreements for environmental
protection, equitable sharing of
revenues in the areas of sea and
bodies of water adjacent to or
between islands forming part of the
ancestral domain.
Strategic resources operations subject

to Central Government direction in
times of national emergency.
BJE share 75:25 in favor of BJE from

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

royalties, bonuses, taxes, charges,
custom duties, imposts on natural
resources and mineral resources.
Reparation to Bangsamoro people for

unjust dispossession of territorial and
proprietary rights.
Annex on Revenue Generation and

Wealth Sharing
VI.2. Legitimate grievances arising

from unjust dispossession of territorial
and proprietary rights subject of
reparation
VIII.2. Program on transitional justice.
Proclamations over natural forests and

watersheds to remain until modified
by BJE.
Land tenure instruments issues

(e.g. MPSA, IFMA, concessions) by
Government and ARMM to remain
unless modified by BJE.

68
Establishment of 5-member BJE

economic-export mission for the
conduct of BJEs associative parallel
relationships.
Third Party Facilitator to invite

international development agencies
to appoint 2 members and designate
1 as Chairperson for the Mission; BJE
to designate 1 Co-Chairman while
2 members designated by Central
Government and BJE.
IV.7. Intergovernmental fiscal policy

board composed of representatives
from Bangsamoro and Central
Government to address revenue
imbalances and fluctuations in
regional financial needs and revenueraising capacity. Once full fiscal
autonomy is achieved by Bangsamoro,
Central Government representative
may no longer be necessary.
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IV.5. Bangsamoro auditing body to be

created without prejudice to power
of national COA over accounts of
government instrumentality, including
GOCCs.
Commentary:
1. Authority Over Natural Resources
Paragraph 1 under Resources of the MOA-AD provides, among others, that (t)
he Bangsamoro juridical entity is empowered with authority and responsibility for the
land use, development, conservation and disposition of the natural resources within the
homeland.
Furthermore, the MOA-AD, as provided in its Paragraph 2 under Resources,
states that The Bangsamoro People through their appropriate juridical entity shall,
among others, exercise power or authority over the natural resources within its territorial
jurisdiction: x x x.
This provision is consistent with the constitutional framework for allowing Autonomous
Regions to legislate on ancestral domain and natural resources, particularly Section 20,
Article X of the 1987 Philippine Constitution:
Section 20. Within its territorial jurisdiction and subject to the provisions
of this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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)
The foregoing constitutional mandate is reflected in Section 7, Article III of the

ARMM Law:
Section 8. Regional Government Authority Over Natural Resources.
Subject to the provisions of the Constitution and this Organic Act,
the Regional Government shall have the authority, power and right to
69
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;
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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
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
71
granted by the central government or national government or by the

Regional Government as of the date of the approval of this Organic Act,
are hereby cancelled, nullified and voided, and shall not be renewed until
thirty (30) years after the approval of this Organic Act. x x x.
4. Right to Enact Agrarian Law
The MOA-AD, particularly under the Resources heading, likewise states that the
Bangsamoro people shall have the power to enact agrarian laws:
2. The Bangsamoro People through their appropriate juridical entity
shall, among others, exercise power or authority over the natural
resources within its territorial jurisdiction:
xxx
e. To enact agrarian laws and programs suitable to
the special circumstances of the Bangsamoro people
prevailing in their ancestral lands within the established
territorial boundaries of the Bangsamoro homeland
and ancestral territory within the competence of the
Bangsamoro juridical entity; x x x.
This right is clearly granted to the autonomous regions, under Section 8, Article X of
the ARMM Law, as follows:
Section 8. Regional Land Reform. Subject to the provisions of the
Constitution, the Regional Assembly may enact an agrarian reform
law suitable to the special circumstances prevailing in the autonomous
region.
5. Strategic Minerals
The wording on the right over strategic minerals provided in paragraph 5 of the
heading Resources of the MOA-AD reads:
5. Jurisdiction and control over, and the right of exploring for, exploiting,
producing and obtaining all potential sources of energy, petroleum, in
situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore,
is vested in the Bangsamoro juridical entity as the party having control
within its territorial jurisdiction, provided that in times of national
emergency, when public interest so requires, the Central Government
may, during the emergency, for a fixed period and under reasonable
terms as may be agreed by both Parties, temporarily assume or direct the
operations of such strategic resources.
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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
73
or adequate reparation collectively beneficial to the Bangsamoro people,

in such quality, quantity and status to be determined mutually by both
Parties.
The foregoing right is analogous to the indigenous peoples right to stay in their
territories. Thus, under Section 7(c) of the IPRA:
Section 7. Rights to Ancestral Domains. The rights of ownership and
xxx
c. Right to Stay in the Territories The right to stay in the
territory and not be removed therefrom. No ICCs/IPs
will be relocated without their free and prior informed
consent, nor through any means other than eminent
domain. Where relocation is considered necessary as
an exceptional measure, such relocation shall take place
only with the free and prior informed consent of the
ICCs/IPs concerned and whenever possible, they shall
be guaranteed the right to return to their ancestral
domains, as soon as the grounds for relocation cease to
exist. When such return is not possible, as determined by
agreement or through appropriate procedures, ICCs/
IPs shall be provided in all possible cases with lands
of quality and legal status at least equal to that of the
land previously occupied by them, suitable to provide
for their present needs and future development. Persons
thus relocated shall likewise be fully compensated for
any resulting loss or injury;
x x x.
The FAB similarly recognizes the concept of reparation for legitimate grievances
arising from unjust dispossession of territorial and proprietary rights of the Bangsamoro
and aims to implement a program on transitional justice.
VIII.
MOA-AD

74
ON GOVERNANCE
FAB
Consultations with Bangsamoro

people to resolve conflict
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Secure identity and posterity
Protect property rights
System of governance suitable to

a distinct dominant people with
freedom of choice of Indigenous
Peoples
Multinational third-party to monitor

implementation of Comprehensive
Compact
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
Entrenchment is the creation of

a process of institution building
to exercise shared authority over
territory and defined functions of
associative character.
Deferral of modalities of governance

to settle outstanding political issues
after MOA-AD signing.
Basic Law of BJE to contain institutions

for governance in a Comprehensive
Compact.
II.3. Basic Law reflects Bangsamoro life

and meets internationally accepted
standards.
I.4. Asymmetric relationship
III.1. Central Government with

reserved powers; Bangsamoro with
exclusive powers; shared concurrent
powers; (Annex on Power-Sharing).
II. Basic Law ... consistent with all

agreements of the Parties.
II.4. Formulated by Bangsamoro and

ratified within its territory.
Compliance with associative

arrangements upon entry into force of
Comprehensive Compact.
75
VII. Transition and Implementation

Annex on Transitional
Arrangements and Modalities
(VII.2.) February 27, 2013
E.O. to create Transition
Commission (TC) with
Congressional Resolutions (VII.3.)
TC to draft Basic Law (VII.4.a.) and
certified urgent (VII.7.)
TC to work on proposals to
amend Philippine Constitution for
the purpose of accommodating
and entrenching in the
Constitution the agreements of
the Parties whenever necessary
without derogating from any prior
peace agreements (VII.4.b.)
TC to coordinate development
agreements (VII.4.c.)
7 members selected by GPH and
8, including Chairman, selected by
MILF (VII.5.)
Basic Law to create Bangsamoro
Transition Authority (BTA)
rendering ARMM abolished
(VII.8.)
BTA during interim period to
give rise to ministerial form and
Cabinet system (VII.9.)
BTA replaced in 2016 by
Bangsamoro Government
upon assumption of Legislative
Assembly (VII.10.)
Third party monitor composed of
international bodies (VII.1112.)
I.2. Ministerial form under an electoral

system contained in the Bangsamoro
Basic Law to be implemented through
legislation enacted by the Bangsamoro
Government and correlated with
national laws.
III.2. Central Government powers:

defense and external security
foreign policy
common market and global trade
coinage and monetary policy
citizenship and naturalization
postal service
Mechanisms for implementation

of MOA-AD to be spelt out in
Any provisions of the MOA-AD

requiring amendments to the existing
legal framework shall come into force
upon signing of a Comprehensive
Compact and upon effecting the
necessary changes to the legal
framework with due regard to non
derogation of prior agreements and
within the stipulated timeframe to
be contained in the Comprehensive
Compact.
76
Institutions to be built by BJE:

civil service
electoral
financial and banking
education
legislation
legal
economic
police and internal security force
judicial system
correctional institutions
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Details of agreed consensus points

on Governance to be discussed in
negotiations of the Comprehensive
Compact.
III.3. Bangsamoro powers

Shariah justice system applies
only to Muslims
III.4. Bangsamoro Basic Law may

provide for the power of the
Bangsamoro Government to accredit
halal-certifying bodies in the
Bangsamoro.
III.5. Bangsamoro Basic Law to provide

justice system; including improving
local civil courts and ADR.
III.6. Recognition of indigenous

processes as ADR.
VIII. 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.)
IX.1. No unilateral implementation
IX.2. Complete Comprehensive

Compact by end of 2012.
77
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
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
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xxx
4.
The functions of the Transition Commission are as follows:

xxx
b. To work on proposals to amend the Philippine
Constitution for the purpose of accommodating and
entrenching in the constitution the agreements of the
parties whenever necessary without derogating from any
prior peace agreements;
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
North Korea and South Korea Peace Agreement, available at http://warsigns.

isins.com/2007/10/04/north-korea-and-south-korea-peaceagreement/(last
accessed Sep. 3, 2008).
Id.
Id.
Id.
British Broadcasting Corporation, Aceh Rebels Sign Peace Agreement, available
at http://news.bbc.co.uk/1/hi/world/asia-pacific/4151980.stm (last accessed
Sep. 3, 2008).
Id.
79
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.
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SB No. 2408: The Proposed Bangsamoro Basic Law
StatemeNt oN Sb No. 2408

the propoSeD baNgSamoro baSic law (propoSeD bbl)
Florentino P. Feliciano*
1. The Proposed Bangsamoro Basic Law is not just a piece of proposed legislation by
the Congress of the Philippines. This Proposed BBL also constitutes the so-called
Comprehensive Agreement on the Bangsamoro between the Government of the
Republic of the Philippines (GROP) and the Moro Islamic Liberation Front (MILF).
It purports, in other words, to be the result of prolonged negotiations for peace 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
*
Associate Justice (Ret.), Supreme Court of the Philippines.
81
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.
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A Struggle for Peace Under the Regime of the Constitution
a Struggle for peace uNDer the

regime of the coNStitutioN*
Pablo P. Garcia**
i.
the firSt formiDable aND iNSurmouNtable obStacle the total

abSeNce iN the coNStitutioN of coNgreSSioNal authority aND
competeNce to create the New baNgSomoro political eNtity.
1. The Constitution has authorized and recognized only Five (5) Territorial
and Political Subdivisions or Local Government Units of the Republic of the
Philippines, namely: (a) provinces, (b) cities, (c) municipalities, (d) barangays and
(e) autonomous regions.
Section 1, Article X- LOCAL GOVERNMENTS of the Constitution
provides:
Section 1. The territorial and political subdivisions
of the Republic of the Philippines are the provinces,
cities, municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided {Emphasis
supplied].
It will be noted that nowhere in Section 1 or in the other Sections of
Article X referred to in as hereinafter provided is there any mention
of any other political entity, much less, the Bangsamoro, which may be
authorized and recorgnized as a component Local Government Unit
(LGU) of the Republic of the Philippines.
To carry out the Constitutions mandate to create the autonomous
regions in Muslim Mindanao and in the Cordilleras, the Constitution
tasked the first Congress elected under the 1987 Constitution to pass the
Organic Acts for the two (2) autonomous regions, within eighteen (18)
months from the organization of both Houses of Congress. Thus,
Section 19. The first Congress elected under this
Constitution shall, within eighteen months from the
time of organization of both Houses, pass the Organic
Acts for the autonomous regions in Muslim Mindanao
and the Cordilleras.
The first Congress elected under the 1987 Constitution, which was
actually the 8th Congress as reckoned from Philippine Independence in
1946, served from 1987 to 1992. I was privileged to be a Member of the
8th Congress.
It should be noted also that the Constitution is very specific: only the
Delivered as a statement before the Senate Joint Committees on Constitutional Amendment and Codification
of Laws, Peace and Reconciliation and Local Governments on February 23, 2015; title supplied by Editors.
**
Former Cebu Governor and Congressman
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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.
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Commissioner
Bernas
may
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FR. BERNAS. Is it then the sense of the Committee

that besides recognizing the Cordilleras and Muslim
Mindanao as autonomous regions, Congress is
prohibited from creating other autonomous
regions?
MR. NOLLEDO. Yes, Madam President. I said that we
are adopting the Rodrigo observation during the caucus
that if there should be other regions aside from
Muslim Mindanao and the Cordilleras which
would like to create themselves into autonomous
regions, they should seek a constitutional
amendment.
FR. BERNAS. They should seek a constitutional
amendment?
MR. NOLLEDO. Yes, Madam President.
THE PRESIDENT. The body is now ready to vote on
the amendment. (Vol. III, Records, p. 373; emphasis supplied).
Commissioner Nolledo was the Chairman of the Committee on Local
Governments.
ii.
the baNgSamoro political eNtity (bpe) iS a total StraNger to

the coNStitutioN. it woulD be a New legiSlative creatioN, that
iS vaStly DiffereNt aND DiStiNct from aND far more powerful thaN
the autoNomouS regioN iN muSlim miNDaNao or the armm.
1. For example, on being more powerful: Under R.A. No. 6734, the powers
granted to the ARMM are those which are within the framework of the
Constitution and the national sovereignty as well and the territorial
integrity of the Republic of the Philippines. And, under Section 20 of
Article X of the Constitution, the legislative power of the ARMM is subject to
the provisions of the Constitution and national laws.
Unbelievably, under the proposed Bangsamoro Basic Law, the
Bangsamoro Political Entity or BPE is granted powers that are on
parity or CONCURRENT with the Central Government of the
Republic of the Philippines (Section 2, Article V).
And what is shocking and imponderable is that in addition, the
BPE is granted EXCLUSIVE POWERS, which it can exercise to
the exclusion of the Central Government of the Republic of the
Philippines (Sections 3 & 4 of Article V). There are 14 subject-matters
under Section 2 for concurrent powers and more than 75 subject-matters
under Sections 3 & 4 for exclusive powers.
And since the powers of the Bangsamoro Political Entity will be exercised
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Pablo P. Garcia
by the Bangsamoro Parliament which is to be created by Congress, in

effect, Congress is being asked to create a legislative body that
will be more powerful than Congress itself. Indeed, this is a
travesty and makes a mockery of the power and dignity of
Congress!
2. Then, as to its being different and distinct: Section 1 of Article VI of the
Bangsamoro Basic Law provides:
Section 1. Asymmetric Relationship. - The relationship
between the Central Government and the Bangsamoro
Government shall be asymmetric. This is reflective of the
recognition of their Bangsamoro identity and their aspiration for selfgovernance. This makes it distinct from other regions and other
local governments.
* Asymmetric means lack of symmetry, and symmetry means the quality
being well-balanced, well-coordinated.
Now, we ask:
If it is distinct from an autonomous region or other local government unit
authorized and recognized under Article X-LOCAL GOVERNMENTS
of the Constitution, then Congress should not be asked to entertain a bill
that would create an entity that would not operate within the ambit of
the provisions of the Constitution. Congress cannot legislate outside
the framework of the Constitution. Its just as simple as that.
iii.
aND Now, to the burNiNg QueStioN of the Day:

DoeS the coNgreSS poSSeSS the authority aND competeNce, uNDer
the c oNStitutioN , particularly a rticle X thereof , to c reate the
New baNgSamoro political eNtity aS propoSeD iN the baNgSamoro
baSic law?
the aNSwer iS a more reSouNDiNg No! abSolutely NoNe whatSoever!
Heres why:
Since it has been shown, that Congress, under the Constitution, does not even have the authority
and the competence and is EVEN PROHIBITED to create another Autonomous Region in
other parts of the country, aside from the Autonomous Region in Muslim Mindanao and in
the Cordilleras, WITHOUT A CONSTITUTIONAL AMENDMENT, then, it stands to
REASON and LOGIC, nay, plain COMMON SENSE dictates that Congress does not
have any authority and competence whatsoever to create the BANGSAMORO, an entirely new
political entity that is vastly different and distinct from and far more powerful than that of the
constitutionally-mandated Autonomous Region in Muslim Mindanao and in the Cordilleras.
The BBL expressly admits that the Bangsamoro Political entity or BPE is different and distinct
from the autonomous regions and other LGUs authorized and recognized in Article X of the
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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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Pablo P. Garcia
and allegiance to the same, the creation of the Bangsamoro Political Entity at this
time shall remain an impossible dream.
iv.
the SecoND formiDable aND iNSurmouNtable obStacle: the armm iS

a coNStitutioNal creatioN aND aS Such, it caNNot be aboliSheD aND
eraSeD by legiSlatioN from the pageS of the coNStitutioN iN orDer
to be replaceD by a complete StraNger: the baNgSamoro political
eNtity.
From the Records of the Constitutional Commission that drafted the 1987
Constitution, we find the following:
MR. OPLE. Thank you.
Is it the intent of the Commmittee that the creation
of the two autonomous regions is actually delegated
to Congress? Or is it to be done under the heading of
LOCAL GOVERNMENTS AND AUTONOMOUS
REGIONS right in the Constitution, although
mandating Congress to pass the enabling laws and the
organic acts to implement this action of the Constitution?
MR. NOLLEDO. It is understanding of the
Committee that the Members of the Commission
incaucus intended to mandate Congress to create
the autonomous regions in Muslim Mindanao
and the Cordilleras. So, the Constitution itself
provides that there shall be autonomous regions
in Muslim Mindanao and the Cordilleras and
that Congress shall pass the necessary organic
acts.
MR. OPLE. Yes, but is the act or the creation by the
Constitution denied by the Committee?
MR. NOLLEDO. It is, in effect a constitutional
creation because we are authorizing congress
to enact the organic acts for Muslim Mindanao
and the Cordilleras.
MR. OPLE. That intent seems to be clear now. Thank
you Madam President. (Records, Vol. III, p. 375; emphasis
supplied).
The Autonomous Region in Muslim Mindanao is therefore a creation of the
1987 Constitution and it has been in inexistence for more than two decades since
its creation.
According to the proposed Bangsamoro Basic Law (Section 5, Article XIII) after
the ratification of the Basic Law, the ARMM shall be deemed abolished. This
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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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Indonesia, the Parties affirm the sovereignty, territorial integrity of

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

coNcurreNt aND eXcluSive powerS to the baNgSamoro political
eNtity aS alreaDy poiNteD out above, there are Some other
proviSioNS of the baNgSamoro baSic law which are iNcoNSiSteNt with
the c oNStitutioN aND r epugNaNt to the N atioNal S overeigNty aND
territorial iNtegrity of the republic of the philippiNeS. here are a
few of them:
1. On Natural Resources
Section 8 of Article XIII of the proposed Bangsamoro Basic Law,
provides:
Section 8. Natural Resources, Nature Reserves
and Protected Areas. - The Bangsamoro Government shall
have the authority, power, and right to explore, develop and utilize
the natural resources, including surface and sub-surface rights,
inland waters, coastal waters, and renewable and non-renewable
resources in the Bangsamoro.
This is inconsistent with and in gross violation of Section 2 of Article XII
of the Constitution, which among others, provides:
Section 2. All lands of the public domain, waters,
minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State.
With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration,
development, and utilization of natural resources, shall
be under the full control and supervision of the
State [Emphasis supplied].
2. On the Parliamentary System of Government in the Bangsamoro:
(a) Under the Bangsamoro Basic Law, the Bangsamoro
Government shall be Parliamentary and the powers
of Government will be vested in the Bangsamoro
Parliament.
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This is inconsistent with the type of Republican

Government enshrined in our Constitution.
Throughout our political history and experience, the
chief executives or our national, regional and local
governments (the President, Regional Governor,
Provincial Governor, City or Municipal Mayor and
Barangay Captain) are elected directly by the people. But in
the Bangsamoro Government, the Chief Minister is not
directly elected by the people but by the Members of
Parliament.
(b) Under the Constitution, all elected local officials except
barangay officials, are elected for a term of three (3)
years (Sec. 8, Article X). Under the Bangsamoro Basic
Law, the Parliament can be dissolved at any time, even
before the expiration of three (3) years and new elections
will have to be called.
(c) Under the Constitution, no elective official can be
appointed or designated to any other public office or
position during his term (Section 7, Article IX [b]). Under
the Bangsamoro Basic Law, the Members of Parliament
may be appointed to the Cabinet.
(d) Under our republican and democratic system of
Government, at all levels from the national down to
the local, there is separation of executive and legislative
powers. This has been observed in our country for
more than a century. Under a parliamentary system,
the executive and legislative powers are merged in
parliament. There is neither rhyme nor reason why
we should break away from this century-old tradition
unless there is another hidden agenda for future
implementation.
(e) And, as a clincher, Section 18 of Article X of the
Constitution provides, among others: The Organic
Acts shall define the basic structure of government
for the region consisting of the executive
department and legislative assembly, both of
which shall be elective and representative of the
political units.
So, if the Bangsamoro Political Entity is to be created (if at all) WITHIN
and not OUTSIDE of the provisions of the Constitution, theres NO
WAY it can establish a parliamentary system of government.
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vii.
the timeleSS, opeN-eNDeD aND ever-eXpaNDiNg baNgSamoro political

eNtity, which putS the zamboaNga, cotabato, Davao proviNceS, aND
eveN palawaN at riSk of eveNtual abSorptioN or aSSimilatioN.
There is something strange about the proposed Bangsamoro Basic Law.
Originally, the idea of regional autonomy in Mindanao was limited to the area
which was, at that time, repeat, at that time, predominantly occupied by people
of the Muslim faith. That is why Congress passed R.A. No. 6734 as the Organic
Act for the Autonomous Region in Muslim Mindanao.
Strangely, the Bangsamoro Basic Law expands the meaning of the term
Bangsamoro People so as to include not only people of the Muslim
faith, but also those who at the time of conquest and colonization
were considered natives or original inhabitants of Mindanao and
Sulu archipelago and its adjacent islands including Palawan and
their descendants, whether mixed or full blood shall have the right to
identify themselves as Bangsamoro by ascription or self-ascription,
spouses and their descendants are classified as Bangsamoro (Section 1,
Article II Bangsamoro Identity).
So, this definition can embrace the inhabitants of the entire island of Mindanao,
the Sulu Archipelago and the island of Palawan. And this is reckoned not only
from the present, but also from as far back as the 16th Century at the time of
conquest and colonization, and regardless of race, color or creed. And this is to
include their descendants who may now be residing outside of Mindanao.
With the above definition, it would not be difficult to expand the territory and
political hegemony of the Bangsamoro Political entity, because of Section 3 of
Article III of the Bangsamoro Basic Law, which provides:
Section 3. The areas which are contigious and
outside the core territory may opt at any time to
be part of the territory upon petition of at least
ten percent (10%) of the registered voters and
approved by qualified votes cast in a plebiscite.
It is to be noted that this option to be part of the Bangsamoro territory
can be exercised at any time, even 15 or 20 years after the establishment of
the Bangsamoro Political Entity. It has no time limit. And it is easy to get the
ten percent (10%) in order to start the ball rolling (meaning the process of
expansion) because under the definition of the Bangsamoro people, one can
identify himself or herself as Bangsamoro by simply saying so (by ascription
or self-ascription)regardless of birth or religion. And for purposes of obtaining
majority of the votes cast in a plebiscite, the same situation can happen or made
to happen. Especially when there is armed conflict or trouble or even the threat
of it in a place, where peace-loving people will be forced to quit their homes to
escape to safer places. The armed conflict or trouble can easily be created
or made to happen by those interested in the expansion of the Bangsamoro
Political Entity.
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This is something for the people of the Zamboanga, Davao, Cotabato

provinces, Palawan and even other provinces in Mindanao to seriously
consider and ponder upon. There is much more than meets the eye in
the proposed Bangsamoro Basic Law.
viii. aND Now for the moSt SeriouS aND crucial coNcerN oN the paSSage
of the b aNgSamoro b aSic l aw t he D aNger of p olitical aND
territorial DiSmembermeNt of the republic of the philippiNeS
1. It will be recalled that in the celebrated case of Province of North Cotabato, v.
GRP Peace Panel, G.R. No. 183591 [Oct. 14, 2008], involving the MOA-AD
(Memorandum of Agreement on Ancestral Domain) entered into between the
GRP and MILF peace panels, during the previous Arroyo Administration, one
of the principal issues involved was the constitutionality of the creation of the
Bangsamoro Juridical Entity or JPE as proposed by the MOA-AD.
The powers of the Bangsamoro Juridical Entity or BJE under the MOA-AD
were similar but even much less than those of the Bangsamoro Political Entity
as proposed in the Bangsamoro Basic Law. Yet, the Supreme Court in its classic
and insightful Decision penned by Justice Conchita Carpio-Morales (now
Ombudsman) declared that the BJE would be unconstitutional.
Said the Supreme Court:
The BJE is a far more powerful
Entity than the autonomous region
Recognized in the Constitution
It is not merely an expanded version of the ARMM, the
status of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention, namely a
permanent population, a defined territory, a government, and a
capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily
sever any portion of Philippine territory, the spirit animating
it which has betrayed itself by its use of the concept of
association - runs counter to the national sovereignty
and territorial integrity of the Republic.
The defining concept underlying the relationship
between the national government and the BJE being
itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are
in conflict with the Constitution and the laws. (Province
of North Cotabato, et. Al. vs. GRP Peace Panel, G.R. No. 183591) [Oct.
14, 2008]
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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
And Section 3 of Article 1 of the Bangsamoro Basic Law, provides:
Section 3. Purpose. The purpose of this Basic
Law is to establish a political entity, provide for its
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basic structure of government in recognition of

the justness and legitimacy of the cause of the
Bangsamoro people and their aspiration to chart
their political future through a democratic process
that will secure their identity and posterity and allow for
IT IS ABUNDANTLY CLEAR, THEREFORE, THAT THE
MOTIVATING AND DRIVING FORCE BEHIND THE ENACTMENT
OF THE BANGSAMORO BASIC LAW IS THE ASSERTION BY THE
BANGSAMORO PEOPLE OF THEIR RIGHT TO THEIR ANCIENT
HOMELAND AND THEIR RIGHT TO SELF-DETERMINATION
WHICH INCLUDES THE RIGHT TO CHART AND DETERMINE
THEIR OWN POLITICAL FUTURE AND STATUS.
3. The UN DRIP- or the United Nations Declaration of the Rights of
Indigenous People, adopted by the UN General Assembly on September
13, 2007 was lengthily discussed by the Supreme Court in the MOAAD case since the Bangsamoro people would fall within the definition of
Indigenous People under DRIP.
Among the rights of the indigenous peoples recognized in the UN DRIP, are:
(1.) The rights to self-determination and, by virtue of this, to freely
determine their political status and freely pursue their economic,
social and cultural development.
(2.) The right to lands, territory, and resources which they have
traditionally owned, occupied, or otherwise used.
(3.) The right to autonomy and self-government.
However, this UN Declaration, unlike treaties and conventions, does not per se create
any binding obligation on the States signing the Declaration. UNLESS the State does something
more: a Unilateral Declaration creating a Binding Obligation in International Law.
For the Philippine State when or how shall she have made, a binding unilateral
declaration?
4. CROSSING THE RED LINE. THE CAB AND THE ENACMENT OF THE
BANGSAMORO BASIC LAW WOULD CONSTITUTE AS A BINDING
UNILATERAL DECLARATION UNDER INATIONAL LAW.
According to the Supreme Court, the objectionable and unconstitutional
provisions of the MOA-AD, such as the creation of the BJE could not be given
force and effect because the MOA-AD itself was neither a binding international
obligation nor a binding unilateral declaration of the Republic of the Philippines.
According to the Guiding Principles Applicable to Unilateral Declarations of
States, capable of creating an obligation is that the declaration is made by
one vested with power to do so.
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In the Philippines, that one is Congress, which has the power to

express the will of the State through the enactment of a law. And
so, when Congress expresses itself through the enactment of the
Bangsamoro Basic Law, the Government of the Republic of the
Philippines will have crossed the red line and fallen into the trap of
a binding unilateral declaration. In the eyes of International Law,
the GRP will be bound to comply with its provisions, such as granting
the Bangsamoro Political Entity the right to self-determination which
includes the right to chart and determine its political status.
In R.A. No. 6734, or the Organic Act for Muslim Mindanao, as well as in R.A.
9034, amending the Organic Act following the 1996 Final Peace Agreement
between the GRP and the MNLF and participated in by the OIC, there is
a provision in both Acts to the effect: That the area of the Autonomous
Region in Muslim Mindanao shall remain an integral and inseparable
part of the national territory of the Republic of the Philippines and
that the people shall uphold the constitution and unequivocally owe
allegiance to the Republic of the Philippines.
THERE IS NO SUCH MANDATE IN THE CAB OR IN THE PROPOSED
BANGSAMORO BASIC LAW. IT WOULD NOW SEEM THAT SUCH
OMISSION WAS NOT JUST AN OVERSIGHT BUT A DELIBERATE
ONE.
The most relevant and crucial question is: Why has it been deliberately:
omitted? Does not the Constitution expressly provide that the creation of the
two autonomous regions must be within the framework of this Constitution and
the national sovereignty as well as the territorial integrity of the Republic of the
Philippines?
And the intriguing if not mystifying question is: Did not the
Members of the GRP Peace Panel detect the potentially undesirable
implications of such omission In any case and without making any
comparison, we have to recognize and acknowledge the superior
savvy, experience, dedication and negotiating caliber of the members
of the MILF Peace Panel. They really knew their objective and were
equipped with the knowledge, skill and dedication to achieve it.
In fairness to President Benigno S. Aquino III, this accommodating
and concessionary posture of the Government towards the MILF
and the Bangsamoro problem, did not start with his Administration.
This started with the shift in the Governments official attention
and recognition from the MNLF to the MILF during the Arroyo
Administration as shown by a series of negotiations between the GRP
and the MILF which started in 2001 and culminated in the aborted
MOA-AD between the Government and the MILF and during the
closing months of the Arroyo Administration.
The MOA-AD is the precursor of the Bangsamoro Basic Law. In fact,
there are provisions in the Bangsamoro Basic Law which are verbatim
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reproductions of some provisions of the MOA-AD.

IX.
THE MOMENT OF TRUTH AND THE UPCOMING SCENARIO:

A PREVIEW OF THINGS TO COME After the creation of the
Bangsamoro Political Entity and the establishment of the Bangsamoro
Government.
Suppose, just supposing, that sometime in the future, following the example of
the people of Crimea who seceded from Ukraine and joined with Russia, the
Bangsamoro people, after a referendum, and in the exercise of their right to
self-determination and to freely determine their political status, as
recognized by the CAB and the Bangsamoro Basic Law, will DECLARE
their political liberation and DECIDE to separate and secede from
the Republic of the Philippines and join with Malaysia or Indonesia?
And supposing, further that after their separation or secession, the Bangsamoro
Political Entity is admitted as a regular Member of the OIC or Organization of
Islamic Conference? And, as a Member, seeks the assistance of the OIC Muslim
countries in expanding its territory and political hegemony to the other parts of
Mindanao and to Palawan? Under the Bangsamoro Basic Law, there is no limit
to such expansion.
Alas, when these things shall have come to pass, what is the Government of the
Republic of the Philippines supposed to do? Shall the Government resist the
separation or secession or shall it just allow it to happen?
If the Government resists how can it resist when such resistance is virtually
foreclosed by the CAB and the enactment of the Bangsamoro Basic Law?
And since the Government allows the secession to happen, what is the
Government going to do with our Christian brothers and sisters and other Filipino
ethnic groups living in the expanding Bangsamoro Territory in Mindanao and
Palawan, who are loyal and law-abiding citizens of this Republic, but who will
suddenly become strangers in their own land and in danger of being absorbed
or overwhelmed into submission by the Bangsamoro? Will they not resist and
fight for their rights and identity as Filipino citizens? And will the Government
intervene to help them? Will this not result in armed confrontation between the
GRP and the Bangsamoro Government and other Muslim countries coming to
the assistance of the latter? The consequences and resulting developments of
such situations are too complicated and too frightening to contemplate.
These are difficult questions to which we have no easy answers but which can
only provoke many more unanswerable questions. Indeed, as things are moving
on this subject of the Bangsamoro and listening to the pronouncements of our
leaders on its necessity, you can get a feeling of inevitability like being led to
the edge of a cliff but with your eyes looking straight ahead for fear of seeing the
things down below.
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X.
AN APPEAL TO THE MEMBERS OF THE 16TH CONGRESS:

For an abundance of caution, sound and sober judgment, and a deep
sense of history.
1. From the very start of the secessionist rebellion in Mindanao in the early
1970s led by a separatist Muslim rebel group known as the Moro National
Liberation Front or MNLF who wanted to establish a separate and
independent Bangsamoro nation, and during the subsequent peace talks
between the Government of the Republic of the Philippines or GRP and the
MNLF which was brokered by the Organization of Islamic Conference or
OIC, the position of the GRP had always been firm, loud and clear:
1. The National Sovereignty and Territorial Integrity
of the Republic of the Philippines must be supreme,
inviolable and beyond challenge from within and
from without.
2. An expanded regional autonomy may be authorized,
but within the framework of the Constitution and
the national sovereignty as well as the territorial
integrity of the Republic of the Philippines.
These principles are embodied in the Tripoli Agreement that
was signed by the GRP and the MNLF under the auspices of
the OIC and as participated in by representatives of Libya
and Indonesia, in Tripoli, Libya, on December 23, 1976.
Shortly after the signing of the Tripoli Agreement, then
President Marcos created, by Presidential Decrees, two
Autonomous Regions in Southern Philippines; Regions IX
and XII.
3. After the EDSA Revolution and under the Administration of
President Cory Aquino, peace talks between the GRP and
the MNLF for the implementation on the Tripoli Agreement
continued. During the deliberations in the Constitutional
Commission that drafted the 1987 Constitution, the
Members agreed to create only two (2) Autonomous Regions,
in Muslim Mindanao and in the Cordilleras, within the
framework of the Constitution and the national sovereignty
as well as the territorial integrity of the Republic of the
Philippines. This is now embodied in Article X of the
1987 Constitution. And as already pointed out earlier, the
Constitution authorized and empowered the First Congress
elected under the Constitution to pass the Organic Acts for
the two autonomous regions. This First Congress already
passed these Organic Acts: R.A. No. 6734 for Muslim
Mindanao and R.A. No. 6766 for the Cordilleras.
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Pablo P. Garcia
4. It must be noted that in the series of agreements before the

Tripoli Agreement of 1976 and in subsequent agreements
thereafter and up to the signing of the 1996 Final Peace
Agreement between the GRP and MNLF under the auspices
of the OIC, it was never provided nor even intimated
that the Bangsamoro people shall have any right to
self-determination or the right to chart their future
and freely determine their political status. They
were only granted an expanded regional autonomy.
On the other hand, from the Tripoli Agreement, Republic
Act No. 6734 or the Organic Act for the Autonomous Region
in Muslim Mindanao, the 1996 Final peace Agreement and
Republic Act No. 9034 amending the Organic Act for the
Autonomous Region in Muslim Mindanao, it is expressly
provided that the Autonomous Region shall
continue to be subject to the National Sovereignty of
the Republic of the Philippines and shall remain
an integral and inseparable part thereof, uphold the
Constitution and unequivocally owe allegiance and
fidelity to the Republic of the Philippines.
Significantly and ominously, however these very
fundamental and non-negotiable principles on the
relationship between the people of the Autonomous
Region in Muslim Mindanao and the National
Government of the Republic of the Philippines with
regard to remaining an integral and inseparable
part of the Republic, upholding its Constitution,
and owing unequivocal allegiance and fidelity to the
Republic, are not found either in the CAB or in the
proposed Bangsamoro Basic Law. It is now quite
clear that this omission is not just an oversight but
is deliberate because these principles would stand
in the way of the real objective of the Bangsamoro
Basic Law.
True, the Muslim sultanates in the Philippine Archipelago
during pre-colonial times were separate and independent
political units or institutions and had their own rulers.
Manila used to belong to a Muslim sultanate. But many
permanent and enduring changes have taken place, over the
centuries, in the political environment of our country which
cannot now be undone, much less, reversed. In a manner of
speaking, as a result of complex and inexorable historical
events, we have been thrust into the living Present and we
cannot now re-create, re-inhibit, and re-live the distant Past.
As the Bible tells us: Let the dead past bury its dead. And
so, after all is said and done, let the present united and
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indivisible Philippines move on, as it is AT PRESENT to

meet its appointment with Destiny!
5. We are a nation of diverse ethnic and cultural aggrupations,
such as: Tagalogs, Ilocanos, Bicolanos, Visayans and Muslims
with their own storied and varied past. Yet, we all have come
together and united as Filipinos under one Nation, One
Government and One Flag. And we all take pride in our
unity in diversity. So, it would be inconceivable, if we now
say, after more than a hundred years of such unity, that the
Tagalogs, or the Ilocanos, or the Bicolanos, or the Visayans,
shall have the right to self-determination and the right to
freely determine their political future and status, such that
they cannot establish their own separate Tagalog nation,
Ilocano nation, Bicolano nation, or Visayan nation.
6. Unfortunately, what is happening in our country
right now is a sudden and radical climate change
in or political direction as a nation. And what is sad
is that a great majority of our people do not even
know about it.
With the express recognition and grant to the Bangsamoro
people of the special and favored right to self-determination
as well as the right to chart their future and determine their
political status, not only in the CAB but also in Bangsamoro
Basic Law, there is every reason to believe or even expect
that the Bangsamoro people, through the Bangsamoro
Government, and invoking the provisions of UN DRIP,
will, in the near future, determine their political status
and DECLARE their separation from the Republic of the
Philippines and join with another powerful Muslim country.
And sadly, there is nothing that the Government of
the Republic of the Philippines can do about it. By
its own unilateral declaration, which is binding in
International Law, as expressed in the CAB and by
the provisions of the Bangsamoro Basic Law, it shall
have provided the legal basis and justification for
its own political and territorial self-disintegration!
Very sad indeed!
Is this really what the sovereign Filipino people
our bosses wants to happen in our country?
Are we as a people disposed to give up part of
our territory in order to buy peace in our time
because the Government is no longer willing or
capable of defending the national sovereignty and
territorial integrity of the Republic? What a terrible
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price to pay for such an illusory peace!

However, if this is really what the Filipino people want,
then let it be! Sovereignty resides in the people. But the
only way it can and should be done is to ask the people to
amend or revise the Constitution the ultimate expression
of the peoples sovereign will. The Supreme Court, in the
celebrated MOA-AD case, said:
The sovereign people may, if it so desired, go
to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for
it can change the Constitution in any way it
wants, so long as the change is not inconsistent
with what, in international law, is known as Jus
Cogens, Respondents, however, may not preempt it in that
decision. (The Province of North Cotabato et. Al. vs.
the GRP Peace Panel on Ancestral Domain, G.R. No.
183591)
Ergo: Congress should not pre-empt the
Filipino people in making that decision
to change the Constitution.
In the meantime, however, before the
Constitution is amended or revised by the
Filipino people, it is hoped and prayed that
all public officials of the land, from the
highest to the lowest, should abide y the
Constitution, to which they have taken
a solemn oath: to support and defend
and bear true faith and allegiance to the
same!
7. There are crossroads or turning points in the history of any
nation which can leave profound and lasting impact on the
lives of its succeeding generations of people. Our beloved
Philippines is at such crossroad or turning point. And the
choice on which way the nation must go falls on the Members
of the 16th Congress of the Republic of the Philippines.
Inevitably, the stakes on such a choice are very high
and these are: the prospect of a lasting peace or
the danger of a much larger conflict in Mindanao,
the Constitution and National Sovereignty as well
as the Territorial Integrity of the Republic of the
Philippines.
It has been said that there are moments in the lives of men
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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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problem areaS iN the baNgSamoro baSic law

Merlin M. Magallona*
I. iNtroDuctory: the coNStitutioN aND the powerS of the State

By the promulgation of the Constitution, the people have entrusted the powers of
the State, which they possess, to the Government established under the fundamental law
by endowing it with a complex of functions, authority, jurisdictions, immunities, and
limitations as are now ordained in the present Constitution. Embodying the Philippine
State, the people have proclaimed the foundation principle in Article II, Section 1 of
the Constitution affirming that Sovereignty resides in the people and all government
authority emanates from them. This affirmation encapsulates the promulgation of the
Constitution as the peoples act of sovereignty, together with the establishment of the
Government.
Inherently an act of sovereignty, the Constitution is out of reach of contravention.
In that respect, more than the formal law of the national community, it is its political
and economic formula for self-determination, its social framework growing out of the
historical roots of its people.
This holds true whatever may be the fascination or attraction that any political
theory may seize the mind outside of the binding force of the Constitution. On the same
premises, the Constitution as an act of sovereignty becomes the supreme standard for
determining the validity of the Comprehensive Agreement on the Bangsamoro,1 together
with its implementing instrument in the Bangsamoro Basic Law as proposed in House Bill
No. 4994 and in Senate Bill No. 2408.
II.
the powerS of the State uNDer the baNgSamoro baSic law
Proceeding from the foregoing premises, it is axiomatic that the powers of Government
as constituted under and pursuant to the Constitution are beyond the juridical competence
of any person or subject, in private or official capacity, to engage them by way of bargaining
or negotiation in contractual relation, as is done in the Comprehensive Agreement on the
Bangsamoro (CAB) by the GPH Peace Negotiating Panel purporting to represent the
Philippine Government, with the Moro Islamic Liberation Front (MILF).2
The CAB, as implemented by the Bangsamoro Basic Law (BBL), reorganizes the
powers of Government and restructures them into a hierarchy, in the relationship
between the National Government and the Bangsamoro Government. On the whole,
the powers of Government are reduced to contractual arrangement between the Parties
*
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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.
the ibp JourNal
Problem Areas in the Bangsamoro Basic Law
to the CAB, resulting in a new configuration of political authority. In the first place,
such authority raises the fundamental issue as to whether a government office together
with a non-government organized group may assume the function of re-organizing and
restructuring the powers of Government as spelled out in the CAB, in usurpation of the
act of sovereignty expressed in the Constitution. Obviously, their legal competence in the
exercise of such function, objectionable as it is, is excluded by the fundamental law. The
Constitution cannot be the derivative of powers in contradiction to its principles.
The CAB has installed the categories of powers provided in Part III, paragraph 1,
which reads:
The Central Government will have reserved powers, the Bangsamoro
Government shall have its exclusive powers, and there will be concurrent powers
shared by the Central Government and the Bangsamoro Government.3
In implementation, the BBL deals with reserved powers in Section 1, concurrent
powers in Section 2, and exclusive powers in Section 3, in Article V on Powers of
Government.
Forming part of the CAB is the Annex on Power Sharing (APS) that contains details
about the particular competencies and authorities of the Central Government and the
Bangsamoro Government which shall serve as guide in the drafting of the Basic Law
pursuant to the Framework Agreement on the Bangsamoro (FAB).4 Further, the APS
explains as follows:
The Comprehensive Agreement delineates powers at different levels. The
Central Government will have its reserved powers, the Bangsamoro Government
will have its exclusive powers within its territorial jurisdiction and their will be
concurrent powers shared by the Central Government and the Bangsamoro Government
.5
1. Reserved powers
The FAB provides that The Central Government will have reserved powers .6 It
goes on to stipulate that the Central Government shall have powers on:
a)
b)
c)
d)
e)
f)
Defense and external security

Foreign policy
Common market and global trade .
Coinage and monetary policy
Citizenship and naturalization
Postal service
This list is without prejudice to additional powers that may be agreed upon by
the Parties.7
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How is the concept of reserved powers designed? The APS of the CAB has conceptualized
reserved powers as powers or matters over which authority and jurisdiction are retained
by the Central Government.8 Apparently, these powers pertain to those which the Central
Government may exercise affecting its relationship with the Bangsamoro Government.
By way of implementing the FAB or the CAB, the BBL in Section 1, Article V repeats
the enumeration of reserved powers in FAB, with the addition of immigration, customs and
tariff, and intellectual property rights. There appears to be the emphasis in this provision
that these specified powers are retained by the Central Government. The addition of
more reserved powers must have resulted from the intent of the parties to the FAB that
the list [of reserved powers] is without prejudice to additional powers that may be agreed
upon by the Parties.9
By managing the concept of power, the Parties to the CAB have achieved results
with the following implications. They assume that they have the legal competence and
personality to engage in contractual relation for determining the powers of Government
and in creating the relation between the National Government and its constituent
autonomous regions by means of reorganizing and restructuring those powers. These
matters pertain to the sovereign act of the people and are subsumed in their promulgation
of the Constitution; they can only be changed by amendment or revision of the
fundamental law. In conceptualizing reserved powers, the CAB Parties have usurped the
sovereign function which the people have already enthroned in the Constitution.
After providing the list of reserved powers in Part III of the FAB, the Parties added the
stipulation that This list is without prejudice to additional powers that may be agreed
upon by the Parties. Indeed, in Section 1, Article V of the BBL, additional reserved
powers are added, as indicated above. These provisions signify that powers of Government
are treated by the Parties as subject-matter of free stipulation, left to their contractual
intention.
The Parties appear to be of the impression that powers of Government are of such
broad range that they are unable to determine in the CAB; however, in their agreement
they singled out only those that are listed in Part III of FAB and finally those listed in
Section 1, Article V of the BBL. In doing this exercise, the Parties have resorted to the
scheme of dividing the so-called reserved powers into two categories: those that will not be
applied by the National Government in dealing with the Bangsamoro Government and
those that will be applicable in its relation with the Bangsamoro Government. The second
category is referred to in the CAB and in the BBL as reserved powers.
This categorization of powers necessarily implies it is the intent of the CAB and the
BBL that certain powers of the National Government are not to be applied in its relation
with the Bangsamoro Government. In effect, the CAB and the BBL have intended to
deprive the National Government of certain powers in its relation with the Bangsamoro
Government. This consequence appears clearer by reason of the provision in the Annex
on Power Sharing that it is by the nature of reserved powers that authority and
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jurisdiction are retained by the Central Government. This means that those that are not
retained are not exercisable by the National Government in dealing with the Bangsamoro
Government.
The emergent principle under the CAB and the BBL is that the National Government
has no power and authority over the Bangsamoro Government unless as provided under
the CAB and as implemented by the BBL. This non-retention scheme of powers is the
product of the contractual discretion of the Parties derived outside the constitutional box;
it is proposed under the mistaken notion that Congress by means of enacting the BBL
assumes the competence to amend the fundamental law through the normal legislative
process.
This fragmentation of government powers find no basis in the Constitution of course,
in particular the categorization of powers into reserved powers and those which are not
reserved powers. Are there powers of the National Government which are not reserved
powers under the Constitution and thus not exercisable by its authority in relation to the
autonomous regions? In the first place, this categorization is alien to the fundamental law
and to our system of government. Emphasis must be on the constitutional prescription
that all powers not provided by the Constitution and the national laws to the autonomous
regions pertain to the National Government.10
2. Concurrent powers
In Section 2, Article V, the BBL provides that Concurrent powers shall refer to the
powers shared between the Central Government and the Bangsamoro Government within
the Bangsamoro, as provided in this Basic Law. What is meant by concurrent powers
is defined in the fourth paragraph of APS of the CAB: Concurrent powers shall refer to
the shared powers between the Central Government and the Bangsamoro Government as
contained in this Annex and as shall be further provided in the Bangsamoro Basic Law.
Part Three (III) of the APS contains 14 matters in which the Central Government
and the Bangsamoro Government shall exercise powers within the Bangsamoro. The
same matters are provided in Section 2, Article V of the BBL; among the more important
of these appear to be authority in land registration, human rights and humanitarian
protection, auditing, civil service, customs and tariff laws and regulations, administration
of justice, and public order and safety.
The installation of concurrent powers involves the process of according to the
Bangsamoro Government the grant of independence in the exercise of powers of
Government and the concomitant transfer to it by the National Government of its own
powers. It also means the institutionalization of powers by the Bangsamoro Government.
Thus, in the implementation of the CAB, the BBL envisages to organize its own
social security system and pension system of its own, to create its own office of land
registration, to have the Bangsamoro auditing body quite apart from the Commission
on Audit of the National Government, and to build the Bangsamoro Civil Service office
with its own professional civil service corps, despite the existence of the Civil Service
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Commission, among other cases of institutional separation.11 This institutionalization

may lend permanence to the fragmentation of powers of national character.
The provisions pertaining to concurrent powers involve the root issue as to the
constitutional basis of their creation, in particular because they are segmented from powers
which the Constitution has mandated as belonging to the National Government. The
result is that in the hierarchy of authority, the Bangsamoro Government as it stands in the
BBL is in parity with the National Government, in the main subject only to cooperation
and coordination with the latter as the BBL stipulates. This may find justification in Part
One, paragraph 2 of the APS which inter alia provides that The Central Government
and the Bangsamoro Government shall be guided by the principle of parity of esteem
and accepted norms of good governance.
The concurrent powers which are institutionalized by the BBL through the
establishment of separate Bangsamoro offices are at present provided by respective
national laws as integral powers of the National Government; these laws would require
revision by effecting the reorganization of powers of the National Government to pave
way for the exercise of the Bangsamoro concurrent powers, if permissible. Hence, the
creation of concurrent powers may ramify into how congressional authority may be
exercised.
3. Exclusive powers
Section 3, Article V of he BBL is a litany of 57 areas of governance described as
exclusive powers of the Bangsamoro Government; they are matters over which authority
and jurisdiction shall pertain to the Bangsamoro Government in its territory. This
provision of exclusive powers necessarily implies that they are exercisable only by the
Bangsamoro Government to the exclusion of the National Government. In fact, by the
nature of these powers the Bangsamoro Government is the only governing authority in
its territory, displacing in the process the National Government in its current areas of
governance pursuant to the fundamental law.
Under this provision the BBL appears to be in compliance with the CAB in its APS
which refers to exclusive powers as powers or matters over which authority and jurisdiction
pertain to the Bangsamoro Government.12 Deserving focus is the mandate of the CAB
in APS that The Central Government shall respect the exercise of the competences and
exclusive powers of the Bangsamoro Government.13 Emphasis on exercise of exclusive
powers is further affirmed by the concept of devolution which the Parties accept in
the APS as [involving] a process of empowerment, mobilization, capacity building and
financing;14 this may imply further justification to the powers granted to the Bangsamoro
Government exclusively in addition to its concurrent powers.
The BBL areas within the scope of exclusive powers in the Bangsamoro territory
are so extensive that they cover the entire range of governmental authority, effecting
the exclusion of the National Government and, as a consequence, eliminating the
accountability of the latter as a duly constituted government established by the sovereign
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authority of the Constitution.15

There can be no recognition of powers and jurisdictions exclusive to the Bangsamoro
Government; otherwise, the Republic would be conceding that it does not possess
internal sovereignty or supreme authority over matters within the exclusive powers of the
Bangsamoro Government. National sovereignty is indivisible.
III. the coNStitutioNS autoNomouS regioN aND the baNgSamoro
In Section 1, Article X, the Constitution mandates that There shall be created
autonomous region in Muslim Mindanao. Together with the appropriate provisions
of the fundamental law, national laws form part of the constitutional standards for the
creation and governance of autonomous regions.16
The core directive of the fundamental law is that the autonomous region shall be
created within the framework of this Constitution and the national sovereignty as well as the
territorial integrity of the Republic of the Philippines.17 Thus the elements integral to the
creation of the autonomous region are: (1) conformity to the directives of the Constitution;
(2) the Republics national sovereignty; and (3) its territorial integrity.
1. Constitutional framework
As to the first element, the Bangsamoro appears to found its creation not on the
Constitution, but on the basis of the contractual relations between the GPH Peace
Negotiating Panel and the MILF to be implemented by the BBL. As a consequence, the
definitive features of the BBL in terms of powers, jurisdiction, rights and accountability,
charged upon the Bangsamoro Government appear as implementation of the CAB,
together with all the Annexes. In other words, the CAB is the BBL shaped into legislative
form for the formality of enactment by Congress.
To be emphasized is the extraordinary character of the BBL in that it affirms in
its Preamble common to both House Bill No. 4994 and Senate Bill No. 2408, that its
promulgation into law is done by the Bangsamoro people themselves. It reads as follows:
We, the Bangsamoro people and other inhabitants of the Bangsamoro,
imploring the aid of the Almighty, for genuine and meaningful selfgovernance as stipulated under the Comprehensive Agreement on the
Bangsamoro (CAB); do hereby ordain and promulgate this Bangsamoro Basic
Law, through the Congress of the Republic of the Philippines, as the basic law of
the Bangsamoro .18
In this light, the Congress, which is the sole repository of plenary legislative power
under the Constitution becomes merely an instrumentality of the Bangsamoro peoples
self-determination. This may imply that Congress, in the exercise of its legislative function
in the process of enacting the BBL, is circumscribed by the mandate of the Bangsamoro
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people expressed in the CAB and the BBL.

Moreover, the President of the Republic has committed himself to the enforcement
of or compliance with the CAB vis--vis the enactment into law of the BBL. In his
Executive Order No. 120 of 17 December 2013, issued for Constituting the Transition
Commission in compliance with the CAB, he made the following commitment:
[1] [T]he Government entered into the 2012 Framework Agreement
, which is envisioned to pave the way for the peaceful resolution of
the armed struggle in Mindanao .
[2] [T]he Government acknowledges its commitment to exert all efforts towards
realizing the full implementation of the Agreement; .19
[3] The Transition Commission shall have the function To draft the
proposed Bangsamoro Basic Law with provisions consistent with the 2012
Framework Agreement on the Bangsamoro; .20
The Presidential act of creating the Transition Commission appears to be the
Presidents implementation of the FABs directive in Part VII, in particular addressed to him,
namely:
[1] There shall be created a Transition Commission through an
Executive Order .21
[2] The draft Bangsamoro Basic Law submitted by the Transition
Commission shall be certified as an urgent bill by the President.22
As indicated above, the President has ordered that the BBL should be drafted with
provisions consistent with the 2012 Framework Agreement on the Bangsamoro. It is to
be wished that he should have desired that it be consistent with the Constitution. Instead,
he intended it is the Constitution that is to be amended. His Executive Order says in
section 3(b) that Whenever necessary, [the Transition Commission] recommend[s] to
Congress the proposed amendments to the 1987 Philippine Constitution. Apparently,
he is of the view that it is the Constitution which must comply with the CAB or the FAB.
The President has complied with the foregoing mandate derived from the CAB, not
from the Constitution and not from the existing national laws. After considerable delay
in its submission to Congress on account of amendments to the Commissions draft by
the Office of the President, the BBL formally has become the act of the President by reason of his
certification of the BBL as his urgent bill in compliance with the CAB.
Section 17, Article X of the Constitution provides: All powers, functions, and
responsibilities not granted by the Constitution or by law to the autonomous regions shall
be vested in the National Government. In extensive departure from the fundamental
law in this mandate, the BBL, in implementation of the CAB, creates an entire political
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system constituted by powers, functions and responsibilities independent of the National

Government; in fact, the impact of that system consists in the intrusion of concepts of
government alien to the Constitutions own political system. Under the fundamental law,
the organic act of the autonomous regions shall have as the basic structure of government
for the region consisting of the executive and the legislation assembly.23 This is understood
to require that such structure shall be consistent with the provisions of this Constitution
and [existing] national laws.24 The constitutional system as thus prescribed undergoes
a radical revision, both the CAB and the BBL establishing the asymmetrical political
relationship between the National Government and the Bangsamoro Government. As a
result, the CAB and the BBL have the effect of rejecting the cornerstone principle of the
Constitution, namely, the separation of powers. What may have become asymmetrical is
the Constitution.
Taking into account the violence done on the Constitution as brought out in the
present review, incredible, to say at least, is the direct involvement of the President and the
Congress in the inordinate claims of the CAB and the BBL, as shown above.
2. National sovereignty
The second premise of the Constitution in the creation of an autonomous region
is that it is to be established within the framework of national sovereignty. Under the
fundamental law, national sovereignty pertains to the peoples act of sovereignty pursuant
to the supremacy clause of the Constitution in Section 1, Article II that Sovereignty
resides in the people and all government authority emanates from them. The powers of
the National Government that the fundamental law ordains are expressive of sovereignty,
the contravention of which by the CAB and the BBL is effected by the derogation, of
such powers. How the Parties to the CAB derived their authority to this effect and by what
legal capacity empower them to do so continue to be a juridical vacuum.
At any rate, the concept of reserved powers, together with that of current powers
and exclusive powers are creations of the Parties that are at war with national sovereignty.
In the concept of concurrent powers, the CAB and the BBL set up a reorganized
structure of power into a hierarchy unknown in the Constitution where the Bangsamoro
Government stands in parity with the National Government, and, in specified areas of
authority, exercises power in relative independence of the National Government.
Consequently, the entire system of governmental powers is split into two by the
concept of powers exclusive to the Bangsamoro, leaving the Bangsamoro in the exercise
of exclusive powers covering vast areas of authority. Thus, national sovereignty itself is
subjected to dichotomy of powers, functions, and responsibilities, from which emerges
the Bangsamoro entity under the CAB and BBL imbued with internal sovereignty,
by which it will maintain relation with the National Government. Overall, the BBL in
implementation of the CAB presents a creation of a political system within the Philippine
State, with its own territory, population, government, and natural resources, intended to
function in relative independence from the National Government.
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From the projected concept that the National Government delegates or devolves
powers to the Bangsamoro Government, the latter is said to derive, in the language of
the 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
Integrated into national sovereignty is the element of territorial integrity; in particular,

this may pertain to how the Constitution characterizes the nations natural wealth and
resources. On two fundamental principles, the Constitution prescribes that
[1] All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests,
or timber, wildlife, flora and fauna and other natural resources are
owned by the State.27
[2] The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State.28
The ownership and control of the State do not pertain or relate to the exclusive authority
and jurisdiction of any local government unit or autonomous region. That the natural
resources belong to the State, together with full control of their exploration, development
utilization, is a designation of the peoples ownership as their act of sovereignty for their
lifes support, derived from the premise that all government authority emanates from
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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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The conception of territory in our constitutional system is that it is an element in the

formation and praxis of the Philippines as a State; the fundamental law characterizes it as
a unity in national territory with all the islands and waters embraced and all other
territories over which the Philippines has sovereignty and jurisdiction.32 The territory
as a geographic area is unified by national sovereignty, not fragmented into exclusive
jurisdictional control of local government units or autonomous regions.
However, the CAB and the BBL conceive of the Bangsamoro territory as an
integration of essential features, namely, its own powers and jurisdiction constituted into
a government, population, and territory, which are in relative independence from the
National Government, and independent as well from the Constitution.
iv. DerogatioN of NatioNal goverNmeNt to co-eQuality
with the autoNomouS regioN
In establishing the validity of the creation and governance of autonomous region
in Muslim Mindanao, the mandate of the Constitution adopts national laws as the basis,
together with those which the fundamental law itself stipulates. Thus the Constitution
in Section 16, Article X directs the President to exercise general supervision over
autonomous regions to ensure that the laws are faithfully executed.33 Section 17 of that
Article says that All powers, functions, and responsibilities not granted by this Constitution
or by law to the autonomous regions shall be vested in the National Government;34 this
provision necessary implies that the autonomous region in Muslim Mindanao shall only
have powers, functions, and responsibilities as are granted by the Constitution and
the national laws. This provision controls the interpretation and application of Section
20 of the same Article even as it provides that the organic act of autonomous regions
shall provide for legislative powers . . . in specified areas of governance. Such legislative
powers are subject to the Constitution and national laws.35
As constituted under the CAB and the BBL, the Bangsamoro political entity is created
outside the constitutional box. It is imbued with powers, functions and responsibilities far
in excess of the nature attributed to the autonomous region by the Constitution or to any
of the political division of the Republic. It is something else other than the autonomous
region as characterized by the Constitution.
However, under the CAB and the BBL, it is the Bangsamoro Government that
establishes limitations to the power of Congress. Beginning with the concept of reserved
powers, Congress may provide general or special power or jurisdiction exercisable by the
National Government in its relation with local government units, including autonomous
regions. On account of the CAB and the BBL, the Bangsamoro would be excluded from
the application of such national laws. Derogation of national legislative power would
necessarily be implied or expressly provided if exercised within the scope of concurrent
powers and, in particular, within the coverage of exclusive powers as exercised by the
Bangsamoro Parliament.
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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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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:
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The Parties commit to work further on the details of the

Comprehensive Agreement in the context of this document and
complete a comprehensive agreement by the end of the year.
The components of the Comprehensive Agreement on the Bangsamoro are: (1)
Framework Agreement on the Bangsamoro; (2) Annex on Transitional Modalities
and Arrangements; (3) Annex on Revenue General and Wealth Sharing; (4)
Annex on Normalization; (5) Annex Power Sharing; and (6) Addendum on the
Matter of Bangsamoro Waters.
2
CAB was signed by both Parties on 27 March 2014, the Comprehensive

Agreement on 15 October 2012.
Emphasis added.
See first paragraph of the Annex on Power Sharing (APS).
See Second para. of the APS.
CAB Part III, para. 1.
CAB, Part III, para. 2. Emphasis added.
APS, third para.
See supra, note 7.
10 See Constitution, Art. X, Sec. 17.

11 See APS, Part Three, II; BBL, Art. V, Sec. 2.
12 APS, Fifth paragraph
13 See APS, Part One, paragraph 2.
14 Exclusive powers in BBL as provided in Section 3, Article V apply to the following
areas or matters: Agricultural, livestock and food security; Economic and cultural
exchange; Contract loans, credit and other forms of indebtedness with any
government, private bank and other lending institutions, except those requiring
sovereign guaranty; Trade, industry, investment, enterprises and regulation of
businesses taking into consideration relevant laws; Labor, employment, and
occupation; Registration of business names; Barter trade and counter trade
with ASEAN countries; Establishment of Free ports; Tourism; Creation of
sources of revenue; Budgeting; Financial and banking system; Establishment of
Bangsamoro government-owned and/or controlled corporations and financial
institutions; Authority to regulate power generation, transmission and distribution
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operating exclusively in the Bangsamoro; Operation of public utilities; Receive

grants and donations; Education and skill training; Science and Technology;
Research councils and scholarships; Culture and language; Sports and recreation;
Regulation of games and amusement operations; Libraries, museums, historical,
cultural and archaeological sites; Regulations on manufacture and distribution
of foods, drinks, drugs and tobacco; Haff and Umrah; Customary laws;
Declaration of Bangsamoro holidays; Ancestral domain and natural resources;
Protection of the rights of the indigenous people; Land management, land
distribution, and agricultural land use reclassification; Cadastral land survey;
Expropriation and eminent domain; Environment, parks, forest management,
wildlife, nature reserve and conservation; Inland and waterways for navigation;
Inland waters; Customary justice; Shariah courts and Shariah justice system;
Public administration and bureaucracy for the Bangsamoro; Health; Social
services, social welfare and charities; waste management; Establishment and
supervision of humanitarian services and institutions; identification, generation
and mobilization of international human resources; Establishment of Ausqaf
(endowment) and charitable trusts; Hisbah office for accountability as part of
Shariah justice system; Registration of births, marriages, and deaths; Housing
and human settlements; Development planning; Urban and rural development;
Water supplies and services, flood control and irrigation systems in Bangsamoro;
Public works and highways within the Bangsamoro; Establishment of appropriate
mechanisms for consultations for women and marginalized sectors; Special
development programs and laws for women, the youth, elderly, labor, the
differently-abled, and indigenous cultural communities; and Local administration,
municipal corporations and other local authorities including the creation of
local governments. In addition to these 57 matters which the CAB in Part III
also provides it includes a general welfare clause which says Establishment or
creation of other institutions, policies and laws for the general welfare of the
people in the Bangsamoro.
15 Constitution, Art. X, sec. 17. See also Section 16 of this Article
16 For reference to national laws as constitutional standards, see sections 16, 17, 18,
and 20 of Article X of the fundamental law.
17 Constitution, Article IX, Sec. 15. Emphasis added.
18 Emphasis added.
19 Executive Order No. 120, sec. 3(a). This is in pursuance of FAB in Part VII, para.
4(a).
20 Part VII, para. 3.
21 Para. 7.
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22 Art. X, Sec. 18.

23 Id.
24 APS, Part One, para 5.
25 Const., Art. X, sect. 17.
26 Article XII Sec. 2. Emphasis added.
27 Id. Emphasis added.
28 Emphasis added.
29 Respectively: 993 UNTS 3, entered into force 3 January 1976; 993 UNTS 171,
entered into force 23 March 1976.
30 CAB, Annex on Power Sharing; Part III. BBL, Art. V, sec. 3.
31 Section 16: The President shall exercise general supervision over autonomous
regions to ensure that the laws are faithfully executed; Sec. 17: All powers, functions,
and responsibilities not granted by the Constitution or by law to the autonomous
regions shall be vested in the National Government; Sec. 18: The Congress
shall enact an organic act for each autonomous region. The organic acts
shall likewise provide for special courts with personal, family and property law
jurisdiction consistent with the provisions of the Constitution and national laws; Sec.
20: Within its jurisdiction and subject to the provisions of the Constitution and
national law, the organic act of autonomous regions shall provide for legislative
powers (Emphasis added.)
32 These legislative powers are over: Administrative organization; Creation
of sources of revenue; Ancestral domain and natural resources; personal,
family, and family relations; Regional, urban and rural planning development;
Economic, social, and tourism development; Educational policies; Preservation
and development of the cultural heritage; and Such other matters as may be
authorized by law for the promotion of the general welfare of the people of the
region.
33 Emphasis added.
34 Emphasis added.
35 Emphasis added.
36 BBL, Art. VII, sec. 2. Emphasis added.
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37 BBL, Art. VII, sec. 1. Emphasis added.

38 BBL, Art. VI, Sec. 8.
39 BBL, Art. VI, Sec. 4. Emphasis added.
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The Proposed Bangsamoro Basic Law: Some Legal and Political Issues
the propoSeD baNgSamoro baSic law:

Some legal aND political iSSueS
Nasser A. Marohomsalic*
For the Bangsamoro, the road to autonomy is a pitfall of pockmarks, potholes and
what-have-you. The capitulation of the Moro Sultanates to the American colonialists on
some terms of amity through the 1900s did not quench the spirit of the Bangsamoro to
be free.
Road to Autonomy
In the 1934 Constitutional Convention, they registered their opposition to any plan
to include their homeland as part of the Philippine Republic. But their protestations
were ignored1. From then on Moro revolutionary leaders would emerge and keep on
the struggle, which the Philippine Government would suppress every time as an act of
outlawry, the undertakers and spearheaders of the revolution treated as a fair game. If not
dead in battle, all cajolery resorted to for their surrender and thereafter imprisoned and
tried, no room for leniency in some cases given the terms of their surrender an unwritten
commitment from the powers-that-be in Manila.2
In the closing decade of the 1960s3, the Moro National Liberation Front (MNLF)
emerged to continue with the armed struggle for self-determination of the Bangsamoro.
Negotiation after negotiation with the rebel organization proved futile, until a peace deal
between the Philippine Government (GPH) and the MNLF was concluded in 1996. With
the autonomous government in Muslim Mindanao in the hands of the MNLF from 1997
*
Presently, National Secretary of the IBP and Member of the IBP Law Journal. He was IBP Governor of
Western Mindanao Region (2009-2011), former Commissioner of Human Rights (1994-2001), former 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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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
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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.
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Product of Peace Agreement

President Benigno Simeon Noynoy Coquangco Aquino III has this to say of the
FAB, thus:
This framework agreement is about rising above our
prejudices. It is about casting aside the distrust and
myopia that has plagued the efforts of the past; it is
about learning hard lessons and building on the gains
we have achieved. It is about acknowledging that trust
had to be earned it is about forging a partnership that
rests on the bedrock of sincerity, good will, and hard
work.5
He denounced the Autonomous Region in Muslim Mindanao (ARMM) created in
1990 by Republic Act No. 9054, as a failed experiment.6
For the abolition of the ARMM and the creation of a parliamentary government
in its stead, the FAB provided modalities prescribing the passage of a Bangsamoro
Basic Law by Congress and participation thereof by the Bangsamoro, among others.
Accordingly, the President issued Executive Order No. 120 on December 18, 2012
creating the Bangsamoro Transition Commission (BTC) with 15 members, seven selected
by GPH and eight by the MILF including its chairman and appointed its membership.
The BTC submitted its draft of the Bangsamoro Basic Law to the President and after a
reformulation thereof by the peace panels of both parties7, the President certified it as a
priority bill and endorsed it to Congress on September 9, 2014.
In fine, unlike Republic Act 9054 the proposed Bangsamoro Basic Law is a product
of peace negotiations between the GPH and the MILF. Opines Carolyn O. Arguillas of
Mindanao News, Contrary to popular perception the ARMM is ... a product of the
national governments interpretation of how to end the Bangsamoro struggle.8
Social Obstacles
Interest groups have registered their opinions on the bill, some raising political issues,
others legal. So far, the public pulse is an uneven graph on the political seismometer.
Particularly, legal luminaries are divided on the constitutionality of some of its provisions,
which does not surprise me.
Lawyers are bred for disputation, and legal advocacy is their occupation. They
can take a position on legal or political issues even without affection. In keeping with
their duties to society, they are bound never to reject, for any consideration personal to
(themselves) the cause of the defenseless or oppressed; (and) in the defense of a person
5
Id.
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
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
Canon I (8)(9), Chapter 1, Code of Professional Responsibility.
10
210 SCRA 236, 2003.
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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
It is time that we do so in our own constitution, as a

recognition not of a religion but of the realities of
our cultural pluralism. There are many multi-cultural
nations which have achieved greatness by the acceptance
of a national unity amid cultural diversity.13
In the post-Edsa Senate, Manglapus sponsored Resolution No. 10 at its earliest sessions
expressing greater participation of the Bangsamoro in Central Agencies of Government
including Government-owned and controlled corporations in pursuit of representative
democracy.
My point is, in tackling the legal and political issues on the proposed Bangsamoro
Basic Law, there could be no better guidance than the wisdom of the icon of the IBP who
is a civil libertarian of the highest order and one statesman par excellence Senator Raul
S. Manglapus.
It is my submission that the proposed Bangsamoro Basic Law is an objectification of
self-government as envisioned in the Constitution and the United Nations Declaration of
the Indigenous Peoples.
Let me go then through the provisions of the proposed BBL where lawyers and other
sectors take issue.
Preamble
The preamble of the bill is a long construction, and some lawyers took issue with it.
This is how facile and feeblish critics have become in their prejudice. For easy reference,
the preamble reads:
We, the Bangsamoro people and other inhabitants of
the Bangsamoro, imploring the aid of the Almighty,
aspiring to establish an enduring peace on the basis of
justice in our communities and a justly balanced society,
and asserting our right to conserve and develop our
patrimony;
In consonance with the Constitution and the universally
accepted principles of human rights, liberty, justice,
democracy, and the norms and standards of international
law, reflective of our system of life prescribed by our
faith, and in harmony with our customary laws, cultures
and traditions;
Affirming the distinct historical identity and birthright
of the Bangsamoro people to their ancestral homeland
and their right to self-determination beginning with the
struggle for freedom of their forefathers in generations
13
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)
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past and extending to the present to chart their

political future through a democratic process that will
secure their identity and posterity, and allow for genuine
and meaningful self-governance as stipulated under the
Comprehensive Agreement on the Bangsamoro (CAB);
With the blessings of the Almighty, do hereby ordain
and promulgate this Bangsamoro Basic Law, through
the Congress of the Republic of the Philippines, as
the basic law of the Bangsamoro that establishes the
asymmetrical political relationship with the Central
Government founded on the principles of subsidiarity
and parity of esteem.
Many do not know that this provision is a reformulation of the Bangsamoro Transition
Commissions Draft and is crafted with the strong influence of Atty. Jose Luis Martin C.
Gascon, who served as member of the 1996 Constitutional Commission that drafted the
1987 Constitution.
No doubt, the draft BBL is the Constitution of the Bangsamoro Government,
providing as it does for a structure of power, a bill of rights and obligations and, as an
added feature owing to its nature as a bigger local unit of the Philippine State, an intergovernmental mechanism to iron kinks over jurisdictional issues in matters of governance
or problems in connection with the delineation of powers between the Bangsamoro
Government and the Central Government or the Philippine Government. They argued
that by the nature of the Philippine State as a unitary one, the provision of a preamble in
a Bangsamoro Basic Law is odd, promoting disunity instead of unity and thus threatening
the break up or the stability of the Philippine State.
It is my submission at the outset that no legal faultlines threaten to torn asunder
the political fabric of the nation. If there is any, it is the insurgency of the revolutionary
champions of the Bangsamoro. Precisely, the grant of self-government to the Bangsamoro
under the proposed BBL is the political formulation to end their separatist insurgency.
The visions and aspirations of the Bangsamoro as enunciated in the Preamble of the
PBBL check out with the principles and policies of the State in the Preamble of the 1987
Constitution or the policy objectives of the Philippine Constitution, which guarantee to
the Bangsamoro autonomy within the framework of national unity and development as
provided for in Article X of the Constitution.
Finally, for the cultural resolution of the issue, it suffices to point out that the
Bangsamoro Preamble adduces the adherence by the Bangsamoro to the Philippine
Constitution. Let me quote the pertinent passages in the Bangsamoro Preamble, thus:
We, the Bangsamoro people, . . . imploring the aid of
the Almighty . . .
In consonance with the Constitution and the universally
accepted principles of human rights, liberty, justice,
democracy, and the norms and standards of international
127
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.
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and cultural institutions, while retaining their right

to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.18
The scope and extent of self-government for the indigenous peoples under the UN
DRIP is expansive enough to lead even legal luminary to entertain the view that the kind
of self-government defined herein is one of substate.
Indeed, this early and in all candor, I would like to believe that the objection to the
inclusion of the preamble in the bill and the expression of the aspirations therein of the
Bangsamoro is more political than legal.
Flag and Anthem
The same observation goes for the sentiments against the adoption of a flag
and anthem for the Bangsamoro. In Article II, Section 3 of the proposed BBL, the
Bangsamoro Parliament is empowered to adopt the official flag, emblem and anthem of
the Bangsamoro.
In olden times and especially during the age of monarchism where absolute power
over the realm was exercised by kings, princes and emperors, who claimed divinity or
divine authority, the nobles were granted heraldries or emblems and sigils for authority
including standards with heraldic signs to identify them. Theyre flown over their manors
and castles, battlements and parapets together with the standards of their overlord or
king.
In the United States, every State flies its own flag. The Indian tribes sport their own
individual flags too more in affirmation of their nationhood and social dignity than as
a manifestation of their membership in the Union. And the U.S. Federal Government
recognized their statehood and nationhood even where these Indian tribes were possessed
of no formal, written Constitution but oral customs and traditions or laws in separate
parchments. The United considered them as the governing body of laws or constitution
of concerned Indian tribes.19
Theres no reason to deprive the Bangsamoro of the right to fly their own flag
and sing their own anthem too. The Bangsamoro is a juridical entity exercising the
power of self-government, impressed with such political character resulting from peace
agreement between its people and the majority Filipinos. Its people, sizeable of which
are the Bangsamoro, have their own distinct history and social systems, thus, possessed of
nationality or cultural identity that comes by as Bangsamoro. Their territorial domain is
bigger than many independent states, including the principality of Monaco, Marianas,
Singapore, Kuwait, Oman, Bahrain and some other independet States.
Much earlier, the Philippine Government acknowledged the historical identity
of the Bangsamoro. In many of its literature, it denominated the problem in southern
Philippines as a Moro Problem. It has gone into negotiation with the revolutionary
organizations of the Bangsamoro and entered into peace agreements with them, which
18
Article 5, id.
19
William C. Camby, Jr., American Indian Law, 4th ed., West Publishing, p.
129
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
Article 6 (1), id.
21
Article 7 (1), id.
22
Part I, Article 1 (1b), Indigenous and Tribal Peoples Convention.
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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
Proceedings of the 1986 ConCom, dated August 19, 1986, p. 490.
24
Section 2(d), Article III, PBBL.
131
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
Section 6, Article III, PBBL.
27
Preamble (6), UN DRIP.
28
Preamble (10), id.
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Emphasizing the contribution of the demilitarization

of the lands and territories of indigenous peoples to
peace, economic and social progress and development,
understanding and friendly relations among nations and
peoples of the world.29
xxx
Indigenous peoples shall not be forcibly removed from
their lands or territories. No relocation shall take place
without the free, prior and informed consent of the
indigenous peoples concerned and after agreement on
just and fair compensation and, where possible, with the
option of return.30
xxx
Indigenous peoples have the right to own, use, develop
and control the lands, territories and resources that they
possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they
have otherwise acquired.31
xxx
Indigenous peoples have the right to own, use, develop
and control the lands, territories and resources that they
possess by reason of traditional ownership or other
traditional ownership or other traditional occupation
or use, as well as those which they have otherwise
acquired.32
States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall
be conducted with due respect to the customs, traditions
and land tenure systems of the indigenous peoples
concerned.33
xxx
States shall establish and implement, in conjunction
with indigenous peoples concerned, a fair, independent,
impartial, open and transparent process, giving due
29
Preamble (12), id.
30
Article 10, UN DRIP
31
Article 26 (1), id.
32
Article 26 (2), id.
33
Article 26 (3), id.
133
recognition to indigenous peoples laws, traditions,

customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining
to their lands, territories and resources, including those
which were traditionally owned or otherwise occupied
or used. Indigenous peoples shall have the right to
participate in this process.34
xxx
Indigenous peoples have the right to redress, by means
that can include restitution or, when this is not possible,
just, fair and equitable compensation, for the lands,
territories and resources which they have traditionally
owned or otherwise occupied or used, and which have
been confiscated, taken, occupied, used or damaged
without their free, prior and informed consent.35
Unless otherwise freely agreed upon by the peoples
concerned, compensation shall take the form of lands,
territories and resources equal in quality, size and legal
status or of monetary compensation or other appropriate
redress.36
xxx
Indigenous peoples have the right to the conservation
and protection of the environment and the productive
capacity of their lands or territories and resources. States
shall establish and implement assistance programs for
indigenous peoples for such conservation and protection,
without discrimination.37
xxx
States shall take effective measures to ensure that no
storage or disposal of hazardous materials shall take
place in the lands or territories of indigenous peoples
without their free, prior and informed consent.38
xxx
Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a
134
34
Article 27, id.
35
Article 28 (1), id.
36
Article 28 (2), id.
37
Article 29 (1), id.
38
Article 29 (2), id.
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relevant public interest or otherwise freely agreed with

or requested by the indigenous peoples concerned.39
States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate
procedures and in particular through their representative
institutions, prior to using their lands or territories for
military activities.40
xxx
States shall consult and cooperate in good faith with
the indigenous peoples concerned through their own
representative institutions in order to obtain their
free and informed consent prior to the approval of
any project affecting their lands or territories and
other resources, particularly in connection with the
development, utilization or exploitation of mineral,
water or other resources.41
Another international instrument describes the lands occupied or otherwise used by
the Indigenous and Tribal peoples as territories. Thus:
In applying the provisions of this Part of the Convention,
governments shall respect the special importance for the
cultures and spiritual values of the peoples concerned of
their relationship with the lands or territories, or both as
applicable, which they occupy or otherwise use, and in
particular the collective aspects of this relationship.42
The use of the term lands in Articles 15 and 16 shall
include the concept of territories, which covers the total
environment of the areas which the peoples concerned
occupy or otherwise use.43
The UN DRIP is posited as an international customary law in North Cotabato Case44
and is a part of the Constitution according to its Incorporation Clause.45
39
Article 30 (1), id.
40
Article 30 (2), id.
41
Article 32 (2), id.
42
Article 13(1), Indigenous and Tribal Peoples Convention.
43
Article 13(2), id.
44
North Cotabato Province, et. al. vs. Government of the Republic of the Philippine Peace Panel on Ancestral
Domain, et. al., 568 SCRA 402, 523 (2008).
45
Section 2, Article II, Philippine Constitution.
135
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
Section 5, id; Section 22, Article XIII, PBBL.
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
Section 8, 11, id.
54
Section 10, id.
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Zones of Joint Cooperation

Legal alarums were raised against the provisions of the PBBL delineating the
Moro Gulf and the Sulu Sea as Zones of Joint Cooperation between the Bangramoro
Government and the Central Government55 and the creation of a Joint Body for the zones
of joint cooperation with representation from both governments, among other sectors,56
which is the body responsible for drawing up of policies in relation to the coordinates
of the Bangsamoro territory including the Bangsamoro Waters and the Zones of Joint
Cooperation.57
The areas of the Moro Gulf and the Sulu Sea go beyond the 12 nautical miles
of the Bangsamoro Waters between the baselines of islands that may compose the
Bangsamoro territory, which areas are subject to international law on navigation
under the United Nations Law of the Sea (UNCLOS), specifically allowing innocent
transit or passage to foreign vessels.58 Hence, the argument that the participation by the
Bangsamoro Government in whatever capacity over the Moro Gulf and the Sulu Sea is
an infringement of the exclusive power of the State on foreign affairs, which is a mark of
external sovereignty.
It is my submission that the legal resolution of this issue is provided in the PBBL itself,
which delimits the nature of the participation of the Bangsamoro Government in the
determination of policies on the Zones of Joint Cooperation. Thus:
The Central and the Bangsamoro Governments shall
work together to regulate the waters that comprise the
Zones of Joint Cooperation in the Sulu Sea and the
Moro Gulf. Policies shall be jointly drawn up for the
following purposes:
a. Protection of the traditional fishing grounds;
b. Benefitting from the resources therein;
c. Ensuring the interconnectivity of the islands
and mainland parts of the Bangsamoro so that
they are cohesive Bangsamoro entity; and
d. Ensuring the exercise of the preferential rights
of the Bangsamoro people, other indigenous
peoples in the adjoining provinces, and the
resident fishers in the Bangsamoro over fishery,
aquamarine, and other living resources in the
Zones of Joint Cooperation. The Joint Body
shall promulgated rules and regulations as to
the exercise of these preferential rights. The
preferential rights granted to the Bangsamoro
people under this section shall extend only
to those who can establish that they are
55
Section 18, Article XIII, id.
56
Section 19, id.
57
Section 18, 19, id.
58
Articles, 17, 18 and 52 (1), UNCLOS.
137
Bangsamoro as defined in this Basic Law or

descendants of a Bangsamoro as of February
2, 1987.
The Bangsamoro Government and the Central
Government shall ensure that there shall be free
movement of vessels, goods and people in these Zones
of Joint Cooperation.59
By definition of the PBBL this participation does not in anyway relate to foreign
affairs, and concern for the ability of the Philippine State to perform its obligations under
conventional international law or objective international law finds no basis in the light
of the last paragraph of Section 19, Article XIII of the proposed law, which ensures free
movement of vessels, goods and people in these Zones of Joint Cooperation.
At this point, it is in order to discuss the nature of our Archipelagic Waters which
refers to all the waters around between and connecting the different islands of the country
irrespective of its width or dimension, which can go far beyond the 12 nautical miles from
baselines from opposite shores.
As early as 1955, in a Note Verbale of the Philippine Permanent Mission to the United
Nations addressed to the UN Secretary General, the Philippine Government made it
known its position considering these waters as inland waters, not a part of the high seas
but are necessary appurtenance of [the land] territory [of the country], forming an
integral part of the national or inland waters, subjected to the exclusive sovereignty of the
Philippines . . .60
In the deliberations in the 1960 UN Conference on the Law of the Sea, the Philippine
Government reiterated the same position, excepting to any new rule on the breadth of
the territorial sea that may be adopted in the conference on the basis of the countrys
historic title on its waters proceeding from the Treaty of Paris of 1898 and its exercise of
uninterrupted sovereignty thereover since independence.61
In brief, the conduct by the Philippine State on its archipelagic waters is beyond the
pale of international law. Our Baseline Law sees to it. Republic Act 3046 as Amended by
5446 (1961) considers our Archipelagic Waters as Internal Waters.
Indeed, long before the UNCLOS our archipelagic waters are taken out of the
ambit of international law by legislation, which may be considered as exception to the
Incorporation Clause of the Constitution as a general rule. If the Philippine government
treads the line of the UNCLOS, it is at best in pursuance of objective international law
to keep up its stature as member of the international community, rather than as an act of
compliance to the Constitution or its treaty obligations. Apropos is the opinion of Dean
Magallona, thus:62
138
59
Section 19, id.
60
See Note Verbale, dated 12 December 1955. Cited in Merlin M. Magallona, A Framework for the Study of National
Territory: A Statement of the Problems, IBP Law Journal, Vol. 33 No. 2 (September 2008), p. 1. (Bracket supplied).
61
Id., p. 11.
62
Id., pp. 25-27. Citations omitted.
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. . . Resolution No. 121 of the Batasan by its own terms

cannot be binding as an act of concurrence for the reason
that the UNCLOS impairs the rights of sovereignty of
the Philippines under the Constitution and those under
the Treaty of Paris and that it effects amendments
to Philippine laws, contrary to the mandates of the
Declaration as part of the said Resolution, which has
the force of law in Philippine jurisdiction.
. . . Even on the assumption that as a treaty the UNCLOS
becomes binding law by virtue of ratification based on
valid concurrence by the Batasan, its implementation
involving as it does the reorganization of Philippine
territorial sovereignty is open to question under the
international law of treaties. The subject matter of the
UNCLOS implementation is the territorial status of the
Philippines which has been established and settled long
before the negotiations for the UNCLOS started in the
Third UN Conference on the Law of the Sea and much
longer before the entry into force of the UNCLOS on
16 November 1994.
Thus, UNCLOS is to be accorded retroactive
application, which customary international law does not
allow. As codified in the Vienna Convention on the Law
of treaties of which the Philippines is a party, the nonretroactivity rule provides that
Unless a different intention appears
from the treaty or is otherwise
established, its provisions do not bind a
party in relation to any act or fact which
took place or any situation which ceased
to exist before the date of the entry into
force of the treaty with respect to that
party.
Under the UNCLOS, there appears no intention
to apply its provisions retroactively. Article 308 of
the UNCLOS stipulates that it shall enter into force
12 months after the date of deposit of the sixtieth
instrument of ratification or accession, which took
place on 16 November 1994.
Article 310 of the UNCLOS allows a State party to
make declarations or statements with a view to the
harmonization of its laws and regulations with the
provisions of this Convention. But this provision
does not intend to define an obligation; it pertains to a
unilateral act or declaration of a state party which is left
139
to its discretion to make.

xxx
Above all, the UNCLOS cannot effectuate any alteration
of international agreements defining the territorial
sovereignty without derogation of state sovereignty.
It is a basic principle of international law under the
Charter of the United Nations as affirmed in the UN
Declaration on Principles of International Law that all
states enjoy sovereign equality. By the principle, each
state has the duty to respect the personality of other
states; the territorial integrity of the state as inviolable.
Idiosyncratic System
In fine, the apprehension by critics over the legality and constitutionality of the
provisions of the PBBL on the Bangsamoro preamble, flag, anthem and territory feeds on
prejudices born of history specifically in the failure to integrate the Bangsamoro into the
countrys political and spiritual worldview. Democracy that underwrites our government
and practical way of life should not be an idiosyncratic majoritarian system as to subjugate
the minorities and make them shed off their ethnicity. It should be liberalist, not literalist,
its adherents cosmopolitan, not bred in bigotry and bigittism, hearts suffused in kindness
and humility, minds stoked up with enlightenment and understanding.
At this point, I wish to remember here the nascent days of Islam before the Hijrah,
when the Prophets followers in Makkah escaped from the persecution of the Quraish,
the ruling nobility, and migrated to Abyssinia where its King Negus granted them refuge.
The Quran memorialized this Christian spirit, thus:
And nearest among them in love
To the Believers wilt though
Find those who say,
We are Christians:
Because amongst them are
Men devoted to learning
And men who have renounced
The world, And they
Are not arrogant.63
In the City State of Madinah, the Prophet formed a Commonwealth with the Jews
and the Christians in the surrounding environs of the city. Except for the payment of
Jizya, the tax for their protection and defense, the head and land tax, they were an
independent polity.64
Indeed, the Bangsamoro feel the recalcitrance of critics like a stiletto in their hearts for
another reason. The sultanic system of the Bangsamoro is the highest political organization
140
63
Surah 5, Maida or Table Spread, verse 85, Quran.
64
Philip K. Hitti, History of the Arabs. 1985: Chicago, p. 37.
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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
Section 22, Article II, Philippine Constitution.
67
Section 1, Article XIII, Philippine Constitution (Emphasis supplied).
141
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
Nasser A. Marohomsalic, The Framework Agreement, supra.
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national community.71 The Moro is not Filipino, to quote an American military-writer,

by any ties of race, government, or religion.72
In order to keep our sultanic system attuned to modern times, the PBBL afforded
a kind of political system (that) is democratic, allowing its people to freely participate
in the political processes within its territory.73 Towards this end, the PBBL mandates
the Bangsamoro Government (to) adopt an electoral system suitable to a ministerial
form of government, which shall allow democratic participation, encourage formation of
genuinely principled political parties, and ensure accountability.74
The adoption of a different system of government for the Bangsamoro other than a
presidential and unitary type is preponderantly intimated by the 1986 ConCom, providing
its justification therefor. Thus:
[Autonomy], notes Commissioner Jose Nolledo, who
was the Chairman of the Committee which drafted the
regional autonomy provisions of the 1987 Constitution,
is an indictment against the status quo of a unitary
system that . . . has intellectually tied the hands of progress
in our country . . . Our varying regional characteristics
are factors to capitalize on to attain national strength
through decentralization.75 This proceeding in the
Constitutional Commission was quoted by the Supreme
Court with approval in the Disumangcop case. Therein,
the High Court took a dig against the assimilationist
character of the legislative policy of the Philippine
Government. Thus:
Autonomy, as a national policy,
recognizes the wholeness of the
Philippine society in its ethnolinguistic,
cultural, and even religious diversities.
It strives to free Philippine society
of the strain and wastage caused by
an assimilationist approach. Policies
emanating from the legislature are
invariably assimilationist in character
despite channels being open for
minority representation. As a result
democracy becomes an irony to the
minority group.76
71
Disomangcops, et. al. vs. DPWH, et. al., G.R. No. 149848, 2004, p. 228.
72
Lt. Col. Loan D. Finley, The Mohammedan Problem in the Philippines. In the Journal of Race Development, vol. 5,
No. 4, April 1915, p. 353.
73
Section 2, Article IV, PBBL (Bracket supplied).
74
Section 3, id. (Bracket supplied).
75
III Records, 182-183, 11 August 1986. In Disumangcop, et. al., vs. DPWH, et. al., G.R. No. 149848, 2004.
76
Disomangcop, id.
143
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
See Article VII, PBBL.
78
Section 1 Article 11, Philippine Constitution.
79
Section 2, Article IV, PBBL.
80
Section 3, id.
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subsidiary power or power of internal sovereignty.

It is apt to adduce as arguments to dispose of the negative proposition the General
Principles and Policies governing the conduct and direction of self-government by
the Bangsamoro which clarify the fact that the Bangsamoro Government is a special
subsidiary State of the Philippine Government. Thus:
The Bangsamoro abides by the principle that the country
renounces war as an instrument of national policy,
adopts the generally accepted principles of international
law as part of the law of the land and adhere to the
policy of peace, equality, justice, freedom, cooperation
and amity with all nations.81
xxx
The Bangsamoro Government shall respect and adhere
to all international treaties and agreements binding
upon the Central Government.82
xxx
. . . the President shall exercise general supervision over
the Bangsamoro Government to ensure that laws are
faithfully executed.83
The PBBL hews to the Constitution. The term of office for members of the
Bangsamoro Parliament is the same as that of the term of three years of local government
officials, they being a local government officials although categorized differently in view
of the stature of the Bangsamoro Government as a bigger structure exercising powers of
internal sovereignty owing to its nature as a form of self-government.84 The same threeyear term is prescribed for members of the House of Representatives.85 No member of
the Bangsamoro Parliament shall serve for more than three consecutive terms.86 The same
restriction is provided in the Constitution for members of the House of Representatives87
and elective local officials.88
But I entertain some apprehension on the constitutionality of the provision of the
PBBL mandating the dissolution of the Bangsamoro Parliament on a No Confidence
Vote by two-thirds of all members of the Parliament against the government of the day
81
Section 5, Article IV, PBBL.
82
Section 8, Article IV, id.
83
Section 3, Article VI, PBBL. This provision is a reinstatement of Section 16, Article X of the Philippine Constitution: The President shall exercise general supervision over autonomous regions to ensure that laws are
faithfully executed.
84
Section 11, Article VII, PBBL, Section 8, Article X, Philippine Constitution.
85
Section 7, Article VI, Philippine Constitution.
86
Section 11, Article VII, PBBL.
87
Section 7, Article VI, Philippine Constitution.
88
Section 8, Article X, id.
145
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
Section 218. Article V, id.
94
Section 2, Article XVII, id.
95
Section 5, 6, Article XVI, id.
96
Section 2(7), Article V, id.
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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
Section 3, Article V, PBBL.
98
Section 13, id.
99
Section 15, id.
100
Section 14, id.
147
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
Section 30, id.
102
Id.
103
Section 1, id.
104
Section 2, id.
105
Section 3, id.
106
Section 4, id.
107
Section 5, id.
108
Section 6, id.
109
Section 9, id.
110
Section 10, id.
111
Section 12, id.
112
Section 13, id.
113
Section 7, id.
114
Section 17, id.
115
Section 14, id.
116
Article VI, PBBL.
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national sovereignty and vested rights.117

Congressional Exercise of Sovereignty
The devolution or grant of these powers to the Bangsamoro Government is an
exercise of sovereignty on the part of Congress, their mantle of authority proceeding
from Section 20(9) of Article X of the Philippine Constitution: Thus:
Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the
organic act of the autonomous region shall provide for
legislative power over:
1)
2)
3)
4)
5)
6)
7)
8)
Creation of services of revenues;
Economic, social and tourism development;
Preservation and development of the cultural
heritage; and
9) Such other matters as may be authorized by law
for the promotion of the general welfare of the
people of the region. (Underlining supplied)
This general welfare clause provision on autonomy in the Constitution118 is flexible
as a porous sponge to absorb the terms of peace with the Bangsamoro as enshrined in
the PBBL. Peace as a political value underwrites our democracy. This is a paramount
principle enunciated in the Philippine Constitution. Thus:
The maintenance of peace and order, the protection
of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment of all the
people of the blessings of democracy.119
And the Constitution prescribes for the attainment of peace, especially with the
Bangsamoro, not to mention the Cordillerans, with the grant of autonomy to them
under Article X of its provisions which empowers Congress to grant additional powers of
autonomy. Remarkably too, the Constitution does not provide for a restrictive or stingy
policy in the pursuit by the State for autonomy for the Bangsamoro. It mandates the
State policy that The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development.120 In the
articulation of the 1986 ConCom, which drafted the 1987 Constitution, the autonomy
117
Section 4(a)(b)(h), id.)
118
Section 20(9), Article X, Philippine Constitution.
119
Section 5, Article II, id.
120
149
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
Section 3, Article X, PBBL.
123
Section 4, id.
124
Sections, 5, 6 and 7, Article X, id.
125
Section 7(a)(b), Article X, id.
126
Section 7, id.
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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
Section 5(2), Article VIII, Philippine Constitution.
130
See Islamiclearningmaterials.com/sharia.
151
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
Section 9 (a), Article X, PBBL.
132
133
134
Id.
135
Section 5(5), Article VIII, Philippine Constitution.
136
137
Id.
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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
See Section 5 (6), Article VIII, Philippines Constitution
139
140
Section 6, Article VIII, Philippines Constitution.
141
142
143
Id.
153
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
Section 13, id.
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).
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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
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
Id., pp. 71-72.
158
Id., p. 81.
159
Id.
160
See C.V. Wedgwood, The Thirty Years War. 1938: The Columbia Electronic Encyclopedia, 6th ed. In www.
infoplease.com.
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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
See www.historytoday.com; en.m.wickipedia.org; and www.historylearning.com.
162
Much of Africa and Oceania were placed under the program. The last country to be weaned from trusteenship
and became independent in 1994 is Palau. (See en.m.wikipedia.org).
163
Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro, supra, p. 2.
164
See Jemy Gatdula, The Sovereignty Concept Under Philippine Law and International Economic Law, IBP Law Journal,
Vol. 32 No. 3 (July-September 2006), p. 94, citing James Wilford Garner, Political Science and Government. 1928:
American Book Co., New York.
165
77 Phil. 856 (1947).
166
Jemy Gatdula, supra, P. 94.
157
the term unity for and as an attribute of sovereignty.167

Nevertheless, Gatdula expresses his condescending regard for the definition of
sovereignty as such. Thus:
The concept of sovereignty is highly ambiguous and
this is essentially why there is this tension between
international trade and domestic laws, between national
rights and the multilateral trading system. If there
is indeed a defined concept of sovereignty, then that
definition would most probably be only in the mind with
only the most tenuous link to reality.168
These characteristics and attributes of sovereignty, he pointed out, are all pretty well
and good for law students to study and memorize [But] in practice they are hard to
actually put down in the messy world of reality.169
Indeed, a closer look at the Laurel case will reveal the messy state of sovereignty as a
source or political tool of power and governance.
Herein, the accused was charged of treason for adhering to the enemy (Japanese
Occupation Forces) and giving the latter aid and comfort under Article 114 of the Revised
Penal Code committed during World War II. For his defense he argued that he cannot
be tried for treason since his allegiance to the Philippine Government was suspended or
servered during the occupation.
In disposing of the issue the Supreme Court ruled that allegiance to the Philippine
Government by its citizens cannot be suspended or severed temporarily during the
interregnum of Japanese Rule for sovereignty inheres permanently in the Philippine State
and its citizens owe total and lifelong loyalty to it. Despite deprivation of its effective
control and administration over its territory, the Supreme Court opined, the Philippine
Government still stood as sovereign to its people and over its territory and only its exercise
of sovereignty was suspended.
Easily one discerns the weakness of this judicial decretory. What if the occupying
forces won the war and effectively administered the country, installing its puppet but
popular government? What will happen now to the inviolability, indivisibility, permanency
and absolutism of sovereignty? Will sovereignty still inheres in the defeated or ousted
Philippine State? Or, transferred to the victor or its sponsored Philippine government
under the Japanese Great East Asia Co-Prosperity Sphere? At the latter instance,
sovereignty then becomes a malleable political organism atrophied of its characteristics
and attributes.
The Supreme Court factored into its discussion on sovereignty the political status of
the country as a Commonwealth. For all intents and purposes the Philippines then was a
colony of the United States, allowed to exercise self-government under its tutelage presided
over by the Office of the American High Commissioner acting as personal representative
158
167
Id., p. 95, citing Mariano F. Magsalin, Jr., Philippine Political Law, p. 68 (2002).
168
Id.
169
Id. (Bracket supplied)
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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
See Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro, supra.
171
North Cotabato case, supra.
172
See Nasser A. Marohomsalic, et. al., The Memorandum of Agreement on Ancestral Domain: A Commentary, IBP Law
Journal, Vol. 33 No. 2 (September 2008), pp. 85-87.
159
too in the resolution of the issue of southern Sudan.173

Even before the introduction of UN DRIP in 2007, the world is a witness to
developments in our part of the globe that portend for the strengthening of the doctrine
of internal sovereignty in international law. Aceh and Papua, two provinces of Indonesia,
were granted special autonomy in 2005 and 2001, respectively. East Timor overstepped
the bounds and declared its independence from Indonesia in 1999. It gained international
recognition as an independent nation on May 20, 2002.
In contemporary times the United States had gone strides to empower federally
recognized Indian tribes in reservations.
In his special message to the U.S. Congress on March 6, 1968, President Lyndon
Johnson announced the policy, thus:
The needs of the Indians should be identified from the
Indians viewpoint as they should be This principle
is the key to progress for the Indians.174
In 1975, self-government was granted to these Indian tribes with the passage by the
U.S. Federal Congress of the Indian Self-Determination and Education Act.175
At this point, it is pertinent to quote the opinion of Marck Malloch Brown, a former
UN Deputy Secretary-General, UK Foreign Office Minister of State for Africa and
Member of the World Economic Forum Global Agenda Council on Global Governance.
Thus:
This is a tricky time to be a state, and an even trickier
time to be a citizen. The nation-state, the classic
provider of security and basic wellbeing in exchange for
citizens loyalty, is under threat--both at home and as the
fundamental unit of international affairs.
New types of loyalties and associations are challenging
the states traditional role. Some are geographic. In
Europe alone, there at least 40 would-be Scotlands
seeking separation of some kind from the countries in
which they now find themselves. Other loyalties are
based on other kindred identities not on just religious
or ethnic, but on shared commercial, political or other
interests. Today, many more of us are supporters of
NGOs than are members of political parties.
In short, our allegiances, particularly in the West, have
rarely seemed more divided than they do now. Amartya
Sen, the Nobel laureate economist, has argued that we
160
173
Id., pp. 86-87.
174
Frances Paul Prucha, ed., Documents of United States Indian Policy. 1990: University of Nebraska Press, 2nd Edition,
p. 249.
175
Id., pp. 274.
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can learn to live with these multiple identities and even

thrive with the diversity of citizenships and loyalties that
they allow us.176
The point is, the Bangsamoro Government as an exemplification of the right to
internal sovereignty under the Philippine Constitution and the UN DRIP or International
Law is long overdue. Doubtless, this legal and political ideal fosters in general the
dignity of everyman and in particular the dignity of every Filipino and every Moro. It is
retrogressive to now quarrel with this Ideal.
A Way of Peace
The PBBL provides for the ratification of the Bangsamoro Basic Law by the majority
of the votes cast in the provinces, cities, and geographical areas in a plebiscite conducted
for the purpose.177 These areas are enumerated in Article XV of the PBBL.
Some critics expressed the view that the whole country should be involved in the
ratification of the Bangsamoro Basic Law, arguing that the self-government envisioned in
the law is far different from the autonomy defined in Republic Act No. 9054. Indeed, the
envisioned law, if enacted, is a revision of Republic Act No. 9054, the current autonomy
law for the Bangsamoro.
But I bat for the ratification of the BBL by the Bangsamoro themselves and the
indigenes and residents of Muslim Mindanao.
The Philippine State is a democracy, its legislature run by the representatives of the
people. To require the whole Filipino voters to decide on the political fate of an insurgent
section of the population is a negation of our representative form of government. What
will obtain then is direct democracy, which is not in anyway prescribed for the ratification
of a basic or autonomy law for the Bangsamoro.
The idea for a national plebiscite is also a throwback to remote and wilder times
when a society of clans was the highest form of political organization, with each clan
an aggrupation of families related by blood huddled in rustic country and misty, rugged
heights.
As early as Biblical times, representative democracy was practiced by the prophets,
the best representatives of their people who were divinely inspired. Prophet Moses
selected capable men from all the people to share with him the burden of leadership and
governance men who feared God, men of truth and honor who hated dishonest gain
and covetousness and appointed them as officials over thousands, hundreds, fifties
and tens to decide cases by themselves and bring the difficult ones to him.178 Prophet
Muhammad had his select companions to lean an ear to. In the City State of Madinah
where he sought refuge and began his vicegerency, he maintained the leadership of the
naquibs or leaders of the tribes in his administration.
176
Mark Malloch Brown, The New Frontiers of Loyalty, Philippine Daily Inquirer, December 10, 2014 issue, p. A19.
177
Section 1, Article XV, PBBL.
178
Exodus 18:13-24.
161
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
Section 18(2), Article X, Philippine Constitution.
180
Section 1(2), Article II, R.A. 6734, See Abbas, et. al. vs. Commission on Elections, et. al., 179 SCRA 296, 1989.
181
Id., p. 298.
182
1 Corinthians 13:13: Of faith, hope and love, the greatest of these is love.
183
Id., 13:3.
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SB No. 2408 is Beyond the Power of Congress to Pass
S.b. No. 2408 iS beyoND the power of coNgreSS to paSS*

Vicente V. Mendoza**
Senate Bill No. 2408 proposes the Bangsamoro Basic Law. It incorporates the
Comprehensive Agreement on the Bangsamoro (CAB) and its Annexes, which the
Government of the Republic of the Philippines peace panel and the counterpart panel of
the Moro Islamic Liberation Front (MILF) entered into on March 27, 2014. A counterpart
bill (H.B. No. 4994) has been filed in the House of Representatives, apparently so that
the measure can be simultaneously considered and enacted by Congress by March of this
year. This fact cautions prudence in the consideration of so important a measure as this
one which is designed to achieve peace in a troubled part of our land. I am certain the
honorable members of Congress are aware of this.
The CAB is actually the second attempt by the parties to end the armed conflicts
in Muslim Mindanao. The first one, the Memorandum of Agreement on Ancestral
Domain, or MOA-AD, which was made in 2008, was declared void by the Supreme
Court for being beyond the power of the Government to make under the Constitution.1
The question is how different is the CAB from the MOA?
Comparing the two agreements, I find much that has been done to make the
Bangsamoro Basic Law conform to the Constitution and to put stress on development
and the attainment of peace. Nonetheless, the Bill contains declarations of principles and
provisions which, when read together, still reveal secessionist inclinations, notwithstanding
the claim in the Preamble that the Bill is consistent with the Constitution and in
its definition of the Bangsamoro Territory that the territory remains a part of
the Philippines. The recognition of the right [of the Bangsamoro people] to 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
autonomous region is a part of the Philippine Archipelago.3 The term territory, as

defined in Blacks Law Dictionary, means A part of a country separated from the rest
and subject to a particular jurisdiction, a geographical area under the jurisdiction of
another country or sovereign power. Such, for example, was the Philippines as an
unincorporated territory of the United States before it was granted independence on
July 4, 1946, or the trust territories under the Charter of the United Nations, which are
former colonies under administration by other countries under commission by the United
Nations, pending the eventual grant of independence to them, like the Marshall Islands
and Mariana Islands in the Pacific, and the French and the British Cameroons in West
Africa. To call the autonomous region the Bangsamoro Territory4 is to imply that it is a
separate part of the Philippines waiting to become independent.
It is said that self-determination is a principle recognized in the Charter of the
United Nations. It is, but self-determination in that context refers to the rights of the
former colonies which, as already stated, were placed under the international trusteeship
system of the United Nations following World War II in order to prepare them for selfgovernment and eventual statehood.5 The principle cannot be applied to ethnic groups
like the Bangsamoro, which is not a colony but a part of the Philippines, for which regional
autonomy is what is granted by the Constitution.
Moreover, as the Supreme Court noted in its decision in the MOA-AD case, the
international law principle of self-determination has evolved within a framework of
respect for the territorial integrity of existing sates. The various international documents
that support the existence of a peoples right to self-determination also contains statements
supportive of the conclusion that the exercise of such right must be sufficiently limited to
prevent threats to an existing states territorial integrity or the stability of relations between
sovereign states.6 Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to internal self-determination.7
Indeed, the dismemberment of the national territory can result from such provisions
of the Bill. As has been pointed out by a professor of international law, Groups do not
secede merely because they are ethnically distinct, and if they did they would probably not
get much support. . . . When a group seeks to secede, it is claiming a right to a particular
3
CONST., ART. I, SEC. 1 provides: The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction. . . . The phrase other territories refer to Philippine claim to Sabah.
S.B. No. 2408, Art. III, Sec. 1.
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).
Id., 568 SCRA, at 494.
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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).
Province of North Cotabato, 568 SCRA, at 481.
10
S.B. No. 2408, Art. II, Sec. 1 provides: Those who at the time of conquest and colonization were considered
natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, including
Palawan, and their descendants, whether of mixed or of full blood, shall have a right to identify themselves as
Bangsamoro by ascription or self-ascription. Spouses and their descendants are classified as Bangsamoro.
11
Id., Art. VII, Sec. 9.
12
CONST., ART. V, SEC. 1.
13
S.B. No. 2408, Art. VII, Secs. 1, 5.
14
Id., Secs. 2, 29, 33
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
Id., Secs. 1-3.
16
CONST., ART. X, SEC. 18.
17
Id., ART. X, SEC. 15.
18
S.B. No. Art. V, Sec. 3 (7).
19
Id., Art. XII, Sec. 22.
20
Id., Art. X11, Sec. 24; Art. V, Sec. 3 (17).
21
Id., Art. V, Secs. 2-4.
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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.
The government is given concurrent powers over the following matters:22

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Social security and pensions

Quarantine
Land registration
Pollution control
Human rights and humanitarian protection and promotion
Penology and penitentiary
Auditing
Civil Service
Coastguard
Customs and Tariff
Administration of Justice
Funding for the maintenance of national roads, bridges, and irrigation
systems
13. Disaster risk reduction and management Public order and safety
Thus, under the Bill, the Central Government would be like the Federal Government
of the United States a government of enumerated powers with the balance of powers
retained by the governments of the several states. The Philippine Government, however,
is a unitary government. Under the Constitution, it possesses all powers of sovereignty,
except only those given to the autonomous regions in the Constitution, to wit:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region,23 and those which may be granted
by law.24
22
Id., Art. V, Sec. 2.
23
CONST., ART. X, SEC. 20.
24
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
S.B. No. 2408, Art. XIII, Sec. 8.
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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
CONST. ART. XII, SEC. 2.
27
Id., ART. IX, C, SECS.1-11.
28
29
S.B. No. 2408, Art. VI, Sec. 3.
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.
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a defined territory, a government, and a capacity to enter into relations

with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it which has
betrayed itself by its use of the concept of association runs counter to the
national sovereignty and territorial integrity of the Republic.31
Indeed the Bangsamoro is similar to the Commonwealth status of the Philippines
before the withdrawal of American sovereignty from its territory sovereign although not
fully independent. The creation of the Bangsamoro follows the same process in creating
the present government of the Philippines. As described by the U.S. Supreme Court in
Hooven & Allison v. Evatt,32 that process was as follows:
Step by step, Congress has conferred greater power upon the territorial
government, and those of the federal government have been diminished
correspondingly, although Congress retains plenary power over the
territorial government until such time as the Philippines are made
independent. This process culminated in the Act of March 24, 1934,
c. 84, 48 Stat. 456 providing for the independence of the Islands.
The adoption by the Philippines and the approval by the United States
of a constitution for the Commonwealth of the Philippine Islands,
as provided in the Act, have prepared the way for their complete
independence.
Accordingly, the Supreme Court held that the Commonwealth Government was a
sovereign government, though not absolute but subject to certain limitations imposed in
the Independence Act and as such was entitled to the allegiance of the Filipino people
even during the Japanese Occupation of this country.33
Of course the Philippine Congress does not have the authority to create a sovereign
state as the U.S. Congress has with respect to its territories and possessions. So by what
authority of Congress is the Bangsamoro Government is justified to be created? It is said
that its relation to the Central Government is asymmetric, meaning to say, it is distinct
from other regions and other local government.
This is to beg the question, namely, whether Congress has authority to create a
political entity that is different from the other forms of local governments by simply
describing the relation of such entity to the National Government as asymmetric. In
the case of the autonomous regions, their creation is subject to provision that (1) they are
created within the framework of [the] Constitution and the national sovereignty as well
31
Province of North Cotabato, 568 SCRA, at 481-482; Vicente V. Mendoza, The Legal Significance of the MOA on
Ancestral Domain, 83 PHIL. L.J. 489, 493-495 (2008).
32
324 U.S. 652, 89 L.Ed. 1252, 65 S.Ct. 870 (1945)
33
Laurel v. Misa, 77 Phil. 856 (1947) (res.).
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
CONST., ART. X, SEC. 15. See also id., SEC. 18.
35
36
Framework Agreement on the Bansamoro, Oct. 15, 2012, VII, 4 (a) (b), Annex on Transitional Arrangements
and Modalities, I, C-D.
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BBL: Sovereignty versus Sub-State
bbl: SovereigNty verSuS Sub-State1

Julkipli Wadi
It is an honor to be given the opportunity to share my view in todays Joint Committee

hearing of the Senate on the Bangsamoro Basic Law (BBL). In the invitations guideline
provided by the Senate Joint Committee, resource person is requested to take affirmative
or negative position relative to the BBL while given four topics to choose from and identify
one topic as a focus of discussion. The four topics are:
1.
2.
3.
4.
Legislation v. Constitutional Change

Checks and balances in National Government v. None in BBL
Sovereignty v. Sub-State; and,
Territorial Integrity v. Functional Division
As a supporter of BBL, I would like to discuss the subject, Sovereignty v. Sub-State,

with emphasis on the latter (i.e., sub-state) in the context of Philippine experience in
Mindanao and the Sulu Archipelago.
Last Monday, the chair of the Philippine panel on the GPH-MILF peace process
exhorted this august body to consider the broad and dynamic field of political Science
not solely the legal construction of Philippine Constitutional Law as a prism in
understanding the BBL, its nature, and the vision it purports to entrench known as the
Bangsamoro Political Entity.
If I may interpret the tone of argument of GPH Peace Panel Chair Prof. Miriam
Coronel-Ferrer, she is almost making a Plea for Congress to use a broader and dynamic
scale in weighing the merits (or demerits) of the BBL. It is a scale that is able to harness
the tools of political and legal concepts, theories and principles relative to todays trend
of sub-national level governance discourses and development in many parts of the world.
One of the recent works on this subject is the book given to you last Monday by Prof.
Ferrer, Markku Sukksis Sub-State Governance Through Territorial Autonomy: A Comparative
Study in Constitutional Law of powers, Procedures and Institutions (2011)
If I quote Ferrers plea and the work of Sukksi, it does not mean that I conspire
with her in pushing for particular perspective on the issue of sub-state and its cases as
articulated quite comprehensively by Markkus Sukksi. Although we are friends with Prof.
Ferrer, we hardly talk or share views as she is too absorbed with her position as Peace
Chair, given the fact, too, that I do not wholly toe the line OPAPP on issues relative to
strategic questions of the peace process. It is just that Sukksis work is readily available in
the internet where any student of Political Science, Public Administration and Political
and Constitutional Law could easily read.
But there is another scale that I would like to add as part of a weighing instrument
to assess the BBL and its sub-state proposal. It is the scale of history. Perhaps, the field
of history (particularly Filipino-Moro history) would provide a comprehensive frame
1
A paper presented during the Joint Committee Hearing on the Bangsamoro Basic Law held at Recto and 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
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critical years of 2016.

Before I present my conclusion as to why Mindanao and the Sulu Archipelago was
subjected to this morass of tier-making and tier-changing as I would argue that the
subject of sub-state presents as relatively new mode of tier-making with its attendant
politics with the national government and its tendency, as feared by many, in becoming
a gateway for secession, I would like to note another paper that I wrote when President
Arroyos administration was in its twilight year after being bruised heavily due to the
bungled Memorandum of Agreement of Ancestral Domain (MoA-AD) in 2008 and the
Maguindanao Massacre in 2009. It is entitled, The Philippine and the Bangsamoro Policy:
Breaking the Sisyphean Ordeal (2012.).
Here, with added but unimplemented tier called the BJE while increasing the
number of political experiments in the south, I articulated my frustration after years of
peace process between the government and MILF during the Arroyo Administration,
only to end up slugging it out once again. I thought the metaphor of Sisyphus fits in
explaining the morass wherein whenever the peace process is about to reach the peak of
the mountain, the weight of of its load becomes too heavy that it would cascade down the
mountain rendering useless all peace efforts and other peace dividends; so that, it would
take succeeding Philippine administrations to take the cudgel of rolling up the stone of
the peace process once again.
In todays presentation, I raise two questions: What explains the continuing tier-making
and tier-changing in Mindanao and the Sulu Archipelago Could the sub-state project
as contemplated in the BBL break the cycle and stabilize Philippine intergovernmental
relation in Mindanao and the Sulu Archipelago?
These questions entail much time to discuss and elaborate. For brevity, let me quote
the first paper mentioned above:
The man source of instability is anchored on a century of unresolved contestation over the political
status of Mindanao and Sulu. Moreover, the colonial mixture of Philippine political system that failed to
address the power vacuum in Mindanao and Sulu reinforces intergovernmental instability. The unitary
set-up of the Philippine government was a legacy of Spain Yet, the set-up was institutionalized by the
Philippine Commission to facilitate the extension of American sovereignty to the Philippines including
Mindanao and Sulu. The separation of powers (executive, legislative , and judiciary) was copied from
the US. The unitary set-up defines the vertical divisions of powers (structure of government) between
the national and local government units while the horizontal separation of power defines the form of
government (e.g., presidential or parliamentary).
In all indications, the colonial-political mixture is what creates a disjuncture between the horizontal
and vertical relations of powers because, from the point of view of governance, a unitary set-up requires
a relatively homogenous society while an effective application of separation of powers presupposes a stable
system of democracy As a consequence, it emboldened inter-governmental problem and rendered futile
the national government effort of tier-making and tier-changing and further worsened the power vacuum
in southern Philippines (Diliman Review 2000).
Despite my rather grim view about the relation of the Philippine government
vis-a-vis the Bangsamoro in terms of gaps especially their historically asymmetrical
intergovernmental position ever since, I thought the concept of sub-state provides an
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option where the two fundamental basis of power in a democratic system of polity
(i.e., separation of power; and, division of power) could be adjusted in such a way that
while the former is made to share power horizontally (e.g. concurrent, exclusive powers)
with the Bangsamoro, structural relation of power (i.e. division of powers in terms of
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).
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If such an approach of unitary, strong-executive type is made to persist, we would be

perpetuating patron-client relationship, with local or regional executives in Moro areas
forced to kowtow to the national government particularly to the Executive.
As local executives act as alter ego of the President and thereby dominating the local
and regional political system, local and regional legislatures are consequently rendered
weak and under-utilized, autonomy and decentralization reduced to a hollow concept. On
the ground institutions of autonomy are swiped under by patronage politics, warlordism,
as so on. For sure, patronage system, political dynasties and political bossism are prevalent
not only in the south but the whole country as a whole. I would contend though that due
to the depth of political and cultural asymmetry between Moro society and the national
community, there is both qualitative and quantitative difference of patron-client relation,
affecting thus the working of intergovernmental condition in the area.
There is a need to adjust the fulcrum of separation of powers structure (horizontal)
with the division of power relation (vertical) away from strong-executive type of stronglegislature in mid-tier or regional level where check and balances are made to operate not
in traditional presidential form where the three branches of government are conceived to
be independent and co-equal but along parliamentary arrangement where the parliament
as legislature minus the judiciary co-exists with Executive referred to as Prime Minister
or Chief Minister for that matter. The rationale of having a strong legislature, like a
parliament, is for the real meaning of autonmy to be fully realized in the regional or local
level.
The Constitutional question, thus, is: Can a State with a unitary structure and a
presidential form of government accommodate a tier or sub-state that carries a
strong-legislature feature generally understood as parliamentary or ministerial form of
government.
I would leave this question for our Constitutional lawyers to argue. My end at this
juncture is to articulate the impact of power dispersal through traditional mode of
autonomy using strong-executive approach without making adjustment in the fulcrum of
power relation on both relation on both separation and division of power that often results
in the instability of political and administrative tiers between the national government
and regional and local government as shown vividly in continuing political experiments
in Moro areas.
It must be noted, however, that the long political experiment did not only hamper
autonomy and democratization in the south; it practically exhausted national resources
suggesting that Moro demand for power and autonomy is insatiably endless thus
burdening the State almost perpetually. Traditionally, the national impulse is to lay the
blame on the Moros with their doggedness and tenacity in pursuing their struggle for selfdetermination. But as Moro fronts like the MILF begins to redefine self-determination
generally in its internal dimension not its external aspects, the government should also
be ready to make corresponding recalibration beyond traditional approach of autonomy.
At this point, I would like to leave this major Constitutional question and address
the fear of some that the BBL may serve as a gateway for secession of the Bangsamoro.
Arguably, this fear is not necessarily unfounded. The draft BBL is not simply a political or
legal document. The BBL is a vision of possibilities whose tendency could tread in many
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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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Official Statements
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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Official Statements
legiSlatioN vS. coNStitutioNal chaNge

Teresita Deles
Presidential Adviser on the Peace Process
When the negotiations between the Government and the Moro Islamic Liberation
Front (MILF) restarted in 2010, we knew that we had a daunting task ahead of us. The
Supreme Courts decision to render the contents and the manner by which the Memorandum of Agreement on Ancestral Domain (MOA-AD) was drafted as unconstitutional and
contrary to law weighed heavily on our scale of decision-making. Even more, the immediate repercussions of a botched peace process the re-ignition of violence, the many lives
and properties lost and horribly affected, the general sentiment of hopelessness were
our constant reminders that we cannot take every word, phrase, or statement in any of
the political agreements lightly. Thus we made it our mission to prevent any misstep in
forging the Comprehensive Agreement on the Bangsamoro (CAB) to keep all the provisions therein within the flexibilities of our Constitution and as guided by the Supreme
Court ruling in the landmark case of the Province of North Cotabato v. Government of
the Republic of the Philippines or the MOA-AD case.
Since the Government Panel under the Aquino administration started, we have conducted 442 consultations across the nation, in keeping with the commitment to make
this process inclusive, participative, and consultative. Nowhere in the CAB can the term
associative be found, nor any of its features entrenched or alluded to in the peace
agreement. We will also not find a single guarantee for charter change to accommodate
the CAB. The most accurate statement that can be made is that, although the main goal
of the road map to 2016 is the legislation of a new organic act that would establish the
Bangsamoro government, the agreement recognizes the right of any citizen of the Republic, including those who are appointed in the Bangsamoro Transition Commission
(BTC), to propose amendments to the Supreme Law, through the modalities provided in
our Constitution. This is in keeping with President Aquinos unequivocal instruction that
all commitments must be kept within the framework of the Constitution, and the belief
that the MILF is better off holding on to something concrete and attainable by regular
legislation, rather than pinning our hopes on something as uncertain as charter change.
These features wide consultations, regular legislation, autonomy, among others
distinguish the CAB from the declared unconstitutional MOA-AD.
The draft Bangsamoro Basic Law or Senate Bill No. 2408, the translation of the CAB
into a proposed legislation, is one that can be well accommodated by the provisions of
our Charter. Even as the Constitution is deemed read into any legislation passed by the
National Congress, SB No. 2408 explicitly guarantees that it will be in consonance with
the Constitution (Preamble) and thus its provisions, in case of ambiguity, should be read
with the parameters of the 1987 Constitution in mind.
The establishment of a parliamentary form of government in the Bangsamoro intends to bring life to the text of the Charter that leaves to the wisdom of Congress the determination of the structure of government for the region, provided only that the executive and legislative branches will be elective and representative of its constituent political
units (Section 18, Article X of the Constitution). The draft BBL, as it gives improved autonomy to the Bangsamoro, continues to honor its place as an integral part of the country
(Section 1, Article III)) whose government remains under the general supervision of the
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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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oN the matter of SubState

Miriam Ferrer
Chairman, Negotiating Panel for the Peace Talks with the MILF
Madame Chair Senator Miriam Defensor-Santiago, Honorable Senators Ferdinand
Marcos, Jr., Senator Teofisto Guingona III, Senator Pia Cayetano.
I speak before you this blessed morning as a student and practitioner of politics, and
less of law, as I am not a lawyer. Politics, and not just constitutional law, I believe, is the
best discipline with which to approach the questions before us: Is the Bangsamoro a substate? Corollarily, is being a substate in/by/for itself, necessarily unconstitutional?
Why do I say that political science relative to jurisprudence is our best recourse in
getting to the heart of the matter of the Bangsamoro?
We all know that matters of state are foremost matters of politics rather than law.
Over and above law, is the matter of peace and justice which, to go back to the Greek
classics, constitute the reason for being of the polity or of the state. Stretching forward to
the Enlightenment period, peace and justice, likewise, are the ends of the social contract.
Madame Chair, the substate word has been unjustly demonized. As in any demonized term, waive it like a red flag, and people will rail against it. It is almost like the
term Moro say it and in the minds of many, you generate fear, distrust, suspicion,
hate. Such is the unfortunate state of mind that we have inherited from Spanish and
American colonial rule. Such hatred has led us to continue to think like the colonials: A
good Moro is a dead Moro. Fast forward 100-500 years later: A good substate is a dead
substate. Unconstitutional! Bang, youre dead.
This, when in fact a substate can only mean being a subdivision of and therefore
a part of the state in the subnational sense, in the same way that a subset as we
learned from grade school math can only mean being part of a bigger set.
Madame chair, the word substate is not even a legal term.
It is merely a descriptive word pertaining to one part or unit of a state.
How can we judge legality or illegality, constitutionality or unconstitutionality, by
mere mention of the word?
This is not to say that substates or substate entities do not exist.
I have here a copy of the book, Substate Governance through Territorial Autonomy, A Comparative Study in Constitutional Law of Powers, Procedures and Institutions
(2011) written by the Finnish professor of comparative law and politics, Markku Suksi.
Madame Chair, if I may, may I respectfully give you a copy, a humble contribution to
your library?
This book provides us with a survey of substate entities that are of particular interest
to us. These are substate entities that are in the form of territorial autonomies such as one
finds in countries like China, with Hong Kong, Macau and Tibet; Finland, with Swedish-
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speaking Aland; Indonesia, with Aceh, West Papua and Yogyakarta.

Territorial autonomies a genre that is applicable to our case on hand are here distinguished from federal states and obviously, independent states.
Madame Chair, independence was never on the negotiating agenda of the government. The whole idea of negotiation was precisely to keep the country intact. Any notion
of a substate can only mean a set up within the Philippine state and under the current
Philippine Constitution.
Some critics insist that the Bangsamoro in the signed documents is still the substate
as originally conceived when we began negotiations in 2010. They do not realize how the
Comprehensive Agreement on the Bangsamoro, for the sake of peace, national unity and
social justice, had arrived at the necessary compromises in accordance with the 1987 Constitution and its flexibilities, without prejudice of course to future constitutional change.
This brings us to the second level of the claim of unconstitutionality before us: that
the Bangsamoro, being a substate, is NOT the autonomous region contemplated in the
Constitution. Specifically, that the powers that have been enumerated in the signed documents go beyond what is possible in a unitary set-up.
Notably, our constitution did not explicitly say that we are a unitary state. In fact coming from a highly centralized state under martial rule where the Executive branch was
able to wield wide powers both formally and informally, the crafters of the 1987 Constitution took pains to devolve powers through principles and provisions on local autonomy,
decentralization and autonomous regions that it ensconced in Article X, On Local Governments. Moreover, equally significant, they wrote up a whole article on Social Justice
to correct the political, social and cultural exclusion in our country.
Markku Suksi writes, in the case of Europe: If states that include one or several
autonomous entities are counted together with the number of federal states, the result
at least in Europe is that the regular text-book example of state, the entirely monolithic
unitary state, finds itself in a minority and is no longer the prime example of a state.
Evidently, there are so many existing possibilities to structure a relationship between
government and its multiple constituencies that a binary system of political ordering (federal unitary) can no longer accommodate.
The members of the Constitutional Commission in 1986 grappled with adopting
a federal system of government. But in the end, they settled for this unique animal
so unique it may be set up only in two parts of the country in the Cordillera and in
Muslim Mindanao. They called this animal autonomous region. In so doing, they also
produced a model that is distinct but also finds a semblance in other non-federal republics such as Indonesia with its three autonomous regions and China with its three special
administrative regions, that I mentioned earlier; Spain with its ___ autonomous regions;
and the United Kingdom with its four constituent parts, the most appropriate term for
which has not been found. These constituent parts are Northern Ireland, Wales, Scotland
and England.
All these are variations of that much derided, although affably neutral and practical,
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generic word, substate.

Regardless, other critics say that the structure of government and the powers enumerated in the Powersharing and Wealthsharing Annexes and now the BBL partake of
the nature of a federal state. Proof to such claim is the concept introduced in the documents of an asymmetrical relationship between the Bangsamoro and the Central Government.
To the Supreme Courts credit, we have recently been provided with jurisprudence on
what asymmetry means. In the League of Provinces of the Philippines and the DENR,
the Supreme Court ruled:
Autonomous regions are granted more powers and less intervention from the national government than territorial and political subdivisions. They are thus in a more
asymmetrical relationship with the national government sa compared to other local governments or any regional formation. The Constitution grants them legislative powers
over matters that are usually under the control of the national government (GR No
175368 (2013),
While the ruling did not define asymmetry, it provides us with the context clues by
which we can understand the concept within Constitutional boundaries.
Another claim put forward to argue violation of the constitution is the list of powers
enumerated in the Powersharing Annex: reserved, concurrent and exclusive.
Reserved powers are powers or matters over which authority and

jurisdiction are retained by the Central Government
Concurrent powers shall refer to the shared powers between the

Central Government and the Bangsamoro Government
Exclusive powers shall refer to powers or matters over which 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)
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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the bbl fully recogNizeS aND preServeS the

territorial iNtegrity of the philippiNeS
Jose Luis Martin C. Gascon
Undersecretary, Office of Political Adviser
Madame Chair, the Honorable Chairman of the Committee on Constitutional

Amendments and Revision of Codes, together with the Chair of the Committee on
Local Government, distinguished members of the Senate, other resource persons, good
afternoon.
I would like to thank the Committee for the opportunity to present my views as a friend
of the Peace Process and as former member of the Constitutional Commission. At the
outset, I think it is important to recall the specific instructions given by President Aquino
to his negotiating panel as they began to negotiate peace agreement with the MILF, their
counterparts. He said that whatever they sign in terms of an agreement should be and
must be in full consonance with the limits and flexibilities of the Constitution. These
instructions were given with a clear appreciation of the recently decided Supreme Court
ruling on the ill-fated MOA-AD and so this was certainly part of the context upon which
negotiations began in earnest with the MILF in 2010 and has resulted in fruition with the
Framework Agreement and the Comprehensive Agreement of the Bangsamoro and the
draft basic law.
It is without doubt that the BBL as it is proposed is innovative and challenges us
to expand our frontiers of understanding and appreciation of what the Constitution
allows and does not allow regarding the structure of governance for autonomy in Muslim
Mindanao, hence, these last two hearings here of the Committee on Constitutional
Amendment.
Its also in that context that the remaining members of the Constitutional Commission
have come out very strongly and issued a statement highlighting that there is an essential
constitutionality to the proposal to establish the Bangsamoro autonomous entity. And it is
also well within the mandate of Congress if it abused certain aspects as constitutionally
objectionable that they could very well amend or modify the same accordingly.
Thus, the enactment of the BBL does not partake of a constitutional restructuring of
the entirety of the system of governance of this country. It will not restructure Congress
or local governments, generally speaking. It addresses a small aspect that is referred to in
the Constitution and that is the autonomous government provided for in Article X of the
local the chapter, the article on local governments in the Constitution.
So we believe that the BBL should be understood in that context and any effort at
enacting the BBL should be understood also in the context of the needs, of the time
and what is needed in Mindanao. Ultimately, constitutions endure when they are
understood and applied in accordance with the needs, developments and requirements
of contemporary society. This is for this reason, for example, that the United States
constitution has lasted for over 300 years because it has also been flexible enough to meet
the demands of the time.
Thus, when statements are made that it is unconstitutional, I cannot quite understand
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because every single aspect of the BBL is written in consonance with the provisions on
local autonomy that are found from Section 15 onwards of our Constitution and should
be understood in that basis.
So for some to say that replacing the Autonomous Region of Muslim Mindanao with
a new entity called Bangsamoro is unconstitutional is actually outside the frame of the
discussion of the Constitution itself. Because the Constitution certainly allows Congress
the power and authority to enact laws and the organic law for autonomy is certainly one
of those that is mandated by the Constitution. 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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requirement speaks only of residency in the Bangsamoro, not identity as a Bangsamoro.

The same is true for the qualification to become Chief Minister (Article VII, Section 28)
or Wali (Article VIII, Section 3). As to economic privilege, the same non discriminatory
policy is found. Thus, in terms of preferential rights to fishing in the Zones of Joint
Cooperation, for example, the same is extended not only to the Bangsamoro people
but to all other resident fishers in the Bangsamoro (Article XIII, Section 19, paragraph
3 [d]). When we say residents, of course that is blind as to cultural or even religious
identity. Therefore, under the BBL, anyone and everyone so long as they qualify under
the residency rules regardless of their subscription to the Bangsamoro identity can enjoy
the political and economic privileges that are provided in the law.
Lastly, we invite everyone to recall that the very reason for the adoption of the
autonomous arrangement is to preclude any separation or secession, that is, to favor
internal and not external self-determination. The international support for the peace
process is there precisely because of this fundamental premise.
In view of the foregoing, we stand firm in our conviction that the BBL fully preserves
and maintains the territorial integrity of the Republic of the Philippines.
ENDNOTES
1
2
3
4
5
6
7
8
9
10
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
352
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Leila M. De Lima
Secretary of Justice
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IBP Journal Special Issue On The Proposed Bangsamoro Basic Law

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thE iBP Journal

INTEGRATED BAR OF THE PHILIPPINES

Vincent Pepito F. Yambao, Jr.

SPECIAL ISSUE NUMBER 4 (APRIL 2015)

Special Issue on the

The IBP Journal (ISSN 0118-9247) is an official publication

Casting Constitutionalism in ContEmPt

Created the Transition Commission to draft the

National Government conceptualized as reserved, concurrent and exclusive powers.

Under the BBL, rejection of constitutional institutions and principles is pursued in

Position Paper on the Draft Bangsamoro Basic Law

poSitioN paper oN the Draft baNgSamoro baSic law

Speccial iSSue Number 4 - (april 2015 )

Ranhilio Callangan Aquino

He said the Organization of Islamic Cooperation (OIC) still recognizes

the ibp JourNal

Position Paper on the Draft Bangsamoro Basic Law

Information Officer, acknowledging authorship. Whatever may be the status of this

Ranhilio Callangan Aquino

accomplished by piece-meal amendments, but by a thorough overhaul of the Constitution.

the ibp JourNal

Position Paper on the Draft Bangsamoro Basic Law

must perforce be constitutionally suspect.

Speccial iSSue Number 4 - (april 2015 )

Ranhilio Callangan Aquino

the ibp JourNal

Position Paper on the Draft Bangsamoro Basic Law

Article X, Section 20 of the

Art. V, Sec. 2, BBL

Social security and pensions

Agriculture, livestock and

Economic and cultural

Ancestral domain and

Contract loans, credits and

Personal, family and

Trade, industry, investment,

Speccial iSSue Number 4 - (april 2015 )

Ranhilio Callangan Aquino

Regional urban and rural

Human rights and

Labor, employment and

Economic, social and tourism

Penology and penitentiary

Hajj and umrah

Other matters authorized

Customs and Tariff

Ancestral domain and

Protection of the rights of

Funding for the maintenance

Land management, land

Disaster risk reduction and

Cadastral land survey

Public order and safety

Expropriation and eminent

the ibp JourNal

Position Paper on the Draft Bangsamoro Basic Law

Speccial iSSue Number 4 - (april 2015 )

Ranhilio Callangan Aquino

the ibp JourNal

Position Paper on the Draft Bangsamoro Basic Law

As the Constitution is explicit that the provision which

Ranhilio Callangan Aquino

hearings on the GAB. To expedite proceedings, the Senate