UNIVERSITY of the PHILIPPINES COLLEGE OF LAW

20 November 2014

Hon. Rufus B. Rodriguez Chairman, Ad Hoc Committee on

the Bangsamoro Basic Law House of Representatives of the Philippines HOR Complex, Constitution Hills Quezon City

Re: House Bill No. 4994 on Bangsamoro Basic Law--

Dear Congressman Rodriguez,

As I promised in my last letter to you, I am sending a copy of Dean Merlin Magallona's "Problem Areas in the Bangsamoro Basic Law", and of Justice Vicente Mendoza's "The Bangsamoro Bill Needs the Approval of the Filipino People".

Thank you and more power!

Very truly yours,

aff, , 791/17//m/6/77

DANIL If . CONCE CION Dean

Malcolm Hall, Diliman, Quezon City 1101, Philippines Tel. 920-5514 local 101/102; Telefax 927-0518

Website: www.law.upd.edu.ph Email: uplawdean@gmail.com

THE BANGSAMORO BILL NEEDS THE APPROVAL OF THE FILIPINO PEOPLE

Justice Vicente V Mendoza

H.B. No. 4994, which proposes the Bangsamoro Basic Law, has been filed in

accordance with the Comprehensive Agreement on the Bangsamoro (CAB), which was signed on March 27, 2014, between the Government of the Republic of the

Philippines peace panel and the counterpart panel of the Moro Islamic Liberation

Front (MILF). The CAB is the second attempt to end the armed conflicts that for so long have dominated the relationship of the Government with Muslim Mindanao.

The first one, the Memorandum of Agreement on Ancestral Domain, or MOA-AD,

made in 2008, was declared void by the Supreme Court for being beyond the power

of the Government to make under the Constitution.'

Comparing the two agreements, I find much that has been done in the

proposed Bangsamoro Basic Law to make it conform to the Constitution, although

much remains be done toward this end. Certain concepts and provisions of the Bill,

when pieced together, reveal secessionist inclinations, notwithstanding the claim in

the Preamble of the Bill that it is "consistent with the Constitution" and in its

definition of the "Bangsamoro Territory" that the territory "remains a part of the

Philippines." The recognition in the Bill of the "right [of the Bangsamoro people] to

Expanded version of the statement of Justice Vicente V. Mendoza before the House of Representatives Ad Hoc Committee on the Bangsamoro Basic Law at the hearing on H.B. No. 4994 on October 28, 2014.

Province of North Cotabato v. Gov't of the Republic of the Philippines Peace Panel on Ancestral Domain, 568 SCRA 402 (2008).

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self-detei iination -- beginning with the struggle for freedom of their forefathers in

generations past and extending to the present -- to chart their political future"2

reinforces the impression that Bangsamoro is a political entity that is only a little

different from the "associated state" called Bangsamoro Juridical Entity in the

MOA-AD which was invalidated by the Supreme Court in 2008.

Let me discuss briefly these 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 autonomous region is a part of the Philippine Archipelago.3 The term

"territory", as defined in Black's Law Dictionary, means "A part of a country

separated from the rest and subject to a particular jurisdiction, a geographical area under the jurisdiction of another country or sovereign power." Such, for example, was the Philippines, as an "unincorporated territory" of the United States, before it

was granted independence on July 4, 1946, or the trust territories under the Charter

of the United Nations, which are &miner 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 Cameroons and the British Cameroons in West Africa.

2 Id., Preamble, Art. I, Sec. 3, Art. IV, Sec. 1, Art VI, Secs. 1 and 3. 3CONST., 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.

3

Certainly, this is not the status of the autonomous region in Muslim

Mindanao under the Constitution. To call the region the "Bangsamoro Territory"4 is

to imply that it is a separate part of the Philippines waiting to become independent.

It is said that self-determination is a principle recognized in the Charter of the

United Nations. It is, but self-determination in that context refers to the rights of the

former colonies which, as already stated, were placed under the international

trusteeship system of the United Nations following World War II, in order to

prepare them for self-government and eventual statehood.5 The principle cannot be

applied to ethnic groups like the Bangsamoro, which is not a colony but a part of

the Philippines, for which regional autonomy is what is granted by the Constitution.

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 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 territory."6 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

4 H.B. No. 4994, Art. III, Sec. 1. 5 U.N. Charter, Chap. I, Arts. I (2) and 55, Chap. XII, Art. 77 (b). See also U.N. General Assembly Resolution No. 1514, Dec. 14, 1960, declaring "(1) that "the subjection of peoples to alien subjugation and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the Nations and is an impediment to the promotion of world peace and co-operation, and (2) "all peoples have a right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Para. 2 is reiterated in the U.N. International Covenant on Civil and Political Rights, Art. I, para. 1, Dec. 16, 1966. 6 Lea Brylmayer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. OF INT'L LAW 177, 201 (1991).

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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."'

The Bangsamoro People.

By defining who are to be considered Bangsamoros,5 the Bill in effect gives

the Parliament the power to pass a law, such as the Electoral Code, which it is

authorized to enact,9 limiting suffrage and membership in the Bangsamoro

Government to Bangsamoro people, thus denying the rights and privileges of

national citizenship guaranteed in the Constitution to others.1 Non-Bangsamoros,

although Filipino citizens and residents of the region for the requisite period, can be

disqualified from election to the Parliament and appointment to the Cabinet. 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.

'Province of North Cotabato, 568 SCRA, at 481.

sH.S. No. 4994, 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." 9 Id., Art. VII, Sec. 9.

I CONST., ART. V, SEC. 1.

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The Bill provides for a parliamentary system of government. It vests the

powers of government in the Parliament. The Chief Minister, who is head of the

Cabinet, is elected by the majority vote of the Parliament from among its members, while the Deputy Minister and a majority of the Cabinet are appointed by the Chief Minister from the members of Parliament.'' The Cabinet perfoims executive

functions.

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." I2 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, the fact is that

the Constitution contemplates direct election by the people. In fact, it does not

provide for any other kind of election other than directly by the people.

Indeed, a parliamentary system in an otherwise presidential system of

government is an oddity and an incongruity. Even in Malaysia, the structure of the

governments of the thirteen states is similar to that of the federal government which

is parliamentary except for minor native judiciary powers in Sabah and Sarawak, and the state legislatures consist of a single chamber. The Constitution recognizes

differences in "historical and cultural heritage, economic and social structures" of

the two regions of Muslim Mindanao and Cordilleras, but it does not recognize

differences in their political structures. It grants to these regions autonomy "within

H.B. No. 4994, Art. VII, Secs. 1-3

12 CONST., ART. X, SEC. 18.

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the framework of the Constitution and the national sovereignty as well as territorial

integrity of the Republic of the Philippines."13

The Powers of Government.

Under the Bill, the Bangsamoro Government will enjoy extensive "exclusive powers," including the power to trade with ASEAN countries:4 to

contract foreign loans, credits and other forms of indebtedness,15 and to receive

foreign grants and donations.16 It will likewise have "concurrent powers" over

matters enumerated therein.17

In contrast, the powers of the Central Government will be limited to those

enumerated therein' and to those which it shares with the Bangsamoro

Government. These powers, denominated in the Bill as "reserved powers," refer the

following:

1. Defense and external security;

2. Foreign policy;

3. Coinage and monetary policy;

4. Postal service;

5. Citizenship and naturalization ;

6. Immigration;

13/d., ART. X, SEC. 15. 14 Id., Art. V, Sec. 3 (7). 15 1d., Art.XII, Sec. 22.

16 Id., Art. X11, Sec. 24; Art. V, Sec. 3 (17) 17 Id., Art, V, Secs. 2-4. 18M, Art. V, Sec. 1.

7

7. Customs and tariff, as qualified by Section 2 (10), Article V of the Bill; 8. Common market and global trade, provided however that the power to enter

into economic agreements given to the ARRM under R.A. No. 9054 shall be transferred to the Bangsamoro Government; and Intellectual property rights.

and to "concurrent powers" over the following matters:19

1. Social security and pensions

2. Quarantine 3. Land registration

4. Pollution control

5. Human rights and humanitarian protection and promotion

6. Penology and penitentiary

7. Auditing

8. Civil Service

9. Coastguard

10. Customs and Tariff

11. Administration of Justice

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

13. Disaster risk reduction and management Public order and safety

Thus, under the Bill, the Central Government would be like the Federal

Government of the United States -- a government of enumerated powers with the

balance of powers retained by the governments of the several states. The Philippine

Government, however, is a unitary government. Under the Constitution, it has all

powers of sovereignty, except only those given to the autonomous regions in the

19 Id., Art. V, Sec. 2.

8

Constitution, to wit:

1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural resources;

4. Personal, family, and property relations;

5. Regional urban and rural planning development;

6. Economic, social, and tourism development;

7. Educational policies;

8. Preservation and development of the cultural heritage; and

9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region,2

and those which may be granted by law.21

The lopsided allocation of powers to the national government and the

Bangsamoro Government is due in part to the fact that some powers granted by

the Bill to the Parliament to the Bangsamoro Government are not legislative, but

constituent in nature, whereas the Constitution clearly stipulates that what can be

delegated to the government of the regions are those which are "legislative" in

character and that the exercise of such legislative power shall be "subject to the provisions of this Constitution and national laws." Constituent powers cannot be

granted, otherwise the Constitution may be amended in a manner other than as

prescribed in the Amendment Clause.22

20 CONST., ART. X, SEC. 20. 21 Id., ART. X, SEC. 17. 22 Id., ART. XVII.

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Consider, for example, the following provisions of H.B. No. 4994 on

mining. Article XIII of the Bill provides:

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.23

23 H.B. No. 4994, Art. XIII, Sec. 8.

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Nor can Congress give the Bangsamoro Government the power to "adopt"

or "draw up" policy regarding mining. The mining policy is set forth in the

Constitution and, as such, 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

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 o 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, the agreement it makes must be "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.24

The Bangsamoro Government cannot be given the power to deteuuine the

mining policy in the region without allowing it the power to amend the

Constitution. Obviously this 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

24 CONST. ART. XII, SEC. 2.

II

Parliament. It will foini part of the Commission on Elections, and it will perfoirn

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 provided in the Constitution.25

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."26 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."27

Already reduced to "general supervision," or mere oversight as distinguished

from control, the Bill further emasculates the President's power by providing that

its exercise should be "consistent with the principle of autonomy and the

asymmetric relation of the Central Government and the Bangsamoro Government."

M., ART. IX, C, SECS.1-11.

26 Ld. , ART. X, SEC. 16.

27 H.B. No. 4994, Art. VI, Sec. 3.

12

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

waved to overrule any constitutional objection.

In sum, H.B. No. 4994, which considers the autonomous region to be a

separate territory, with its own territorial waters, recognizes this territory to be the

the "ancestral homeland" of a distinct group of people called Bangsamoros, who

have a right to self determination to chart their political future, whose government

is parliamentary in fowl, possessing almost all powers of internal and external

sovereignty, embodies a concept that is incompatible with the nature of our

Constitution as a social compact. The support shown by foreign governments to

the proposed Bangsamoro can easily translate into support and recognition by them

to make the Bangsamoro claim to self determination, self government, and

eventual statehood legitimate.28 What the Court said in the case of the MOA AD

applies to the H.B. No. 4994:

[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, 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

za Compare Milena Steno, On the Right to External Self-Determination: "Selfistan," Secession, and the Great Powers' Rule, 19 MINN. J. OF INT'L LAW 1, 176 (2010): "It is the Great Powers that control the outcome of most self-determination struggles in today's world, through their military, political, financial, and economic dominance, exercised in international organizations and directly through concepts such as humanitarian intervention and involuntary sovereignty waiver."

13

itself by its use of the concept of association runs counter to the national sovereignty and territorial integrity of the Republic.2)

A Word on the "Asymmetric Political Relationship" of the Central and Bangsamoro Governments

Finally, the Bill cannot be justified on the ground that the relation of the Central Government and the Bangsamoro Government is "asymmetric", meaning

to say their relationship is "distinct from the inter-governmental relationship in

other regions and other local governments." The question is precisely whether such

relationship can be had if it is contrary to the Constitution. Such relationship

cannot justify the recognition of the right of the Bangsamoro people to "self-determination, to chart their political future." The Constitution clearly states (1) that the autonomous regions in Muslim Mindanao and in the Cordilleras must be

created "within the framework of [the] Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines,"30 and (2) that the laws of the regional governments must be "subject to the provisions of [the] Constitution and national laws."31

This was emphasized by the Court in its decision

invalidating the MOA- AD of 2008,32 and it is by this standard that the

constitutionality of H.B. No. 4994 must be judged.

Conclusion

29 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). 30 CONST., ART. X, SEC. 15 .

31 Id., ART. X, SEC. 20.

32 Province of North Cotabato, 568 SCRA, at 482.

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If the Bangsamoro is to be created as the price for 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, 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."33 Only the Draft Bill on the Bangsamoro Basic Law was

submitted by the Transition Commission. Why no proposals for constitutional

amendments were also prepared has not been explained. But implicit in second

task of the Transition Commission is an acknowledgment by the parties to the

various agreements forming integral parts of the CAB 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 for

constitutional amendments.

33Framework Agreement on the Bansamoro, Oct. 15, 2012, VII, 4 (a) (b), Annex on Transitional Arrangements and Modalities, I, C-D.

PROBLEM AREAS IN THE BANGSAMORO BASIC LAW

By

MERLIN M. MAGALLONA*

I. INTRODUCTORY: THE CONSTITUTION AND THE POWERS OF THE STATE

By the promulgation of the Constitution, the people have

entrusted the powers of the State, which they possess, to the

Government established under the fundamental law by endowing it

with a complex of functions, authority, jurisdictions, immunities, and

limitations as are now ordained in the present Constitution.

Embodying the Philippine State, the people have proclaimed the

foundation principle in Article II, Section 1 of the Constitution

affirming that "Sovereignty resides in the people and all government

authority emanates from them." This affirmation encapsulates the

promulgation of the Constitution as the people's act of sovereignty,

together with the establishment of the Government.

Inherently an act of sovereignty, the Constitution is out of reach

of contravention. In that respect, more than the formal law of the

* Professorial Lecturer and Former Dean and Professor of Law, University of the Philippines College of Law.

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,'

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

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 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

3

In implementation, the BBL deals with reserved powers in

Section 1, concurrent powers in Section 2, and exclusive powers in

Section 3, in Article V on "Powers of Government".

Forming part of the CAB is the Annex on Power Sharing (APS)

that "contains details about the particular competencies and

authorities of the Central Government and the Bangsamoro

Government which shall serve as guide in the drafting of the Basic

Law pursuant to the Framework Agreement on the Bangsamoro

(FAB)".4 Further, the APS explains as follows:

"The Comprehensive Agreement delineates powers at different levels. The Central Government will have its reserved powers, the Bangsamoro Government will have its exclusive powers within its territorial jurisdiction and their will be concurrent powers shared by the Central Government and the Bangsamoro Government ....5

1. Reserved powers

The FAB provides that "The Central Government will have

reserved powers ... ."6 It goes on to stipulate that the Central

Government shall have powers on:

a) Defense and external security b) Foreign policy c) Common market and global trade .... d) Coinage and monetary policy e) Citizenship and naturalization f) Postal service

4

This list is without prejudice to additional powers that may be agreed upon by the Parties.?

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

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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 Ill 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

6

only those that are listed in Part III of FAB and finally those listed in

Section 1, Article V of the BBL. In doing this exercise, the Parties have

resorted to the scheme of dividing the so-called reserved powers into

two categories: those that will not be applied by the National

Government in dealing with the Bangsamoro Government and those

that will be applicable in its relation with the Bangsamoro

Government. The second category is referred to in the CAB and in

the BBL as "reserved powers".

This categorization of powers necessarily implies it is the

intent of the CAB and the BBL that certain powers of the National

Government are not to be applied in its relation with the Bangsamoro

Government. In effect, the CAB and the BBL have intended to deprive

the National Government of certain powers in its relation with the

Bangsamoro Government. This consequence appears clearer by

reason of the provision in the Annex on Power Sharing that it is by

the nature of "reserved powers" that "authority and jurisdiction are

retained by the Central Government." This means that those that are

not retained are not exercisable by the National Government in

dealing with the Bangsamoro Government.

7

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

Governmentlo

8

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

9

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 Commission,

among other cases of institutional separation." 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 cilia provides that "The Central

10

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

11

territory, displacing in the process the National Government in its

current areas of governance pursuant to the fundamental law.

Under this provision the BBL appears to be in compliance with

the CAB in its APS which refers to "exclusive powers" as "powers or

matters over which authority and jurisdiction pertain to the

Bangsamoro Government".12 Deserving focus is the mandate of the

CAB in APS that "The Central Government shall respect the exercise

of the competences and exclusive powers of the Bangsamoro

Government."13 Emphasis on exercise of exclusive powers is further

affirmed by the concept of devolution which "the Parties accept" in

the APS as "[involving] a process of empowerment, mobilization,

capacity building and financing"; 14 this may imply further

justification to the powers granted to the Bangsamoro Government

exclusively in addition to its concurrent powers.

The BBL areas within the scope of exclusive powers in the

Bangsamoro territory are so extensive that they cover the entire

range of governmental authority, effecting the exclusion of the

National Government and, as a consequence, eliminating the

accountability of the latter as a duly constituted government

established by the sovereign authority of the Constitution.ls

12

There can be no recognition of powers and jurisdictions

exclusive to the Bangsamoro Government; otherwise, the Republic

would be conceding that it does not possess internal sovereignty or

supreme authority over matters within the exclusive powers of the

Bangsamoro Government. National sovereignty is indivisible.

III. THE CONSTITUTION'S AUTONOMOUS REGION AND THE BANGSAMORO

In Section 1, Article X, the Constitution mandates that "There

shall be created autonomous region in Muslim Mindanao." Together

with the appropriate provisions of the fundamental law, national

laws form part of the constitutional standards for the creation and

governance of autonomous regions.16

The core directive of the fundamental law is that the

autonomous region "shall be created ... within the framework of this

Constitution and the national sovereignty as well as the territorial

integrity of the Republic of the Philippines".'7 Thus the elements

integral to the creation of the autonomous region are: (1) conformity

to the directives of the Constitution; (2) the Republic's national

sovereignty; and (3) its territorial integrity.

13

1. Constitutional framework

As to the first element, the Bangsamoro appears to found its

creation not on the Constitution, but on the basis of the contractual

relations between the GPH Peace Negotiating Panel and the MILF to

be implemented by the BBL. As a consequence, the definitive

features of the BBL in terms of powers, jurisdiction, rights and

accountability, charged upon the Bangsamoro Government appear as

implementation of the CAB, together with all the Annexes. In other

words, the CAB is the BBL shaped into legislative form for the

formality of enactment by Congress.

To be emphasized is the extraordinary character of the BBL in

that it affirms in its Preamble common to both House Bill No. 4994

and Senate Bill No. 2408, that its promulgation into law is done by

the Bangsamoro people themselves. It reads as follows:

We, the Bangsamoro people and other inhabitants of the Bangsamoro, imploring the aid of the Almighty, ... for genuine and meaningful self-governance as stipulated under the Comprehensive Agreement on the Bangsamoro (CAB); ... do hereby ordain and promulgate this Bangsamoro Basic Law, through the Congress of the Republic of the Philippines, as the basic law of the Bangsamoro ....18

In this light, the Congress, which is the sole repository of

plenary legislative power under the Constitution becomes merely an

instrumentality of the Bangsamoro people's self-determination. This

14

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 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-a-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; _J9

[3] The Transition Commission shall have the function "To draft the proposed Bangsamoro Basic Law with provisions consistent with the 2012 Framework Agreement on the Bangsamoro; ....20

The Presidential act of creating the Transition Commission

appears to be the President's implementation of the FAB's directive

in Part VII, in particular addressed to him, namely:

[1] "There shall be created a Transition Commission through an Executive Order ...."21

15

[2] "The draft Bangsamoro Basic Law submitted by the Transition Commission shall be certified as an urgent bill by the President".22

As indicated above, the President has ordered that the BBL

should be drafted "with provisions consistent with the 2012

Framework Agreement on the Bangsamoro." It is to be wished that

he should have desired that it be consistent with the Constitution.

Instead, he intended it is the Constitution that is to be amended. His

Executive Order says in section 3(b) that "Whenever necessary, [the

Transition Commission] recommend[s] to Congress ... the proposed

amendments to the 1987 Philippine Constitution." Apparently, he is

of the view that it is the Constitution which must comply with the

CAB or the FAB.

The President has complied with the foregoing mandate

derived from the CAB, not from the Constitution and not from the

existing national laws. After considerable delay in its submission to

Congress on account of amendments to the Commission's draft by the

Office of the President, the BBL formally has become the act of the

President by reason of his certification of the BBL as his urgent bill in

compliance with the CAB.

16

Section 17, Article X of the Constitution provides: "All powers,

functions, and responsibilities not granted by the Constitution or by

law to the autonomous regions shall be vested in the National

Government." In extensive departure from the fundamental law in

this mandate, the BBL, in implementation of the CAB, creates an

entire political system constituted by powers, functions and

responsibilities independent of the National Government; in fact, the

impact of that system consists in the intrusion of concepts of

government alien to the Constitution's own political system. Under

the fundamental law, the organic act of the autonomous regions shall

have as "the basic structure of government for the region consisting

of the executive and the legislation assembly."23 This is understood

to require that such structure shall be "consistent with the provisions

of this Constitution and [existing] national laws".24 The

constitutional system as thus prescribed undergoes a radical

revision, both the CAB and the BBL establishing the "asymmetrical

political relationship" between the National Government and the

Bangsamoro Government. As a result, the CAB and the BBL have the

effect of rejecting the cornerstone principle of the Constitution,

namely, the separation of powers. What may have become

asymmetrical is the Constitution.

17

Taking into account the violence done on the Constitution as

brought out in the present review, incredible, to say at least, is the

direct involvement of the President and the Congress in the

inordinate claims of the CAB and the BBL, as shown above.

2. National sovereignty

The second premise of the Constitution in the creation of an

autonomous region is that it is to be established within the

framework of national sovereignty. Under the fundamental law,

national sovereignty pertains to the people's act of sovereignty

pursuant to the supremacy clause of the Constitution in Section 1,

Article II that "Sovereignty resides in the people and all government

authority emanates from them." The powers of the National

Government that the fundamental law ordains are expressive of

sovereignty, the contravention of which by the CAB and the BBL is

effected by the derogation, of such powers. How the Parties to the

CAB derived their authority to this effect and by what legal capacity

empower them to do so continue to be a juridical vacuum.

At any rate, the concept of "reserved powers", together with

that of "current powers" and "exclusive powers" are creations of the

Parties that are at war with national sovereignty. In the concept of

18

"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.

From the projected concept that the National Government

delegates or devolves powers to the Bangsamoro Government, the

latter is said to derive , in the language of the CAB's APS, the "process

19

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. 20

To this extent or under these limitations, the BBL suffers from basic

infirmity and may justifiably be pronounced as in contravention of

the fundamental law.

In providing for the organic act of autonomous regions

expressly subjecting their legislative power to be governed by

national laws, the Constitution creates a secondary tier of legislative

enactment, namely, the organic act below and subordinate to

national laws.

3. Territorial integrity

Integrated into national sovereignty is the element of

territorial integrity; in particular, this may pertain to how the

Constitution characterizes the nation's natural wealth and resources.

On two fundamental principles, the Constitution prescribes that

[1] All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna and other natural resources are owned by the State."27

[2[ The exploration, development and utilization of natural resources shall be under the full control and supervision of the Staten

The ownership and control of the State do not pertain or relate

to the exclusive authority and jurisdiction of any local government

21

unit or autonomous region. That the natural resources belong to the

State, together with full control of their exploration, development

utilization, is a designation of the people's ownership as their act of

sovereignty for their life's support, derived from the premise that "all

government authority emanates from them". Inherent in the

People's ownership is the principle of intergenerational equity that

looks forward to the interest of future generations of Filipinos.

So essential is this mandate that as embodied in the

international law of human rights, it is more appropriately described

as the "right of the people". Common to Articles 25 and 47,

respectively, of the International Covenant on Economic, Social and

Cultural Rights and the International Covenant on Civil and Political

Rights is the following text:

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

Both Covenants provide as well in common paragraph 2, Article 1,

that

"In no case may a people be deprived of its own means of

subsistence."

22

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.39

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

23

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

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.

24

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

25

attributed to the autonomous region by the Constitution or to any of

the political division of the Republic. It is something else other than

the autonomous region as characterized by the Constitution.

However, under the CAB and the BBL, it is the Bangsamoro

Government that establishes limitations to the power of Congress.

Beginning with the concept of reserved powers, Congress may

provide general or special power or jurisdiction exercisable by the

National Government in its relation with local government units,

including autonomous regions. On account of the CAB and the BBL,

the Bangsamoro would be excluded from the application of such

national laws. Derogation of national legislative power would

necessarily be implied or expressly provided if exercised within the

scope of concurrent powers and, in particular, within the coverage of

exclusive powers as exercised by the Bangsamoro Parliament.

For example, what is the implication of the general welfare

clause that may be enacted by the Bangsamoro Parliament? It

provides in Section 24, Article VII of the BBL: "The Bangsamoro

Parliament shall pass laws that promote the general welfare of the

people in the Bangsamoro". In the event that Congress enacts laws

of the same nature, would the scope of their application or

26

enforcement be implied or expressly articulated as excluding the

Bangsamoro population on account of Bangsamoro's own legislative

powers as stipulated by the BBL? Or would congressional

enactments retain their national scope? Beyond this specific area, the

authority of the Bangsamoro Parliament is plenary "on matters that

are within the powers and competences of the Bangsamoro

Government",36 which may embrace all the concurrent powers and

exclusive powers, together with the powers which the CAB and the

BBL exclude from the reserved powers attributed to the National

Government. Moreover, the expansive jurisdiction of the

Bangsamoro Parliament may overlap with the entire field of national

legislation owing to the conception that, in matters with respect to

Bangsamoro

The powers of government shall be vested in the Bangsamoro Parliament, which shall exercise those powers and functions expressly granted to it in this Basic Law, and those necessary for or incidental to the proper governance and development of the Bangsamoro.37

With the Bangsamoro Parliament endowed with such expanse

of power and accountability, it stands in the CAB and the BBL in equal

standing with the Congress of the Republic. This parity status gains

recognition by means of the following provisions of the BBL in

implementation of the CAB:

27

[1] There shall be a Philippine CongressBangsamoro 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 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

28

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

29

amendment. And it stands impervious to change by contractual

stipulation.

NOTES

Executive Order No. 120 constituting the Transition Commission, uses the nomenclature "Comprehensive Agreement on the Bangsamoro".

However, House Bill No. 4994 employs the expression "Comprehensive Agreement on the Bangsamoro" in the Explanatory Note.

Paragraph 2 of Part IX of the Comprehensive Agreement stipulates:

The Parties commit to work further on the details of the Comprehensive Agreement in the context of this document and complete a comprehensive agreement by the end of the year.

The components of the Comprehensive Agreement on the Bangsamoro are: (1) Framework Agreement on the Bangsamoro; (2) Annex on Transitional Modalities and Arrangements; (3) Annex on Revenue General and Wealth Sharing; (4) Annex on Normalization; (5) Annex Power Sharing; and (6) Addendum on the Matter of Bangsamoro Waters.

2 CAB was signed by both Parties on 27 March 2014, the Comprehensive Agreement on 15 October

2012. 3 Emphasis added.

4 See first paragraph of the Annex on Power Sharing (APS).

5 See Second para. of the APS. 6 CAB Part III, para. 1.

CAB, Part Ill, para. 2. Emphasis added. 8 APS, third para. 9 See supra, note 7. I See Constitution, Art. X, Sec. 17. II See APS, Part Three, 11; 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 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

30

o.

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. 13

Constitution, Art. X, sec. 17. See also Section 16 of this Article IS For reference to national laws as constitutional standards, see sections 16, 17, 18, and 20 of Article X of the fundamental law.

Constitution, Article IX, Sec. 15. Emphasis added. 18

Emphasis added. 19 Executive Order No. 120, sec. 3(a). This is in pursuance of FAB in Part VII, para. 4(a). 20 Part VII, para. 3. 21 Para. 7.

22 Art. X, Sec. 18.

23

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 ofthe 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 authorbed by law for the promotion of the general welfare of the people of the region". 33 Emphasis added. 34 Emphasis added. 36 Emphasis added. 36 BBL, Art. VII, sec. 2. Emphasis added. w BBL, Art. VII, sec. 1. Emphasis added. 38 BBL, Art. VI, Sec. 8. w BBL, Art. VI, Sec. 4. Emphasis added.

0

31