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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 s tab l e , but it must not stand s t i l l .” —Dean Roscoe Pound2

* 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. Cite as Pacifico Agabin & Oscar Franklin Tan, A Libral Interpretation of the Bangsamoro Basic Law, __ J. INTEG. B. PHIL. __, (page cited) (2015).

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

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

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

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

1 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 2 ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY 1 (1923).

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

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

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

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

The [House of Representatives] ad hoc committee’s first hearing might have appeared frustratingly inconclusive. The

3 H. No. 4994 (2014); S. No. 2408 (2014) [hereinafter, the “BBL”]. 4 Maila Ager, BBL is in ‘coma,’ says Marcos, PHIL. DAILY INQUIRER, Feb. 11, 2015.

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.)).

[2015 A LIBERAL INTERPRETATION OF THE BBL 3 legendary retired justice Vicente V. Mendoza, who taught the Constitution to a generation of University of the Philippines lawyers, firmly opined that the Bangsamoro bill was beyond Congress’ power to pass. He argued that the “asymmetric” relationship with the Bangsamoro in the bill was little different from the proposed “associative” relationship struck down by the Supreme Court in 2008, and undermines the President’s power to supervise local governments and enforce national laws. Further, defining a Bangsamoro people may restrict the rights of other peoples in Mindanao.

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

Various legal circles mirror the intellectual stalemate. The Integrated Bar of the Philippines’ Nasser Marohomsalic and myself for the Philippine Bar Association strongly supported the bill at the hearing. On the other hand, the Philippine Constitution Association under Manuel Lazaro has taken a critical, adverse position. IBP general counsel and former UP Law dean Pacifico Agabin told me history demands that we recognize how our Muslim brethren remained independent from foreign colonizers even before we thought of our archipelago as the Philippines. But IBP Journal editor and former UP Law dean Merlin Magallona wrote at length of the bill’s many infirmities.

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

In plain language, the BBL’s constitutionality will be, at least initially, determined by statesmen, not law professors, with a methodology that goes beyond law and ideally taps the electorate’s broader reservoir of

6 Oscar Franklin Tan, Commentary: Bangsamoro Bill Can’t Be Analyzed Legally, PHIL.

DAILY INQUIRER, Nov. 7, 2014. The mindset reflected in this introduction was first articulated in this newspaper column, in Oscar Franklin Tan’s speech at the House of Representatives Ad Hoc Committee on the Bangsamoro Basic Law’s first hearing on October 27, 2014, and in Oscar Franklin Tan’s speech at Malacañang Palace on February 3, 2015 on behalf of The Outstanding Young Men awardees of 2014.

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wisdom and experience. Statesmen are entitled to recall that a constitution is not an ordinary legal document, but intended to be read very broadly and plainly as a document capable of serving as a framework and a repository of ideals to empower future generations. To quote Chief Justice John Marshall’s classic line: “We must never forget that it is a constitution we are expounding.”7

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

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

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

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

8 PACIFICO AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM 62 (2011) (published as part of the UP Law Centennial Textbook Project).

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

ANALYSIS

A. BANGSAMORO ENTITY AS VALID POLITICAL SUBDIVISION

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

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

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

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

9 Carolyn Arguillas, Abp Quevedo to GPH, MILF: “forge ahead with determination”,

MINDANEWS, Oct. 7, 2012, at http://mindanews.com/peaceprocess/news-features/2012/10/abp-quevedo-to-gph-milf-forge-ahead-with-determination.

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

6 Article III of the BBL defines the Bangsamoro Entity’s territory as

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

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

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

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

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

Note that article XI (Public Order and Safety) of the BBL

11 ROY E.H. MELLOR, NATION, STATE AND TERRITORY 4 (1989).

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

B. THE ASYMMETRIC RELATIONSHIP

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

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

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

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

12 BBL art. VI, § 1. 13 League of Provinces of the Phils., v. Dept. of Env’t & Nat. Res., G.R. No.

175368, Apr. 11, 2013 (Leonen, J., concurring).

[2015 A LIBERAL INTERPRETATION OF THE BBL 9 Taken in this spirit and in the BBL’s context, the asymmetric

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

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

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

C. USURPATION OF MINDANAO’S AUTONOMOUS REGION

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

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

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

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

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

D. VALIDITY OF MINISTERIAL FORM OF GOVERNMENT

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

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

15 § 16. 16 § 20. 17 § 18.

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E. RELATIONSHIP BETWEEN NATIONAL AND BANGSAMORO BODIES

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

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

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

3. The Supreme Court retains its ultimate power of judicial review and administration of Shari’ah courts and a Shari’ah bar in the Bangsamoro Entity;

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

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

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

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

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

9. The Bangsamoro Human Rights Commmission cannot

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prejudice the primarily recommendatory functions of the national Human Rights Commission and is probably prudent given the special human rights issues that may arise in the Bangsamoro Entity due to its special demographics.

F. A NOTE ON THE MOA-AD DECISION

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

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

G. OTHER ANALYSIS

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

Provision Comment

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

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

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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.

peoples’ identities.

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

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

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

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

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

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

Section 5. Bangsamoro Waters –

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

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

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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.

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

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

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

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independent and impartial, to ensure the promotion and protection of human rights in the Bangsamoro. In the performance of its mandate, the Commission may exercise, among others, investigatory powers, prosecutorial powers and powers to compel attendance of witnesses and the production of evidence.

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

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.

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 Audit18 ruled that another audit parallel to COA’s is allowed under the Constitution.

18 G.R. No. 88435, Jan. 16, 2002.

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

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

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

Article V, Section 2, Subsection 8. Civil Service. – The Bangsamoro Government shall develop and administer a professional civil service corps, to

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

It might be further clarified,

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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.

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

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

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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goods in the Bangsamoro territorial jurisdiction.

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

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

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

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

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

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

Article X, Section 10. Shari’ah Judicial and Bar Council. - The

This is acceptable because recommendatory authority to the

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

national Judicial and Bar Council does not restrict its discretion.

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

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

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

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approval of the Central Government. The Bangsamoro Parliament may authorize the Chief Minister to contract such domestic or foreign loans. The loans so contracted may take effect upon approval by a majority of all the members of the Bangsamoro Parliament.

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

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

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

constitutional restrictions.

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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

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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.

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;

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,19 but there is no such constitutional requirement for the alteration of provincial, city or municipal boundaries.

19 CONST. art. VI, § 5(4).

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

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

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

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

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

Article VI, Section 9. Bangsamoro Participation in Central Government. – It shall be the policy of the Central Government to appoint competent and qualified inhabitants of the

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

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Bangsamoro in the following offices in the Central Government: at least one (1) Cabinet Secretary; at least one (1) in each of the other departments, offices and bureaus, holding executive, primarily confidential, highly technical, policy-determining positions; and one (1) Commissioner in each of the constitutional bodies.

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

requirements for appointment to an office whose requirements are set out in the Constitution, such as a Supreme Court Justice or Commissioner of a constitutional body.

Article VII, Section 9. Bangsamoro Electoral Code. – The Bangsamoro Transition Authority shall enact the Bangsamoro Electoral Code, which shall be correlated to national election laws, insofar as these are consistent with this Basic Law. The electoral system shall allow

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

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democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties.

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

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

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

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

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

The Constitution provides that languages other than Filipino may be recognized as the country’s official language, recognizes regional languages as “auxilliary official languages,” and provides for

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languages during legislative deliberations.

the promotion of Arabic “on a voluntary and optional basis.”20

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

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

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

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

Section 5. Bangsamoro Police

This is acceptable because the Constitution provides that there be “one police force,”21 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.

20 CONST. art. XIV, § 7. 21 CONST. art. XVI, § 6.

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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.

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

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

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

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Bangsamoro Government. in the rest of the BBL’s Article XII.

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

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

Further, similar power has been granted by Congress to indigenous peoples under the Indigenous Peoples Rights Act.22

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

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

Article XVII of the BBL will have to be treated as a recommendation to Congress because the Constitution does not state that amendments to an autonomous region’s organic law must be approved by plebiscite within the autonomous region.23 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

22 Rep. Act No. 3491 § 7 (1997). 23 CONST. art. X, § 18.

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postulate of constitutional or international law violated, it is fairly straightforward to dismiss such broad objections and more specific section-level objections in favor of allowing a political experiment when it is not explicitly prohibited. From the above table, any adjustments that might be made to address such explicit prohibitions are minor and straightforward, such as clarifying the use of international law terms such as “self-governance” to specifically refer to the context of internal self-determination, or clarifying that the plebiscite to ratify amendments to the BBL is a policy recommendation only.

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

And as the other co-author summed up:

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

The answer to this question is, of course, “Yes,” unless we strengthen our democratic institutions to guarantee equality and justice to the Muslims. When a state grows and develops inclusively, when it changes its discriminatory laws against ethnic minorities, when our political leaders realize that it is advantageous to appeal across religious and ethnic lines, and when it allows free expression of cultural identity within the institutions of the country, and when it devolves some degree of power and autonomy to the ethnic minorities, such acts will defuse sentiments of secession and aspirations of independence.24

- o0o -

24 Pacifico Agabin, unpublished manuscript submitted for publication by the UP

College of Law.