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net/692638/bblneeds-charter-change-says-senate-report
BBL needs Charter change, says Senate
report
03:18 AM May 21st, 2015

MANILA, PhilippinesCongress cannot just pass


the proposed Bangsamoro Basic Law (BBL)
because the establishment of a new autonomous
region for Muslims in Mindanao requires the
amendment or revision of the 1987 Constitution,
according to a draft report prepared by the Senate
committee on constitutional amendments and
revision of codes.
The Bangsamoro has much merit, but its
promulgation requires constitutional amendment or
revision; mere legislation will not suffice, and will
spark Supreme Court litigation, said the report
drafted by the committee headed by Sen. Miriam
Defensor-Santiago.
The 27-page draft committee report, a copy of
which was obtained by the Inquirer, is now being
circulated among the panels members. So far,
according to sources, it has been signed by seven
senators, including acting Senate Minority Leader
Vicente Sotto III and Sen. Teofisto Guingona III.
Sen. Ferdinand Marcos Jr. told reporters on Monday
that he had signed the draft report.

The draft report may be consolidated with the report


of the committee on local government headed by
Marcos, which continues to hold hearings on the
BBL jointly with the committee on peace,
unification and reconciliation headed by Guingona.
In the summary of the draft report, Santiagos
committee said the BBL effectively seeks to
change certain constitutional provisions on local
autonomy.
Invalid

Notwithstanding the peace-driven merits of the


bill, it cannot be promulgated by means of a mere
legislation by Congress. It has to be promulgated by
nothing less than an amendment to the
Constitution, the report said.

In its present state, the report said, the proposed


BBL raises many insidious doubts on
constitutionality and raised two points.
First, the measure failed to conform to the
constitutional provision for the establishment of
autonomous regions in Muslim Mindanao
within the framework of this Constitution, and the
national sovereignty, as well as territorial integrity
of the republic.
Second, President Aquino, as head of the executive
branch of government, appointed a peace panel to
negotiate with the Moro Islamic Liberation Front
(MILF), resulting in the Comprehensive Agreement
on the Bangsamoro (CAB).
Thus, the report said, the proposed BBL would be
ultra vires (invalid) because although a simple
government office negotiated with a
nongovernment organized group, the result would
be to amend the Constitution.
The report said [t]he BBL, pursuant to the CAB,
reorganizes and restructures the powers of [the]
government, thus usurping the sovereignty [that] the
Constitution defines as residing in the people.
State within PH state
Examining the sovereignty issue, the report said the
changes sought by the BBL conspire to create a
part-sovereign state or a substate, meaning a
political community in which part of the powers of
external sovereignty are exercised by the home
government, and part are vested in or controlled by
some other political body or bodies.
[T]he BBL creates an entire state within the
Philippine state, the report said.
It said the proposed BBL sought to allow the
Bangsamoro government the power to diminish
national sovereignty in providing it with three
different kinds of powerreserved, concurrent (it
shares power with the national government) and
exclusive (Bangsamoro on occasion even exercises
power independently of the national government).
Many powers, functions and responsibilities are
sought to be transferred to the internal sovereignty
of the Bangsamoro government, which is supposed
to have coequal status with the national
government, the report said, adding that the
Bangsamoro government under the BBL would be a

part-sovereign state or a substate, which was


never intended nor ever approved by the Philippine
Constitution.
On the issue of autonomy, the report said while the
BBL was said to be an exercise of local autonomy,
it bursts its bounds and turns into a part-sovereign
state or substate.
For instance, it noted that the term Bangsamoro
territory implied that while it was under the
jurisdiction of the Philippines, it was separate and
that with the use of the questionable phrase
Bangsamoro people, the proposed law takes a
slippery path toward a Bangsamoro electoral code
that might limit suffrage to membership of the
Bangsamoro government and the Bangsamoro
people.
Form of govt
The report also said the proposed BBL provided for
a parliamentary form of government within a
presidential form of government and that there was
no constitutional basis for changing the form of
government.
This violates the constitutional provision that the
organic act shall define the basic structure of
government for the region consisting of the
executive department and the legislative assembly,
both of which shall be elective and representative of
the consequent political units, the report said.

same binding national character as congressional


enactments. This would render the BBL
defenseless were it placed under judicial scrutiny in
the Supreme Court, the report said.
On territorial integrity, the report said the proposed
BBL provided that the Bangsamoro would have
exclusive powers and use of natural resources as
long as they were found in the Bangsamoro. This is
contrary to international law and constitutional law,
it said.
The report also held as questionable the provision
that would allow the Bangsamoro government to
have authority and jurisdiction over the
exploration, development and utilization of mines
and mineral resources in its territory.
It also pointed out the BBLs reference to the
autonomous region as a territory when the
proposed law had no power to create the
Bangsamoro territory.
There is no objection to the establishment of
autonomy on a territorial basis for the Bangsamoro.
However, it has to be pointed out that the right of
indigenous populations to self-determination is
restricted to autonomy and self-governance, it said.
Four concerns
The report also raised four concerns about the
proposed BBL.

On the issue of substate or less-than-sovereign


state, the report said this was not contemplated by
the Constitution.

The reference to the BBL as a basic law when to


judges and lawyers this is a synonym for
constitutional law and organic law.

The BBL seeks to establish a political entity so far


unknown in the rest of constitutional democracies.
While the Constitution takes care to define the
limits of local autonomy, the BBL is vested with
powers far beyond constitutional limits, it said.

Thus, the BBL, by its own terms, is intended, by


those who drafted it to have the same effect as the
constitution or constitutional law of the
territory that is designated as the Bangsamoro and
the proposed law then intended to have the same
primacy and consequences as the constitution of the
territory of the Bangsamoro as the 1987
Constitution in the territory of the republic.

The report pointed out that the BBL would limit the
powers of Congress because while Congress will be
entitled to reserved powers, the Bangsamoro would
be excluded from the laws passed by the legislature
with respect to autonomous regions.

But it goes without saying that two different


constitutional instruments cannot have legal effect
at the same time and in the same territory, it said.

Issuing own laws unacceptable


Also deemed unacceptable by the report was the
provision granting the Bangsamoro parliament
powers to issue its own laws, which could have the

The peace effort between the government and the


MILF was a discussion between the government of
a sovereign state and a group of rebels seeking

either to overthrow or secede from that sovereign


state.
The report said peace was ordinarily discussed after
a military victory over the rebels but peace
negotiations were not a substitute for military
success.
Give forceful meaning
It also noted that there were other secessionist
groups besides the MILF, mentioning the Moro
Nationalist Liberation Front (MNLF) as an
example.
The need to give forceful meaning to the sentence
in the BBL that the Bangsamoro territory shall
remain part of the Philippines.
The general statement must not be contradicted or
emasculated by the details of the resulting structures
and institutions of the Bangsamoro entity, the draft
report said.
The Senate committee noted the BBL provision that
to expand on the Bangsamoro territory, a simple
resolution was needed of the local government or a
petition of at least 10 percent of the voters of a
contiguous land area and a popular ratification
within the area.
It said the structures and processes set up by the
republics administrative law may be expected to
be modified or swept away by acts of the
Bangsamoro.
This is not something that can be authorized to be
done by any state or regulation enacted by the
Congress. The 10 percent of registered voters of a
contiguous local government unit cannot simply
push away or ignore what the 90 percent wish to
do, the report said.
The committee also cited the need for particular and
detailed attention to the proposed distribution of
governmental powers and functions between the
government and the Bangsamoro.
Note that the government will have fewer and
limited functions and duties than the Bangsamoro
government in respect of matters touching the daily

lives of people. Constitutional amendments will be


required to put the redistribution of powers
envisaged by the proposed BBL into effect, the
report said.
Redistribution of powers
The committee noted that the Bangsamoro
government would be financially supported by the
national government, a truly extraordinary
situation.
Effectively, the Bangsamoro government will have
seceded from, and been allowed to do so by, the
government, the report said.
Fails 2-fold tests
In conclusion, the committee said the BBL fails the
twofold test set by the Constitution and that was in
the contexts of the national sovereignty and
territorial integrity.
The committee noted that the BBL was presented as
a way to achieve peace in Mindanao, but added that
the end does not justify the means.
The problem with [the] BBL as an experiment in
both creative and innovative political values is that
it makes no mention of the possible various
consequences of such an experiment in domestic
governance, it said.
Recommendations
The committee made two recommendations:
Instead of implying a transfer of sovereignty from
the national government to the Bangsamoro
government, the BBL should observe the principle
of subsidiarity (the doctrine that the power to make
local decisions should be vested with local
authorities and not with a dominant central
aggregation) as a way to allocate decision-making
power, but there must be a limit to the amount of
division of competencies.
The BBL should provide for a minimal threshold
of competencies under which national sovereignty
may not be limited or shared.

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