http://www.rappler.

com/nation/specialcoverage/peacetalks/73338-bangsamorobill-schools-of-thought

Two schools of thought

on the Bangsamoro bill
The House ad hoc committee on the Bangsamoro
hears the opinion of legal luminaries
Angela Casauay
Published 4:17 PM, October 28, 2014
Updated 6:03 PM, May 25, 2015

government, he still doubts the constitutionality of

major provisions.
"I am of the opinion that House Bill 4994 is
beyond the powers of the Congress to pass,"
Mendoza said.
Azcuna, meanwhile, said the recognition of the
Philippine Constitution in the BBL preamble
"should lay to rest the concern that the exercise
does not mention the Constitution at all."
Mendoza raised 5 main provisions in the BBL,
which he said were unconstitutional. Azcuna and
government peace panel member Chito Gascon
members of the 1986 Constitutional Commission
offered their counter-opinions.
1. Use of the term 'Bangsamoro territory'

MANILA, Philippines Concerns over the

constitutionality of the proposed
Bangsamoro Basic Law (BBL) are centered
on these questions: Do you choose to read
the Constitution broadly or restrictively? Are
you open to the concept of "asymmetrical
relationship" between the envisioned
Bangsamoro and the central government or
are you not?
With these comments, lawyer Oscar Franklin
Tan, co-chair of the Philippine Bar
Association, summed up the main points of
the House ad hoc committee hearing on the
bill with former justices and legal experts on
Tuesday, October 28. (READ: Legal experts
take on Bangsamoro bill)

As expected, opinions on the proposed law were

divided. Former Supreme Court Justice Vicente
Mendoza said the BBL is unconstitutional while
former Supreme Court Justice Adolf Azcuna led
those who said that it is within the bounds of the
Constitution.
Mendoza acknowledged that while the BBL, a
product of the final peace accord between the
Aquino government and the Moro Islamic
Liberation Front (MILF), is an improvement over
the failed Memorandum of Agreement on
Ancestral Domain of the MILF and the Arroyo

Mendoza: To call the proposed political entity as a

"Bangsamoro territory" is to consider it a separate
part of the Philippines although under its
jurisdiction. Such a political entity is only a little
different to the "associative relationship" of the
Bangsamoro Juridical Entity under the MOA-AD.
The Constitution does not contemplate any state in
the jurisdiction of the state much less does it
provide for a transition status that prepares any part
of the Philippines for independence.
Azcuna: Bangsamoro means "nation of the Moro."
It's a recognition of a nation of people with a
distinct culture. There can be many nations within
a state. Although it is thinking out of the box, it is
not unconstitutional.
2. Use of the term 'Bangsamoro people'
Mendoza: Provisions referring to "Bangsamoro
people" limit suffrage and membership to the
Bangsamoro government to those who ascribe to
the Bangsamoro identity thus denying the rights
and privileges of national citizenship guaranteed in
the national Constitution.
Gascon: Everything in the provisions affirm the
rights of all citizens. There is no two-tier
citizenship. What it does say is that the
Bangsamoro shall have the opportunity for selfgovernance by way of the establishment of a
political entity that will govern themselves day to
day. But who shall govern the Bangsamoro? All
those elected by all citizens of the Bangsamoro,
whether they ascribe to be Bangsamoro or not.

There is nothing in the Bangsamoro Basic Law that

says that only the Bangsamoro may be elected.
3. Parliamentary form of government
Mendoza: This provision is contrary to the
Constitutional provision that the autonomous
region should consist of an executive and
legislative branch, both of which shall be elective
and representative of constituent unit.
Azcuna: Our Malolos Constitution is a
parliamentary form of govenrment. This is nothing
new. The officials...will still be elected and the
government will be democratic. Under the
proposed law, while the Chief Minister will be
chosen among members of the Bangsamoro
parliament and not directly elected by the people,
the members themselves will still be elected.
4. Separation of powers BBL lists down
reserved powers for the central government,
exclusive powers for the Bangsamoro
government, and concurrent powers between
the two
Mendoza: The central government under the bill in
question only has limited powers, contrary to the
Constitution which vested the national government
with a repository of all powers minus powers given
by the Constitution to autonomous govenrments.
Azcuna: Under the Constitution, all powers not
delegated are retained by the central government.
In the case of the AFP, for instance, ultimately,
who is the commander-in-chief of the AFP? It's
still the President. There is no commander in chief
of the AFP other than the President.
5. General supervision of the Bangsamoro
government or the so-called "Asymmetric
relationship"
The panels define "asymmetric relationship" as
"implying a special status of the Bangsamoro visa-vis the central government that is different from
that of local governments and administrative
regions. The autonomous regions for Muslim
Mindanao and the Cordillera contemplated in the
Constitution partakes of this special and distinct
status and can thus be described as asymmetrical."
Mendoza: It is the asymmetric relation
qualification that waters down the President's
general supervision. This can make the strict

enforcement of national laws in the Bangsamoro

difficult to secure. The right to self-determination
cannot be used to justify this kind of relationship
between the Bangsamoro government and the
central government.
Azcuna: The "asymmetric relationship" is an
attempt to reverse the balance. That is why there is
a provision here on transitional justice. Let us let
them chart their own course.
During the hearing, retired Colonel Cesar Pobre
criticized the lack of a clear declaration in the BBL
that the MILF has already renounced their quest
for secession.

Gascon said the right to selfdetermination can't be curtailed and

is also recognized by many UN
declarations.
There is nothing "patently unconsitutional" in the
Bangsamoro Basic Law, Ateneo School of
Government Dean Antonio La Via told the
committee.
La Via said Congress can take a risk by passing
the law as it is but warned it would be prudent to
scrutinize possibly problematic provisions before
the proposed law is even questioned in Court.
"I can say with confidence that the current
Supreme Court...(adheres) to a strict interpretation
of constitutional law. Following that, you might
actually want to be prudent. If you have a
conservative SC, how can we be sure that we
address before that any issues?" La Via said.
La Via proposed the inclusion of a definition of
terms in the law. He said terms that needed further
definition include "asymmetric relationship" and
"geographic areas."
The Bangsamoro Basic Law needs to go through
two rounds of voting before it can be passed into
law in Congress and through a plebiscite.
The Aquino administration hopes to finish the
transition from the Autonomous Region in Muslim
Mindanao to the Bangsamoro before Aquino steps
down in 2016.

government and the Moro Islamic Liberation Front

(MILF) as unconstitutional.
Lazaro earlier raised concerns over what he called
vague and unclear provisions on the "asymmetric"
relationship between the government and
envisioned Bangsamoro entity, as well as the
proposed territory.
The Philconsa president made the remarks before
President Benigno Aquino III submitted to Congress
the Bangsamoro bill, crafted by the MILF-led
Bangsamoro Transition Commission (BTC) and
Malacaang representatives.
Tuesday's hearing will mark the first time that legal
experts will come together in Congress to officially
register their position on the constitutionality of the
bill that seeks to replace the Autonomous Region in
Muslim Mindanao (ARMM) with a parliamentary
government that has greater political and fiscal
autonomy.

http://www.rappler.com/nation/specialcoverage/peacetalks/73291-legal-expertsbangsamoro-basic-law-hearing
Legal experts take on Bangsamoro bill

Will the ghost of the failed Memorandum of

Agreement on Ancestral Domains haunt
discussions?
MANILA, Philippines It's the legal luminaries'
turn to share their verdict on the proposed law
seeking to create a new autonomous region in
Muslim Mindanao.
Former Supreme Court justices and legal experts
face the ad hoc committee in the House of
Representatives tackling the proposed Bangsamoro
Basic Law on Tuesday, October 28, and Wednesday,
October 29.
At least one of the invited guests, Philippine
Constitutional Association (Philconsa) president
Manuel Lazaro, has already called certain
provisions of the peace deal between the

Aside from Lazaro, Senator Miriam Defensor

Santiago, a constitutional law expert, has also called
the government and MILF peace deal as illegal
because it creates a substate instead of a mere
autonomous region one of the basis that the
Supreme Court cited in declaring as
unconstitutional the Memorandum of Agreement on
Ancestral Domain (MOA-AD) between the Arroyo
government and the MILF in 2008.
Despite the concerns, there has been no serious
challenge to the Comprehensive Agreement on the
Bangsamoro filed before the Supreme Court to date.
Aquino has also repeatedly vouched for the
constitutionality of the measure.

The submission of the proposed law

to Congress was delayed when it took
Malacaang months to conducts its
review after the BTC submitted the
first version of the bill.
Insiders said the Malacaang review took a while
because some provisions of the first draft were
unconstitutional and not originally included in the
peace deal. The MILF, meanwhile, accused the
Malacaang of diluting the original BTC draft.
The current version of the Bangsamoro bill now
being deliberated in Congress is the product of

further discussions between Malacaang and the

BTC.
While the MILF has called on Congress to pass the
Bangsamoro bill as is, there is no stopping Congress
from introducing changes.
However, Congress has to strike a balance between
amending the proposed law and staying true to the
signed final peace pact. If not, the final product may
go the way of the current ARMM Organic Act, that
was "disowned" by the Moro National Liberation
Front (MNLF), which signed a peace pact with the
government in 1996.
Up to now, the MNLF has accused the government
of failing to implement the peace deal in full.
What happened before: the MOA-AD debacle
The ghost of the past hovers over discussions on the
constitutionality of the proposed Bangsamoro Basic
Law.
In 2008, the MILF and the government had
attempted to create a "Bangsamoro Juridical Entity"
(BJE) that would have enjoyed its own legislative,
administrative, security, financial, judicial and
educations systems under the failed MOA-AD.
Before the agreement could be signed in Kuala
Lumpur, local officials in key Mindanao cities and
provinces, as well as national officials, questioned it
before the Supreme Court over the lack of public
consultation on the contents of the bill.
The SC issued a temporary restraining order on the
signing, causing a firefight to break out between the
MILF and the Philippine military, displacing around
600,000 people. The high court later declared the
MOA-AD as unconstitutional.
Among the petitioners were then Zamboanga City
mayor and now first district Representative Celso
Lobregat, then North Cotabato vice governor
Emmanuel Piol, former North Cotabato governor
and now Representative Jesus Sacdalan, former
Iligan City mayor Lawrence Cruz, then Makati
mayor and now Vice President Jejomar Binay,
Senator Franklin Drilon, lawyer Adel Tamano, then
Senator and now Interior Secretary Manuel Roxas,
then senator Ernesto Maceda, and lawyer Aquilino
Pimentel III.

Under the MOA-AD, the BJE would have been

allowed to enter into economic agreements and
trade relations with other countries.
It would have also enjoyed an "associative
relationship" with the government, which would
give it the status of an independent state a
standing that is beyond the bounds of the
Constitution.
The Supreme Court declared the MOA-AD as
unconstitutional for creating a sub-state the same
issue now being hurled at the Bangsamoro.
In its 89-page decision penned by then Associate
Justice and now Ombudsman Conchita CarpioMorales, the High Court said the associative
relationship envisioned between the GRP and the
BJE is unconstitutional, for the concept presupposes
that the associated entity is a state and implies that
the same is on its way to independence.
The SC rejected the MOA-AD's creation of
ancestral domains, which would have required
Constitutional amendments, through a mere peace
deal.
The statute does not grant the executive
department or any government agency the power to
delineate and recognize an ancestral domain claim
by mere agreement or compromise, the Court said.
This time around, the Bangsamoro bill will go
through two rounds of voting before it can be
enacted in Congress and through a plebiscite.
Core territories will also have the choice to vote on
whether they want to be included in the new
autonomous region.
The House and the Senate are in the midst of
conducting public consultations in Mindanao as
they aim to pass the bill by the first quarter of 2015.
Further addressing concerns over the so-called
unconstitutional provisions of the proposed law is
now in the hands of Congress.
As Cagayan de Oro 2nd district Representative
Rufus Rodriguez, chairman of the House ad hoc
committee, said at the beginning of the hearings,
"We will not allow an unconstitutional Bangsamoro
Basic Law to be passed in the House."
Pressing issues

Most of the issues raised by lawmakers and

stakeholders in relation to the constitutionality of
the basic law has revolved around how powers will
be shared between the Bangsamoro government and
the central government which Senator Ferdinand
"Bongbong" Marcos Jr has called as the "single
biggest issue" in the discussions.
In previous hearings, lawmakers and stakeholders
sought to clarify the extent of the powers of the
Bangsamoro Chief Minister in relation to the
President, as well as different branches of
govenrment.
The proposed law has provided for a number of
"intergovernmental relations mechanisms" that
would see the Bangsamoro government and national
branches and agencies collaborate on matters that
interlap with each other.
Some of the issues that have been raised include:

The extent of the

Bangsamoro's power to
create LGUs within its
territory given that
Congress has the power
to create of new
legislative districts
Preferential rights in
Bangsamoro Waters and
the Zones of Cooperation
Who will prevail if the
Philippine Congress and
the Bangsamoro
Parliament Forum
contradict each other
What will prevail if there
is a difference between
the Bangsamoro
development plan and
the national development
plan
If the Bangsamoro police
will still be under the

direct control of the PNP

chief

What will prevail if there

is disparity between the
report of the Commission
on Audit and the
Bangsamoro Commission
on Audit

More than constitutional issues, Rodriguez said

lawmakers' more pressing concerns center on
operational aspects of the law, such as the boundary
of territories, as well as how the proposed scheme
for fishing grounds in the Bangsamoro would be
implemented.
In an interview with the Institute for Autonomy and
Governance, Rodriguez said parties have already
learned from past mistakes.
"Everything now is in the hands of Congress to
make this entity, the Bangsamoro. Everything now
is in the House and now we are going [around] in
the biggest and pervasive consultations that I can
remember in my seven years in Congress. This is
the bill that will have this kind of widespread and
inclusive consultation," Rodriguez said.
The House ad hoc committee on the Bangsamoro
invited the following former justices:

Chief Justice Hilario

Davide Jr, Reynato Puno,
and Artemio Panganiban
former Supreme Court
Justices Adolf Azcuna,
Vicente Mendoza, Antonio
Eduardo Nachura, and
Leonardo Quisumbing

Legal experts invited include:

Justice Manuel Lazaro,

president of Philippine
Constitution Association
Vicente Joyas, president
of the Integrated Bar of
the Philippines (IBP)

Beda Fajardo, president

of Philippine Bar
Association
Danilo Concepcion, law
dean of University of the
Philippines
Sedfrey Candelaria, law
dean of the Ateneo Law
School
Melencio Sta Maria, dean
of the Far Eastern
University Institute of
Law
Virgilio Jara, dean of the
San Beda College of Law
Jose Sundiang, dean of
the Arellano University
College of Law

Ferdinand Tan, dean of

the San Sebastian
College of Law
Christian Monsod, former
member of the 1986
Constitutional
Commission
Roan Libarios, former IBP
president
Nasser Marohomsalic,
member of the
Independent Panel of
Lawyers
Avelino Cruz Jr, former
Arroyo chief leagal
counsel and defense
secretary

Read the draft Bangsamoro Basic

Law