A LIBERAL INTERPRETATION OF

THE BANGSAMORO BASIC LAW*

Pacifico A. Agabin**
Oscar Franklin B. Tan**

“[The Constitution] is an experiment, as all life is an

experiment. Every year if not every day we wager our salvation
upon some prophecy based upon imperfect knowledge.”
—Justice Oliver Wendell Holmes, Jr.1

“The law must be stable, but it must not stand still.”

—Dean Roscoe Pound2

* 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).

1
2

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.
4

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

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

PACIFICO AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM 62
8

(2011) (published as part of the UP Law Centennial Textbook Project).

[2015 A LIBERAL INTERPRETATION OF THE BBL 5

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
[2015 A LIBERAL INTERPRETATION OF THE BBL 7

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).

8

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

12BBL art. VI, § 1.

13League 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.

10

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.
[2015 A LIBERAL INTERPRETATION OF THE BBL 11

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

12

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. – This is acceptable because the

The purpose of this Basic Law is to Bangsamoro people’s identity may
establish a political entity, provide be recognized in law in the same
for its basic structure of way we recognize indigenous
[2015 A LIBERAL INTERPRETATION OF THE BBL
government in recognition of the
justness and legitimacy of the cause
of the Bangsamoro people and their
aspiration to chart their political
future through a democratic process
that will secure their identity and
posterity and allow for meaningful
self-governance.
Article IV, Section 1. Self-
Governance. In the exercise of its
right to self-governance and self-
determination, the Bangsamoro is
free to pursue its economic, social
and cultural development.
Article II, Section 2(4). Core
Territory – The core territory of
the Bangsamoro shall be composed
of … all other contiguous areas
where there is resolution of the
local government unit or a petition
of at least ten percent (10%) of the
registered voters in the area asking
for their inclusion at least two
months prior to the conduct of the
ratification of the Bangsamoro
Basic Law and the process of
delimitation of the Bangsamoro.
Article III, Section 4. Inland
Waters. – All inland waters, such as
lakes, rivers, river systems, and
streams within the Bangsamoro
territory shall be part of the
Bangsamoro. The preservation and
management thereof shall be under
the jurisdiction of the Bangsamoro
Government.
Section 5. Bangsamoro Waters –
13
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.
The BBL might be further clarified
regarding what “contiguous” will
mean and what the smallest local
government unit (municipalities or
baranggays, for example) allowed to
join the Bangsamoro Entity will be.
Further, the BBL might be further
clarified whether sub-units of a
province may join the Bangsamoro
Entity but remain part of a province
itself not a part of the Bangsamoro
Entity, or whether provinces will
have to be redrawn.
This is acceptable because a local
government unit may manage
inland bodies of water within its
assigned territory.
Further, nothing prevents the
delegation of the management of
certain territorial waters to a local
government unit.
14

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 It is curious why a law creating an

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.
autonomous region would mention
war, a matter among states, but a
reiteration of the constitutional
policy renouncing war in any law is
not invalid.

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.

Article V, Section 2, Subsection This is acceptable because the

5. Human rights and Constitution’s Commission on
humanitarian protection and Human Rights has generally
promotion. – The Bangsamoro recommendatory powers and would
Government may organize its own not be supplanted by regional
bodies for human rights and human rights bodies.
humanitarian protection and
promotion that will work Anticipating human rights questions
cooperatively with relevant national involving race and religion specific
institutions. to the Bangsamoro Entity’s unique
demographics, creating a specific
Article IX, Section 7. Bangsamoro human rights body
Bangsamoro Human Rights might be prudent.
Commission. – There is hereby
created a Bangsamoro Human
Rights Commission, which shall be
[2015 A LIBERAL INTERPRETATION OF THE BBL 15

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 This is acceptable because the

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.
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.

Article XII, Section 2. Auditing.

– All public funds of the
Bangsamoro are subject to auditing.

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

16

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 This is acceptable because the CSC,

8. Civil Service. – The a constitutional body, remains
Bangsamoro Government shall responsible for the civil service.
develop and administer a
professional civil service corps, to It might be further clarified,
[2015 A LIBERAL INTERPRETATION OF THE BBL 17

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.
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.

There is hereby created a

Bangsamoro Civil Service office
that shall develop and administer a
professional civil service corps,
without prejudice to the power,
authority and duty of the national
Civil Service Commission. The
Bangsamoro Government shall
enact a civil service law for this
purpose. This law shall govern the
conduct of civil servants, the
qualification for non-elective
positions, adopt the merit and
fitness system, and protect civil
service eligibles in various
government positions, including
government-owned and/or
controlled corporations with
original charters, in the
Bangsamoro. The Bangsamoro
Government shall have primary
disciplinary authority over its own
officials and employees.

Article V, Section 2, Subsection This is acceptable because nothing

10. Customs and Tariff. – The prevents a government from
Bangsamoro Government and the delegating customs authority over a
Central Government shall certain area to a local government.
cooperate and coordinate through
the intergovernmental relations Existing Philippine provinces and
mechanism with regard to the cities enter into barter trade with
enforcement of customs and tariff other ASEAN countries.
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
18

goods in the Bangsamoro territorial

jurisdiction.

Article V, Section 2, Subsection This is acceptable because the

11. Administration of justice. – Bangsamoro Entity’s Shari’ah
Administration of justice shall be in courts remain subject to the original
accordance with the relevant powers of the Supreme Court under
provisions of this Basic Law and the Constitution.
with due regard to the powers of
the Supreme Court and the The Constitution explicitly
competence of the Bangsamoro provides: “The organic acts [of
Government over Shari’ah courts autonomous regions] shall likewise
and the Shari’ah justice system in provide for special courts with
the Bangsamoro. The supremacy of personal, family, and property law
Shari’ah and its application shall jurisdiction consistent with the
only be to Muslims. provisions of this Constitution and
national laws.”
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.

Article X, Section 10. Shari’ah This is acceptable because

Judicial and Bar Council. - The recommendatory authority to the
[2015 A LIBERAL INTERPRETATION OF THE BBL
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.
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
19
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.
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
20

approval of the Central constitutional restrictions.

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
[2015 A LIBERAL INTERPRETATION OF THE BBL 21

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
22

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 This is acceptable because Congress

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;
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).

[2015 A LIBERAL INTERPRETATION OF THE BBL 23

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 This provision emphasizes that the

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.
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. This is acceptable because it is

Bangsamoro Participation in
Central Government. – It shall be
the policy of the Central
Government to appoint competent
and qualified inhabitants of the
nonbinding policy (albeit morally
binding) and not a strict legal
requirement.
Note that it is not possible to add
24

Bangsamoro in the following offices requirements for appointment to an

in the Central Government: at least office whose requirements are set
one (1) Cabinet Secretary; at least out in the Constitution, such as a
one (1) in each of the other Supreme Court Justice or
departments, offices and bureaus, Commissioner of a constitutional
holding executive, primarily body.
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.

Article VII, Section 9. This is acceptable because the

Bangsamoro Electoral Code. – Bangsamoro Electoral Office is part
The Bangsamoro Transition of the national Commission on
Authority shall enact the Elections and presumably under its
Bangsamoro Electoral Code, which control and supervision, and
shall be correlated to national because the Bangsamoro Electoral
election laws, insofar as these are Code shall be subsidiary to national
consistent with this Basic Law. The election laws.
electoral system shall allow
[2015 A LIBERAL INTERPRETATION OF THE BBL 25

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 This is acceptable because Congress

and Immunities. – No member of may grant by statute to Bangsamoro
the Bangsamoro Parliament may be Parliament members privileges and
arrested while the Bangsamoro immunities mirroring those of
Parliament is in session, except for national legislators granted in the
crimes punishable by more than six Constitution.
(6) years of imprisonment. The
members of the Bangsamoro
Parliament may not be questioned
in any other place of held liable for
any speech or debate delivered in
the Bangsamoro Parliament
sessions or meetings of its
committees.

Article VII, Section 23. This is acceptable because legislative

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
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
26
languages during legislative
deliberations.
Article IX, Section 19.
Preservation of Bangsamoro
Cultural Heritage. – To preserve
the history, culture, arts, tradition
and the rich cultural heritage of the
Sultanates, such as the Sultanates of
Sulu, Maguindanao, and Buayan,
and the Royal Houses of the
Maranaos and the indigenous
peoples of the Bangsamoro, there
shall be created a Bangsamoro
commission for the preservation of
cultural heritage.
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
20 CONST. art. XIV, § 7.
21 CONST. art. XVI, § 6.
the promotion of Arabic “on a
voluntary and optional basis.”20
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.
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.
[2015 A LIBERAL INTERPRETATION OF THE BBL 27

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 BBL is explicit that the external
- The defense and security of the defense of the Bangsamoro Entity
Bangsamoro shall be the shall remain the national
responsibility of the Central government’s responsibility, and
Government. The Central there is no separate armed forces (as
Government may create a opposed to a civilian police force)
Bangsamoro Command of the for the Bangsamoro Entity. This
Armed Forces of the Philippines for key detail undercuts allegations that
the Bangsamoro, which shall be the Bangsamoro Entity is one step
organized, maintained, and utilized away from becoming a separate
in accordance with national laws. country.
Qualified inhabitants of the
Bangsamoro shall be given
preference for assignments in the
said Bangsamoro Command.

Article XII, Section 6. Revenue This is acceptable as there are no

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
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
28

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

Article XIII, Section 8. Natural This neither violates the Regalian

Resources, Nature Reserves and doctrine nor asserts that the
Protected Areas. – The Philippine State no longer owns the
Bangsamoro Government shall natural resources within the
have the authority, power, and right Bangsamoro Entity. As a legitimate
to explore, develop and utilize the political subdivision of the
natural resources, including surface Philippines, the Bangsamoro Entity
and sub-surface rights, inland may be authorized to develop the
waters, coastal waters, and resources within its assigned
renewable and non-renewable territory.
resources in the Bangsamoro.
Further, similar power has been
granted by Congress to indigenous
peoples under the Indigenous
Peoples Rights Act.22

Article XVII, Section 1. Article XVII of the BBL will have

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.
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.
[2015 A LIBERAL INTERPRETATION OF THE BBL 29

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.