The Bangsamoro Bill is Beyond the Power of Congress to Pass Vicente V. Mendoza The Bangsamoro Bill (H.B. No. 4994) has been filed pursuant to the Comprehensive Agreement on the Bangsamoro Agreement signed on March 27, 2014 between the government peace panel and the counterpart panel of the Moro Islamic Liberation Front (“MILF”). It is the second attempt to solve the armed conflicts that for so long have dominated the relationship of the government with Muslim Mindanao. The first one, the Memorandum of Agreement on Ancestral Domain or MOA-AD, which was made in 2008, was declared void by the Supreme Court for being beyond the power of the government to make under the Constitution." Comparing the two agreements, I find that much has been done to bring the proposed Bangsamoro Basic Law to conformity with the Constitution, and for this I think acknowledgment should be made of the work of those who have done so, in particular, the two peace panels and the legal experts. I regret, however, that despite the splendid progress made toward the peaceful solution of the Mindanao conflict, I still entertain doubts concerning the constitutionality of certain concepts and provisions embodied in H.B. No. 4994. Let me point them out briefly. Remarks given before the Ad Hoc Committee on the Bangsamoro Basic Law of the House of Representatives at the hearing on H.B. No. 4994 on October 28, 2014. 1 Province of North Cotabato v. Gov't of the Republic of the Philippines Peace Panel on Ancestral Domain, 568 SCRA 402 (2008).2 First, the BangsamoroTerritory. The reference in the Bill to the autonomous region as a “territory” and as the “ancestral homeland” of the Bangsamoro people is contrary to the Constitution which considers the autonomous region provided therein to be a part of the Philippine Archipelago. The term “territory” is defined in Black’s Law Dictionary as “A part of a country separated from the rest and subject to a particular jurisdiction. Geographical area under the jurisdiction of another country or sovereign power.” Such, for example, was the Philippines an “unincorporated territory” of the United States, before it was granted independence on July 4, 1946. Hence, to call the autonomous region in Muslim Mindanao the “Bangsamoro territory”? is to consider it a separate part of the Philippines although under its jurisdiction. The recognition of the “right [of the people] to self-determination .. . to chart their political future”? reinforces the notion that Bangsamoro is a separate political entity, although under the jurisdiction of the Philippines. Such a political entity is only a little different from the “associative state” called Bangsamoro Juridical Entity in the MOA-AD invalidated by the Supreme Court in 2008. The dismemberment of the national territory can result from such provisions of the Bill. What the Court said in that case applies to the Bill in question: .. . The Constitution . . . , does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. 2 HB. No, 4994, Art II, Sec. 1. 3 Id., Preamble, Art. I, Sec. 3, Art. IV, Sec. 1, Art VI, Secs. Land 3.. Indeed, BIE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it ~ which has betrayed itself by its use of the concept of association ~ runs counter to the national sovereignty and territorial integrity of the Republic.* ‘Second, the Bangsamoro People. By providing who are considered Bangsamoro, the Bill in effect gives the Parliament the power to enact an Electoral Code® limiting suffrage and membership in the Bangsamoro Government to Bangsamoro people, thus denying the rights and privileges of national citizenship guaranteed in the Constitution.” Non-Bangsamoro, although Filipino citizens and residents of the region for the requisite period, can be disqualified from election to the Parliament and appointment to the Cabinet. This is because the definition in the Bill of who are Bangsamoro performs the same function that the definition of who are citizens of a nation or state does in a national constitution. Third, the Form of the Bangsamoro Government. The Bill provides for a parliamentary form of government. It vests the powers of government in the Parliament. The Chief Minister, who is head of the Cabinet, is elected * Province of North Cotabato v. Gov't of the Republic of the Philippines Peace Panel on Ancestral Domain, 568 SCRA 568 SCRA, at 481-482. SId., Art. Il, Sec. 1 provides: “Those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, including Palawan, and their descendants, whether of mixed or of full blood, shall have a right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and their descendants are classified as Bangsamoro.” °id., Art. VIL, Sec. 9. 7 Const, Art. V, Sec. 1by the majority vote of the Parliament from among its members, while the Deputy Minister and a majority of the Cabinet are appointed by the Chief Minister from the members of Parliament.’ The Cabinet performs executive functions. This provision of the Bill is contrary to the constitutional provision that the government of the autonomous regions shall consist of “the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.”” Fourth, the Powers of Goverment. Under the Bill, the Bangsamoro Government is given extensive “exclusive” and “concurrent powers over matters enumerated therein,!° whereas the Central Government is limited to those enumerated therein and to those which it shares with the Bangsamoro Government. The Philippine Government is given “reserved powers” over the following: 1. Defense and external security; Foreign policy; Coinage and monetary policy; Postal service; Citizenship and naturalization ; Immigration; Customs and tariff, as qualified by Section 2 (10), Article V of the Bill; 2 aver ep SELB, No. 4994, Art. VIL, Secs. 1-3, > Const., Art. X, Sec. 18. \ HB, No. 4994, Art. V, Secs. 2-3.9. Common market and global trade, provided however that the power to enter into economic agreements given to the ARRM under R.A. No. 9054 shall be transferred to the Bangsamoro Government; and Intellectual property rights.!! and “concurrent powers” over the following matters: nS 10, i 12, 1B. 14. Social security and pensions Quarantine Land registration Pollution control Human rights and humanitarian protection and promotion Penology and penitentiary Auditing Civil Service Coastguard Customs and Tariff Administration of Justice Funding for the maintenance of national roads, bridges, and irrigation systems Disaster risk reduction and management Public order and safety"? Thus, under the Bill, the Central Government would be like the Federal Government of the United States -- a government of enumerated powers with the balance of powers retained by the governments of the several states. The Philippine Government however is a unitary government and as such it has all powers of Mid, Art. V, Sec. 1. 2 Id., Art. V, Sec. 2.sovereignty, except only those given to the autonomous regions by the Constitution, to wit: 1 yee Rae ek wD Administrative organization; Creation of sources of revenues; Ancestral domain and natural resources; Personal, family, and property relations; Regional urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region,'® and those granted by law. '* Fifth, the general supervision of the Bangsamoro Government. Under the Constitution the President has general supervision over autonomous regions “to ensure that laws are faithfully executed.”'> This cannot be diminished, modified or qualified. However, the Bill provides that the President shall exercise his power “consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government.”'® This can make the strict enforcement of national laws within the Bangsamoro territory difficult to secure as law enforcement may have to take account of the local custom of the people. "3 Const., Art. X, Sec. 20. M Id, Art. X, Secs. 17-18. 15 Const. Art. X, Sec. 16. 16 HB, No. 4994, Art. VI, Sec. 3.ey ic ionship” _o! Bangsamoro Governments. Indeed, the provisions of the Bill, which are contrary to the Constitution, cannot be justified on the ground that the relation of the Central Government and the Bangsamoro Government is “asymmetric”, that is to say, the relationship is “distinct from the inter-governmental relationship in other regions and local governments.” The question is precisely whether the Bill is not contrary to the contrary to the Constitution because of such relationship between the two governments. Such relationship cannot justify the recognition of the right of the Bangsamoro people to “self-determination, to chart their political future” without impairing the sovereignty and territorial integrity of the Philippines. Indeed, the creation of the autonomous regions in Muslim Mindanao and in the Cordilleras must be “within the framework of [the] Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines"”” and the laws of the regional governments must be “subject to the provisions of [the] Constitution and national laws.”!* This was emphasized by the Court in its invalidating the MOA- AD of 2008, after finding that the Bangsamoro Juridical Entity created by it was “a state in all but name.” For these reasons, I believe H.B. No. 4994 is beyond the power of Congress to pass. [End] "Const, Art. X, Sec. 15. 18 Id, Art. X, Sec. 20. 1 Province of North Cotabato v. Gov't of the Republic of the Philippines Peace Panel on Ancestral Domain, 568, SCRA, at 482.