bbl in senate | hearing on constitutional issues, jan 26, 2015

Republic of the Philippines CONGRESS OF THE PHILIPPINES

SENA TE Pasay City

COMMITTEE ON LOCAL GOVERNMENT

JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND

RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES

DATE : Monday, January 26, 2015 TIME : 10:00 a.m. VENUE : Sen. Claro M. Recto and Sen. Jose P. Laurel Rooms 2nd Floor, Senate of the Philippines Financial Center, Roxas Boulevard

Pasay City AGENDA : Constitutional Issues of Senate Bill No.

2408 (Bangsamoro Basic Law)

ATTENDANCE

SENATORS PRESENT:

Hon. Miriam Defensor Santiago Chairperson, Committee on Constitutional Amendments and Revision of Codes

Hon. Teofisto TG L. Guingona III Chairman, Committee on Peace, Unification and Reconciliation

Hon. Ferdinand Bongbong Marcos Jr. Chairman, Committee on Local Government

Hon. Pia S. Cayetano - Member GUESTS/RESOURCE PERSONS:

Hon. Florentino P. Feliciano - Retired Associate Justice, Supreme Court Hon. Vicente V. Mendoza - Retired Associate Justice, Supreme Court

1

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Monday, January 26, 2015 Page 2 of 3

Hon. Adolfo Azcuna - Retired Associate Justice, Supreme Court Hon. Teresita Quintos-Deles - Presidential Adviser on the Peace Process Hon. Jose Luis Martin Gascon - Member, Constitutional Commission Hon. Miriam Coronel-Ferrer - Chair, Government Peace

Panel Hon. Senen Bacani - Member, Government Peace

Panel Dean Julkipli Wadi - UP Institute of Islamic

Studies Hon. Aquilino Nene Q. Pimentel Jr. - Former Senator Hon. Rene V. Saguisag - Former Senator

SENATORS STAFF:

Ms. Tanya Perez - O/S Santiago Mr. Antonio Lapid - O/S Santiago Ms. Chelsea Dauz - O/S Santiago Ms. Abel Maglanque - O/S Santiago Atty. Fatima Panontongan - O/S Santiago Atty. Donna Manlangit - O/S Santiago Ms. Arifah Macawa Jamil - O/S Marcos Atty. Luzviminda Lavarias - O/S Marcos Mr. Julius Palamos - O/S Marcos Ms. Fritzie Selda - O/S P. Cayetano Ms. Zheanne Aeson Dantis - O/S P. Cayetano Atty. DG Uy-Anastacio - O/S P. Cayetano Ms. Isha Lim - O/S Guingona

SENATE SECRETARIAT:

Ms. Assumption Ingrid B. Reyes - Legislative Committee Secretary Ms. Ma. Emperatriz L. Novero - Committee Stenographer Ms. Marivic H. Ulep - - do Ms. Jo B. Cadaing - - do Ms. Merlene J. Palaganas - - do Ms. Cecilia T. Sotto - - do Mr. Rommel P. Alger - - do -

2

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Monday, January 26, 2015 Page 3 of 3

Ms. Avigail G. Andaya - Committee Clerk Ms. Mylene Palino - - do Mr. Daniel D. Diamzon - - do Ms. Ma. Teresita Lavarias - - do Ms. Ana Marie Deplomo - - do Mr. Joey Busalpa - Audio Operator Mr. Allan Laureano - - do Ms. Abigael Olson - Legislative Page, OSAA Ms. Amity Caragay - - do (For complete list, please see attached Attendance Sheet.)

3

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-1 January 26, 2015 10:03 a.m. 1

AT 10:03 A.M., HON. MIRIAM DEFENSOR SANTIAGO, CHAIRPERSON OF THE COMMITTEE ON CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES, CALLED THE HEARING TO ORDER. THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Please

come to order. Please turn off you cell phones.

It is a measure of the importance attached by the Senate to our

present bill, Senate Bill No. 2408, also known as the Bangsamoro

Basic Law, that this bill has been assigned to no less than three

committees. Normally, in the Senate and I presume in the House, a

bill is assigned to only one committee. An exception is when it is

assigned to a second committee. So this is a super exceptional

proceeding we are taking for this special bill because it has been

assigned to three committees. The two other committees are: the

major committee, the Committee on Local Government headed by

Senator Ferdinand Marcos Jr. who I understand is coming; the second

committee is the Committee on Peace, Unification and Reconciliation

headed by Senator Teofisto Guingona Jr.; and were conducting this as

Chair of the Committee on Constitutional Amendments.

Basically, our issue is what price is the Philippine government

willing to pay to achieve peace and reconciliation in the troubled area

4

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-1 January 26, 2015 10:03 a.m. 2 of our country called Mindanao? In the present hearing, we have

structured the major issues raised by the bill only with respect to

constitutionality into four main topics: The first topic is legislation

versus charter change; the second topic is checks and balances in the

national government versus none in the BBL; the third topic is

sovereignty versus the concept of the substate; and the fourth topic is

the concept of territorial integrity versus the functional division of

those territories.

What we have done is introduce a debate format. Normally, in a

public hearing like this, we have a resource panel and each panel,

whether they are pro or con, each panel member is called, in any

order, whether he is pro or contra the measure, so what we get is a

very generalized debate and no specific debate on particular topics.

We have changed that by this debate format such that the first topic,

for example, will first be dealt with by one topic for the pros and one

topic for the contras and then well go to the second topic and then we

pick the next two partners in debate. So that that way we are focused

on exactly what is being debated upon.

5


We are happy to acknowledge the appearance of the Chair of the

Committee on Peace, Unification and Reconciliation, Senator Guingona,

whom I mentioned earlier.

So this will be the first hearing. Again, this is also notable

because, normally, a committee hearing takes only once. But this time

well have two hearings: today, Monday, and next Monday, February 2,

but always in pairs.

So let me just explain what we mean by these four topics. As

you know, I have a malady so I tend to speak very fast and then I run

out of breath. First, the first topic is legislation versus constitutional

change. By this topic, we mean: can this BBL, the Bangsamoro Basic

Law, which we shall refer to as the BBL, can this BBL in the form of a

bill, after having been passed by in its counterpart form in the House

and assuming for the sake of argument that it is passed in the Senate,

can just become a law just in that method, adopting the method of

ordinary laws? Is that how facile it will be to get these reforms that we

seek so badly for the troubled area?

Again, we acknowledge the presence of the Chair of the prime

committee, the Committee on Local Government, Senator Ferdinand

Marcos Jr.

6


THE CHAIRMAN (SEN. MARCOS). Thank you, Madam Chair,

good morning.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). So

there is one side that says legislation will be sufficient. We should just

treat BBL as if it were an ordinary law. It goes to House. It goes to

Senate. And then it goes to a plebiscite. But the others hand argues

that the reforms are so deep-rooted and are so drastic in

consequences that an ordinary bill process will not do. Instead, we

should undergo the process of constitutional amendment or revision.

Lets go to the next topic: Checks and balances in the national

government versus none in the BBL. What we mean here by checks

and balances is that, today, we operate under a presidential form of

government where there are checks and balances among the three

branches of government. So checks and balances is the distinguishing

character of our liberal democracy. However, in the Bangsamoro area,

therell be no such checks and balances because instead of a

presidential, they will have a ministerial form of government where, as

you know, it is accepted. There are now checks and balances between

the Executive and the Legislative since they form, in a sense, just one

7

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-1 January 26, 2015 10:03 a.m. 5 body. Thats what we mean. And thats what I think what the

proponents mean when they speak of an asymmetrical relationship.

The third topic is sovereignty versus a substate. What is

sovereignty and where does it reside? It bears further examination

because, basically, this entire report about constitutionality will revolve

around the issue of sovereignty. Is sovereignty divisible? Is it like

local autonomy for national government possesses national powers and

local units possess local powers? Or is it far from that? Plus, if that is

the nature of sovereignty, does it admit of another area in the same

territory in claiming to be in the same state that is complete as a state

if you apply the test of the 1933 Montevideo Convention where in

classic format the definition is made. A state is a specific territory with

a population, enjoying self-government, free from internal control and

capable of instituting relations with other states.

If these four traits of the state as defined by the landmark

Montevideo Convention are present in Bangsamoro, are we not

therefore creating what might be called a substate or a less than

sovereign state; are we not therefore creating another state within a

state? And we should remember what the Supreme Court told us in

8

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-1 January 26, 2015 10:03 a.m. 6 one of the more landmark cases concerning local autonomy: there can

be no imperium in imperio. But we shall elaborate on that.

And finally, the concept of territorial integrity versus the concept

of functional division of territories. If we have one territory defined by

our archipelagic baselines, parenthetically, the Archipelagic Doctrines

state that the coastline of the Philippines will not be the coastline of

the individual islands but will a coastline that results if you draw a

straight line from the outermost islands around the Philippines. From

that archipelagic baseline, we measure, for example, such territories

as our 12-mile territorial sea and the 200-mile exclusive economic

zone.

But if we apply the theory applied in BBL, it might be possible if

we shall suffer either or at the same time a diminution and an increase

in territory. Will the international community accept this kind of an

arrangement which might be domestically acceptable but might not be

acceptable to the rest of the world?

So if there is any question about the topics covered by these

subdivisions, just ask me.

Let us begin. The first topic is: Can we just pass a bill, this

Senate bill, as if it were an ordinary law or do we have to go through

9

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-1 January 26, 2015 10:03 a.m. 7 the process of constitutional amendment and revision which will

certainly take a longer time plus will certainly be more acrimonious?

The first speaker will be Secretary Teresita Quintos-Deles, the

Presidential/meln

10

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 1 THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

...Secretary Teresita Quintos-Deles, the Presidential Adviser on the

Peace Process. And on the other side will be Justice Florentino

Feliciano, former justice of the Supreme Court; former judge of the

World Trade Organization in arbitral tribunal. And I can say

conceivably, the most prominent Filipino practicing law in the planet

today.

So, for that we will call Secretary Deles and then we shall call on

Secretary Feliciano.

Please pardon me but I will have to stress that perhaps every

speaker can just confine himself or herself to their comments for about

20 minutes so that we can accommodate everybody here and nobody

has to come back a second time.

Ms. Deles.

MS. QUINTOS-DELES. Good morning, Your Honors, to the

honorable chairs.

Thank you for the opportunity to address the Senate again on

this matter. We have already attended one hearing once before.

Before I read my statement, I would just like to put on record

that I am not a lawyer, Your Honors, I'm a simple Bachelor of Arts and

certainly have no standing to be on the other side of the table with

11

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 2 Justice Feliciano. But I hope having helped to steward this process that

our perspective here is put forward.

When the negotiations between the government and the Moro

Islamic Liberation Front restarted in 2009, we knew that we have a

daunting task ahead of us. The Supreme Court's decision to render the

contents and the manner by which the Memorandum of Agreement on

Ancestral Domain or MOA-AD was drafted as unconstitutional and

contrary to law weighed heavily on our scale of decision-making. Even

more, the immediate repercussions of a botched peace process, the re-

ignition of violence, the many lives and properties lost and horribly

affected, the general sentiment of hopelessness were our constant

reminders that we cannot take every word, phrase or statement in any

of the political agreements lightly. Thus, we made it our mission to

prevent any misstep in forging the Comprehensive Agreement on the

Bangsamoro or CAB to keep all the provisions therein within the

flexibilities of our Constitution and as guided by the Supreme Court

ruling in the landmark case of the Province of North Cotabato versus

Government of the Republic of the Philippines or the MOA-AD case.

Since the government panel under the Aquino administration

started, we have conducted 442 consultations across the nation in

keeping with the commitment to make this process inclusive,

12

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 3 participative and consultative. Nowhere in the CAB can the term

"associative" be found nor any of its features entrenched or alluded to

in the peace agreement. We will also not find a single guarantee for

charter change to accommodate the CAB. The most accurate that can

be said is that this Agreement recognizes the right of any citizen of the

republic including those who are appointed in the Bangsamoro

Transition Commission to propose amendments to the supreme law

through the modalities provided in our Constitution. These and more

distinguished the CAB from the declared unconstitutional MOA-AD.

The draft Bangsamoro Basic Law or Senate Bill No. 2408, the

translation of the CAB into a proposed legislation is one that can be

well-accommodated by the provisions of our charter. Even as the

Constitution is deemed read into any legislation passed by the national

Congress, S.B. No. 2408 explicitly guarantees that it will be in

consonance with the Constitution that is in the Preamble and thus its

provisions, in case of ambiguity, should be read with the parameters of

the 1987 Constitution in mind.

The establishment of a parliamentary form of government in the

Bangsamoro intends to bring life to the text of the charter that leaves

to the wisdom of Congress the determination of the structure of

government for the region. Provided, only that the executive and

13

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 4 legislative branches will be elective and representative of the

constituent political units. That is Section 18, Article X of the

Constitution.

The draft BBL as it gives improved autonomy to the Bangsamoro

continues to honor its place as an integral part of the country stated

explicitly in Section 1, Article III whose government remains under the

general supervision of the President. That is in Section III, Article VII.

The Bangsamoro Police, Article XI, a unit of the Philippine

National Police and as an integral part of the law enforcement functions

remains true to the constitutional proscription of maintaining only one

national police under the administration and control of the Napolcom.

That is under Section 6, Article XVI of the Constitution.

But perhaps the most glaring difference between the MOA-AD, a

political document, and Senate Bill No. 2408, a proposed legislation, is

the operationalization of the constitutional requirement to conduct a

plebiscite and allow those provinces, cities and geographic areas which

favorably vote for the BBL to be part of the Bangsamoro. That has

been stated in Section 18, Article X of the Constitution.

In this bill, for the first time, we recognized the spirit of the

provision that gives primacy to the consent of the governed in

determining their political status by allowing municipalities and

14

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 5 barangays not just provinces and cities to participate in the plebiscite.

We intend to right the wrong committed against the phrase

"geographic areas" when it was all but rendered a mere surplusage in

the past legislations.

Senate Bill No. 2408 proposes many novel changes for the

proposed Bangsamoro. As demonstrated, this however does not mean

that there is no constitutional basis for all of these, or that a mere

legislation without charter change can enforce them. We maintain that

a closer scrutiny of the provisions of the draft BBL and a more

comprehensive understanding even beyond the textual or traditional

interpretation of the words of the Constitution will bring us to the

conclusion that the framers and the people who ratified the Charter

had the foresight to entrench a unique setup in the autonomous

region. One that respects the peculiar situation in the area that is not

inconsistent with but is, in fact, a means to preserve our national

sovereignty and territorial integrity under the 1987 Constitution.

Thank you, Your Honors.

THE CHAIPERSON (SEN. DEFENSOR SANTIAGO). Thank you

very much.

And may I please request once more all the members of the

resource panel to give their statements, if possible, before you leave

15

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 6 this chamber, to my chief of staff, Atty. Fatima Panontongan. Will you

stand up please and raise your hand?

And then before we continue, it is a pleasure to greet a member

of the Committee on Constitutional Amendments, Senator Pia

Cayetano, and also a former member of the Philippine Senate who

served with much distinction during his term, Senator Aquilino

Pimentel Jr., whom out of courtesy we invite to join us here since you

are a senator all your life.

Thank you.

Now, let us turn to Justice Florentino Feliciano whom, despite his

many concerns, have done honor to our Committee by coming here.

So, if you don't know your law, will you please just keep quiet or

I will lose my temper.

Justice Feliciano.

Justice Feliciano, when he was just a mere student in Yale

University, already collaborated on a worldwide bestseller on the Law

of the Sea written in collaboration with this professor and is often our

lawyer, our champion for Philippine causes in international litigation.

He has just won one of them.

MR. FELICIANO. Thank you very much, Madam Chairman.

16

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-1 January 26, 2015 10:13 a.m. 7 I propose to be quite brief this morning if only because I got the

papers somewhat late and I've had to attend to a sick wife.

Now, Madam Chairman, I would like to begin by pointing out that

the proposed Bangsamoro Basic Law is not just a piece of proposed

legislation by the Congress of the Philippines. The proposed BBL, if I

may call it that, also constitutes the so-called "Comprehensive

Agreement on the Bangsamoro" between the government of the

Republic of the Philippines and the Moro Islamic Liberation Front.

It purports, in other words, to be the result of prolonged

negotiations for peace .../mhu

17

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-1 January 26, 2015 10:23 a.m. 1

MR. FELICIANO. ...prolonged negotiations for peace between

the sovereign Republic of the Philippines on the one hand, and a group

of rebels who happen to be very well-informed, very well-armed and

very well-funded.

Now, it purports to be the result of an agreement, as I said,

between two entities, each presumably claiming to be vested with the

juridical capacity to enter into agreements which have some binding

effect under some system, although unnamed system of law. Whether

viewed as either a bill or a draft legislation submitted to our Congress

or the consequence of an agreement-making process, it must be clear

to everyone that the proposed BBL must be consistent with the

provisions of the 1987 Constitution of the Philippines. Otherwise, the

proposed BBL cannot have any legal effect or consequence as a matter

of Philippine law. Thats a proposition which, I respectfully suggest, is

self-evident and needs no support for reference to literature.

I wish to refer at this point to the statement on Senate Bill No.

2408 made by Justice Vicente Mendoza. In the interest of economy of

time and effort, let me say that I agree with all the principal points

made by Justice Mendoza in his statement and will, hence, avoid

elaborating on those points although makingI apologize in advance

a few minor comments on them.

18


Let me start by saying, in respect of the term territory as used

in both Senate Bill No. 2408 and the Comprehensive Agreement on the

Bangsamoro which I will, for brevitys sake, refer to as CAB. It may

be noted that one of the essential elements of a state in international

law is that of territory or the entity seeking recognition as an

independent and sovereign state under Public International Law. Now,

under Philippine Administrative Law, I need not stress too heavily that

our provinces, our municipalities, our municipal districts, etcetera, also

have defined territories as designating the earthly limits of the

exercises of their legislative and their law enforcement authorities.

The concerns many have over Bangsamoro territory as indicating

demands for a separate sovereign state have, to some extent, been

eased by addition of the sentence, and I quote, The Bangsamoro

territory shall remain a part of the Philippines. But this statement

must be given, in my view, a forceful meaning. It is not a window-

dressing measure. In other words, retention within the territory of the

Republic of the Philippines must be real and not merely verbal in

character. And that is the problem that many of us have in

understanding both the draft BBL and Comprehensive Agreement. The

Comprehensive Agreement, if we took the statement seriously, is the

result of a process that began in the 90s continuing to 2015, today.

19


The next important concern that I have is based in Article III,

Section 2(d) of the proposed BBL, which provision expressly provides

for expansion of Bangsamoro territory by the simple resolution of a

local government unit or a petition of at least 10 percent of the voters

of a contiguous area asking for inclusion in the territory of the

Bangsamoro plus a popular ratification within such area. In other

words, no historical or anthropological basis need be shown justifying

absorption into the territory of the Bangsamoro. Further, and this is

extremely important, in my personal view, the structures and the

processes set up by existing administrative law of the Republic of the

Philippines may be modified or swept away by acts of the Bangsamoro

government. This is not something that can be authorized to be done

by a statute enacted by the Philippine Congress.

Maybe I should repeat this last point. My understanding of the

BBL and of the Comprehensive Agreement is that the Bangsamoro

government may change what presently exists under Philippine law in

the so-called Bangsamoro territory. If I am wrong, I would be very

happy to be corrected.

A related point concerns the distribution of governmental powers

and functions between, on the one hand, the government of the

Republic of the Philippines, and on the other hand, the Bangsamoro

20

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-1 January 26, 2015 10:23 a.m. 4 government. This distribution needs careful attention.

Now, I will start dealing with this by pointing out that the

government of the Republic of the Philippines will haveIm quoting

from the proposed BBLreserved powers which include, among other

things, defense and external security, foreign policy, citizenship and

naturalization, economic agreements with third parties third countries,

immigration and so forth. Let me stress that once more--the

government of the Republic of the Philippines will have what are

designated as reserved powers.../jbc

21

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION, AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MJPalaganas IV-1 January 26, 2015 10:33 a.m. 1

MR. FELICIANO. ...what are designated as reserved powers.

Next, the Bangsamoro government is designated as having

exclusiveplease note thatexclusive powers including agriculture,

livestock, food security, loans with foreign corporations or countries,

trade industry, foreign investment, labor regulation, free ports, the

banking systems, education, public utilities operations in the

Bangsamoro territory, ancestral domain and natural resources, land

management and distribution, sharia courts and the sharia justice

system, local administration and municipal corporations. Education

please note that these exclusive Bangsamoro powers are all deductions

from or reductions of the general sovereign authority of the

government of the Republic of the Philippines on this so-called

Bangsamoro territory and the population thereof.

In other words, these exclusive powersand it is only in respect

of Bangsamoro functions and powers that the term exclusive is

usedrepresent deductions from/reductions of authority that is vested

today, under our Constitution, in the government of the Republic of the

Philippines. They cannot be taken from the atmosphere; they have to

be taken from what exists under our Constitution and law.

And what is it that exists? What exists today is the government

of the Republic of the Philippines. If you cut out and designate as

22

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION, AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MJPalaganas IV-1 January 26, 2015 10:33 a.m. 2 exclusive powers and authorities and give that to Bangsamoro

government, you necessarily need to reduce the sum total of the

authority vested in the government of the Republic of the Philippines.

Who has authority to do that? I respectfully suggest, Madam

Chairman, that the Senate nor even the whole of Congress has

authority to do that.

In other division or categorization of authority between the

government of the Republic of the Philippines and the Bangsamoro

government is concurrent authority. What is covered by this term

concurrent authority?

Well, things as important as, I will just mention two: private

schools, public utilities. Please note that the government of the

Republic of the Philippines will have more limited functions and duties

than the Bangsamoro government touching the daily lives of the

people who live in this so-called Bangsamoro territory. Because it is

from the sum total of the sovereign authority of the government of the

Republic that what is given to Bangsamoro government necessarily is

taken or deducted from. Constitutional amendments will be necessary

to put the distribution of powers into effect.

23


Madam Chairman, I think I should stop at this point. Perhaps,

you will permit questions later on, at least to the extent remaining to

portion of the 20 minutes that you have given each one of us.

Thank you, maam.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Thank

you very much.

At this point, we will entertain questions directed to each of the

two resource persons who have taken contrary positions on the

particular issue we are discussing.

But in the meantime, regardless of the position that he has taken

today, we would like to express the deep appreciation of the

Committee for the attendance of Justice Feliciano considering his age

plus the fact that he is visibly suffering a malady. And just to add the

most persuasive reason, because we have just listened to one of the

most brilliant minds in Philippine history, both living and dead, I invite

this audience to give him a standing ovation.

[Standing ovation and a round of applause for Justice Florentino

Feliciano.]

And now, are there any questions from the senators?

Senator Guingona.

24


THE CHAIRMAN (SEN. GUINGONA). Thank you, Madam

Chair.

Justice Feliciano, clearly you were saying that when the BBL

makes changes in the power structure such as the reserved, the

concurrent and the exclusive powers, you are saying that these are

constituent matters and not legislative matters and that Congress

cannot deal with it or has no capacity to pass it in its legislative

plenary or legislative authority. But if it was acting as a constituent

body, then it could do so. Am I correct?

MR. FELICIANO. Mr. Senator, I understand by constituent

authority, authority under the Constitution to modify existing

structures and processes.

THE CHAIRMAN (SEN. GUINGONA). In the Constitution.

MR. FELICIANO. Provided for in the Constitution or provided

for by legislation authorized by or consistent with the Constitution.

THE CHAIRMAN (SEN. GUINGONA). Yes, sir. So that would

be appropriate?

MR. FELICIANO. Excuse me, will you please clarify what you

mean by

THE CHAIRMAN (SEN. GUINGONA). If Congress passes

this not as mere legislation but constitutes itself as a constituent

25

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION, AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MJPalaganas IV-1 January 26, 2015 10:33 a.m. 5 assembly, have I authorized to amend the Constitution, then that

would cure the

MR. FELICIANO. Mr. Senator, if by that you mean that

Congress would go through the processes of constitutional change

presently specified in the Constitution, by all means.

THE CHAIRMAN (SEN. GUINGONA). By all means.

MR. FELICIANO. Yes.

THE CHAIRMAN (SEN. GUINGONA). The second point,

since the Constitution is a manifestation of the sovereign will of the

people and the BBL as you pointed out runs counter to the

manifestation of the will of the people, which is the Constitution, would

it not be corrected by or ratified if a referendum/plebiscite of the whole

country ratifies the BBL? So that we can say, The Constitution is a

manifestation of the will of the people but since the BBL is ratified by

the country as a whole, it is also a manifestation of the will of the

people.

MR. FELICIANO. Mr. Senator, I would suggest that that point

be the subject of a careful clarification. Do not rely upon implied

consequences on it. Changing a Constitution is a serious business and

requires careful consideration of the benefits of the people. It is not

26

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION, AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MJPalaganas IV-1 January 26, 2015 10:33 a.m. 6 something that you sleep over on weekend and finish on Monday.

Please, that is.

And if you look in the structural differences between what is

covered by the Bangsamoro government and what our present

administrative lawremember our administrative law is very old. It

began in the first decade of the 20th century. And as you know.../mjp

27

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 1 MR. FELICIANO. And as you know, Mr. ChairmanI mean,

Madam Chairman, and Mr. Senator, we are now in the 21st century. At

least I feel were in the 25th century many times.

So, it is not something that you should imply. You should clarify

to the people. And what is remarkable, permit me and I mean this

without anything, at least this old man didnt realize that even the BBL

was in the process of negotiation/discussion between the Bangsamoro

and the government of the Republic. I can understand your reasons

for keeping things under lock and key, its more peaceful, its perhaps

a little more acceptable to yourselves and a little less hurtful in its

impact to each one of you. But the net result is the people are not

informed. At least this old guy never even realized thatespecially

after the decision of the court in the North Cotabato Province case.

And then you had the MOA-AD. The difference is between the MOA-

AD and BBL represents something that must be carefully considered. I

suggest that the differences may be more rhetorical than real.

Thank you, Mr. Chairman.

THE CHAIRMAN (SEN. GUINGONA). Thank you, Justice

Feliciano.

28

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 2 THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). If there

no more question from our Senate Panel, we shall then proceed to the

next topic to be debated by two resource speakers.

MR. PIMENTEL. Madam Chair.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Yes,

please.

MR. PIMENTEL. May I just respectfully request if it is possible

for us to connect with the statement of Justice Feliciano regarding the

constitutionality angle, Madam Chair.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Yes.

Does Senator Pimentel mean that you want to say something at this

point?

MR. PIMENTEL. Yes, maam, if that is possible.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Go

ahead, please.

MR. PIMENTEL. Thank you, Madam Chair, and distinguished

members of the panel as well as my colleagues in the resource persons

present today.

My observations are based on the Senate version of the

proposed Bangsamoro Basic Law. The intent of the BBL to bring

peace, progress and development primarily to Mindanao and ultimately

29

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 3 to the rest of the country deserves the support of our people. No

question about that. But its intent, as borne out by the content, must

conform to the Constitution.

My comments, therefore, Madam Chair, will deal only with two

basic issues that are contained in the proposed BBL: (1) The proposal

under Article IV, General Principles and Policies to install a Bangsamoro

government that is parliamentary in form and an electoral system

suitable to a ministerial form of government; and the next issue will be

on the limitation, part of which has already been pointed out by Justice

Feliciano on the reserve powers of the central government to certain

areas.

Now, Madam Chair, under the Constitution, the form of

government that is ordained is presidential that is found in Article VII

of the Philippine Constitution. The same Constitution mandates in

Section 1 of Article X on the local government as a part of the general

provisions of the Constitution of Article X that the territorial and

political subdivisions of the republic are the provinces, cities,

municipalities and the barangays.

There is a second sentence: There shall be Autonomous

Regions in Muslim Mindanao and the Cordilleras. And I want to

emphasize the succeeding phrase, as hereinafter provided.

30

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 4

We will now just talk about the Autonomous Region of Muslim

Mindanao because that is what is covered by the BBL. It is submitted,

Madam Chair, that to allow a part of the country to be governed under

a parliamentary form of government when the Constitution itself

proclaims that the whole country has adopted the presidential form of

government would be, to say the least, incongruous.

In Section 18 of Article X, it is provided that the Organic Act shall

define the basic structure of government for the autonomous region,

consisting of the Executive Department and the Legislative

Department, both of which shall be elective and representative of the

constituent political units.

The basic structure of government of the autonomous region

then consists of the Executive Department and the Legislative

Assembly, both of which shall be elective, Madam Chair. Which

means, Madam Chair, that this will be contrary to the intent to adopt a

parliamentary form of government because, as you very well know, in

a parliamentary form of government, it is the legislature that is elected

out of the members of which would come who would constitute the

Executive Department, Madam Chair. It is thus submitted that the

above-quoted article and section of the Constitution validate the thrust

of this paper that the autonomous region envisioned in the Constitution

31

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 5 which the BBL intends to govern must follow the form of government

that is provided for in the fundamental law and that is none other than

the presidential form of government.

If the intention of the Constitution were otherwise, Madam Chair,

it would have worded the provisions accordingly. But it did not.

Furthermore, through no fault of the Muslim peoples themselves, there

does not seem to be any historical or cultural reason why the form of

government sought to be established by the BBL should depart from

what is now constitutionally mandated for the entire nation, the

presidential form of government. The use of the phrase

asymmetrical relationship by which the BBL described the link of the

Bangsamoro entity to the national government merely enhances the

incompatibility with the presidential form of government for the

Republic of the Philippines as mandated by the Constitution with what

is proposed under the BBL. But would the assertion of an

asymmetric relationship be sufficient to justify the installation of a

parliamentary form of government for the Bangsamoro in lieu of the

presidential form? That might need not only judicial determination to

settle but a constitutional amendment, Madam Chair.

32

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES ctsotto V-1 January 26, 2015 10:43 a.m. 6

And therefore, our proposal isyou know, it is much better if

there is time now that the wording of the BBL be changed accordingly

so that it would conform with the thrust of the Constitution.

Madam Chair, I would only wish to emphasize that on the

reserve powers, let me point out that in Section 9 of Article VII of the

BBL, a Bangsamoro Electoral Code is adopted. Specifically the Code

creates a Bangsamoro electoral office which in the words of the BBL

shall be a part of the Commission on Elections and which shall perform

the functions of the commission in the Bangsamoro. Now whether or

not the functions of the Commission on Elections are actually

diminished or modified by the creation of this Bangsamoro electoral

office, this has to be scrutinized very deeply by the panel, by our

Committee members, Madam Chair.

There is also in Article IX of the BBL, the creation of the Human

Rights Commission. cts

33

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES RPALGER VI-1 January 26, 2015 10:53 a.m. 1

MR. PIMENTEL. the creation of the Human Rights

Commission. I would suggest that it is important that the wording of

that delegation of power from the Philippine Constitution to the

Bangsamoro be studied very carefully because particularly, Madam

Chair, let me point out that in Article IX of the Bangsamoro Law,

Section 1, freedom of speech is recognized. But it stopped there. It

does not include freedom of the press.

Now, maybe in the concept of the framers of this law, freedom of

speech already includesI mean, freedom of the press would already

include freedom of speech and vice versa. But if that is so, why did our

Constitution itself say, No law shall be passed abridging the freedom

of speech, of expression, or of the press, or the right of the people

peaceably to assemble and petition the government for a redress of

their grievances, which means therefore that under our Constitution,

the freedom of speech is treated separately from the freedom of the

press. And considering what happened, Madam Chair, to Charlie Hebdo

in Paris, I think its very important that we clarify that there should

also be not only freedom of speech but also of the press in the

Bangsamoro region.

And finally, as a point of interest, Madam Chair, the settlement

of disputes to the Sharia should clarify very clearly that when

34


controversies entangle Muslims against Christians, Muslims against

Lumads, Lumads against Lumads or Christians against Lumads or vice

versa, national law should prevail.

It is also recommended, Madam Chair, that decisions on petitions

for declaration of absence or death or change of names should not be

considered final even when passed upon by the Sharia law but should

be allowed to be reviewed upon proper petition by the parties

concerned including agencies of the government.

Why do we say that, Madam Chair? Because as we very well

know, recent events show that some of the perpetrators of the

massacre in Maguindanao, some of them have disappeared, some of

them have changed their names and, you know, that will make the

search for justice more difficult, Madam Chair.

Basically, Madam Chair, I would like to end with this point that

we bring to the attention of the Committee two other issues: the

apprehension of His Excellency the Sultan of Sulu, that in his view the

BBL does not clearly state whether or not the traditional jurisdiction of

the sultanate of Sulu over the Sulu Sea is recognized by the BBL and

whether or not the sultanates claim over Sabah is simply not a priority

of the administration.

35


Some members of the House have already spoken, Madam

Chair, against the inclusion of the Sabah claim on the ground that it

might only unduly prolong the implementation of the BBL. Maybe they

are right but the Sabah claim is well-documented and the sooner it is

tackled by the government, the better it will be for the nation.

Thank you very much, Madam Chair.


you too.

Since our resource panel are eminent personalities in their

respective fields and they have reached a certain age when the minds

of inferior individuals are not necessarily interesting, we would like to

announce that those who have finished with their statements may, by

leave of the Committee, leave ahead of the rest of the proceedings.

So, if Justice Feliciano and Secretary Deles want to leave now,

that is acceptable to the Committee.

But now, let me go on to the next topic. The next topic actually

has been given a prelude by the statements of Senator Pimentel:

Checks and Balances in the National Government versus None in the

BBL, precisely referring to the fact that the national government under

the proposed bill will continue under a presidential form of government

36


while the Bangsamoro will operate under a parliamentary form of

government.

The first speaker will be former Secretary Senen Bacani,

Government Peace Panel member, and taking the opposite side will be

former Supreme Court Justice Vicente Mendoza.

Secretary Bacani.

MR. BACANI. Honorable Madam Chair, Honorable Senator

Marcos, Honorable Senator Guingona, Honorable Senator Cayetano,

other invited guests, good morning.

To say that there are no checks and balances in the proposed

Bangsamoro Basic Law as compared to those existing in the national

government can only be due to a complete misreading of the proposed

Bangsamoro Basic Law. In fact, the proposed law that will establish the

framework for the future Bangsamoro government is replete with so

many examples of checks and balances on the powers to be exercised

by the new political entity. The proposed BBL in the first place is a

classic example of trying to balance autonomy, subsidiarity and

devolution with sufficient internal controls.

Overarching the whole concept of checks and balances is the fact

that the President will continue to exercise general supervision over

the Bangsamoro government to ensure that national laws are faithfully

37


executed. It is worthy to note that national laws cannot be changed by

the Bangsamoro parliament unless authorized to do so by Congress.

Moreover, it is clear in the proposed BBL that reserved powers

both expressed and residual of the national government can at any

time without any limitation be exercised within the Bangsamoro

territory. For example, the Bangsamoro governments power to enter

into agreements regarding cultural exchange, technical cooperation

and economic matters is, of course, subject to central governments

reserved powers over foreign affairs. In addition, the exercise of the

concurrent or shared powers by the Bangsamoro government can only

be done with the coordination and cooperation of the national

government.

To supplement the work of the constitutional bodies in the

Bangsamoro like COA, Civil Service, Comelec, Commission on Human

Rights is the proposed establishment of auditing, civil service, election

and human rights units in the Bangsamoro without prejudice of course

to the powers, authorities and duties of these constitutional bodies.

The only goal is to assist and not, repeat, not to replace in any manner

whatsoever the powers and authorities of these constitutional bodies.

The Ombudsman shall continue to have the power to act on

erring Bangsamoro officials. Similarly, the Supreme Court will continue

38


to exercise the powers of supervision and the judicial review over all

courts, including Sharia courts.

Moreover, there are clear statements in the proposed

Bangsamoro Basic law that the Bangsamoro government will have to

adhere to the commitments of the national government as embodied in

international treaties and agreements.

The draft law also provides for additional intergovernmental

bodies/rommel

39


MR. BACANI. for additional intergovernmental bodies to be

established in order to ensure cooperation and coordination between

the national and Bangsamoro governments. These are, first, the

central government-Bangsamoro government intergovernmental

relations body to resolve issues on intergovernmental relations;

second, the intergovernmental fiscal policy board that shall address

revenue imbalances and fluctuations in regional financial needs and

revenue-raising capacity over the Bangsamoro; third, the Philippine

Congress-Bangsamoro parliament forum for purposes of cooperation

and coordination of legislative initiatives; fourth, the Bangsamoro

sustainable development board to ensure the harmonization of

environmental and development plans as well as to formulate common

environmental objectives; and fifth, the joint body for the zones of

joint cooperation which shall be responsible for drawing up policies in

the zones of joint cooperation in the Sulu Sea and the Moro Golf.

Also worthy of notice, the provision on the possible vote of no

confidence against the government of the day which can serve as a

further check on the performance of the Bangsamoro government by

the duly elected representatives of the Bangsamoro. Another is the

full disclosure policy of the Bangsamoro government of its budget and

finances and of bids and public offerings.

40


Regarding public order and safety, there will be a Bangsamoro

police board which shall perform the functions of the Napolcom in the

Bangsamoro. The board shall be part of the Napolcom with the

Napolcom ensuring that the Bangsamoro police board performs its

powers and functions within the bounds of its authority.

Above all of these controls within and outside the Bangsamoro,

however, what is of paramount importance would be the demand of

how to govern for complete accountability of those who govern as

supported by a strong press and strong civil society organizations.

That way, we can further strengthen the democratic institutions that

will be established and assure the general welfare of the people in the

Bangsamoro.

Therefore, Madam Chair, the proposition that there are no

checks and balances in the proposed Bangsamoro Basic Law is simply

not correct.

Thank you for giving us the opportunity to set the record

straight.


you, too.

And still on the same topic, the avatar of the position that there

is no checks and balances in the BBL, one of the countryperhaps the

41

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-2 January 26, 2015 11:03 a.m. 3 countrys foremost authority on constitutional law, Justice Vicente

Mendoza, will give his own statement.

MR. MENDOZA. Thank you, Madam Chairman, Senator

Marcos, Senator Guingona, Senator Pia Cayetano and the distinguished

panelists.

I have a prepared statement so what Im just going to say now

will be in the nature of answering points raised by Secretary Bacani

and maybe I will stray to other areas but still relevant as my answers

to those points raised by him.

Let me state at the beginning, Madam Chairman and members of

the joint committees, that my understanding of the principle of checks

and balances is that it is simply a corollary of the principle of

separation of powers. Without separation of powers, there can be no

checks and balances. Madam Chairman, we speak of separation of

powers both in the horizontal and in the perpendicular senses. When

we speak of the separation of powers as we are familiar with the

principle in Philippine Constitutional Law, we refer to the horizontal

division of powers among the legislative, executive and judicial

departments. But when you bring in the concept of perpendicular

separation of powers, you are there now talking in another realm and

that is in the realm of a federal system of government so that in the

42

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-2 January 26, 2015 11:03 a.m. 4 federal system of government, you have separation of powers

horizontally between or among legislative, executive and judicial

departments and a division of power perpendicularly between the

federal government and the state governments. We do not have that

kind of separation of powers under the Constitution. So we do not

speak of the powers of the national government vis--vis the forms of

the local governments created in the Constitution. They do not have

the status of the states in a federal union.

So therefore, when you speak of the reserved powers of the

President or of the national government as checks on the exclusive

powers of the Bangsamoro government, you are there referring to the

perpendicular power, the separation of powers, which we do not have

for the simple reason that ours is not a federal system; ours is a

presidential unitary form of government. So when we speak here of

checks and balances, we refer to the checking and balancing function

of the three departments: the national legislature, the national

executive department and the national judiciary.

All right. Now, the Constitution, Madam Chairman, as far as

autonomous regions are concerned, requires that they have an organic

act now called basic law. I think basic law is the constitution in

Germany. I dont know why it is not called organic act. Now, the

43

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MELNOVERO I-2 January 26, 2015 11:03 a.m. 5 Constitution, Madam Chairman, requires Congress to pass an organic

law providing for the structure of government got in the words of the

Constitution should consist of executive department and legislative

assembly, both of which should be elective and representative of their

constituent units.

Now, this is not what is provided in the proposed BBL. What is

provided there is a parliamentary system with a ministerial form of

government where there is no division of power or separation of

powers between the executive and the legislative department. The

powers of government are vested in the parliament. The legislative

function is performed by the parliament. The executive functions are

performed by the Cabinet but the Cabinet, the majority members of

the Cabinet are members of the parliament. The chief minister is

elected by parliament from among its members. A majority of the

members of the Cabinet /meln

44

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 1 MR. MENDOZA. ...of the Cabinet are members of parliament.

The chief minister is elected by parliament from among its members. A

majority of the members of the Cabinet are required to be appointed

by the chief minister from among the members of parliament. So there

is no separation of powers between the lawmaking and the executive

branches of that government. Therefore, there is no check and

balances in the horizontal sense as a corollary of the horizontal

separation of powers.

Now, why should there be separation of powers and as a

corollary checks and balances in the Bangsamoro government? One,

because it is required by the Constitution. Second, because most of the

governments the world over have only one form of government. If it is

a presidential type, the local governments must also have a

presidential type of government.

Example, Madam Chairman, and members of the Committee,

Malaysia is a federation. The states composing Malaysia are

parliamentary for the simple reason that the federal government is

parliamentary.

Take the United States of America, it's also a federal system but

its federal government, the national government is presidential in form

45

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 2 so are the governments of the states of the United States presidential

in form.

A parliamentary form of local government however it is called in

an otherwise presidential system is to say the least an oddity and

anomaly.

So for those two reasons, Madam Chairman, I find the proposed

BBL contrary to the mandate of the Constitution.

Thank you, Madam Chairman.


you, Justice.

Since the two sides of this particular topic have already been

heard from, we are now ready to accept questions from the members

of the senatorial panel.

If there are none, then we'll proceed to Topic 3, sovereignty

versus the substate.

Speaking in favor of a substate will be Professor Miriam Coronel-

Ferrer, Government Peace Panel chair. And after her, the opposite side

will be taken by Justice Mendoza whom we request for additional

human duties today because Dean Merlin Magallona was suddenly

taken by very high blood pressure today.

46

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 3 Professor Ferrer.

MS. CORONEL-FERRER. Madam Chair, Senator Miriam

Defensor Santiago, Honorable Senators Ferdinand Marcos Jr., Teofisto

Guingona III and Pia Cayetano.

I speak before you this blessed morning as a student and

practitioner of politics and less of law as I am not a lawyer. Politics

rather than constitutional law, I believe, is the best discipline with

which to approach the questions before usIs the Bangsamoro a

substate? Corollary, is being a substate in, by, for itself, necessarily

unconstitutional?

Why do I say that political science relative to jurisprudence is our

best recourse in getting into the heart of the matter of the

Bangsamoro?

We all know that matters of state are foremost matters of politics

rather than law. Over and above law is the matter of peace and justice

which to go back to the great classics constitute the reason for being of

the polity or of the state stretching forward to the enlightenment

period. Peace and justice likewise are the ends of the social contract.

47

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 4 Madam Chair, the "substate" word has been unjustly demonized.

As in any demonized term, wave it like a red flag and people will rail

against it.

It is almost like the term "Moro." Say it and in the minds of

many, we generate fear, distrust, suspicion, hate. Such is the

unfortunate state of mind that we have inherited from the Spanish and

American colonial rule. Such hatred has led us to continue to think like

the colonialsa good Moro is a dead Moro. Fast forward, 100 to 500

years later, a good substate is a dead substate, unconstitutional. Bang!

You're dead. This when, in fact, a substate can only mean being a

subdivision of and, therefore, part of the state in the subnational

sense. In the same way that a subset as we learned from grade school

math can only mean being part of a bigger set.

Madam Chair, the word "substate" is not even a legal term. It is

merely a descriptive word pertaining to one part or unit of a state. How

can we judge legality or illegality, constitutionality or

unconstitutionality by mere mention of the word? This is not to say,

however, that substates or substate entities do not exist.

I have here a copy of the book, Substate Governance Through

Territorial Autonomy: A Comparative Study in Constitutional Law of

48

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 5 Powers, Procedures and Institutions, published in 2011 and written by

the Finish professor of Comparative Law and Politics, Markku Suksi.

Madam Chair, if I may, may I respectfully give you a copy, a

humble contribution to your library.

THE CHAIPERSON (SEN. DEFENSOR SANTIAGO). We are

happy to accept it.

MS. CORONEL-FERRER. Atty. Anna Basman will hand it over,

with your permission.

The book provides us with a survey of substate entities that are

of particular interest to us. These are substate entities that they are in

the form of territorial autonomies such as one finds in countries like

China, in the case of Hong Kong, Macau and Tibet; in Finland which is

Swedish-speaking Holland; Indonesia in the case of Aceh, West Papua

and Yogyakarta.

Territorial autonomies, a genre that is applicable to our case on

hand are here distinguished from federal states and obviously,

independent states.

Madam Chair, independence was never on the negotiating

agenda of the government. The whole idea of negotiation was precisely

49

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 6 to keep the country intact. Any notion of a substate can only mean a

setup within the Philippine state and under the Philippine Constitution.

Some critics insist that the Bangsamoro in the signed documents

is still the substate as originally conceived when we began negotiations

in 2010, almost four years ago. They do not realize how the

Comprehensive Agreement on the Bangsamoro for the sake of peace,

national unity and social justice, had arrived at the necessary

compromises in accordance with the 1987 Constitution and its

flexibilities without prejudice, of course, to future constitutional

change.

Now, to address a second level of the claim of unconstitutionality

before us, that the Bangsamoro, being a substate, is not the

autonomous region contemplated in the Constitution. Specifically, that

the powers that have been enumerated in the signed documents and

now in Senate Bill 2408 go beyond what is possible in a unitary setup.

Notably, our Constitution did not explicitly say that we are a

unitary state. In fact, coming from a highly centralized state under

martial rule where the executive branch was able to wield wide powers

both formally and informally, the crafters of the 1987 Constitution took

pains to devolve powers through principles and provisions on local

50

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mhulep II-2 January 26, 2015 11:13 a.m. 7 autonomy, decentralization and autonomous regions that it ensconced

in Article X on Local Governments. Moreover and equally significant,

they wrote up a whole article on social justice to correct the political,

social and cultural exclusion in our country.

Markku Suksi, the author of the book, writes in the case of

Europe. It states that include one or several autonomous entities are

counted together with the number of federal states. The result, at least

in Europe, is that they've regular textbook example of state, the

entirely monolithic unitary state finds itself in a minority and is no

longer the prime example of a state. .../mhu

51


MS. CORONEL-FERRER. ...of a state. Evidently, there are so

many existing possibilities to structure a relationship horizontal,

perpendicular between government and its multiple constituencies that

a binary system of political ordering either a federal or unitary state

can no longer accommodate.

The members of the Constitutional Commission in 1986 grappled

with adopting a federal system of government. But in the end, they

settled for this unique animal, so unique it may be set up in only two

parts of the country: In the Cordillera and in Muslim Mindanao. They

called this animal autonomous region. In so doing, they also

produced a model that is distinct but also finds a semblance in other

non-federal republics such as Indonesia with its three autonomous

regions; China with its three special administrative regions that I

mentioned earlier; also Spain with its more than 10 autonomous

regions; and the United Kingdom with its four constituent parts, the

most appropriate term for which has not been found. These

constituent parts are Northern Ireland, Wales, Scotland and England.

All these are variations of that much derided, although affably neutral

and practical, generic word called substate.

Regardless, other critics say that the structure of government

and the powers enumerated in the power-sharing and wealth-sharing

52

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 2 annexes and now the draft BBL partake of the nature of a federal

state. Proof to such claim is the concept introduced in the documents

of an asymmetrical relationship between the Bangsamoro and the

central government.

To the Supreme Courts credit, we have recently been provided

with jurisprudence on what asymmetry means. In the League of

Provinces of the Philippines versus DENR, the Supreme Court ruled,

and I quote, 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 compared to other local governments or any

regional formation. The Constitution grants them legislative powers

over matters-- enumerating the provisions in the Constitution and

continuing with the statementthat are usually under the control of

the national government. While the ruling did not define

asymmetry, it provides us with the context clues by which we can

understand the concept within constitutional boundaries.

Another claim put forward to argue violation of the Constitution

is the list of powers enumerated in the draft BBLreserved, concurrent

and exclusive. Reserved powers are powers or matters over which

authority and jurisdiction are retained by the central government.

53

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 3 Concurrent powers shall refer to the shared powers between the

central government and the Bangsamoro government. Exclusive

powers shall refer to powers or matters over which authority and

jurisdiction pertain to the Bangsamoro government.

Is there anything in this definition and the list of powers that

violate the Constitution? Does the granting of exclusive powers to the

Bangsamoro effect its separation from the state? I use the word

separation here in the first context that was used earlier by Justice

Mendoza, in the perpendicular context. Not so in many ways.

Exclusive powers, which are exercised within the Bangsamoro

territorial jurisdiction, may be clipped by the reserved powers of the

central government which are exercised in the whole country, including

the Bangsamoro. Reserved powers, to repeat, are exercised in the

whole country, including the Bangsamoro. Indeed, Justice Mendoza is

right. There is no separation of power, in the first context that he

used the term, as indeed we are not establishing a federal state. We

are establishing an autonomous region that continuous to be part and

parcel in that kind of horizontal relationship vis--vis the central

government.

To be more specific or to cite some examples, regulation of

trade, banking and finance. The regulations of these items may have

54

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 4 been devolved but this matter is governed by national fiscal and

monetary policies, foreign treaties and conventions our country has

entered into, foreign policy, customs and tariff laws. All reserved

powers of the central government.

In case of conflict of laws, as Senator Pimentel mentioned

earlier, its evident that national laws and the Constitution shall prevail.

And in case there is conflict in the interpretation of such laws, then

there is always the recourse to the Supreme Court.

Clipping of the powers of the Bangsamoro can very well be

effected by these reserved powers not only as enumerated in the BBL,

but in the totality of central government powers as well as that of the

Supreme Court, Congress and the constitutional bodies that we find in

the Constitution. But then what we envision here is a democratic

relationship based on mutual respect or parity of esteem as public

officials and leaders vested with their respective authorities.

Moreover, when the exercise of the Bangsamoro governments

powers impacts outside of the territorial jurisdiction of the

Bangsamoro, it is understood that the neighboring local government

units, with powers that have been given to them by the Local

Government Code, and the central government can take the

appropriate action. Again, based on their respective powers in

55

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 5 accordance with the appropriate laws.

This is fairly well understood in that the president, as provided

for in the Constitution, shall exercise general supervisory powers over

the autonomous region. As provided in Article X, Section 16 of the

Constitution and reiterated in Article VI, Section 3 of the Senate bill,

The president shall exercise general supervision over autonomous

regions to ensure that the laws are faithfully executed.

Finally, the Constitution itself grants the parameters for the

autonomous jurisdiction of the autonomous regions when it said that

these regions shall have the following legislative powers subject, of

course, to the Constitution and national laws. Although, existing

national law shall be qualified by the forthcoming Bangsamoro Basic

Law. Insofar as the Bangsamoro is concerned as in the nature of more

recent national law, but of special application.

Article X, Section 20, according to the Constitution, within its

territorial jurisdiction and subject to the provisions of this Constitution

and national laws, the organic act of autonomous regions, the draft

BBL, shall provide for legislative powers over the following:

Administrative organization; creation of sources of revenues.

Therefore, the slew of taxing powers that we proposed to give to the

Bangsamoro. Ancestral domain and natural resources. Therefore, a

56

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 6 set of concurrent powers and exclusive powers over matters having to

do with the environmental protection, mining and energy that are

properly defined in the different sections of the Senate bill. Personal,

family and property relations and therefore the special application of

Sharia law in this region where you have more than 90 percent of the

population, Muslims. 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, including this Senate bill that we

hope to be passed in the form of the Bangsamoro Basic Law, for the

promotion of the general welfare of the people of the region. All so-

called exclusive powers listed in the annex on power-sharing and

now the draft BBL fall under any one of this category, not to mention

the fairly encompassing category of matters for the promotion of the

general welfare of the people in the region.

All powers shall not prejudice the powers and authority of

constitutional bodiesthe Supreme Court and Congress. If certain

provisions may have given rise to such misinterpretation, then

certainly we can improve and fine-tune the languaging.

Truth to tell, many of these powers actually were already given

to the ARMM. However, many of these powersfor examples, the

57

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES JTBCadaing III-2 January 26, 2015 11:23 a.m. 7 power to enact its own indigenous peoples rights act and civil service

code and to expand Sharia courts including appellate courtswere

never exercised by the ARMM even though in fact, these are already

provided for by Republic Act 9054.

To say that giving such powers as one now finds in the BBL

compromises the sovereignty of the state is to deny the powers which

the Constitution itself allocates to the autonomous regions.

Madam Chair, remember sovereignty is not just about our

standing before other states and relations with them, a matter that

remains in the hands of national government. Sovereignty is, first and

foremost.../jbc

58


MS. CORONEL-FERRER. ...Sovereignty is, first and foremost

the exercise of the peoples will and the peoples will operates at

different territorial and political subdivisions of the state including

autonomous regions. And that is why we have local and regional

plebiscites as well as our law on initiatives and recall.

Modern political and legal thinking on devolution,

decentralization and autonomy and the right to self-determination not

only of colonists, but of indigenous peoples and minorities are all

pointing in this direction of a multi-layered sovereignty within states as

we can glean from these quotations from authoritative sources.

Sovereignty, like the atom, can be split. Another quote, In modern

times, sovereignty is divisible.

Indeed, Madam Chair, the world has changed much since the

Peace of Westphalia was forged in the 17th century with its emphasis

on state sovereignty.

We credit the framers of our Constitution, and we have before us

two members of the 1987 Constitutional Commission, retired Justice

Azcuna and Commissioner Chito Gascon who was also a member of our

panel. We credit them in finding the balance between the sovereignty

of the Philippine state and the sovereignty of the people of the

Philippines. We thank them for showing us the manner by which such

59

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION, AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MJPalaganas IV-2 January 26, 2015 11:33 a.m. 2 sovereignty may be shared among the various peoples and groups

making up the Philippine Republic. And among these groups of people,

among the Filipinos, as we know, are the Bangsamoro. Let us give

them their due even as we ensure the protection of rights and

promotion of welfare of all that will fall under the territorial jurisdiction

of the Bangsamoro.

Towards these ends, we have noted the specific proposals that

we have heard, not only in this consultation but in other consultations.

And I believe that they will enhance the viability of the Bangsamoro

Basic Law.

Thank you very much, Madam Chair.


you, Professor Ferrer.

The other side would have been aired by Dean Magallona but he

was suddenly stricken and we request Justice Mendoza to gallantly

step in and complete the debate on this particular topic.

And furthermore, I am afraid we will have no more time for the

fourth topic. So next Monday, which is our second and last hearing, we

will request the following resource persons present today, with our

apologies, to come again.

Commissioner Gascon, Justice Azcuna. Just those two.

60


We will request you to come again for the hearing on Monday,

February 2. We request further the third person to come back, Dean

Julkipli Wadi of the UP Institute of Islamic Studies. Joining them will be

former Senator Rene Saguisag.

And against them, also by topic, will be the following: the CBCP

(Catholic Bishops Conference of the Philippines) which has issued a

statement, just a bare statement that it is against BBL because of the

question of territorial integrity which they hope to expatiate on next

Monday. So there will be the CBCP; Dean Aquino of San Beda who

cannot come today

bbl in senate | hearing on constitutional issues, jan 26, 2015

Documents

constitutional amendments

antonio lapid os santiago

donna manlangit os santiago

chelsea dauz os santiago

abel maglanque os santiago

tanya perez os santiago

local government joint

fritzie selda os