Group 1:

Jastise Azurin

Marivic Taloma

Herald Bautista

Ruth Anne Caranguian

Gregory Guzman

Robert Lucson

Brenard Quilang

[Type the abstract of the document here. The abstract is typically a short summary of the contents of the document. Type the abstract of the document here. The abstract is typically a short summary of the contents of the document.]

THE CONSTITUTIONALITY OF THE BANGSAMORO BASIC LAW

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TABLE OF CONTENTS

I. List of Abbreviations ------------------------------------------ 3

II. List of Sources ------------------------------------------------- 4

III. Statement of Relevant Facts ------------------------------- 5

IV. Issue ------------------------------------------------------------- 18

V. Summary Of Arguments ------------------------------------ 19

VI. Arguments ------------------------------------------------------ 21

VII. Submission ----------------------------------------------------- 34

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LIST OF ABBREVIATIONS

BG – Bangsamoro Government

BBL – Bangsamoro Basic Law

ASEAN – Association of Southeast Asian Nation

JBC - Judicial and Bar Council

IP – Indigenous People

PNP – Philippine National Police

NAPOLCOM – National Police Commission

MILF – Moro Islamic Liberation Front

BIAF – Bangsamoro Islamic Armed Force

IRB– Intergovernmental Relations Body

BIR – Bureau of Internal Revenue

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LIST OF SOURCES

I. Book

1. 1987 Philippine Constitution

II. Internet

1. http://www.opapp.gov.ph/milf/news/frequently-asked-

questions-draft-bangsamoro-basic-law

2. http://www.opapp.gov.ph/sites/default/files/House%20Bill

%20No.%204994.pdf

3. http://www.opapp.gov.ph/resources/draft-bangsamoro-

basic-law

4. https://www.senate.gov.ph/press_release/

2014/0402_santiago1.asp

5. http://www.rappler.com/nation/54510-miriam-bangsamoro-

deal-illegal

6. http://miriam.com.ph/newsblog/2015/03/05/transcript-of-the-

interview-with-sen-miriam-defensor-santiago-after-the-

senate-committee-on-foreign-relations-hearing-on-six-

treaties-5-march-2015/#more-2359

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STATEMENT OF RELEVANT FACTS

The eighteen articles of the Bangsamoro Basic Law signed by

the House of Representatives on Mach 27, 2014 as written in the

explanatory note of the said bill is an indication of the end of the

Mindanao conflict which hugely affects progress and development of

the Philippines. This bill enumerates the negotiated political

settlement in pursuant of peace, development and social justice in the

Southern Philippines.

The purpose of the draft Basic law found in Article 1, section 3

is to establish the new Bangsamoro political entity and provide for its

basic structure of government, in recognition of the aspirations of the

Bangsamoro people. The Bangsamoro people are those who at the

time of conquest and colonization were considered natives or original

inhabitants of Mindanao and the Sulu archipelago and its adjacent

Palawan, and their spouses and descendants, who have identified

themselves as Bangsamoro. Article II, Section 3 states that the

Bangsamoro Parliament shall adopt the official flag, emblem and

anthem of the Bangsamoro.

Article III of the BBL defines Bangsamoro territory. The

Bangsamoro territory is composed of the land mass, maritime,

terrestrial, alluvial and aerial domain. It remains a part of the

Philippines. The Bangsamoro has jurisdiction over waters that extend

up to 12 nautical miles from the low-water mark of the coasts which is

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referred to as the Bangsamoro Waters – where the Bangsamoro

Government is granted certain rights over the resources therein.

General Principles and Policies are embedded in Article IV

which provide that the Bangsamoro Government shall be

parliamentary. Its political system is democratic allowing its people to

freely exercise participate in the political processes within its territory.

All members of Parliament will be elected as representatives of the

Bangsamoro People.

Powers of Government (Article V) of the BBL is divided into three; the

Reserved Powers to the National Government, Concurrent Powers

of the National Government and the Bangsamoro Government and

the Exclusive Powers of the Bangsamoro Government. The National

Government shall have exclusive jurisdiction on defense and external

security, foreign policy, coinage and monetary policy, postal service,

citizenship and naturalization, immigration, customs and tariff,

common market and global trade, and intellectual property rights. The

Bangsamoro Government shall cooperate and coordinate with the

National Government in organizing its own social security and

pensions systems, in creating its counterpart offices for quarantine

services, in administering land registration within its territory, in its

mechanisms on pollution control, in organizing its own bodes for

human rights and humanitarian protection and promotion, on matters

of granting parole and recommendations to the President the grand of

executive clemency, in auditing of public funds, in developing and

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administering a professional civil corps, in coastguard matters, in the

enforcement of custom and tariffs laws and regulations to ensure the

effective exercise of its powers on barter trade and countertrade with

ASEAN countries, in administering justice, in funding for the

maintenance of national roads, bridges and irrigation systems, in

matters on disaster risk reduction and management and in public

order and safety. There are fifty-eight (58) enumerations on the

exclusive powers of the Bangsamoro Government. Adding to its

exclusive powers are the jurisdiction granted to the Autonomous

Region in Muslim Mindanao (ARMM) under R.A. No. 6734.

The relationship between the National and Bangsamoro

Governments shall be asymmetric (Article VI). The President’s power

of general supervision remains. A ―Central Government –

Bangsamoro Government Intergovernmental Relations Body‖ shall

be established to resolve any issues that may arise relating to the

exercise of the respective powers of the National Government and

the Bangsamoro Government within the Bangsamoro through

consultations and continuing negotiations in a non-adversarial

manner. All unresolved issues shall be elevated to the President,

through the Chief Minister. The National Government and the

Bangsamoro Government accept the concept of devolution as

inspired by the principles of subsidiary. Decisions are to be made at

the appropriate level to ensure public accountability and

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transparency, and in consideration of good governance and the

general welfare.

The Bangsamoro Government shall have an elected Chief

Minister who shall exercise executive authority. It shall also have the

authority to enact laws on matters within its powers and

competencies. The Bangsamoro Parliament shall have at least sixty

(60) members – fifty percent (50%) of which shall be elected through

a system of proportional representation; forty percent (40%) from

single member districts; and ten percent (10%) will be elected to

reserved seats representing key sectors in the Bangsamoro. The

Bangsamoro Parliament shall have two reserved seats each for non-

Moro indigenous communities and settler communities. Women shall

also have a reserved seat.

A member of the Bangsamoro Parliament shall forfeit his/her

seat if he or she resigns voluntarily through a written or oral

declaration in Parliament, if he or she is convicted of a grave offense

as stipulated in the House Rules that the Bangsamoro Parliament will

promulgate, or treason, high crimes, heinous crimes, crimes against

morality, or other crimes punishable by more than six (6) years, if he

or she becomes permanently physically or mentally incapacitated and

is unable to discharge his/her duties as a Member of the Parliament

or dies while in office, if he or she, having been elected under the

proportional representation system, is replaced with another member

by the party to which he/she belongs with, if he or she, having been

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elected under the proportional representation system, transfers to

another party during his/her incumbency as member of the

Bangsamoro Parliament, and such other grounds as may be provided

under the Bangsamoro Electoral Code.

A Member of the Parliament shall serve for three (3) years,

unless otherwise provided by law passed by the Bangsamoro

Parliament. However, no member shall serve for more than three

consecutive terms. A member of the Bangsamoro Parliament must be

a citizen of the Philippines; at least twenty-five (25) years of age on

the day of the election; able to read and write; and a registered voter

in the Bangsamoro. In addition, a District Representative must be a

registered voter of the district wherein he or she is a candidate on the

day of the filing of the certificate of candidacy; and has resided in the

said district for at least three years immediately preceding the day of

the election.

On the first session following their election, the members of the

Bangsamoro Parliament shall, in open session, elect by a simple

majority vote from all its members the Speaker, and the other officers

of the Bangsamoro Parliament as the House Rules of the

Bangsamoro Parliament may provide. The Speaker, the Deputy

Speaker, or any other person presiding over the Bangsamoro

Parliament shall be responsible for ensuring the rights and privileges

of all members and public access to the proceedings of the

Bangsamoro Parliament and its committees. He or she shall have the

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authority and moral ascendancy to maintain order and decorum in the

Bangsamoro Parliament in accordance with its House Rules. He or

she shall act impartially and without fear, favor, and prejudice.

Executive authority shall be exercised by the Bangsamoro Cabinet

which shall be headed by a Chief Minister. The Chief Minister shall be

elected by a majority vote of the Parliament from among its members.

The Chief Minister shall appoint the Deputy Chief Minister from

among the members of the Parliament. S/he will also appoint the

members of the cabinet, majority of whom shall also come from the

Parliament.

The Chief Minister shall be at least twenty-five (25) years of age

at the time of the election; a bona fide resident of the Bangsamoro for

three years immediately preceding the day of the elections; and with

proven competence and probity, mentally fit, and known for his/her

integrity and high moral standards.

Article VII speaks of a wali who shall be a titular head of the

Bangsamoro. He shall take on only ceremonial functions. He shall be

under the supervision of the President. He shall be chosen by the

Council of Leaders. The first wali shall be appointed by the

Bangsamoro Transition Authority and shall have a term of three (3)

years. Succeeding wali shall have a term of six (6) years.

All laws and policies under Article IX are required to conform to

international human rights and humanitarian standards. The rights

under the International Covenant on Economic, Social, and Cultural

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Rights and International Covenant on Civil and Political Rights, and

other international human rights instruments are guaranteed by the

National Government and the Bangsamoro Government. There shall

be a created transitional justice mechanism to address the legitimate

grievances of the Bangsamoro people, such as historical injustices,

human rights violations, marginalization through unjust dispossession

of their territorial and proprietary rights and customary land tenure.

The draft Basic Law recognizes the following rights of

Indigenous peoples/indigenous cultural communities: Right to native

titles and/or fusakainged; Preferential right to explore, develop, and

utilize natural resources within areas covered by their native titles. In

case these activities are to be undertaken by the Bangsamoro

Government, or by an authorized concessionaire, the free and prior

informed consent of the holder of the native title is required; Right to

an equitable share in revenues from the exploration, development,

and utilization of natural resources within areas covered by their

native titles. The Bangsamoro Parliament shall enact a law for this

purpose; Right to political participation, including to reserved seats for

non-Moro IPs/ICCs in the Bansgamoro Parliament. The seats shall

be filled pursuant to their customary laws and indigenous processes;

Right to education through the establishment of a tribal university

system that will address the higher educational needs of the

indigenous cultural communities in the region; Recognition of a

traditional/tribal justice system. The Bangsamoro Parliament shall

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enact laws for this purpose, and an Office for Traditional/Tribal

Justice System shall also be created; Recognition of indigenous

structures, or systems which promote peace, law, and order ; Other

rights provided in the United Nations Declaration on the Rights of

Indigenous Peoples.

Under Article X of the draft, 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.

Judges/Justices of the Shari’ah courts must have the qualifications

listed under Section 9, and they will be appointed by the President

through the same mechanism as judges/justices of the regular courts

[save for the additional recommendatory powers given to the Shari’ah

Judicial and Bar Council (JBC) for the national JBC’s consideration.

Shari’ah JBC shall recommend applicants to the national JBC for the

positions of judges/justices in the Shari’ah courts in the Bangsamoro.

In addition, a consultant to the national JBC shall be appointed to

advise it on appointments to the Shari’ah courts in the Bangsamoro.

Its power here is merely recommendatory and does not supplant the

authority of the national JBC. The Shari’ah JBC shall be composed of

five (5) members as provided under Section 12. It may conduct

investigations over erring personnel in Shari’ah courts in the

Bangsamoro, and submit the results of such investigation to the

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Supreme Court for the latter’s action. The Shari’ah Prosecutorial

Service shall be part of the National Prosecutorial Service under the

Department of Justice. The Shari’ah Academy shall conduct courses

and trainings on the practice of Shari’ah law in the Bangsamoro,

accredit Shari’ah courses and degrees obtained by Bangsamoro from

schools and universities abroad, and develop the curriculum of

schools and universities in the Bangsamoro. A traditional/tribal justice

system shall be created by the Bangsamoro Parliament. Further, an

Office for the Traditional/Tribal Justice System shall be created which

shall be responsible in overseeing the study, preservation, and

development of the tribal justice system within the Bangsamoro.

On matters of Public order and safety, Article XI provides that

Bangsamoro Police shall be part of the PNP. It shall be professional,

civilian in character, fair and impartial, free from partisan political

control, and accountable under the law for its actions. The

Bangsamoro Police Regional Board shall be part of the NAPOLCOM

and will perform the functions of the NAPOLCOM in the region. The

members of the Board shall be composed of the members of the

Bangsamoro Parliament and representatives from various sectors. A

director, assisted by two deputies, shall head the Bangsamoro Police.

The Bangsamoro shall enjoy fiscal autonomy with the end in

view of attaining the highest form of economic self-sufficiency and

genuine development. Apart from the taxes that were granted

previously to the ARMM, the Bangsamoro Government can impose

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and collect four national taxes – Capital Gains Tax, Donor’s Tax,

Estate Tax, and Documentary Stamp Taxes provided that all the

taxable elements are within the Bangsamoro. As for national taxes,

fees, and charges collected by the National Government within the

Bangsamoro, 75% shall be shared with the Bangsamoro and its

constituent local government units. The Bangsamoro Government

may create its own tax office to collect taxes in the Bangsamoro. The

National Government will assist the Bangsamoro Government in the

matters of tax administration and fiscal management. This assistance

shall include capacity building and training programs in accordance

with a needs assessment and capacity building plan developed by

the Bangsamoro Government in consultation with the National

Government. The Central Government shall provide an annual block

grant equivalent to 4% of the net national internal revenue collection

of the BIR less the internal revenue allotment of local government

units. It may however be adjusted if there occurs a change in the total

land area of the Bangsamoro and unmanageable fiscal deficit.

Article XIII of the draft law states that the Bangsamoro

Government’s economic policies and programs shall be based on the

principle of social justice. It shall legislate laws pertaining to the

Bangsamoro economy and patrimony that are responsive to the

needs of its people. The Bangsamoro Government’s authority over

the exploration, development, and utilization of resources include; the

power to declare nature reserves, aquatic parks, forests, watershed

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reservations, and protected areas in the Bangsamoro; the power to

regulate, manage, and protect inland waters in the Bangsamoro; the

joint power with the National Government to explore, develop, and

utilize fossil fuels and uranium in the Bangsamoro; and the power to

enter Financial and Technical Assistance Agreements over mineral

resources in the Bangsamoro by the President shall be upon the

recommendation of the Bangsamoro Government. The Bangsamoro

Government shall have the authority to establish economic zones,

industrial estates, and free ports in the Bangsamoro. The

Bangsamoro Government may extend the same fiscal incentives to

locators in its economic zones/industrial estates/free ports, as those

in areas outside the Bangsamoro.

The Bangsamoro Government with shall intensify development

efforts of rehabilitation, reconstruction and development of the

Bangsamoro as part of the normalization process. It shall formulate

and implement a program for rehabilitation and development that will

address the needs of MILF combatants/BIAF members and

decommissioned women auxiliary forces, internally displaced persons

and poverty-stricken communities. The National Government shat

provide for a Special Development Fund for rehabilitation and

development purposes of Seven Billion Pesos allocated for the first

year following the ratification of the basic law.

Provided in Article XV, the plebiscite for the creation of the

Bangsamoro shall be conducted in the present geographical area of

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the Autonomous Region in Muslim Mindanao, the Municipalities of

Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the

province of Lanao del Norte and all other barangays in the

Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and

Midsayap, the cities of Cotabato and Isabela; and all other contiguous

areas where there is a 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 Basic Law. After the creation of the

Bangsamoro, any contiguous local government unit or geographic

area outside the Bangsamoro may, by a verified petition filed by at

least 10% of its registered voters, ask for its inclusion in the

Bangsamoro and for the conduct of a plebiscite for that purpose.

The transition or interim period for the establishment of the

Bangsamoro shall commence upon the ratification of the Basic law.

There shall be Bangsamoro Transition Authority (BTA) which shall be

the interim government or the governing body in the Bangsamoro

during the transition period. The Moro Islamic Liberation Front (MILF),

being the principal party to the Comprehensive Agreement on the

Bangsamoro, shall lead the BTA in its leadership and membership.

All employees affected by the gradual phase-out of the ARMM and

regional offices of national government agencies may be absorbed,

transferred, or separated from service. Separation pay and other

benefits required to be paid under law shall be paid to these affected

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employees by the National Government. With specific regard to

ARMM Government employees, appointive officials of the ARMM

Government shall continue to exercise their functions during the

phase out. The absorption or re-hiring of ARMM Government

employees shall be in accordance with a placement and hiring

process established by the BTA.

Upon the ratification of the Bangsamoro Basic Law, the

Bangsamoro shall be deemed established and the ARMM shall be

deemed abolished.

Issue

Whether or not the Bangsamoro Basic Law is Unconstitutional.

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SUMMARY OF ARGUMENTS

The Bagsamoro Basic Law is UNCONSTITUTIONAL on

the following grounds; the BBL creates a state within a State. Sec 3

of the BBL states that “it shall adopt the official emblem and anthem

of the Bangsamoro”, it clearly shows the creation of another state. It

is well-settled rule of the State that the Republic of the Philippines

shall only have one symbol or Flag and one National anthem. The

BBL categorically describes all inhabitants of the BBL controlled

lands as Bangsamoro and not Filipino. The BBL establishes the core

component of a state based government, ascending only coordinating

powers to the Republic. Sections 3 and 4 of Article V of the BBL

delineate the powers of the Central Government (which in their term

is the Republic of the Philippines) and the Bangsamoro Government.

What the BBL gives fear is that majority of the provisions in these

sections arbitrarily surrenders control of banking, finance, land

registration, police powers, and other powers reserved usually to the

state (the Republic of the Philippines) to the Bangsamoro

government. In effect, they have fully functioning mini-nation ready for

secession. The BBL provides for the creation of the Bangsamoro

Government, with full legislative and executive powers. Section 2

allows the legislative arm to enact LAWS, not ordinances, LAWS to

govern the state. Section 3 establishes the powers of the cabinet

within the Bangsamoro, and though there is no direct guideline as to

the identity of each ministerial position in this cabinet, we would

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assume that this will mimic a fully functioning cabinet based on the

structure of the republic therefore they will have their own minister for

defense, justice, public works, local government and interior, etc. The

operative word used in all associations between the Bangsamoro

agencies and the agencies under the republic is "in cooperation with"

and not "under the". Hence, each Bangsamoro agency can (and most

probably will) determine department policy of existing government

agencies as "non-conforming under the Basic Law" and not follow

such order. The BBL establishes the Bangsamoro Shari' ah courts,

whose basis for dispensing justice is based on the Shari' ah law. The

wording in this article relates to the jurisdiction of the Shari'ah courts

over the entire Bangsamoro state, without any reference to the

Justice system of the Republic. Simply put, any decision made by the

Shari'ah High Court is final and executory without any deference to

the Supreme Court of the Philippines. If you get sentenced there, you

cannot appeal to the SC. The BBL emphasizes that the Bangsamoro

Police Force is under the PNP. However, the Chief Minister of the

Bangsamoro has, categorically, complete control over the

assignment, deployment, and operational and disciplinary control

over it. The BBL gives the Bangsamoro the power to legislate and

impose taxes and fees within the Bangsamoro controlled lands, a

right that is organically reserved to the republic.

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ARGUMENTS

The Government Peace Panel and Bangsamoro Peace Panel

has been saying that the basic principle in adopting and/or

establishing the Bangsamoro Government is for a much wider or

bigger scope of representation of the Bangsamoro people and not for

the purpose of creating and establishing a separate government and

another state which is separate and distinct from that of the Republic

of the Philippines. However, Article II, Section 3 of the Bangsamoro

Basic Law provides that, to wit:

Section 3.Bangsamoro Symbol- The Bangsamoro Parliament

shall adopt the official, emblem and anthem of the Bangsamoro.

Wherefore, from the wordings of the said provision of the BBL,

it is a blatant showing of the creation of another state which is

separate and distinct from that of the Republic of the Philippines. It is

well-settled rule of the State that the Republic of the Philippines shall

only have one symbol or Flag and one National anthem.It is therefore

contrary to the claims of both peace panel that the only aim of the

creation of the Bangsamoro Government is only for the

representation of the Bangsamoro People.

The law categorically describes all inhabitants within the BBL

controlled land as Bangsamoro, not Filipino but Bangsamoro. The law

also categorically depicts the Bangsamoro Political Entity as a nation-

state, with the eminent right to "self-determination", or the power to

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determine whether they want to remain part of the republic or not. 

(Art. 2 section 1 of the BBL Draft) (BBL preamble)

The law requires the Republic to guarantee the inclusion of one

Bangsamoro representative in each of the critical agencies of the

government. While representation is indeed something we will root

for, the ability of the Bangsamoro state to undermine the power of the

government to determine via qualification the right people for the right

agency and bypass that by a mere appointment to represent the

Bangsamoro state is highly self-motivated.

Contrary to what the government peace panel has been

saying, the BBL establishes the core component of a state based

government, ascending only coordinating powers to the Republic.

Sections 3 and 4 of Article V of the BBL delineate the powers of the

Central Government (which in their term is the Republic of the

Philippines) and the Bangsamoro Government. What the BBL gives

fear is that majority of the provisions in these sections arbitrarily

surrenders control of banking, finance, land registration, police

powers, and other powers reserved usually to the state (the Republic

of the Philippines) to the Bangsamoro government. In effect, they

have fully functioning mini-nation ready for secession.

The Bangsamoro Government gets the power to dissolve and

create local government units under Article V section 4 of the BBL.

Under item 57 of the said section, the Bangsamoro Parliament can

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abolish, create, merge, or alter boundaries of the local units under

their control. Now this is reserved usually to the Congress of the

Republic, therefore the BBL parliament has quasi-legislative powers

that are almost equivalent to Congress.

Article VI section 4 requires the Republic to refer to the Inter-

governmental Relations Body to intervene when agencies under the

Republic have issues with corresponding Bangsamoro agency, or if

there are differences between policy among Republic and the

Bangsamoro State. This emphasizes that while (for the meantime)

the Bangsamoro state is part of the country, the Republic could not

act to secure national issues involving the Bangsamoro State without

adjudiction of the IRB. Hence, the departments and agencies of the

republic have virtually no power in BBL controlled lands. It is also

questionable why it would take only the intervention of the republic,

and only if acknowledged by the chief minister of the Bangsamoro

State, can these agencies exercise their roles on Bangsamoro state.

Article VII of the BBL provides for the creation of the

Bangsamoro Government, with full legislative and executive powers.

Section 2 allows the legislative arm to enact LAWS, not ordinances,

LAWS to govern the state. Section 3 establishes the powers of the

cabinet within the Bangsamoro, and though there is no direct

guideline as to the identity of each ministerial position in this cabinet,

we would assume that this will mimic a fully functioning cabinet based

on the structure of the republic therefore they will have their own

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minister for defense, justice, public works, local government and

interior, etc.

Article 6, Sec 26 of the 1987 Constitution provides that only the

Legislative branch of the Government with the approval of the

President has the authority to enact a law.

Contrary to what the government peace panel is saying, none

of the agencies under the Bangsamoro Government are under the

Republic. The operative word used in all associations between the

Bangsamoro agencies and the agencies under the republic is "in

cooperation with" and not "under the". Hence, each Bangsamoro

agency can (and most probably will) determine department policy of

existing government agencies as "non-conforming under the Basic

Law" and not follow such order. Imagine the chief of the PNP giving a

shoot-to-kill order against a notorious terrorist hiding in Bangsamoro

controlled lands, only to have that order deemed as inappropriate by

the Bangsamoro Minister of Interior.

Article X of the BBL establishes the Bangsamoro Shari'ah

courts, whose basis for dispensing justice is based on the Shari'ah

law. The wording in this article relates to the jurisdiction of the

Shari'ah courts over the entire Bangsamoro state, without any

reference to the Justice system of the republic. Simply put, any

decision made by the Shari'ah High Court is final and executory

without any deference to the Supreme Court of the Philippines. If you

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get sentenced there, you cannot appeal to the SC. Another item

mentioned in this article is the mandatory place of at least one SC

justice, and a number of Court of Appeals justices as coming from the

Bangsamoro state. It obviously cuts the presidential privilege of

appointment and undermines the power of the Commission on

Appointments.

Article VIII, Sec 1 of the 1987 Constitution state that the Judicial

power as vested in the Supreme Court. Such Judicial Power includes

the duty of the courts of justice to settle actual controversies involving

rights which are legally demandable and enforceable, and to

determine whether or not there has been a grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of any branch

or instrumentality of the Government.

Article XI of the BBL emphasizes that the Bangsamoro Police

Force is under the PNP. However, the Chief Minister of the

Bangsamoro has, categorically, complete control over the

assignment, deployment, and operational and disciplinary control

over it. So if you have any qualms over a police officer over there

don't try and run to Camp Crame for resolution. They practically have

no power to sanction police under the Bangsamoro.

Article XII sections 6 to 14 of the BBL states that the

Bangsamoro has the power to legislate and impose taxes and fees

25 | P a g e

within the Bangsamoro controlled lands, a right that is organically

reserved to the republic.

Contrary to what the government peace panel is saying, the BG

has complete fiscal autonomy. Pending the creation of its own

internal revenue bureau, the BIR will collect taxes in behalf of the

Bangsamoro remitting 75% of the collections directly to the

Bangsamoro coffers. The remaining 25% is for the Republic; however

the Bangsamoro is to retain the amount for 10 years. Congress has

no control over the fiscal management of these funds, only those that

have been appropriated through the National Budget. In short, while

the national government is obligated to provide funding to projects

within the Bangsamoro state, the BG is not required to remit any of

the government shares in income within their areas for the next 10

years! And to top that, the Bangsamoro retains the right to extend

that period beyond 10 years!

Although the Constitution provides that natural resources

belong to the state, in the Bangsamoro territory, only Bangsamoro will

have exclusive jurisdiction over natural resources.

The Agreement in Part 7, paragraph 4, subparagraph (b)

enumerates the functions of the Transition Commission which at

present is reportedly drafting the Bangsamoro Basic Law. One of the

functions of the Transition Commission is as follows: "To work on

proposals to amend the Philippine Constitution for the purpose of

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amending and enriching in the Constitution the agreements of the

Parties whenever necessary without derogating from any prior peace

agreement." The Constitution provides that only the Congress can

amend the Constitution.

In the 18 articles within the BBL there is no mention of the word

Filipino, the Philippines, nor any reference to the Republic. The entire

text consolidates power in the south as if they are separate from the

country. It could not, with clear conscience, state that this is a peace

treaty, but rather an invitation to secession.

Senator Miriam Santiago has great points in her interview about

the BBL last March 15, 2015. We reiterate:

The Constitution is immutable, it is unchangeable, it is

non-variable. It is not like a rubber band; it does not have that

flexibility. You cannot interpret it one way on Monday and

interpret it another way on Friday. So we must begin the

discussion on the BBL with this basic question: Is it

constitutional?

And let us divide that major question. The first subdivision

should be like this: What is the constitutional basis for the

authority to negotiate on the part of the Philippine government.

The President simply assumed he had the authority to

negotiate. That is not so. The president does not have sole

power over the foreign policy of the Philippines.

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The Constitution implies that the foreign policy is shared

between the President on the one hand, the Senate on the

other. For example, just as I showed this morning, even if the

President has already ratified a treaty, it cannot come into force

and effect in this country unless the Senate concurs in the

ratification. This shows you that the attitude of the Constitution

is that foreign policy power must be shared between the

president and Congress, but more specifically, the Senate.

Now, where is the Senate authorization for the president

to conduct these negotiations, sometimes called the peace

process? He does not have an instrument of such nature. He

just assumed that he has that power but he does not. If the

Constitution requires that the President cannot move in foreign

relations unless he has the concurrence of the Senate, how

much more does the spirit of the Constitution require that there

should be Senate concurrence when the president authorizes a

so-called peace process through a peace panel? That is the

very first question that tends to be overlooked. It should be the

Senate of the Philippines. At least we are representative of the

people; he is not.

The second question is, who gave the MILF authority to

represent the Bangsamoro among the MNLF, MILF, BIFF and

other groups that are now springing into existence? Which one

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shall be validly allowed to claim that it represents the

Bangsamoro or the entire Islamic peoples within the Philippine

territory? The first thing that will happen when we pass this

Bangsamoro Law is there will be an internal war, another non-

international armed conflict, this time among those claiming to

be leaders.

So the very first question really is the standing to

negotiate. Where is the authority of the president of the

Philippines and the MILF to negotiate a substate? That is the

first question.

And then let me just go on in this manner. It is irrelevant

what date the Senate will hold its debates on whether or not we

shall pass this law. Eventually, whether or not Congress passes

the BBL, the matter will end up in the Supreme Court. So there

is no point attacking people like me just because we say, as

dedicated students of Constitutional Law, that it is

unconstitutional. We are almost like marionettes, we who have

been trained in constitutional law. You feed us a principle and

out will come the results. We have no choice. Whether we

personally approve of a certain provision of the Constitution,

once it is written there, we are bound by it as constitutional

scholars.

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So we have to stop talking of negotiating the Constitution.

That is heresy! The Constitution is supreme. It is a violation of

principle of constitutional supremacy to say that we should

negotiate the Constitution. What are we supposed to negotiate

about the Constitution? The Constitution is non-negotiable,

period.

So if only we had bothered for Malacañang to get in touch

with the Senate leadership so that we could work out a

document in the form of instructions of the Senate to the

President concerning the so-called peace talks, this would not

have happened. The thing is that everyone overlooked the

basic fact: Do they have authority to negotiate? If they claim to

have it, what is its basis in the Constitution? Treaty nga lang,

hindi mo maisagawa iyan nang hindi kami nag-concur, iyon

pang gagawa ka ng substate?

Because there is no question about it: What is being

created under the BBL is a substate. And what is irrefragable—

without a doubt, indubitable—is that it divides sovereignty. Of

course, this is an age when sovereignty is no longer unlimited.

That is a negative way of putting it. There are now claims to

reduction of sovereignty possessed by a state. That is very

hard to understand. The state is equal to sovereignty. So how

can there be a state without sovereignty? Answer: That is what

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happens when the state limits its own sovereignty. It is an auto-

limitation imposed by the state on itself.

Let me give you an example. States that are members of

the European Union agree to a diminution of their sovereignty

because they have to obey what the European parliament says,

or what the European court of human rights says. These are

auto-limitations on their sovereignty. But otherwise, there is no

way you can limit the sovereignty of a state. However, the BBL

infringes on our sovereignty as a state because there are

powers under the BBL that are exclusive only to them. If their

powers are exclusive, that means that they exclude the powers

even of our own state.

So this is really much more complicated than what those

negotiators think. Why did they not first ask each other and

show each other the proper papers for negotiation? That is the

normal procedure. That’s the first thing that is done during the

process of negotiation: you show each other the papers

authorizing you under your government’s Constitution to

conduct negotiations with the other party.

During the debate in the Senate, I can draw up a list of all

the unconstitutional provisions. I cannot do that at this point

because there are so many of them. There is an excess, there

is an abundance of unconstitutional features because the

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negotiators of the Philippine government thought that they can

negotiate away certain parts of the Constitution.

For example, our Constitution speaks of local

government. Local governments we are familiar with: provincial,

municipal, barangay. But nowhere does the Constitution

mention a substate. What is the basis for proposing a substate

and now securing the consent of the Congress by means of the

BBL? What will be our constitutional basis? It is not mentioned,

not even once in the Constitution. An autonomous region, yes,

that is allowed. That is specifically mentioned in the

Constitution. So unless the BBL is first of all transformed into a

document for more regional autonomy or autonomy in other

guises, it has no legal basis at all from the very start.

So this constitutional problem will prove to the undoing of

the BBL, because, as I said, the Constitution is immutable. You

cannot change it; it is like the face of a blank wall. You are a

marathoner, you’re running, and then all of a sudden you’re

faced with a blank wall. You either get over that blank wall by

taxing yourself to your limits, or you give up. They have to scale

these constitutional obstacles first.

But statements that we can only negotiate, we cannot

dictate, are not useful. In fact, they are not intelligent. They

recognize that we have a Constitution. That’s why we call

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ourselves a republic because we are based on a constitutional

government. But they tell us that we have to negotiate first. We

cannot negotiate a constitutional provision, no matter how

solitary it is, or no matter how minor it might seem to others.

That is a big problem. As I said it is like facing the blank face of

a mountain. First you have to climb that.

So it is not a question of whether I want it to be

constitutional or not. That kind of personal moral choice is

beyond me; I am not given any margin of safety there. When I

read the Constitution according to how I was educated by many

foreign and respected authorities in constitutional law, I must

make up my mind on whether it is constitutional or

unconstitutional. I cannot negotiate, not even a single word in

the Constitution. That is what they should remember.

To summarize, let me just say, we have a big problem. To

paraphrase, “Houston, we have problem.”

As citizens of the republic, we implore you to read the BBL in its

entirety. Accept the challenge of the so called peace panel and read

it. You would be surprised at what you might discover.

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Submission

Wherefore, with the arguments discussed, we disagree with the

provisions of the proposed BBL. It is our prayer that this proposed law

be scrapped out as law as it is unconstitutional.

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