Summary of Issues and Arguments on the BBL

SUMMARY OF BBL ISSUES AND ARGUMENTS

1

Issue: Statehood/Secession - Territory

BBL Provision Constitution

Art. III, Section 1. Definition of Territory - Territory refers to the land

mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the

aerial domain above it. The Bangsamoro territory shall remain a part of the

Philippines.

Art. 1, Sec. 1: The national territory comprises the Philippine archipelago,

with all the islands and waters embraced therein, and all other territories

over which the Philippines has sovereignty or jurisdiction, consisting of its

terrestrial, fluvial and aerial domains, including its territorial sea, the seabed,

the subsoil, the insular shelves, and other submarine areas. The waters

around, between, and connecting the islands of the archipelago, regardless

of their breadth and dimensions, form part of the internal waters of the

Philippines.

Opposition Defense Other References/Comments

Territory as defined in Black’s Law Dictionary1 - ex.

(1) Phil. as US “unincorporated territory”;

(2) UN trust territories

Mendoza

Territory cannot be fragmented into exclusive

jurisdictional control of local governments or

autonomous regions. (Mainly discussed in relation to

exploitation of natural resources)

(Magallona)

There should be a statement on the Sabah claim, the

treatment of ancestral domain of Lumads and the

Status of the Sultanate of Sulu

(Romero)

– on Contiguous Zones – it encroaches on Philippine

Territory Philconsa

A BBL is not necessary for secession.

All local governments have defined territories

Art. III, Sec. 1 is explicit

The requisite plebiscite takes the BBL out of the

North Cotabato objection

Suggestion: What is “contiguous’ could be better

defined

As to waters: management can be delegated.

(Agabin & Tan)

These things can be made in clarifications –

but for the sake of peace agreement, not

necessarily included in the BBL itself.

1 Black’s Law Dictionary: A part of the country separated form the rest and subject to a particular jurisdiction, a geographical area under the jurisdiction of another country or sovereign power.


2

Issue: Statehood/Secession –Self-determination


Preamble: …. Affirming the distinct historical identity and birthright of the

Bangsamoro people to their ancestral homeland and their right to self-

determination ….

Art. II, Sec. 7: The State shall pursue an independent foreign policy. In its

relations with other states, the paramount consideration shall be national

sovereignty, territorial integrity, national interest, and the right to self-

determination.


“Self-determination has restrictive meaning in

International Law

(Mendoza)

Statements about “political destiny” and asymmetry

with its own flag and seal shows a desire for equality

with the National Government

There must be a statement eschewing secession.

(Romero)

The marks of external self-determination can be

found in the BBL. (no citation)

A flag may mean independence. The heraldic law

does not allow government entities to have a flag,

emblem, or anthem.

(Philconsa)

One would read this as referring to Internal self-

determination.

Self-governance does not imply independence or

secession.

Internal self-determination was recognized in North

Cotabato

(Agabin and Tan)

Also under UN Treaties –

Province of North Cotabato

Recognition and Statehood

The support of foreign governments for the BBL can

easily translate into recognition

(Mendoza)

Independent Institutions are created by giving

Bangsamoro “concurrent powers”

Granting concurrent powers to Bangsamoro may

create permanent independent Bangsamoro

institutions (See also Magallona under Powers of

Government)


3

Issue: Citizenship and Suffrage


Art. I, Sec. 2. Name - The name of the political entity under this Basic Law

shall be the Bangsamoro”

Art. 2, Sec. 1: Bangsamoro People - Those who at the time of conquest and

colonization were considered natives or original inhabitants of Mindanao and

the Sulu archipelago and its adjacent islands including Palawan, and their

descendants, whether of mixed or of full blood, shall have the right to identify

themselves as Bangsamoro by ascription or self-ascription. Spouses and their

descendants are classified as Bangsamoro.

Art. IV, Sec. 7

Section 7. Social Justice. - The Bangsamoro shall establish a government

that ensures that every citizen in the Bangsamoro is provided the basic

necessities and equal opportunities in life. Social Justice shall be promoted in

all phases of development and facets of life within the Bangsamoro.

Art. IV. Citizenship

Art. V, Sec. 1 (Suffrage) Suffrage may be exercised by all citizens of the

Philippines, not otherwise disqualified by law, who are at least eighteen

years of age, and who shall have resided in the Philippines for at least one

year and in the place wherein they propose to vote, for at least six months

immediately preceding the election. No literacy, property, or other

substantive requirement shall be imposed on the exercise of suffrage.


Non-Bangsamoros may be disqualified. The definition

of Bangsamoro is the same as defining a citizen, i.e.,

to exclude outsiders

(Mendoza)

The term “Bangsamoro People” should have been

changed according to Province of Cotabato

Without mention of other Filipino people, it is like the

Bangsamoro is different from and equal to other

Filipinos – who should include Bangsamoro already

“other inhabitants” – how are they treated now – can

they be forced to be part of the Bangsamoro against

their will?

There is no definition of citizenship. A non-

Bangsamoro does not lose civil and political rights

There is no discrimination with respect to candidacy.

The autonomous region in the Constitution is

generally defined / described – Such other matters

authorized by law for the promotion of the general

welfare of the people of the region. It can be

expanded by statute so long as it does not violate the

broad Constitutional guidelines.

(Agabin and Tan)


4

Other tribal peoples/inhabitants do not have their

own classification.

The word “Bangsa” is nation, and may mean sub-

state.

The political entity called “Bangsamoro” is not a

subdivision under the Constitution, which

names….”autonomous region”

It is a super political entity that is unlike other

subdivisions

(Philconsa) – Believes that “citizen” refers to

Bangsamoro citizens and wonders if that is another

indication of independence .

Issue: Form of Government.


Creating a Parliamentary Form of Government

- Generally Art. VII.

- CAB Annex on Power Sharing

- References to Ministerial Form of Government

1. Art. IV, Sec. 3

2. Art. V, Powers of Government

3. Sec. 3, par. 57

4. Art. VII, Sec. 3

5. Art. IX, Sec. 6.

Art. X, Sec. 18

… The organic act shall define the basic structure of government for the

region consisting of the executive department and legislative assembly, both

of which shall be elective and representative of the constituent political units.

…

Art. X, Sec. 15: There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces, cities, municipalities,

and geographical areas sharing common and distinctive historical and

cultural heritage, economic and social structures, and other relevant

characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.


5


Parliamentary Systems in a Presidential one is an

“oddity and incongruity”

(Mendoza)

Overall, the BBL in implementation of the CAB

presents a creation of a political system within the

Philippine State, with its own territory, population,

government, and natural resources, intended to

function in relative independence from the National

Government

(Magallona)

There is no competitive party system that would

make the Parliamentary system work.

(Romero)

IPs are allowed different forms of government. The

LGC allows this too. All that is required is an

executive department and legislative assembly.

(Agabin &. Tan)

Local autonomy is administrative autonomy, while

autonomous regions have political autonomy. (citing

Cordillera Broad Coalition v. Commission on Audit,

G.R. 79956 (Jan. 29, 1990)

(Fr. Aquino)

Also relates to a discussion on “Autonomy”

and “Autonomous Regions”

The constitution recognizes differences in history and

culture, but not political structure.

They must be within the framework of the

Constitution and the Territory of the Philippines

(Mendoza)

A people sharing the same historical experience

…living in a territory perceived as their homeland is a

definition of “nation” and explicitly provided in the

Constitution

(Agabin and Tan)

“And other relevant characteristics”

They must be within the framework of the

Constitution and the Territory of the

Philippines


6

Inter-Governmental Relations

Issue: How powers will be shared by the Bangsamoro government (BG) and the Central Government (CG)?


Article V. POWERS OF GOVERNMENT

Section 1. Reserved Powers. - Reserved powers are matters over which

authority and jurisdiction are retained by the Central Government. The Central

Government shall exercise the following reserved powers:

X x x

Section 2. Concurrent Powers. - Concurrent powers shall refer to the

powers shared between the Central Government and the Bangsamoro

Government within the Bangsamoro, as provided in this Basic Law.

X x x

Section 3. Exclusive Powers. - Exclusive powers are matters over which

authority and jurisdiction shall pertain to the Bangsamoro Government. The

Bangsamoro Government shall exercise these powers over the following

matters within the Bangsamoro:

X x x

Section 4. Other Exclusive Powers.

X x x

ARTICLE X. LOCAL GOVERNMENT

Section 17. All powers, functions, and responsibilities not granted by this

Constitution or by law to the autonomous regions shall be vested in the

National Government.

X X X

Section 20. Within its territorial jurisdiction and subject to the provisions of

this Constitution and national laws, the organic act of autonomous regions

shall provide for legislative powers over:

1 Administrative organization;

2 Creation of sources of revenues;

3 Ancestral domain and natural resources;

4 Personal, family, and property relations;

5 Regional urban and rural planning development;

6 Economic, social, and tourism development;

7 Educational policies;

8 Preservation and development of the cultural heritage; and

Such other matters as may be authorized by law for the promotion of the

general welfare of the people of the region.

Section 21. The preservation of peace and order within the regions shall be

the responsibility of the local police agencies which shall be organized,

maintained, supervised, and utilized in accordance with applicable laws. The

defense and security of the regions shall be the responsibility of the National

Government.


1. Failure to distinguish between constituent

matters and legislative matter

The lopsided allocation of powers to the national

government and the BG is due in part to the fact that

some powers granted to its Parliament are not

legislative, but constituent in nature, whereas the

Constitution categorically provides that only

“legislative” shall be delegated to regional

The powers reserved to the CG are those that pertain

to foreign relations (external security, immigration,

etc). That these are witheld from the BG is consistent

with the fact that the Bangsamoro is not constituted

as a separate state, as the 4th element thereof is the

capacity to enter into relations with other states.

This is also consistent with Supreme Court rulings

that in our system of government, the president,

being the head of state is regarded as the sole organ

In order to avoid any doubt, a definition of

the term “exclusive powers” is proposed:

Section 3. Exclusive Powers. -

Exclusive powers are powers devolved

to the Bangsamoro, over which

authority and jurisdiction shall

primarily pertain to the Bangsamoro

Government, without prejudice to the


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governments and such grant shall be subject to the

provisions of this Constitution and national laws.”

– Justice Vicente V. Mendoza

and authority in external relations and the country’s

sole representative with foreign nations (Pimentel v

Exec Sec, GR#158088, 6 July 2005). The

Constitution further mandates that even in the

autonomous regions, the defense and security of the

regions shall be the responsibility of the CG.

The concurrent powers are functions, which the

Constitution has placed upon a specific agency, and,

thus, may not be removed from the CG. However,

these may be exercised concurrently with

autonomous regions such as the Bangsamoro.

The remaining exclusive powers refer to internal

administrative matter. These may be delegated to

the Bangsamoro in recognition of the higher degree

of autonomy granted to it as compared to other

LGUs. This is consistent with the goals of regional

autonomy.

- Antonio G. M. La Vina and Janice Lee

general supervision powers of the

President over the Bangsamoro. The

Bangsamoro Government shall

exercise these powers over the

following matters within the

Bangsamoro: x x x

- Antonio G. M. La Vina and Janice Lee

(ASOG)

The powers of government are reduced to contractual

arrangement between parties to the CAB, resulting in

a new configuration of political authority. In the first

place, such authority raises the fundamental issue as

to whether a government office and non government

organized group may assume the function of

reorganizing and restructuring the powers of

Government in usurpation of the act of sovereignty

under the Constitution.

a. on reserved powers

The CAB parties usurped the sovereign functions

which the people enthroned in the Constitution. The

CAB and BBL intended to deprive the NG of certain

powers in its relation with BG. NG has no power and

authority over the BG unless as provided under CAB

and as implemented by the BBL.

This categorization is alien to the fundamental law

The list of exclusive powers is acceptable since article

X, section 20 of the Constitution is not exclusive and

lawmakers may add other fields.

The foreign relationships the Bangsamoro Entity is

empowered to enter into are not the diplomatic

relationships that make a state a state. Provinces,

cities and municipalities are separate corporate

entities and may thus enter into legal relationships,

such as raising debt and borrowing money. So long

as it is clear that the President remains the

Philippines’ sole voice in foreign affairs as

contemplated in constitutional law and that the

President as Commander-in-Chief remains solely

responsible for external defense, nothing prevents a

political subdivision such as the Bangsamoro Entity

from entering into these other legal relationships,

especially not ones that capitalize on the entity’s

unique demographic such as certain relationships


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and to our system of government.

b. on concurrent powers

The root issue is the Constitutional basis of their

creation.

c. Exclusive Powers

There can be no recognition of powers and

jurisdictions exclusive to the BG; otherwise, the

Republic would be conceding that it does not possess

internal sovereignty or supreme authority over

matters within the exclusive powers of the BG.

The assumption is that the Bangsamoro Government

is in intergovernmental relationship with the National

government at the “highest level.” However, it should

be obvious that, as the Constitution prescribes, all

autonomous regions and subdivisions are subject to,

and under the supreme authprity of the National

government, in particular of its Legislative

Department.

-- Merlin M. Magallona

with Muslim countries and their political subdivisions

that could well stimulate investment in Mindanao.

Congress may delegate certain powers to the

Bangsamoro Entity such as determining the location

of free ports (with the incentives offered under

existing national laws), the creation of government

corporations with original charter intended to operate

within the Bangsamoro Entity, and the creation of

legislative franchises for public utilities within the

Bangsamoro Entity subject to constitutional

restrictions.

-- Pacifico Agabin; Oscar Franklin Tan

The enumeration of the powers that are to be

exercised by Bangsamoro and what is called the

Central Government concurrently, and those granted

Bangsamoro exclusively far exceed what the

Constitution allows

-- Fr. Ranhilo Callangan Aquino

Under the Constitution, all powers not delegated are

retained by the central government. In the case of

the AFP, for instance, ultimately, who is the

commander-in-chief of the AFP? It's still the

President. There is no commander in chief of the AFP

other than the President.

- Adolf Azcuna

(http://www.rappler.com/nation/special-

coverage/peacetalks/73338-bangsamoro-bill-schools-

of-thought)


9

Issue: Conflict of Laws between the Bangsamoro government (BG) and the Central Government (CG)


Article VII

THE BANGSAMORO GOVERNMENT

Section 2. Legislative Authority.- The Bangsamoro Parliament shall have

the authority to enact laws on matters that are within the powers and

competencies of the Bangsamoro Government


The powers granted to the BG exceed those granted

to other LGUs. It is possible that the laws passed by

the Bangsamoro parliament may overlap with, or

even conflict with, those of the CG.

The laws passed in the Bangsamoro may be classified

as either territorial or personal in terms of

application. These limits of applicability give rise to

questions of when, in cases of conflict, CG laws will

apply instead of BG laws. These conflicts are

sometimes termed as “inter-regional conflict of laws”.

There is no provision in the BBL which would govern

problems of inter-regional conflict of laws. Section 8,

Art VI of the BBL only refers to the Philippine

Congress-Bangsamoro Parliament Forum for

purposes of cooperation and coordination of

legislative initiatives. Section 8 may be amended as

follows:

Section 8. Philippine Congress -Bangsamoro

Parliament Forum. - There shall be a Philippine

Congress-Bangsamoro Parliament Forum for

purposes of cooperation and coordination of

legislative initiatives and to ensure that all laws

passed by the Bangsamoro Parliament shall be

consistent with the 1987 Constitution and the

Philippine Cogress. In case of any conflict between


10

the laws passed by the Bangsamoro Parliament and

the Constitution, the Constitution shall prevail and

the former shall be considered void. The same rule

shall apply in case of conflict between Congress and

the Bangsamoro Parliament except as to matters

addressed through the the Philippine Congress-

Bangsamoro Parliament Forum.

Further, the Philippine Congress-Bangsamoro

Parliament Forum shall cooperate to enact a law

containing rules on inter-regional conflicts of laws.

These rules shall govern any conflicts in applying

the laws passed by the Bangsamoro Parliament and

those passed by Philippine Congress, regarding

persons and family relations, other civil law

matters, commercial law, and criminal law.

-- Antonio G. M. La Vina and Janice Lee (ASOG)

Issue: General supervision of the Bangsamoro Government (BG)


Article VI. INTERGOVERNMENTAL RELATIONS

Section 3. General Supervision. Consistent with the principle of autonomy

and the asymmetric relation of the Central Government and the Bangsamoro

Government, the President shall exercise general supervision over the

Bangsamoro Government to ensure that laws are faithfully executed.


Section 16. The President shall exercise general supervision over

autonomous regions to ensure that laws are faithfully executed.





The BBL reduced power of the president to “general

supervision,” or mere oversight as distinguished from

control, the Bill furher emascualtes the President’s power

by providing that its exercise should be consistent with

autonomy and assymetrical relations…This can make the

strict enforcement of national laws within the Bangsamoro

territory difficult to secure as law enforcement may have to

take acoount of the local custom of the people. That can

make a mockery of the laws of the Republic, as the

“assymetric relation” of the two government can always be

waived to overrule any constitutional objection.

The BBL’s nuanced drafting intentionally avoids

transgressing against the Constitution’s explicit

powers assigned to national bodies. The President

does not have the power of control but retains the

power of supervision over the Bangsamoro Entity, as

required for an autonomous region in the

Constitution.

This provision emphasizes that the Bangsamoro

Entity shall be subject to the President’s power of

supervision, one of the most important requirements

for autonomous regions in art X Constitution


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The Bangasmoro political entity is created outside the

constitutional box. It is imbued with powers, functions and

responsibilities far in excess of the nature attributed to the

autonomous region by the Constitution or to any political

division of the Republic.


Issue: Distribution of Powers of Government.


Division of Governmental Powers (Generally)

Art. V, Sec. 3 (Exclusive Powers)

Par. 7: Barter trade and countertrade with ASEAN countries

Par. 17, Receive Grants and Donations

Art. XII, Sec. 24 Grants and Donations. – Grants and donations from

foreign and domestic donors received by the Bangsamoro Government for the

development and welfare of the people in the Bangsamoro shall be used solely

for the purpose for which they were received.

Donations and grants that are used exclusively to finance projects for

education, health, youth and culture, and economic development, may be

deducted in full from the taxable income of the donor or grantor.

Contract Foreign Loans

Art. XII, Sec. 22

Section 22. Foreign and Domestic Loans; Bills, Bonds, Notes and

Art. X, Sec. 18 (see above)

Art. X, Sec. 20: Within its territorial jurisdiction and subject to the provisions

of this Constitution and national laws, the organic act of autonomous regions


1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural resources;

4. Personal, family, and property relations;

5. Regional urban and rural planning development;

6. Economic, social, and tourism development;

7. Educational policies;

8. Preservation and development of the cultural heritage; and

9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Art. X, Sec. 17

All powers, functions, and responsibilities not granted by this Constitution or

by law to the autonomous regions shall be vested in the National

Government.


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Obligations. – (a) Loans, Credits, and Other Forms of Indebtedness. – The

contracting of loans, credits, and other forms of indebtedness by the

Bangsamoro Government shall be for the development and welfare of the

people of the Bangsamoro.

Art. XII, Sec. 21

Section 21. Foreign loans may only be incurred in accordance with law and

the regulation of the monetary authority. Information on foreign loans

obtained or guaranteed by the Government shall be made available to the public.

Art. VII, Sec. 20

The President may contract or guarantee foreign loans on behalf of the

Republic of the Philippines with the prior concurrence of the Monetary Board,

and subject to such limitations as may be provided by law. The Monetary

Board shall, within thirty days from the end of every quarter of the calendar

year, submit to the Congress a complete report of its decision on

applications for loans to be contracted or guaranteed by the Government or

government-owned and controlled corporations which would have the effect

of increasing the foreign debt, and containing other matters as may be provided by law.


Making divisions of “exclusive”, “reserved”, and

“concurrent” violates the Constitution because as a

unitary government, it retains all powers of

sovereignty except what is given under Art. X, Sec.

20.

(Mendoza, Magallona)

OPAPP and MILF – an NGO -effectively reduced

Governmental powers by contract agreement

(Magallona)

Under the Bill, the Powers given to the Parliament of

the Bangsamoro Government are constituent in

nature, as opposed to merely legislative.

(Mendoza)

There is nothing unconstitutional about naming it like

this.

(Agabin & Tan)

“Exclusive” powers is political and legally meaningless

but since it causes confusion it can just be defined.

(La Vina)

Contracting loans without sovereign guarantees is

already done by provinces and cities

(Agabin and Tan)

These foreign relationships are not diplomatic

relationships.

It just needs to be made clear that the President is


13

Constituent powers cannot be granted without

amendment to the Constitution.

Granting concurrent powers is granting Bangsamoro

“independence in the exercise of powers of

Government and concomitant transfer to it by the

National Government of its own powers.” This allows

for (independent?) institutionalization of Bangsamoro

= permanent independent state. It makes the

Bangsamoro at parity with NG.

(Magallona)

The way the BBL is created (1) Congress is an

instrument only of the Bangsamaoro; (2) it is the

Bangsamoro that establishes limits on NG power.

(Magallona)

There is more in the BBL than allowed in the

Constitution

(Use ARMM as a Template)

(Fr. Aquino)

the sole voice in foreign affairs.

(Agabin & Tan)

Issue: The Assymetric relationship of the National and Bangsamoro Governments.


Article VI . INTERGOVERNMENTAL RELATIONS

Section 1. Assymetric Relationship.– The relationship between the Central

Government and the Bangsamoro Government shall be asymmetric. This is

reflective of the recognition of their Bangsamoro identity, and their aspiration

for self-governance. This makes it distinct from other regions and other local

governments.


Section 1. The territorial and political subdivisions of the Republic of the

Philippines are the provinces, cities, municipalities, and barangays. There

shall be autonomous regions in Muslim Mindanao and the Cordilleras as

hereinafter provided.

Section 15. There shall be created autonomous regions in Muslim Mindanao

and in the Cordilleras consisting of provinces, cities, municipalities, and

geographical areas sharing common and distinctive historical and cultural

heritage, economic and social structures, and other relevant characteristics

within the framework of this Constitution and the national sovereignty as

well as territorial integrity of the Republic of the Philippines.


14


Congress has no authority to create any other agency

of local government.

So by what authority of Congress is the BG justified

to be created?

This is to beg the question: whether Congress has

authority to create a political entity that is different

from the other forms of local governments by simply

describing the relation of such entity to the NG as

“assymetric.”


The word assymetric is not a legal term but a political

one. In political science, there is asymmetry when a

territorial unit within a political system enjoys a

distinct or special status because of its peculiarities.

The Supreme Court has explored the concept of

“asymmetrical relationship” in relation to autonomous

regions: “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 NG as compared to other local governments

or any regional formation…” (Leonen J., Concurring

Opinion, League of Provinces of the Philippines v.

DENR, GR No. 175368, 11 April 2013)

The concept itself falls within constitutional limits.

In order to ensure clarity and avoid

misinterpretation, a definition of “asymmetrical

relationship” is suggested:

Section 1. Asymmetric Relationship. – The

relationship between the Central Government

and the Bangsamoro Government shall be

asymmetric. This is reflective of the

recognition of the Bangsamoro identity, and

the Bangsamoro aspiration for self-

governance.

As used in this Law, an “asymmetric relationship”

refers to the relationship between the Central

Government and the Bangsamoro Government as an

autonomous region, as provided under Section 15,

Article X of the 1987 Constitution, which is distinct

from other regions and other local governments. The

Bangsamoro Government is subject to the

supervision of the President of the Philippines. All

powers, functions, and responsibilities not granted by

It is the asymmetric relation qualification that

waters down the President's general

supervision. This can make the strict

enforcement of national laws in the

Bangsamoro difficult to secure. The right to

self-determination cannot be used to justify

this kind of relationship between the

Bangsamoro government and the central

government.

- Adolf Azcuna

(http://www.rappler.com/nation/special-

coverage/peacetalks/73338-bangsamoro-bill-

schools-of-thought)


15

the 1987 Constitution or by this Law to the

Bangsamoro Government shall be vested in the

Central Government

-- Antonio G. M. La Vina and Janice Lee

The BBL creates an entire political system constituted

by powers, functions and responsibilities independent

of the national government; in fact, the impact of

that system consists in the intrusion of concepts of

government alien to the Constitution’s own political

system.

As a result, the BBL have the effect of rejecting the

cornerstone prncple of the Constitution, the

separation of powers.


Justice Marvic Leonen provided a jurisprudential

definition of asymmetric relationship in a 2013

concurring opinion. It is a simple affirmation that a

larger autonomous area such as the Bangsamoro

Entity necessarily has a different relationship with the

national government compared to ordinary local

government units, and enjoys more powers. This is

thus not the associative relationship criticized in the

MOA-AD Decision.


Issue: “Assymetric Relationship”.


Art. VI, Section 1. Asymmetric Relationship. – The relationship between

the Central Government and the Bangsamoro Government shall be

asymmetric. This is reflective of the recognition of their Bangsamoro identity,

and their aspiration for self-governance. This makes it distinct from other

regions and other local governments.

Art. VI, Sec. 6 - Devolution and Subsidiarity - The Central Government and

the Bangsamoro Government accept the concept of devolution as inspired by

the principles of subsidiarity. Decisions are to be made at the appropriate level

to ensure public accountability and transparency, and in consideration of good

governance and the general welfare.

Power of the President:

Section 3. General Supervision. Consistent with the principle of autonomy

and the asymmetric relation of the Central Government and the Bangsamoro

Government, the President shall exercise general supervision over the

Section 4. The President of the Philippines shall exercise general supervision

over local governments. Provinces with respect to component cities and

municipalities, and cities and municipalities with respect to component

barangays, shall ensure that the acts of their component units are within the

scope of their prescribed powers and functions.

Art. X, Sec. 16: The President shall exercise general supervision over



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Bangsamoro Government to ensure that laws are faithfully executed.


The asymmetric relationship may make a mockery of

laws and override the ability of the President to

enforce laws because of the need to consider local

customs.

Just because the BBL is called asymmetric, we still

have to determine whether it is still subject to the

Constitution.

An asymmetric relationship violates the formula of

defining the basic structure of executive and

legislative

– (Mendoza)

The Autonomous Region as a subdivision cannot have

an asymmetric relationship.

(Mendoza, Philconsa)

“ principles of Subsidiarity and parity of esteem” is

an oxymoron.

- How is this different from “associative”?

(Philconsa)

Asymmetry just means the relationship between B

and NG is not parallel to that of other local

governments and the NG

“General supervision” by the President is all that is

re3quired by the Constitution

(Agabin & Tan)

“General Supervision” of the President is different

from the President’s “control” in the Administrative

Code (referring to executive departments, bureaus

and offices) there should be some adjustments (??)

Just define asymmetry to mean that it is more than

local gov’t but less than NG.

(Fr. Aquino)

Issue: Powers of Parliament.


Section 24. General Welfare. – The Bangsamoro Parliament shall pass laws

that promote the general welfare of the people in the Bangsamoro.

Art. X, Sec. 20

Within its territorial jurisdiction and subject to the provisions of this

Constitution and national laws, the organic act of autonomous regions shall


17

Section 1. Powers of Government. – The powers of government shall be

vested in the Bangsamoro Parliament, which shall exercise those powers and

functions expressly granted to it in this Basic Law, and those necessary for or

incidental to the proper governance and development of the Bangsamoro. It

shall set policies, legislate on matters within its authority, and elect a Chief

Minister, who shall exercise executive authority in its behalf.

provide for

(par. 9) ….Such other matters as may be authorized by law for the

promotion of the general welfare of the people of the region.


There may be an overlap and it would be difficult to

know when national laws would apply as regards

“general welfare”

It makes the Bangsamoro Parliament in equal

standing to the National Government

The laws of Parliament have a national character –

unlike LGUs, that are only binding within their own

respective units.

- Because they are the same nature and character

as the NG

- The matters that the BP can enact – within

exclusive or concurrent powers , i.e., human

rights, natural resources, etc. – affect the nation

as a whole

Magallona –

There can be no delegation of legislative authority to

another legislative body. All legislation primarily

vests in Congress – it is still the principal of LGUs.

(Citing Lina v. Pano)

(Fr. Aquino)

NG is divesting itself of its power.

– Philconsa

- nature of General Wwelfare Clause in the

LGC

(Fr. Aquino) earlier made a distinction

between administrative and political

autonomy citing Cordillera Broad Coalition)


18

Issue: Creation of Boundaries.


Art. V, Sec. 3, Par 57 –

The Bangsamoro Parliament may create, divide, merge, abolish or

substantially alter boundaries of provinces, cities, municipalities or

barangays in accordance with a law enacted by the Bangsamoro Parliament,

and subject to the approval by a majority of the votes cast in a plebiscite in

the political units directly affected. Subject to the criteria provided in said

law, the Bangsamoro Parliament may likewise create appropriate local

government units in the areas inhabited predominantly by indigenous

peoples;

However, when such acts require the creation of a congressional district, the

Bangsamoro Government shall cooperate and coordinate with Central

Government through the Philippine Congress – Bangsamoro Parliament

Forum to prioritize the deliberations on the creation of the congressional

district; and

Section 10. No province, city, municipality, or barangay may be created,

divided, merged, abolished, or its boundary substantially altered, except in

accordance with the criteria established in the local government code and

subject to approval by a majority of the votes cast in a plebiscite in the

political units directly affected.

Section 11. The Congress may, by law, create special metropolitan political

subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The

component cities and municipalities shall retain their basic autonomy and

shall be entitled to their own local executive and legislative assemblies. The

jurisdiction of the metropolitan authority that will thereby be created shall be

limited to basic services requiring coordination.

Art. VI, Sec. 5, par. 4: Within three years following the return of every

census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.


Only Congress is allowed to create and change

boundaries.

The cooperation required makes BP equal with NG.

(Philconsa)

Legislature can delegate this. What remains with

Congress is the apportionment of of legislative

districts.

LGUs allow alterations of barangays

Agabin & Tan –

There should be ratification by the larger units

(La Vina)


19

Issue: Exploration, development, and utilization of Natural Resources


Article XIII. ECONOMY AND PATRIMONY

Section 8. Natural Resources, Nature Reserves and Protected Areas.–

The Bangsamoro Government shall have the authority, power, and right to

explore, develop and utilize the natural resources, including surface and sub-

surface rights, inland waters, coastal waters, and renewable and non-

renewable resources in the Bangsamoro.

The protection, conservation, rehabilitation, and development of forests,

coastal, and marine resources, including the adoption of programs and

projects to ensure the maintenance of ecological balance, shall be given

priority.

X X X

Section 10. Exploration, Development, and Utilization of Fossil Fuels

and Uranium. - The Bangsamoro Government and the Central Government

shall jointly exercise the power to grant rights, privileges and concessions over

the exploration, development and utilization of fossil fuels (petroleum, natural

gas, and coal) and uranium in the Bangsamoro.

X X X

Section 13. Mines and Mineral Resources. – The Bangsamoro Government

shall have authority and jurisdiction over the exploration, development, and

utilization of mines and minerals in its territory. Permits and licenses and the

granting of contracts for this purpose shall be within the powers of the

Bangsamoro Government.

Section 14. Financial and Technical Assistance Agreements. - The

applications for financial and technical assistance agreements (FTAAs)

covering mineral resources within the Bangsamoro shall be commenced at and

recommended by the Bangsamoro Government to the President.

The manner by which the Bangsamoro Government shall make the

recommendation shall be in accordance with the mining policy that shall be

adopted by the Bangsamoro Parliament.

Section 17. Bangsamoro Mining Policy. - Policies on mining and other

extractive industries shall be drawn up by the Bangsamoro Parliament in

ARTICLE XII. NATIONAL ECONOMY AND PATRIMONY

Section 2. All lands of the public domain, waters, minerals, coal, petroleum,

and other mineral oils, all forces of potential energy, fisheries, forests or

timber, wildlife, flora and fauna, and other natural resources are owned by

the State. With the exception of agricultural lands, all other natural

resources shall not be alienated. The exploration, development, and

utilization of natural resources shall be under the full control and supervision

of the State. The State may directly undertake such activities, or it may

enter into co-production, joint venture, or production-sharing agreements

with Filipino citizens, or corporations or associations at least 60 per centum

of whose capital is owned by such citizens. Such agreements may be for a

period not exceeding twenty-five years, renewable for not more than

twenty-five years, and under such terms and conditions as may provided by

law. In cases of water rights for irrigation, water supply, fisheries, or

industrial uses other than the development of waterpower, beneficial use

may be the measure and limit of the grant.

The State shall protect the nations marine wealth in its archipelagic waters,

territorial sea, and exclusive economic zone, and reserve its use and

enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources

by Filipino citizens, as well as cooperative fish farming, with priority to

subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale exploration,

development, and utilization of minerals, petroleum, and other mineral oils

according to the general terms and conditions provided by law, based on real

contributions to the economic growth and general welfare of the country. In

such agreements, the State shall promote the development and use of local

scientific and technical resources.

The President shall notify the Congress of every contract entered into in

accordance with this provision, within thirty days from its execution.


20

accordance with its Comprehensive Sustainable Development Plan, as well as

its over-all medium-term and long-term Bangsamoro Development Plan.

Article V . POWERS OF GOVERNMENT

Section 3. Exclusive Powers. - Exclusive powers are matters over which

authority and jurisdiction shall pertain to the Bangsamoro Government. The

Bangsamoro Government shall exercise these powers over the following

matters within the Bangsamoro: 29. Ancestral domain and natural resources;


The BBL is contrary to the Constitution, which

provides that the exploration, development and

utilization of the natural resources shall be under the

“full control and supervision” of the NG … Further, in

violation of the constitutional provisios that the grant

of legislative powers to regional governments “shall

be subject to the provisions of national laws,” the Bill

gives the BG the power to amend the Philippine

Mining Act of 1995, among other national laws.

The BG cannot be given the power to determine the

mining policy in the regiona without allowing it the

power to amend the Constitution. Obviously this

cannot be done.


This neither violates the Regalian doctrine nor asserts

that the Philippine State no longer owns the natural

resources within the Bangsamoro Entity. As a

legitimate political subdivision of the Philippines, the

Bangsamoro Entity may be authorized to develop the

resources within its assigned territory. Further,

similar power has been granted by Congress to

indigenous peoples under the Indigenous Peoples

Rights Act.


Section 8 may be taken to be beyond the allowable

scope of the Constitution.

What may however be allowed members of the

Bangsamoro is the small scale utilization of natural

resources which may be granted to Filipino citizens.

Suggested revisions as follows:

Option 1:

Section 8. Natural Resources, Nature Reserves

and Protected Areas. – The Bangsamoro

Government shall have the legislative authority to

regulate the exploration, development and utilization


21

of natural resources, including surface and sub-

surface rights, inland waters, coastal waters, and

renewable and non-renewable resources in the

Bangsamoro. This shall be without prejudice to the

exercise of full control and supervision by the Central

Government of such exploration, development and

utilization. x x x

Option 2:

Section 8. Natural Resources, Nature Reserves

and Protected Areas. – The control and

supervision over the exploration, development and

utilization of natural resources, including surface

and sub-surface rights, inland waters, coastal

waters, and renewable and non-renewable

resources in the Bangsamoro is hereby delegated to

the Bangsamoro Government in accordance with

the Constitution and national laws. This shall be

without prejudice to the exercise of full control and

supervision by the Central Government of such

exploration, development and utilization. x x x


Natural resources belong to the State, together with

the full control of the exploration, development and

utilization. This is a designation of the people’s

ownership as their act of sovereignty, derived from

the premise that “all government authority emanates

from them.”

-- Merlin M. Magalona


22

Issue: Fiscal autonomy


Article XII. FISCAL AUTONOMY

Section 1. Fiscal Autonomy. – The Bangsamoro shall enjoy fiscal autonomy

with the end in view of attaining the highest form of economic self-sufficiency

and genuine development. It shall be entitled to all fund sources enumerated

herein, and shall have the power to create its sources of revenues as provided

in this law. It shall prepare its budget and shall allocate funds in accordance

with an annual appropriations law passed by the Bangsamoro Parliament. The

form, content, and manner of preparation of the budget shall be prescribed by

law enacted by the Bangsamoro Parliament.


Section 5. Each local government unit shall have the power to create its

own sources of revenues and to levy taxes, fees and charges subject to such

guidelines and limitations as the Congress may provide, consistent with the

basic policy of local autonomy. Such taxes, fees, and charges shall accrue

exclusively to the local governments.




1. Administrative organization;

2. Creation of sources of revenues;

X X X


Block Grant may be questioned in light of rulings on

the PDAF case.

To remove form the ambit of unconstitutionality:

1. Set a formula where it is fixed but the actual

amount may vary every year. The toatal

amount is determinable by automatic

application of the formula.

2. The purpose of the Block grant is set forth in

the BBL

3. Block Grant will be subject to the audit of

COA.


This is acceptable as there are no restrictions in the

Constitution to empowering an autonomous region to

raise its own revenues and levy its own taxes. Such

power is in fact explicitly granted to local government

units in article X, section 5 of the Constitution.

Further, nothing in the Constitution restricts sharing

of tax revenue with an autonomous region or local

government unit, which is described in the rest of the

BBL’s Article XII.

-- Pacifico A. Agabin; Oscar Franklin B. Tan

Issue: Appointment of Executive and Judicial Positions


Article VI. INTERGOVERNMENTAL RELATIONS

Section 9. Bangsamoro participation in Central Government. - It shall

be the policy of the Central Government to appoint competent and qualified

3.


23

inhabitants of the Bangsamoro in the following offices in the Central

Government: at least one (1) Cabinet Secretary; at least one (1) in each of

the other departments, offices and bureaus, holding executive, primarily

confidential, highly technical, policy-determining positions; and one (1)

Commissioner in each of the constitutional bodies.

The recommendations of the Bangsamoro Government shall be channeled

through the intergovernmental relations mechanisms.

Article X. BANGSAMORO JUSTICE SYSTEM

Justices from the Bangsamoro

Section 27. Justices from Bangsamoro. It shall be the policy of the Central

Government that at least one (1) justice in the Supreme Court and two (2)

justices in the Court of Appeals at any one time who shall be qualified

individuals of the Bangsamoro territory. For this purpose, the Chief Minister

may, after consultations with the Bangsamoro Parliament and the Shari’ah

Judicial and Bar Council, submit the names of qualified persons to the Judicial

and Bar Council for its consideration. The appointments of those

recommended by the Chief Minister to the judicial positions mentioned above

are without prejudice to appointments that may be extended to other qualified

inhabitants of the Bangsamoro to other positions in the Judiciary.


Only refers to a policy of the government and is

permissive in language, however it may appear to

amend the Consti provisions on Const Commission

and the Supreme Court.


This is acceptable because it is nonbinding policy

(albeit morally binding) and not a strict legal

requirement. Note that it is not possible to add

requirements for appointment to an office whose

requirements are set out in the Constitution, such as

a Supreme Court Justice or Commissioner of a

constitutional body.

-- Pacifico A. Agabin; Oscar B. Tan


24

Issue: Separation of Church and State - Creation of Wali.


Section 1. Titular Head of the Bangsamoro. - There shall be a Wali who

shall be the titular head of the Bangsamoro. As titular head, the Wali shall

take on only ceremonial functions.

The Wali, as part of the Bangsamoro Government, shall be under the general

supervision of the President.

Art. II, Sec. 6

Section 6. The separation of Church and State shall be inviolable.

Art. VI, Sec. 29

No public money or property shall be appropriated, applied, paid, or

employed, directly or indirectly, for the use, benefit, or support of any sect,

church, denomination, sectarian institution, or system of religion, or of any

priest, preacher, minister, other religious teacher, or dignitary as such,

except when such priest, preacher, minister, or dignitary is assigned to the

armed forces, or to any penal institution, or government orphanage or leprosarium.


Wali is a religious person.

(Philconsa)


25

Justice System

Issue: Supremacy of the Shari’ah law in the Justice System in the Bangsamoro


Section 1. Justice System in the Bangsamoro. - The justice system in the

Bangsamoro shall consist of Shari’ah law which shall have supremacy and

application over Muslims only; the traditional or tribal justice system, for

the indigenous peoples in the Bangsamoro; the local courts; and alternative

dispute resolution systems.

For Muslims, the justice system in the Bangsamoro shall give primary

consideration to Shari’ah, and customary rights and traditions of the

indigenous peoples in the Bangsamoro.

Nothing herein shall be construed to operate to the prejudice of non-

Muslims and non- indigenous peoples.

Section 23. Traditional/Tribal Justice Systems. – The Bangsamoro

Parliament shall enact laws to promote and support the traditional/tribal

justice systems that are appropriate for the indigenous peoples, as defined

by them. The traditional justice systems are the mechanisms to determine,

settle, and decide controversies and enforce decisions involving disputes

between members of the indigenous peoples concerned in accordance with

the tribal codes of these communities.

ART. X

Section 15. There shall be created autonomous regions in Muslim Mindanao

and in the Cordilleras consisting of provinces, cities, municipalities, and

geographical areas sharing common and distinctive historical and cultural

heritage, economic and social structures, and other relevant characteristics

within the framework of this Constitution and the national sovereignty as well

as territorial integrity of the Republic of the Philippines.

ART. XIV

Section 17. The State shall recognize, respect, and protect the rights of

indigenous cultural communities to preserve and develop their cultures,

traditions, and institutions. It shall consider these rights in the formulation of

national plans and policies.


While the recognition for IP rights appear to well-

provided for under the draft BBL, a matter of concern

may be raised as to whether these IPs have been duly

consulted with regard to the drafting and enactment of

the BBL. This concern was voiced by Justice Carpio in

his concurring opinion in the MOA-AD Case, which struck

down the previously negotiated MOA-AD as

unconstitutional. According to Justice Carpio, the

incorporation of the Lumads, an indigenous people in

Mindanao, as Bangsamoros in the MOA-AD, and the

transfer of their ancestral domains to the then

Bangsamoro Judicial Entity, without the Lumads’

knowledge and consent, violate the Constitutional

The Constitution itself permits and implicitly

contemplates what the draft (Bangsamoro Basic) Law

would establish—a legal system in the Bangsamoro that

is plural and particular in content, informed by universal

norms of justice and human rights and all these are

subject to the supremacy of the Constitution (refers to

Art. X, Sec. 15 and 20, and Art. XIV, Sec. 17) – DOJ

Sec. De Lima

http://www.gmanetwork.com/news/story/388607/news

/nation/de-lima-insists-on-constitutionality-of-justice-

system-under-bangsamoro-basic-law

http://www.gmanetwork.com/news/story/388607/news/nation/de-lima-insists-on-constitutionality-of-justice-system-under-bangsamoro-basic-law




26

guarantee that the “State recognizes and promotes the

rights of indigenous cultural communities within the

framework of national unity and development.– Dean

Antonio La Vina and Atty. Janice Lee

IPRA should remain effective, whether in present and

future jurisdiction.– Atty. Melanie Pimentel

Issue: Reserved Powers of the Central Government


Section 2. Shari’ah Justice System. – The Shari’ah Courts in the Bangsamoro

shall have jurisdiction over Shari’ah law enacted by the Bangsamoro

Parliament pertaining to persons and family relations, and other civil law

matters, commercial law, and criminal law.

There shall be cooperation and coordination with Central Government

regarding the Shari’ah justice system, through the different mechanisms as

herein provided.

ART. X

Section 16. The President shall exercise general supervision over






The Agreement reserves to the central government

the exercise of so-called ‘reserved powers,’ which are

described as powers ‘retained by the central

government.’ Thus, the Agreement diminishes the

sovereignty of the Philippine government by listing

what are the powers that the central government can

retain.– Sen. Miriam Defensor Santiago

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

bangsamoro-deal-illegal

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. – Prof. Miriam Coronel Ferrer

The power of the President over autonomous

regions is the same as his power over local

governments – only one of “general

supevision,” that is, the power to ensure that

subordinate officers execute and act within

existing laws. The Commission deliberately

dropped the phrase “as may be provided by

law” in order to deny to Congress the

authority to expand the nature of the power

of the President over autonomous regions

beyond general supervision. In effect,

therefore, and in the spirit of greater

autonomy, the provision also curtails the

power of Congress over autonomous regions.

– Fr. Joaquin Bernas, “The 1987 Constitution

of the Republic of the Philippines: A

Commentary”

Under the CAB and the BBL, it is the Bangsamoro

Government that establishes limitations to the power

The President does not have the power of control but

retains the power of supervision over the

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

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


27

of Congress. Beginning with the concept of reserved

powers, Congress may provide general or special

power or jurisdiction exercisable by the National

Government in relation with LGUs, including

autonomous regions. On account of the CAB and the

BBL, the Bangsamoro would be excluded from the

application of such national laws. Derogation of

national legislative power would necessarily be

implied or expressly provided if exercised within the

scope of concurrent powers and, in particular, within

the coverage of exclusive powers as exercised by the

Bangsamoro Parliament. – Prof. Merlin Magallona

Bangsamoro Entity, as required for an autonomous

region in the Constitution. - Atty. Pacifico Agabin and

Atty. Oscar Tan

Issue: Concurrent Legislative Powers of the Autonomous Regions with Congress


Section 3. Laws on Shari’ah. – The Bangsamoro Parliament shall enact laws

pertaining to persons and family relations, and other civil law matters,

commercial law, criminal law, including the definition of crimes and

prescription of penalties thereof. These laws on Shari’ah shall only be

applicable to Muslims. Criminal laws enacted by the Bangsamoro Parliament

shall be effective within the territory of the Bangsamoro and shall be in

accordance with the universally accepted principles and standards of human

rights.

ART. X

Section 18. The Congress shall enact an organic act for each autonomous

region with the assistance and participation of the regional consultative

commission composed of representatives appointed by the President from a

list of nominees from multisectoral bodies. The organic act shall define the

basic structure of government for the region consisting of the executive

department and legislative assembly, both of which shall be elective and

representative of the constituent political units. The organic acts shall

likewise provide for special courts with personal, family, and property law

jurisdiction consistent with the provisions of this Constitution and national

laws.

The creation of the autonomous region shall be effective when approved by

majority of the votes cast by the constituent units in a plebiscite called for

the purpose, provided that only provinces, cities, and geographic areas

voting favorably in such plebiscite shall be included in the autonomous

region.




(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;


28

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the

general welfare of the people of the region.


Under Section 20, Article XI of the Constitution, the

legislative powers of the autonomous region may only

extend to “personal, property, and family relations”,

among others. It does not encompass other civil law

matters, commercial law, and criminal law. Likewise,

Section 18 provides that the organic act for the

autonomous region, such as the BBL, shall provide

for special courts, but only with “personal, family,

and property law jurisdiction consistent with the

provisions of this Constitution and national laws”.

Again, such laws and court jurisdiction of the

autonomous region does not appear to extend to

other civil law matters, commercial law, and general

criminal law matters. Incidentally, any legislation by

the Bangsamoro Parliament in this regard may have

to be harmonized with the existing Code of Muslim

Personal Laws, or P.D. No. 1083. – Dean Antonio La

Vina and Atty. Janice Lee

This is acceptable because the Bangsamoro Entity’s

Shari’ah courts remain subject to the original powers

of the SC under the Constitution. The Constitution

explicitly provides: “The organic acts [of autonomous

regions] shall likewise provide for special courts with

perosnal, family, and property law jurisdiction

consistent with the provisions of the Constitution,

and national laws.” – Atty. Pacifico Agabin and Atty.

Oscar Tan

cf with Sec. 8, Art. VI of the draft BBL: The

draft BBL provides that the Bangsamoro

Parliament shall have the authority to enact

laws on matters that are within the powers

and competencies of the BG, or those which

are provided under its concurrent and

exclusive powers. As noted above, the powers

granted to the BG exceed those granted to

other LGUs; further, in view of the objective

of granting the Bangsamoro greater self-

determination and self-government, it is

possible that the laws passed by the

Bangsamoro parliament may overlap with, or

even conflict with, those of the CG. – Dean

Antonio La Vina and Atty. Janice Lee

The 1987 Constitution does not allow the organic act

to provide for special courts to have jurisdiction over

commercial and criminal cases. – Philippine

Constitution Association

In terms of the implementation of the Shari'ah Law in

the Bangsamoro, it will apply to Muslims only. The

Shari’ah courts would not cover non-Muslims as

regular courts would still exist in Bangsamoro.

- Atty. Mohammad Al-amin Julkipli

http://www.opapp.gov.ph/milf/news/public-urged-

reject-misinformation-bbl#sthash.uwFD9Kkv.dpuf

Conflicts can also arise in the application of

local laws. This can be particularly crucial in

the case of personal and property laws for

those belonging to autonomous regions but

acting outside the autonomous territory and

also or those who do not belong to

autonomous regions but are acting within

autonomous territory. As conflicts arise and

are recognized, Congress will be compelled to

re-examne national laws and to make sure

that they reflect the Constitution’s adherance

to local autonomy and, in concrete instances,

the SC may have to be dragged in to resolve

the conflicts. Out of these conflicts and the

http://www.opapp.gov.ph/milf/news/public-urged-reject-misinformation-bbl#sthash.uwFD9Kkv.dpuf



29

efforts to resolve them will arise a body of

internal conflict of laws doctrines. But it is

important that the underlying spirit which

should guide the resolution of conflicts is the

Constitution’s desire for genuine local

autonomy. - Fr. Joaquin Bernas, “The 1987

Constitution of the Republic of the

Philippines: A Commentary”

Issue: Exclusive Jusrisdiction of the Sharia’h Justice System in conflict with SC


Section 5. Shari’ah Circuit Courts. – The Shari’ah Circuit Court in the

Bangsamoro shall exercise exclusive original jurisdiction over the following

matters:

xxx

Section 6. Shari’ah District Courts. – The Shari’ah District Court in the

Bangsamoro shall exercise exclusive original jurisdiction over the following

matters:

Xxx

Section 7. Bangsamoro Shari’ah High Court. – There is hereby created

a Bangsamoro Shari’ah High Court. The Bangsamoro Shari’ah High

Court shall exercise exclusive original jurisdiction, whether or not in aid

of its appellate jurisdiction, over:

a. All petitions for mandamus, prohibition, injunction, certiorari,

habeas corpus, and all other auxiliary writs and processes, in aid of

its appellate jurisdiction; and

b. All actions for annulment of judgments of Shari’ah District Courts.

x x x

The decisions of the Shari'ah High Court shall be final and executory.

ART. VIII

Section 2. The Congress shall have the power to define, prescribe, and

apportion the jurisdiction of the various courts but may not deprive the

Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

No law shall be passed reorganizing the Judiciary when it undermines the

security of tenure of its Members.

Section 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other

public ministers and consuls, and over petitions for certiorari,

prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the

law or the Rules of Court may provide, final judgments and orders of lower

courts in:

(a) All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree, proclamation,

order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or

any penalty imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or

higher.

(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public

interest may require. Such temporary assignment shall not exceed six

months without the consent of the judge concerned.

(4) Order a change of venue or place of trial to avoid a miscarriage of

justice.


30

(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice, and procedure in all courts, the

admission to the practice of law, the integrated bar, and legal assistance to

the underprivileged. Such rules shall provide a simplified and inexpensive

procedure for the speedy disposition of cases, shall be uniform for all courts

of the same grade, and shall not diminish, increase, or modify substantive

rights. Rules of procedure of special courts and quasi-judicial bodies shall

remain effective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordance with

the Civil Service Law.


Article X provides for the establishment of Shari’ah

Circuit Courts, Shari’ah District Courts, and a Shari’ah

High Court. It will be necessary to consider as

amended the provisions of P.D. No. 1083, which also

provides for the establishment of Shari’ah courts.–

Dean Antonio La Vina and Atty. Janice Lee

The Supreme Court has the ultimate power of

reviewing all decisions by the Shari’ah courts in the

Bangsamoro as practiced now. There will be no

separate justice system in the Bangsamoro. In the

BBL, the special courts that are to be institutionalized

or strengthened therein shall all be part of the

singular Judiciary that remains to be under the

administration and control of the Supreme Court.

That is true for the Shari'ah Courts in the

Bangsamoro as well as the tribal/customary courts. -

Atty. Mohammad Al-amin Julkipli

http://www.opapp.gov.ph/milf/news/public-urged-

reject-misinformation-bbl#sthash.uwFD9Kkv.dpuf

This last provision (of Sec. 7) may be seen as

being unconstitutional for limiting the

jurisdiction of the Supreme Court provided

under Section 5, Article VIII of the 1987

Constitution, which jurisdiction Congress may

not amend under Section 2, Article VIII. In

order to avert any confusion, the provision

may be amended so as to appear not to

preclude the elevation of any case to the

Supreme Court.

Proposed revision:

Section 7. Bangsamoro Shari’ah High

Court. – There is hereby created a

Bangsamoro Shari’ah High Court. The

Bangsamoro Shari’ah High Court shall

exercise exclusive original jurisdiction,

whether or not in aid of its appellate

jurisdiction, over:

a. All petitions for mandamus,

prohibition, injunction, certiorari,

habeas corpus, and all other auxiliary

writs and processes, in aid of its

appellate jurisdiction; and

b. All actions for annulment of judgments

of Shari’ah District Courts.

x x x




31

The decisions of the Shari'ah High Court shall

be final and executory, without prejudice to

the power of judicial review of the

Supreme Court. (emphasis supplied)

- Dean Antonio La Vina

Shari’ah courts and the shari’a justice system are

under the “exclusive powers” of Bangsamoro. Now,

either shari’a courts – as at present – are part of the

integrated judiciary of the Republic of the Philippines

or they are not. If they are, then they are under the

administrative supervision of the SC. Sec. 6 of Art.

VIII cannot be clearer. “The Supreme Court shall

have administrative supervision over all courts and

the personnel thereof.” The exclusive power of

Bangsamoro over Shari’ah courts perforce takes them

out of the sphere of administrative supervision of the

SC. The Constitution does not allow two ‘exclusive’

authorities over the courts. In Office of Court

Administrator vs Judg Macarine, the SC

characteriezed its administrative authority of

supervision over lower courts inherent. But if the

draft Basic Law confers on Bangsamoro exclusive

power over Shari’a coruts, what room can there be

for administrative and disciplinary authority exercised

by the Higher Court? – Dean Ranhiio Aquino

The Supreme Court retains its ultimate power of

judicial review and administration of Shari’ah courts

and a Shari’ah bar in the Bangsamoro Entity. - Atty.

Pacifico Agabin and Atty. Oscar Tan

This contravenes Art. VIII, Secs. 2 and 5 of the 1987

Constitution as it deprives the SC of its minimum

appleate jurisdiction. Furthermore, providing that the

decisions of the Shari’ah High Court shall be final and

executory vests upon the Shari’ah Hight Court and

not the SC as provided in the 1987 Constitution. As a

consequence, the SC is deprived of its minimum

appellate jurisdiction over lower courts – which

includes the Shari’ah High Court for “there is only one

Supreme Court from whose decisions all other coruts

should take their bearings xxx The Supreme Court

[being] the final arbiter of any justiciable

controversy. - Philippine Constitution Association

Judicial Authority is not granted the Bangsamoro

Government. It remains with the Supreme Court

which is vested by the Philippine Constitution with

judicial power (Article VIII, Section 1, Philippine

Constitution). The Bangsamoro Basic Law, however,

envisions the creation of lower courts under the

control and supervision of the Supreme Court.

Moreover, all government actions, whether by the

Executive or the Legislative, can be brought to the

Supreme Court for settlement of actual controversies

or when there is grave abuse of discretion. Thus, the

structure of the separation of authorities in the

Bangsamoro guarantees that a system of checks and

balances is in place. - Chair Mohagher Iqbal during

Feb. 2, 2015 Senate Hearing


32

Issue: Recommendatory Authority to the National JBC


Section 10. Shari’ah Judicial and Bar Council. -The Shari’ah Judicial and Bar

Council shall recommend to the Judicial and Bar Council applicants for the

position of judges of Shari’ah District and Circuit Courts in the Bangsamoro

and the justices of the Shari’ah High Court. The Judicial and Bar Council shall

give utmost consideration to the Shar’iah Judicial and Bar Council nominees in

recommending appointees to the President. The President shall issue the

appointments within ninety (90) days from the submission by the Judicial and

Bar Council of the list.

ART. VIII

Section 8. (1) A Judicial and Bar Council is hereby created under the

supervision of the Supreme Court composed of the Chief Justice as ex

officio Chairman, the Secretary of Justice, and a representative of the

Congress as ex officio Members, a representative of the Integrated Bar, a

professor of law, a retired Member of the Supreme Court, and a

representative of the private sector.

(2) The regular members of the Council shall be appointed by the President

for a term of four years with the consent of the Commission on

Appointments. Of the Members first appointed, the representative of the

Integrated Bar shall serve for four years, the professor of law for three

years, the retired Justice for two years, and the representative of the private

sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the

Council and shall keep a record of its proceedings.

(4) The regular Members of the Council shall receive such emoluments as

may be determined by the Supreme Court. The Supreme Court shall provide

in its annual budget the appropriations for the Council.

(5) The Council shall have the principal function of recommending

appointees to the Judiciary. It may exercise such other functions and duties

as the Supreme Court may assign to it.

Section 9. The Members of the Supreme Court and judges of the lower

courts shall be appointed by the President from a list of at least three

nominees prepared by the Judicial and Bar Council for every vacancy. Such

appointments need no confirmation.

For the lower courts, the President shall issue the appointments within

ninety days from the submission of the list.


The creation of a Shari’ah JBC is repugnant to Art.

VIII, Sec. 8 of the 1987 Constitution which created

the JBC whose principal function is to recommend

appointees to the Judiciary. It takes away from the

JBC matters which are clearly within its constitutional

mandate. – Philippine Constitution Association

This is acceptable because reccomendatory authority

to the national Judicial and Bar Council does not

restrict its discretion. Note, further, there is no

religious test involved in the appointment of Shari’ah

bar, as non-Muslims with the requisite knowledge

would qualify. – Atty.Agabin and Atty. Oscar Tan


33

Issue: Appointment and Discipline of Shari’ah Court Personnel


Section 17. Appointment and Discipline of Shari’ah Court Personnel. The

Supreme Court shall appoint the Shari’ah court personnel, and shall have the

power of discipline over them. The Shari’ah Judicial and Bar Council shall

conduct investigations over erring personnel in Shari’ah courts in the

Bangsamoro, and submit the results of such investigation to the Supreme

Court for the latter’s action.

ART. VIII

Section 6. The Supreme Court shall have administrative supervision over all

courts and the personnel thereof.

Section 11. The members of the Supreme Court and Judgest of lower courts

shall hold office during good behavior until they reach the age of seventy

years or become incapacitated to discharge the duties of their office. The

Supreme Court en banc shall have the power to discipline judges of lower

courts, or order their dismissal by a vote of majority of the members who

actually took part in the deliberations on the issues in the case and voted

thereon.


While providing for the appointment and discipline of

Shari’ah court personnel, this provision fails to

address who has the power to discipline members or

order the dismissal of judges and justices of the

Shari’ah courts. Under Art. VIII, Sec. 11 of the 1987

Constituion, it is the SC en banc which has “the

power to discipline judgest of lower courts or order

their dismissal xxx” - Philippine Constitution

Association

The power of the SC to discipline judges of

inferior courts or to order their dismissal is

exclusive. It may not be vested in any other

body. Nor may Congress pass a law that

judges of lower courts are removable only by

impeachment. – Fr. Joaquin Bernas, “The

1987 Constitution of the Republic of the Philippines: A Commentary”

Issue: Appointment of 1 SC Justice and 2 CA Justices from the Bangsamoro Territory


Section 27. Justices from Bangsamoro. It shall be the policy of the Central

Government that at least one (1) justice in the Supreme Court and two (2)

justices in the Court of Appeals at any one time who shall be qualified

individuals of the Bangsamoro territory. For this purpose, the Chief Minister

may, after consultations with the Bangsamoro Parliament and the Shari’ah

Judicial and Bar Council, submit the names of qualified persons to the Judicial

and Bar Council for its consideration. The appointments of those

ART. VII

Section 16. The President shall nominate and, with the consent of the

Commission on Appointments, appoint the heads of the executive

departments, ambassadors, other public ministers and consuls, or officers of

the armed forces from the rank of colonel or naval captain, and other officers

whose appointments are vested in him in this Constitution. He shall also

appoint all other officers of the Government whose appointments are not


34

recommended by the Chief Minister to the judicial positions mentioned above

are without prejudice to appointments that may be extended to other qualified

inhabitants of the Bangsamoro to other positions in the Judiciary.

otherwise provided for by law, and those whom he may be authorized by law

to appoint. The Congress may, by law, vest the appointment of other officers

lower in rank in the President alone, in the courts, or in the heads of

departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess

of the Congress, whether voluntary or compulsory, but such appointments

shall be effective only until disapproved by the Commission on Appointments

or until the next adjournment of the Congress.

ART. VIII

Section 4. (1) The Supreme Court shall be composed of a Chief Justice and

fourteen Associate Justices. It may sit en banc or in its discretion, in division

of three, five, or seven Members. Any vacancy shall be filled within ninety

days from the occurrence thereof.


The provision undermines the presidential privilege of

appointment. - Prof. N. Bautista and Abu Hasiq

http://www.manilalivewire.com/2015/03/up-law-

expert-the-lies-of-the-bangsamoro-basic-law/

The President and other bodies such as the Judicial

and Bar Council and Commission on Appointments

retain their discretion in appointments whose

requirements are specified in the Constitution, as BBL

provisions dealing with such appointments are

interpreted as policy recommendations. - Atty.

Pacifico Agabin and Atty. Oscar Tan

Note that it is not possible to add

requirements for appointment to an office

whose requirements are set out in the

Constitution, such as a Supreme Court Justice

or Commissioner of a constitutional body. -

Atty. Pacifico Agabin and Atty. Oscar Tan

This is acceptable because it is nonbinding policy

(albeit morally binding) and not a strict legal

requirement. - Atty. Pacifico Agabin and Atty. Oscar

Tan

http://www.manilalivewire.com/2015/03/up-law-expert-the-lies-of-the-bangsamoro-basic-law/

http://www.manilalivewire.com/2015/03/up-law-expert-the-lies-of-the-bangsamoro-basic-law/


35

Constitutional Bodies

Issue: Powers of the Ombudsman


Article V, Sec. 2(8): The Bangsamoro Government shall have primary

disciplinary authority over its own officials and employees.

Article XI, Sec. 12: The Ombudsman and his deputies, as protectors of the

people, shall act promptly on complaints filed in any form or manner against

public officials or employees of the Government, or any subdivision, agency,

or instrumentality thereof, including government-owned or controlled

corporations, and shall in appropriate cases, notify the complainants of the

action and the result thereof.

Article XI, Sec. 13: The Office of the Ombudsman shall have the following

powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or

omission of any public official, employee, office or agency, when such act or

omission appears to be illegal, unjust, improper, or inefficient.

(3) Direct the officer concerned to take appropriate action against a public

official or employee at fault, and recommend his removal, suspension,

demotion, fine, censure, or prosecution, and ensure compliance therewith.


BBL diminishes the OMB’s constitutional power to

investigate any act or omission of any public official,

employee, office or agency, as it divests of the

Ombudsman’s power to investigate elective and

appointive officials of the Bangsamoro government.

The BBL should not be allowed to rise above the

Constitution as the fundamental law of the land. –

Ombudsman

The Ombudsman shall have the power to act on

erring Bangsamoro officials. - Senen Bacani

Issue: Appointment of Bangsamoro Commissioners


Article VI, Sec. 9: It shall be the policy of the Central Government to

appoint competent and qualified inhabitants of the Bangsamoro in the

following offices in the Central Government: …one (1) Commissioner in each of

the constitutional bodies.

Article IX (B), Section 1 (1): The civil service shall be administered by the

Civil Service Commission composed of a Chairman, and two Commissioners

who shall be natural-born citizens of the Philippines and, at the time of their

appointment, at least thirty-five years of age, with proven capacity for public

administration, and must not have been candidates for any elective position

in the elections immediately preceding their appointment.


36

Article IX (B)/(C)/(D), Section 1 (2): The Chairman and the

Commissioners shall be appointed by the President with the consent of the

Commission on Appointments…

Article IX (C), Section 1(1): There shall be a Commission on Elections

composed of Chairman and six Commissioners who shall be natural-born

citizens of the Philippines and, at the time of their appointment, at least

thirty-five years of age, holders of a college degree, and must not have been

candidates for any elective position in the immediately preceding elections.

However, a majority thereof, including the Chairman, shall be members of

the Philippine Bar who have been engaged in the practice of law for at least

ten years.

Article IX (D), Section 1(1): There shall be a Commission on Audit it

composed of a Chairman and two Commissioners, who shall be natural-born

citizens of the Philippines and, at the time of their appointment, at least

thirty-five years of age, certified public accountants with not less than ten

years of auditing experience, or members of the Philippine Bar who have

been engaged in the practice of law for at least ten years, and must not

have been candidates for any elective position in the elections immediately

preceding their appointment. At no time shall all Members of the

Commission belong to the same profession.


Under Sec. 9 of Article VI, it is required that one

Bangsamoro inhabitant be appointed to the position

of Commissioner in each of the Constitutional bodies.

This provision contravenes the constitutional right to

equal protection of the law. One slot is automatically

allotted to a Bangsamoro inhabitant, which situation

deprives other Filipino citizens of equal competence

from applying for such positions. – Ombudsman


37

Issue: Creation of a Bangsamoro Human Rights Commission


Article IX, Sec. 7: Bangsamoro Human Rights Commission – There is

hereby created a Bangsamoro Human Rights Commission, which shall be

independent and impartial, to ensure the promotion and protection of human

rights in the Bangsamoro. In the performance of its mandate, the Commission

may exercise among others, investigatory powers, prosecutorial powers, and

powers to compel attendance of witnesses and the production of evidence.

The Commission shall submit a report on its activities and performance at

least once a year to the Bangsamoro Parliament. Other state instrumentalities

in the Bangsamoro shall assist the Commission and ensure its independence,

impartiality, dignity, and effectiveness. The Commission shall have a

coordinative and complementary relationship with the national Commission on

Human Rights in carrying out its mandate.

Details pertaining to the establishment of the Commission, such as

membership of the Commission, terms of office, and competencies and

responsibilities, shall be provided by the Bangsamoro Parliament consistent

with the provisions of this Basic Law.

Article XIII, Sec. 17:

(1) There is hereby created an independent office called the Commission on

Human Rights.

(2) The Commission shall be composed of a Chairman and four Members

who must be natural-born citizens of the Philippines and a majority of whom

shall be members of the Bar. The term of office and other qualifications and

disabilities of the Members of the Commission shall be provided by law.

Section 18. The Commission on Human Rights shall have the following

powers and functions:

(1) Investigate, on its own or on complaint by any party, all forms of human

rights violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for

contempt for violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of

all persons within the Philippines, as well as Filipinos residing abroad, and

provide for preventive measures and legal aid services to the underprivileged

whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information

to enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human

rights and to provide for compensation to victims of violations of human

rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty

obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or

whose possession of documents or other evidence is necessary or convenient

to determine the truth in any investigation conducted by it or under its


38

authority;

(9) Request the assistance of any department, bureau, office, or agency in

the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

Article XIII, Section 19. The Congress may provide for other cases of

violations of human rights that should fall within the authority of the

Commission, taking into account its recommendations.


Under Sec. 7, Article IX, the Bangsamoro HRC is

given prosecutorial powers which the CH of the

Central Government does not possess. In this sense,

the Bangsamoro HRC is more powerful than the CHR.

The CHR is limited to the investigation of violations of

human rights as should be the BHRC which purports

to be a counterparty body. – Ombudsman

Constitution provides for the creation of but one CHR,

prescribes the qualifications of its members and sets

the powers and functions thereof.

The BHRC shall have a “coordinative and

complementary relationship with the national CHR.”

Does this indicate it will not be under the supervision

and control of the CHR and will exist and operate on

an equal plane with the CHR. The “coordinative and

complementary relationship” is an abstract, visionary,

and indefinite link or association. There are no

guidelines/yardstick to determine coordinative and

complementary relations.

– Philippine Constitution Association

The Bangsamoro HRC cannot prejudice the primarily

recommendatory functions of the NHRC and is

probably prudent given the special human rights

issues that may arise in the Bangsamoro Entity due

to its special demographics. (i.e. human rights

questions involving race and religion specific to the

Bangsamoro Entity’s unique demographics)

- Agabin and Tan


39

Issue: Creation of Bangsamoro Commission on Audit


Article V, Sec. 2(7): The Bangsamoro auditing body shall have auditing

responsibility over public funds utilized by the Bangsamoro, without prejudice

to the power, authority, and duty of the national Commission on Audit. The

Bangsamoro Government shall ensure transparency mechanisms consistent

with open government practices.

Article XII, Sec. 2: Auditing- All public funds of the Bangsamoro are subject

to auditing. For this purpose, a Bangsamoro Commission on Audit (BCA) is

hereby created. It shall have the power, authority, and duty to examine,

audit, and settle all accounts pertaining to the revenue and receipts of, and

expeditures or uses of funds and property, owned or held in trust by, or

pertaining to the public funds utilized by the Bangsamoro. The utilization of

the revenue generated by the Bangsamoro Government and block grants or

subsidies from foreign or domestic donors shall be subject to the auditing

rules and regulations of the Bangsamoro Government and to auditing by the

BCA auditors.

The BCA’s power, authority, and duty shall be without prejudice to the power,

authority, and duty of the Commission on Audit to examine, audit, and settle

all accounts, pertaining to the revenues and the use of funds and property

owned and held in trust by any government instrumentality, including GOCCs.

With due regard to the BCA’s responsibility to ensure the judicious use of

funds within the Bangsamoro, disbursement vouchers of the Bangsamoro

Government shall be submitted immediately to the BCA.

Article IX (D)

Section 2.

(1) The Commission on Audit shall have the power, authority, and duty to

examine, audit, and settle all accounts pertaining to the revenue and

receipts of, and expenditures or uses of funds and property, owned or held

in trust by, or pertaining to, the Government, or any of its subdivisions,

agencies, or instrumentalities, including government-owned or controlled

corporations with original charters, and on a post- audit basis:

(a) constitutional bodies, commissions and offices that have been granted

fiscal autonomy under this Constitution;

(b) autonomous state colleges and universities;

(c) other government-owned or controlled corporations and their

subsidiaries; and

(d) such non-governmental entities receiving subsidy or equity, directly or

indirectly, from or through the Government, which are required by law or the

granting institution to submit to such audit as a condition of subsidy or

equity.

However, where the internal control system of the audited agencies is

inadequate, the Commission may adopt such measures, including temporary

or special pre-audit, as are necessary and appropriate to correct the

deficiencies. It shall keep the general accounts of the Government and, for

such period as may be provided by law, preserve the vouchers and other

supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations

in this Article, to define the scope of its audit and examination, establish the

techniques and methods required therefor, and promulgate accounting and

auditing rules and regulations, including those for the prevention and

disallowance of irregular, unnecessary, excessive, extravagant, or

unconscionable expenditures, or uses of government funds and properties.


40

Section 3. No law shall be passed exempting any entity of the Government

or its subsidiary in any guise whatever, or any investment of public funds,

from the jurisdiction of the Commission on Audit.

Section 4. The Commission shall submit to the President and the Congress,

within the time fixed by law, an annual report covering the financial

condition and operation of the Government, its subdivisions, agencies, and

instrumentalities, including government-owned or controlled corporations,

and non-governmental entities subject to its audit, and recommend

measures necessary to improve their effectiveness and efficiency. It shall

submit such other reports as may be required by law.


The creation of and the power vested in the BCA may

raise constitutional and legal issues in regard to the

powers and functions of the COA. Section 2, Article

IX-D of the Constitution vests in COA the power,

authority, and duty examine audit and settle all

accounts of government or any of its political

subdivisions… Clearly, funds or property of the

Bangsamoro, being a political subdivision of the

Philippine Government are subject to audit by the

COA, and no other entity, as mandated by the 1987

Constitution - Commission on Audit / Philippine

Constitution Association

The COA retains its power to audit all government

bodies, including in the Bangsamoro Entity, as the

Bangsamoro Commission on Audit parallels (and

parallel audits are allowed in jurisprudence) but does

not replace the COA. – Agabin and Tan

To supplement the work of the Constitutional bodies

in the Bangsamoro 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 to replace in any manner whatsoever the powers

and authorities of these bodies. ¬Government

Panel Member Senen Bacani

Regarding the concurrent powers, these are the

functions which the Constitution has placed upon a

specific agency, and thus, may not be removed from

the Central Government. However, these may be

exercised concurrently with an autonomous region

such as the Bangsamoro. For example, auditing and

the civil service may not be removed from the

Central Government as the Constitution provides that

it is the COA and the CSC, respectively, which has

jurisdiction over these matters. But it may be

exercised concurrently. – La Vina and Lee (+)


41

The power to promulgate auditing rules and

regulations of the BCA is an exclusive power of the

Commission under Sec. 2(2), Article IX-D of the 1987

Constitution. - Commission on Audit

The provision of the constitution is clear that the COA

not only has the power and authority, but also the

duty to conduct audit.- Commission on Audit

The creation of the BCA and its conduct of audit, even

if without prejudice to the power/authority of the

COA, may result in different or opposing

positions/rules which could erode the credibility of

both audits. BBL does not infer that the COA may

modify, alter, or reverse audit decisions of the BCA. -

Commission on Audit

The submission of disbursement vouchers to the BCA

is not in consonance with Sec. 2(1), Article IX-D,

1987 Constitution, mandating this Commission to

keep the general accounts of the government and

preserve the vouchers and other supporting

documents pertaining thereto. - Commission on

Audit


42

Issue: Creation of Bangsamoro Civil Service Commission


Article V, Section 2(8): The Bangsamoro Government shall develop and

administer a professional civil service corps, to include the powers and

privileges on civil service matters provided in RA 9054, and without prejudice

to the power, authority, and duty of the national Civil Service Commission.

There is hereby created a Bangsamoro Civil Service office that shall develop

and administer a professional civil service corps, without prejudice to the

power, authority, and duty of the national Civil Service Commission. The

Bangsamoro Government shall enact a civil service law for this purpose. This

law shall govern the conduct of civil servants, the qualification for non-elective

positions, adopt the merit and fitness system, and protect civil service eligible

in various government positions, including government owned- and/or

controlled corporations with original charters, in the Bangsamoro. The

Bangsamoro Government shall have primary authority over its own officials

and employees.

Article XVI, Section 4:

The Bangsamoro Transition Authority may also enact a Bangsamoro Civil

Service Code, as provided in this Basic Law. IN the absence of the latter,

national civil service laws and regulations are primarily applicable in the

Bangsamoro.

Article IX (B)

Section 2.

(1) The civil service embraces all branches, subdivisions, instrumentalities,

and agencies of the Government, including government owned or controlled

corporations with original charters.

(2) Appoints in the civil service shall be made only according to merit and

fitness to be determined, as far as practicable, and, except to positions

which are policy- determining, primarily confidential, or highly technical, by

competitive examination.

(3) No officer or employee of the civil service shall be removed or suspended

except for cause provided by law.

(4) No officer or employee in the civil service shall engage, directly or

indirectly, in any electioneering or partisan political campaign.

(5) The right to self-organization shall not be denied to government

employees.

(6) Temporary employees of the Government shall be given such protection

as may be provided by law.

Section 3. The Civil Service Commission, as the central personnel agency of

the Government, shall establish a career service and adopt measures to

promote morale, efficiency, integrity, responsiveness, progressiveness, and

courtesy in the civil service. It shall strengthen the merit and rewards

system, integrate all human resources development programs for all levels

and ranks, and institutionalize a management climate conducive to public

accountability. It shall submit to the President and the Congress an annual

report on its personnel programs.


The Bangsamoro Civil Service Office should be under

the control and supervision of the Philippine Civil

Service Commission. – Civil Service Commission

Of either the national Civil Service or the Bangsamoro






The Bangsamoro Civil Service Law should be

in consonance with the provisions under the

Revised Administrative Code of 1987 as

operationalized through EO 292 as well as

other civil service law, rules, and regulations.


43

Civil Service can it be correctly asked: What is it to

do in view of the presence of the other? Art. IX-B,

Sec. 1 of the Constitution clearly contemplates a

unitary CSC. The draft Organic Law bifurcates the

civil service. So, will the BCS for instance, have the

authority to eliminate the distinction now in force

between the closed career service and the open

career service? Suppose it issues a MC re-defining

temporary and permanent service, how will the

confused civil servants deal with these differences? –

Fr. Aquino (San Beda)





Regarding the concurrent powers, these are the

functions which the Constitution has placed upon a

specific agency, and thus, may not be removed from

the Central Government. However, these may be

exercised concurrently with an autonomous region

such as the Bangsamoro. For example, auditing and

the civil service may not be removed from the

Central Government as the Constitution provides that

it is the COA and the CSC, respectively, which has

jurisdiction over these matters. But it may be

exercised concurrently. – La Vina and Lee (+)

In the disposition of personnel of the ARMM,

RA 6656 should be followed giving priority

preference to civil servants who have

permanent appointments in the placement

process, among others.

The authority of the BTA to create offices, and

organize during transition and the authority

of the BG to reorganize the bureaucracy upon

its constitution or any time thereafter should

be exercised pursuant to RA 6656 particularly

Sec.3 and 4 thereof.

- Civil Service Commission


44

Issue: Creation of Bangsamoro Electoral Office


Article VII

Section 9: The Bangsamoro Transition Authority shall enact the Bangsamoro

Electoral Code, which shall be correlated to national election laws, insofar as

these are consistent with this Basic Law. The Electoral system shall allow

democratic participation, ensure accountability of public officers primarily to

their constituents and encourage formation of genuinely principled political

parties.

There is hereby created a Bangsamoro Electoral Office which shall be a part of

the Commission on Elections and which shall perform the functions of the

Commission on Elections in the Bangsamoro. The Bangsamoro Parliament shall

submit a list of three recommendees to the President who shall choose and

appoint from among them the Director General, who shall head the Office. In

addition to enforcing national election laws in the Bangsamoro, the

Bangsamoro Electoral Office shall likewise implement the Bangsamoro

Electoral Code enacted by Parliament in the Bangsamoro and shall perform the

following functions:

1) Register and accredit regional political parties;

2) In relation to plebiscite for joining the Bangsamoro, receive

petitions/resolutions to join from geographic areas;

3) Schedule plebiscites for expansion;

4) Prepare rules and regulations for Bangsamoro elections and plebiscites,

for the promulgation of the COMELEC. All rules and regulations

governing elections and plebiscites shall emanate from the Bangsamoro

Electoral Office.

Section 10. The budget for the Bangsamoro Electoral Office shall be included

in the appropriations for the Commission on Elections.

Article IX (C)

Section 2.

The Commission on Elections shall exercise the following powers and

functions:

(1) Enforce and administer all laws and regulations relative to the conduct of

an election, plebiscite, initiative, referendum, and recall.

(5) Register, after sufficient publication, political parties, organizations, or

coalitions which, in addition to other requirements, must present their

platform or program of government


The Bangsamoro Electoral Office shall be a part of

the COMELEC and thus cannot supplant the latter and

presumably under its control and supervision. The

Bangsamoro Electoral Code shall be subsidiary to

national election laws.- Agabin and Tan


COMELEC Position Paper only raised issues

relating to the conduct of the plebiscite but

none on power sharing/creation of

Bangsamoro Electoral Office.


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Plebiscite

Issue: conduct of National Plebiscite


Article XV, Sec. 1. Establishment of the Bangsamoro. –

(1) The establishment of the Bangsamoro and the determination of the

Bangsamoro territory shall take effect upon ratification of this Basic Law by

majority of the votes cast in the following provinces, cities, and geographical

areas in a plebiscite conducted for the purpose:

a. The present geographical area of the Autonomous Region in Muslim

Mindanao (ARMM);

b. The Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and

Tangkal in the province of Lanao del Norte;

c. The following thirty nine (39) Barangays in the Municipalities of Kabacan,

Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap in North Cotabato that

voted for inclusion in the ARMM during the 2001 plebiscite under Republic

Act No. 9054:

i. Dunguan, Lower Mingading, and Tapodoc in the municipality of

Aleosan (3);

ii. Manarapan and Nasapian in the municipality of Carmen (2);

iii. Nanga-an, Simbuhay and Sanggadong in the municipality of

Kabacan (3);

iv. Damatulan, Kadigasan, Kadingilan, Kapinpilan, Kudarangan, Central

Labas, Malingao, Mudseng, Nabalawag, Olandang, Sambulawan, and

Tugal in the municipality of Midsayap (12); 88

v. Lower Baguer, Balacayon, Buricain, DatuBinasing, Kadingilan,

Matilac, Patot, and Lower Pangangkalan in the municipality of

Pigkawayan (8);

vi. Bagoinged, Balatican, S. Balong, S. Balongis, Batulawan, Buliok,

Gokoton, Kabasalan, Lagunde, Macabial, Macasendeng, in the

municipality of Pigkawayan (11)

d. The Cities of Cotabato and Isabela; and

Those qualified for inclusion in the plebiscite, by way of resolution or petition.

Article XVII, Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

1. The Congress, upon a vote of three-fourths of all its Members; or 2. A constitutional convention.

Article XVII, Sec. 2. Amendments to this Constitution may likewise be

directly proposed by the people through initiative upon a petition of at least

twelve per centum of the total number of registered voters, of which every

legislative district must be represented by at least three per centum of the

registered voters therein. No amendment under this section shall be

authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Article XVII, Sec. 3. The Congress may, by a vote of two-thirds of all its

Members, call a constitutional convention, or by a majority vote of all its

Members, submit to the electorate the question of calling such a convention.

Article XVII, Sec. 4. Any amendment to, or revision of, this Constitution

under Section 1 hereof shall be valid when ratified by a majority of the votes

cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a

majority of the votes cast in a plebiscite which shall be held not earlier than

sixty days nor later than ninety days after the certification by the

Commission on Elections of the sufficiency of the petition.


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If Bangsamoro is to be created as the prize for peace

in Mindanao, it must be by the will of the Filipino

people as a whole, not solely the will of the

Bangsamoro people living in the Bangsamoro

territory. And it must be by constitutional amendment

and not by an act of Congress.

Senator Guingona was asking whether the proposed

BBL cannot be considered a proposal to amend the

Constitution and this Congress sitting as a constituent

assembly to propose amendment to the Constitution

and to consider the voice of the people expressed in

some referenda in the provinces as sufficient. The

constituent power, considering the importance of the

subject must be exercised strictly in accordance with

the procedure of Article XVII which means that

Congress should sit together as a constituent

assembly and make a proposal.

We have got to follow the form and the procedure in

Article XVII if we are to pass these features of the bill

as proposals for a constitutional amendment or

revision. I think it will be a revision to be technical.

And then submit it to the people in a plebiscite within

a period from 60 to 90 days and all that is required in

order to amend or revise the Constitution. Short of

that, Madam Chairman, the BBL cannot be passed by

Congress either as a proposal to amend the

Constitution. –Justice Vicente V. Mendoza (26

January 2015 Senate Hearing, Committee on

Local Government Joint with the Committees on

Peace, Unification and Reconciliation; and

Constitutional Amendments and Revision of Codes)


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Issue: requirements of the Plebiscite establishing Bangsamoro


Article XV, Sec. 1. Establishment of the Bangsamoro. –

(1) The establishment of the Bangsamoro and the determination of the

Bangsamoro territory shall take effect upon ratification of this Basic Law by

majority of the votes cast in the following provinces, cities, and geographical

areas in a plebiscite conducted for the purpose:

e. The present geographical area of the Autonomous Region in Muslim

Mindanao (ARMM);

f. The Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and


g. The following thirty nine (39) Barangays in the Municipalities of Kabacan,



Act No. 9054:

i. Dunguan, Lower Mingading, and Tapodoc in the municipality of

Aleosan (3);

ii. Manarapan and Nasapian in the municipality of Carmen (2);

iii. Nanga-an, Simbuhay and Sanggadong in the municipality of

Kabacan (3);

iv. Damatulan, Kadigasan, Kadingilan, Kapinpilan, Kudarangan, Central



v. Lower Baguer, Balacayon, Buricain, DatuBinasing, Kadingilan,


Pigkawayan (8);

vi. Bagoinged, Balatican, S. Balong, S. Balongis, Batulawan, Buliok,



h. The Cities of Cotabato and Isabela; and

i. Those qualified for inclusion in the plebiscite, by way of resolution or

petition.

Article X, Sec. 10. No province, city, municipality, or barangay may be

created, divided, merged, abolished, or its boundary substantially altered,

except in accordance with the criteria established in the local government

code and subject to approval by a majority of the votes cast in a plebiscite in

the political units directly affected.

Article X, Sec. 18. The Congress shall enact an organic act for each

autonomous region with the assistance and participation of the regional

consultative commission composed of representatives appointed by the

President from a list of nominees from multi-sectoral bodies. The organic act

shall define the basic structure of government for the region consisting of

the executive department and legislative assembly, both of which shall be

elective and representative of the constituent political units. The organic acts

shall likewise provide for special courts with personal, family, and property

law jurisdiction consistent with the provisions of this Constitution and

national laws.





region.


[t]he draft BBL appears to require stricter numbers

than those under the Constitution for an LGU to

become part of the Bangsamoro. (footnote to the

preceding sentence: Note, however, that in Datu Kida

v. Senate of the Philippines (G.R. No. 196271, 18

October 2011), the Supreme Court struck down the

In this bill, for the first time, we recognize the spirit

of the provision that gives primacy to the consent of

the governed in determining their political status. By

allowing municipalities and barangays, not just

provinces and cities – to participate in the plebiscite,

we intend to right the wrong committed against

RA 7160 (Local Government Code of

1991), Sec. 10. Plebiscite Requirement. - No

creation, division, merger, abolition, or

substantial alteration of boundaries of local

government units shall take effect unless

approved by a majority of the votes cast in a


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provision in R.A. No. 9054 which provides that

“any amendment to the organic act must be

approved by the majority of votes cast in a

plebiscite”. It found that the enlargement of the

plebiscite requirement required under Section 18,

Article X of the Constitution to be excessive to

point of absurdity and, hence, a violation of the

Constitution.)

–Dean Antonio La Viña and Janice Lee

thephrase “geographical areas” when it was all but

rendered a mere surplusage in past legislations. –

Secretary Teresita Quintos Deles

plebiscite called for the purpose in the

political unit or units directly affected. Said

plebiscite shall be conducted by the

Commission on Elections (COMELEC) within

one hundred twenty (120) days from the date

of effectivity of the law or ordinance effecting

such action, unless said law or ordinance fixes

another date.

Issue: Barangays and Municipalities included in the plebiscite establishing Bangsamoro


Section 1. Establishment of the Bangsamoro. – (1) The establishment of

the Bangsamoro and the determination of the Bangsamoro territory shall take

effect upon ratification of this Basic Law by majority of the votes cast in the

following provinces, cities, and geographical areas in a plebiscite conducted for

the purpose:

xx

b. The Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and


c. The following thirty nine (39) Barangays in the Municipalities of Kabacan,



Act No. 9054:

a. Dunguan, Lower Mingading, and Tapodoc in the municipality of

Aleosan (3);

b. Manarapan and Nasapian in the municipality of Carmen (2);

c. Nanga-an, Simbuhay and Sanggadong in the municipality of

Kabacan (3);

d. Damatulan, Kadigasan, Kadingilan, Kapinpilan, Kudarangan, Central



e. Lower Baguer, Balacayon, Buricain, DatuBinasing, Kadingilan,


Pigkawayan (8);

f. Bagoinged, Balatican, S. Balong, S. Balongis, Batulawan, Buliok,







Article X, Sec. 18. The Congress shall enact an organic act for each

autonomous region with the assistance and participation of the regional

consultative commission composed of representatives appointed by the

President from a list of nominees from multi-sectoral bodies. The organic act

shall define the basic structure of government for the region consisting of

the executive department and legislative assembly, both of which shall be

elective and representative of the constituent political units. The organic acts

shall likewise provide for special courts with personal, family, and property

law jurisdiction consistent with the provisions of this Constitution and

national laws.





region.


50


xxx


[t]he scheme proposed under the draft BBL is unclear

as to whether the six (6) municipalities of Lanao

del Norte, and the thirty-nine (39) barangays in

North Cotabato, may independently vote to become

part of the Bangsamoro, even if the provinces or

cities to which they belong do not become part of

Bangsamoro.

– Dean Antonio La Viña and Janice Lee

In this bill, for the first time, we recognize the spirit

of the provision that gives primacy to the consent of

the governed in determining their political status. By

allowing municipalities and barangats, not just

provinces and cities – to participate in the

plebiscite,w e intend to right the wrong committed

against thephrase “geographical areas” when it was

all but rendered a mere surplusage in past

legislations. – Secretary Teresita Quintos Deles

RA 7160 (Local Government Code of

1991), Sec. 10. Plebiscite Requirement. - No

creation, division, merger, abolition, or

substantial alteration of boundaries of local

government units shall take effect unless

approved by a majority of the votes cast in a

plebiscite called for the purpose in the

political unit or units directly affected. Said

plebiscite shall be conducted by the

Commission on Elections (COMELEC) within

one hundred twenty (120) days from the date

of effectivity of the law or ordinance effecting

such action, unless said law or ordinance fixes

another date.

[i]t is likewise unclear whether, in the event that the

municipalities and barangays are allowed to be part

of the Bangsamoro without their provinces or cities,

these provinces or cities should likewise be allowed to

vote in the same plebiscite which may divorce the

said municipalities and barangays from them.

xxx

While the draft BBL provides that the barangays and

municipalities may vote in the plebiscite, it does not

provide that Lanao del Norte and North Cotabato, of

which they are part, must also vote.

In one recent case, (Umali v. Commission on

Elections, G.R. No. 203974, 22 April 2014) the

In view of the potential challenges to these

provisions, it is submitted that should the

draft BBL be enacted, Congress should

indicate strongly that these provisions is

separable

from the rest of the BBL, so as to preclude

any injunction on the continued

implementation of the rest of the law. – Dean

Antonio La Viña and Janice Lee


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Supreme Court ruled that the province to which

a local government unit belongs, and which the

latter seeks to leave, is a “directly affected” political

unit, must participate in the plebiscite.

Due to the significant impact in the political and

economic rights of the local government unit

involved, it was held that the political units “directly

affected” included the province to which the

component LGU belongs, which may, in this

context, include the barangays and municipalities

participating in the plebiscite. – Dean Antonio La

Viña and Janice Lee

Issue: Opt-in provision


Article III, Sec 2. Core Territory – The core territory of the Bangsamoro

shall be composed of:

xxxx

d) all other contiguous areas where there is resolution of the local government

unit or a petition of at least ten percent (10%) of the registered voters in the

area asking for their inclusion at least two months prior to the conduct of the

ratification of the Bangsamoro Basic Law and the process of delimitation of the

Bangsamoro.

Article III, Sec. 2. Core Territory – (d) all other contiguous areas where

there is resolution of the local government unit or a petition of at least ten

percent (10%) of the registered voters in the area asking for their inclusion at

least two months prior to the conduct of the ratification of the Bangsamoro

Basic Law and the process of delimitation of the Bangsamoro.

In order to ensure the widest acceptability of the Bangsamoro Basic Law in the

core areas above-mentioned, a popular ratification shall be conducted among

all the Bangsamoro within the areas for their adoption.

Article III, Sec 3. Contiguous Territory – The areas which are contiguous







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and outside the core territory may opt at anytime to be part of the territory

upon petition of at least ten percent (10%) of the registered voters and

approved by a majority of qualified votes cast in a plebiscite.

Article XV, Sec 3. Results of the Plebiscite. – (e) For 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 geographic area

asking for their inclusion at least two months prior to the conduct of the

ratification of the Bangsamoro Basic Law (BBL). If the majority of the

registered voters in each of these local government units vote in favor of the

Bangsamoro Basic Law (BBL), the respective local government units shall be

included in the Bangsamoro.

Article XV, Sec 4. Plebiscite for Joining the Bangsamoro. – Any local

government unit or geographic area outside the territorial jurisdiction of the

Bangsamoro, but which are contiguous to any of the component units of the

Bangsamoro, upon a verified petition for the conduct of a plebiscite of at least

ten percent (10%) of the registered voters, submitted to the Bangsamoro

Electoral Office. Provided that, the inclusion of said local government unit or

geographic area in the Bangsamoro shall be effective when approved by a

majority of the registered voters within that local government unit in the

plebiscite called for the purpose. Provided further that the schedule of the

plebiscite shall be determined by the COMELEC through the Bangsamoro

Electoral Office.


How do you actualize and conduct “popular

ratification’? Is popular ratification similar to

plebiscites?

Votes must be actually cast in a plebiscite and not

through popular ratification. – Philippine

Constitutional Association

This novel and unorthodox device or procedure to

further expand the Bangsamoro territory (referring to

Article III, Sec. 3 BBL) also violates Article X of the

Constitution and R.A. 7610 and its Rules and

Regulations. It is subject to ause and misuse and will

cause confusions in the implementation. This will be

a veritable seedbed for corruption and political

machinations. The mere expedient petition of at least


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10% of the registered voters and approved by the

majority of qualified voters cast in a plebiscite can

increase/expand the Bangsamoro territory with

undemocratic and unsound requirements and atypical

process. The use od exceptional and varied political

strategies and maneuvers is magnetic/attractive to

expand the Bangsamoro core territory. – Philippine

Constitutional Association

Summary of Issues and Arguments on the BBL

Documents

Transcript of Summary of Issues and Arguments on the BBL