LEGAL RESEARCH

Re: Bangsamoro Juridical Entity

Submitted by: 1st year- i SY 2008-2009 Bautista, Rianne Mae Espiritug, Adrian Gapuz, Golda Gonzales, Jenny Gonzales, Rossalie Lansang, Lea Joyce Ontog, Christopher Martin

Submitted to: Atty. Sarmiento Legal Research 4 September 2008

1

TABLE OF CONTENTS

PERTINENT PROVISIONS ABRIDGED CASE RESEARCH Facts Issue 1 Issue 2 Issue 3 Issue 4 LEGAL RESEACH Facts Issue 1- on Local Autonomy Issue 2- on Power of the Executive Issue 3- on Sovereignty Issue 40- on Constitutional Amendment APPENDIX A- BJE Memorandum of Agreement B- REPUBLIC ACT NO. 9504 also known as “The National Internal Revenue Act of 1997”

3 5 6 7 8 8 10 16 22 26 29 32 44

2

PERTINENT PROVISIONS

Article I on NATIONAL TERRITORY. 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. Section 1 ARTICLE II on DECLARATION OF PRINCIPLES AND STATE POLICY. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Section 25 ARTICLE II on DECLARATION OF PRINCIPLES AND STATE POLICIES. The State shall ensure the autonomy of local governments.

Section 21 ARTICLE VII on EXECUTIVE DEPARTMENT. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Section 1 Article X on LOCAL GOVERNMENT. 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 2 ARTICLE X. The territorial and political subdivisions shall enjoy local autonomy.

3

Section 15 of ARTICLE X. 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. Section 16 ARTICLE X. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Section 17 ARTICLE X. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Section 20 ARTICLE X. 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 (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

4

ABRIDGED CASE RESEARCH

FACTS: On February to December 2005, exploratory talks on ancestral domain were held, breakthrough on contentious issue of ancestral land achieved at peace talks in Malaysia between government and MILF rebels. On February 2006, talks resume in Malaysia, there was an agreement reached on ancestral domain. The Memorandum of Agreement on the Ancestral Domain (MOA-Ad BJE) grants an expanded Autonomous Region in Muslim Mindanao (ARMM) its own basic law, a system of governance that respond to the aspirations of the Bangsamoro people, and affixes its territory, an internal security force, a system of banking and finance, civil service, education and legislative institutions, full authority to develop and dispose of minerals and natural resources within its territory and free to enter into any economic cooperation and trade relations with foreign countries, provided that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines. As posted in the Philippine Daily Inquirer on August 17,2008, there were 9 dead, 22 wounded and 165,000 fled fighting as listed by the National Disaster Coordinating Council. On August 20, 2008, MILF declared all out war for the rebels were angered with the refusal of signing of the MOA-Ad BJE. Justice Secretary Raul Gonzalez said that the decision to review or restudy the MOA was reached on Tuesday night, August 19,2008 during a National Security Council meeting in the Palace, the second in a row after the MILF attacks in Lanao del Norte province on August 18,2008. MILF chief negotiator Mohagher Iqbal claimed that the only way to peace is to sign the MOA-Ad or a negotiated political settlement.

5

The hostilities arose due to the Supreme Court’s issuance of the temporary restraining order against the scheduled August 5, 2008 signing of the MOA-Ad in Kuala Lumpur due to the unconstitutionality on several petitions and said MOAAd was a tool to effectuate the charter change as proposed by the Arroyo administration which could lead to the reformation and modification of the form of government or even the extension of the tenure of the office of the President. An excerpt in the September 1, 2008 Philippine Daily Inquirer article, states the view of Esperon in not abandoning the peace talks with the MILF but emphasizing on conducting dialogues with communities, demobilization, disarmament and rehabilitation. This MOA was strongly objected by Senator Franklin Drilon as manifested in his petition on the ground of the unconstitutionality of said agreement and there was a clear and grave abuse of authority in negotiating, finalizing and agreeing to the terms of the MOA.

ISSUES and STAND:

(1) Does the BJE MOA violate the local autonomy doctrine?
YES. The Memorandum of Agreement (MOA) on the creation of the Bangsamoro Juridical Entity (BJE) violates the local autonomy doctrine for it relinquishes not only the administrative powers but as well as the sovereign power. The BJE MOA abuses the provision in Section 2 of Article X on Local Autonomy. BJE is not only empowered with authority and responsibility for land use, development, conservation and disposition of the natural resources within their homeland; 1 but as well as the power to revoke and repeal existing laws
1

Paragraph 1 on Resources, of The Memorandum of Agreement.

6

governing the said juridical entity2, the power to revoke existing agreements and contracts,3 the power to exercise police power provided it does not support any aggression against the Central Government, and the power to enter into international treaties.4 Paragraph 8 on “Governance” in the MOA further states that “the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of civil service, electoral, financial and banking, education, legislation, legal, and economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society the details of which shall be discussed in the negotiation of the comprehensive compact.”

(2) Does the President possess the mandate to approve the BJE MOA?
NO. The President, being the head of the Executive branch, is never omnipotent. The powers of the President to execute and enforce laws are still subject to limitations. This is expressly provided in Section 1 Article VII of the 1987 Costitution which states that, “The executive power shall be vested in the President of the Philippines.” The power of the executive is iterated in Section 17 of Article VII. The signing of the Memorandum of Agreement would be an encroachment in the exclusive authority of the Congress to enact policies as conferred by the Constitution. Herewith, the President does not have the authority to approve the Memorandum of Agreement as this would constitute an encroachment into the exclusive powers, competence and prerogative of Congress.
2 3

Ibid., Parag. 9 Ibid., Parag. 9. 4 Ibid., Parag 4.

7

(3) Does the BJE MOA violate the doctrine of Sovereignty?
YES. The Bangsamoro Juridical Entity- Memorandum of Agreement is a clear violation of Section 1 Article II of the 1987 Constitution whereby it is stipulated that, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Sovereignty is the exclusive right to have power over an area of governance, people, or oneself. Approval of the BJE MOA grants sovereignty to the Bangsamoro thereby making it unconstitutional. Sovereignty is inalienable and indivisible. Sovereignty cannot be relinquished by the State. Moreover, the Memorandum of Agreement informally and impliedly amends the Constitution. The territory of the Philippines as stipulated in Article I of our Constitution is being restructured and transferred. The territory defines us as a State is being changed by a new memorandum sought for the Bangsamoro Juridical Entity. It is clear in the MOA that the Bangsamoro is given the right, authority, jurisdiction, and responsibility over the natural resources, titles and other potential energy source of the Bangsamoro“historical land”.

(4) Is there a need for Constitutional Amendment subsequent to the signing of the BJE MOA?
NO. As mentioned in the Petition – In – Intervention filed by Franklin M. Drilon and Adel Abbas Tamano, “the express provision in the MOA calling for the 8

modification of the legal framework of the Republic of the Philippines and the admission by the Executive branch of the necessity of an act of Congress are already admissions that the terms and conditions of the MOA have no legal and constitutional basis.”5 As argued in the preceding issues, the BJE MOA is deemed unconstitutional for the violation, among others, of the Constitutional provisions i. e., Section 1 and Section 2 of Article X, Section 5 Article XII, and Section 6 Article XVI. If the Constitutional amendment were to push through, there would be a mockery of law and justice—whenever laws are deemed unconstitutional, the government would have to push for a Constitutional amendment only to give credence to the power of Congress in enacting laws.

LEGAL RESEARCH
FACTS:
5

G.R. No. 183591

9

Muslims in the Philippines make up 5 percent, or around 4 million, of the Philippines’ total population of 82 million. They are geographically concentrated in the islands of Mindanao and Sulu in the southern Philippines, where they constitute around 20 percent of the region’s population of more than 16 million

Illustration of the plausible effect of the MOA-Ad BJE

The Muslims’ historical claim on Mindanao and Sulu as their homeland predates the Spanish colonization of the Philippines that began with the arrival of General Legaspi in 1565. As early as the latter part of the thirteenth century, local Islamic communities and settlements of foreign Muslims were already thriving in Sulu. The first sultan of Sulu came to power around 1450; Sharif Kabunsuan, who founded the Maguindanao sultanate, came to Mindanao around 1515. Thus, long before the Spaniards consolidated their control over the northern part of the 10

Philippines, Islam was thriving in the southern islands, and the sultanates in Sulu and Maguindanao were already well organized. Trade and commerce by Muslim traders across the Malay regions and beyond were also flourishing. But American colonization succeeded in subjugating the Muslim south by 1914. Aijaz Ahmad has identified the factors behind the relatively swift success of the Americans in contrast to the repeated failures of the Spaniards: First, the balance of forces: the Americans had sophisticated weapons and the ability to concentrate forces across the archipelago effectively. Second, a new model of colonial administration: the Americans allotted considerable administrative powers to governments at the municipal and district levels, which clinched their allegiance to the colonial authority. Third, the demographic model of colonization: entire populations, for the most part landless and ambitious, were encouraged to migrate from the Visayas and Luzon to create Christian enclaves in overwhelmingly Moro areas—that is, on lands the Muslims claimed as their own. From 1968 to 1971, political organizations composed mostly of Moro students waged numerous campaigns for the recognition of the Moros’ right to selfdetermination as a people with a distinct history and identity. These movements culminated in the establishment of the Moro National Liberation Front (MNLF), headed by Nur Misuari, ment a professor at the University of the Philippines. The Tripoli Agreement embodied the general principles for autonomy and its institutional mechanism that would to be established. The details were to be discussed later by a mixed committee composed of the representatives of the government and the MNLF. The mixed committee met in Tripoli in February 1977 but no agreement on details of the autonomy was reached. The highest level of intervention was sought to save the negotiation which had to be terminated on March 3, 1977, the deadline provided for in the Tripoli Agreement. President Marcos and President Ghadaffi spoke together by telephone. Again, President Marcos sent his wife to Tripoli to meet President Ghadaffi and exchanges of cables between the two presidents followed.

11

The two presidents agreed that (1) a decision be issued by the President of the Philippines declaring autonomy in the thirteen provinces covered in the Tripoli Agreement; (2) a provisional government be formed with the participation of the MNLF and the inhabitants of the areas of autonomy; and (3) a referendum be held in the areas of autonomy concerning administrative arrangements. The GhadaffiMarcos agreement became the basis of the government to unilaterally implement the Tripoli Agreement which was strongly objected to by the MNLF. The negotiations was on a stalemate until President Marcos was removed from power during the EDSA I revolution.

After President Corazon C. Aquino assumed the presidency in 1986 the government initiated the revival of the talks. The President sent Aquilino Q. Pimentel and her brother in law Agapito A. Aquino to Jeddah to meet MNLF chairman Nur Misuari. The meeting that took place at the OIC headquarters resulted in the signing of the Jeddah Accord on January 3-4, 1987. The two panels agreed to continue discussion of the proposal for the grant of full autonomy (Jeddah Accord 1987). The negotiations were again on track but both parties were not able to reconcile their different proposals. The commission that drafted the 1987 constitution provided for the organization of autonomous regions for Muslim Mindanao and the Cordillera. With this constitutional mandate, President Aquino proceeded to establish the autonomous region known as the Autonomous Region for Muslim Mindanao (ARMM). It was under the presidency of Fidel V. Ramos, a former military general who succeeded President Aquino, that the final agreement between the government and the MNLF was reached. On September 2, 1996, in Manila, Ambassador Manuel T. Yan, Nur Misuari, Ali Alatas and Dr. Hamid Al-Ghabid, representing the government, MNLF, the OIC Committee of Six, and the OIC Secretariat, respectively, affixed their signatures to the agreement, which was the full implementation of the Tripoli Agreement of 1976 and embodied the totality of all

12

agreements, covenants and understanding between the government and the MNLF. Prior to the signing of the final agreement three rounds of talks were held in Tripoli and Jakarta with the active mediation of Indonesia. After President Gloria Macapagal-Arroyo assumed office, she sought the assistance of Malaysian Prime Minister Mahathir Mohammad and Indonesian President AbdulRahman Wahid to convince the MILF to go back to the negotiation table. Prime Minister Mahathir sent his top aides to talk to MILF chairman Salamat Hashim. After series of trips by the Malaysian emissaries to the Islamic Center in Camp Rajamuda, Salamat agreed to resume talks with the government and sent his top deputy, Al-Haj Murad Ebrahim, the MILF Vice Chairman for Military Affairs and Chief of Staff of the Bangsamoro Islamic Armed Forces (BIAF), to Kuala Lumpur to meet the Philippine Presidential Adviser on the Peace Process Eduardo Ermita. The Murad-Ermita agreement provided for the resumption of the peace negotiations to “continue the same from where it had stopped before April 27, 2000 until they shall have reached a negotiated political settlement of the Bangsamoro problem. Tripoli was chosen as the venue for the resumption of the negotiations. The meeting on June 19–22, 2001 resulted in the signing of the Agreement on Peace Between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front, otherwise known as the Tripoli Agreement on Peace of 2001.

The agreement called for the discussion of three issues: 1) security (ceasefire); 2) rehabilitation and development of conflict-affected areas; and 3) ancestral domain. The agreement recognized the distinct identity of the Bangsamoro as a people occupying a definite territory, referred to in the document as the Bangsamoro homeland, and the inherent right of the Bangsamoro people over their ancestral domain. It also acknowledged the fundamental right of the Bangsamoro people to determine their future and political status, and that,

13

therefore, the problem was political in nature that needed a comprehensive, just and lasting political settlement through negotiations, and that negotiations and peaceful resolution of the conflict should involve consultations with the Bangsamoro people free of any imposition. The agreement allowed the evacuees to be awarded reparations for their properties lost or destroyed by reason of the conflict. While previous agreements did not mention the participation of the OIC, this time the MILF and the GRP wanted that it acted as observer and monitor implementation of all agreements, not just the ceasefire agreement.

The second round of the resumed talks in Kuala Lumpur focused on the implementing guidelines of the ceasefire. At the end of the meeting of the peace panels, agreement on the Implementing Guidelines for the Security Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 was signed on August 7, 2001 at Putrajaya, Malaysia. The third round was supposed to tackle the issue of the rehabilitation of refugees and development of conflict-affected areas, but the two panels could not agree on the details. Malacañang announced that the negotiations would still continue through the back channel with Secretary Norberto Gonzales, the Presidential Assistant on Special Concerns, in charge of the part of the government. The talks resumed on May 7, 2002 at Putrajaya, Malaysia after months of back channel contacts. Instead of the Dureza panel representing the government, Secretary Norberto Gonzales and Secretary Eduardo Ermita were in Kuala Lumpur talking to the MILF. They signed the version of the agreement that Secretary Dureza had refused to sign. The agreement reached by the two parties provided for the respect of human rights and observance of international humanitarian laws. It authorized the MILF to determine, lead and manage rehabilitation and development projects through a

14

project implementing body that it would organize. The agreement also provided that the GRP would provide reparations for properties lost in the conflict.

On February to December 2005, exploratory talks on ancestral domain were held, breakthrough on contentious issue of ancestral land achieved at peace talks in Malaysia between government and MILF rebels. On February 2006, talks resume in Malaysia, there was an agreement reached on ancestral domain. The Memorandum of Agreement on the Ancestral Domain (MOA-Ad BJE) grants an expanded Autonomous Region in Muslim Mindanao (ARMM) its own basic law, a system of governance that respond to the aspirations of the Bangsamoro people, and affixes its territory, an internal security force, a system of banking and finance, civil service, education and legislative institutions, full authority to develop and dispose of minerals and natural resources within its territory and free to enter into any economic cooperation and trade relations with foreign countries, provided that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines. It is based on the agreement for general cessation of hostilities, Tripoli peace agreement 2001, Republic Act No. 6734, as amended by R.A. 9054 which provided for the basic structure of government within the framework of the Constitution and national sovereignty and the territorial integrity of the Republic of the Philippines, ILO Convention No. 169 with respect to Indigenous and Tribal People of Independent Countries and Compact rights entrenchment emanating from the regime of dar-ulmua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device.

Senator Franklin Drilon raised arguments with respect to his disapproval of the MOA-Ad BJE for the reason that the MOA infringes constitutional provisions such as the separation of powers, contrary to law and other related matters.

15

ISSUE 1 Does the BJE MOA violate the local autonomy doctrine?

YES. The Memorandum of Agreement (MOA) on the creation of the Bangsamoro Juridical Entity (BJE) violates the local autonomy doctrine for it relinquishes not only the administrative powers but as well as the sovereign power. To distinguish between BJE and MOA, the former is a system of governance that shall be entrenched in the Bangsamoro ancestral domain (land, sea and air) after the signing of the Comprehensive Peace Compact and Charter change; and the MOA is document that provides the framework and principles of the BJE.6 Appendix A provides a copy of the said Memorandum of Agreement. In order to look into the matter with ease, it is but noteworthy to define local autonomy and distinguish the forms of autonomy. In Limbona vs. Magelin7, autonomy is either decentralization of administration or decentralization of power. Decentralization of administration “delegates administrative powers to political subdivision in order to broaden the base of government power and to make local
6

Mercado, Jun. “Bangsamoro Juridical Entity”. Retrieved August 25, 2008, from http://blogs.gmanews.tv/jun-mercado/archives/19-Bangsamoro-Juridical-Entity.html.
7

170 SCRA 52 (1991).

16

governments more responsive and accountable and to ensure their fullest development as self-reliant communities. This is to make the local governments more effective partners in the pursuit of national development and social progress.” With this form of decentralization, the President is able to focus in national affairs. The President cannot replace the decisions of local government units. The President thereby acts as an overseer for the efficient implementation of laws and ordinances in the local units. On the other hand, decentralization of power involves the abdication of political power in favor of the local autonomous units declared to be autonomous.8 An example of this is the Autonomous Region of Muslim Mindanao where it is granted the power to manage its affairs with minimal supervision from the central government. In the words of the Supreme Court in the Limbona case, autonomous regions are “free to chart their own destiny”. Given that the central authority exercises minimal supervision in the two forms of decentralization, where do they differ then? Article X of the 1987 Constitution clearly puts the delineation. Decentralization of administration applies to the local government units (LGU), which would include the provinces, cities, municipalities, barangays, and other political subdivision as may be created by law.9 In the Local Government Code of the Philippines, the LGU shall have an effective allocation of powers, functions, responsibilities and resources,10 an accountable and dynamic organizational structure,11 an appropriate appointing authority.12 The LGU is also granted the power to create and broaden its own sources of revenue, and is also granted the right to a just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within
8 9

Ibid. Section 4 on Scope and Application of the Local Government Code of the Philippines. 10 Paragraph 1 Section 3 on Operative Principles of Decentralization, Local Government Code. 11 Ibid., Parag. 2. 12 Ibid., Parag. 3.

17

their respective areas.13 The power of the LGU includes all powers that are implied therewith for the better administration of the respective jurisdictions. 14 Decentralization of powers, although applied in the case of autonomous regions, basically grants the same powers as that which the Local Government Code provides. However, autonomous regions—ARMM and the Cordillera Autonomous Regions--15 are granted the power to administer and exercise legislative powers.
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 (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Nevertheless, the grant of such legislative powers to the autonomous regions neither eliminates the close supervision of the Central Government; nor it implies the giving of absolute power to administer.
Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

13 14

Ibid., Parag. 4. Ibid., Parag. 2 Section 16 on General Welfare. 15 Section 1 Article X of the 1987 Constitution.

18

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.

The point of the matter is: Provided that the BJE comes within the purview of that which the Constitution could grant powers to, the Memorandum of Agreement for the creation of the Bangsamoro Juridical Entity clearly violates the doctrine of local autonomy because it awards powers way beyond what the Constitution could grant. Primarily, in the arguments hereinafter follow, we hold the assumption that the violation of the local autonomy doctrine is tenable because the “juridical entity” comes within the purview of Section 1 of Article X on Local Government. We do not contest herewith the concept of “juridical entity” for it will be dealt more in the succeeding pages. Ceteris paribus, we look into the stipulations of the MOA and prove its violation of the local autonomy doctrine. Secondly, we argue that the MOA includes powers that explicitly surrenders the territorial integrity of the State, ownership and use of natural resources, and the conduct of diplomatic and trade relations. 16 Article 1 of the Constitution provides for The Territory of the Philippines, while the BJE claims authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral history. 17 The Government of the Republic of the Philippines (GRP) agrees that the Bangsamoro has the right to selfgovernance provided for by the ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. 18 Clearly, recognizing the ancestral territory of the Bangsamoro and giving them the jurisdiction and authority to govern themselves is tantamount to giving them the
16 17

Drilon vs. GRP Peace Panel, G.R. No. 183591. Paragraph 6 on Concepts and Principles of The MOA. 18 Ibid., Parag. 4.

19

ownership of Mindanao, particularly territories that the Bangsamoro assert as theirs. This should never be the case. Doing so would create a state within a state. In the words of Joaquin Bernas as quoted in the case of Drilon vs. GRP Peace Panel19, the Philippines is a unitary form of government and there cannot be an imperium in imperio. “Local governments can only be an intra sovereign subdivision of one sovereign nation.” Moreover, the BJE is NOT ONLY empowered with authority and responsibility for land use, development, conservation and disposition of the natural resources within their homeland;
20

BUT AS WELL AS the power to revoke and repeal

existing laws governing the said juridical entity21, the power to revoke existing agreements and contracts,22 the power to exercise police power provided it does not support any aggression against the Central Government, and the power to enter into international treaties.23 Paragraph 8 on “Governance” in the MOA further states that “the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of civil service, electoral, financial and banking, education, legislation, legal, and economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society the details of which shall be discussed in the negotiation of the comprehensive compact.” As once again quoted by Joaquin Bernas, one of the drafters of the Constitution,
“Autonomous regions do not have jurisdiction over national defense and security, foreign relations and foreign trade, customs and tariff,
19

Drilon vs. GRP Peace Panel, G.R. No. 183591.

20 21

Paragraph 1 on Resources, of The MOA. Ibid, Parag. 9. 22 Ibid. 23 Ibid, Parag. 4.

20

quarantine, currency, monetary affairs, foreign exchange, banking and quasi-banking, external borrowing, posts and communications, air and sea transport, immigration and
24

deportation,

citizenship

and

naturalization and general auditing.”

In comparison of the MOA provision and the contemporary construction given the creation of autonomous regions, we can see the overlapping. This intent or construction of Bernas being a stringent rule to secure the sovereignty of the State, the BJE is hence a clear violation of the local autonomy granted the territorial and political subdivisions of the Republic of the Philippines. More over, the BJE MOA violates the definition of autonomy provided in Limbona vs. Magelin. Accordingly, autonomy “delegates administrative powers to political subdivision in order to broaden the base of government power and to make local governments more responsive and accountable and to ensure their fullest development as self-reliant communities. This is to make the local governments more effective partners in the pursuit of national development and social progress.” How can the Central Government assure accountability of the BJE when it has already relinquished its administrative and sovereign power? For the meantime, we cannot discuss the solution to this matter because the solution would involve a thorough discussion on the amendment of the Constitution and a revision of the form of government of the Philippines. We nevertheless maintain that when a law is violative of the Constitution, we uphold the supremacy of the fundamental law of the Land. The BJE MOA violates the doctrine of local autonomy, hence, it has no room for application

24

I BERNAS, Joaquin G., Constitutional Structure and Powers of Government: Notes and Cases, 810 (2nd ed., 1997) in Drilon vs. GRP Peace Panel, G.R. No. 183591.

21

ISSUE 2 Does the President possess the mandate to approve the BJE MOA?

No. The President in approving the Memorandum of Agreement on Bangsamoro Juridical Entity exceeded her authority, acted beyond her jurisdiction, and violated the Doctrine of Separation of Powers. Under the separation of powers doctrine, the powers of the government are distributed among three branches—the executive, legislative and judiciary. In Angara vs. Electoral Commission25 and People vs. Vera,26 the branches of government are separate from, yet coordinate and co-equal.27 Furthermore, while these branches of the government are considered co-equals, the relationship that exists between them is primarily characterized by independence and separation of powers, presupposing mutual respect by and between them.28 In United States vs. Tang Ho,29 it is held that it is the duty of the Legislature to make the law, it is the duty of the Executive to execute law, and it is the duty of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law.
63 Phil. 139, 158, (1936). 65 Phil 56 (1937). 27 Ibid. 28 In Re: Wenceslao Laureta, G.R. No. 68635, March 12, 1987, 148 SCRA 382, 420. 29 43 Phil. 1 (1922).
25 26

22

Bengzon vs. Drilon30stipulating on the separation of powers, it is said that the Congress, the President, and the Judiciary may not encroach on fields allocated to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies. In the abovementioned cases together with a number of cases not mentioned herewith, it is clear and evident that the Honorable Court has consistently expressed that the main concern of the Doctrine of Separation of Powers is to make certain that no branch of the government encroaches upon or interferes with the other branch that is acting within its constitutional competence. In the case at bar, the President, being the head of the Executive branch, is never omnipotent. The powers of the President to execute and enforce laws are still subject to limitations. This is expressly provided in Section 1 Article VII of the 1987 Costitution which states that, “The executive power shall be vested in the President of the Philippines.” The power of the executive is iterated in Section 17 of Article VII stating that “The president shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.” Among the powers vested to the President of the Philippines is the power to execute contracts as provided in Executive Order 292 also known as the Administrative Code of 1987. Chapter 12 Section 51 of the said code states that, “(1)Contracts in behalf of the Philippines shall be executed by the President unless authority thereof is expressly vested by law or by him in any other public officer; and (2) contracts in behalf of the political subdivisions and corporate agencies or instrumentalities shall be approved by their respective governing boards or councils and executed by their respective executive heads.” The 1987
30

G.R. No. 103524, April 15, 1992, 208 SCRA 133.

23

Constitution has also granted the President such power subject to limitation under Article 7 section 21 wherein it states that, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” Based on the foregoing articles, it can be surmised that the executive department headed by the President has the power to enter into a contract on behalf of the State and that such power may be delegated to its political subdivisions and corporate agencies. However, in the case at hand, certain limitations in the Constitution are bypassed by the BJE Memorandum of Agreement. This therefore makes the agreement unconstitutional and beyond the jurisdiction of the executive department. The President agreeing with the provisions in the MOA acted beyond its power. Under Section 11 Article 10 of the 1987 Constitution:
“The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof (Article 10 of the 1987 Constitution). 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.”

Section 18 of the same Article states that:
“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.”

24

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.”

It is clear from the foregoing provisions that the Congress has the power or jurisdiction over the said agreement because such agreement entails the creation of an entity. The President, in both cases, is only vested with the power of supervision as stated in the 1987 Constitution under Article 10 Sections 4 and 16 as herein presented:
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. Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

Such power of the Congress is further elaborated in the Local Government Code under Section 6 of Chapter 2. The signing of the Memorandum of Agreement would be an encroachment in the exclusive authority of the Congress to enact policies as conferred by the Constitution. Herewith, the President does not have the authority to approve the Memorandum of Agreement as this would constitute an encroachment into the exclusive powers, competence and prerogative of Congress. 31

ISSUE 3
31

G.R. No. 183591

25

Does the BJE MOA violate the doctrine of Sovereignty?

YES. The Bangsamoro Juridical Entity- Memorandum of Agreement is a clear violation of Section 1 Article II of the 1987 Constitution whereby it is stipulated that, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Sovereignty is the exclusive right to have power over an area of governance, people, or oneself. Approval of the BJE MOA grants sovereignty to the Bangsamoro thereby making it unconstitutional. Sovereignty is inalienable and indivisible. Sovereignty cannot be relinquished by the State. Herewith are the main provisions laid down in the Memorandum of Agreement:
“It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.” “Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of

26

native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.” “The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region. However, delimitations are contained in the agreed Schedules (Categories).”32 “Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral history, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.”33

With the above provisions, it is but clear that the Memorandum of Agreement informally and impliedly amends the Constitution. The territory of the Philippines as stipulated in Article I of our Constitution is being restructured and transferred. The territory defines us as a State is being changed by a new memorandum sought for the Bangsamoro Juridical Entity. It is clear in the MOA that the Bangsamoro is given the right, authority, jurisdiction, and responsibility over the natural resources, titles and other potential energy source of the Bangsamoro“historical land”. Moreover, the diplomatic and trade relation that is a primary duty exercised by a State is being relinquished in favor of the Bangsamoro. “The Bangsamoro juridical entity is free to enter into any economic cooperation
and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the
32 33

Bangsamoro Judicial Entity Memorandum of Agreement Ibid.

27

Government of the Republic of the Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction, XXX”34

The BJE violates not only the doctrine of sovereignty but moreover the doctrine on local autonomy and the separation of powers. These two main issues are given light in the other sections of this research. To sum up, if the MOA were signed, the BJE would neither be an independent nor a full-fledged state. Given “shared authority and responsibility,” it may be safer to refer to it as a “semi-state” or “quasi-state.” 35Being sub-national in its territory, we might also call it a “sub-state.” This might jibe with the general notion that free associated states are usually smaller minor partners to larger major partners, e.g. an existing independent State or the former colonial power. But again, the terms of the free association agreed upon can provide for a more equitable relationship between peoples or nations which are ideally sovereign equals. The MOA-AD seems to be going in this direction, which is just as well for redressing historical grievances and imbalances. Perhaps, a best effort at an “associative relationship” should be made and be given a chance — before all concerned consider other options. For the meantime, the BJE Memorandum of Agreement is not only unconstitutional but a blanket of vague ideals—a document which intends to end the peace conflict in Mindanao and a document which renders an abstract and unconstitutional solution.

ISSUE 4

34 35

Ibid. The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996.

28

Is there a need for Constitutional Amendment subsequent to the signing of the BJE MOA?

NO As mentioned in the Petition – In – Intervention filed by Franklin M. Drilon and Adel Abbas Tamano, “the express provision in the MOA calling for the modification of the legal framework of the Republic of the Philippines and the admission by the Executive branch of the necessity of an act of Congress are already admissions that the terms and conditions of the MOA have no legal and constitutional basis.”36 The Constitution, being the fundamental law of the land, should be the basis of all the acts, agreements, statutes or provisions that would be enacted, and not the other way around. As argued in the preceding issues, the BJE MOA is deemed unconstitutional for the violation, among others, of the following provisions:
Section 1, Article X of the 1987 Constitution: 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 2, Article X: The territorial and political subdivisions shall enjoy local autonomy. Section 5, Article XII: The State, subject to the provisions of this Constitution and national development policies and programs, shall
36

G.R. No. 183591

29

protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. Section 6, Article XVI: The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

If the Constitutional amendment were to push through, there would be a mockery of law and justice—whenever laws are deemed unconstitutional, the government would have to push for a Constitutional amendment only to give credence to the power of Congress in enacting laws. We live in a world where the absolute right and absolute wrong are inexistent. Even the Congress that is vested with the power to make laws does not exercise an infallible power. Like the other branches of government, the Congress need be checked and there are times when it need be corrected. The same is true with the Executive. In connection thereto, The BJE MOA being highly endorsed by the President is not equipped with the power to eliminate Judicial and Legislative review. Well in fact, it need be reviewed and revised to further its consistency with the Constitution. The BJE MOA need be reviewed and revised for it to be consistent with the Constitution; and not change the Constitution for it to be consistent with the Memorandum of Agreement. The Constitution is the highest law of the land and all laws should emanate from it. Changing the Constitution to comply with the BJE MOA that violates the basic laws of the land is ABSURD.

30

APPENDIX A
INITIAL MEMORANDUM OF AGREEMENT Re: BANGSAMORO JURIDICAL ENTITY

CONCEPTS AND PRINCIPLES

31

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. 2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants. 3. Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions. 4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic

32

homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.

The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as distinct dominant people. 5. Both Parties affirm their commitment to mutually respect the right to one’s identity and the parity of esteem of everyone in the political community. The protection of civil rights and religious liberties of individuals underlie the basis of peace and justice of their totality of relationships. 6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral history, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein. 7. Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources. TERRITORY 1. The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. However, delimitations are contained in the agreed Schedules (Categories). 2. Toward this end, the Parties entered into the following stipulations: a. The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) as the Parties to this Agreement commit themselves to the full and mutual implementation of this framework agreement on territory with the

33

aim of resolving outstanding issues that emanate from the consensus points on Ancestral Domain. b. The Parties confirm their understanding that the mutual goal of reaching an agreement on Bangsamoro territory specific to mapping the outlying borders and the boundaries affecting local government units will lead to consolidation of the agreed texts on the Ancestral Domain Strands. c. The Parties affirm that the core of the BJE shall constitute the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite; d. Without derogating from the requirements of prior agreements, the government stipulates to conduct and deliver, within six (6) months following the signing of the Memorandum of Agreement on Ancestral Domain, e. The areas covered by Category B has already been reflected on a map and officially agreed by both Parties. f. Internal Waters: The Bangsamoro Juridical Entity (BJE) shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending fifteen (15) kilometers from the coastline of the BJE area. g. Territorial Waters: (1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and [of] all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.

34

(2) The boundaries of the territorial waters shall stretch beyond the 15-km BJE internal waters up to the Central government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines. The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines. h. Sharing of Minerals on Territorial Waters: Consistent with paragraphs 5 and 6 of the provisions on Resources, all potential sources of energy, petroleum in situ, hydrocarbon, natural gas and other minerals, including deposits or fields found within the territorial waters, shall be shared between the Central Government and the BJE in favor of the latter through production sharing agreement or economic cooperative agreement. i. Activities Allowed on Territorial Waters: (1) The Parties shall have authority to carry out the following activities within the territorial waters: (a) Exploration and utilization of the natural resources, whether living or non-living within the territorial waters; (b) Establishments and use of artificial islands, installations and structures; (c) Marine scientific research; (d) Protection and the preservation of the marine environment; (e) Conservation of living resources; (f) Regulation of shipping and fishing activities;

35

(g) Enforcement of police and safety measures, including interdiction of the entry and use of the waters by criminal elements and hot pursuit of suspected criminal elements; (h) Regulation and control of contraband and illegal entry of prohibited materials and substances, including smuggling; and (i) Such other measures as the Parties may otherwise mutually agree. (2) Activities relating to exploration and utilization of non-living resources, as well as paragraphs (c) and (d) of the Authorized Activities will be carried out on a joint basis agreed by the Parties which may be in the form of production sharing agreements or joint development pacts. j. Establishment of a Joint Commission: (1) The Parties shall establish a Joint Commission, which shall elaborate the modalities for the implementation and the carrying out of the Authorized Activities and the measures adopted in cases of allegation of breach, and carry out any other functions which may be assigned to it by the Parties for the purpose of implementing the joint management of resources. (2) The Joint Commission shall consist of one representative from each Party, who are assisted by advisers as may be needed. The conclusions of the Joint Commission shall be adopted by consensus and shall only be recommendatory in nature. Only when the conclusions of the Joint Commission are adopted by the Parties do they become binding on the Parties. k. Demarcation and Status of Territorial Waters: The demarcation and status of the BJE territorial waters shall be finally determined together with the demarcation and final status of Category B of the BJE. 3. From and after entrenchment of compact rights over the Bangsamoro homeland and the territorial jurisdictions for associative governance shall likewise embrace those under proclamation for agricultural and human settlements intended for the

36

Bangsamoro people, all alienable and disposable land, pasture lands, timberlands together with all existing civil and military reservations, parks, old growth or natural forests declared as forest reserves, watersheds, mangroves, fishponds, wetlands, marshes, inland bodies of water and all bays, straits and channels found within the BJE. 4. All territorial and geographic areas in Mindanao and its adjacent islands including Palawan, and the Sulu archipelago that have been recognized, and/or delineated as ancestral domain and ancestral land of the Bangsamoro people as their geographic areas, inclusive of settlements and reservations, may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions subject to the principles of equality of peoples and mutual respect and to the protection of civil, political, economic, and cultural rights in their respective jurisdictions. 5. For purposes of territorial delimitation, the Parties have agreed to the joint determination of geographic areas encompassed within the territorial borders of the Bangsamoro homeland and territory based on the technical maps and data submitted by both sides as provided above. RESOURCES 1. The Bangsamoro juridical entity is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the Bangsamoro juridical entity, the land tenure and use of such resources and wealth must reinforce their economic selfsufficiency. Among the purposes or measures to make progress more rapid are: a. Entry into joint development, utilization, and exploitation of natural resources designed as commons or shared resources, which is tied up to the full setting of appropriate institution, particularly affecting strategic minerals. b. Stimulation of local economy by a range of mechanism, in particular the need to address unemployment and improvement of living conditions for the population in the Bangsamoro juridical entity;

37

c. Intensification of measures needed to uproot the cause of poverty in the Bangsamoro juridical entity through responsible harnessing and development of its natural resources; and d. Undertaking program review of public services, industrial or trade-related and agrarian-related issues in situations of different sectors of the society in the Bangsamoro juridical entity, which acquire communal character deriving from the special nature of their industry. 2. The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction: a. To explore, exploit, use or utilize and develop their ancestral domain and ancestral lands within their territorial jurisdiction, inclusive of their right of occupation, possession, conservation, and exploitation of all natural resources found therein; b. To conserve and protect the human and natural environment for their sustainable and beneficial enjoyment and their posterity; c. To utilize, develop, and exploit its natural resources found in their ancestral domain or may enter into a joint development, utilization, and exploitation of natural resources, specifically on strategic minerals, designed as commons or shared resources, which is tied up to the final setting of appropriate institution. d. To revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources designated as commons or shared resources, mechanisms for economic cooperation with respect to strategic minerals, falling within the territorial jurisdiction of the Bangsamoro juridical entity; e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory is within the competence of the Bangsamoro juridical entity; and f. To use such natural resources and wealth to reinforce their economic selfsufficiency.

38

3. The Bangsamoro Juridical Entity, and the Central Government agree on wealthsharing based on a mutually agreed percentage ratio in favor of the Bangsamoro juridical entity through an economic cooperation agreement or arrangement over the income and revenues that are derived from the exploration, exploitation, use and development of any resources for the benefit of the Bangsamoro people. 4. The Bangsamoro juridical entity is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction, it shall include: a. the option to establish and open Bangsamoro trade missions in foreign countries with which it has economic cooperation agreements; and b. the elements bearing in mind the mutual benefits derived from Philippine archipelagic status and security. And, in furtherance thereto, the Central Government shall take necessary steps to ensure the Bangsamoro juridical entity’s participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations. This shall entitle the said juridical entity participation in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable sharing of incomes and revenues, in the areas of sea, seabed and inland seas or bodies of water adjacent to or between islands forming part of the ancestral domain, in addition to those of fishing rights. 5. Jurisdiction and control over, and the right of exploring for, exploiting, producing and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore, is vested in the Bangsamoro juridical entity as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable

39

terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources. 6. The Bangsamoro government-take or profit split from total production shall be shared with the Central Government on a percentage ratio of 75%/25% in favor of the Bangsamoro juridical entity. All royalties, bonuses, taxes, charges, custom duties or imposts on natural resources and mineral resources shall be shared by the Parties on a percentage ratio of 75%/25% in favor of the Bangsamoro juridical entity. 7. The legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and propriety rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, the GRP shall take effective measures of adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties. 8. All proclamations, issuances, policies, rules and guidelines declaring old growth or natural forests and all watersheds within the BJE as forest reserves shall continue to remain in force until otherwise modified, revised or superseded by subsequent policies, rules and regulations issued by the competent Bangsamoro authority or juridical entity. 9. Forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments of any kind or nature whatsoever granted by the Philippine Government including those issued by the present Autonomous Region in Muslim Mindanao (ARMM) shall continue to operate from the date of formal entrenchment of the Bangsamoro juridical entity unless otherwise expired, reviewed, modified and/or cancelled by the latter. 10. The Parties recognized an immediate need to establish a five-member Bangsamoro economic-expert mission (the “Mission”) bearing in mind that the functioning of the economy and the operation of institutions involve financial and other resource management as well as parallel or complementary means, by which the Bangsamoro Development Agency will manage and administer resources acquired for

40

the above purposes, especially in coordinating strategies and programs for cooperation in all fields. 11. The said Mission acts as a link in the conduct of Bangsamoro juridical entity’s associative parallel relationships and shall cooperate fully with all organizations involved in implementation of the peace settlement. It shall launch a plan and joint international appeal for the repatriation and development of the conflict affected areas in Mindanao. Persons appointed thereto must be familiar with the specific economic, political and legal characteristics in the Mindanao-Sulu-Palawan region and must possess recognized competence, integrity, and high moral standing. 12. Cognizant that the Bangsamoro economic-expert Mission will benefit from international expertise, both the Central Government and the BJE hereby join the Third Party facilitator in inviting international funding institutions or equivalent entities for reconstruction and development to appoint two members and to designate one as the Chairman. The BJE shall designate one member as Co-Chairman. The remaining two members shall each be designated by the Central Government and the BJE. GOVERNANCE 1. The recognition and peaceful resolution of the conflict must involve consultations with the Bangsamoro people free of any imposition in order to provide chances of success and open new formulas that permanently respond to the aspirations of the Bangsamoro people. 1. The ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people. The parties respect the freedom of choice of the indigenous peoples. 3. The Parties agree to invite a multinational third-party to observe and monitor the actual implementation of the comprehensive compact which will embody the details for the effective enforcement of this Agreement. The participation of the third-party

41

shall not in any way affect the status of the relationship between the Central Government and the BJE. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. 5. The modalities for the governance intended to settle the outstanding negotiated political issues are deferred after the signing of the Memorandum of Agreement on Ancestral Domain. The establishment of institutions for governance in a comprehensive peace compact, together with its modalities during the transition period, shall be fully entrenched and established in the basic law of the Bangsamoro juridical entity. The Parties shall faithfully comply with their commitment to the associative arrangements upon entry into force of a comprehensive compact between the MILF and GRP. 7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA AD shall be spelt out in the comprehensive compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the comprehensive compact. 8. The parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society the details of which shall be discussed in the negotiation of the comprehensive compact.

42

9. The Parties further agree to undertake activities which will enhance the capacity of the government institutions during the transition through technical assistance, information-sharing and human resource development.

10. Matters concerning the details of the agreed consensus points on Governance not covered under this Agreement shall be deferred to, and discussed during, the negotiations of the comprehensive compact.

APPENDIX B
The National Internal Revenue Act of 1997

REPUBLIC ACT NO. 9504 June 17, 2008 ANA CT AMENDING SECTION 22, 24, 34, 35, 51, AND 79 OF REPUBLIC ACT NO. 8424, AS AMENDED OTHERWISE KNOWN AS THE NATIONAL INTERNAL REVENUE OF 1997 Be it enacted by the Senate and House of Representative of the Philippines in Congress assembled:

43

SECTION 1. Section 22 of Republic Act No. 8424, as amended, otherwise known as the National Internal Revenue Code of 1997, is hereby further amended by adding the following definition after Subsection (FF) to read as follows: "SEC. 22. Definitions. — when used in this Title: "(A) x x x. "x x x "(FF) x x x. "(GG) the term 'statutory minimum wage' earner shall refer to a worker in the private sector paid the statutory minimum wage, or to an employee in the public sector with compensation income of not more than the statutory minimum wage in the nonagricultural sector where he/she is assigned." SEC. 2. Section 24(A) of Republic Act No. 8424, as amended, otherwise known as the National Internal Revenue Code of 1997, is hereby further amended to read as follows: "SEC. 24. Income Tax Rates. — "(A) Rates of Income Tax on Individual Citizen and Individual Resident Alien of the Philippines. — "(1) x x x: "x x x; and "(c) On the taxable income defined in Section 31 of this code, other than income subject to tax under Subsections (B), (C) and (D) of this Section, derived for each taxable year from all sources within the Philippines by an individual alien who is a resident of the Philippines. "(2) Rates of Tax on Taxable Income of Individuals. — The tax shall be computed in accordance with and at the rates established in the following schedule:

44

"Not over P10,000 ..................................5% "Over P10,000 but not over P30,000..........P500+10% of the excess over P10,000 "Over P30,000 but not over P70,000..........P2,500+15% of the excess over P30,000 "Over P70,000 but not over P140,000.........P8,500+20% of the excess over P70,000 "Over P140,000 but not over P250,000........P22,500+25% of the excess over P140,000 "Over P250,000 but not over P500,000........P50,000+30% of the excess over P250,000 "Over P5000,000......................................P125,000+32% of the excess over P500,000 "For married individuals, the husband and wife, subject to the provision of Section 51 (D) hereof, shall compute separately their individual income tax based on their respective total taxable income: Provided, that if any income cannot be definitely attributed to or identified as income exclusively earned or realized by either of the spouses, the same shall be divided equally between the spouses for the purpose of determining their respective taxable income. "Provided, That minimum wage earners as defined in Section 22 (HH) of this Code shall be exempt from the payment of income tax on their taxable income: Provided, further, That the holiday pay, overtime pay, night shift differential pay and hazard pat received by such minimum wage earners shall likewise be exempt from income tax. SEC. 3. Section 34(L) of Republic Act No. 8424, as amended, otherwise known s the National Internal Revenue Code of 1997, is hereby amended to read as follows: "SEC. 34. Deductions from Gross Income. — Except for taxpayers earning compensation income arising from personal services rendered under an employeremployee relationship where no deductions shall be allowed under this Section other than under Subsection (M)hereof, in computing taxable income subject to income tax under Sections 24(A); 25(A); 26; 27(A), (B), (C); and 28(A)(1), there shall be allowed the following deductions from the gross income: "(A) Expenses. — "x x x. "(L) Optional Standard Deduction. - In lieu of the deductions allowed under the preceding Subsections, an individual subject to tax under Section 24, other than a

45

nonresident alien, may elect a standard deduction in an amount not exceeding forty percent (40%) of his gross sales or gross receipts, as the case may be. In the case of a corporation subject to tax under section 27(A) and 28(A)(1), it may elect a standard deduction in an amount not exceeding forty percent (40%) of it gross income as defined in Section 32 of this Code. Unless the taxpayer signifies in his return his intention to elect the optional standard deduction, he shall be considered as having availed himself of the deductions allowed in the preceding Subsections. Such election when made in the return shall be irrevocable for the taxable year for which the return is made: Provided, That an individual who is entitled to and claimed for the optional standard shall not be required to submit with his tax return such financial statements otherwise required under this Code: Provided, further, That except when the Commissioner otherwise permits, the said individual shall keep such records pertaining to his gross sales or gross receipts, or the said corporation shall keep such records pertaining to his gross income as defined in Section 32 of this Code during the taxable year, as may be required by the rules and regulations promulgated by the Secretary of Finance, upon recommendation of the Commissioner. "(M) x x x. — "x x x." SEC. 4. Section 35(A) and (B) of Republic Act No. 8424, as amended, otherwise known as the National Internal Revenue Code of 1997, is hereby amended to read as follows: "SEC. 35. Allowance of Personal Exemption for Individual Taxpayer. "(A) In General. — For purposes of determining the tax provided in Section 24(A) of this title, there shall be allowed a basic personal exemption amounting to Fifty thousand pesos (P50,000) for each individual taxpayer. "In the case of married individual where only one of the spouses is deriving gross income, only such spouse shall be allowed the personal exemption. "(B) Additional Exemption for Dependents. — There shall be allowed an additional exemption of Twenty-five thousand pesos (25,000) for each dependent not exceeding four (4).

46

"The additional exemption for dependents shall be claimed by only one of the spouses in the case of married individuals. "In the case of legally separated spouses, additional exemptions may be claimed only by the spouse who has custody of the child or children: Provided, That the total amount of additional exemptions that may be claimed by both shall not exceed the maximum additional exemptions herein allowed. "For purposes of this Subsection, a ‘dependent’ means a legitimate, illegitimate or legally adopted child chiefly dependent upon and living with the taxpayer if such dependent is not more than twenty-one (21) years of age, unmarried and not gainfully employed or if such dependent, regardless of age, is incapable of self-support because of mental or physical defect. "x x x." SEC. 5. Section 51 (A)(2) of Republic Act No, 8424, as amended, otherwise known as the National Internal revenue Code of 1997, is hereby further amended to read as follows: "SEC. 51. Individual Return. — "(A) Requirements. — "(1) Except as provided in paragraph (2) of this Subsection, the following individuals are required to file an income tax return: "(a) x x x; "x x x. "(2) The following individuals shall not be required to file an income tax return: "(a) x x x; "(b) An individual with respect to pure compensation income, as defined in Section 32(A)(1), derived from such sources within the Philippines, the income tax on which has

47

been correctly withheld under the provisions of Section 79 of this Code: Provided, That an individual deriving compensation concurrently from two or more employers at any time during the taxable year shall file an income tax return; "(c) x x x; and "(d) A minimum wage earner as defined in Section 22(HH) of this Code or an individual who is exempt from income tax pursuant to the provisions of this Code and other laws, general or special. "x x x." SEC 6. Section 79(A) of Republic Act No. 8424, as amended, otherwise known as the National Internal Revenue Code of 1997, is hereby further amended to read as follows: "Section 79. Income Tax Collected at Source. — "(A) Requirement of Withholding. — Except in the case of a minimum wage earner as defined in Section 22(HH) of this code, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with the rules and regulations to be prescribed by the Secretary of Finance, upon recommendation of the Commissioner: "x x x." SEC. 7. Separability Clause. — If any provision of this Act is declared invalid or unconstitutional, other provisions hereof which are not affected thereby shall continue to be in full force and effect. SEC. 8. Repealing Clause. — Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or inconsistent with any provision of this Act as hereby amended or modified accordingly. SEC 9. Effectivity Clause. — This Act shall take fifteen (15) days following its publication in the official Gazette or in at least two (2) newspaper of general circulation. Approved,

48

(Sgd.) PROSPERO C. NOGRALES Speaker of the House of Representatives

(Sgd.) MANNY VILLAR President of the Senate

This Act which is a consolidation of House Bill 3971 and Senate Bill No. 2293 was finally passed by the House of Representatives and the Senate on May 28, 2008 and May 27, 2008 respectively. (Sgd.) MARILYN B. BARUA-YAP Secretary General House of Representatives Approved: JUN 17, 2008 (Sgd.) GLORIA MACAPAGAL - ARROYO President of the Philippines (Sgd.) EMMA LIRIO-REYES Secretary of the Senate

49

Sign up to vote on this title
UsefulNot useful