UNIVERSITY

of the PHILIPPINES

COLLEGE OF LAW

20 November 2014
Hon. Rufus B. Rodriguez
Chairman, Ad Hoc Committee on
the Bangsamoro Basic Law
House of Representatives of the Philippines
HOR Complex, Constitution Hills
Quezon City
Re: House Bill No. 4994 on Bangsamoro Basic Law-Dear Congressman Rodriguez,
As I promised in my last letter to you, I am sending a copy of Dean Merlin
Magallona's "Problem Areas in the Bangsamoro Basic Law", and of Justice Vicente
Mendoza's "The Bangsamoro Bill Needs the Approval of the Filipino People".
Thank you and more power!
Very truly yours,
aff,

791/17//m/6/77
DANIL If . CONCE CION
Dean

Malcolm Hall, Diliman, Quezon City 1101, Philippines

Tel. 920-5514 local 101/102; Telefax 927-0518
Website: www.law.upd.edu.ph Email: uplawdean@gmail.com

THE BANGSAMORO BILL NEEDS THE APPROVAL OF THE FILIPINO PEOPLE

Justice Vicente V Mendoza

H.B. No. 4994, which proposes the Bangsamoro Basic Law, has been filed in
accordance with the Comprehensive Agreement on the Bangsamoro (CAB), which
was signed on March 27, 2014, between the Government of the Republic of the
Philippines peace panel and the counterpart panel of the Moro Islamic Liberation
Front (MILF). The CAB is the second attempt to end the armed conflicts that for so
long have dominated the relationship of the Government with Muslim Mindanao.
The first one, the Memorandum of Agreement on Ancestral Domain, or MOA-AD,
made in 2008, was declared void by the Supreme Court for being beyond the power
of the Government to make under the Constitution.'
Comparing the two agreements, I find much that has been done in the
proposed Bangsamoro Basic Law to make it conform to the Constitution, although
much remains be done toward this end. Certain concepts and provisions of the Bill,
when pieced together, reveal secessionist inclinations, notwithstanding the claim in
the Preamble of the Bill that it is "consistent with the Constitution" and in its
definition of the "Bangsamoro Territory" that the territory "remains a part of the
Philippines." The recognition in the Bill of the "right [of the Bangsamoro people] to
Expanded version of the statement of Justice Vicente V. Mendoza before the House of
Representatives Ad Hoc Committee on the Bangsamoro Basic Law at the hearing on H.B. No.
4994 on October 28, 2014.

Province of North Cotabato v. Gov't of the Republic of the Philippines Peace Panel on
Ancestral Domain, 568 SCRA 402 (2008).

self-detei iination -- beginning with the struggle for freedom of their forefathers in
generations past and extending to the present -- to chart their political future"2
reinforces the impression that Bangsamoro is a political entity that is only a little
different from the "associated state" called Bangsamoro Juridical Entity in the
MOA-AD which was invalidated by the Supreme Court in 2008.
Let me discuss briefly these concepts and provisions of the Bill which give
special concern.
The Bangsamoro Territory.
The reference in the Bill to the autonomous region in Muslim Mindanao as a
"territory" of the Bangsamoro people is contrary to the Constitution under which
the autonomous region is a part of the Philippine Archipelago.3 The term
"territory", as defined in Black's Law Dictionary, means "A part of a country
separated from the rest and subject to a particular jurisdiction, a geographical area
under the jurisdiction of another country or sovereign power." Such, for example,
was the Philippines, as an "unincorporated territory" of the United States, before it
was granted independence on July 4, 1946, or the trust territories under the Charter
of the United Nations, which are &miner colonies under administration by other
countries under commission by the United Nations, pending the eventual grant of
independence to them, like the Marshall Islands and Mariana Islands in the Pacific,
and the French Cameroons and the British Cameroons in West Africa.

2
3

Id., Preamble, Art. I, Sec. 3, Art. IV, Sec. 1, Art VI, Secs. 1 and 3.

CONST., ART. I, SEC. 1 provides: "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. . . ." The phrase "other territories" refer to Philippine
claim to Sabah.

Certainly, this is not the status of the autonomous region in Muslim

Mindanao under the Constitution. To call the region the "Bangsamoro Territory"4 is
to imply that it is a separate part of the Philippines waiting to become independent.
It is said that self-determination is a principle recognized in the Charter of the
United Nations. It is, but self-determination in that context refers to the rights of the
former colonies which, as already stated, were placed under the international
trusteeship system of the United Nations following World War II, in order to
prepare them for self-government and eventual statehood.5 The principle cannot be
applied to ethnic groups like the Bangsamoro, which is not a colony but a part of
the Philippines, for which regional autonomy is what is granted by the Constitution.
Indeed, the dismemberment of the national territory can result from such
provisions of the Bill. As has been pointed out by a professor of international law,
"Groups do not do not secede merely because they are ethnically distinct, and if they
did they would probably not get much support. . . . When a group seeks to secede, it
is claiming a right to a particular territory."6 This will be the result of considering the
area occupied by the Bangsamoro people a "territory" and their "ancestral land".
However, as the Court has said, "the Constitution does not contemplate any state in
4

H.B. No. 4994, Art. III, Sec. 1.

U.N. Charter, Chap. I, Arts. I (2) and 55, Chap. XII, Art. 77 (b). See also U.N. General Assembly
Resolution No. 1514, Dec. 14, 1960, declaring "(1) that "the subjection of peoples to alien
subjugation and exploitation constitutes a denial of fundamental human rights, is contrary to the
Charter of the Nations and is an impediment to the promotion of world peace and co-operation,
and (2) "all peoples have a right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development."
Para. 2 is reiterated in the U.N. International Covenant on Civil and Political Rights, Art. I, para.
1, Dec. 16, 1966.
6

Lea Brylmayer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. OF

INT'L LAW 177, 201 (1991).

this jurisdiction other than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of Philippine territory for
independence."'
The Bangsamoro People.
By defining who are to be considered Bangsamoros,5 the Bill in effect gives
the Parliament the power to pass a law, such as the Electoral Code, which it is
authorized to enact,9 limiting suffrage and membership in the Bangsamoro
Government to Bangsamoro people, thus denying the rights and privileges of
national citizenship guaranteed in the Constitution to others.1 Non-Bangsamoros,
although Filipino citizens and residents of the region for the requisite period, can be
disqualified from election to the Parliament and appointment to the Cabinet. This is
because the definition in the Bill of who are considered Bangsamoros performs the
same function that the definition of who are citizens of a nation or state does in a
national constitution, namely, to screen out outsiders from certain privileges of
national life.
The Form of Government.

'Province of North Cotabato, 568 SCRA, at 481.

s

H.S. No. 4994, Art. II, Sec. 1 provides: "Those who at the time of conquest and colonization
were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its
adjacent islands, including Palawan, and their descendants, whether of mixed or of full blood,
shall have a right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses
and their descendants are classified as Bangsamoro."
9

Id., Art. VII, Sec. 9.

I CONST., ART. V, SEC. 1.

The Bill provides for a parliamentary system of government. It vests the

powers of government in the Parliament. The Chief Minister, who is head of the
Cabinet, is elected by the majority vote of the Parliament from among its members,
while the Deputy Minister and a majority of the Cabinet are appointed by the Chief
Minister from the members of Parliament.'' The Cabinet perfoims executive
functions.
The Constitution provides, however, that the government of the
autonomous regions should consist of "the executive department and legislative
assembly, both of which shall be elective and representative of the constituent
political units." I2 While the Chief Minister and at least at least half of the members
of the Cabinet are to be chosen from the members of the Parliament, the fact is that
the Constitution contemplates direct election by the people. In fact, it does not
provide for any other kind of election other than directly by the people.
Indeed, a parliamentary system in an otherwise presidential system of
government is an oddity and an incongruity. Even in Malaysia, the structure of the
governments of the thirteen states is similar to that of the federal government which
is parliamentary except for minor native judiciary powers in Sabah and Sarawak,
and the state legislatures consist of a single chamber. The Constitution recognizes
differences in "historical and cultural heritage, economic and social structures" of
the two regions of Muslim Mindanao and Cordilleras, but it does not recognize
differences in their political structures. It grants to these regions autonomy "within

H.B. No. 4994, Art. VII, Secs. 1-3

12

CONST., ART. X, SEC. 18.

the framework of the Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines."13
The Powers of Government.
Under the Bill, the Bangsamoro Government will enjoy extensive
"exclusive powers," including the power to trade with ASEAN countries:4 to
contract foreign loans, credits and other forms of indebtedness,15 and to receive
foreign grants and donations.16 It will likewise have "concurrent powers" over
matters enumerated therein.17
In contrast, the powers of the Central Government will be limited to those
enumerated therein' and to those which it shares with the Bangsamoro
Government. These powers, denominated in the Bill as "reserved powers," refer the
following:
1.

Defense and external security;

2.

Foreign policy;

3.

Coinage and monetary policy;

4.

Postal service;

5.

Citizenship and naturalization ;

6.

Immigration;

/d., ART. X, SEC. 15.

13
14

Id., Art. V, Sec. 3 (7).

15

1d., Art.XII, Sec. 22.

16

Id., Art. X11, Sec. 24; Art. V, Sec. 3 (17)

17

Id., Art, V, Secs. 2-4.

M, Art. V, Sec. 1.

18

7.

Customs and tariff, as qualified by Section 2 (10), Article V of the Bill;

8.

Common market and global trade, provided however that the power to enter
into economic agreements given to the ARRM under R.A. No. 9054 shall
be transferred to the Bangsamoro Government; and Intellectual property
rights.

and to "concurrent powers" over the following matters:19

1.

Social security and pensions

2.

Quarantine

3.

Land registration

4.

Pollution control

5.

Human rights and humanitarian protection and promotion

6.

Penology and penitentiary

7.

Auditing

8.

Civil Service

9.

Coastguard

10.

Customs and Tariff

11.

Administration of Justice

12.

Funding for the maintenance of national roads, bridges, and irrigation

systems

13.

Disaster risk reduction and management Public order and safety

Thus, under the Bill, the Central Government would be like the Federal
Government of the United States -- a government of enumerated powers with the
balance of powers retained by the governments of the several states. The Philippine
Government, however, is a unitary government. Under the Constitution, it has all
powers of sovereignty, except only those given to the autonomous regions in the

19

Id., Art. V, Sec. 2.

Constitution, to wit:
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,2

and those which may be granted by law.21

The lopsided allocation of powers to the national government and the
Bangsamoro Government is due in part to the fact that some powers granted by
the Bill to the Parliament to the Bangsamoro Government are not legislative, but
constituent in nature, whereas the Constitution clearly stipulates that what can be
delegated to the government of the regions are those which are "legislative" in
character and that the exercise of such legislative power shall be "subject to the
provisions of this Constitution and national laws." Constituent powers cannot be
granted, otherwise the Constitution may be amended in a manner other than as
prescribed in the Amendment Clause.22

20

CONST., ART. X, SEC. 20.

21

Id., ART. X, SEC. 17.

22

Id., ART. XVII.

Consider, for example, the following provisions of H.B. No. 4994 on

mining. Article XIII of the Bill provides:
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 his purpose shall be within the powers
of the Bangsamoro Government.
Sec 14. Financial and Technical Assistance Agreements. The
applications for financial and technical assistance agreements 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
accordance with Comprehensive Sustainable Development Plan, as well as its
over-all medium term and long term Bangsamoro Development Plan.

Section 13 of the Bill, as quoted above, is contrary to Article XII, Section 2

of the Constitution, which provides that the exploration, development and
utilization of the natural resources shall be under the "full control and supervision"
of the National Government which may either undertake these activities itself or
enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens or corporations 60 percent of the capital of which is owned by
Filipino citizens. Further, in violation of the constitutional provision that the grant
of legislative powers to regional governments "shall be subject to the provisions of
national laws," the Bill gives the Bangsamoro Government the power to amend the
Philippine Mining Act of 1995 (R.A. No. 7942), among other national laws.23

23

H.B. No. 4994, Art. XIII, Sec. 8.

l0

Nor can Congress give the Bangsamoro Government the power to "adopt"
or "draw up" policy regarding mining. The mining policy is set forth in the
Constitution and, as such, cannot be changed except by constitutional amendment.
The Constitution provides that the natural resources belong to the State; that with
the exception of agricultural lands, natural resources cannot be alienated; that the
exploration, development, and utilization of the natural resources shall be under the
full control and supervision of the State; that although the State may make
agreements for others to undertake these activities, the party it contracts with must
be Filipino citizens or corporations or associations 60 percent of the capital of
which is owned by Filipino citizens; that the President o the Philippines may make
agreements with foreign owned corporations for technical or financial assistance
for the large-scale exploration, and utilization of minerals, petroleum, and other
mineral oils, the agreement it makes must be "based on real contribution to the
economic growth and general welfare of the country, . . . the State shall promote
the development and use of the local scientific and technical resources." This
constitutional policy applies to mining in the entire country.24
The Bangsamoro Government cannot be given the power to deteuuine the
mining policy in the region without allowing it the power to amend the
Constitution. Obviously this cannot be done.
Another provision of the Bill which is of doubtful constitutionality is
Article VII, Sections 9-11, which create a Bangsamoro Electoral Office. The
Electoral Office will be composed of three members who shall be appointed by the
President of the Philippines upon the recommendation of the Bangsamoro

24

CONST. ART. XII, SEC. 2.

II

Parliament. It will foini part of the Commission on Elections, and it will perfoirn
the functions of the COMLEC in the Bangsamoro.
To be sure, the office will be created not by the Bangsamoro Government
but by Congress in the event the Bill is passed. The question remains, however,
whether Congress can create such office, considering that the organization,
composition, and functions of the COMELEC are provided in the Constitution.25
So here again is the basic flaw in the Bill, i.e., the failure to distinguish
between constituent matters and legislative matters.
General supervision of the Bangsamoro Government.
Under the Constitution the President has general supervision of autonomous
regions "to ensure that laws are faithfully executed."26 This power cannot be
diminished, modified or qualified. The Bill provides, however, that the President
shall exercise shall exercise general supervision over the Bangsamoro Government
"consistent with the principle of autonomy and the asymmetric relation of the
Central Government and the Bangsamoro Government."27
Already reduced to "general supervision," or mere oversight as distinguished
from control, the Bill further emasculates the President's power by providing that
its exercise should be "consistent with the principle of autonomy and the
asymmetric relation of the Central Government and the Bangsamoro Government."

M., ART. IX, C, SECS.1 -11.

26 Ld.,
27

ART. X, SEC. 16.

H.B. No. 4994, Art. VI, Sec. 3.

12

This can make the strict enforcement of national laws within the
Bangsamoro territory difficult to secure as law enforcement may have to take
account of the local custom of the people. That can make a mockery of the laws of
the Republic, as the "asymmetric relation" of the two governments can always be
waved to overrule any constitutional objection.
In sum, H.B. No. 4994, which considers the autonomous region to be a
separate territory, with its own territorial waters, recognizes this territory to be the
the "ancestral homeland" of a distinct group of people called Bangsamoros, who
have a right to self determination to chart their political future, whose government
is parliamentary in fowl, possessing almost all powers of internal and external
sovereignty, embodies a concept that is incompatible with the nature of our
Constitution as a social compact. The support shown by foreign governments to
the proposed Bangsamoro can easily translate into support and recognition by them
to make the Bangsamoro claim to self determination, self government, and
eventual statehood legitimate.28 What the Court said in the case of the MOA AD
applies to the H.B. No. 4994:
[The] BJE is a state in all but name as it meets the criteria of a state laid
down in the Montevideo Convention, namely, a permanent population, a defined
territory, a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it which has betrayed

za

Compare Milena Steno, On the Right to External Self-Determination: "Selfistan," Secession,

and the Great Powers' Rule, 19 MINN. J. OF INT'L LAW 1, 176 (2010): "It is the Great Powers
that control the outcome of most self-determination struggles in today's world, through their
military, political, financial, and economic dominance, exercised in international organizations
and directly through concepts such as humanitarian intervention and involuntary sovereignty
waiver."

13

itself by its use of the concept of association runs counter to the national
sovereignty and territorial integrity of the Republic.2)

A Word on the "Asymmetric Political Relationship" of the Central and

Bangsamoro Governments

Finally, the Bill cannot be justified on the ground that the relation of the
Central Government and the Bangsamoro Government is "asymmetric", meaning
to say their relationship is "distinct from the inter-governmental relationship in
other regions and other local governments." The question is precisely whether such
relationship can be had if it is contrary to the Constitution. Such relationship
cannot justify the recognition of the right of the Bangsamoro people to "selfdetermination, to chart their political future." The Constitution clearly states (1)
that the autonomous regions in Muslim Mindanao and in the Cordilleras must be
created "within the framework of [the] Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines,"30 and (2) that the
laws of the regional governments must be "subject to the provisions of [the]
Constitution and national laws."31 This was emphasized by the Court in its decision
invalidating the MOA- AD of 2008,32 and it is by this standard that the
constitutionality of H.B. No. 4994 must be judged.
Conclusion
Province of North Cotabato, 568 SCRA, at 481-482; Vicente V. Mendoza, The Legal
Significance of the MOA on Ancestral Domain, 83 PHIL. L.J. 489, 493-495 (2008).
29

30

CONST., ART. X, SEC. 15 .

31

Id., ART. X, SEC. 20.

32

Province of North Cotabato, 568 SCRA, at 482.

14

If the Bangsamoro is to be created as the price for peace in Mindanao, it

must be by the will of the Filipino people as a whole, not solely by 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. It is noteworthy that in
the Framework Agreement between the peace panel of the Philippine Government
and that of the MILF, a Transition Commission was provided for, the task of which
was to draft the Bangsamoro Basic Law and "to work on proposals to amend the
Constitution for the purpose of accommodating and entrenching in the Constitution
the agreement of the Parties whenever necessary without derogating from any prior
peace agreement."33 Only the Draft Bill on the Bangsamoro Basic Law was
submitted by the Transition Commission. Why no proposals for constitutional
amendments were also prepared has not been explained. But implicit in second
task of the Transition Commission is an acknowledgment by the parties to the
various agreements forming integral parts of the CAB that the essential provisions
of the agreements, which were to be embodied in the Basic Law, were
incompatible with the provisions of the Constitution. Hence the need for
constitutional amendments.

33

Framework Agreement on the Bansamoro, Oct. 15, 2012, VII, 4 (a) (b), Annex on Transitional
Arrangements and Modalities, I, C-D.

PROBLEM AREAS IN THE

BANGSAMORO BASIC LAW
By
MERLIN M. MAGALLONA*

I. INTRODUCTORY: THE CONSTITUTION AND THE POWERS

OF THE STATE

By the promulgation of the Constitution, the people have

entrusted the powers of the State, which they possess, to the

Government established under the fundamental law by endowing it
with a complex of functions, authority, jurisdictions, immunities, and
limitations as are now ordained in the present Constitution.
Embodying the Philippine State, the people have proclaimed the
foundation principle in Article II, Section 1 of the Constitution
affirming that "Sovereignty resides in the people and all government
authority emanates from them." This affirmation encapsulates the
promulgation of the Constitution as the people's act of sovereignty,
together with the establishment of the Government.

Inherently an act of sovereignty, the Constitution is out of reach

of contravention. In that respect, more than the formal law of the

* Professorial Lecturer and Former Dean and Professor of Law, University of the Philippines College of
Law.

national community, it is its political and economic formula for selfdetermination, its social framework growing out of the historical
roots of its people.
This holds true whatever may be the fascination or attraction
that any political theory may seize the mind outside of the binding
force of the Constitution. On the same premises, the Constitution as
an act of sovereignty becomes the supreme standard for determining
the validity of the Comprehensive Agreement on the Bangsamoro,'
together with its implementing instrument in the Bangsamoro Basic
Law as proposed in House Bill No. 4994 and in Senate Bill No. 2408.

II. THE POWERS OF THE STATE UNDER THE

BANGSAMORO BASIC LAW
Proceeding from the foregoing premises, it is axiomatic that the
powers of Government as constituted under and pursuant to the
Constitution are beyond the juridical competence of any person or
subject, in private or official capacity, to engage them by way of
bargaining or negotiation in contractual relation, as is done in the
Comprehensive Agreement on the Bangsamoro (CAB) by the GPH
Peace Negotiating Panel purporting to represent the Philippine
Government, with the Moro Islamic Liberation Front (MILF) .2

The CAB, as implemented by the Bangsamoro Basic Law (BBL),

reorganizes the powers of Government and restructures them into a
hierarchy, in the relationship between the National Government and
the Bangsamoro Government. On the whole, the powers of
Government are reduced to contractual arrangement between the
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 together with a nongovernment organized group may assume the function of reorganizing and restructuring the powers of Government as spelled
out in the CAB, in usurpation of the act of sovereignty expressed in
the Constitution. Obviously, their legal competence in the exercise of
such function, objectionable as it is, is excluded by the fundamental
law. The Constitution cannot be the derivative of powers in
contradiction to its principles.
The CAB has installed the categories of powers provided in Part
III, paragraph 1, which reads:
The Central Government will have reserved powers,
the Bangsamoro Government shall have its exclusive
powers, and there will be concurrent powers shared by
the Central Government and the Bangsamoro
Government.3

In implementation, the BBL deals with reserved powers in

Section 1, concurrent powers in Section 2, and exclusive powers in
Section 3, in Article V on "Powers of Government".

Forming part of the CAB is the Annex on Power Sharing (APS)

that "contains details about the particular competencies and
authorities of the Central Government and the Bangsamoro
Government which shall serve as guide in the drafting of the Basic
Law pursuant to the Framework Agreement on the Bangsamoro
(FAB)".4 Further, the APS explains as follows:
"The Comprehensive Agreement delineates powers at
different levels. The Central Government will have its
reserved powers, the Bangsamoro Government will have
its exclusive powers within its territorial jurisdiction and
their will be concurrent powers shared by the Central
Government and the Bangsamoro Government ....5

1. Reserved powers
The FAB provides that "The Central Government will have
reserved powers ...

."6

It goes on to stipulate that the Central

Government shall have powers on:

a)
b)
c)
d)
e)
f)

Defense and external security

Foreign policy
Common market and global trade ....
Coinage and monetary policy
Citizenship and naturalization
Postal service
4

This list is without prejudice to additional powers

that may be agreed upon by the Parties.?

How is the concept of reserved powers designed? The APS of

the CAB has conceptualized reserved powers as "powers or matters
over which authority and jurisdiction are retained by the Central
Government."8 Apparently, these powers pertain to those which the
Central Government may exercise affecting its relationship with the
Bangsamoro Government.

By way of implementing the FAB or the CAB, the BBL in Section

1, Article V repeats the enumeration of reserved powers in FAB, with
the addition of immigration, customs and tariff, and intellectual
property rights. There appears to be the emphasis in this provision
that these specified powers are "retained" by the Central
Government. The addition of more reserved powers must have
resulted from the intent of the parties to the FAB that the "list [of
reserved powers] is without prejudice to additional powers that may
be agreed upon by the Parties."9

By managing the concept of power, the Parties to the CAB have

achieved results with the following implications. They assume that
5

they have the legal competence and personality to engage in

contractual relation for determining the powers of Government and
in creating the relation between the National Government and its
constituent autonomous regions by means of reorganizing and
restructuring those powers. These matters pertain to the sovereign
act of the people and are subsumed in their promulgation of the
Constitution; they can only be changed by amendment or revision of
the fundamental law. In conceptualizing reserved powers, the CAB
Parties have usurped the sovereign function which the people have
already enthroned in the Constitution.

After providing the list of reserved powers in Part Ill of the FAB,
the Parties added the stipulation that "This list is without prejudice
to additional powers that may be agreed upon by the Parties".
Indeed, in Section 1, Article V of the BBL, additional reserved powers
are added, as indicated above. These provisions signify that powers
of Government are treated by the Parties as subject-matter of free
stipulation, left to their contractual intention.

The Parties appear to be of the impression that powers of

Government are of such broad range that they are unable to
determine in the CAB; however, in their agreement they singled out
6

only those that are listed in Part III of FAB and finally those listed in
Section 1, Article V of the BBL. In doing this exercise, the Parties have
resorted to the scheme of dividing the so-called reserved powers into
two categories: those that will not be applied by the National
Government in dealing with the Bangsamoro Government and those
that will be applicable in its relation with the Bangsamoro
Government. The second category is referred to in the CAB and in
the BBL as "reserved powers".

This categorization of powers necessarily implies it is the

intent of the CAB and the BBL that certain powers of the National
Government are not to be applied in its relation with the Bangsamoro
Government. In effect, the CAB and the BBL have intended to deprive
the National Government of certain powers in its relation with the
Bangsamoro Government. This consequence appears clearer by
reason of the provision in the Annex on Power Sharing that it is by
the nature of "reserved powers" that "authority and jurisdiction are
retained by the Central Government." This means that those that are
not retained are not exercisable by the National Government in
dealing with the Bangsamoro Government.

The emergent principle under the CAB and the BBL is that the
National Government has no power and authority over the
Bangsamoro Government unless as provided under the CAB and as
implemented by the BBL. This non-retention scheme of powers is the
product of the contractual discretion of the Parties derived outside
the constitutional box; it is proposed under the mistaken notion that
Congress by means of enacting the BBL assumes the competence to
amend the fundamental law through the normal legislative process.

This fragmentation of government powers find no basis in the

Constitution of course, in particular the categorization of powers into
reserved powers and those which are not reserved powers. Are
there powers of the National Government which are not reserved
powers under the Constitution and thus not exercisable by its
authority in relation to the autonomous regions? In the first place,
this categorization is alien to the fundamental law and to our system
of government. Emphasis must be on the constitutional prescription
that all powers not provided by the Constitution and the national
laws to the autonomous regions pertain to the National
Governmentlo

2. Concurrent powers
In Section 2, Article V, the BBL provides that "Concurrent
powers shall refer to the powers shared between the Central
Government and the Bangsamoro Government within
Bangsamoro, as provided in this Basic Law".

the

What is meant by

"concurrent powers" is defined in the fourth paragraph of APS of the

CAB: "Concurrent powers shall refer to the shared powers between
the Central Government and the Bangsamoro Government as
contained in this Annex and as shall be further provided in the
Bangsamoro Basic Law."
Part Three (III) of the APS contains 14 matters in which "the
Central Government and the Bangsamoro Government shall exercise
powers within the Bangsamoro". The same matters are provided in
Section 2, Article V of the BBL; among the more important of these
appear to be authority in land registration, human rights and
humanitarian protection, auditing, civil service, customs and tariff
laws and regulations, administration of justice, and public order and
safety.

The installation of "concurrent powers" involves the process of

according to the Bangsamoro Government the grant of independence
in the exercise of powers of Government and the concomitant
9

transfer to it by the National Government of its own powers. It also

means the institutionalization of powers by the Bangsamoro
Government. Thus, in the implementation of the CAB, the BBL
envisages "to organize its own social security system and pension
system" of its own, to create its own office of land registration, to
have the "Bangsamoro auditing body" quite apart from the
Commission on Audit of the National Government, and to build the
Bangsamoro Civil Service office with its own "professional civil
service corps," despite the existence of the Civil Service Commission,
among other cases of institutional separation."

This

institutionalization may lend permanence to the fragmentation of

powers of national character.

The provisions pertaining to concurrent powers involve the

root issue as to the constitutional basis of their creation, in particular
because they are segmented from powers which the Constitution has
mandated as belonging to the National Government. The result is
that in the hierarchy of authority, the Bangsamoro Government as it
stands in the BBL is in parity with the National Government, in the
main subject only to "cooperation and coordination" with the latter
as the BBL stipulates.

This may find justification in Part One,

paragraph 2 of the APS which inter cilia provides that "The Central
10

Government and the Bangsamoro Government shall be guided by the

principle of parity of esteem and accepted norms of good
governance."

The concurrent powers which are institutionalized by the BBL

through the establishment of separate Bangsamoro offices are at
present provided by respective national laws as integral powers of
the National Government; these laws would require revision by
effecting the reorganization of powers of the National Government to
pave way for the exercise of the Bangsamoro concurrent powers, if
permissible. Hence, the creation of concurrent powers may ramify
into how congressional authority may be exercised.

3. Exclusive powers
Section 3, Article V of he BBL is a litany of 57 areas of
governance described as "exclusive powers" of the Bangsamoro
Government; they are "matters over which authority and jurisdiction
shall pertain to the Bangsamoro Government" in its territory. This
provision of exclusive powers necessarily implies that they are
exercisable only by the Bangsamoro Government to the exclusion of
the National Government. In fact, by the nature of these powers the
Bangsamoro Government is the only governing authority in its
11

territory, displacing in the process the National Government in its

current areas of governance pursuant to the fundamental law.

Under this provision the BBL appears to be in compliance with

the CAB in its APS which refers to "exclusive powers" as "powers or
matters over which authority and jurisdiction pertain to the
Bangsamoro Government".12 Deserving focus is the mandate of the
CAB in APS that "The Central Government shall respect the exercise
of the competences and exclusive powers of the Bangsamoro
Government."13 Emphasis on exercise of exclusive powers is further
affirmed by the concept of devolution which "the Parties accept" in
the APS as "[involving] a process of empowerment, mobilization,
capacity building and financing";14 this may imply further
justification to the powers granted to the Bangsamoro Government
exclusively in addition to its concurrent powers.

The BBL areas within the scope of exclusive powers in the

Bangsamoro territory are so extensive that they cover the entire
range of governmental authority, effecting the exclusion of the
National Government and, as a consequence, eliminating the
accountability of the latter as a duly constituted government
established by the sovereign authority of the Constitution.ls
12

There can be no recognition of powers and jurisdictions

exclusive to the Bangsamoro Government; otherwise, the Republic
would be conceding that it does not possess internal sovereignty or
supreme authority over matters within the exclusive powers of the
Bangsamoro Government. National sovereignty is indivisible.

III. THE CONSTITUTION'S AUTONOMOUS REGION AND THE BANGSAMORO

In Section 1, Article X, the Constitution mandates that "There
shall be created autonomous region in Muslim Mindanao." Together
with the appropriate provisions of the fundamental law, national
laws form part of the constitutional standards for the creation and
governance of autonomous regions.16
The core directive of the fundamental law is that the
autonomous region "shall be created ... within the framework of this
Constitution and the national sovereignty as well as the territorial
integrity of the Republic of the Philippines".'7 Thus the elements
integral to the creation of the autonomous region are: (1) conformity
to the directives of the Constitution; (2) the Republic's national
sovereignty; and (3) its territorial integrity.

13

1. Constitutional framework
As to the first element, the Bangsamoro appears to found its
creation not on the Constitution, but on the basis of the contractual
relations between the GPH Peace Negotiating Panel and the MILF to
be implemented by the BBL. As a consequence, the definitive
features of the BBL in terms of powers, jurisdiction, rights and
accountability, charged upon the Bangsamoro Government appear as
implementation of the CAB, together with all the Annexes. In other
words, the CAB is the BBL shaped into legislative form for the
formality of enactment by Congress.
To be emphasized is the extraordinary character of the BBL in
that it affirms in its Preamble common to both House Bill No. 4994
and Senate Bill No. 2408, that its promulgation into law is done by
the Bangsamoro people themselves. It reads as follows:
We, the Bangsamoro people and other inhabitants of the
Bangsamoro, imploring the aid of the Almighty, ... for
genuine and meaningful self-governance as stipulated
under the Comprehensive Agreement on the Bangsamoro
(CAB); ... do hereby ordain and promulgate this
Bangsamoro Basic Law, through the Congress of the
Republic of the Philippines, as the basic law of the
Bangsamoro ....18

In this light, the Congress, which is the sole repository of

plenary legislative power under the Constitution becomes merely an
instrumentality of the Bangsamoro people's self-determination. This
14

may imply that Congress, in the exercise of its legislative function in

the process of enacting the BBL, is circumscribed by the mandate of
the Bangsamoro people expressed in the CAB and the BBL.

Moreover, the President of the Republic has committed himself

to the enforcement of or compliance with the CAB vis-a-vis the
enactment into law of the BBL. In his Executive Order No. 120 of 17
December 2013, issued for "Constituting the Transition Commission"
in compliance with the CAB, he made the following commitment:
[1] ...[T]he Government entered into the 2012
Framework Agreement ..., which is envisioned to pave
the way for the peaceful resolution of the armed struggle
in Mindanao ....

[2] [T]he Government acknowledges its commitment to

exert all efforts towards realizing the full implementation
of the Agreement; _J9
[3] The Transition Commission shall have the function
"To draft the proposed Bangsamoro Basic Law with
provisions consistent with the 2012 Framework Agreement
on the Bangsamoro; ....20
The Presidential act of creating the Transition Commission
appears to be the President's implementation of the FAB's directive
in Part VII, in particular addressed to him, namely:
[1] "There shall be created a Transition Commission
through an Executive Order ...."21

15

[2] "The draft Bangsamoro Basic Law submitted by the

Transition Commission shall be certified as an urgent bill
by the President".22

As indicated above, the President has ordered that the BBL

should be drafted "with provisions consistent with the 2012
Framework Agreement on the Bangsamoro." It is to be wished that
he should have desired that it be consistent with the Constitution.
Instead, he intended it is the Constitution that is to be amended. His
Executive Order says in section 3(b) that "Whenever necessary, [the
Transition Commission] recommend[s] to Congress ... the proposed
amendments to the 1987 Philippine Constitution." Apparently, he is
of the view that it is the Constitution which must comply with the
CAB or the FAB.

The President has complied with the foregoing mandate

derived from the CAB, not from the Constitution and not from the
existing national laws. After considerable delay in its submission to
Congress on account of amendments to the Commission's draft by the
Office of the President, the BBL formally has become the act of the
President by reason of his certification of the BBL as his urgent bill in
compliance with the CAB.

16

Section 17, Article X of the Constitution provides: "All powers,

functions, and responsibilities not granted by the Constitution or by
law to the autonomous regions shall be vested in the National
Government." In extensive departure from the fundamental law in
this mandate, the BBL, in implementation of the CAB, 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. Under
the fundamental law, the organic act of the autonomous regions shall
have as "the basic structure of government for the region consisting
of the executive and the legislation assembly."23 This is understood
to require that such structure shall be "consistent with the provisions
of this Constitution and [existing] national laws".24

The

constitutional system as thus prescribed undergoes a radical

revision, both the CAB and the BBL establishing the "asymmetrical
political relationship" between the National Government and the
Bangsamoro Government. As a result, the CAB and the BBL have the
effect of rejecting the cornerstone principle of the Constitution,
namely, the separation of powers. What may have become
asymmetrical is the Constitution.

17

Taking into account the violence done on the Constitution as

brought out in the present review, incredible, to say at least, is the
direct involvement of the President and the Congress in the
inordinate claims of the CAB and the BBL, as shown above.

2. National sovereignty
The second premise of the Constitution in the creation of an
autonomous region is that it is to be established within the
framework of national sovereignty. Under the fundamental law,
national sovereignty pertains to the people's act of sovereignty
pursuant to the supremacy clause of the Constitution in Section 1,
Article II that "Sovereignty resides in the people and all government
authority emanates from them." The powers of the National
Government that the fundamental law ordains are expressive of
sovereignty, the contravention of which by the CAB and the BBL is
effected by the derogation, of such powers. How the Parties to the
CAB derived their authority to this effect and by what legal capacity
empower them to do so continue to be a juridical vacuum.

At any rate, the concept of "reserved powers", together with

that of "current powers" and "exclusive powers" are creations of the
Parties that are at war with national sovereignty. In the concept of
18

"concurrent powers", the CAB and the BBL set up a reorganized

structure of power into a hierarchy unknown in the Constitution
where the Bangsamoro Government stands in parity with the
National Government, and, in specified areas of authority, exercises
power in relative independence of the National Government.

Consequently, the entire system of governmental powers is

split into two by the concept of powers exclusive to the Bangsamoro,
leaving the Bangsamoro in the exercise of exclusive powers covering
vast areas of authority. Thus, national sovereignty itself is subjected
to dichotomy of powers, functions, and responsibilities, from which
emerges the Bangsamoro entity under the CAB and BBL imbued with
"internal sovereignty", by which it will maintain relation with the
National Government. 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.

From the projected concept that the National Government

delegates or devolves powers to the Bangsamoro Government, the
latter is said to derive , in the language of the CAB's APS, the "process
19

of empowerment, mobilization, capacity building and financing that

can be strengthened by strong cooperation and partnership"
between the two governments.25 But this arrangement is a reversal
of constitutional principles and therefore impermissible; only such
powers and responsibilities as the Constitution grants to autonomous
regions may be exercised or applied by the Bangsamoro Government
and those "not granted by the Constitution or by law to the
autonomous regions shall be vested in the National Government."26
And as granted to the National Government, they are not delegable or
transferable by devolution or by any other means to any political
subdivision.

The limits which the Constitution imposes on the powers,

functions and responsibilities of autonomous regions are not
confined to those explicitly provided by the fundamental law; the
Constitution sets additional limits by means of "law" in Section 17 or
by "national laws" in Section 20, both of Article X. A reasonable
interpretation of these provisions is that these national laws or
statutory enactments of national character are not subject to
amendment or repeal by the BBL or any other legislative enactments
if they are intended to, or for the purpose of changing the
constitutionally ordained powers and status of autonomous regions.
20

To this extent or under these limitations, the BBL suffers from basic
infirmity and may justifiably be pronounced as in contravention of
the fundamental law.
In providing for the organic act of autonomous regions
expressly subjecting their legislative power to be governed by
national laws, the Constitution creates a secondary tier of legislative
enactment, namely, the organic act below and subordinate to
national laws.

3. Territorial integrity
Integrated into national sovereignty is the element of
territorial integrity; in particular, this may pertain to how the
Constitution characterizes the nation's natural wealth and resources.
On two fundamental principles, the Constitution prescribes that
[1] 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."27
[2[ The exploration, development and utilization of
natural resources shall be under the full control and
supervision of the Staten

The ownership and control of the State do not pertain or relate

to the exclusive authority and jurisdiction of any local government
21

unit or autonomous region. That the natural resources belong to the

State, together with full control of their exploration, development
utilization, is a designation of the people's ownership as their act of
sovereignty for their life's support, derived from the premise that "all
government authority emanates from them".

Inherent in the

People's ownership is the principle of intergenerational equity that

looks forward to the interest of future generations of Filipinos.

So essential is this mandate that as embodied in the

international law of human rights, it is more appropriately described
as the "right of the people". Common to Articles 25 and 47,
respectively, of the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political
Rights is the following text:
Nothing in the present Covenant shall be
interpreted as impairing the inherent right of all peoples
to enjoy and utilize fully and freely their natural wealth
and resources.

Both Covenants provide as well in common paragraph 2, Article 1,

that
"In no case may a people be deprived of its own means of
subsistence."

22

The two Covenants have the force of law on the Philippines, being a
State Party to both.29

On the other hand, both the CAB and the BBL are of the
assumption that the natural

resources of the State in the

Bangsamoro territory are matters consigned exclusively to the

Bangsamoro; in their long litany of exclusive powers, for example, are
listed natural resources, wildlife, natural reserves, marine and
aquatic resources, inland waters, agricultural land use, and power
generation.39
Under the "power sharing" arrangement of the CAB, and as
provided in Section 8, Article XIII of the BBL, 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.

All these matters are covered by the exclusive powers of the

Bangsamoro Government. In particular, as to mineral resources, the
BBL in Section 13, Article XIII provides that "The Bangsamoro
Government shall have authority and jurisdiction over the

23

exploration, development, and utilization of mines and mineral

resources in its territory."
In the extraordinary grant of preferential rights, Section 11,
Article XIII of the BBL reads:
Qualified citizens who are bona fide inhabitants of the
Bangsamoro shall have preferential rights over the
exploration, development, and utilization of natural
resources, including fossil fuels (petroleum, natural gas,
and coal) and uranium, within the Bangsamoro
territory.31

The conception of territory in our constitutional system is that

it is an element in the formation and praxis of the Philippines as a
State; the fundamental law characterizes it as a unity in "national
territory ... with all the islands and waters embraced ... and all other
territories over which the Philippines has sovereignty and
jurisdiction."32 The territory as a geographic area is unified by
national sovereignty, not fragmented into exclusive jurisdictional
control of local government units or autonomous regions.

However, the CAB and the BBL conceive of the Bangsamoro

territory as an integration of essential features, namely, its own
powers and jurisdiction constituted into a government, population,
and territory, which are in relative independence from the National
Government, and independent as well from the Constitution.
24

IV. DEROGATION OF NATIONAL GOVERNMENT TO CO-EQUALITY WITH THE

AUTONOMOUS REGION

In establishing the validity of the creation and governance of

autonomous region in Muslim Mindanao, the mandate of the
Constitution adopts national laws as the basis, together with those
which the fundamental law itself stipulates. Thus the Constitution in
Section 16, Article X directs the President to exercise general
supervision over autonomous regions "to ensure that the laws are
faithfully executed."33 Section 17 of that Article says that "All powers,
functions, and responsibilities not granted by this Constitution or by
law to the autonomous regions shall be vested in the National
Government";34 this provision necessary implies that the
autonomous region in Muslim Mindanao shall only have "powers,
functions, and responsibilities" as are granted by the Constitution
and the national laws. This provision controls the interpretation and
application of Section 20 of the same Article even as it provides that
the organic act of autonomous regions shall provide for legislative
powers ..." in specified areas of governance. Such legislative powers
are "subject to the Constitution and national laws."35
As constituted under the CAB and the BBL, the Bangsamoro
political entity is created outside the constitutional box. It is imbued
with powers, functions and responsibilities far in excess of the nature
25

attributed to the autonomous region by the Constitution or to any of

the political division of the Republic. It is something else other than
the autonomous region as characterized by the Constitution.

However, under the CAB and the BBL, it is the Bangsamoro

Government that establishes limitations to the power of Congress.
Beginning with the concept of reserved powers, Congress may
provide general or special power or jurisdiction exercisable by the
National Government in its relation with local government units,
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.

For example, what is the implication of the general welfare

clause that may be enacted by the Bangsamoro Parliament? It
provides in Section 24, Article VII of the BBL: "The Bangsamoro
Parliament shall pass laws that promote the general welfare of the
people in the Bangsamoro". In the event that Congress enacts laws
of the same nature, would the scope of their application or
26

enforcement be implied or expressly articulated as excluding the

Bangsamoro population on account of Bangsamoro's own legislative
powers as stipulated by the BBL?

Or would congressional

enactments retain their national scope? Beyond this specific area, the
authority of the Bangsamoro Parliament is plenary "on matters that
are within the powers and competences of the Bangsamoro
Government",36 which may embrace all the concurrent powers and
exclusive powers, together with the powers which the CAB and the
BBL exclude from the reserved powers attributed to the National
Government.

Moreover, the expansive jurisdiction of the

Bangsamoro Parliament may overlap with the entire field of national

legislation owing to the conception that, in matters with respect to
Bangsamoro
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.37

With the Bangsamoro Parliament endowed with such expanse

of power and accountability, it stands in the CAB and the BBL in equal
standing with the Congress of the Republic. This parity status gains
recognition by means of the following provisions of the BBL in
implementation of the CAB:
27

[1] There shall be a Philippine CongressBangsamoro

Parliament Forum for purposes of cooperation and
coordination of legislative initiatives.38
[2] The Central Government and the Bangsamoro
Government shall establish a mechanism at the highest
levels that will coordinate and harmonize their
relationships.
....[A] primary mechanism shall be a Central
Government-Bangsamoro
Government
Intergovernmental Relations Body to resolve issues on
intergovernmental relations. All disputes and issues
relating to these intergovernmental relations shall be
resolved through regular consultations and continuing
negotiations in a non-adversarial manner.39

The disputes and issues referred to in the foregoing provisions

of the BBL arise from incidents in the relations of two political
systems or entities which are relatively equal in status and thus the
assumption is that the Bangsamoro Government is in
intergovernmental relationship with the National Government at the
same "highest level". However, it should be obvious that, as the
Constitution prescribes, all autonomous regions and subdivisions are
subject to, and under the supreme authority, of the National
Government, in particular of its Legislative Department.

In the established legal system, the ordinances, rules and

regulations promulgated by the legislative bodies of the local
28

government units operate as binding within their respective local

jurisdictions. In striking difference from such localized "laws", the
BBL institutes a new category of a legal system of but a mere political
subdivision of the Republic, the binding scope of which is of the same
national character as the enactments of Congress. Of the same
subject-matter and nature of applicability are the legislative
enactments of the Bangsamoro Parliament, as well as the concurrent
and exclusive powers of the Bangsamoro Government; they are
inherently to the interest of the nation or people as a whole, such as
human rights, natural resources, waters, environment, and matters
covered by the general welfare clause.
In our constitutional system, an autonomous region in Muslim
Mindanao is a territorial and political subdivision of the Republic of
the Philippines. A part cannot be higher than the whole, nor can it
stand in co-equality. This may appear axiomatic in the nature of
things, but in the down-to-earth reality of the living Constitution, its
juridical status is enforced by a dynamic hierarchy of power where
the autonomous region of Muslim Mindanao is without power except
as endowed by the Constitution and the national laws. It cannot be
asymmetrical to the fundamental law. The concept of autonomous
region remains immutable in the Constitution as it stands without

29

amendment. And it stands impervious to change by contractual

stipulation.

NOTES
Executive Order No. 120 constituting the Transition Commission, uses the nomenclature
"Comprehensive Agreement on the Bangsamoro".
However, House Bill No. 4994 employs the expression "Comprehensive Agreement on the
Bangsamoro" in the Explanatory Note.
Paragraph 2 of Part IX of the Comprehensive Agreement stipulates:
The Parties commit to work further on the details of the Comprehensive
Agreement in the context of this document and complete a comprehensive agreement
by the end of the year.
The components of the Comprehensive Agreement on the Bangsamoro are: (1) Framework
Agreement on the Bangsamoro; (2) Annex on Transitional Modalities and Arrangements; (3) Annex on
Revenue General and Wealth Sharing; (4) Annex on Normalization; (5) Annex Power Sharing; and (6)
Addendum on the Matter of Bangsamoro Waters.
2 CAB was signed by both Parties on 27 March 2014, the Comprehensive Agreement on 15 October
2012.
3 Emphasis added.
4 See first paragraph of the Annex on Power Sharing (APS).
5 See Second para. of the APS.
6 CAB Part III, para. 1.
CAB, Part Ill, para. 2. Emphasis added.
8 APS, third para.
9 See supra, note 7.
I See Constitution, Art. X, Sec. 17.
II See APS, Part Three, 11; BBL, Art. V, Sec. 2.
12 APS, Fifth paragraph
13. See APS, Part One, paragraph 2.
14 Exclusive powers in BBL as provided in Section 3, Article V apply to the following areas or
matters: Agricultural, livestock and food security; Economic and cultural exchange; Contract loans,
credit and other forms of indebtedness with any government, private bank and other lending
institutions, except those requiring sovereign guaranty; Trade, industry, investment, enterprises and
regulation of businesses taking into consideration relevant laws; Labor, employment, and occupation;
Registration of business names; Barter trade and counter trade with ASEAN countries; Establishment
of Free ports; Tourism; Creation of sources of revenue; Budgeting; Financial and banking system;
Establishment of Bangsamoro government-owned and/or controlled corporations and financial
institutions; Authority to regulate power generation, transmission and distribution operating
exclusively in the Bangsamoro; Operation of public utilities; Receive grants and donations; Education
and skill training; Science and Technology; Research councils and scholarships; Culture and language;
Sports and recreation; Regulation of games and amusement operations; Libraries, museums, historical,
cultural and archaeological sites; Regulations on manufacture and distribution of foods, drinks, drugs
and tobacco; Haff and Umrah; Customary laws; Declaration of Bangsamoro holidays; Ancestral
domain and natural resources; Protection of the rights of the indigenous people; Land management,
land distribution, and agricultural land use reclassification; Cadastral land survey; Expropriation and
eminent domain; Environment, parks, forest management, wildlife, nature reserve and conservation;
Inland and waterways for navigation; Inland waters; Customary justice; Shariah courts and Shariah
justice system; Public administration and bureaucracy for the Bangsamoro; Health; Social services,
social welfare and charities; waste management; Establishment and supervision of humanitarian
services and institutions; identification, generation and mobilization of international human resources;
Establishment of Ausqaf (endowment) and charitable trusts; Hisbah office for accountability as part of

30

o .

Shariah justice system; Registration of births, marriages, and deaths; Housing and human settlements;
Development planning; Urban and rural development; Water supplies and services, flood control and
irrigation systems in Bangsamoro; Public works and highways within the Bangsamoro; Establishment
of appropriate mechanisms for consultations for women and marginalized sectors; Special development
programs and laws for women, the youth, elderly, labor, the differently-abled, and indigenous cultural
communities; and Local administration, municipal corporations and other local authorities including
the creation of local governments. In addition to these 57 matters which the CAB in Part III also
provides it includes a general welfare clause which says "Establishment or creation of other
institutions, policies and laws for the general welfare of the people in the Bangsamoro.
13 Constitution, Art. X, sec. 17. See also Section 16 of this Article
IS
For reference to national laws as constitutional standards, see sections 16, 17, 18, and 20 of Article X
of the fundamental law.
Constitution, Article IX, Sec. 15. Emphasis added.
18
Emphasis added.
19
Executive Order No. 120, sec. 3(a). This is in pursuance of FAB in Part VII, para. 4(a).
20
Part VII, para. 3.
21
Para. 7.
22
Art. X, Sec. 18.
23
24

APS, Part One, para 5.

Const., Art. X, sect. 17.
26 Article XII Sec. 2. Emphasis added.
27
Id Emphasis added.
28
Emphasis added.
29
Respectively: 993 UNTS 3, entered into force 3 January 1976; 993 UNTS 171, entered into force 23
March 1976.
25

CAB, Annex on Power Sharing; Part III. BBL, Art. V, sec. 3.

Section 16: "The President shall exercise general supervision over autonomous regions to ensure that
the laws are faithfully executed; Sec. 17: "All powers, functions, and responsibilities not granted by the
Constitution or by law to the autonomous regions shall be vested in the National Government"; Sec. 18:
"The Congress shall enact an organic act for each autonomous region .... The organic acts shall
likewise provide for special courts with personal, family and property law jurisdiction consistent with
the provisions ofthe Constitution and national laws"; Sec. 20: "Within its jurisdiction and subject to
the provisions of the Constitution and national law, the organic act of autonomous regions shall
provide for legislative powers ..." (Emphasis added.)
32 These legislative powers are over: "Administrative organization; Creation of sources of revenue;
Ancestral domain and natural resources; personal, family, and family relations; Regional, urban and
rural planning development; Economic, social, and tourism development; Educational policies;
Preservation and development of the cultural heritage; and Such other matters as may be authorbed by
law for the promotion of the general welfare of the people of the region".
33 Emphasis added.
34 Emphasis added.
36 Emphasis added.
36 BBL, Art. VII, sec. 2. Emphasis added.
w BBL, Art. VII, sec. 1. Emphasis added.
38 BBL, Art. VI, Sec. 8.
w BBL, Art. VI, Sec. 4. Emphasis added.
30
31

31