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LEGAL MEMORANDUM FOR THE DRAFT
BANGSAMORO BASIC LAW
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A Final Paper Submitted in Partial Fulfillment

of the Requirements in

Constitutional Litigation

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Submitted to:
Dean Antonio La Vina

Atty. Joan de Venecia

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Submitted by:

Mohammad Muktadir A. Estrella

Ariane P. Ong

Rhealeth Krizelle D. Ramos

Mark Haddison P. Tandoc

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October 10, 2014
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I. Summary of Legal Issues Addressed

A Ministerial Form of Government in the Bangsamoro Political Entity

Justice Marvic Leonen1, in an interview, stated that [t]here is nothing [in the

Constitution] which says that a ministerial form of government in an autonomous area is

prohibited,2 likening the setup to a local parliamentary dominated by political parties.3 In

another article, it was reiterated that [o]fficials said there was no need to amend the Constitution

to create the parliamentary form of government envisioned for the Bangsamoro.4 This is

because Article X of the Constitution5 talks about the creation but not the form of government in

the Autonomous Region. In fact, Art X, Sec. 18 provides that: The organic act shall define the

basic structure of the government for the region.6

Therefore, the law does not prohibit the use of ministerial form of the government. This

is clear from Article X, Section 18 which does not distinguish the type of government the

autonomous region must have. It then settles that the provision in the BBL on ministerial form of

government is constitutional.

The Concept of Reserved, Exclusive, and Concurrent Powers Between national and

Autonomous Regions

1 Leonen was not yet a member of the Supreme Court at the time of said interview. Rather, he was then serving as
the Chair of the Government Peace Panel

2Camille Deola, Leonen: Cha-cha not needed for Bangsamoro deal, PHIL. STAR, Oct. 10, 2012, available at http://
www.philstar.com/breaking-news/2012/10/10/858102/leonen-cha-cha-not-needed-bangsamoro-deal

3 Id.

4 Aurea Calica & Delon Portalla, Bangsamoro law goes to congress, PHIL. STAR, Sept. 11, 2014, available at
http://www.philstar.com/headlines/2014/09/11/1367724/bangsamoro-law-goes-congress
5 1987 Phil. Consti., art. X.
6 1987 Phil. Consti., art. X, 8.

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Article V of the Bangsamoro Basic Law are the powers given to the Central Government

and the Bangsamoro Government which are classified into three types: reserved powers which

refer to matters over which authority and jurisdiction are retained by the Central Government7;

concurrent powers which refer to the powers shared between the Central Government and the

Bangsamoro Government within the Bangsamoro8; and exclusive powers which refer to

matters over which authority and jurisdiction pertain to the Bangsamoro Government9.

The Central Government even with the exclusive powers granted to Bangsamoro, still has

influence and a degree of control. The Office of the President has made this clear in the primer

released by its office. It states that : The Bangsamoro Government is still a governmental unit

within the ambit of the Philippine state. As such, the provisions in the Annex on Power Sharing

are subject to all constitutional guidelines including the general supervision of the President over

the autonomous regions. However, the Presidents general supervision over the Bangsamoro,

especially in the exercise of its exclusive powers, will be with due deference to its regional

autonomy, a notion likewise guaranteed in the Constitution. Moreover, it is understood that

standards and programs pertaining to matters such as education, trade, labor, budgeting, financial

and banking system, etc. shall be harmonized. It must be stressed that these exclusive

governmental powers are to be exercised by the Bangsamoro Government within its jurisdiction.

7 H.B. No. 4994, 16th Cong., Art V, 1.


8 H.B. No. 4994, 16th Cong., Art V, 2.
9 H.B. No. 4994, 16th Cong., Art V, 3.

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When there is impact beyond its territorial jurisdiction, other concerned government units shall

exercise their respective authorities.10

The kind of system guarantees that Bangsamoro is not an independent state from the

Republic and the powers discussed are well within the legal parameters of Sections 15 and 20 of

the 1987 Philippine Constitution.

Lump Sum for the Bangsamoro granted automatically every year as a subsidy.

The grant of lump sum subsidy is constitutional. First, the 1987 Philippine Constitution

explicitly provides for the automatic release of government funds intended for the local

government units as enshrined in Section 6. Local government units shall have a just share, as

determined by law, in the national taxes which shall be automatically released to them.11

The President does not have the power to determine how the funds are allocated to the

local governments or how it is spent. The President only has to ensure that the public officials of

the local governments act in accordance with the law. Thus, in accordance with the constitution,

the provision in the HB 4994 regarding the automatic grant of lump sum for the Bangsamoro

every year as a subsidy is valid.

Rights of Indigenous Peoples within the Bangsamoro

The rights of the Indigenous Peoples within the Bangsamoro is governed by the

Bangsamoro Basic Law. However, this does not preclude the application of IPRA in the

10Primer on the Annex on Power Sharing to the Framework Agreement on the Bangsamoro, available at http://
www.opapp.gov.ph/sites/default/files/Primer%20on%20the%20Annex%20on%20Power%20Sharing.pdf (last
accessed October 9, 2014).
11 PHIL. CONST. art. X, 6.

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Bangsamoro. The fact that there is recognition of these rights, there arises the presumption of

applicability. BBL, also, provides for a more specific and detailed law as well as the power to

enact more laws regarding Indigenous Peoples Rights. Thus, there is no need for a regional

IPRA. However, theres no prohibition regarding the creation of such since the parliamentary

powers to legislate is present in the BBL.

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II. Summary of Conclusion and Recommendation

1st Issue: Whether or not an autonomous region


can have a ministerial form of government.
The autonomous region can have a ministerial form of government. There is nothing in

the Constitution which prohibits the creation of a ministerial form of government. Hence there is

no need to amend the Constitution to create a parliamentary form of government. Article X,

Section 15 of the Constitution merely provides:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

On the other hand, the Constitution mandates the Congress to create a law to create the

powers and responsibilities of local governments in order to address the particular needs within

the locality. Article X Section 3 of the Constitution provides:

Section 3. The Congress shall enact a local government code which shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units.

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Relying on the wisdom of the Congress, the ministerial form of government is the proper

form of government that is suitable to the culture and needs of the Bangsamoro. This form of

government is not prohibited by the Constitution. Hence, there is no need to amend the

Constitution.

2nd Issue: How can you justify the concept of


reserved, exclusive, and concurrent powers
between the national and autonomous regions?
The concept of reserved, exclusive and concurrent powers between the national

government and autonomous regions springs from the Constitution itself according to Atty. Anna

Tarhata Basman. She submits that the Constitution itself provides the justification for the

asymmetry and reserved a separate set of provisions for two particular areas in the country

Muslim Mindanao and the Cordilleras.12 This means that the relationship created between the

Central Government and the Bangsamoro Government is one that is sanctioned by the

Constitution itself giving the Bangsamoro the highest possible form of autonomy that can be

granted to the autonomous region contemplated under Sec. 15, Art. X of the Constitution.

Secondly, even if the Bangsamoro government is given exclusive powers over its

territory, the National government still have power over the former. This was explained and

made clear in the primer released by the Office of the Presidential Adviser on Peace Process, to

wit: The Bangsamoro Government is still a governmental unit within the ambit of the Philippine

state. As such, the provisions in the Annex on Power Sharing are subject to all constitutional

guidelines including the general supervision of the President over the autonomous regions.13

12
Official Website of the Office of the Presidential Adviser on the Peace Process (2014). Retrieved from: http://
www.opapp.gov.ph/milf/news/gov%E2%80%99t-bangsamoro-pact-legal-ph-constitution-its-paramount-basis
13 Id.

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3nd Issue: How can you justify the provision that
a lump sum for the Bangsamoro shall be
automatically granted every year as a subsidy?
The 1987 Philippine Constitution explicitly provides that political subdivisions such as

the Bangsamoro government, shall enjoy local autonomy.14 This is a constitutional right which

cannot be diminished saved for the exceptions provided by the Constitution.

Secondly, the 1987 Philippine Constitution explicitly provides that government funds

intended for local government units should be automatically released. Thus, Art. X Section 6

provides: Local government units shall have a just share, as determined by law, in the national

taxes which shall be automatically released to them.15

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4th Issue: How do you treat the rights of
indigenous people within the Bangsamoro?
The Bangsamoro Law recognized the right of indigenous people. Article IX of Section 5

of the pending bill provides:

Section 5. Indigenous Peoples Rights. The Bangsamoro Government recognizes the


rights of the indigenous peoples, and shall adopt measures for the promotion and
protection of their rights, the right to their native titles and/or fusaka inged, indigenous
customs and traditions, justice systems and indigenous political structures, the right to an
equitable share in revenues from the utilization of resources in their ancestral lands, the
right to free and prior informed consent, right to political participation in the Bangsamoro
Government including reserved seats for the indigenous peoples in the Bangsamoro
Parliament, the right to basic services and the right to freedom of choice as to their identity.
The above-mentioned provision is silent on the applicability of the IPRA. However, since

the rights of indigenous people are recognized by the State and international conventions that we

14 PHIL. CONST. art. X, 2.


15 PHIL. CONST. art. X, 6.

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have entered into, we submit that IPRA, together with UNDRIP andILO Conventions, is

applicable in Bangsamoro regions.

Our recommendation is for the Bangsamoro Transition Commssion to clearly delineate

and define the extent of relationship between the ancestral domain and the native title. Second,

there is a need to develop new mechanisms to promote trust among Moros and the Indigenous

Peoples in Bangsamoro.

III. Brief Historical Background

The present Bangsamoro is largely composed of five groups: the Tausugs of Sulu, the

Sama of Tawi-Tawi, the Maguinadanaons of Cotabato, the Maranaws of Lanao del Sur, and the

Yakans of Basilan16. In 2013, the Bangsamoro is estimated to be about 4.7 million strong as a

people17. As defined under Sec. 2, Art. I of the Bangsamoro Basic Law, the Bangsamoro People

refer to 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 full blood18.

Before the advent of Spanish colonial rule in the Philippines, the Muslims of the South are

believed to have the most progressive political and economic systems across the archipelago. As

a people, they resisted domination of colonial powers but their influence across the archipelago

16Sakili, A. (2012). The Bangsamoro Framework Agreement and the Mindanao Problem. Retrieved from: http://
asj.upd.edu.ph/mediabox/archive/ASJ-48-1and2-2012/Sakili-Bangsamoro%20Framework%20Agreement
%20Historical%20Cultural%20Facts%20Social%20Southern%20Philippines.pdf
17Official
Website of the Autonomous Region in Muslim Mindanao. Retrieved from: http://armm.gov.ph/
demographics/
18 Sec. 1, Art. I, Bangsamoro Basic Law

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over the decades has dwindled. The Bangsamoro history is better discussed in the Official

Website of the ARMM Government:

They had repelled the influence of foreign domination particularly the


Spaniards, Japanese, and Americans. Their land was nevertheless annexed into
the Philippine government after the Americans gave independence to the
Philippines. Mindanao was opened to Christian settlers, mostly from the
Visayas, by the late President Ramon Magsaysay under his populist platform of
economic reforms. These relieved population pressure from the north and made
the president widely popular among the Filipinos but it heightened religious
hostilities in Mindanao. Mindanaos rich natural resources were shared with the
rest of the Philippines. The situation worsened when unscrupulous persons,
politicians and businessmen, took advantage of the peoples low economic
state. Land grabbing and social injustices were committed against the regions
peace-loving people. This forced the people of Mindanao to rise in protest
against the Philippine government. On March 18, 1968, at least 23 Muslim
Trainees were shot to death on Corregidor Island, which is to be known later as
the Jabidah Massacre. The event sparked anger among the Muslims and gave
rise to Bangsamoro movements both civil and armed. The Moro National
Liberation Front was born under the leadership of Prof.Nur Misuari.
!The MNLF and the Philippine Armed Forces had an armed conflict on
February 1973 which led to the death and displacement of thousands of
innocents and further escalated the so-called Mindanao problem. Hostilities
continued despite the signing on July 7, 1975 by President Ferdinand E.
Marcos of Presidential Decree No. 742 and Letter of Instruction 290 creating
the Western and Central Mindanao regions and establishing the Office of the
Regional Commissioner (ORC) in both regions. Thus, the Organization of
Islamic Conference (OIC) intervened leading to the signing of the Tripoli
Agreement between the Philippine Government and the MNLF in Tripoli,
Libya on December 23, 1976. In compliance therewith, President Marcos
signed Presidential Proclamation No. 1628 on March 25 1977 creating an
Autonomous Region in Southern Philippines.19
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On August 1, 1989, then President Corazon C. Aquino signed RA 6734 (Organic Act of

the Autonomous Region in Muslim Mindanao) into law. After three months from its enactment, a

plebiscite was conducted among some provinces in Mindanao, the results of which formally

created the ARMM20. However, what was thought to be a concrete solution to address the

problems of the struggle to self-determination of the Bangsamoro people did not prove to be

19 Official Website of the Autonomous Region in Muslim Mindanao. Retrieved from: http://armm.gov.ph/history/
20 Official Website of the Autonomous Region in Muslim Mindanao. Retrieved from: http://armm.gov.ph/history/.

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effective. Despite the creation of the ARMM, the region is still lags behind economy, education,

and peace and order situation. Because of these conditions, negotiations between the National

Government and representatives of the Bangsamoro went on for decades.

In 2008, the Memorandum of Agreement on Ancestral Domain creating the Bangsamoro

Juridical Entity was ruled unconstitutional by the Supreme Court21. This landmark decision

worsened the peace and order situation in the region as thousands felt betrayed by the National

Government. Armed violence continued until the signing of the Bangsamoro Framework

Agreement in 2012 which is the basis of the Bangsamoro Basic Law whose provisions are now

challenged by issues of constitutionality.

IV. DISCUSSION OF ISSUES

1st ISSUE: Whether or not an Autonomous Region


can have a Ministerial Form of Government.
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What is a ministerial form of government?

A parliamentary system has been defined as generally, a system of government where

there is a dual executive, one called the president, the other called a prime minister with

respective powers and functions; and the executive, including members of the cabinet, are also

members of the legislature for the specified period of time.22 It is

a government in which members of an executive branch (the cabinet and its leader - a
prime minister, premier, or chancellor) are nominated to their positions by a legislature or
parliament, and are directly responsible to it; this type of government can be dissolved at

21 Province of North Cotabato v. GRP, G.R. No. 183591, October 14, 2008.

22Ma. Lourdes G. Rebullida, The Executive: Martial Law, Constitutional Authoritarianism, and the Marcos
Administration, in PHILIPPINE POLITICS AND GOVERNANCE: AN INTRODUCTION 175 (Noel M. Morada &
Teresa S. Encarnacion Tadem ed., 2006)

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will by the parliament (legislature) by means of a no confidence vote or the leader of the
cabinet may dissolve the parliament if it can no longer function.23
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Pertinent provisions under House Bill No. 4994

Article IV Section 224 of the draft of the Bangsamoro Basic Law (BBL), or House Bill

No. 4991, provides that [t]he Bangsamoro Government shall be parliamentary, [emphasis

supplied] and Section 325 thereof mandates that [t]he Bangsamoro Government shall adopt an

electoral system suitable to a ministerial form of government. [emphasis supplied] This

Parliament has a wide range of powers enumerated in the said bill.26

Article VIII of the BBL zeroes in on the Wali. In the context of the proposed Bangsamoro

Government, the Wali is the titular head of the Bangsamoro.27 Like the Queen in the British

monarchy, the Wali shall take on only ceremonial functions.28 Furthermore, being part of the

Bangsamoro Government, [t]he Wali shall be under the general supervision of the President.

Meanwhile, the parallel of a prime minister in the proposed Bangsamoro Government

is the Chief Minister, who shall exercise executive authority on behalf of the government.29

While the BBL vests legislative powers in the Parliament,30 executive powers are vested in the

23Central Intelligence Agency, Government Type, available at https://www.cia.gov/library/publications/the-world-


factbook/fields/print_2128.html.

24 H.B. No, 4994, 16th Cong., Art. IV Sec. 2.

25 H.B. No, 4994, 16th Cong., Art I Sec. 3.

26See H.B. No, 4994, 16th Cong., Art. V. Sec. 2 for the concurrent powers; and Sec. 3 & 4 thereof for the exclusive
powers.

27 H.B. No, 4994, 16th Cong., Art. VIII Sec. 1.

28 Id.

29 H.B. No, 4994, 16th Cong., Art. VII Sec. 1.

30 H.B. No, 4994, 16th Cong., Art. VII Sec. 2.

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Cabinet, which the Chief Minister heads.31 The tight intertwinement of these two branches is

reflected in Section 3 of Article VII of the BBL, which not only provides that the Chief Minister

shall be elected by a majority vote of the Parliament among its members,32 but also that

majority of the members of the Cabinet come from the Parliament.33 Thus, the BBL envisions a

Bangsamoro Government with a Wali as its titular head, and a Chief Minister, in which political

power is vested.

Why is there a clamor for a ministerial form of government in the BPE?

The parliamentary form of government provided by the BBL is seen as a measure to

address years of fighting between rebels and government forces that have left the area

economically depressed and virtually lawless.34 Government Chief Negotiator Miriam Coronel-

Ferrer explained that a parliamentary system would allow for a broader base of political

representation and participation in governance. It would compel the formation of competitive

and sustainable political parties in the region.35 Notably, the BBL provides that [t]he

Parliament shall be composed of at least sixty (60) members, unless otherwise provided by the

Parliament who are representatives of political parties elected through a system of political

31 Id.

32 H.B. No, 4994, 16th Cong., Art. VII Sec. 3.

33 Id.

34Simone Orendain, Philippine proposal for autonomous muslim region, VOICE OF AMERICA, Sept. 12, 2014,
available at http://www.voanews.com/content/philippine-proposal-for-autonomous-muslim-region-faces-challenges/
2447346.html

35 Supra note 4.

36 H.B. No, 4994, 16th Cong., Art. VII Sec. 4.

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representation36 This is more consistent with the culture of the Moros, which, historically,

have been governed by tribes and clans.

Pertinent Constitutional provisions regarding the structure of government in an autonomous

region

With regard to the constitutionality of the BBL provisions pertaining to the adoption of a

parliamentary form of government, Constitutional Law expert Antonio La Vina37 notes that:

As envisioned, the Bangsamoro will not infringe the Constitution since it will merely
replace the Autonomous Region in Muslim Mindanao (ARMM) whose creation was
mandated by the Constitution itself and by its Organic Act Republic Act 9054. Even the
ministerial form of government, which to many may be a not-so familiar concept,
does not necessarily call for a constitutional amendment since in reference to
Bangsamoro, it merely relates to the provisions of autonomy which is still within
the constitutional framework.38 [emphasis supplied]
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This view is supported by Justice Marvic Leonen, who said in an interview39 that [t]here is

nothing [in the Constitution] which says that a ministerial form of government in an autonomous

area is prohibited,40 likening the setup to a local parliamentary dominated by political parties.41

In another article, it was reiterated that [o]fficials said there was no need to amend the

37 Antonio
G.M. La Vina, Bangsamoro not BJE, MINDA NEWS, Oct. 9, 2012, available at http://
www.mindanews.com/mindaviews/2012/10/09/rivermans-vista-bangsamoro-not-bje/

38 Id.

39Leonen was not yet a member of the Supreme Court at the time of said interview. Rather, he was then serving as
the Chair of the Government Peace Panel

40Camille Deola, Leonen: Cha-cha not needed for Bangsamoro deal, PHIL. STAR, Oct. 10, 2012, available at
http://www.philstar.com/breaking-news/2012/10/10/858102/leonen-cha-cha-not-needed-bangsamoro-deal

41 Id.

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Constitution to create the parliamentary form of government envisioned for the

Bangsamoro.42 [emphasis and underscoring supplied]

In discussing the constitutionality of laws pertaining to local governance in general and

autonomous regions in particular, a review of Article X of the 1987 Constitution is imperative.

The creation of an autonomous region in Mindanao is supported by the following constitutional

provisions, to wit:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions
in Muslim Mindanao and the Cordilleras as hereinafter provided.

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures,
and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.

These provisions, however, pertain merely to the creation of an autonomous region. But more to

the point of the issue herein being tackled, what does the Article X say about the form of

government in said autonomous regions? In this regard, Section 1843 is instructive, the pertinent

part of which reads:

Section 18. The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multi-sectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family, and property law jurisdiction
consistent with the provisions of this Constitution and national laws.44

42 Supra note 14.

43 PHIL. CONST., art. X, 18.

44 PHIL. CONST., art. X, 18.

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While the other sections under the Autonomous Regions subset of Article X pertain to the

powers that may be exercised within said regions and the relationship of the President of the

Philippines therewith, no other section, other than the above mentioned Section 18, pertain to the

form of government. In constitutional construction, [i]t is a well-established rule that the

language of the constitution, as much as possible, should be understood in the sense it has in

common use and that the words in constitutional provisions are to be given their ordinary

meaning except where technical terms are employed.45 As explained by the Court, this must be

so because the fundamental law is not primarily a lawyers document but essentially that of the

people, in whose consciousness it should ever be present as an important condition for the rule of

law to prevail.46 Settled, too, is the maxim that where the law does not distinguish, courts

should not distinguish. Ubi lex non distinguit, nec distinguere debemus.47Therefore, there being

no provision under the pertinent sections of the 1987 Constitution pertaining to the prohibition of

the use of a ministerial form of government, and it being clear that Article X Section 18 does not

distinguish as to what type of basic structure an autonomous region must have, and applying the

above-mentioned settled rules in construction, it can be said that a ministerial form of

government for the autonomous regions is not prohibited by the Constitution. What is not

prohibited is allowed. Therefore, the provision in the BBL pertaining to having a ministerial form

of government is constitutional.

45 Ruben E. Agapalo, STATUTORY CONSTRUCTION 586 (2009 ed.)

46 Id.

47 Agapalo, supra note 25 at 289-290 (2009 ed.)

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Section 1848, however, provides the fundamental components of the government of an

autonomous region, which must be complied with considering the use of the word shall.

49Notably, all of these components mentioned in said section are provided for under the BBL.

The BBL, under Article VII thereof, provides for an executive department and legislative

assembly50 which are both elective and representative of the constituent political units,51 as

required under Section 18 of the Constitution.52 Too, provisions for special courts may be found

in the BBL.53 The requirements of Section 18 thus complied with, it can be said that there is no

reason why a ministerial form of government cannot be had in the Bangsamoro Political Entity.

Former Senator Atty. Rene Espina questions the provisions pertaining to a parliamentary

form when, according to him:

The Philippine Constitution speaks only of barangays, towns, cities, provinces with their kapitans,
mayors, and governors. Why then is there a proposed Wali, a kind of head of state with only
ceremonial powers like the queen of the United Kingdom? The Wali will be recommended by the
MILF Bangsamoro chief minister to be appointed by the President of the Philippines? Are we
following the Malaysian form of government?54

However, it must be remembered that Article X Section 1 recognizes not only provinces, cities,

municipalities and barangays (as is so claimed), but also the existence of autonomous regions.

48 PHIL. CONST., art. X, 18.

49 PHIL. CONST., art. X, 18.

50 PHIL. CONST., art. X, 18.

51 PHIL. CONST., art. X, 18.

52 See H.B. No, 4994, 16th Cong., Art. V, VII, & VIII.

53 See H.B. No, 4994, 16th Cong., Art. X.

54
Rene Espina, Anti-BBL are anti-peace?, MANILA BULLETIN, Sept. 29, 2014, available at http://
www.mb.com.ph/anti-bbl-are-anti-peace/.

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Thus, a wide latitude must be given in order for the essence of providing for an autonomous

regions to be given effect. Also, the same must be harmonized with the other provisions of the

Constitution, which have already been discussed above to allow for the accommodation of a

parliamentary form of government. The argument that the Constitution speaks only of kapitans,

mayors, and governors, is incorrect considering that neither of the three appear in the

Constitution. Notably, Article X Section 3 states that:

Section 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a system
of decentralization with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other matters relating
to the organization and operation of the local units. [underscoring supplied]

Thus, it can be argued that, an autonomous region being a local government unit, it is within the

power of Congress, as it so exercised in House Bill No. 4994, to provide for the powers,

responsibilities and resources of the Bangsamoro Government and to do the same for the

qualifications, election, appointment andpowers and functions and duties of local officials.

While the existing Local Government Code55 provides for such rules to be implemented in local

government units, it must be noted that autonomous regions, by constitutional fiat, have to be

governed by an Organic Act. Thus, neither can it be used against the BBL that it contains

provisions for local governance that are, at present, alien to Philippine experience.

Also, a ministerial form of government cannot likewise be said to not be in consonance

with the provision under Article II Section 1 which states that [t]he Philippines is a democratic

55The Local Government Code of the Philippines [LOCAL GOVERNMENT CODE], Republic Act. No. 7160
(1991).

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and republican State. Sovereignty resides in the people and all of government authority emanates

from them.56 The second sentence thereof is actually the definition of what a republican

government is.57 According to Fr. Bernas, it was understood by the delegates to the

Constitutional Convention to be that which James Madison described as that

which derives all its power, directly or indirectly from the great body of the people,
and is administered by persons holding their offices during pleasure, for a limited period,
or during good behavior It is sufficient for such government that the person
administering it be appointed either directly or indirectly, by the people; and that they
hold their appointments by either of the tenures just specified.

Democracy, on the other hand, is defined in this wise:

Democracy the philosophy and ideology of government based on the principles of


consent of the people (consent of the governed), rights and liberties of the individual and
the people, participation of the people in the workings of the state and government,
accountability of political leadership to the people.58

As can be gleaned from these definitions, the concept of a ministerial form of government, as

specifically provided for under the BBL, reflect the basic tenets of republicanism and democracy.

In fact, Article I Section 3 thereof emphasizes that:

The purpose of this Basic Law is to establish a political entity, provide for its basic
structure of government in recognition of the justness and legitimacy of the cause of the
Bangsamoro people and their aspiration to chart their political future through a
democratic process that will secure their identity and posterity and allow for meaningful
self-governance.59 [emphasis and underscoring supplied]

56 PHIL. CONST., art. II, 1.

57
Fr. Joaquin Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 57 (2009 ed.).

58 Ma. Lourdes G. Rebullida, Executive Power and Presidential Leadership: Philippine Revolution to Independence,
in PHILIPPINE POLITICS AND GOVERNANCE: AN INTRODUCTION 147 (Noel M. Morada & Teresa S.
Encarnacion Tadem ed., 2006)

59 H.B. No, 4994, 16th Cong., Art. I Sec. 3.

18
At the same time, Article IV Section 3 mandates that the electoral system shall allow

democratic participation, encourage formation of genuinely principled political parties, and

ensure accountability.60 Verily, there are democratic and republican countries the world over

with a ministerial form of government (e.g. Austria, Bostwana, Croatia, Finland, Germany,

Hungary, Iceland, Malta, and Singapore, to name a few).

The fact that the Philippines adopts the presidential system of government does not mean

that an autonomous region cannot adopt a ministerial form of government, especially when the

Constitution itself mandates that the organic act of such autonomous region shall provide for the

latters basic structure of government. Thus, inherent here is the allowance for adopting a

structure of government other than the one used by the Central government. In the final analysis,

what is a constitution for?

A constitution is established by the people in their sovereign capacity, to promote


their happiness and to secure their rights, property, independence and common
welfare It does not deal in details but enumerates general principles and general
directions which are intended to apply to all new facts which may come into being
and which may be brought within those general principles and directions.61
[emphasis and underscoring supplied]

Thus so must a Constitution be appreciated. An interpretation too stiff as to cripple the heart and

soul of what a constitution is about, of why one is in place in the first place, should not be had. In

the context of the BBL, a parliamentary form of government is in consonance with the desires of

many of the stakeholders.62 To take this out of the equation is to deprive one of the basic requests

60 H.B. No, 4994, 16th Cong., Art. IV Sec. 3.

61 Agapalo, supra note 25 at 581 (2009 ed.)

62 Maila Ager, Ministerial form of government set for Bangsamoro territory in peace deal, PHIL. DAILY INQ.,
Oct. 8, 2012, available at http://newsinfo.inquirer.net/285242/ministerial-form-of-govt-set-for-bangsamoro-
territory-in-peace-deal#ixzz3FcynLbel.

19
of the other party unnecessarily. Such is not the way to peace. It has been said that the best

constitutions are those that are so flexibly worded, or so susceptible to revision, that we can write

and re-write our values unto their provisions as we see fit,63 and that the question becomes

more pressing when we put on our thinking caps as constitutional engineers in a deeply divided

post-conflict world.64

2nd Issue: How can you justify the concept of


reserved, exclusive, and concurrent powers
between the national and autonomous regions?
!
Creation of the Bangsamoro is within the bounds of Art. X, Sec. 15 of the 1987 Philippine

Constitution; thus, valid and constitutional

Art. X, Sec. 15 of the Constitution provides that there shall be created autonomous

regions in Muslim Mindanao and 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. Pursuant to this, on August 1, 1989, then President Corazon C. Aquino signed RA

6734 (Organic Act of the Autonomous Region in Muslim Mindanao) into law. After three months

63 A. Edcel C. F. Tupaz, The Maguindanao Question: Constitutional Dialogue in Southern Philippines, 54 ATENEO
L.J. 1, 2-3 (2009).

64 Tupaz, supra note 42, at 5.

20
from its enactment, a plebiscite was conducted among some provinces in Mindanao, the results

of which formally created the ARMM65.

However, what was thought to be a concrete solution to address the problems of the

struggle to self-determination of the Bangsamoro people did not prove to be effective. Despite

the creation of the ARMM, the region is still the poorest in terms of economy, its people have

one of the lowest literacy rates in the country, and its peace and order situation remains far from

what was envisioned. As such, the creation of the Bangsamoro under the proposed Bangsamoro

Basic Law, as a result of decades of negotiations between the Government of the Philippines and

Representatives of the Bangsamoro people, is seen as an effective tool to address the long-

standing problems in the Muslim Region in the South.

In the primer released by the Bangsamoro Transition Commission (BTC) on February

2014, it was mentioned that real and meaningful autonomy shall allow the the (sic.)

Bangsamoro to address long-standing problems of injustice, poverty, social and political

marginalization caused by institutions, laws and policies that are not attuned to the needs,

grievances, identities, and experiences of the Bangsamoro. Real autonomy shall afford the people

to exercise their right to self-determination towards the development of political institutions and

processes and their material resources, while preserving their cultural heritage, values, and

traditions.66

65Official Website of the Autonomous Region in Muslim Mindanao, available at : http://armm.gov.ph/history/. (last
accessed October 2, 2014).
66 A Primer on the Bangsamoro Transition Commission and the Bangsamoro Basic Law 7 (2014).

21
A critical issue, however, raised against the validity of the creation of the Bangsamoro

under the Bangsamoro Basic Law (BBL) is whether or not it falls within the bounds of Article X,

Sec. 15 of the 1987 Philippine Constitution which provides for the creation of an autonomous

region. Sen. Miriam Defensor-Santiago, a known Constitutional expert and a legislator herself,

points out that the Constitution allows only the creation of an autonomous region and not of a

sub-state that exercises reserved powers only for the central government. Further, she maintains

that the enactment of the BBL into law would violate the principle of Constitutional

Supremacy.67

She likened the Bangsamoro Agreement to the MOA-AD, which was ruled by the

Supreme Court unconstitutional in the landmark case of the Province of North Cotabato, et.al. v

the Government of the Republic of the Philippines in 200868, saying that both appear to facilitate

the secession of the Bangsamoro from our country, in a manner similar to the secession of

Kosovo and Crimea"69.

Several other reasons were also listed by Sen. Defensor-Santiago as to why the creation of the

Bangsamoro under the BBL, in her opinion, violates the Constitution, to wit;

a. The powers of the central government shall be determined by the Agreement, thus
turning Bangsamoro into a substate.
b. The Autonomous Region in Muslim Mindanao, which is provided for by the
Constitution, will be abolished by mere agreement with the MILF, which is not
surprising if you consider that the Bangsamoro will become a substate.

67RG Cruz, Bangsamoro Deal Unconstitutional, Miriam Says, April 4, 2014 available at http://www.abs-
cbnnews.com/nation/04/02/14/bangsamoro-deal-unconstitutional-miriam-says (last accessed October 4, 2014).
68
Province of North Cotabato, et.al. v the Government of the Republic of the Philippines in 2008, G.R. No. 183591,
November 11, 2008.
69 Id.

22
c. Allocation to the Bangsamoro of all powers exercised by the national government
over local government units.
d. Although the Constitution provides that natural resources belong to the state, in
the Bangsamoro territory, only the Bangsamoro will have exclusive jurisdiction over
natural resources.
e. The Annex on Power Sharing gives to Bangsamoro so-called "exclusive powers,"
which is defined as a tautology, as "powers or matters over which authority and
jurisdiction pertain to the Bangsamoro government."
f. Only the Bangsamoro shall be under a ministerial form of government, while the
rest of the country will operate under a presidential form of government.
g. The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the
Transition Commission which at present is reportedly drafting the Bangsamoro
Basic Law. One of the functions of the Transition Commission is as follows: "To
work on proposals to amend the Philippine Constitution for the purpose of
amending and enriching in the Constitution the agreements of the Parties whenever
necessary without derogating from any prior peace agreement.70
On the other hand, addressing the questions on the validity of the creation of the

Bangsamoro under the BBL, it is argued by the Governments legal team head dealing on the

Comprehensive Agreement on the Bangsamoro, Atty. Anna Tarhata Basman, that the paramount

basis of the creation of the Bangsamoro under the BBL is in fact the Constitution. She submits

that the Constitution itself provides the justification for the asymmetry and reserved a separate

set of provisions for two particular areas in the country Muslim Mindanao and the

Cordilleras.71 This means that the relationship created between the Central Government and the

Bangsamoro Government is one that is sanctioned by the Constitution itself giving the

Bangsamoro the highest possible form of autonomy that can be granted to the autonomous region

contemplated under Sec. 15, Art. X of the Constitution.

She also cites Sec. 20 of Art. X of the 1987 Philippine Constitution, as the basis of the

devolved powers granted to the Bangsamoro Government under the BBL, which provides that:

70 Id.
71Official Website of the Office of the Presidential Adviser on the Peace Process available at http://
www.opapp.gov.ph/milf/news/gov%E2%80%99t-bangsamoro-pact-legal-ph-constitution-its-paramount-basis (last
accessed October 2, 2014).

23
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.
!
Powers granted to the Bangsamoro Government under the BBL

Provided under Article V of the Bangsamoro Basic Law are the powers given to the

Central Government and the Bangsamoro Government which are classified into three types:

reserved powers which refer to matters over which authority and jurisdiction are retained by the

Central Government72; concurrent powers which refer to the powers shared between the

Central Government and the Bangsamoro Government within the Bangsamoro73; and exclusive

powers which refer to matters over which authority and jurisdiction pertain to the Bangsamoro

Government74.

As provided therein, reserved powers of the Central Government include the following:

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

citizenship and naturalization, immigration, customs and tariff (qualified), common market and

72 H.B. No. 4994, 16th Cong., Sec.1, Art.V


73 H.B. No. 4994, 16th Cong., Sec.2, Art V.
74 H.B. No. 4994, 16th Cong., Sec. 3, Art. V.

24
global trade (subject to the provisions of RA 9054), and Intellectual Property Rights75.

Meanwhile, among the shared powers between the Central Government and the Bangsamoro

Government are: social security and pensions, quarantine, land registration, pollution control,

human rights and humanitarian protection and promotion, penology and penitentiary, auditing,

civil service, coast guard, customs and tariff, administration of justice, funding for the

maintenance of national roads, bridges, and irrigation systems, disaster risk reduction and

management, and public order and safety76. Finally, the exclusive powers granted to the

Bangsamoro Government are provided under Sections 3 and 4 of Article V of the Draft

Bangsamoro Basic Law.

It must be emphasized that the Central Government still has powers over the Bangsamoro

Government even in the exercise of its exclusive powers. This was explained and made clear in

the primer released by the Office of the Presidential Adviser on Peace Process, to wit;

The Bangsamoro Government is still a governmental unit within the ambit of the
Philippine state. As such, the provisions in the Annex on Power Sharing are subject to
all constitutional guidelines including the general supervision of the President over
the autonomous regions. However, the Presidents general supervision over the
Bangsamoro, especially in the exercise of its exclusive powers, will be with due
deference to its regional autonomy, a notion likewise guaranteed in the Constitution.
Moreover, it is understood that standards and programs pertaining to matters such as
education, trade, labor, budgeting, financial and banking system, etc. shall be
harmonized. It must be stressed that these exclusive governmental powers are to be
exercised by the Bangsamoro Government within its jurisdiction. When there is
impact beyond its territorial jurisdiction, other concerned government units shall
exercise their respective authorities.77

75 H.B. No. 4994, 16th Cong., Sec.1, Art.V.


76H.B. No. 4994, 16th Cong., Sec.2, Art.V.
77Primer on the Annex on Power Sharing to the Framework Agreement on the Bangsamoro available at http://
www.opapp.gov.ph/sites/default/files/Primer%20on%20the%20Annex%20on%20Power%20Sharing.pdf (last
accessed October 2, 2014)

25
In fact, intergovernmental relations mechanisms will be provided to resolve instances

where programs, laws, and standards of the Central Government are conflicting with that of the

Bangsamoro Governments. This kind of system guarantees that the Bangsamoro Government, in

exercising its self-governance pursuant to Sec. 1, Art. IV of the Bangsamoro Basic Law, is not an

independent state from the Republic as posited by the critics of the law.

It also bears importance to clarify that only the Central Government, through the

President, can enter into international agreements, set foreign policy, and represent the country in

matters dealing with foreign relations. International treaties, moreover, need the ratification of

the Philippine Congress. 78 This means that the capacity to enter into commitments to trade

organizations and thereby strengthen economic and diplomatic ties with the rest of the world is

still under the exclusive domain of the Central Government.

These are consistent with the reserved powers of the Central Government over foreign policy

and common market and global trade. The Bangsamoro Government may promote business

investments and engage in trade (and cultural activities) among foreign entities, including the

traditional barter trade and countertrade with the ASEAN countries. Such endeavors are to be

guided by the countrys international commitments and obligations, diplomatic relations, and

relevant national laws79 which goes to show that the kind of governance to be exercised by the

Bangsamoro Government is not the same as those of sovereign and independent states. Nothing

in the Bangsamoro Basic Law can be construed to mean that the BBLs enactment is the

beginning of an eventual independence of the Bangsamoro from the Philippines as it only carries

78 Id.
79 Id.

26
out the mandates of the pertinent provisions of the fundamental law of the land to which no other

law is superior.

Having said all these, it is respectfully submitted that the creation of the Bangsamoro

under the BBL and the provisions regarding power-sharing therein are valid and are well within

the legal parameters of Sections 15 and 20 of the 1987 Philippine Constitution.

3nd ISSUE: How can you justify the provision that


a lump sum for the Bangsamoro shall be
automatically granted very year as a subsidy?

The provision concerning the automatic grant of lump sum subsidy is constitutional for

the following reasons: policy of local autonomy, express provision of the Constitution

concerning automatic grant, and the limited power of the President over local governments.

Political Autonomy

The 1987 Philippine Constitution explicitly provides that political subdivisions such as

the Bangsamoro government, shall enjoy local autonomy.80 This is a constitutional right which

cannot be diminished saved for the exceptions provided by the Constitution.

The primary purpose of local autonomy is to allow local governments to do what is best

for their constituents. These local governments are in the best position to address the problems

and needs of the people within their jurisdiction.

In the case of Philippine Gamefowl Commission v. Intermediate Appellate Court, the

Supreme Court explained the importance of local autonomy, to wit:

80 PHIL. CONST. art. X, 2.

27
This objective could be blunted by undue interference by the national government in
purely local affairs which are best resolved by the officials and inhabitants of such
political units. The decision we reach today conforms not only to the letter of the
pertinent laws but also to the spirit of the Constitution.81

The policy of local autonomy can also be seen in the enactment of Local Government

Code of 1991, to wit:

SEC. 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals. Toward this
end, the State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local government units
shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government
units.82

Express Provision of the Constitution

Secondly, the 1987 Philippine Constitution explicitly provides that government funds

intended for local government units should be automatically released. Thus, Section 6 of Article

X provides that [l]ocal government units shall have a just share, as determined by law, in the

national taxes which shall be automatically released to them.83

Congress has the power to determine the amount of funds to be given to local

governments. The Local Government Code is an example on how the just share of national taxes

is determined. However, once the amount is determined, it should be released automatically as

provided by the Constitution. 84

81 Philippine Gamefowl Commission v. Intermediate Appellate Court, G.R. No. 72969-70 December 17, 1986.
82 An Act Providing for a Local Government Code of 1991 [Local Government Code], R.A. 7160, sec. 2 (1991).
83 PHIL. CONST. Art. X, 6.
84 PHIL. CONST. Art. X, 6.

28
As mentioned earlier, the local governments are in the best position to determine how the

funds are going to be used since they are in the best position to know the needs of their

constituents.

Moreover, if the funds are not automatically released, the policy of local autonomy for

local governments such as the Bangsamoro government might be compromised. The local

governments might be at the mercy of the National Government, particularly the executive and

legislative departments that may impose conditions. This is contrary to the policy of the State to

ensure local autonomy.

Presidents Power is Limited to Supervision

The Constitution explicitly provides that the President only has supervision over local

governments:

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.85

Control is the power of a higher official to change or modify what a subordinate officer

has done in pursuit of his duties.86 On the other hand, supervision means the power of a superior

officer to ensure that his lower officers perform in accordance with the law.87

Having mentioned this, the President cannot determine how the funds allocated to the

local governments, such as the Bangsamoro government, be spent. The President only has to

85 PHIL. CONST. Art. X, 4.


86 Drilon v. Lim, G.R. No. 112497, August 4, 1994.
87 Social Justice Society v. Atienza, G.R. No. 156052, February 13, 2008.

29
ensure that the public officials of the local governments act in accordance with the law. However,

these local public officials still have the discretion in laying out their plans for the benefit of their

constituents.

Section 4, Article 10 of the 1987 Constitution highlights the point that the funds allocated

to local governments should be automatically released in order that the Bangsamoro Government

shall have autonomy which is the clear intention of the Constitution.

4th Issue: How do you treat the rights of


indigenous people within the Bangsamoro?
Rights of Indigenous Peoples in the Bangsamoro

The rights of indigenous peoples are embodied in the constitution itself. According to

Article II, Section 22, [t]he State recognizes and promotes the rights of indigenous cultural

communities within the framework of national unity and development.88 Another is Art XII,

Section 5 which provides that:

Art. XII, Section 5. The State, subject to the provisions of this Constitution and national
development policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social, and cultural well-
being. The Congress may provide for the applicability of customary laws governing
property rights or relations in determining the ownership and extent of ancestral domain.89

88 1987 Phil. Consti., art. II, 22.


89 1987 Phil. Consti., art. XII, 5.
90
Office of the Presidential Adviser on Peace Process, Draft of Bangsamoro Basic Law, available at http://
www.opapp.gov.ph/resources/draft-bangsamoro-basic-law (last accessed October 5, 2014)
91AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL
COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES [The Indigenous Peoples Rights Act of 1997], Republic Act No. 8371 (1997).

30
A reading of the draft of the Bangsamoro Basic Law90 (BBL) reveals that theres a similarity

with those rights enshrined in the Indigenous Peoples Rights Act 91(IPRA). Article IX of Section

5 provides:

Section 5. Indigenous Peoples Rights. The Bangsamoro Government recognizes the rights of the
indigenous peoples, and shall adopt measures for the promotion and protection of their rights, the
right to their native titles and/or fusaka inged, indigenous customs and traditions, justice systems and
indigenous political structures, the right to an equitable share in revenues from the utilization of
resources in their ancestral lands, the right to free and prior informed consent, right to political
participation in the Bangsamoro Government including reserved seats for the indigenous peoples in
the Bangsamoro Parliament, the right to basic services and the right to freedom of choice as to their
identity.
The following are the rights identified by the BBL:

1) The right of the IPs to their native titles and/or fusaka inged, indigenous customs and tradition,

justice systems and indigenous political structures.92

2) Right to an equitable share in revenues from utilization of resources in their ancestral lands93;

3) Right to free and prior and informed consent94;

4) Right to political participation including at least two (2) reserved seats for the IPs in the

Parliament95;

92 H.B. No. 4994, 16th Cong., Art X, 5


93 Id.
94 Id.
95 Id.

31
5) Right to basic services and96;

6) Right to freedom of choice as to their identity97.

While the Office of the President enumerated the following basic rights of the IPs or the

ICCs in the Bangsamoro Basic Law98:

1. Right to native titles and/or fusaka inged (Article IX, Section 5);

2. Preferential right to explore, develop, and utilize natural resources within areas covered

by their native titles. In case these activities are to be undertaken by the Bansgamoro

Government, or by an authorized concessionaire, the free and prior informed consent of

the holder of the native title is required (Article XIII, Section 12);

3. Right to an equitable share in revenues from the exploration, development, and utilization

of natural resources within areas covered by their native titles. The Bangsamoro

Parliament shall enact a law for this purpose (Article XII, Section 34; Article XIII,

Section 12);

4. Right to political participation, including to reserved seats for non-Moro IPs/ICCs in the

Bansgamoro Parliament. The seats shall be filled pursuant to their customary laws and

indigenous processes (Article VII, Section 6);

96 Id.
97 Id.
98See more at: http://www.opapp.gov.ph/milf/news/frequently-asked-questions-draft-bangsamoro-basic-
law#sthash.P8PwjLiL.dpuf

32
5. Right to education through the establishment of a tribal university system that will

address the higher educational needs of the indigenous cultural communities in the region

(Article IX, Section 14);

6. Recognition of a traditional/tribal justice system. The Bangsamoro Parliament shall enact

laws for this purpose, and an Office for Traditional/Tribal Justice System shall also be

created (Article X, Sections 23, 24);

7. Recognition of indigenous structures, or systems which promote peace, law, and order

(Article XI, Section 18);

8. Other rights provided in the United Nations Declaration on the Rights of Indigenous

Peoples (Article IX, Section 5). The draft Basic Law also mandates the creation of an

office for the IPs/ICCs in the Bangsamoro, the head of which shall automatically become

a member of the cabinet (Article V, Section 3, Number 30).

!
Comparing this with the rights provided for in the IPRA, the following are:

1) Rights to Ancestral Domains and Lands99

2) Rights to Self-Governance and Empowerment100

3) Rights to Social Justice and Human Rights101

99 AN ACTTO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL


COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES [The Indigenous Peoples Rights Act of 1997], Republic Act No. 8371 (1997), chapter
III.
100 Id. at chapter IV.
101 Id. at chapter V.

33
4) Rights to Cultural Integrity102

Basically most of the concepts are lifted directly from IPRA. A good example would be

the right to ancestral domain. A review of the draft would give the presumption of conflict of

laws what law shall apply to the rights of the Indigenous Peoples? Would IPRA still apply? The

current draft of BBL is silent on the applicability of IPRA in the Bangsamoro. The fact that the

draft of the Bangsamoro Basic Law acknowledges the Rights of Indigenous Peoples, then we can

say that IPRA still applies. Besides, the Rights of the Indigenous Peoples is embodied in

UNDRIP, ILO Conventions, IPRA among others.

The law that is immediately applicable to Bangsamoro would be BBL but this does not

preclude the application of IPRA. Also, BBL provides for a more specific and detailed law as

well as the power to enact more laws regarding Indigenous Peoples Rights. A good example of a

more specific law is the right to identify as Bangsamoro. Thus, there is no need for a regional

IPRA. However, theres no prohibition regarding the creation of such since the parliamentary

powers to legislate is present in the BBL.

Should there be provisions that are in conflict, these are reconcilable by applying the

principle in Statutory Construction of Leges Posteriores or Priores contrrias brogant, which

means later statutes repeal prior ones which are repugnant thereto.

Another issue to be focused on can be the status of the application for the certificate of

ancestral domain of some IP groups pursuant to IPRA. IPRA is separate and distinct form the

delineation of ancestral domain that is embodied in the IP rights in the Bangsamoro Basic Law.

102 Id. at chapter VI.

34
The BBL provides for regional legislations particularly ancestral domain, native title, ancestral

lands while IPRA provides for Native Title.

Recommendations

The task force, Bangsamoro Transition Commission, assigned for the transitional phase must

address such issues. One, they must dialogue with a representative of legislative department

alongside with the parties that identify themselves to be part of Bangsamoro regarding the

definition of terms in the BBL as well as to clarify the extent of relationship between the

ancestral domain and the native title.103 Two, there is a need to develop new mechanisms to

promote trust among Moros and the Indigenous Peoples in Bangsamoro.104 In reality,

Bangsamoro Transition Commission, is mandated to do as follows:

A. Task Force on IP Concerns with the following mandates:

1. Build support of all stakeholders to the IP provisions in the Draft Basic Law.

2. Continue to explore and dialogue on the best mechanisms and processes to implement the
IP provisions that include among others the identification of IP areas and tenurial
instruments for submission as legislation to the BTC, BTA and to the Bangsamoro
Parliament.

3. Conduct confidence-building measures to foster understanding and cooperation between


and among IP groups.105

Third, recreate a more in depth application or make a better process for the ancestral

domains by assessing what went wrong in the implementation of IPRA in the ARMM. Some

speculators deems that a regional application of IPRA is better since the parliament power to

103Institute for Autonomy and Governance, Initial Analysis of the IP Provisions in the Draft Bangsamoro Basic Law.
available at http://iag.org.ph/index.php/ipdevnews/546-initial-analysis-of-the-ip-provisions-in-the-draft-
bangsamoro-basic-law (last accessed October 9, 2014)
104 Id.
105 Id.

35
legislate can be a tool to ensure a regional IPRA Law that is favorable to the people as well as

IPs living in Bangsamoro and better than the National IPRA Law.

V. Conclusion

Thus, in sum, the question as to the constitutionality of all four issues are answered in the

affirmative. The draft Bangsamoro Basic Law does not suffer from constitutional infirmity for

providing for a ministerial form of government, for providing for the concept of reserved,

concurrent, and exclusive powers, nor for providing for the automatic release of a lump sum to

the Bangsamoro as a yearly subsidy. Finally, the BBL does not preclude the application of the

IPRA, and there are available remedies to address points of contention in order to secure the

rights of all stakeholders involved.

!
!
!
!
!

36