RIVERMAN’S VISTA: The Future of

the BBL (1) : Addressing Legal Issues

By
Antonio G. M. La Viña
-
March 10, 2015
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1st of a six-part series

CAGAYAN DE ORO CITY (MIndaNews/10 March) — This six part series is based on
an article I wrote with Atty. Janice Lee entitled “The Draft Bangsamoro Basic Law:
Overcoming Constitutional Challenges” which Ateneo de Davao University just
published in a Compendium on the Draft Bangsamoro Basic Law. The starting point
of our analysis of the draft Bangsamoro Basic Law (BBL) is that it is a legislative
enactment that will implement the provisions of the peace agreements aimed at
resolving the conflict situation in Mindanao. With this in mind, we believe that an
evaluation of the draft bill must not only look at its Constitutional fitness, but also
be sensitive to its political history. It must of course also be analyzed under the
rubric of Supreme Court rulings.

In our analysis, we conclude that the draft BBL contains no patently

unconstitutional provisions. Indeed, the Bangsamoro created under the BBL will
replace the ARMM, the autonomous region created under Republic Act No. 6734 as
provided for under the Constitution. That Congress may enact such a law can hardly
be contested. As a rule, Congress enjoys plenary powers of legislation all subjects,
whether pertaining to persons or things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless prohibited expressly or by implication
by the Constitution or limited or restrained by its own. Further, the political
provisions of the draft BBL, and the extent of the powers granted to the
Bangsamoro, must be made in light of the purpose behind the Constitutional
provisions for autonomous regions, which is to allow the separate development of
peoples with distinctive cultures and traditions.

There is nothing wrong with the fact that the BBL is a product of the negotiations
between the Philippine government and the Moro Islamic Liberation Front (MILF). In
the North Cotabato case, which declared unconstitutional the Memorandum of
Agreement on Ancestral Domain (MOA-AD), the Supreme Court held that the
President has the power to negotiate peace with the MILF, and to determine in what
form and manner the peace process should be conducted, which includes the
signing of peace agreements. It is also a matter of judicial notice that the President
also has the authority to propose new legislation to Congress, as is done in the case
of the BBL.
 Page 2 of 19

The constitutional basis of the BBL

To justify the enactment of the BBL, it must be legally sound on at least two points:
(1) the act of passing such a law of its kind must be legal; and (2) the contents of
the law must conform to the Constitution.

On the first point, Section 18, Article X of the 1987 Constitution provides the basis
for the enactment of an organic act for the autonomous region created in Muslim
Mindanao, thus this section provides: “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.” The same section also provides: “The creation
of the autonomous region shall be effective when approved by majority of the votes
cast by the constituent units in a plebiscite called for the purpose, provided that
only provinces, cities, and geographic areas voting favorably in such plebiscite shall
be included in the autonomous region.”

On the second point, the Constitution also provides that the organic act shall
define: (1) the basic structure of government, consisting of the executive
department and legislative assembly; (2) special courts with personal, family, and
property law jurisdiction. Section 20, Article X of the Constitution provides for the
powers that the said legislative assembly may exercise: “ (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.”

As the Supreme Court has noted in the 2004 case of Disomangcop v. DPWH: “The
need for regional autonomy is more pressing in the case of the Filipino Muslims and
the Cordillera people who have been fighting for it. Their political struggle highlights
their unique cultures and the unresponsiveness of the unitary system to their
aspirations . . . Perforce, regional autonomy is also a means towards solving
existing serious peace and order problems and secessionist movements.
Parenthetically, autonomy, decentralization and regionalization, in international law,
have become politically acceptable answers to intractable problems of nationalism,
separatism, ethnic conflict and threat of secession.”

 
 Page 3 of 19

Consistent with this pronouncement of the Supreme Court, the draft BBL generally
conforms to, and is within the bounds of, the 1987 Constitution. It neither creates a
separate state within the Philippines nor provides for powers which are beyond what
is granted to autonomous regions. The provision for a parliamentary system of
government for the Bangsamoro is likewise valid, as this remains to be elective and
representative of the constituent political units.

Need for clarifications

While there is no doubt that the Bangsamoro autonomous region can be validly
created. a number of clarifications must be made to the draft BBL in order to leave
no space for any misinterpretation. In particular, we suggest that Congress draft
and incorporate a section in the law that would provide a definition of such key
terms as “asymmetrical relationship”, “Bangsamoro”, and “exclusive powers”. These
suggested definitions do not alter or diminish the rights granted to the Bangsamoro
under the draft BBL, but simply aim to couch these terms in a language that will
leave no room for misinterpretation as to their Constitutional validity. We also
propose revisions to certain provisions on natural resources, indigenous peoples’
rights, human rights, judicial review and the justice system in order to allay any
concerns of them being beyond the fold of the Constitution.

With regard to the core territory of the Bangsamoro and the plebiscite to be
conducted, our study also recognizes legitimate concerns on their practical
implications. Pertinently, the provisions ostensibly allowing municipalities and
barangays to vote for, and become part of, the Bangsamoro without the
participation of the provinces to which they belong may raise issues about
governance and jurisdiction. These issues must be approached carefully so as not to
violate any Constitutional provisions or Supreme Court pronouncements.

The next five articles will elaborate in detail some of the clarifications needed to
address legal and constitutional issues around the BBL. (MindaViews is the opinion
section of MindaNews. Dean Tony La Viña is a human rights and environmental
lawyer from Cagayan de Oro City. He was a member of the Government of the
Philippines Peace Panel that negotiated with the MILF from January-June 2010. He
is currently the Dean of the Ateneo School of Government. Dean Tony can be
reached at Tonylavs@gmail.com. Follow him on Facebook: tlavina@yahoo.com and
on Twitter: tonylavs.)

Tomorrow: Bangsamoro not a sub-state

RIVERMAN’S VISTA: Future of the

BBL (2): Bangsamoro not a Sub-State
By
 Page 4 of 19

Antonio G. M. La Viña
-
March 11, 2015
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2nd of a six-part series

(*This six part series is based on an article I wrote with Atty. Janice Lee entitled
“The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which
Ateneo de Davao University just published in a Compendium on the Draft
Bangsamoro Basic Law).

(CAGAYAN DE ORO CITY (MindaNews/11 March) — One of the biggest potential

hurdles for the draft Bangsamoro Basic Law BBL) is the extent of the political
autonomy that will be granted to the Bangsamoro. The draft law outlines the
powers that are to be exercised concurrently by the Central Government (CG) and
the Bangsamoro Government (BG), those that are reserved for the CG, and those
that are exclusive to the BG. The main challenge under this area is the contention
that the draft BBL (as well as the CAB) establishes a separate independent state
(the Bangsamoro) within the Philippines.

Under Philippine law, the creation of autonomous regions does not signify the
establishment of a sovereignty distinct from that of the Republic, as it can be
installed only within the framework of the Constitution and the national sovereignty
as well as territorial integrity of the Republic of the Philippines.

To begin with, there is no universal standard framework that governs the

delineation of powers and functions between autonomous regions and the host
state. In many states, the degree and extent to which certain powers are granted
to the autonomous region is a matter of policy – whether to grant the region
substantial self-sufficiency (e.g. Scotland, Greenland), or to severely limit the
autonomy of the territory (e.g. Tibet, Navajo).

In order to address the contention of whether the BBL establishes a separate state,
however, one framework which may be referred to is the traditional definition of a
state. Under the Montevideo Convention, the state as a person of international law
should possess the following qualifications: a) a permanent population; b) a defined
territory; c) government; and d) capacity to enter into relations with other states.
In this regard, the BBL, while establishing the first three elements, does not endow
the BG with the capacity to enter into relations with other states. In fact, foreign
policy remains under the reserved powers of the CG under Article V, Section 1 of
the BBL. The BG’s exclusive powers, as provided under the draft BBL, pertain
mostly to internal administrative matters, such as labor, employment, contracting
of loans, free ports, registration of businesses, banking systems, public utilities,
land management, and the like. 
 Page 5 of 19

Other definitions of a state use sovereignty as a fourth element. Sovereignty has

been defined as legal omnipotence, being absolute in relation to other legal
institutions. In relation to the Bangsamoro, it would entail that the BG would not be
answerable to the CG, but would, instead be free to determine its own course of
action on all aspects of government. On this score, the BBL provides that the BG
and the CG shall have an “asymmetric relationship”, which implies the absence of
symmetry, or that one entity has more power than the other.

The BBL recognizes the right to self-governance and self-determination of the

Bangsamoro, and states that it is “free to pursue its economic, social and cultural
development.” There appears to be a delineation between economic, social and
cultural development on one hand, and the right to pursue its political development
on the other, which is granted by the BBL in a limited sense. The political
development allowed to the BG is only with respect to internal government, and,
thus, it may not be considered to be truly sovereign. Further, Section 3, Article VI
of the draft BBL provides that the President shall exercise general supervision over
the Bangsamoro Government to ensure that laws are faithfully executed.

Defining “asymmetric relationship”

The draft BBL provides that the CG and the BG shall have an “asymmetric”
relationship. The word “asymmetric” is not a legal term but a political one. In
political science, there is ‘asymmetry’ when a territorial unit within a political
system enjoys a distinct or special status because of its peculiarities. This is a
relationship that enhances the status of one part without diminishing the standing
or sovereignty of the central over its parts. In contrast, a symmetrical relationship
is one where the states enjoy the same status among themselves vis-à-vis the
central government, such as with respect to the federal states in the United States
of America. Asymmetric relationships have sometimes been adopted by states as a
way of terminating or diffusing secessionist disputes.

The practice of other states further shows that asymmetric autonomy is not a new
concept, and has been employed increasingly in post-Cold War settlements to
secessionist conflicts. Some of the different types of asymmetrical settlement
include: (1) where one unit within an otherwise central state is granted federal-type
autonomy status, and the overall state does not change its unitary character; (2)
where the unitary state is maintained by more than one unit enjoys a federal-type
status while the overall state still remains a unitary one. The autonomous units may
differ in the extent of authority that is assigned to them; (3) where there are
several autonomous units accommodated within a state that is constituted as full
devolved or as a formal federation; (4) where there is a fully-federal type state, but
asymmetry is regularized (as opposed to the standard definition of a federation
which would require equal status and competence for all federal subjects). Thus, an
asymmetric relationship in this case does not necessarily imply the dismemberment
of a state, as, precisely, such a relationship is often resorted to when parties are
 Page 6 of 19

hesitant to grant full federal status (which may be seen as a first step to
independence).

In the Philippines, in a 2013 case involving natural resources and local

governments, the concept of “asymmetrical relationship” has been explored by the
Supreme Court in relation to autonomous regions: “Autonomous regions are
granted more powers and less intervention from the national government than
territorial and political subdivisions. They are, thus, in a more asymmetrical
relationship with the national government as compared to other local governments
or any regional formation. The Constitution grants them legislative powers over
some matters, e.g. natural resources, personal, family and property relations,
economic and tourism development, educational policies, that are usually under the
control of the national government. However, they are still subject to the
supervision of the President. Their establishment is still subject to the framework of
the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty
and territorial integrity of the Republic of the Philippines.”

It may thus be noted that while the framers of the Constitution possibly did not
conceive of the exact term “asymmetric relationship”, the concept itself still falls
within constitutional limits. In fact, it is merely a term to denote the entirety of the
relationship between the Central Government and the Bangsamoro Government as
one between the state and an autonomous region, which includes the grant of
legislative powers not normally granted to local government units (LGUs), while still
being under the supervision of the President. The grant of exclusive and concurrent
powers to the BG under the draft BBL, which are not normally granted to other
LGUs (as provided under the Local Government Code) exemplify this asymmetric
relationship.

On this point, however, it may be helpful to include a definition of the term

“asymmetric relationship” in the draft BBL in order to avoid any potential conflict. A
suggested definition is as follows: “The relationship between the Central
Government and the Bangsamoro Government shall be asymmetric. This is
reflective of the recognition of the Bangsamoro identity, and the Bangsamoro
aspiration for self-governance. As used in this Law, an “asymmetric relationship”
refers to the relationship between the Central Government and the Bangsamoro
Government as an autonomous region, as provided under Section 15, Article X of
the 1987 Constitution, which is distinct from other regions and other local
governments. The Bangsamoro Government is subject to the supervision of the
President of the Philippines. All powers, functions, and responsibilities not granted
by the 1987 Constitution or by this Law to the Bangsamoro Government shall be
vested in the Central Government.”

Related to this, it may also be prudent to include a definition of the term

“Bangsamoro” in the draft BBL, under Section 2, Article I thereof, thus: “The name
of the political entity under this Basic Law shall be the Bangsamoro. As used in this
Law, the “Bangsamoro” is the political and juridical entity created by the
 Page 7 of 19

Bangsamoro Basic Law which is an autonomous region as provided in Section 15,

Article X of the 1987 Constitution, with the powers and functions as provided under
this Law and other related laws. The Bangsamoro forms an inalienable part of the
Philippines.”

In our view, these changes would make it clear what the BBL creates – not a
federal state, certainly not an independent state, but nothing less, and nothing
more than the autonomous region ordained by the 1987 Constitution. MindaViews
is the opinion section of MindaNews. Dean Tony La Viña is a human rights and
environmental lawyer from Cagayan de Oro City. He was a member of the
Government of the Philippines Peace Panel that negotiated with the MILF from
January-June 2010. He is currently the Dean of the Ateneo School of Government.
Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook:
tlavina@yahoo.com and on Twitter: tonylavs.)

Tomorrow: Sharing of Powers under the BBL

RIVERMAN’S VISTA: Future of the

BBL (3): Sharing of Powers under the
BBL
By
Antonio G. M. La Viña
-
March 12, 2015
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3rd of a six-part series

(*This six part series is based on an article I wrote with Atty. Janice Lee entitled
“The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which
Ateneo de Davao University just published in a Compendium on the Draft
Bangsamoro Basic Law). 

CAGAYAN DE ORO CITY (MindaNews/12 March) — The delineation of powers

between the Bangsamoro Government (BG) and the Central Government (CG) on
reserved, concurrent, and exclusive powers are provided for under Article V of the
draft BBL.

Notably, the powers reserved to the CG are those that pertain to foreign relations
(external security, immigration, etc.). That these are withheld from the BG is
consistent with the fact that the Bangsamoro is not constituted as a separate state,
as the fourth element thereof is the capacity to enter into relations with other
 Page 8 of 19

states. This is also consistent with Supreme Court rulings that in our system of
government, the President, being the head of state, is regarded as the sole organ
and authority in external relations and is the country’s sole representative with
foreign nations. The Constitution further mandates that even in the autonomous
regions, the defense and security of the regions shall be the responsibility of the
Central Government.

Regarding the concurrent powers, these are functions which the Constitution has
placed upon a specific agency, and, thus, may not be removed from the Central
Government. However, these may be exercised concurrently with an autonomous
region such as the Bangsamoro.

For example, auditing and the civil service may not be removed from the CG, as the
Constitution provides that it is the Commission on Audit and the Civil Service
Commission, respectively, which has jurisdiction over these matters. With respect
to the latter, no law may be passed exempting any entity of the Government or its
subsidiaries in any guise whatever, from the jurisdiction of the Commission on
Audit.

On public order and safety, the Constitution provides that the preservation of peace
and order within the regions shall be the responsibility of the local police agencies
which shall be organized, maintained, supervised, and utilized in accordance with
applicable laws. Hence, Article XI of the draft BBL creates a Bangsamoro Police
which shall be organized, maintained, supervised, and utilized for the primary
purpose of law enforcement and maintenance of peace and order in the
Bangsamoro. It shall be part of the Philippine National Police. This is consistent with
Section 6, Article XVI of the Constitution, which provides that the State shall
establish and maintain one police force, to be administered and controlled by a
national police commission.

The remaining exclusive powers refer to internal administrative matters. These may
be delegated to the Bangsamoro in recognition of the higher degree of autonomy
granted to it as compared to other LGUs. This is consistent with the goals of
regional autonomy, as explained by the Supreme Court in Disomangcop v. DPWH,:
“Regional autonomy refers to the granting of basic internal government powers to
the people of a particular area or region with least control and supervision from the
central government. The objective of the autonomy system is to permit determined
groups, with a common tradition and shared social-cultural characteristics, to
develop freely their ways of life and heritage, exercise their rights, and be in charge
of their own business. This is achieved through the establishment of a special
governance regime for certain member communities who choose their own
authorities from within the community and exercise the jurisdictional authority
legally accorded to them to decide internal community affairs.”

In order, however, to avoid any doubt, a definition of the term “exclusive powers”
may be proposed. Thus, the first part of Section 3 may be reworded thus:
 Page 9 of 19

“Exclusive powers are powers devolved to the Bangsamoro; these are on matters
over which authority and jurisdiction shall primarily pertain to the Bangsamoro
Government, without prejudice to the general supervision powers of the President
over the Bangsamoro.” It might actually be prudent to refrain from using the term
“exclusive powers” in the BBL because there is no such concept within a unitary
system of government.

Conflict of laws

The draft BBL provides that the Bangsamoro Parliament shall have the authority to
enact laws on matters that are within the powers and competencies of the BG, or
those which are provided under its concurrent and exclusive powers. As noted
above, the powers granted to the BG exceed those granted to other LGUs; further,
in view of the objective of granting the Bangsamoro greater self-determination and
self-government, it is possible that the laws passed by the Bangsamoro parliament
may overlap with, or even conflict with, those of the CG.

The laws passed in the Bangsamoro may be classified as either territorial or

personal in terms of application. Territorial laws apply within the Bangsamoro
territory, while a personal law governs only specific category of persons according
to their religion or ethnic origin. These limits of applicability give rise to questions of
when, in cases of conflict, CG laws will apply instead of BG laws.

A possible solution may involve the formulation of a system of rules of inter-

regional conflicts of laws. While such a system of rules may be beyond the scope of
the BBL, the BBL may instead provide for the general principles behind such
system, leaving the more detailed rules for later enactment. Such law containing
the specific provisions may be passed by the Bangsamoro Parliament, in
cooperation with the Philippine Congress-Bangsamoro Parliament Forum created
under the BBL. For this purpose, Section 8, Article VI of the draft BBL may be
amended as follows: “There shall be a Philippine Congress-Bangsamoro Parliament
Forum for purposes of cooperation and coordination of legislative initiatives and to
ensure that all laws passed by the Bangsamoro Parliament shall be consistent with
the 1987 Constitution. In case of any conflict between the laws passed by the
Bangsamoro Parliament and the Constitution, the Constitution shall prevail and the
former shall be considered void Further, the Philippine Congress-Bangsamoro
Parliament Forum shall cooperate to enact a law containing rules on inter-regional
conflicts of laws. These rules shall govern any conflicts in applying the laws passed
by the Bangsamoro Parliament and those passed by Philippine Congress, regarding
persons and family relations, other civil law matters, commercial law, and criminal
law.”

(MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human

rights and environmental lawyer from Cagayan de Oro City. He was a member of
the Government of the Philippines Peace Panel that negotiated with the MILF from
January-June 2010. He is currently the Dean of the Ateneo School of Government.
 Page 10 of 19

Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook:

tlavina@yahoo.com and on Twitter: tonylavs.)

Tomorrow: Bangsamoro Territory and Bangsamoro Waters

RIVERMAN’S VISTA: Future of the

BBL (4): Bangsamoro Territory and
Bangsamoro Waters
By
Antonio G. M. La Viña
-
March 13, 2015
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4th of a six-part series

*This six part series is based on an article I wrote with Atty. Janice Lee entitled
“The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which
Ateneo de Davao University just published in a Compendium on the Draft
Bangsamoro Basic Law.

CAGAYAN DE ORO CITY (MindaNews/13 March) — The draft BBL defines “territory”
as land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and
the aerial domain above it. In order to obviate any speculation, the draft BBL also
emphasizes that the Bangsamoro territory shall remain a part of the Philippines.

Under Section 2, Article III of the draft BBL, the Bangsamoro core territory is as
follows:

1. the present geographical area of the Autonomous Region in Muslim Mindanao;

2. the Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in
the province of Lanao del Norte and all other barangays in the Municipalities
of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Midsayap that voted for
inclusion in the ARMM during the 2001 plebiscite;
3. the cities of Cotabato and Isabela; and
4. all other contiguous areas where there is resolution of the local government
unit or a petition of at least ten percent (10%) of the registered voters in the
area asking for their inclusion at least two months prior to the conduct of the
ratification of the Bangsamoro Basic Law and the process of delimitation of
the Bangsamoro.
 Page 11 of 19

The areas which are contiguous and outside the core territory may opt at anytime
to be part of the territory upon petition of at least ten percent (10%) of the
registered voters and approved by a majority of qualified votes cast in a plebiscite.

Sections 4, Article III of the draft BBL provide that the Bangsamoro Government
(BG) shall have jurisdiction over the preservation and management of all inland
waters within the Bangsamoro territory. As to the Bangsamoro Waters, this is
defined under Section 5 as extending “up to 22.224 kilometers (12 nautical miles)
from the low-water mark of the coasts that are part of the Bangsamoro territory.
The Bangsamoro Waters shall be part of the territorial jurisdiction of the
Bangsamoro political entity. Inland waters and inland waterways for navigation are
also part of the exclusive powers of the Bangsamoro Government.

It is submitted that what is actually contemplated in the provisions on territory with

respect to the Bangsamoro is more properly termed as the territorial jurisdiction of
the Bangsamoro Government. As such, it does not pertain to ownership of these
territories, in contravention of Article I of the Constitution on the National Territory,
or Section 2, Article XII thereof, which provides that all land of the public domain,
including waters, belong to the State. As stated earlier, the draft BBL stresses that
the territory remains to be part of the Philippines. The same may also be said with
respect to the jurisdiction of the BG over waters, whether inland or not.

As to natural resources, Section 8, Article XIII of the draft BBL provides: “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.:

Paragraph 29, Section 3, Article V of the draft BBL also places “ancestral domain
and natural resources” under the exclusive powers of the BG. It is only the
exploration, development, and utilization of fossil fuels and uranium which are
exercised jointly by the BG and the Central Government (CG).

These provisions may be seen as running counter to Article XII, Section 2 of the
Constitution, which provides: “All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State.”

In many decisions, Section 2, also known as the Regalian doctrine, has been parsed
by the Supreme Court as follows: (1) All natural resources are owned by the State.
Except for agricultural lands, natural resources cannot be alienated by the State;
(2) The exploration, development and utilization (EDU) of natural resources shall be
under the full control and supervision of the State; (3) The State may undertake
 Page 12 of 19

these EDU activities through either of the following – (a) By itself directly and
solely(b); By (i) co-production; (ii) joint venture; or (iii) production sharing
agreements with Filipino citizens or corporations, at least 60 percent of the capital
of which is owned by such citizens. Moreover, small-scale utilization of natural
resources may be allowed by law in favor of Filipino citizens while for large-
scale EDU of minerals, petroleum and other mineral oils, the President may enter
into “agreements with foreign-owned corporations involving either technical or
financial assistance according to the general terms and conditions provided by law.”

In this light, Section 8, Article XIII of the draft BBL which provides that the BG shall
“have the authority, power and right” to the EDU of natural resources may be taken
to be beyond the allowable scope of the Constitution. The “state” which is referred
to in Section 2, Article XII of the Constitution is undeniably the Central
Government. Any EDU of natural resources within its territory must conform to the
parameters of the Constitution. What may, however, be allowed to members of the
Bangsamoro is the small-scale utilization of natural resources, which may be
granted to Filipino citizens. This is an example of what may be regulated by the BG
in the exercise of its legislative powers over natural resources. It is suggested that
a revision of these provisions delineating the powers of the BG over natural
resources may be helpful in order to avoid any successful challenge to the
constitutionality of the BBL.

An example of a suggested revision of Section 8, on Natural Resources, Nature

Reserves and Protected Areas, may be as follows: “The Bangsamoro Government
shall have the legislative authority to regulate the exploration, development and
utilization of natural resources, including surface and sub-surface rights, inland
waters, coastal waters, and renewable and non-renewable resources in the
Bangsamoro. This shall be without prejudice to the exercise of full control and
supervision by the Central Government of such exploration, development and
utilization.”

Alternatively, the provision may also be amended to reflect the delegation of

authority from the State to the Bangsamoro Government, thus: “The control and
supervision over the exploration, development and utilization of natural resources,
including surface and sub-surface rights, inland waters, coastal waters, and
renewable and non-renewable resources in the Bangsamoro is hereby delegated to
the Bangsamoro Government in accordance with the Constitution and national laws.
This shall be without prejudice to the exercise of full control and supervision by the
Central Government of such exploration, development and utilization.”

(MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human

rights and environmental lawyer from Cagayan de Oro City. He was a member of
the Government of the Philippines Peace Panel that negotiated with the MILF from
January-June 2010. He is currently the Dean of the Ateneo School of Government.
Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook:
tlavina@yahoo.com and on Twitter: tonylavs.)
 Page 13 of 19

Tomorrow: Strengthening the BBL provisions on indigenous peoples

RIVERMAN’S VISTA: Future of the

BBL (5): Strengthening the BBL
provisions on indigenous peoples  
By
Antonio G. M. La Viña
-
March 14, 2015
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5th of a six-part series

*This six part series is based on an article I wrote with Atty. Janice Lee entitled
“The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which
Ateneo de Davao University just published in a Compendium on the Draft
Bangsamoro Basic Law.

CAGAYAN DE ORO CITY (MindaNews/14 March) — Under the draft Bangsamoro

Basic Law (BBL), the rights of indigenous peoples (IPs) are recognized in several
provisions. Among others, Indigenous peoples shall have freedom of choice, and
the protection of their rights shall be under the exclusive powers of the Bangsamoro
Government, which protection shall be in accordance with the United Nations
Declaration on the Rights of Indigenous Peoples, and shall take into account in
addition to economic and geographical criteria, their individual and communal
property rights, cultural integrity, customary beliefs, historical and community
traditions.

The Bangsamoro Parliament is mandated to create an appropriate office or ministry

for the IPs, which shall be part of the Bangsamoro Cabinet to develop and
implement the Bangsamoro programs for the indigenous peoples in accordance with
a law passed by the Parliament. Further, IPs shall have the right to be represented
in the Bangsamoro Council of Leaders and the Bangsamoro Parliament.

Section 5, Article IX of the draft BBL further recognizes IP rights, thus: “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
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Parliament, the right to basic services and the right to freedom of choice as to their
identity.”

Under the 1987 Constitution, the State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and
development. Further, the State, subject to the provisions of the 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. In 1997, the Philippine Congress enacted Republic Act No.
8371, or the Indigenous Peoples Rights Act (IPRA). The IPRA recognizes the four
(4) bundles of IPs’ rights, namely: a) Right to Ancestral Domains and Lands; b)
Right to Self-Governance and Empowerment; c) Social Justice and Human Rights;
and d) Cultural Integrity.

While the recognition for IP rights appear to well-provided for under the draft BBL,
a matter of concern may be raised as to whether these IPs have been duly
consulted with regard to the drafting and enactment of the BBL. This concern was
voiced by Justice Antonio Carpio in his concurring opinion in the MOA-AD Case,
which struck down the previously negotiated MOA-AD as unconstitutional. According
to Justice Carpio, the incorporation of the Lumads, an indigenous people in
Mindanao, as Bangsamoros in the 2008 Memorandum of Agreement on Ancestral
Domain (MOA-AD), and the transfer of their ancestral domains to the then
Bangsamoro Juridical Entity, without the Lumads’ knowledge and consent, violate
the Constitutional guarantee that the “State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and
development.”

Section 3(g) of IPRA requires that there be a “free and informed prior consent” by
the indigenous peoples concerned to be exercised through consultations before any
decision relating to their ancestral domain is made. This rule not only guarantees
the right to information of the people in these areas, but also the right of the
indigenous peoples to “free and informed prior consent” as an element of due
process. In this case, in order to comply with the provisions of IPRA, consultations
with the IPs concerned in the proposed Bangsamoro territory must be shown to
have been made.

Interestingly, the Preamble to the draft BBL speaks of the “Bangsamoro people and
other inhabitants of the Bangsamoro”, which presumably, would be comprised of
non-Muslims such as IPs, Christians, and other persons living in the Bangsamoro
territory, all of whom “[affirm] the distinct historical identity and birthright of the
Bangsamoro people to their ancestral homeland and their right to self-
determination”. While the draft BBL does not specifically provide that the
Bangsamoro territory shall be deemed as ancestral domain, it is submitted that for
there to be any delineation of ancestral domains, the provisions of IPRA will have to
be complied with.
 Page 15 of 19

In order to ensure the continued protection of IP rights, Section 5, Article IX of the

draft BBL may be amended thus: “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 Bangsamoro shall further
ensure that all rights of indigenous peoples, including the rights guaranteed under
the 1987 Constitution and Republic Act No. 8371, or the Indigenous Peoples Rights
Act, shall continue to be respected and shall not, in any way, diminished or
derogated by any act of the Bangsamoro Parliament.”

The suggested amendment would ensure that the Bangsamoro Parliament may not
enact any laws that will deviate from the provisions of IPRA. While the Parliament
may enhance or augment the rights already granted to the IPs, it may not diminish
these. This places the IPRA in a separate plane of laws which the Bangsamoro
Parliament from which may not derogate.

The creation of the Bangsamoro is a response to a historical injustice committed to

the Bangsamoro people. It would be perverse and distorted to correct that injustice
by doing another injustice to the Lumad peoples of Mindanao.

(MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human

rights and environmental lawyer from Cagayan de Oro City. He was a member of
the Government of the Philippines Peace Panel that negotiated with the MILF from
January-June 2010. He is currently the Dean of the Ateneo School of Government.
Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook:
tlavina@yahoo.com and on Twitter: tonylavs.)

Tomorrow: The Plebiscite for Enacting the BBL

RIVERMAN’S VISTA: Future of BBL

(6): The Plebiscite for enacting the
BBL
By
Antonio G. M. La Viña
-
March 15, 2015
Want create site? With Free visual composer you can do it easy.
 Page 16 of 19

Last of a six-part series

*This six part series is based on an article I wrote with Atty. Janice Lee entitled
“The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which
Ateneo de Davao University just published in a Compendium on the Draft
Bangsamoro Basic Law.

CAGAYAN DE ORO CITY (MindaNews/15 March) — Under the draft Bangsamoro

Basic Law (BBL), the establishment of the Bangsamoro and the determination of the
Bangsamoro territory shall take effect upon ratification of BBL by majority of the
votes cast in the following provinces, cities, and geographical areas in a plebiscite
conducted for the purpose: (a) The present geographical area of the Autonomous
Region in Muslim Mindanao (ARMM); (b) The Municipalities of Baloi, Munai,
Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte; (c)
Thirty nine (39) named Barangays in the Municipalities of Kabacan, Carmen,
Aleosan, Pigkawayan, Pikit, and Midsayap in North Cotabato that voted for inclusion
in the ARMM (Autonomous Region in Muslim Mindanao) during the 2001 plebiscite
under Republic Act No. 9054; (d) The Cities of Cotabato and Isabela; and (e) Those
qualified for inclusion in the plebiscite, by way of resolution or petition.

Under Section 3, Article XV of the draft BBL, to be included in the Bangsamoro, the
treatment of votes for each item enumerated above is different. For letter (a), there
must be a majority vote of the registered voters in each province and city; for (b),
there must be a majority of the registered voters in the municipality; for (c), there
must be a majority of registered voters in the barangay; for (d) there must be a
majority of the registered voters in the city; for (e), a majority of the registered
voters in the local government unit concerned.

Three points may be stressed here.

First, the requirement under the BBL is that there must be a majority vote of all
registered voters in the local government unit for that unit to be considered as part
of the Bangsamoro. Under Section 18, Article X of the Constitution, “[t]he creation
of the autonomous region shall be effective when approved by majority of the votes
cast by the constituent units in a plebiscite called for the purpose”. The same
requirement is found under Republic Act Nos. 6734 (Creating the ARMM) and 9054
(Expanding the ARMM). Thus, the draft BBL appears to require stricter numbers
than those under the Constitution for an LGU (Local Government Unit) to become
part of the Bangsamoro.

Second, the scheme proposed under the draft BBL is unclear as to whether the six
(6) municipalities of Lanao del Norte, and the thirty-nine (39) barangays in North
Cotabato, may independently vote to become part of the Bangsamoro, even if the
provinces or cities to which they belong do not become part of Bangsamoro.
 Page 17 of 19

The provisions of R.A. 6734 and 9054 may be considered in this regard. Under
these laws, the plebiscite to create the autonomous regions was only to be
conducted in the affected provinces and cities, and not in their component
municipalities and barangays. Should Congress enact the BBL, it may be inferred
that these provisions were made with the knowledge of how the earlier laws on
ARMM conducted the plebiscite. Thus, the intention to include local government
units such as municipalities and barangays, even without their provinces or cities,
may also be inferred.

The Supreme Court has also held that any determination by Congress of what areas
in Mindanao should compromise the autonomous region, taking into account shared
historical and cultural heritage, economic and social structures, and other relevant
characteristics, would necessarily carry with it the exclusion of other areas. Such
determination by Congress of which areas should be covered by the organic act for
the autonomous region constitutes a recognized legislative prerogative, whose
wisdom, we believe, may not be inquired into by the Court.

As a practical matter, however, such a scenario may prove to be logistically difficult

to implement. Should these municipalities and barangays be allowed to become
“islands” belonging to the Bangsamoro but geographically still situated in their
original provinces and cities, numerous questions will arise. These include issues as
to what province or city then the municipality or barangay will belong; how they
should vote during elections for local and national positions; what laws will govern
in their admittedly limited territory; who will be responsible for the provision of
basic services therein; whether there will be any changes in legislative districts;
whether territorial boundaries will be altered; and the like. It is submitted that
should Congress allow such a scenario, it must also provide for the special rules
that will apply to these units.

Third, it is likewise unclear whether, in the event that the municipalities and
barangays are allowed to be part of the Bangsamoro without their provinces or
cities, these provinces or cities should likewise be allowed to vote in the same
plebiscite which may divorce the said municipalities and barangays from them.

Section 10, Article X of the Constitution provides that: “No province, city,
municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes cast
in a plebiscite in the political units directly affected.”

While the draft BBL provides that the barangays and municipalities may vote in the
plebiscite, it does not provide that Lanao del Norte and North Cotabato, of which
they are part, must also vote.

In a case decided last year, the Supreme Court ruled that the province to which a
local government unit belongs, and which the latter seeks to leave, is a “directly
 Page 18 of 19

affected” political unit, which must participate in the plebiscite. The Court
explained: “In cutting the umbilical cord between Cabanatuan City and the province
of Nueva Ecija, the city will be separated from the territorial jurisdiction of the
province, as earlier explained. The provincial government will no longer be
responsible for delivering basic services for the city residents’ benefit. Ordinances
and resolutions passed by the provincial council will no longer cover the city.
Projects queued by the provincial government to be executed in the city will also be
suspended if not scrapped to prevent the LGU from performing functions outside
the bounds of its territorial jurisdiction, and from expending its limited resources for
ventures that do not cater to its constituents” The Court then went on to
categorically say: “In view of these changes in the economic and political rights of
the province of Nueva Ecija and its residents, the entire province certainly stands to
be directly affected by the conversion of Cabanatuan City into an HUC (Highly
Urbanized City). Following the doctrines in Tan and Padilla, all the qualified
registered voters of Nueva Ecija should then be allowed to participate in the
plebiscite called for that purpose.“

According to the Supreme Court: “It is unfathomable how the province can be
deprived of the opportunity to exercise the right of suffrage in a matter that is
potentially deleterious to its economic viability and could diminish the rights of its
constituents. To limit the plebiscite to only the voters of the areas to be partitioned
and seceded from the province is as absurd and illogical as allowing only the
secessionists to vote for the secession that they demanded against the wishes of
the majority and to nullify the basic principle of majority rule.”

In sum, due to the significant impact in the political and economic rights of the local
government unit involved, it was held that the political units “directly affected”
included the province to which the component LGU belongs, which may, in this
context, include the barangays and municipalities participating in the plebiscite.

This decision clearly applies to the BBL’s provisions on who will participate in the
BBL. Our main recommendation is for these provisions to be amended to reflect the
constitutional jurisprudence discussed in this article. In any case, if included, they
must clearly be made separable from the rest of the BBL.

Conclusion of Series

The draft Bangsamoro Basic Law presents navigable challenges to the legislative in
order to ensure that it will pass any Constitutional tests. As stated, the revision of
certain provisions, particularly those on territory, natural resources, judicial review,
human rights, and indigenous peoples’ rights may be necessary to avoid any
misinterpretation of its provisions. A definition of key terms introduced under the
BBL will also be helpful, including of “asymmetric relationship”, “exclusive powers”
and “Bangsamoro”.
 Page 19 of 19

It is possible to have a BBL that is consistent with both the Constitution and the
Comprehensive Agreement on the Bangsamoro, but hard work, both legal rigor and
imagination, and sincerity on all sides are essential to get to the destination we
want.

(MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human

rights and environmental lawyer from Cagayan de Oro City. He was a member of
the Government of the Philippines Peace Panel that negotiated with the MILF from
January-June 2010. He is currently the Dean of the Ateneo School of Government.
Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook:
tlavina@yahoo.com and on Twitter: tonylavs.)