Let me start by saying, that in order for the BBL to be ratified, they have to change or bend the Constitution first.
But, changing the Philippine Constitution is something that can’t be done overnight, neither can it be negotiated in behalf of the BBL. Like it or not, the Constitution is non-negotiable, period.
To put it simply, the BBL is unconstitutional. Therefore, to push for its passage and ratification is to go against the Philippine Constitution –an act that borders on treason.
And how is the BBL unconstitutional?
This is the question playing in the minds of everyone. A question that needs an answer. An answer that could help clear the minds of those who are still confused with the controversial BBL.
Let us begin with the BBL’s birth.
The peace negotiations.
In the case of treaties and peace negotiations, there is a clear provision in the Constitution stating that the President cannot conduct peace negotiations without concurrence and authorization of at least, two-thirds of all the Members of the Senate (Article VII Section 21). In the case of CAB, the President bypassed the authority of the Senate by negotiating with the MILF and the Malaysian Government –which is also subject to foreign policy– without due authorization from the Senate. Under the Philippine Constitution, foreign policy power must be shared between the President, the Congress, and the Senate.
Therefore, the peace negotiation with the MILF, which was brokered by the Malaysian Government was invalid and unconstitutional. And to make the matter worse, the peace treaty between the Government and the MILF rebels was signed by the MILF negotiator using an alias “Mohagher Iqbal”. To sign an official document using a pseudonym is a punishable offense under Republic Act 6085 and the Revised Penal Code.
So, the peace negotiation is not only unconstitutional. It is also illegal.
Now, let us proceed to analyzing the controversial Bangsamoro Basic Law (House Bill 4994) and its unconstitutional nature.
What is the legal justification of the Bangsamoro?
As a substate, none.
As an autonomous region, it can be found under:
Article X of the 1987 Philippine Constitution
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.
Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.
Section 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.
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.
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.
Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.
Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:
- Administrative organization;
- Creation of sources of revenues;
- Ancestral domain and natural resources;
- Personal, family, and property relations;
- Regional urban and rural planning development;
- Economic, social, and tourism development;
- Educational policies;
- Preservation and development of the cultural heritage; and
- Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.
The provision in this Article clearly mentions the provinces, municipalities, cities, barangays, and the autonomous regions as the territorial and political subdivision of the Republic of the Philippines. There was no mention of a substate.
Why am I looking for a provision in the constitution that would give legal basis for a substate?
It is because what is being created under the Bangsamoro Basic Law (BBL) is a substate, not an autonomous region. There is no question about it. Even the BBL mimics the Philippine Constitution, starting with the preamble.
The Bangsamoro Basic Law Preamble:
We, the Bangsamoro people and other inhabitants of the Bangsamoro, imploring the aid of the Almighty, aspiring to establish an enduring peace on the basis of justice in our communities and a justly balanced society, and asserting our right to conserve and develop our patrimony.
Preamble of the 1987 Constitution of the Republic of the Philippines:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
Note that despite the similarities, there is one distinct word that differentiates the two preambles. Bangsamoro. BBL refers to the inhabitants of the Bangsamoro as Bangsamoro people. Not Filipinos.
Article I Section 3 of the BBL categorically depicts the Bangsamoro political entity as a nation-state, with the “eminent” right to “self-determination “, or the power to determine whether they want to remain part of the republic or not.
Article II Section 3 of the BBL specifies the Bangsamoro Parliament’s adoption of the official flag, emblem and anthem of the Bangsamoro. There is no doubt then that the Bangsamoro has no plans to honor and adopt the national flag, emblem, and anthem of the Republic of the Philippines.
Article XVI Section 1 of the Constitution describes the Philippine flag as consecrated and honored by the people and recognized by law. Section 2 of this same article specifies the details in which the national flag, seal, anthem or even the country’s name can be changed lawfully by the Congress; and that shall take effect only upon ratification by the people in a national referendum.
Article III Sections 2 and 3 of the BBL describes the core territories and the inclusion to the core territories under the Bangsamoro. To be specific,
Section 2. Core Territory
The core territory of the Bangsamoro shall be composed of:
a. the present geographical area of the Autonomous Region in Muslim Mindanao;
b. 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 the inclusion in the ARMM during the 2001 plebiscite;
c. the cities of Cotabato and Isabela; and
d. all other contiguous areas where there is resolution of the local government unit or a petition of at least ten percent (10%) of the registered voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.
Section 3. Contiguous Territory
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.
1. Cotabato and Isabela voted against inclusion during the last ARMM referendum
2. Core territory include municipalities and barangays that voted yes in last ARMM plebiscite but, their mother units (provinces) voted no. It has to be remembered that the province is still above the municipalities and barangays.
3. The process of joining the Bangsamoro requires a resolution of the LGU units or at least 10% of the registered voters who voted yes in the areas with existing petition for inclusion. Same thing goes for the contiguous areas outside the Bangsamoro core territory. So, what about the remaining 90% who voted no? Will they be forced to join the Bangsamoro territory in favor of the 10% who voted yes? That doesn’t sound fair.
Article IV Section 1 of the BBL is a de facto declaration of the Bangsamoro independence. While this doesn’t violate any provisions of the Constitution, there is also no provision in the BBL to prevent the Bangsamoro to secede in the event that the Bangsamoro decides to invoke this section of the BBL.
Sections 2 and 3 describes the Bangsamoro form of government as parliamentary and ministerial.
If we are to believe that the Bangsamoro is an autonomous region and not a substate, then, this BBL Article violates Article II Section 1 of the Constitution that declares the Philippines as a democratic and republican State.
Article V of the BBL establishes the core component of a state-based government, asceding only coordinating powers to the Republic.
Sections 3 and 4 delineates the powers of the Central Government and the Bangsamoro Government. Unbelievably, the majority of the provisions in this sections arbitrarily surrenders control of ports (seaports and airports within the Bangsamoro), natural reserves, banking, finance, land registration, police powers, and other powers reserved usually to the state (the Republic of the Philippines) to the Bangsamoro Government. In effect, they have a fully functioning mini-nation ready for secession.
Under Section 3 (29) (34), the Bangsamoro Government has exclusive power over ancestral domains and natural resources within its territory, and the exclusive power to declare natural reserves, aquatic parks, forests, and watershed reservations and other protected areas in the Bangsamoro.
Unfortunately for them, this is not allowed in the Constitution. The declaration of natural reserves, watershed reservations, and protected areas is under the total control of the Department of Environment and Natural Resources (DENR), the Congress of the Republic, and the President.
Under Article XII Section 2 of the Constitution, 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. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. And to make this provision and all provisions under this article inviolable, Article XII Section 22 of the Constitution mandates that:
Acts which circumvent or negate any of the provisions of Article XII shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.
Under Section 3 (57), the Bangsamoro Parliament can abolish, create, merge, or alter boundaries of the local government units under their control. Now, this is reserved usually to the Congress of the republic. Hence, paragraph 3 under the same subsection requires the creation of a separate congressional district for the Bangsamoro. The creation of its own Congress will give the Bangsamoro limitless power to create and enact new laws, policies and institutions to cater to its leaders’ whims and interests, under the guise of the Bangsamoro people’s general welfare.
Whoever orchestrated the drafting of the BBL is frighteningly cunning. But, not that smart enough to be able to bend the Constitution.
Article X Section 10 of the Constitution specifies 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 (Chapter II Sections 6 to 10) and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
Article VI Section 4 of the BBL requires the Republic to refer to the Intergovernmental Relations Body to intervene when agencies under the Republic have issues with corresponding Bangsamoro agency, or if there are differences between policy among the Republic and the Bangsamoro Government. This emphasizes that while (for the meantime) the Bangsamoro is part of the country, the Republic could not act to secure national issues involving the Bangsamoro territories without adjudiction of the IRB. Hence, the departments and agencies of the Republic have virtually no power in BBL-controlled lands. It is also questionable why it would take only the intervention of the republic, and only if acknowledged by the chief minister of the Bangsamoro Government, can these agencies exercise their roles on the Bangsamoro.
Section 9 requires the Republic to make it a government policy to appoint a Bangsamoro representative in each of the critical agencies of the government. To be precise, at least one (1) Cabinet Secretary; at least one (1) in each of the other departments, offices and bureaus, holding executive, primary confidential, highly technical, policy-determining positions; and one Commissioner in each of the constitutional bodies.
In all 21 provisions of the Article X of the Constitution, a mandatory policy to appoint people from the autonomous regions in each critical agencies and positions in the government was never mentioned at all. This provision in the BBL is so preposterous, one would wonder how the MILF negotiators got away with demanding the inclusion of this provision in the draft. I can’t think of any other explanation except this:
Either the MILF negotiators are really shrewd or the government negotiators are extremely stupid.
Article VII of the BBL describes the creation of the Bangsamoro Government, with full legislative and executive powers.
Sections 1 and 3 establish the executive powers and authority of the Chief Minister and its Cabinet. This mimics the executive power and authority of the President of the Republic that was vested to him under Article VII Section 1 of the Constitution. This also mimics a fully functioning cabinet based on the structure of the Republic.
Section 30 establishes the powers, duties and functions of the Chief Minister, which undermines the authority of the President vested in him under Article VII Sections 1, 16, 17 and 18 of the Constitution.
Article VIII Section 4 of the BBL specifies the allowances of the Wali (Islamic guardian) to be determined by the Bangsamoro Parliament and shall be sourced from the funds of the Bangsamoro Government. This is a violation of Article VI Section 29 (2) of the Constitution that prohibits the utilisation of public funds directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
Article X of the BBL declares Shari’ah Law (a religious law) as the justice system of the Bangsamoro. Section 4 specifies the sources of Shari’ah Law as follows:
All of the above-mentioned sources are religious texts of Islam.
This is a flagrant violation of the Article II Section 6 of the Constitution that declares the separation of Church and State as inviolable which effectively prohibits the religious sectors (Islam, Catholic, Buddhist et al) from interfering with secular affairs of the State.
This also undermines the judicial power of the Supreme Court and other lower courts, the power of the Commission on Appointments and the Presidential privileges under Article VIII of the Constitution.
Article XI of the BBL is another violation of the Constitution.
Section 1 gives the Bangsamoro Government the primary responsibility over public order and safety within the Bangsamoro. This role is originally vested in the National Government and the local police agencies under Article X Section 21 of the Constitution, and the Armed Forced of the Philippines as the overall protector of the people and the State under Article II Section 3 of the Constitution.
Section 2 declares the creation of the Bangsamoro Police with identical powers and functions of the Philippine National Police (Section 3) and a similar structural organization (Section 4) mimicking those of the National Police Commission.
This is a violation of Article XVI Section 6 of the Constitution that declares the establishment and maintenance of only one (1) police force to be administered and controlled by the National Police Commission (NAPOLCOM).
Article XII of the BBL allows the Bangsamoro Government to enjoy fiscal autonomy. This privilege is sanctioned by the Organic Act for Autonomous Regions. However, Section 2 of this Article provides the creation of the Bangsamoro Commission on Audit with exclusive and total power, authority, and duty to examine, audit and settle accounts pertaining to the revenue and receipts of, and expenditures or uses of funds, and property, owned or held in trust by, or pertaining to the public funds utilized by the Bangsamoro. It also has the exclusive power to audit the utilization of the revenue generated by the Bangsamoro Government and block grants or subsidies from foreign or domestic donors, subject to the auditing rules and regulations of the Bangsamoro Government.
This provision in the BBL oversteps the authority of the Commission on Audit (COA) and is a blatant violation of Article IX (D) Sections 2 (1) (2) and 3. To be specific:
ARTICLE IX (1987 Constitution)
D. The Commission on Audit
(1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis:
a. constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution;
b. autonomous state colleges and universities;
c. other government-owned or controlled corporations and their subsidiaries
(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.
No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.
Enough said. The provision in this BBL Article alone, renders the Bangsamoro Basic Law as illegal and unconstitutional, therefore, the passage and ratification of this law is impossible. It will violate the Constitution and in doing so, those responsible for the passage of the BBL will be held accountable for the culpable violation of the Article XI Section 2 of the Constitution –an impeachable offense.
Article XII Section 10 of the BBL specifies the sharing of taxes collected in the Bangsamoro as follows:
a. Twenty-five percent (25%) to the Central Government; and
b. Seventy-five percent (75%) to the Bangsamoro, including the shares of the Local Government Units within its territory.
However, the Bangsamoro is to retain the aforementioned twenty-five percent (25%) for a period of 10 years. Worse is, the period for retention may be extended beyond ten years!
Congress has no control over the fiscal management of these funds, only those that has been appropriated through the National Budget.
In short, while the national government is obligated to provide funding to projects within the Bangsamoro, the Bangsamoro Government is not required to remit any of the government shares in income within their areas for the next 10 years and beyond.
Does that sounds fair?
* * *
Article X Section 17 of the Constitution clearly specifies that all powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Therefore, the exclusive –and excessive– powers vested in the Bangsamoro Government by the BBL is unconstitutional.
In the entire texts of the BBL, there is not a single reference to the Republic of the Philippines. The reference used for the Philippine Government is the Central Government; the Bangsamoro inhabitants as the Bangsamoro people. Bangsamoro. Not Filipinos.
In other words, the Bangsamoro categorically refuses to acknowledge the Republic of the Philippines as its Mother State.
Even the very definition of the Bangsamoro means, a “nation of the muslims”. The word, “Bangsa” is a Malay term for the word, nation. The word, “Moro” is a Spanish term for Muslims.
So, categorically, what is being created under the BBL is a substate complete with executive, legislative, and judicial body that mimics the powers, functions and duties of these three governing bodies of a nation. The irony of it is that:
- The BBL which mimics the 1987 Philippine Constitution, is very unconstitutional in nature.
- The Bangsamoro “substate” being created under the BBL, according to the provisions of this very law will be funded by the Republic of the Philippines. This tantamounts to suicide.
- FACT: The Bangsamoro people –contrary to what the BBL wants to imply– did not exist as far back as the pre-Spanish era. Prior to the Muslim insurgency in 1969, there was no Bangsamoro. The notion of a ‘Bangsamoro’ was conceived by MNLF Chairman Nur Misuari when he founded his insurgent group in 1969, to exploit the unfounded and unproved “Jabidah Massacre” and use it as an excuse to rebel against the Philippine Government. And since Bangsamoro did not exist prior to 1969, their demands for an “ancestral homeland and their right to self-determination” is simply, ridiculous.
But, since the right to self-determination of the Muslims in Mindanao is a provision under Article X of the Constitution, it is only proper to grant them that privilege, provided, that the law being created to serve those rights does not go beyond the regional autonomy powers, functions, and privileges.
So, unless the BBL is first, revised and transformed into a law befitting an autonomous region, it’s ratification is next to impossible. It can’t be ratified –in its present state– without having to face culpable violation of the Constitution, which is an impeachable offense.
Summary of the BBL Articles in question:
- Article I Section 3
- Article II Section 3
- Article III Sections 2 and 3
- Article IV Sections 1, 2, and 3
- Article V Sections 3 (29), (34), (57) and 4
- Article VI Sections 4 and 9
- Article VII Sections 1, 3, and 30
- Article VIII Section 4
- Article X
- Article XI Sections 1, 2, 3, and 4
- Article XII Sections 2 and 10
For references, please click the links provided below:
- Analysis: The BBL Articles in Question (Updated Version) - October 1, 2015
- The Untold Story of Alan Kurdi - September 10, 2015
- In Selecting My Presidentiables (A Personal Choice and Opinion) - August 27, 2015
- Abu Sayyaf Group’s New Terror Act: A Huge Slap In The Face of AFP, Gov’t - August 14, 2015
- Is It Right To Label All Slum Inhabitants As “Parasites” of The Society? - May 7, 2015
- Mayweather’s Victory: Fair Play or Foul Play? - May 4, 2015
- Pilipino, Taas Noo Ka Pa Ba Kahit Kanino? - April 23, 2015
- Smart Communications and Its “Not-so-smart” Services - April 22, 2015
- Daing ng Isang Khadama - April 17, 2015
- Analysis: The BBL Articles in Question - April 14, 2015