B. Is the creation of the Bangsamoro authorized by the Constitution?

The creation of Bangsamoro is authorized by the Constitution in accordance to Section

15, Article X of the 1987 Constitution which provides, 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.
Bangsamoro was created under the BBL to replace ARMM (which was a failed
experiment) by 2016.
In particular, is the asymmetrical political relationship between the Bangsamoro and the
Central Government ordained by the Constitution? Is the classification of powers as
exclusive, reserved, and shared constitutionally permissible? (See Article VI?)
The issues regarding the Constitutionality of the Bangsamoro Basic Law were again
raised at the resumption of the congressional hearings on the draft legislation last Tuesday,
October 28th. As expected, opinions regarding the proposed bill were divided. Former Justice of
the Supreme Court Vicente Mendoza believes that the BBL is unconstitutional while former
justice of the Supreme Court Adolf Azcuna believes that BBL is not unconstitutional because it
does not violate any of the provisions of our constitution.
Former justice Mendoza, provided 5 main provisions of the Constitution that were
violated by the BBL which makes it unconstitutional. However, Azcuna and government peace
panel member Chito Gascon members of the 1986 Constitutional Commission offered their
counter-opinions.
1. Use of the term 'Bangsamoro territory'
With regards to the usage of the term Bangsamoro territory, Mendoza stated that on
how it was used in the provisions of the bill that is in question, it refers to a separate part of the
Philippines but still within its jurisdiction. Its only a little different with the associative
relationship of the Bangsamoro Juridical Entity under the MOA-AD.
But by how Azcuna interprets it, Bangsamoro means "nation of the Moro." It's a
recognition of a nation of people with a distinct culture. There can be many nations within a
state. Although it is thinking out of the box, it is not unconstitutional.

2. Use of the term 'Bangsamoro people'

The use of the term Bangsamoro people was also raised during the hearing because for
Mendoza, the term limits the exercise of suffrage and membership to those who are under the
Bangsamoro government and who ascribe to the Bangsamoro identity which would deprive the
rights and privileges of national citizenship provided in the Constitution.
However, Gascon made it clear that, Everything in the provisions affirm the rights of all
citizens. There is no two-tier citizenship which he further expounded, what it does say is that
the Bangsamoro shall have the opportunity for self-governance by way of the establishment of a
political entity that will govern themselves day to day. But who shall govern the Bangsamoro?
All those elected by all citizens of the Bangsamoro, whether they ascribe to be Bangsamoro or
not. There is nothing in the Bangsamoro Basic Law that says that only the Bangsamoro may be
elected.
3. Parliamentary form of government
It is not permissible because it is in contrary to the Constitutional provision that the
autonomous region should consist of an executive and legislative branch in which both shall be
elective and representative of constituent unit, as provided by Mendoza.
But Azcuna said that, Our Malolos Constitution is a parliamentary form of government.
This is nothing new. The officials...will still be elected and the government will be democratic.
Under the proposed law, while the Chief Minister will be chosen among members of the
Bangsamoro parliament and not directly elected by the people, the members themselves will still
be elected.
4. Separation of powers BBL lists down reserved powers for the central government, exclusive
powers for the Bangsamoro government, and concurrent powers between the two
According to Mendoza, the powers vested in the central government in the BBL are
limited which is contrary to the Constitution. He further stated that the BBLs provisions on the
national governments exclusive powers, as well as the concurrent powers it will share with the
Bangsamoro government would make the former similar to the United States Federal
Government.1

http://www.gmanetwork.com/news/story/385493/news/nation/retired-sc-justices-split-on-constitutionality-ofbangsamoro-bill

[The US government] is a government of enumerated powers with the balance

of powers retained by the governments of several states. The Philippine
government, however, is a unitary government and as such, it has all the powers
of sovereignty, except only those given to the autonomous regions by the
Constitution.
Azcuna however pointed out that all powers not delegated are retained by the central
government. In accordance to Section 17, Article X of the Constitution, All powers, functions,
and responsibilities not granted by this Constitution or by law to the autonomous regions shall be
vested in the National Government. He even made it clear that,
In the US, the states retain its powers unless its given to the federal
government. In our set-up, the unspecified powers are retained by the
national government,
Ultimately, the classification of powers as exclusive, reserved, and shared is still in line
with our Constitution.

5. General supervision of the Bangsamoro government or the so-called "Asymmetric

relationship"
The panels define "asymmetric relationship" as "implying a special status of the
Bangsamoro vis-a-vis the central government that is different from that of local governments and
administrative regions. The autonomous regions for Muslim Mindanao and the Cordillera
contemplated in the Constitution partakes of this special and distinct status and can thus be
described as asymmetrical."2
The relationship between the Central Government and the Bangsamoro Government shall
be asymmetric. This is reflective of the recognition of their Bangsamoro identity, and their
aspiration for self-governance. This makes it distinct from other regions and other local
governments (This is in conformity with Section 20, Article X of the 1987 Constitution).
Consistent with the principle of autonomy and the asymmetric relation of the Central
Government and the Bangsamoro Government, the President shall exercise general supervision
over the Bangsamoro Government to ensure that laws are faithfully executed. (Article VI,
Sections 1, 3)
According to Mendoza, It is the asymmetric relation qualification that waters down the
President's general supervision. This can make the strict enforcement of national laws in the
2

http://www.rappler.com/nation/special-coverage/peacetalks/73338-bangsamoro-bill-schools-of-thought

Bangsamoro difficult to secure. The right to self-determination cannot be used to justify this kind
of relationship between the Bangsamoro government and the central government.
But for Azcuna, the asymmetric relationship is an attempt to reverse the balance. That
is why there is a provision here on transitional justice. Let us let them chart their own course.
Bangsamoro is an attempt to redress long historical imbalances. He further stated that the
asymmetric relationship between the autonomous region and the central government is an
attempt to address that imbalance.
Furthermore, Dr. Abueva of the University of the Philippines stated that the The
Constitution, the Bangsamoro Basic law and other laws must be interpreted as enabling
authority, rather than obstacles to its fulfillment. We need a progressive political outlook and
transforming leadership, an inclusive view of Filipino nationalism, nationhood and nationbuilding and a deep and broad concept of compensatory and redistributive justice.3
It is also very important that before the Congress enacts this as a law, some terms should
be carefully defined so as to prevent any ambiguity in the future such as the aforementioned
terms, the territorial scope of the Bangsamoro, the ministerial form of government, as well as the
asymmetrical relationship between the central government and the Bangsamoro. Let me quote
Dean Tony La Vias line in one of his articles in MST, It is too dangerous to leave these
concepts legally undefined as, in a vacuum, the Supreme Court would be compelled to come in
with its own interpretation that might not have been the intent of Congress but which would
make the former conclude that the BBL is unconstitutional.

http://www.manilatimes.net/former-sc-justice-says-bbl-illegal/137648/