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Republic of the Philippines

CONGRESS OF THE PHILIPPINES


SENATE
Pasay City
COMMITTEE ON LOCAL GOVERNMENT
JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION
AND RECONCILIATION; AND CONSTITUTIONAL
AMENDMENTS AND REVISION OF CODES
DATE

Monday, February 2, 2015

TIME

10:00 a.m.

VENUE

Sen. Claro M. Recto and Sen. Jose P. Laurel Rooms


2nd Floor, Senate of the Philippines
Financial Center, Roxas Boulevard
Pasay City

AGENDA

Constitutional Issues of Senate Bill No.


2408 (Bangsamoro Basic Law)

ATTENDANCE

SENATORS PRESENT:
Hon. Miriam Defensor Santiago

Chairperson, Committee
on Constitutional Amendments and
Revision of Codes
Hon. Teofisto TG L. Guingona III
Chairman, Committee on Peace,
Unification and Reconciliation
Hon. Ferdinand Bongbong Marcos Jr. Chairman, Committee on Local
Government
Hon. Aquilino Koko L. Pimentel III - Vice Chairman, Committees
On Peace, Unification and
Reconciliation; and Constitutional Amendments and
Revision of Codes

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE,


UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND
REVISION OF CODES
Monday, February 2, 2015
Page 2 of 3

GUESTS/RESOURCE PERSONS:
Hon. Artemio V. Panganiban
Hon. Adolfo S. Azcuna
Hon. Jose Luis Martin Gascon
Dean Julkipli Wadi
Datu Abul Khayr Alonto
Dean Merlin M. Magallona
Hon. Mohagher M. Iqbal
Hon. Pablo P. Garcia
Atty. Michael Tamayao

Fr. Jerome R. Secillano

Atty. Edwin B. Bellen

- Retired Chief Justice


Supreme Court (SC)
- Retired Associate Justice, SC
Member, Constitutional
Commission of 1986
- UP Institute of Islamic Studies
- Chair, Moro National
Liberation Front (MNLF)
- UP College of Law
- Chair, Bangsamoro Transition
Commission
- Former Deputy Speaker,
House of Representatives
- Professor, Cagayan State
University College of Law
And LLM Student, San Beda
College Graduate School of Law
- Executive Secretary
Catholic Bishop Conference
of the Philippines (CBCP)
Episcopal Commission on
Public Affairs
- Deputy Secretary for
Legislation, Senate

SENATORS STAFF:
Atty. Fatima Panontongan
Atty. Donna Manlangit
Ms. Tanya Perez
Ms. Chelsea Dauz
Ms. Arifah Macawa Jamil
Atty. Luzviminda Lavarias
Mr. Julius Palamos
Atty. Jose Cadiz Jr.
Atty. Mark Robert Dy
Ms. Tanya Ramiro
Atty. Homer Alinsug
Mr. Jess Abalos

O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S

Defensor Santiago
Defensor Santiago
Defensor Santiago
Defensor Santiago
Marcos
Marcos
Marcos
Marcos
Guingona
Guingona
Angara
Angara

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UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND
REVISION OF CODES
Monday, February 2, 2015
Page 3 of 3

Atty. Fabs Lapada Jr.


Mr. Ricardo Calimag
Atty. Fritzie Selda
Ms. Zheanne Aeson Dantis

O/S
O/S
O/S
O/S

Binay
Binay
P. Cayetano
P. Cayetano

SENATE SECRETARIAT:
Ms. Assumption Ingrid B. Reyes
Mr. Elpidio A. Calica, MNSA
Ms. Suharni Candao
Ms. Eleuteria Mirasol
Ms. Susana Grace L. Robles

Ms. Bathaluman H. Gonzales


Ms. Maribel P. Mendoza
Mr. Guillermo E. Sapinoso Jr.
Ms. Nida A. Mancol
Ms. Carolina F. Driz
Ms. Mylene Palino
Mr. Jimmy Gaviola
Mr. Lorenzo C. Barruga
Mr. Roland Laureano
Ms. Amity Caragay
Ms. Jeanette Padilla
Mr. Reggie Mendoza

Legislative Committee Secretary


Legislative Committee Secretary
Legislative Committee Secretary
Legislative Committee Secretary
Legislative Committee
Stenographer, LCSS B
- do
- do
- do
- do
- do
Legislative Committee Clerk
- do
- do
Audio Operator
Legislative Page, OSAA
- do
- do -

(For complete list, please see attached Attendance Sheet.)

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COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION;
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Sglrobles
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February 2, 2015
10:05 a.m.
1
AT 10:05 A.M., HON. MIRIAM DEFENSOR
SANTIAGO, CHAIRPERSON OF THE COMMITTEE
ON
CONSTITUTIONAL
AMENDMENTS
AND
REVISION OF CODES, CALLED THE HEARING TO
ORDER.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Please

come to order. Please stand up and we will say a one minute prayer
for our countrymen in the SAF massacre.
Lord, please bless our beloved countrymen who died during the
operations of the police Special Action Force or SAF. Grant them, Lord,
Your divine mercy as you sit in judgment on their immortal souls. And
grant, Lord, comfort to those who are bereaved and most especially to
our country where we shall remember by Your grace that without
justice there can be no peace. Thank you. Amen.
Welcome to the second and the last hearing of the Committee on
Constitutional Amendments.

As I have said before, there are three

committees that are assigned to the BBL project.

These are your

Committee on Constitutional Amendments, the Committee on Peace,


Unification and Reconciliation chaired by Senator Guingona who is
about to come--whos scheduled to come any time now and that prime
committee, Committee on Local Government is chaired by Senator
Ferdinand Marcos Jr., who is also about to come at any time.
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On this condition, therefore, we shall proceed. We have divided
the BBL into four topics.

First topic, we have divided our resource

panel into pairs. We always call in a debate on the affirmative side.


So first we call the affirmative side, then we call the other side and
thus we proceed among the four topics.
Our first topic today as in the first hearing is the topic of
legislation versus charter change. Meaning to say, we ask the question
of our resource panel. Is it sufficient to pass the BBL as an ordinary
piece of legislation or is it necessary to go to the more difficult and
sophisticated means of constitutional amendment or revision?
For this topic we would have wanted first to call former Justice
Adolfo Azcuna for the pro side. And then former Chief Justice Artemio
Panganiban of the Supreme Court for the contra side.

But I

understand that Justice Azcuna is not yet here. So well go to the next
pair for this topic. Pro will be taken by Chair Datu Abul Khayr Alonto of
the MNLF. And the contra side will be taken by Dean Merlin Magallona
of the UP College of Law, an internationally recognized expert on
international law.
Where is the Chair Datu Abul Khayr Alonto?

Hes not here

either? So what shall we do? Two people who are pro are not yet here
so we will reverse the procedure.

We will begin with the contra.

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Those who think there is merit in the proposal that instead of
undergoing mere or legislative procedure, the BBL should undergo the
procedure for constitutional amendment or revision.
May we please call on former Chief Justice Artemio Panganiban?
MR. PANGANIBAN.

Magandang umaga po, Madam Senator,

Chairperson.
Bago po ako magsimula, may I wish you speedy and complete
recovery. Sana po humaba pa ang buhay ninyo. Kailangan po kayo
ng ating bayan.
Second, may I read my letter, Your Honor, in response to your
invitation:
February 1, 2015,

Honorable Miriam Defensor Santiago


Senate of the Philippines, Pasay City

Dear Senator Santiago:


In response to your invitation transmitted to me today by Ms.
Assumption Ingrid B. Reyes via hard and soft copy and by Atty. Fatima
Panongtongan via telephone, I respectfully submit formally my position
paper which was published concurrently as a column in todays issue of

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the Philippine Daily Inquirer and Inquirer.Net.
I do have a prior appointment tomorrowmeaning todaybut I
will try to excuse myself from it or to cut short my time therein to join
you tomorrow during the hearing you scheduled.
And here is my position paper, Your Honor, entitled How much
do we love peace?
What price peace? blared the Inquirer editorial two days ago
actually three days ago now. I also ask, How much do we love peace
with the MILF? Do we want peace in spite of the recent killing, some
say massacre, of 44 Special Action (SAF) officers while performing
their duties?
Complete peace, assuming it is possible with the MILF, will not
halt continuing armed conflict by our military and police with orphans
like renegade MILF commandos, its breakaways like the Bangsamoro
Islamic Freedom Fighters or BIFF, and its rivals like the Moro National
Liberation Front (MNLF) of Nur Misuari.
In fact, when the government concluded a peace pact with the
MNLF in 1996, the MILF ignored the Misuari-signed agreement and
continued the armed struggle. Do we still want peace with the MILF
despite renewed wars with its orphans, breakaways and rivals?
Do we want peace despite the vehement objections of Christians

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and minority tribes like the Lumad in the MILF areas?

Do we want

peace so much as to give the same consent of sovereignty, territory


and other privileges to the minorities in the Cordilleras and other
regions?
Do we want peace so much as to approve in substance if not en
toto the Comprehensive Agreement on the Bangsamoro (CAB) and the
proposed Bangsamoro Basic Law (BBL) despite the not so trivial
constitutional objections of seasoned legislators like Senator Miriam
Defensor Santiago and former Senator Aquilino Pimentel Jr., seasoned
constitutionalists like retired Supreme Court Justices Florentino P.
Feliciano and Vicente V. Mendoza, and law groups like the Philippine
Constitution Association?
Indeed, many are the political, military, social and constitutional
barriers to peace but many and formidable too are the pleas for
support for the CAB and the BBL, notably from President Aquino,
Senate President Franklin M. Drilon, Speaker Feliciano Belmonte Jr.
and the officials of the Autonomous Region of Muslim Mindanao.
Very persuasive also is the consensus of the 14 of the 18
surviving members of the Constitutional Commission. The other four
survivors are, bedridden or could not be reached while the rest of the
original 48 drafters have died, but pleading. And I quote them, Let us

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set aside parties and politics and stop the urge to exhibit our ability to
find nuisances of legalism that can delay, or worse, derail the process,
feeding on the cynism and playing on the fears in the national psyche
that are more reflex reaction than reasoned response.
The esteemed constitution drafters, who include a retired chief
justice, Hilario G. Davide Jr., and a retired associate justice, Adolfo S.
Azcuna, assure us that the Bangsamoro is about the development of
people, not about the constitutionality of words.

Hence, the public

conversation should not be about a semantics but about peopletheir


needs, their aspirations, their choicesand about empowering them
with the environment and the institutional framework for social justice.
I would like to join the government/sglr

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MR. PANGANIBAN.

I would like to join the government and

the constitutional commissioners in their impassioned plea for peace


and prosperity.

However, I cannot ignore the formidable legal

obstacles, especially as they relate to violations of the Constitution,


remembering that the earlier attempt at peace with the MILF, the
Memorandum of Agreement on the Ancestral Domains (MOA-AD)
drawn in 2008 by the administration of then President Gloria
Macapagal-Arroyo, was scuttled by the Supreme Court and resulted in
a fiercer war.
That landmark case, North Cotabato versus Government of the
Philippines, promulgated on October 14, 2008, taught us that the
bottom line in all peace negotiations and agreement is strict
adherence to the Constitution.

Despite lingual embellishments, the

demands of the MILF since 2008 have not changed in substance. The
MOA-AD

spoke

of

associative

while

the

CAB

provided

for

asymmetrical relation between the national or central government


and the Bangsamoro but their bottom meanings are the same.
These quoted words are not defined in familiar constitutional
language but should the critics prove to be right and the Supreme
Court debunks the CAB and the BBL in whole or in part, the result
could be worsefighting, division and regression.
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I believe that peace is too monumental to be left to chance and


to differing constitutional perceptions and opinions.

I think that

Congress should treat the constitutionally objectionable portions of the


BBL as amendments to the Constitution by passing them upon a vote
of three-fourths of all its members, pursuant to Article XVII of the
Constitution and subjecting them to a plebiscite by all the voters in the
country, not just in the affected areas in Mindanao. How this can be
done speedily deserves another column or position.
In this manner, all constitutional pitfalls which I respectfully
think are real and ominous would be avoided and all political, social,
economic and historical issues settled directly by our people.

Truly,

the entire electorate must be involved in this decision, and prior to


that, in the national conversation that should no longer be on
semantics or legalism but on what is best for our entire nation.
If we truly love peace, then we should all be prepared to pay its
price and to change massivelyyes, massivelyour political, social
and

governmental

structures

and

mindsets

by

amending

the

Constitution forthrightly and asking all our people, not just those in the
Autonomous Region of Mindanao, to join in a national debate and to
decide this great milestone in a nationwide plebiscite.
Respectfully submitted, Artemio V. Panganiban.
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Thank you, Your Honor.


THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you very much.


First of all, I place you on guard that we are being broadcast live
by certain television stations.
Thank you very much, former Supreme Court Chief Justice
Artemio Panganiban, for taking the contra side on our topic of whether
the BBL should pass as an ordinary law or should be promulgated after
the intricate procedures prescribed for charter amendment or revision.
So to present the other side, meaning to say, the pro side, let
me call former Supreme Court Justice Adolfo Azcuna, now Chancellor
of the Philippine Judicial Academy and a former member of the 1986
Constitutional Commission.
MR. PANGANIBAN.

Your Honor, can I just clarify that my

position is not that we first pass the law or we first amend the
Constitution. My position is that this can be done simultaneously by
Congress acting separately as a lawmaking body and as a constituent
assembly pursuant to the Constitution in order to speedily do this.
Thank you, Your Honor.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you very much for that addendum.


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In effect, it presents a compromise with respect to the procedure


to be followed.
Justice Azcuna, please.
MR. AZCUNA. Thank you very much, Madam Chair.
Id like to apologize for being late.
My submission, Madam Chair, is that of my colleagues and the
framers of the Constitutional Commission.

We have taken the stand

that there is no need for amending the Constitution in order to effect


the autonomous region that is mandated under the Constitution
precisely because the Constitution has already mandated it.
It is very clear from Article X of the Philippine Constitution that
there shall be created this Autonomous Region in Muslim Mindanao.
The only question really is whether the proposed legislation is within
the framework of that provision of the Constitution on the Autonomous
Region in Muslim Mindanao. One of the objections presented against it
is because under the BBL, the form of government is ministerial and,
therefore,

it

goes

against

the

Constitution

because

under

the

Constitution, our form of government is presidential.


I respectfully submit, Madam Chair, that this is not a correct
argument because to start with, the present Constitution of the
Philippines is not strictly presidential in form. There are many features
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of the parliamentary form of government that have been incorporated


in our system, including the question hour, including party-list
representation and many other features like recall. The framers of the
Constitution saw wisdom in having a mixed form of government where
you have features of the parliamentary system incorporated in our
structure of government.
Secondly, Madam Chair, what the Constitution requires for the
form of government in the autonomous region is simply that it should
be elective and representative of the constituent political units.

parliamentary system will fulfill this minimal requirement. Under our


Constitution, what is, therefore, required of the autonomous region is
that it be representative and democratic. And under the BBL, the form
of government, although ministerial, is also going to be representative
and democratic.
Furthermore, Madam Chair, the practice of mixing the legislative
and the executive in our local governments is not new.

In our local

governments, as they are structured today under existing laws, you


have the executive in the provincial levela governor and a vice
governor participating in the parliamentary legislative body of the
province which is the provincial board.

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In the City of Manila, I understand, the vice mayor presides over


the council of the city.

So it is not really an oddity but in fact, a

common occurrence in our country today to have this kind of


government where you have the executive and the legislative working
together.
It has also been said that the features of the autonomous region
is unconstitutional because it grants a definite territory to the
autonomous region.

And since territory is an essential element of a

state, therefore, to grant a definite territory to the autonomous region


is to recognize it as a separate state.
I respectfully submit, Madam Chair, that that is a flawed
argument. The essential requisites of a sovereign state are territory,
people, government and sovereignty or independence.

It

is

not

enough to have a definite territory to become a separate state. You


must have independence. An independence is definitely not granted to
the autonomous region in this proposed setup. Therefore, even if they
will have people, they have territory, they have government but
absent independence, they cannot be a sovereign state.
Furthermore, Madam Chair, the territorybrhg

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MR. AZCUNA.

Furthermore, Madam Chair, the territory

granted to the autonomous region here is definitely stated to be part of


Philippine territory. So it is not a separate territory taken out of the
Philippine territory but it is just delineated for purposes of governance
but still forms part of Philippine territory.
There are other features that are admittedly objectionable from
the viewpoint of the Constitution such as the police, for instance.
Under the Constitution, there can only be one police force, this is the
Natividad provision, authored by the late Teodulo Natividad and passed
without amendment that there shall be only one police force in the
whole country, civilian in character, national in scope.
I pointed this out to the Philippine panel of negotiators and they
assured me that this will be observed.

And if it is not, it is up to

Congress to make sure that all these features are aligned with the
Constitutiona separate COA, separate Civil Service, separate police
force

must

not

be

allowed

to

be

really

separated

from

constitutional bodies because the Constitution does not allow it.

our
So

the objectionable features can be remedied by Congress, the essential


feature which is an autonomous region that is part of social justice and
development of peoples can be retained.

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One of the objections I was surprised, Madam Chair, was that we


would be granting the autonomous region autonomy on matters of
education. But, Madam Chair, educational policy is specifically granted
to the autonomous region under the Constitution, Section 20 of Article
X states educational policies, subsection seven, as among those
granted to the autonomous region to legislate over.
Another objection was that the enumeration of powers given to
the autonomous region was too much58 as against eight. But it is
not the number of the powers but the nature of the powers, the nature
reserved for the national government are precisely those of an
independent state and that is not granted to this autonomous region.
Furthermore, there was an error on the part of one of the
speakers against who said that under the proposal, the visible powers,
the powers neither granted nor reserved are given to the autonomous
region. That is wrong, Madam Chair. The residual powers are retained
by the national government. That is according to the Constitution itself
and that cannot be violated by the BBL. I dont think the BBL has a
provision to that effect either. So you have powers that are reserved,
retained by the national government, powers that are shared by both,
powers that are exclusive to the autonomous region and any other

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power, not mentioned is a residual power and is with the national


government.
So, Madam Chair, I submit that the proposed BBL conforms with
the Constitution.

The MOA-AD that was invalidated by the Supreme

Court at the time that I was a member of the court suffered from many
defects.

One of them was that there was failure of consultation.

Consultation is very essential when you try to change the structure of


government. That has been remedied in the present setup, there had
been numerous consultations done on this proposed autonomous
region.
Another feature was the absence of mention of the Constitution.
Now, it is very clear that this exercise is and must be in consonance
with the Philippine Constitution. So this, I submit, Madam Chair, our
big differences between the MOA-AD that was invalidated by the
Supreme Court and the present proposal. I respectfully reiterate the
paper that our colleague submitted, Madam Chair, supporting the
Bangsamoro proposal.
Thank you, Madam Chair.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you very much, former Justice of the Supreme Court Adolfo Azcuna.

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One of our staff will come around to every resource person and
collect the statement delivered, if it is in acceptable form this morning.
So kindly turn over your statements. They will help me to write my
committee report which I will submit to the Committee on Local
Government, the prime committee.
So important is the topic of whether BBL should pass as a mere
piece of legislation in the ordinary procedure or should pass the more
sophisticated procedure of charter amendment that we have not one
but two pairs of debaters. And as usual with a debate, we will call on
the affirmative first and then the negative side. The affirmative side
may we call on him now will be taken by Chair Datu Abul Khayr Alonto
of the MNLF, Moro National Liberation Front.
Please proceed.
MR. ALONTO.

In the name of Allah, the most gracious, the

most merciful.
The Honorable Chair, Senator Miriam Defensor Santiago, may
the peace and blessings of Allah Subhanahu Wa Taala be with you all.
Good morning.
Our

proposition

Bangsamoro Basic Law.

is

for

the

immediate

legislation

of

the

This position is without prejudice to my 43

years stand on federalism.

In Allahs right time, together with the


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leaders of Mindanao, Visayas, and Luzon, and other advocates of


charter changeInsha Allah, we shall come, to the Philippine Congress
to call for a constitutional convention but not today, Madam Chair.
For the temper of time demands the immediate passage of this
Bangsamoro Basic Law or the BBL. It is of historical necessity that the
Philippine Congress hastens the legislation of the BBL.

We ask the

honorable members of the two Houses of the Philippine Congress to


enact a stronger BBL, not an emasculated or mutilated BBL which
would run contrary to the very purpose of the law, that of correcting a
social and historical injustice to the Bangsamoro people.

May I

reiterate once again that a stronger Bangsamoro government is the


key to the adoption of a federal parliamentary form of government in
this country. We strongly move for the legislation of BBL.
Madam Chair, from the American colonial rule to the Philippine
Commonwealth

and

to

date

the

Philippine

government,

the

Bangsamoro people have embraced democracy, but democracy has not


provided security neither has it addressed the long line of injustices
committed against the Bangsamoro people in the name of law. We still
want democracy to rule, but the kind of democracy we speak of is one
that can ensure a safe and sane future for the children of Mindanao:
Muslims, Christians, the other cultural communities and all the other
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stakeholders in Mindanao.
simply means the rule of law.

Democracy, Madam Chair, in Islam is


We want this BBL to govern us.

If you ask me now if the Bangsamoro Basic Law is constitutional,


my

answer

would

be

resounding

Yes!

But

this

humble

representation respectfully defers to the better knowledge of the legal


experts the issue on the constitutionality of the BBL, and perhaps an
excellent reference will be the position paper submitted by the framers
of the 1987 Constitution. I am not a lawyer, Madam Chair. I did not
finish my law, but the law almost finished me. Nevertheless, my son
/mpm

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MR. ALONTO. my son, who was a law valedictorian, is now a


prosecutor of the Department of Justice and a law professor.
The principle of common good and the principle of subsidiary are
the two principles which convinced the 1987 Constitution framers to
grant local autonomy to the Autonomous Region of Muslim Mindanao.
These two principles enshrined in the 1987 Philippine Constitution can
very well support BBL and, further, BBL can take its refuge, Madam
Chair, in Article II, Section 2 of the 1987 Philippine Constitution.
In the last few days, at the wake of the tragic Mamasapano
incident in Maguindanao, we felt once more the great divide of hatred
and prejudices rise between our peoples. Those who call for war and
the suspension of the peace process are people, who even in their
nightmares, would never know the horrors and cruelties of war that
the people of Mindanao, Muslims and Christians alike have been
subjected to in all these decades, neither will they know the pain of
losing loved ones to war.

Barely a few weeks ago, Madam Chair, a

pious man, His Holiness Pope Francis came to this country bringing the
message of mercy and compassion, yet so soon has that been
forgotten.
The tragic Mamasapano incident is not a simple police matter nor
is it merely an issue of insurgency. What we have is a war, a real war

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that necessitated the assistance of the international community for us


to reach this point. The BBL is anchored on the Framework Agreement
on the Bangsamoro and the Comprehensive Agreement on the
Bangsamoro, agreements recognized and witnessed by the civilized
countries of the world. The CAB is a continuum of the 1996 GRP-MNLF
Peace Accord and the 1976 RP-MNLF Tripoli Agreement anchored on
Resolution No. 18 of the 1974 Kuala Lumpur Summit of Heads of State
of the Organization of Islamic Cooperation which obliged the Philippine
government to negotiate with the good Muslim leadership of southern
Philippines, including the Moro National Liberation Front.
Amidst their prevailing peril and through the backdoor of
Mindanao, it was this representation, Madam Chair, along with Santi
Dangcal, Kim Riga, our martyred brother Ating Abdullah, all of the
FF90, and my first cousin Robert Maulana Marohombsar Alonto, who is
now with the MNLF panel cum Bangsamoro Transition Commission,
who delivered the manifesto signed by 20,000 delegates of the Moro
Liberation Movement of the 500,000 card-carrying members of the
Ansar-el-Islam of the Philippines which prompted the adoption of
Resolution No. 18 by the heads of states of the 52 member states of
the OIC, now 57.

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Whether we like it or not, Madam Chair, all these agreements


have the character of an international treaty duly recognized by the
civilized world and accepted as part of the law of the land.

As a

veteran of the Mindanao war, I wish to express our indignation on the


use of the word massacre in describing the incident in Mamasapano,
Maguindanao. Those 44 PNP-SAF commandos who were part of a 392
fully geared combatants that entered the MILF base command
alongside with their bounty hunter informants and civilian militia
guides as well as of those 17 MILF Mujaheedin were killed all in the line
of duty.

The MILF defended their community and the PNP-SAF

commandos were under order from a superior and both sides fought
valiantly to their last breath believing they were doing their duty to
their nation and country. Saying it was a massacre is doing a great
disservice to those men of valor, Madam Chair.
The tragic Mamasapano incident prompted us to issue a
statement at the first hour asking for a joint government-MILF full
investigation of the military misencounter. While we share the pain of
the families of those fallen warriors on both sides, this Honorable
Chamber cannot renege on the BBL and more so cannot support the
resumption of war in Mindanao.

The incident should all the more

compel us, compel the enactment of the BBL if only to prevent the

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fragmentation of this country and the outbreak of a fratricidal war of


attrition between our two people.
However, if the institutionalized, well-oiled machinery of hatred
in this country wish to insist on the word massacre, then let me
breeze through the painful events that imprinted in our minds and
hearts, Madam Chair.
In 1971, there were the Manalili Mosque Massacre with 74 bodies
gunned down and buried in a common grave inside a mosque in
Cotabato; the Tacub Massacre where two truckloads of Moro voters for
the election of 1971 were hacked beyond recognition; the Dilabayen
Massacre in Kauswagan, Lanao del Norte, where an entire village were
either gunned down or hacked to death and their women raped which
some having their breasts mutilated. One lone survivor, Madam Chair,
of his family, a young boy of four years, who I sneaked out of this
country and who was presented before the OIC is still alive living in a
foreign land with one ear, one arm and a battered soul.
Moreover, there were those series of massacres in Zamboanga
Peninsula and Palawan. These were massacres, honorable ladies and
gentlemen, Honorable Madam Chair, where unarmed men, women and
children were gunned down and mutilated and definitely were not in
full combat gear.

In 1979, there was the Calookan-Marawi City

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Massacre of a family of nine members which included an elderly couple


and a pregnant woman, killed and hacked to death with her fetus
extracted out of here womb and bashed with the butt of a gun.
In all these, the people were unarmed and helpless. That is the
essence of a massacre, Madam Chair, not when they are in full combat
gears and with high caliber artillery.
The Mamasapano tragic incident must not stop this BBL.

The

Mamasapano incident, quoting the good general, the Secretary of


Defense Gazmin, it was a military misencounter.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Please

stop that cellphone, please. It is very rude and very abstruse not to
remember that this is a solemn proceeding in the Philippine Senate.
Stop it immediately, on pain of contempt.
I am sorry, please proceed.
MR. ALONTO.

All these massacres were filed in the courts of

law with the culprits identified


THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Excuse
me.
Will you stop talking on your cellphone, please. Out. Page, take
that lady out.
I am sorry again. Please proceed.

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MR. ALONTO. Thank you, Madam Chair.


All these massacres, Madam Chair, were filed in the courts of law
with the culprits identified, but to date, no single perpetrator or
perpetrators have answered to any one of those heinous crimes.
In the all-out war, state-sponsored violence perpetrated against
the Bangsamoro people called out by the Estrada and the Arroyo
administrations, there were no legal questions raised.

Former Vice

President and Senator Honorable Teofisto Guingona Jr. conducted an


investigation that came out with the report that under the all-out war
of President Estrada, a total of 800,000 civilians were displaced and
more than 270,000 under the all-out war called out by Gloria
Macapagal Arroyo.
As of date, more than 200,000 lives have perished in this
Mindanao war. More than two million/jun

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MR. ALONTO.

than two million rendered homeless and

destitute, and more than three million of our people are scattered as
refugees all over the Philippines, in Malaysia, in Middle East and
elsewhere. These are all results of the Mindanao war.
At this juncture, kindly, Madam Chair, indulge me in my
narration of events.
In 1966, I organized the Lam Alif, the Muslim youth movement
which became the rallying flag of protest movement that ensued after
the 1968 Jabiddah Massacre.

I recruited some members along with

others, youth leaders which included Nur Misuari who I dissuaded away
from the Kabataang Makabayan, the youth wing of the Communist
Party of the Philippines that he founded with Jose Maria Sison.
Together with these men, we formed the first 90 men of the
organization and I proposed to be named Moro National Liberation
Front and moved to call our military arm the Bangsamoro Army.
We led the defense of the Bangsamoro people as the highest
MNLF officer in this country during the war of the 70s and along with
my comrades, some of them are here with us today, Madam Chair, we
stayed put and gave our best to the defense of Mindanao as it raged in
the fire of war.

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In 1974, I was tasked to bring before the OIC the manifesto that
gave birth to the 1976 RP-MNLF Tripoli Agreement.

Unfortunately,

after the signing, Nur Misuari refused to come home. And in spite of
my letters to him, he refused to resolve the conflict he had with our
good brother, Hashim Salamat, that led to the split and the creation of
the Moro Islamic Liberation Front in 1977.
In the spirit of the Tripoli Agreement, I joined the way of peace
and worked for the implementation of the Tripoli Agreement in spirit
and letter in 1979.

President Ferdinand Edralin Marcos issued the

Presidential Decree 1618 to serve as the implementing mechanism of


the Tripoli Agreement and the autonomous governments of Region IX
and XII constituting 10 provinces and six cities out of 13 provinces
agreed upon in the Tripoli Agreement.
I was elected interim head of the

Regional Autonomous

Government and subsequently as the first Speaker of the Regional


Legislative Assembly, elected in absentia, Madam Chair. Our Assembly
proved that Muslims and Christians can govern together in Mindanao.
For in that first assembly were distinguished Christian leaders like
Governor Cerilles of Zamboanga del Sur; the late Vice Governor Fred
Tamula of Lanao del Norte; RTC Judge Frank Rabang of North
Cotabato;

Assemblyman

Juan

Sibug

of

the

Moro

Highlanders
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(Manobo); and the late Congressman Nano Badelles, who was my


deputy.
It is of note that the alleged secretary general of the ILAGAS who
later became mayor of Pigkauwayan, Tito Galbo, I appointed as my
executive secretary.

But after ensuring that all programs were

initiated and made for implementation, I submitted my irrevocable


resignation to the President of the Republic.
I say all these not to give importance to my person but to make
everyone understand that we have the personal knowledge of not just
the history but the factors that led to the non-implementation of the
mechanisms of the Tripoli Agreement.
There were no safety measures provided for the MNLF to lead
the implementation of autonomy as authority was usurped and
hijacked from the revolutionary leaders by the traditional politicians
and vested interest groups.

The autonomy granted then can be

likened to a car without a fuel, battery and spare tires. As such, in the
enactment of the BBL, we exhort this august chamber to grant the
Bangsamoro a law that has the full mechanism of autonomy so that
the failures of the past need not be repeated.
We commend the sincere and courageous efforts that the MILF
and the GPH Panel manifested in signing the decommissioning
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agreement last Friday, which shows the confidence of both sides on the
peace process.

It is now in the hands of the Philippine Congress to

bring the agreement to its culmination.

You have the historical

opportunity to end the Mindanao war and correct the 497 years of
historical

injustices

archipelago.

done

to

the

Moro-Malay

Muslims

of

this

History is inextricable from understanding this situation

we are in today.
When the Spaniards came to our islands and saw the Moro-Malay
Muslims of this archipelago having the same religion as the Muslim
Moors, their colonial masters for 800 years from 1711 to 1492, they
called the Malay-Muslims Moros, transferring their deep hatred and
vengeful spirit for their colonial masters to these native inhabitants.
For 333 years, Madam Chair, they inculcated that same deep
hatred and vengeful spirits to those they were able to colonize: the
Indios who are now the Filipinos.
Then the Americans committed an infamy of history
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Please

forgive me, Mr. Chair, but Im desperate to hear all the members of
the resource panel.

Can you please come to the conclusion of your

statement, if possible?

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MR. ALONTO.

I am sorry, Madam Chair, but what I am

briefing here is history because I dont think


THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). All right.
MR. ALONTO.

For those who are opposed to this BBL, we

understand without taking into account the historical past that made
us what we are here today.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). All right.
Please proceed.
MR. ALONTO. Thank you, Madam Chair.
Then as I have said, the Americans committed an infamy of
history by agreeing to the inclusion of Mindanao and Sulu to the
Philippines in the Treaty of Paris.

The Americans signed the Bates

Treaty in August 1899 with the Sulu Sultanate, a maneuver to lull the
Moros while they pacified Luzon and Visayas areas, then they came
back, they turned upside down our homeland. The American military
campaign in the Moroland claimed 20,000 lives. Then the Public Land
Act of 1909 reduced the land of every Moro family to just 10 hectares
while any individual settler can own from 24 hectares up which meant
a family of five can own 120 hectares or even more. The tragedy of it
all, honorable chair and membersI am happy the good Chair of the
Peace and Reconciliation Committee is here with you, Madam Chair,
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and the good Senator Pimentelis that the Moros did not even know
their lands had been titled nor limited.
Furthermore,

in

1926,

the

American

Colonial

Government

abolished the legitimate sultanates and principalities of our homeland.


Let historical record bear us out that there were three independent
sovereign Sultanate States and four Principalities recognized by the
Empire of China: the Sultanates of Sulu, Maguindanao, and Ramain
MalaaBayabao and its four principalities of Raja-Buayaan, Masiu,
Unayan and Kuta Bato-Tagoloan. Their diplomatic and trade relations
reached its peak under the Ming Dynasty in 1408 to 1440 facilitated by
Admiral Zheng Ho, called by the Moro monarchs as their brother
Muslim, Sampaw.
We are not barbarians or beggars, Madam Chair, and honorable
members of this august chamber. Our people have a history of more
than 2,000 documented years and according to the tarsilas, the oral
tradition, of the Sultanate of Ramain MalaaBayabao, as far back as
6,000 years. This is the people you now call the Bangsamoro.
In passing the BBL, our history becomes your history and
together we can finally write the history of the people of the
Philippines.

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The Philippine Congress is in that position as our 1987


Constitution framers declared to be on the cusp of a historic
opportunity to make it happen.

But not only do you make that

historic opportunity of ending the Mindanao war, but you also finally
liberate the Filipino nation from the shackles of the cruel colonial past.
That in the passage of the BBL, we will finally accept that we are two
distinct people with two different history but of the same Malay race
sharing one destiny under one Philippine flag and finally a truly free
and united Philippines.

Beyond the law, Madam Chair, this BBL is a

noble and sacred covenant of peace with justice between our two
peoples and our Creator.
Honorable Chairs of the three committees, the Bangsamoro Basic
Law is in consonance with our inherent and inalienable right as a
people.

The mainstream Moro National Liberation Front and the

Bangsamoro Army Command Staff Conference of Field commanders,


some of whom are here with me now, stand in solidarity with the Moro
Islamic Liberation Front for the immediate passage of the Bangsamoro.
. . (nam)

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MR. ALONTO. of the Bangsamoro Basic Law.


May the Almighty Allah

keep this Honorable Chairperson and

members of the Philippine Congress in excellent health and best of


faith and preserve this country in peace and unity.
Tarimaan niyo a kakasi, sarumbaytanan, sangibo a salamat.
Maraming salamat po, Madam Chair.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you very much, Chair Alonto.


We are very happy to acknowledge the arrival of the Chair of the
Senate

Committee on Peace, Unification and Reconciliation, Senator

Teofisto Guingona III, and the prior arrival of Senator Aquilino


Pimentel III, both of whom are from Mindanao area.
We have just heard the pro side. Now, we shall hear the contra
side from former UP College of Law Dean, Merlin Magallona, who is one
of our most respected authorities on International Law, served as
Undersecretary of Justice and has enriched the language of the
International Court of Justice by appearing in pleadings filed before
that court.
Dean Magallona.
MR. MAGALLONA.

Honorable Chairs, Honorable Members of

the Senate Committee in joint hearing, with your permission.


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In this public hearing, we must begin with the fundamental


reality that as a national community, we are governed by the
Constitution and the Constitution is the act of sovereignty of the
people. Thus, the present Constitution proclaims in its Preamble, and I
quote, We, the sovereign Filipino people, do ordain and promulgate
this Constitution.
Likewise, Constitutional change or any amendment or revision of
the Constitution must have ratification of the people in a national
plebiscite as detailed in Article XVII, Section 4 of the Constitution.
Any Constitutional change is invested with a sovereign character
twice, namely: (a) it must be in accordance with the Constitution as
an act of sovereignty of the people.
And (b), in its own prescription, the Constitution mandates that
the constitutional change must have the direct ratification by the
people through a national plebiscite.
On the other hand, radically different is the nature of legislation
which purportedly is attributed to the BBL in the present legislative
proceedings.

It consists of the collective acts of the members of

Congress constituted by the Constitution as a process of enacting bills


into laws, their power being derived from the people in representation
and in direct election.

The people themselves do not make laws in


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direct participation. The exercise of the power to legislate is subject to


regulation by the Constitution, particularly in their accountability to the
people.
On the basis of formulation, the Constitution clarifies to us the
distinction between constitutional change and legislation from each
other.

Moreover,

it

identifies

through

us

the

corresponding

constitutional provisions which regulate its category.

Legislation is

subject to Article VI on Legislative Department and constitutional


change is within the coverage of Article XVII on amendments and
revision.

The strict canalization of constitutional regulation for

constitutional change as clearly separated from that of legislation


should serve the purpose of keeping in mind the difference in juridical
nature of its category as well as the legal and practical consequences
in the application of its category.
constitutional

regulation--of

following form:

A deviation or violation of the

constitutional

system

may

take

the

a bill or legislative proposal which embodies the

constitutional amendment or revision is presented in Congress for


enactment under Article VI of the Constitution in compliance with the
rules of Section 26 of this provision on how a bill becomes law for the
Presidents approval.

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It is arguable that the gravity of the problem depends on the


nature of the constitutional change that the bill proposes.

In which

case, this leads us to the main controversies in which the BBL is


entrapped.

The BBL does not in any way indicate that it intends to

effect constitutional change. However, on the whole, it appears to be


a deliberate departure from the Constitution.
On 17 December 2012, the President issued Executive Order No.
120 in which he clearly expressed not the implementation of the
pertinent mandate of the Constitution in regard to the Autonomous
Region of Muslim Mindanao, but instead in the words of the preamble
of his executive order, I quote, The government acknowledges its
commitment

to

exert

all

efforts

towards

realizing

implementation of the 2012 framework agreement.

the

full

The executive

order, appearing as an implementation of the said framework


agreement, in Section 3 (a),

provides that BBL with provisions

consistent with 2012 Framework Agreement on the Bangsamoro.


Thus, the President, in his executive order, relates

himself to the

pertinence of the Constitution.


Section 3 (b) of the Executive Order provides, as a function of
the Transition Commission that, and I quote, Whenever necessary to
recommend to Congress or the people proposed amendments to the
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1987 Constitution. Apparently this means that the President is of the


mind that if there is a conflict between the BBL as implementation of
the Bangsamoro agreement and the Constitution, it is the Constitution
that shall be amended to conform to the BBL.
It is on the foregoing premises that the President, pursuant to
the Bangsamoro agreement, transmitted to Congress the BBL as
urgent bill. In other words, the President intends a constitutional
change.

But a change over and above the supremacy of the BBL

which is pending in Congress as an urgent bill in House Bill No. 4994


and Senate Bill 2408.

Is the President involved in constitutional

change through his own participation in legislation and thereby


becomes a principal in the confusion on the part of Congress over the
exercise of its power and legislation as against constitutional change.
The government negotiation panel and the whole negotiation
process took place under the regime of the Constitution as the act of
sovereignty of the people. And yet, the framework or comprehensive
agreement is replete with stipulations which are outside the sphere of
compliance

in relation or violation of the pertinent mandates of the

Constitution/cfd

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MR. MAGALLONA.

or violation of the pertinent mandates of

the Constitution with respect to the establishment and operation of the


Autonomous Region of Muslim Mindanao.

It is never reasonably

arguable to insist that Bangsamoro be governed by principles outside


the Constitution.
Coming back to the conduct of negotiation which produced the
Bangsamoro agreement and its implementing BBL, they had all along
been subject to the Constitution in Article VIII, Section 17 that, and I
quote, All powers, functions and responsibilities not granted by the
Constitution or by law to the autonomous regions shall be vested in the
national government. But right at the start, the peace negotiators on
both sides rejected the powers, functions and responsibilities granted
to autonomous regions as vested by the Constitution in favor of the
national government under the foregoing provision and rejected as
well such powers and functions as the Constitution defines for
autonomous regions.
In place of all these, they created a new political system by
which they conceptualize as asymmetric the relationship of the
national government and the Bangsamoro. They characterized status
quo as unacceptable.

Apparently, in particular, the concept of

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autonomous region as characterized by the Constitution.
The BBL itself as a legislative bill or as House Bill No. 4994 or
Senate Bill 2804 aims the reorganization of the powers of government
and of restructuring the relationship of the national government and
what the Constitution intends as an autonomous region. What appears
embodied in the BBL as such, is the construction of a new political
system designed as a legislative proposal. It initiates a major
constitutional

change

beyond

the

constitutional

competence

of

Congress under Article VI of the Constitution.


Under the concept of reserved powers, exclusive powers and
concurrent powers, the BBL is engaged in determining the powers,
functions,

jurisdictions,

hierarchies

and

accountability

of

the

government to the people as well as the relationship of the national


government with the local government units and its instrumentalities
under the condition that these are already determined and established
by the Constitution and that, knowingly, they are effecting a
constitutional change.
Under

this

condition,

the

BBL

is

beyond

the

statutory

competence of Congress in terms of legislating bills into laws such as


the BBL. What occasions in major constitutional surgery by reason of

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the BBL is the creation of a political system that has the characteristics
of a state and that it is possessed of exclusive powers having its own
territorial domain, population, government and all integrated to one
another in relative independence of the national government.

Thus,

the emergence of a substate within the Philippine state with a


phenomenon of a divided sovereignty.

By installing a parliamentary

form of government, the BBL has abolished a major element of


separation of powers together with the established system of checks
and balances which are the foundation principles of the present
constitutional system.
For your consideration, Your Honors, may I submit two papers.
One on legislation and constitutional change and the other, a... paper
for consideration by the Committees on problem areas in the
Bangsamoro Basic Law. Respectfully submitted.
Thank you, Your Honors.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Yes,

please. That is acceptable.


We have just finished the first topic and it is already 12 oclock.
We have less than an hour for the remaining three topics.
With respect to the first topic, with that profusely, our very

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distinguished resource persons whose eminences made this hearing
more than ordinary, if the resource persons have already delivered
their statements so wished, you are excused. But you are, of course,
welcome to stay for further proceedings.
I will now go to the second topic, the presidential form of
government of the national government versus the parliamentary form
of government. And on this topic, the pro side will be taken first by
Chair Mohagher Iqbal of the Bangsamoro Transition Commission.
Sir.
MR. IQBAL.

Bismillah ir-rahman ir-rahim.

Thank you,

Honorable Chair.
Honorable members of this Senate Committee on Constitutional
Amendments and Revision of Codes, Madam Chair, I consider this
appearance of mine in this hearing as a rare privilege and it is an
honor on my part. Thank you very much, Your Honor.
My subject is about, where are the checks and balances in the
Bangsamoro Basic Law. The core idea of checks and balances is that
no one branch of government should be too powerful that it can get
too far out of control without being put in check by the other branches
of government.

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The core sentiment is one of distrust. Vast power should not be
left to one entity alone.

Checks and balance is a safeguard against

tyranny and abuse of power by one branch of government.

Stated

positively, the system of checks and balances makes sure that


government action requires the cooperation and consent of the other
branches of government.

In fine, the goal of system of checks and

balances is to ensure that actions of branches of government must


have the consent, whether implied or explicit, of the other branches
of government.
I. Checks and Balances:

The Central Government and the

Bangsamoro Government.
First, let me focus our attention on the vertical relationship
between the Central Government and the envisioned Bangsamoro
Government.

What mechanisms or design features are in place that

guarantees that the Bangsamoro Governments actions should be with


the cooperation or consent of the Central Government?

That the

Bangsamoro Government does not, in a sense, go beyond the


parameters
Government?

of

its

agreed

goals

and

policies

with

the

Central

What are the checks to the exercise of powers and

prerogatives of the Bangsamoro?

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There are at least 20 key provisions that show the extent of
checks and balances:
1. The President of the Philippines has general supervision over
the Bangsamoro. That power of general supervision includes making
sure that the Bangsamoro Government action is in consonance with
the Constitution and Laws (Section 3, Article VI of the BBL);
2. Philippine Congress-Bangsamoro Parliament Forum makes
sure that legislations coming from Congress or the Parliament are not
conflicting but coordinated (Section 8, Article VI);
3.

Judicial Power is with the Supreme Court and thus actual

controversies involving actions by the Bangsamoro Government can be


brought to the Supreme Court for final determination, including review
for grave abuse of discretion;
4. Intergovernmental/sglr

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MR. IQBAL.
with

the

authority

4. Intergovernmental Relations Body is tasked


to

resolve

disputes

and

issues

relating

to

implementation of the BBL (Section 4, Article VI);


5. Council of leaders composed of the chief minister, provincial
governors, mayors of chartered cities in the Bangsamoro and the
representatives of non-Moro indigenous communities make sure that
the needs of the people are effectively communicated to the
Bangsamoro government (Section 5, Article VI);
6.

Bangsamoro police is part of the Philippine National Police

and the Bangsamoro Police Board is part of the Napolcom (Sections 2


and 5, Article XI);
7.

The Armed Forces of the Philippines may create a

Bangsamoro Command covered under national laws (Section XV,


Article XI);
8.

Commission on Human Rights shall assist, coordinate and

compliment the work of the Bangsamoro Commission on Human Rights


(Section VII, Article IX);
9.

The Civil Service Commission shall continue to exercise its

power, authority and duty in the Bangsamoro (Section 2, Article V);


10.

The Commission on Audit shall continue to have power,

authority and duty to examine, audit and settle all accounts pertaining
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to revenues and the use of funds and property in the Bangsamoro. In


addition to this, a Bangsamoro Commission on Audit is created
(Section 2, Article XII);
11.

The Commission on Elections shall have a Bangsamoro

Electoral Office which shall perform the functions of the Comelec in the
Bangsamoro. (Section 9, Article VII);
12. The Ombudsman has jurisdiction and authority over public
officers and employees in the Bangsamoro;
13.

The Inter-Governmental Fiscal Policy Board addresses the

revenue imbalances and fluctuations in the financial needs and


revenue-raising in the Bangsamoro. (Section 35, Article XII);
14.

Contracting of loans and credits requiring sovereign

guarantee requires the approval of the Bangko Sentral ng Pilipinas


(Section 22, Article XII);
15. Bangsamoro Government shall exercise the power to enter
into economic agreements subject to the power of the central
government over foreign affairs (Section 25, Article XII);
16.

Cultural exchange, economic and technical agreements

subject to foreign affairs policies of the central government and only


with the countries where the Philippines has diplomatic relations and

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the central government may assist the Bangsamoro Government for


this purpose (Section 26, Article XII);
17. Joint Bodies for Zones of Joint Cooperation composed of the
chief minister, at least one representative of a constituent local
government unit of the Bangsamoro adjacent to the Sulu Sea, at least
one representative of a constituent local government unit of the
Bangsamoro adjacent to the Moro Gulf, the secretary of Environment
and

Natural

Resources

and

Agriculture

and

the

secretary

of

Transportation and Communication of the central government has


jurisdiction over policies in the Zones of Joint Cooperation (Section 19,
Article XIII);
18. Additional powers over transportation and communications
are subject to the mutual consideration of the DOTC, CAAP, CAB,
MARINA, PPA, LTO, LTFRB, NTC and the Bangsamoro Government
(Section 31, Article XIII);
19. Islamic Banking is the joint responsibility of the BSP, DOF,
NCMF and the Bangsamoro Government (Section 30, Article XIII);
20.

Financial and Technical Assistance Agreements covering

mineral resources are approved by the President of the Philippines


(Section 14, Article XIII).

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Madam Chair, we now discuss Item No. 2, the Checks and


Balances within the Bangsamoro Government.
1. Philippine Constitution. The Bangsamoro Basic Law is drafted
in consonance with the Constitution and the universally accepted
principles of human rights, liberty, justice, democracy and international
law.

This is a foundational principle of the Bangsamoro Basic Law.

Thus, the system of checks and balances enshrined in the Philippine


Constitution applies to the Bangsamoro Government as well.

There

should be no doubt about that.


2. Separation of Authorities. The authorities in the Bangsamoro
Government

are

divided

into

two

branchesthe

executive

and

legislative.
Executive Authority is exercised by the Cabinet which is headed
by a chief minister (Section 3, Article VII). The chief minister has the
following functions:

(a)

heads the Bangsamoro Government;

(b)

appoints ministers and other officers of agencies, bureaus, etcetera;


(c) formulates Bangsamoro plan of government; (d) issues executive
orders; and (e) represents the Bangsamoro in external affairs (Section
30, Article VII).
Legislative

Authority

is

within

the

Bangsamoro

Parliament

headed by a speaker and composed of at least 60 members and who


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are

elected

by

representation,

the
single

people

through

member

districts

system
and

of

proportional

reserved

seats.

Parliament has the authority to enact laws on matters that are within
the powers and competencies of the Bangsamoro (Section 2, Article
VII). The laws must promote the general welfare of the Bangsamoro
people

(Section 24, Article VII) and passes the Bangsamoro budget

and other appropriation enactments (Section 25 to Section 27, Article


VII).
Judicial Authority is not granted the Bangsamoro Government. It
remains with the Supreme Court which is vested by the Philippine
Constitution with judicial power (Article VIII, Section 1, Philippine
Constitution).

The Bangsamoro Basic Law, however, envisions the

creation of lower courts under the control and supervision of the


Supreme Court.
That the authorities of the Bangsamoro are divided into two
separate branches means that not one branch can lord it over or
whimsically exercise its powers without the cooperation or consent of
the other. For example, while the chief minister can appoint ministers,
craft the budget or determine priorities, these actions are subject to
approval and funding by Parliament.

Parliament will also have

question hours, opposition days, etcetera, and other practices that will
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ensure that the Executive is transparent and effective.

Members of

Parliament can also issue a vote of no confidence against the


government of the day and dissolve parliament

(Section 34, Article

VII). Moreover, all government actions, whether by the Executive or


the Legislative, can be brought to the Supreme Court for settlement of
actual controversies or when there is grave abuse of discretion. Thus,
the structure of the separation of authorities in the Bangsamoro
guarantees that a system of checks and balances is in place.
3.

Wali.

The Wali is the titular head of the Bangsamoro and

exercises only ceremonial functions (Section 1, Article VIII). As titular


head, the Wali, as the moral guardian of the Bangsamoro people, will
ensure that government power is not abused and that what is right is
pursued.

The support of the Bangsamoro people is crucial for the

government to function and the Wali represents the people. It is also


the Wali who formally declares the dissolution of parliament in case
there is a vote of no confidence.
4. Council of Leaders. The Bangsamoro Council of Leaders shall
consist of the chief minister, provincial governors, mayors of chartered
cities and the representatives from non-Moro indigenous communities,
women, settler communities and other sectors (Section 5, Article VI).

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The Council of Leaders will ensure that Bangsamoro Governments


actions will be in consultation with the local government units.
5.

Professional Service Corps.

Another mechanism is the

institution and development of a professional civil service corps


(Section 2, Article V).

A professional civil service corps that is not

beholden to political patronage is key in providing a check on


government.
And lastly, Madam Chair, Bangsamoro People.

Ultimately, the

single, biggest and most effective mechanism for checks and balances
is the support of the Bangsamoro people through the power of the
ballot.

If a government fails in bringing in development and peace,

then that government will not be able to continue governing for they
will surely lose in the democratic elections.

Democracy is the

mechanism that will make sure that government power is used for
what is good and not for what will bring ruin to the people.
Honorable Chair, thank you very muchbrhg

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MR. IQBAL. Honorable Chair, thank you very much.


THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you very much, Chair Iqbal.


And now we call on the former House Deputy Speaker of the
House of Representatives Pablo Garcia to give the contra side.
Please.
MR. GARCIA. Thank you, distinguished chairman and members
of the joint committees of the Senate, distinguished resource persons,
ladies and gentlemen.
Id like to begin by stating the inconvenient yet fundamental and
compelling truth. Unless and until the Constitution is amended or
revised by the Filipino people, Congress cannot and should not enact
the proposed Bangsamoro Basic Law.
In other words, for the present and before such amendment or
revision, the Bangsamoro Basic Law is palpably and incorrigibly
unconstitutional. And Im sorry to say, very sorry, to all whom it may
concern, that the filing of this bill in Congress is a needless exercise in
futility.
The

constitutional

infirmities

and

transgressions

of

the

Bangsamoro Basic Law can be classified under two categories: the first
is on the legislative empowerment or capacity and the second is on the
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substantial provisions of the Bangsamoro Basic Law in relation to the


Constitution.
I shall discuss only the first category that is on legislative
empowerment and capacity which I consider under this category the
most, as the most formidable and insurmountable obstacles to the
passage of the Bangsamoro Basic Law. The first obstacle is the total
absence in the Constitution of any express and specific grant to
Congress of the power and authority to create a new and different
territorial and political subdivision or entity other than those authorized
and recognized in Article X, local governments of the Constitution.
Let me explain.

The 1987 Constitution has authorized and

recognized only five territorial and political subdivisions of the Republic


of the Philippines. Only five, namely: provinces, cities, municipalities,
barangays and autonomous regions.
Section 1, Article X, Local Governments of the Constitution
provides, Section 1.

The territorial and political subdivisions of the

Republic of the Philippines are provinces, cities, municipalities, and


barangays.

There shall be autonomous regions in Muslim Mindanao

and the Cordilleras as hereinafter provided.


It will be noted, distinguished Honorable Chairman and members
of the Senate, that after the phrase autonomous regions in Muslim
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Mindanao and the Cordilleras, nowhere in Section 1 or in the other


sections of Article X referred to in theas hereinafter provided is there
any mention of any other political entity much less the Bangsamoro
which may be authorized and recognized as component territorial and
political subdivisions of the Republic of the Philippines.

To carry out

the mandate to create the autonomous regions in Muslim Mindanao


and in the Cordilleras, the Constitution tasked and specified the first
Congress elected under the 1987 Constitution to pass the organic acts
for the two autonomous regions, not any other congress but only the
first Congress elected under the 1987 Constitution.

And the first

Congress was given 18 months from its organization to pass the


organic acts.
Thus, Section 19 of Article X provides, 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.
The

first

Congress

referred

to,

elected

under

the

1987

Constitution, was actually the Eighth Congress, now it is the Sixteenth


Congress. If we reckon from 1946 after independence, this Congress
served for five years, from 1987 to 1992. And in all humility, I was
privileged to serve in that Congress.
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The first Congress elected under the 1987 Constitution, which as


I said, was actually the Congress within the time frame of 18 months
set by the Constitution passed Republic Act 6734 which is the Organic
Act for the Autonomous Region in Muslim Mindanao and Republic Act
No. 6766 or the Organic Act for the autonomous regions in the
Cordilleras.
The Constitution mandated two autonomous regions, but the
question has been asked from time to time after the passage or
enactment of the two organic acts as mandated by the Constitution for
the creation of the autonomous regions in Muslim Mindanao and in the
Cordilleras, may the Congressmeaning, the Congress after the First
Congress or the Eighth Congresscreate other autonomous regions in
other parts of the country? For example/mpm

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MR.

GARCIA.

For

example, can Congress create

autonomous region for the Ilocos?

the

Can Congress create the

autonomous region for Bicol or for the Visayas?

The resounding

answer, Your Honors, is no. No, Congress cannot create any other
autonomous region in other parts of the country other than the
Autonomous Region in Muslim Mindanao and in the Cordilleras. Where
are the reasons?
In the first place, the Constitution has authorized or empowered
only the first Congress elected after the adoption of the Constitution or
the Eighth Congress to pass the organic acts for the two autonomous
regions.
Secondly, the language of the Constitution is clear that only two
are to be created. Thus, there shall be created Autonomous Regions in
Muslim Mindanao and in the Cordilleras.
And thirdlyand this is the most importantfrom the records of
the Constitutional Commission, the intent of the Constitution as
reflected in the discussion during the commission is very evident. In
other words, the constitutional intent that only two autonomous
regions can be created.

Thus, Fr. Joaquin Bernas, an acknowledged

authority on Constitutional Law, and not only that, he was a member,

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a distinguished member of the Constitutional Commission that drafted


our Constitution.
According to Father Bernas, Thus, only the Cordilleras in the
extreme north and Muslim Mindanao in the south are given the distinct
privilege of forming autonomous regions.
To the question whether Congress could create autonomous
regions other than for Mindanao and the Cordilleras, the clear and
categorical answer is that, Any other area which wishes to become an
autonomous region should seek a constitutional amendment. Bernas,
Constitution of the Republic of the Philippines, Volume 2, Pages 388
and 389.
But the opinion of Father Bernas is borne out by the records of
the Commission. Thus, we find the following from the records:
Father Bernasthey were voting on the resolution on Article X of
the Constitution: Before we vote, may I ask one clarificatory
question?
The president of the commission:

Commissioner Bernas may

proceed.
Father Bernas: Is it then the sense of the committee that
besides

recognizing

the

Cordilleras

and

Muslim

Mindanao

as

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autonomous regions, Congress is prohibited from creating other


autonomous regions?
Here is the answer of the chairman of the Committee on Local
Governments, Commissioner Nolledo: Yes, Madam President. I said
that we are adopting the Rodrigo observation during the caucus that if
there should be other regions aside from Muslim Mindanao and the
Cordilleras, which would like to create themselves into autonomous
regions, they should seek a constitutional amendment.
Father Bernas: They should seek a constitutional amendment?
Mr. Nolledo: Yes, Madam President. Volume III of the Records
of the Constitutional Commission, Page 373.
Commissioner Nolledo, as I said, was the chairman of the
Committee on Local Governments who sponsored on the floor of the
commission the resolution on local governments.
The Bangsamoro political entity or the Bangsamoro is a total
stranger to the Constitution.

It would be a new legislative creation

that is vastly different and distinct from the Autonomous Regions in


Muslim Mindanao or the ARMM.
Law

provides:

Section 1 of Article VI of the

Bangsamoro

Basic

Section

1.

Asymmetric

Relationship.

The relationship between the central government and

the Bangsamoro government shall be asymmetric. That is reflective

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of the recognition of the Bangsamoro identity and their aspiration for


self-government. This makes it distinct from other regions and other
local governments. So the Bangsamoro political entity is distinct from
the territorial and political subdivisions recognized by Article X of the
Constitution.
And now to the burning question of the day and the most crucial
issue now confronting Congress:

Does the Congress possess the

power and authority under the Constitution to create the Bangsamoro


political entity? That now, under the Bangsamoro Basic Law, seeks to
distinguish and differentiate itself from the autonomous regions and
other local government units identified and recognized under Article X
and thus effectively excludes itself from Article X of the Constitution.
So to that question whether Congress has the power and
authority and even the competence in the first place, the jurisdiction,
to create the Bangsamoro. This is one question where the answer is
not only probable but it is inevitable.../jun

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MR. GARCIA. it is inevitable. And here is why the answer is,


of course, a resounding No, no, no, no, no.
should not create

a new

Congress cannot and

and different, which is

outside

the

Constitution, territorial and political subdivision of this country.


Congress is a creation of the Constitution. It cannot operate outside
the four walls of the Constitution since it has been demonstrated
unquestionably. But under the Constitution, Congress does not even
have the power and authority, nay, it is even prohibited from creating
another autonomous region in other parts of the country aside from
the Autonomous Region in Muslim Mindanao and in the Cordilleras
without a constitutional amendment. Reason, it stands to reason and
logic, nay, in common sense, dictates that the Congress does not have
any power and authority whatsoever to create the Bangsamoro, an
entirely new political entity that is vastly different and distinct from
that of the constitutionally mandated Autonomous Region in Muslim
Mindanao and in the Cordilleras and which even proclaims itself that it
is distinct from the autonomous region in other local government units
recognized in Article X of the Constitution.
The second formidable and insurmountable obstacle to the
passage of the Bangsamoro Basic Law is that the ARMM, the
Autonomous Region in Muslim Mindanao, is a constitutional creation.
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It is created by the Constitution. And as such, it cannot be abolished


and erased by legislation from the pages of the Constitution in order to
be replaced by a complete stranger to the Constitution which is the
Bangsamoro political entity.
According to the proposed Bangsamoro Basic Law, Section 5,
Article XIII, after the ratification of the Basic Law, the ARMM shall be
deemed abolished. This is because the two cannot co-exist, the ARMM
and the Bangsamoro.

They have the same geographical area of

jurisdiction and the same constituencies. In short, one should have to


disappear from the scene in order that the other can appear to take its
place. But the intended abolition of the ARMM is easier said than done,
Your Honors. In fact, it cannot legally be done at all. The ARMM, as a
constitutional creation, cannot be abolished by mere legislation.
principle.
In the same way that Congress cannot abolish by legislation such
constitutional offices as the Comelec.
abolishing

the

Comelec?

Or

the

Can Congress pass a law


Ombudsman.

There

is

an

Ombudsman Law. Can Congress abolish the Office of the Ombudsman


just by repealing the Ombudsman Law?

Or the COA or the Civil

Service Commission, which are creations of the Constitution.

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In the case of the Autonomous Region in Muslim Mindanao, its


creation, its powers and functions are set forth in several sections of
the Constitution. Section 1, Sections 15, 16, 17, 18, 19 and 21. Eight
sections in all of the Constitution.

These sections shall remain as

written by the Filipino people on the pages of our Constitution and


cannot simply be erased or obliterated by Congress and to be carried
as dead letters or dead sections in our Constitution by just an act of
Congress as the Bangsamoro Basic Law.
As we repeat, Congress is a creation of the Constitution just like
the Office of the President or the Supreme Court and cannot, cannot
repeal and nullify a mandate of the Constitution.

The Constitution

mandates, There shall be created within the framework of the


Constitution and the national sovereignty as well as the territorial
integrity of the Philippines the Autonomous Region in Muslim Mindanao
and the Cordilleras.
Can this mandate be repealed and nullified by Congress? It has
been said that the spring cannot rise above its source. We have had
three constitutions: the 1935, the 1973 and the present 1987
Constitution. We do not include the Freedom Constitution. Yet, from
1935 until now, no one, but no one can point to a single article, section
or paragraph of any of these constitutions that has been repealed or
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abolished by legislation. None at all. The Constitution is a living and


vibrant document, ageless and timeless. And every part of it must
remain relevant and inviolate until the Constitution is amended or
revised by the sovereign will of the people.
On the question of whether. . . (nam)

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MR. GARCIA.

On the question of whether any of the five

political and territorial subdivision of the Republic of the Philippines as


authorized and recognized by the Constitution which, I repeat,
provinces, cities, municipalities, barangays and the autonomous
region, can be abolished by Congress.

Again, Father Bernas, in his

book, Constitution of the Republic of the Philippines says: Thus, the


constitutional
territorial

significance

and

political

of

Section

1,

which

subdivision,

is

that

enumerates
provinces,

this

cities,

municipalities and barrios now barangays, have been fixed as the


standard territorial and political subdivisions of the Philippines.
this, the 1987 Constitution has added the autonomous region.

To
This

manner of subdividing the Philippines cannot go out of existence


except by a constitutional amendment. Cannot go out of existence,
meaning, cannot be abolished except by a constitutional amendment.
And yet, lamentably, the Bangsamoro Basic Law is asking that the
Autonomous Region of Muslim Mindanao authorized and recognized in
the Constitution should be abolished immediately upon ratification.
Never mind the Constitution, that sacred document to which all public
officials of the land, whether elective or appointive, from the highest to
the lowest, have taken a solemn oath, I do hereby solemnly swear to

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support and defend the Constitution of the Philippines and bear true
faith and allegiance to the same.
Your Honors, may I conclude with the following parting
It has been said that there are moments in the lives of every
man or woman when they are called to certify, to seal with their action
what they believe, what they have sworn to, and what they preach.
Such a moment has come to the men and women of this Sixteenth
Congress of the Philippines.

The Filipino people hope and pray that

they will also certify.


Thank you, Your Honors.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you, Deputy Speaker Garcia.


It is now 12 oclock. We shall only have two speakers left. The
others who are representatives of resource persons who were invited
and who prepared the statement but could not make it today-MR. GARCIA.

Excuse me, Your Honor.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Yes,

please.
MR. GARCIA. Is there any opportunity for rebuttal?
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).
sorry, no, because were already beyond our time limit.

Im
Those
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representatives who were supposed to be reading the statements of


their principals are requested now to give the copies of your statement
because we will dispense with the actual reading of the statement but
we now call on the two resource persons who were also last in our list
in the first hearing and for whom I apologize today. Well call first on
Dean Julkipli Wadi of the UP Institute of Islamic Studies and then
Undersecretary Jose Luis Martin Gascon of the Government Monitoring
Committee.
Dean Wadi.
MR. WADI. Madam Senator, members of the joint committee.
Last Monday, the chair of the Philippine panel on the GPH-MILF
peace process exhorted this august body to consider the broad and
dynamic field of Political Science, not solely the legal construction of
Philippine Constitutional Law, as a prism in understanding the BBL, its
nature

and the

vision it purports

to

entrench known as the

Bangsamoro Political Entity.


If I may interpret the tone of argument of GPH Peace Panel
Chair, Professor Miriam Coronel-Ferrer, she is almost making a plea for
Congress to use a broader and dynamic scale in weighing the merits or
demerits of the BBL. It is a scale that is able to harness the tools of
political and legal concepts, theories and principles relative to todays
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trend of sub-national level governance discourses and development in


many parts of the world. One of the recent works in this subject is the
book given to you last Monday by Professor Ferrer, Markku Suksis
Sub-State Governance Through Territorial Autonomy: A Comparative
Study in Constitutional Law of Powers, Procedures and Institutions.
If I quote Ferrers plea and the work of Suksi, it does not mean
that I conspire with her in pushing for particular perspective on the
issue of sub-state in its cases as articulated quite comprehensively by
Markku Suksi.

Although we are friends with Atty. Ferrer, we hardly

talk or share views as she is too absorbed with her position as Peace
Chair, given the fact too, that I do not wholly toe the line of OPAPP
issues relative to strategic questions of the peace process. It is just
that Suksis work is readily available in the Internet where any student
of

Political

Science,

Public

Administration

and

Political

and

Constitutional Law could easily read.


But there is another scale that I would like to add as part of a
weighing instrument to assess the BBL and its sub-state proposal. It
is the scale of history. Perhaps, the field of history particularly Filipino
Moro history, would provide a comprehensive frame together with
Constitutional Law and Political Science for our understanding of the
issue at hand.
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The logic in using these three instruments of weighing scale as


tool in assessing the draft BBL is obviously to make our judgment
dynamic and creative while aware of the longue duree surrounding the
political dynamics of constitutional interpretation for, without stating
the obvious, even the fundamental law of the land is historically
constituted.

This means providing us a bigger canvass

as we paint

our thought on an issue of supreme importance.


To begin with, allow me to express, and this is not to raise
myself, like many others, we have followed quite persistently

the

issue of Mindanao peace process these past several years. In 2000,


the year when the peace talks between the Estrada administration and
the Moro Islamic Liberation Front was in tatter, I published in the
Diliman Review

a paper entitled, Tier-Making and Tier-Changing in

Mindanao and the Sulu Archipelago.


In that paper, I explored the puzzle regarding the instability of
national-local relation/cfd

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MR. WADI.

the instability of national-local relation between

the Philippine government in Moro areas in the futility of what I refer


to as tier-making in tier-changing approach that come in the form of
military, political and administrative units that were created yet
abolished as another ones were created and later abolished and so on,
and so forth.
So that the trend of creating and abolishing tiers continued since
the American colonial period until the expansions of the Autonomous
Region

of

Muslim

Mindanao

in

2001

and

possibly

until

the

entrenchment of the Bangsamoro in 2016. This is not to include small


and sometime ad hoc tiers or offices including proposals that were
promised by the Philippine government to Moro fronts that were never
materialized.
For historical appraisal, it is worthy to remember that there were
nine tiers or military administrative and ad hoc units in Mindanao and
the Sulu Archipelago that were created and eventually abolished
successively during the American colonial period. Some of these were
Military District of Mindanao and Jolo, created in 1899; Moro Province,
created in 1903; Office of Commissioner for Mindanao and Sulu,
created in 1937; and few others.
During the Philippine Administrations, there were 14 tiers
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created and abolished successively starting with Commission on


National Integration created in 1957 and many others like Mindanao
Development Authority, OMA, SPDA, ARMM, SPCPD, Expanded ARMM,
MAGLANCO-SOCSARGEN Council, government proposal in 1999, until
the Bangsamoro Juridical Entity, a political arrangement in MOA-AD in
2009. So that if we count the number of tiers created and abolished
successively since the American period until these days including the
present ARMM and the proposed Bangsamoro in 2016, there were or
are already 24 tiers, units and entities.
In this regard, it was not surprising when Malacaang declared
three or four years ago that the ARMM is a failed political experiment.
Truth is, Mindanao and the Sulu Archipelago had been subjected to
continuing political experiments for 117 years, if we include the critical
year of 2016.
Before I present my conclusion as to why Mindanao and the Sulu
Archipelago is subjected to this morass of tier-making and tierchanging, as I would argue that the subject of substate presents a
relatively new mode of tier-making with its attendant politics with the
national government and its tendencies, as feared by many in
becoming a gateway of secession.
I would like to note that another paper that I wrote when the
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GMA administration was in its twilight year, after being bruised heavily
due to the bungled MOA-AD in 2008 in the Maguindanao massacre in
2009.

It is entitled The Philippines in the Bangsamoro Polity:

Breaking the Sisyphean Ordeal, I attached here as part of our


documents.
Here, with added but unimplemented tier called the BJE, that is
the Bangsamoro Juridical Entity, while increasing the number of
political experiments in the south, I articulated my frustrations after
years of peace process during the GMA administration with the
government and the MILF, only to end up slugging it out once again. I
thought the metaphor of Sisyphus fits in explaining the morass
whenever the peace process is about to reach the peak of the
mountain, the weight of its loads become so heavy that it could
cascade uselessly rendering all peace efforts and other peace dividends
for naught so that it would take succeeding Philippine administrations
to take the cudgel by rolling up the stone of the peace process once
again.
In todays presentation, I raise two questions: What explains the
continuing tier-making and tier-changing in Mindanao and the Sulu
archipelago? Could the substate project, as contemplated in the BBL
break the cycle and stabilize Philippine intergovernmental relation in
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Mindanao and the Sulu archipelago? These questions entail much time
to discuss and elaborate.
For brevity, let me quote the first paper mentioned above: The
main source of instability is anchored on a century of unresolved
contestations

over

the

political

status

of

Mindanao

and

Sulu.

Moreover, the colonial mixtures of Philippine political system that failed


to address the power vacuum in Mindanao and Sulu, reinforces
intergovernmental instability.

The unitary setup of the Philippine

government was a legacy of Spain yet the setup was institutionalized


by the Philippine Commission to facilitate the extensions of American
sovereignty to the Philippines including Mindanao and Sulu.

The

separation of powersexecutive, legislative and judiciarywas copied


from the United States. The unitary setup defines the vertical divisions
of power, that is structure of government, between the national
government and local government units while the horizontal separation
of

powers

define

the

form

of

government:

presidential

or

parliamentary.
In all indications, the colonial political mixture is what creates a
disjuncture between the horizontal and vertical relations of powers
because from the point of view of governance a unitary setup requires
a relatively homogenous society while an effective application of
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separation of power presupposes a stable system of democracy.


As a consequence, it emboldened intergovernmental problem
and rendered futile the national government effort of tier-making and
tier-changing and further worsened the power vacuum in Southern
Philippines.
Despite my rather grim view about the relations of the Philippine
government vis-a-vis the Bangsamoro in terms of CAB especially their
historically asymmetrical intergovernmental position ever since, I
thought that the concept of substate provides an option where the two
fundamental bases of power in a democratic system of polity, that is
the separation of power and division of power, could be adjusted in
such a way that while the former is made to share power horizontally,
that is concurrent and exclusive powers with the Bangsamoro, the
structural relations of power, that is the division of power in terms of
national-local relation, must also be adjusted from previously strongexecutive type to strong-legislature type that is parliamentary or
ministerial form to allow the latter to have a sub-government that does
not necessarily have the power of national government relative to the
first fundamental source of arrangements of power, that is the
separations of power, but which is able to have enough power under
the division of power, that is the vertical power in national-local
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relation, that reflects partly a federal form of government but which


still enjoys an autonomous character under a unitary setup of
government as in the case of the Philippines.
As a clarification, this notion of substate is close to Suksis
definition, the book that Professor Ferrer gave you, as that political
space of organizational options which include federalism with its
intermediate state level entities normally distributed over the entire
sovereign territory and also a variety of different territorial autonomy
arrangements.

According to Suksi, Both federal solutions and

autonomy arrangements are used to accomplish the same thing: To


bring about the creation of public authority of a devolved nature for
territorially circumscribed entities at the substate level, end of quote.
Suksis notions of public authority is normally the power to
make

laws,

that

is,

the

legislative

power

or

the

law-making

competence, managed through institutions for self government, end


of quote.
The need to have such an adjustment from strong executive to
strong legislature is in consonance with the essentially and historically
asymmetric power relations of the Moros that even the Americans
recognized when they organized the Moro province in 1903. Although
the legislative council of the Moro province then was composed
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obviously of Moros from different districts in tribal wards was not as


powerful.
The explicit recognitions of the United States for such legislature
to co-exist with the governor under the insular government, headed by
the governor general in the Philippine Commission, proves Americas
respect

on

Moro

asymmetrical

relation

during

the

US

colonial

administration in the Philippines.


Moreover, the dispersal of power under a unitary setup by simply
touching on the powers of national government under the separation of
power principles or the traditional strong executive approach without
adjusting the corollary structures of divisions of power, that is power in
national-local relation, assumes asymmetrical relation between the
national government and the Moros/sglr

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MR. WADI.

between the national government and the Moros

which, in my view, is responsible in the cycle of tier-making and tierchanging in Mindanao and the Sulu Archipelago.
Understandably, from the perspective of the state, the traditional
approach of power dispersal through autonomy using strong executive
approach is favorable to the national government in terms of
maintaining national power down the line. However, such an approach
rests on the assumption that local areas are relatively homogenous
and fully integrated with the national community. But given the
political and cultural distinctions of Moro society honed by separate
history different from Philippine

history, then the

autonomous,

integrative and strong executive approach of power relation is


inappropriate as it is continuously creates political disjuncture in
national-local relations between the two communitiesFilipinos and
Moros.
If such an approach of unitary, strong-executive type is made to
persist, it perpetuates patron-client relationship as local or regional
executives in Moro areas are usually forced to kowtow to the national
government, particularly to the Executive while rendering local or
regional legislature weak and generally underutilized where local

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executives acting as alter ego of the President dominates local and


regional political system.
In this regard, the notion of autonomy and decentralization lost
its essential meaning as the fundamental functions of the government,
including

the

functions

of

legislation

in

subnational

level

that

supposedly operates part of the separation of powers, like rule-making


or rule-implementing, fails to fully operate.

What happens on the

ground thus is a persistence of pseudo-democratic polity with


institutions

and

processes

undermined

by

patronage

politics,

warlordism and so on. For sure, patronage system, political dynasties


and political bossism are prevalent not only in the south but the whole
country as a whole. I would contend, however, that due to the depth
of political and cultural asymmetry between Moro society and national
community, there is both qualitative and quantitative difference of
patron-client relation affecting thus the working of intergovernmental
condition in the area.
In this regard, there is a need to adjust the fulcrum of separation
of power structure, that is the horizontal power, with the divisions of
power relation that is the vertical relations of power, away from the
strong-executive type to strong-legislature in mid-tier or regional level
where check and balances are made to operate not in traditional
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presidential form where the three branches of government are


conceived to be independent and coequal but along parliamentary
arrangement where the parliament as legislature minus the judiciary
coexists with the Executive, referred to as prime minister or chief
minister for that matter.

The rationales of having strong-legislature

like a parliament is for real meaning of autonomy to be fully realized in


regional or local level.
The constitutional question thus is:

Can a state with unitary

structure and a presidential form of government accommodate a tier or


a

substate

that

carries

strong-legislature

feature

generally

understood as parliamentary or ministerial form of government?


I would leave this question for our constitutional lawyers to
argue. My end, at this juncture, is to articulate the impact of power
dispersal through traditional mode of autonomy using strong-executive
approach without making adjustment in the fulcrum of power relation
on both separations and divisions of power that often result in the
instability of political and administrative tiers between the national
government and regional and local government as shown vividly in
continuing political experiments in Moro areas.
But if I may express my 25 cents worth of view on this matter,
Article X, Section 15 of the Philippine Constitution provides the creation
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of autonomous region with Section 18 underscoring the need, and I


quote, Define basic structure of government for the region consisting
of the Executive Department and Legislative Assembly without
identifying specific structure and form of government whether unitary
or federal and whether presidential or parliamentary shows.

In my

humble opinion, such a non-committal of structure and form of


government by the Constitution in the autonomous region provides a
space for constitutional flexibility that could be viewed or used as a
way to get rid the morass of political experiments in Moro areas.
By the way, it must be noted that the long political experiment
did not only hamper autonomy and democratization in the south, it
practically exhausted national resources, suggesting that Moro demand
for power and autonomy is insatiably endless burdening thus the state
almost perpetually.

Traditionally, the national impulse is to lay the

blame on the Moros with their doggedness and tenacity in pursuing the
right for self-determination. But as Moro fronts like the MILF begins to
redefine self-determination generally in its internal dimension not in its
external aspects, the government should also be ready to make
corresponding recalibration beyond traditional approach of autonomy.
At this point, I would like to leave this major constitutional
question and address the fear of some that the BBL may serve as a
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gateway for secession of the Bangsamoro. Agreeably, this fear is not


necessarily unfounded. The draft BBL is not simply a political or legal
document.

The BBL is a vision of possibilities whose tendency could

tread in many ways.


One of the possibilities may be captured with this question,
Madam Chair.

Given the fulcrum of power in the Bangsamoro, as

contemplated in the BBL, would change from Executivepreviously the


regional governorto the Parliament with difficulty on the part of the
President to control at least 60 people, what ifthat is I think a
hypothetical question but this is the questionwhat if the Bangsamoro
Parliament becomes too nationalistic where situation could possibly
reach a point where there would be polarization of position between
the national government and the Bangsamoro government?
While the BBL provides that the supervisory power of the
President overarches on various Bangsamoro political and military
entities with the attendant intergovernmental bodies, CongressBangsamoro Parliament Forum and subconstitutional bodies as venues
to resolve possible tension between the national government and the
Bangsamoro, I would say, in fact, I should be frank, these are not
enoughthese are not enough to ward off possibility of Moros growing
appetite for secession through the Bangsamoro Parliament. Like any
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politics, the Bangsamoro politics, by that time, remains a terrain of


possibilities. But for us to fail to distinguish a phantom or a ghost out
of such possibilities, as if they are real, would be to grip us in fear
before we realize that on its flipside, the BBL can be viewed too as a
key in addressing in a rather different way, the political experiments in
Mindanao and the Sulu Archipelago.
At this point, what I would like to point out in order to avoid the
risk of polarization mentioned is to raise a basic postulate that may be
captured with what I indigenously call a tambusah or knapsack
metaphor.

It is akin to a natural law or common sense that as one

increases the load of power into a bag, it is necessary to strengthen


the ties that bind so they wont break altogether.
In other words, to avoid the Bangsamoro in becoming a gateway
for secession, Madam Chair, the process of power dispersal that is
distributed along the division of power structure must correspondingly
be countered not simply through the Presidents power of supervision
and the various intergovernmental bodies as such bodies could also be
politicized when rough comes to shove, the Moros should even more
be able to identify with the national aspiration of the state through
ample representations in major branches of government as these
remain the critical sources of power that determine the working of
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separation of power principle.

This way, the fundamental basis or

structure of national power is fully utilized not simply as source of


empowering the Bangsamoro with optimum potential of autonomy
called substate extended to them but as a guarantee in making them
glued to the Republic and thus ascertaining the countrys territorial
integrity remains intact.
Finallybrhg

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MR. WADI. Finally, as the BBL is faced with serious challenge


with the so called Fallen 44 tragedy in Maguindanao last week, the
onus is with the MILF and the whole branches of government including
our legislators. Like Sisyphus, they are faced the grand task to roll up
the BBL stone even more doggedly.

And with precious time ticking,

they could not afford to succumb to despair in helplessness as they are


just a distance away to the mountain top.
Thank you very much.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you, Dean Wadi.


And then the last resource person, Undersecretary Gascon.
MR. GASCON.

Madam Chair, the Honorable Chairman of the

Committee on Constitutional Amendments and Revision of Codes,


together with the Chair of the Committee on Local Government,
distinguished members of the Senate, other resource persons, good
afternoon.
I would like to thank the Committee for the opportunity to
present my views as a friend of the Peace Process and as former
member of the Constitutional Commission.
At the outset, I think it is important to recall the specific
instructions given by President Aquino to his negotiating panel as they
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begun to negotiate peace agreement with the MILF, their counterparts.


He said that whatever they sign in terms of an agreement should be
and must be in full consonance with the limits and flexibilities of the
Constitution. These instructions were given with a clear appreciation
of the recently decided Supreme Court ruling on the ill-fated MOA-AD
and so this was certainly part of the context upon which negotiations
begun in earnest with the MILF in 2010 and has resulted in fruition
with the Framework Agreement and the Comprehensive Agreement of
the Bangsamoro and the draft basic law.
It is without doubt that the BBL as it is proposed is innovative
and challenges us to expand our frontiers of understanding and
appreciation of what the Constitution allows and does not allow
regarding the structure of governance for autonomy in Muslim
Mindanao, hence, these last two hearings here of the Committee on
Constitutional Amendment.
Its also in that context that the remaining members of the
Constitutional Commission have come out very strongly and issued a
statement highlighting that there is an essential constitutionality to the
proposal to establish the Bangsamoro autonomous entity.

And it is

also well within the mandate of Congress if it abused certain aspects as

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constitutionally objectionable that they could very well amend or


modify the same accordingly.
Thus, the enactment of the BBL does not partake of a
constitutional restructuring of the entirety of the system of governance
of this country. It will not restructure Congress or local governments,
generally speaking. It addresses a small aspect that is referred to in
the Constitution and that is the autonomous government provided for
in Article X of the localthe chapter, the article on local governments
in the Constitution.
So we believe that the BBL should be understood in that context
and any effort at enacting the BBL should be understood also in the
context of the needs, of the time and what is needed in Mindanao.
Ultimately, constitutions endure when they are understood and
applied in accordance with the needs, developments and requirements
of contemporary society. This is for this reason, for example, that the
United States constitution has lasted for over 300 years because it has
also been flexible enough to meet the demands of the time.
Thus, when statements are made that it is unconstitutional, I
cannot quite understand because every single aspect of the BBL is
written in consonance with the provisions on local autonomy that are

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found from Section 15 onwards of our Constitution and should be


understood in that basis.
So for some to say that replacing the Autonomous Region of
Muslim

Mindanao

with

new

entity

called

Bangsamoro

is

unconstitutional is actually outside the frame of the discussion of the


Constitution itself. Because the Constitution certainly allows Congress
the power and authority to enact laws and the organic law for
autonomy is certainly one of those that is mandated by the
Constitution.
Ive been asked to focus my discussion on matters involving
territorial integrity in the draft BBL and I shall begin to address them.
The proposed Bangsamoro Basic Law, now Senate Bill No. 2408,
fully recognizes and preserves the territorial integrity of the Republic of
the Philippines.

Nothing in the proposed legislative measure is

incongruent with the time honored principle of territorial integrity


because the bill in Article III, Section 1 thereof, itself emphatically and
categorically affirms the preservation of the wholeness of the Philippine
national territory to wit: Territory refers to the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains and the areal
domains above it. And the Bangsamoro territory shall remain a part
of the Philippines.

This should more than adequately set aside any


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fear that the BBL would threaten any dismemberment of the Philippine
territory.
The bill clearly guards against any and all possibility of the
proposed Bangsamoro

territory from being

separated from the

Philippines as it is unequivocally determines where the Bangsamoro


territory shall belong.
In plain language, Article III, Section 1 states that whatever may
be the final configuration of the Bangsamoro territory, the same shall
remain to be part of the Philippines.
The word remain must be underscored because it evinces a
powerful meaning of peculiar significance of this all important BBL
provision in connection with the inviolability and integrity of our
national territory.
The verb remain is defined in the dictionary as to continue in
the same state or to continue to be specified. The use of the word
remain

in

the

BBL

hence

imports

dual

recognitionone,

retrospective as to origin and the other prospective as to result of


where and to whom such territory really belongs.
The Philippines and the Filipino peoplethat, of course, includes
the people of the Bangsamoroare sovereign and the Bangsamoro
authority shall be a component part of that sovereignty.
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The BBL recognizes, one, the territories that may eventually


comprise the Bangsamoro are originally from the establishment of it
part of the Philippines and will continue to be, therefore, prospectively
from the establishment of the Bangsamoro remain part of Philippine
territory.
Significantly, this provision comes without any qualification or
conditionality whatsoever.

Under no circumstances, therefore, shall

the Bangsamoro territory not remain to be part of the Philippines.


Evidently, this important provision after all carries with it such
potent and forcefulmeaning that in our last hearing Mr. Justice
Feliciano had also referred to it as sufficient to dispel any concerns on
this matter. Thus, it is not merely window dressing.
It should be clarified that Article III, Section 1 of the BBL does
not in relation to the powers of the Bangsamoro over its territory
partake of a total exclusivity to the Bangsamoro.

We highlight that

within the Bangsamoro territory the exercise of concurrent and


reserved powers of the central government shall not be constrained or
compromised within the territory of the Bangsamoro.

Thus, to the

fullest extent of the Bangsamoros territory, the central governments


authority and jurisdiction shall nevertheless remain present and be
felt.
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This finds application for instance when the Army, the Navy, the
Air Force of the Armed Forces of the Philippines shall exercise full
authority therein as directed by their commander in chief and
depending on the demands of national security.
As to jurisdiction over the areal domains, the Bangsamoro will
likewise exercise jurisdiction only insofar as the power involved is
exclusive. An example of the Bangsamoros authority over airspace is
similar to local governments jurisdiction under the Local Government
Code over regulation of high rise buildings by zoning.
On the matter of air transportation, specifically/mpm

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MR. GASCON.

air transportation, specifically, it should be

noted that exclusive powers over the same have not been given to the
Bangsamoro.
determined

As proposed in the BBL, these matters will be


through

intergovernmental

relations

mechanisms

whereupon we could expect that airside operations will be retained as


pertaining to national competencies while landside operations, for
example, maintenance and management of airports therein, could be
shared or concurrent.
The same is true with respect to pollution control, where the
extent of coordination and cooperation between the Bangsamoro and
central

government

shall

be

determined

through

the

same

intergovernmental relations mechanisms. All these indicate that there


shall be no actual diminution or reduction in the powers of the central
government inside the Bangsamoro which they already exercise
particularly as part of their reserve or concurrent powers. There would
instead be a system of devolution of powers between or from the
central government to the Bangsamoro under the BBL consistent with
the framework of autonomy ordained under the 1987 Philippine
Constitution and not beyond it.
This cannot be interpreted as a limitation over the general
sovereignty of the Republic of the Philippines because it precisely

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conforms to the very expression of the sovereign will of the people in


the Constitution. Also, we must recall that what are devolved under
the BBL are mere governmental powers and not the exercise of
sovereignty at such.

And this was, of course, highlighted by my

colleague, Justice Azcuna, when he said that while we establish a


people, a territory and a government, this does not partake of the
fourth essential element of independence or sovereignty.

This

sovereignty still resides with the Filipino people and from whom all
government

authority

emanates

including

the

authority

of

the

Bangsamoro government itself.


Respectfully, the sovereign will is adequately reflected in the BBL
as it categorically states that all powers to be devolved shall be in
consonance with the Constitution. Thus, whatever Congress enacts in
the BBL will be undertaken with that in mind making sure that it is in
consonance with the Constitution.

More to the point, we must

remember that the source of all powers that will be delegated or


devolved in the BBL is the central or national government.

And

Section 17 of Article X specifically states that all powers, functions and


responsibilities not granted by this Constitution or by law, a.k.a. the
BBL,

to

the

autonomous

region,

shall

be

vested

in

national

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government. So residual powers remain, of course, also with national


government.
The autonomous region cannot rise higher than the source of its
authority.

Thus, it is a misplaced notion to believe that the

Bangsamoro government has the authority to abrogate or negate


national law or policy. There is nothing in the BBL that empowers the
Bangsamoro on its own to change or disregard the application of
national laws within the Bangsamoro territory. If at all, it will be the
BBL itself, a piece of national legislation, once passed, that will
effectively modify other affected existing national laws of the land in
accordance with the doctrine of specificity.
The autonomy mandates that governmental powers will be
shared or otherwise clearly delineated as either reserve or exclusive.
This, however, does not necessarily imply any specific functional
division of powers as commonly seen in cooperative federalisms. We
are after all, Your Honors, not establishing a federal government in this
country as that is specifically prohibited by the Constitution. What the
Constitution allows is autonomy for the Muslim Mindanao area and
what we are exploring with this BBL is the extent of the maximum
autonomy that might be possible within the current constitutional
frame.

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Under the BBL, one can easily glean that the delineation of
powers favors the devolution of powers for the autonomous region.
Hence, the autonomous region is manifestly not reduced to a mere
administrative agent of the government and thats the reference to
asymmetry here. It is distinguishing itself not vis--vis the ARMM, it is
distinguishing itself from other administrative regions in the country as
well as from the other local government provinces, cities and
municipalities. It is after all a regional government.
There is no requirement under the BBL for strong representation
of the Bangsamoro in the central government.

Only adequate

Bangsamoro participation in central government is sought in the BBL.


And the same is strictly provided as a matter of policy, not as
mandate.
Your Honors, I still have a few pages but what I will do is I will
abbreviate my comments and I will just submit this paper to the
Committee.
But the essential point is that it is our view that with respect to
the passage of the BBL, Congressthe House and the Senateis well
within its powers and prerogatives to enact a law that will provide for
the fullest autonomy for the people of the Bangsamoro and this is in
accordance in all four squares with the Constitution.

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Thank you very much.


THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

Thank

you, Undersecretary Gascon.


The Committee on Constitutional Amendments expresses many,
many thanks to our resource persons for the time and care that you
devoted to the papers that have been enlightening today.

And with

that, we say thank you.


This hearing is now adjourned.
[THE HEARING WAS ADJOURNED AT 12:42 P.M.].../jun

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