Bangsamoro Basic Law needs Charter change, says Philippine Senate report

Bangsamoro Basic Law needs Charter change, says Philippine Senate report
Senator Miriam Defensor-Santiago.

MANILA - Philippines-Congress cannot just pass the proposed Bangsamoro Basic Law (BBL) because the establishment of a new autonomous region for Muslims in Mindanao requires the amendment or revision of the 1987 Constitution, according to a draft report prepared by the Senate committee on constitutional amendments and revision of codes.

"The Bangsamoro has much merit, but its promulgation requires constitutional amendment or revision; mere legislation will not suffice, and will spark Supreme Court litigation," said the report drafted by the committee headed by Sen. Miriam Defensor-Santiago.

The 27-page draft committee report, a copy of which was obtained by the Inquirer, is now being circulated among the panel's members. So far, according to sources, it has been signed by seven senators, including acting Senate Minority Leader Vicente Sotto III and Sen. Teofisto Guingona III. Sen. Ferdinand Marcos Jr. told reporters on Monday that he had signed the draft report.

The draft report may be consolidated with the report of the committee on local government headed by Marcos, which continues to hold hearings on the BBL jointly with the committee on peace, unification and reconciliation headed by Guingona.

In the summary of the draft report, Santiago's committee said the BBL effectively "seeks to change certain constitutional provisions on local autonomy."

Invalid

"Notwithstanding the peace-driven merits of the bill, it cannot be promulgated by means of a mere legislation by Congress. It has to be promulgated by nothing less than an amendment to the Constitution," the report said.

"In its present state," the report said, the proposed BBL "raises many insidious doubts on constitutionality" and raised two points.

First, the measure failed to conform to the constitutional provision for the establishment of "autonomous regions in Muslim Mindanao … within the framework of this Constitution, and the national sovereignty, as well as territorial integrity" of the republic.

Second, President Aquino, as head of the executive branch of government, appointed a peace panel to negotiate with the Moro Islamic Liberation Front (MILF), resulting in the Comprehensive Agreement on the Bangsamoro (CAB).

Thus, the report said, the proposed BBL would be "ultra vires" (invalid) because "although a simple government office negotiated with a nongovernment organised group, the result would be to amend the Constitution."

The report said "[t]he BBL, pursuant to the CAB, reorganizes and restructures the powers of [the] government, thus usurping the sovereignty [that] the Constitution defines as residing in the people."

State within Philippine state

Examining the sovereignty issue, the report said the changes sought by the BBL "conspire to create a part-sovereign state or a substate, meaning a political community in which part of the powers of external sovereignty are exercised by the home government, and part are vested in or controlled by some other political body or bodies."

"The BBL creates an entire state within the Philippine state," the report said.

It said the proposed BBL sought to allow the Bangsamoro government the power to diminish national sovereignty in providing it with three different kinds of power-reserved, concurrent (it shares power with the national government) and exclusive (Bangsamoro on occasion even exercises power independently of the national government).

"Many powers, functions and responsibilities are sought to be transferred to the internal sovereignty of the Bangsamoro government, which is supposed to have coequal status with the national government," the report said, adding that the Bangsamoro government under the BBL would be a "part-sovereign state" or a "substate," which was "never intended nor ever approved by the Philippine Constitution."

On the issue of autonomy, the report said while the BBL was said to be an exercise of local autonomy, "it bursts its bounds and turns into a part-sovereign state or substate."

For instance, it noted that the term "Bangsamoro territory" implied that while it was under the jurisdiction of the Philippines, it was "separate" and that with the use of the "questionable" phrase "Bangsamoro people," the proposed law "takes a slippery path toward a Bangsamoro electoral code that might limit suffrage to membership of the Bangsamoro government and the Bangsamoro people."

Form of government

The report also said the proposed BBL provided for a parliamentary form of government within a presidential form of government and that there was no constitutional basis for changing the form of government.

This violates the constitutional provision that "the organic act shall define the basic structure of government for the region consisting of the executive department and the legislative assembly, both of which shall be elective and representative of the consequent political units," the report said.

On the issue of "substate" or "less-than-sovereign state," the report said this was not contemplated by the Constitution.

"The BBL seeks to establish a political entity so far unknown in the rest of constitutional democracies. While the Constitution takes care to define the limits of local autonomy, the BBL is vested with powers far beyond constitutional limits," it said.

The report pointed out that the BBL would limit the powers of Congress because while Congress will be entitled to reserved powers, the Bangsamoro would be excluded from the laws passed by the legislature with respect to autonomous regions.

Issuing own laws unacceptable

Also deemed "unacceptable" by the report was the provision granting the Bangsamoro parliament powers to issue its own laws, "which could have the same binding national character as congressional enactments." This would "render the BBL defenseless were it placed under judicial scrutiny in the Supreme Court," the report said.

On territorial integrity, the report said the proposed BBL provided that the Bangsamoro would have exclusive powers and use of natural resources as long as they were found in the Bangsamoro. This is contrary to international law and constitutional law, it said.

The report also held as questionable the provision that would allow the Bangsamoro government to "have authority and jurisdiction over the exploration, development and utilization of mines and mineral resources in its territory."

It also pointed out the BBL's reference to the autonomous region as a "territory" when the proposed law had "no power to create the Bangsamoro territory."

"There is no objection to the establishment of autonomy on a territorial basis for the Bangsamoro. However, it has to be pointed out that the right of indigenous populations to self-determination is restricted to autonomy and self-governance," it said.

Four concerns

The report also raised four concerns about the proposed BBL.

The reference to the BBL as a "basic law" when to judges and lawyers this is a synonym for constitutional law and organic law.

"Thus, the BBL, by its own terms, is intended, by those who drafted it to have the same effect as the "constitution" or "constitutional law" of the territory that is designated as the "Bangsamoro" and the proposed law then "intended to have the same primacy and consequences as the constitution of the territory of the Bangsamoro as the 1987 Constitution in the territory" of the republic.

"But it goes without saying that two different constitutional instruments cannot have legal effect at the same time and in the same territory," it said.

The peace effort between the government and the MILF was a discussion between the government of a sovereign state and a group of rebels seeking either to overthrow or secede from that sovereign state.

The report said peace was ordinarily discussed after a military victory over the rebels but peace negotiations were "not a substitute for military success."

Give 'forceful' meaning

It also noted that there were other secessionist groups besides the MILF, mentioning the Moro Nationalist Liberation Front (MNLF) as an example.

The need to give "forceful" meaning to the sentence in the BBL that the "Bangsamoro territory shall remain part of the Philippines."

"The general statement must not be contradicted or emasculated by the details of the resulting structures and institutions of the Bangsamoro entity," the draft report said.

The Senate committee noted the BBL provision that to expand on the Bangsamoro territory, a simple resolution was needed of the local government or a petition of at least 10 per cent of the voters of a contiguous land area and a "popular ratification" within the area.

It said the structures and processes set up by the republic's administrative law "may be expected to be modified or swept away by acts of the Bangsamoro."

"This is not something that can be authorised to be done by any state or regulation enacted by the Congress. The 10 per cent of registered voters of a contiguous local government unit cannot simply push away or ignore what the 90 per cent wish to do," the report said.

The committee also cited the need for particular and detailed attention to the proposed distribution of governmental powers and functions between the government and the Bangsamoro.

"Note that the government will have fewer and limited functions and duties than the Bangsamoro government in respect of matters touching the daily lives of people. Constitutional amendments will be required to put the redistribution of powers envisaged by the proposed BBL into effect," the report said.

Redistribution of powers

The committee noted that the Bangsamoro government would be financially supported by the national government, a "truly extraordinary situation."

"Effectively, the Bangsamoro government will have seceded from, and been allowed to do so by, the government," the report said.

Fails 2-fold tests

In conclusion, the committee said the BBL "fails the twofold test set by the Constitution" and that was in the contexts of the national sovereignty and territorial integrity.

The committee noted that the BBL was presented as a way to achieve peace in Mindanao, but added that "the end does not justify the means."

"The problem with [the] BBL as an experiment in both creative and innovative political values is that it makes no mention of the possible various consequences of such an experiment in domestic governance," it said.

Recommendations

The committee made two recommendations:

"Instead of implying a transfer of sovereignty from the national government to the Bangsamoro government, the BBL should observe the principle of subsidiarity (the doctrine that the power to make local decisions should be vested with local authorities and not with a dominant central aggregation) as a way to allocate decision-making power, but there must be a limit to the amount of division of competencies."

The BBL "should provide for a minimal threshold of competencies under which national sovereignty may not be limited or shared."

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