BBL IN SENATE - Hearing On Constitutional Issues, Jan 26, 2015

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, January 26, 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. Pia S. Cayetano
- Member
GUESTS/RESOURCE PERSONS:
Hon. Florentino P. Feliciano
Hon. Vicente V. Mendoza
- Retired Associate Justice,

Supreme Court
Supreme Court
COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON

PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL
AMENDMENTS AND REVISION OF CODES
Page 2 of 3
Hon. Adolfo Azcuna

Hon. Teresita Quintos-Deles
Hon. Jose Luis Martin Gascon
Hon. Miriam Coronel-Ferrer
Hon. Senen Bacani
Dean Julkipli Wadi
Hon. Aquilino Nene Q. Pimentel Jr.
Hon. Rene V. Saguisag

Supreme Court
- Presidential Adviser on
the Peace Process
- Member, Constitutional
Commission
- Chair, Government Peace
Panel
- Member, Government Peace
Panel
- UP Institute of Islamic
Studies
- Former Senator
- Former Senator
SENATORS STAFF:
Ms. Tanya Perez
Mr. Antonio Lapid
Ms. Chelsea Dauz
Ms. Abel Maglanque
Atty. Fatima Panontongan
Atty. Donna Manlangit
Ms. Arifah Macawa Jamil
Atty. Luzviminda Lavarias
Mr. Julius Palamos
Ms. Fritzie Selda
Ms. Zheanne Aeson Dantis
Atty. DG Uy-Anastacio
Ms. Isha Lim
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
Santiago
Santiago
Santiago
Santiago
Santiago
Santiago
Marcos
Marcos
Marcos
P. Cayetano
P. Cayetano
P. Cayetano
Guingona
SENATE SECRETARIAT:
Ms. Assumption Ingrid B. Reyes
Ms. Ma. Emperatriz L. Novero
Ms. Marivic H. Ulep
Ms. Jo B. Cadaing
Ms. Merlene J. Palaganas
Ms. Cecilia T. Sotto
Mr. Rommel P. Alger
- Legislative Committee Secretary

- Committee Stenographer
- do
- do
- do
- do
- do -
COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON

PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL
AMENDMENTS AND REVISION OF CODES
Page 3 of 3
Ms. Avigail G. Andaya

Ms. Mylene Palino
Mr. Daniel D. Diamzon
Ms. Ma. Teresita Lavarias
Ms. Ana Marie Deplomo
Mr. Joey Busalpa
Mr. Allan Laureano
Ms. Abigael Olson
Ms. Amity Caragay
- Committee Clerk
- do
- do
- do
- do
- Audio Operator
- do
- Legislative Page, OSAA
- do
(For complete list, please see attached Attendance Sheet.)
COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION;
AND CONSTITUTIONAL AMENDMENTS AND REVISION OF
CODES
MELNOVERO
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AT 10:03 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 turn off you cell phones.

It is a measure of the importance attached by the Senate to our
present bill, Senate Bill No. 2408, also known as the Bangsamoro
Basic Law, that this bill has been assigned to no less than three
committees. Normally, in the Senate and I presume in the House, a
bill is assigned to only one committee.
assigned to a second committee.
An exception is when it is
So this is a super exceptional
proceeding we are taking for this special bill because it has been
assigned to three committees.
The two other committees are: the
major committee, the Committee on Local Government headed by

Senator Ferdinand Marcos Jr. who I understand is coming; the second
committee is the Committee on Peace, Unification and Reconciliation
headed by Senator Teofisto Guingona Jr.; and were conducting this as
Chair of the Committee on Constitutional Amendments.
Basically, our issue is what price is the Philippine government
willing to pay to achieve peace and reconciliation in the troubled area
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of our country called Mindanao?
In the present hearing, we have
structured the major issues raised by the bill only with respect to
constitutionality into four main topics:
The first topic is legislation
versus charter change; the second topic is checks and balances in the
national government versus none in the BBL; the third topic is
sovereignty versus the concept of the substate; and the fourth topic is
the concept of territorial integrity versus the functional division of
those territories.
What we have done is introduce a debate format. Normally, in a
public hearing like this, we have a resource panel and each panel,
whether they are pro or con, each panel member is called, in any
order, whether he is pro or contra the measure, so what we get is a
very generalized debate and no specific debate on particular topics.
We have changed that by this debate format such that the first topic,
for example, will first be dealt with by one topic for the pros and one
topic for the contras and then well go to the second topic and then we
pick the next two partners in debate. So that that way we are focused
on exactly what is being debated upon.

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We are happy to acknowledge the appearance of the Chair of the

Committee on Peace, Unification and Reconciliation, Senator Guingona,
whom I mentioned earlier.
So this will be the first hearing.
Again, this is also notable
because, normally, a committee hearing takes only once. But this time
well have two hearings: today, Monday, and next Monday, February 2,
but always in pairs.
So let me just explain what we mean by these four topics. As
you know, I have a malady so I tend to speak very fast and then I run
out of breath. First, the first topic is legislation versus constitutional
change. By this topic, we mean: can this BBL, the Bangsamoro Basic
Law, which we shall refer to as the BBL, can this BBL in the form of a
bill, after having been passed by in its counterpart form in the House
and assuming for the sake of argument that it is passed in the Senate,
can just become a law just in that method, adopting the method of
ordinary laws? Is that how facile it will be to get these reforms that we
seek so badly for the troubled area?
Again, we acknowledge the presence of the Chair of the prime
committee, the Committee on Local Government, Senator Ferdinand
Marcos Jr.

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THE CHAIRMAN (SEN. MARCOS).
Thank you, Madam Chair,
good morning.
So
there is one side that says legislation will be sufficient. We should just
treat BBL as if it were an ordinary law. It goes to House. It goes to
Senate. And then it goes to a plebiscite. But the others hand argues
that
the
reforms
are
so
deep-rooted
and
are
so
consequences that an ordinary bill process will not do.
drastic
in
Instead, we
should undergo the process of constitutional amendment or revision.

Lets go to the next topic: Checks and balances in the national
government versus none in the BBL. What we mean here by checks
and balances is that, today, we operate under a presidential form of
government where there are checks and balances among the three
branches of government. So checks and balances is the distinguishing
character of our liberal democracy. However, in the Bangsamoro area,
therell be no such checks and balances because instead of a
presidential, they will have a ministerial form of government where, as
you know, it is accepted. There are now checks and balances between
the Executive and the Legislative since they form, in a sense, just one

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body.
Thats what we mean.
And thats what I think what the
proponents mean when they speak of an asymmetrical relationship.

The third topic is sovereignty versus a substate.
sovereignty and where does it reside?
What is
It bears further examination
because, basically, this entire report about constitutionality will revolve

around the issue of sovereignty.
Is sovereignty divisible?
Is it like
local autonomy for national government possesses national powers and

local units possess local powers? Or is it far from that? Plus, if that is
the nature of sovereignty, does it admit of another area in the same
territory in claiming to be in the same state that is complete as a state
if you apply the test of the 1933 Montevideo Convention where in
classic format the definition is made. A state is a specific territory with
a population, enjoying self-government, free from internal control and
capable of instituting relations with other states.
If these four traits of the state as defined by the landmark
Montevideo Convention are present in Bangsamoro, are we not
therefore creating what might be called a substate or a less than
sovereign state; are we not therefore creating another state within a
state? And we should remember what the Supreme Court told us in

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one of the more landmark cases concerning local autonomy: there can
be no imperium in imperio. But we shall elaborate on that.
And finally, the concept of territorial integrity versus the concept
of functional division of territories. If we have one territory defined by
our archipelagic baselines, parenthetically, the Archipelagic Doctrines
state that the coastline of the Philippines will not be the coastline of
the individual islands but will a coastline that results if you draw a
straight line from the outermost islands around the Philippines. From
that archipelagic baseline, we measure, for example, such territories
as our 12-mile territorial sea and the 200-mile exclusive economic
zone.
But if we apply the theory applied in BBL, it might be possible if
we shall suffer either or at the same time a diminution and an increase
in territory.
Will the international community accept this kind of an
arrangement which might be domestically acceptable but might not be

acceptable to the rest of the world?
So if there is any question about the topics covered by these
subdivisions, just ask me.
Let us begin.
The first topic is: Can we just pass a bill, this
Senate bill, as if it were an ordinary law or do we have to go through

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the process of constitutional amendment and revision which will

certainly take a longer time plus will certainly be more acrimonious?
The first speaker will be Secretary Teresita Quintos-Deles, the
Presidential/meln
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THE
CHAIRPERSON
(SEN.
DEFENSOR
SANTIAGO).
...Secretary Teresita Quintos-Deles, the Presidential Adviser on the

Peace Process. And on the other side will be Justice Florentino
Feliciano, former justice of the Supreme Court; former judge of the
World
Trade
Organization
in
arbitral
tribunal.
And
can
say
conceivably, the most prominent Filipino practicing law in the planet

today.
So, for that we will call Secretary Deles and then we shall call on
Secretary Feliciano.
Please pardon me but I will have to stress that perhaps every
speaker can just confine himself or herself to their comments for about
20 minutes so that we can accommodate everybody here and nobody
has to come back a second time.
Ms. Deles.
MS. QUINTOS-DELES.
Good morning, Your Honors, to the
honorable chairs.
Thank you for the opportunity to address the Senate again on
this matter. We have already attended one hearing once before.
Before I read my statement, I would just like to put on record
that I am not a lawyer, Your Honors, I'm a simple Bachelor of Arts and
certainly have no standing to be on the other side of the table with
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Justice Feliciano. But I hope having helped to steward this process that
our perspective here is put forward.
When the negotiations between the government and the Moro
Islamic Liberation Front restarted in 2009, we knew that we have a
daunting task ahead of us. The Supreme Court's decision to render the
contents and the manner by which the Memorandum of Agreement on
Ancestral Domain or MOA-AD was drafted as unconstitutional and
contrary to law weighed heavily on our scale of decision-making. Even
more, the immediate repercussions of a botched peace process, the reignition of violence, the many lives and properties lost and
horribly
affected, the general sentiment of hopelessness were our constant

reminders that we cannot take every word, phrase or statement in any
of the political agreements lightly. Thus, we made it our mission to
prevent any misstep in forging the Comprehensive Agreement on the
Bangsamoro or CAB to keep all the provisions therein within the
flexibilities of our Constitution and as guided by the Supreme Court
ruling in the landmark case of the Province of North Cotabato versus
Government of the Republic of the Philippines or the MOA-AD case.
Since the government panel under the Aquino administration
started, we have conducted 442 consultations across the nation in
keeping with
the
commitment
to
make
this
process inclusive,
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participative and consultative. Nowhere in the CAB can the term

"associative" be found nor any of its features entrenched or alluded to
in the peace agreement. We will also not find a single guarantee for
charter change to accommodate the CAB. The most accurate that can
be said is that this Agreement recognizes the right of any citizen of the
republic including those who are appointed in the Bangsamoro
Transition Commission to propose amendments to the supreme law
through the modalities provided in our Constitution. These and more
distinguished the CAB from the declared unconstitutional MOA-AD.
The draft Bangsamoro Basic Law or Senate Bill No. 2408, the
translation of the CAB into a proposed legislation is one that can be
well-accommodated by the provisions of our charter. Even as the
Constitution is deemed read into any legislation passed by the national
Congress, S.B. No. 2408 explicitly guarantees that it will be in
consonance with the Constitution that is in the Preamble and thus its
provisions, in case of ambiguity, should be read with the parameters of
the 1987 Constitution in mind.
The establishment of a parliamentary form of government in the
Bangsamoro intends to bring life to the text of the charter that leaves
to the wisdom of Congress the determination of the structure of
government for the region. Provided, only that the executive and
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legislative
branches
will
be
elective
and
representative
of
the
constituent political units. That is Section 18, Article X of the

Constitution.
The draft BBL as it gives improved autonomy to the Bangsamoro
continues to honor its place as an integral part of the country stated
explicitly in Section 1, Article III whose government remains under the
general supervision of the President. That is in Section III, Article VII.
The Bangsamoro Police, Article XI, a unit of the Philippine
National Police and as an integral part of the law enforcement functions
remains true to the constitutional proscription of maintaining only one
national police under the administration and control of the Napolcom.
That is under Section 6, Article XVI of the Constitution.
But perhaps the most glaring difference between the MOA-AD, a
political document, and Senate Bill No. 2408, a proposed legislation, is
the operationalization of the constitutional requirement to conduct a
plebiscite and allow those provinces, cities and geographic areas which
favorably vote for the BBL to be part of the Bangsamoro. That has
been stated in Section 18, Article X of the Constitution.
In this bill, for the first time, we recognized the spirit of the
provision that gives primacy to the consent of the governed in
determining their political status by allowing municipalities and
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barangays not just provinces and cities to participate in the plebiscite.

We
intend
to
right
the
wrong
committed
against
the
phrase
"geographic areas" when it was all but rendered a mere surplusage in

the past legislations.
Senate Bill No. 2408 proposes many novel changes for the
proposed Bangsamoro. As demonstrated, this however does not mean
that there is no constitutional basis for all of these, or that a mere
legislation without charter change can enforce them. We maintain that
a closer scrutiny of the provisions of the draft BBL and a more
comprehensive understanding even beyond the textual or traditional
interpretation of the words of the Constitution will bring us to the
conclusion that the framers and the people who ratified the Charter
had the foresight to entrench a unique setup in the autonomous
region. One that respects the peculiar situation in the area that is not
inconsistent with but is, in fact, a means to preserve our national
sovereignty and territorial integrity under the 1987 Constitution.
Thank you, Your Honors.
THE CHAIPERSON (SEN. DEFENSOR SANTIAGO). Thank you
very much.
And may I please request once more all the members of the
resource panel to give their statements, if possible, before you leave
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this chamber, to my chief of staff, Atty. Fatima Panontongan. Will you

stand up please and raise your hand?
And then before we continue, it is a pleasure to greet a member
of
the
Committee
on
Constitutional
Amendments,
Senator
Pia
Cayetano, and also a former member of the Philippine Senate who

served with much distinction during his term, Senator Aquilino
Pimentel Jr., whom out of courtesy we invite to join us here since you
are a senator all your life.
Thank you.
Now, let us turn to Justice Florentino Feliciano whom, despite his
many concerns, have done honor to our Committee by coming here.
So, if you don't know your law, will you please just keep quiet or
I will lose my temper.
Justice Feliciano.
Justice Feliciano, when he was just a mere student in Yale
University, already collaborated on a worldwide bestseller on the Law
of the Sea written in collaboration with this professor and is often our
lawyer, our champion for Philippine causes in international litigation.
He has just won one of them.
MR. FELICIANO. Thank you very much, Madam Chairman.
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I propose to be quite brief this morning if only because I got the

papers somewhat late and I've had to attend to a sick wife.
Now, Madam Chairman, I would like to begin by pointing out that
the proposed Bangsamoro Basic Law is not just a piece of proposed
legislation by the Congress of the Philippines. The proposed BBL, if I
may call it that, also constitutes the so-called "Comprehensive
Agreement on the Bangsamoro" between the government of the
Republic of the Philippines and the Moro Islamic Liberation Front.
It purports, in other words, to be the result of prolonged
negotiations for peace .../mhu
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MR. FELICIANO.
...prolonged negotiations for peace between
the sovereign Republic of the Philippines on the one hand, and a group
of rebels who happen to be very well-informed, very well-armed and
very well-funded.
Now, it purports to be the result of an agreement, as I said,
between two entities, each presumably claiming to be vested with the
juridical capacity to enter into agreements which have some binding
effect under some system, although unnamed system of law. Whether
viewed as either a bill or a draft legislation submitted to our Congress
or the consequence of an agreement-making process, it must be clear
to everyone that the proposed BBL must be consistent with the
provisions of the 1987 Constitution of the Philippines. Otherwise, the
proposed BBL cannot have any legal effect or consequence as a matter
of Philippine law. Thats a proposition which, I respectfully suggest, is
self-evident and needs no support for reference to literature.
I wish to refer at this point to the statement on Senate Bill No.
2408 made by Justice Vicente Mendoza. In the interest of economy of
time and effort, let me say that I agree with all the principal points
made by Justice Mendoza in his statement and will, hence,
avoid
elaborating on those points although makingI apologize in advance

a few minor comments on them.
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Let me start by saying, in respect of the term territory as used

in both Senate Bill No. 2408 and the Comprehensive Agreement on the
Bangsamoro which I will, for brevitys sake, refer to as CAB. It may
be noted that one of the essential elements of a state in international
law is that of territory or the entity seeking recognition as an
independent and sovereign state under Public International Law. Now,
under Philippine Administrative Law, I need not stress too heavily that
our provinces, our municipalities, our municipal districts, etcetera, also
have defined territories as designating the earthly limits of the
exercises of their legislative and their law enforcement authorities.
The concerns many have over Bangsamoro territory as indicating
demands for a separate sovereign state have, to some extent, been
eased by addition of the sentence, and I quote, The Bangsamoro
territory shall remain a part of the Philippines.
But this statement
must be given, in my view, a forceful meaning.
It is not a window-
dressing measure. In other words, retention within the territory of the

Republic of the Philippines must be real and not merely verbal in
character.
And that is the problem that many of us have in
understanding both the draft BBL and Comprehensive Agreement. The

Comprehensive Agreement, if we took the statement seriously, is the
result of a process that began in the 90s continuing to 2015, today.
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The next important concern that I have is based in Article III,

Section 2(d) of the proposed BBL, which provision expressly provides
for expansion of Bangsamoro territory by the simple resolution of a
local government unit or a petition of at least 10 percent of the voters
of a contiguous area asking for inclusion in the territory of the
Bangsamoro plus a popular ratification within such area.
In other
words, no historical or anthropological basis need be shown justifying

absorption into the territory of the Bangsamoro. Further, and this is
extremely important, in my personal view, the structures and the
processes set up by existing administrative law of the Republic of the
Philippines may be modified or swept away by acts of the Bangsamoro
government. This is not something that can be authorized to be done
by a statute enacted by the Philippine Congress.
Maybe I should repeat this last point. My understanding of the
BBL and of the Comprehensive Agreement is that the Bangsamoro
government may change what presently exists under Philippine law in
the so-called Bangsamoro territory. If I am wrong, I would be very
happy to be corrected.
A related point concerns the distribution of governmental powers
and functions between, on the one hand, the government of the
Republic of the Philippines, and on the other hand, the Bangsamoro
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government. This distribution needs careful attention.

Now, I will start dealing with this by pointing out that the
government of the Republic of the Philippines will haveIm quoting
from the proposed BBLreserved powers which include, among other
things, defense and external security, foreign policy, citizenship and
naturalization, economic agreements with third parties third countries,
immigration and so forth.
Let me stress that once more--the
government of the Republic of the Philippines will have what are

designated as reserved powers.../jbc
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MR. FELICIANO.
...what are designated as reserved powers.
Next, the Bangsamoro government is designated as having

exclusiveplease note thatexclusive powers including agriculture,
livestock, food security, loans with foreign corporations or countries,
trade industry, foreign investment, labor regulation, free ports, the
banking
systems,
education,
public
utilities
operations
in
the
Bangsamoro territory, ancestral domain and natural resources, land

management and distribution, sharia courts and the sharia justice
system, local administration and municipal corporations. Education
please note that these exclusive Bangsamoro powers are all deductions
from
or
reductions
of
the
general
sovereign
authority
of
the
government of the Republic of the Philippines on this so-called

Bangsamoro territory and the population thereof.
In other words, these exclusive powersand it is only in respect
of Bangsamoro functions and powers that the term exclusive is
usedrepresent deductions from/reductions of authority that is vested
today, under our Constitution, in the government of the Republic of the
Philippines. They cannot be taken from the atmosphere; they have to
be taken from what exists under our Constitution and law.
And what is it that exists? What exists today is the government
of the Republic of the Philippines. If you cut out and designate as
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exclusive powers and authorities and give that to Bangsamoro

government, you necessarily need to reduce the sum total of the
authority vested in the government of the Republic of the Philippines.
Who has authority to do that? I respectfully suggest, Madam
Chairman, that the Senate nor even the whole of Congress has
authority to do that.
In other division or categorization of authority between the
government of the Republic of the Philippines and the Bangsamoro
government is concurrent authority. What is covered by this term
concurrent authority?
Well, things as important as, I will just mention two: private
schools, public utilities. Please note that the government of the
Republic of the Philippines will have more limited functions and duties
than the Bangsamoro government touching the daily lives of the
people who live in this so-called Bangsamoro territory. Because it is
from the sum total of the sovereign authority of the government of the
Republic that what is given to Bangsamoro government necessarily is
taken or deducted from. Constitutional amendments will be necessary
to put the distribution of powers into effect.
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Madam Chairman, I think I should stop at this point. Perhaps,

you will permit questions later on, at least to the extent remaining to
portion of the 20 minutes that you have given each one of us.
Thank you, maam.
Thank
you very much.

At this point, we will entertain questions directed to each of the
two resource persons who have taken contrary positions on the
particular issue we are discussing.
But in the meantime, regardless of the position that he has taken
today, we would like to express the deep appreciation of the
Committee for the attendance of Justice Feliciano considering his age
plus the fact that he is visibly suffering a malady. And just to add the
most persuasive reason, because we have just listened to one of the
most brilliant minds in Philippine history, both living and dead, I invite
this audience to give him a standing ovation.
[Standing ovation and a round of applause for Justice Florentino
Feliciano.]
And now, are there any questions from the senators?
Senator Guingona.
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THE CHAIRMAN (SEN. GUINGONA).
Thank you, Madam
Chair.
Justice Feliciano, clearly you were saying that when the BBL
makes changes in the power structure such as the reserved, the
concurrent and the exclusive powers, you are saying that these are
constituent matters and not legislative matters and that Congress
cannot deal with it or has no capacity to pass it in its legislative
plenary or legislative authority.
But if it was acting as a constituent
body, then it could do so. Am I correct?

MR. FELICIANO.
authority,
authority
Mr. Senator, I understand by constituent
under
the
Constitution
to
modify
existing
structures and processes.

MR. FELICIANO.
In the Constitution.
Provided for in the Constitution or provided
for by legislation authorized by or consistent with the Constitution.

Yes, sir. So that would
be appropriate?
MR. FELICIANO.
Excuse me, will you please clarify what you
mean by
If Congress passes
this not as mere legislation but constitutes itself as a constituent

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assembly, have I authorized to amend the Constitution, then that

would cure the
MR. FELICIANO.
Mr. Senator, if by that you mean that
Congress would go through the processes of constitutional change

presently specified in the Constitution, by all means.
MR. FELICIANO.
By all means.
Yes.
The second point,
since the Constitution is a manifestation of the sovereign will of the

people and the BBL as you pointed out runs counter to the
manifestation of the will of the people, which is the Constitution, would
it not be corrected by or ratified if a referendum/plebiscite of the whole
country ratifies the BBL? So that we can say, The Constitution is a
manifestation of the will of the people but since the BBL is ratified by
the country as a whole, it is also a manifestation of the will of the
people.
MR. FELICIANO.
Mr. Senator, I would suggest that that point
be the subject of a careful clarification. Do not rely upon implied

consequences on it. Changing a Constitution is a serious business and
requires careful consideration of the benefits of the people. It is not
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something that you sleep over on weekend and finish on Monday.

Please, that is.
And if you look in the structural differences between what is
covered by the Bangsamoro government and what our present
administrative lawremember our administrative law is very old. It
began in the first decade of the 20th century. And as you know.../mjp
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MR. FELICIANO.
And as you know, Mr. ChairmanI mean,
Madam Chairman, and Mr. Senator, we are now in the 21st century. At
least I feel were in the 25th century many times.
So, it is not something that you should imply. You should clarify
to the people.
And what is remarkable, permit me and I mean this
without anything, at least this old man didnt realize that even the BBL
was in the process of negotiation/discussion between the Bangsamoro
and the government of the Republic. I can understand your reasons
for keeping things under lock and key, its more peaceful, its perhaps
a little more acceptable to yourselves and a little less hurtful in its
impact to each one of you.
informed.
But the net result is the people are not
At least this old guy never even realized thatespecially
after the decision of the court in the North Cotabato Province case.
And then you had the MOA-AD.
The difference is between the MOA-
AD and BBL represents something that must be carefully considered. I

suggest that the differences may be more rhetorical than real.
Thank you, Mr. Chairman.
Thank you, Justice
Feliciano.
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If there
no more question from our Senate Panel, we shall then proceed to the
next topic to be debated by two resource speakers.
MR. PIMENTEL.
Madam Chair.
Yes,
please.
MR. PIMENTEL. May I just respectfully request if it is possible
for us to connect with the statement of Justice Feliciano regarding the
constitutionality angle, Madam Chair.
Yes.
Does Senator Pimentel mean that you want to say something at this
point?
MR. PIMENTEL. Yes, maam, if that is possible.
Go
ahead, please.
MR. PIMENTEL.
Thank you, Madam Chair, and distinguished
members of the panel as well as my colleagues in the resource persons

present today.
My observations are based on the Senate version of the
proposed Bangsamoro Basic Law.
The intent of the BBL to bring
peace, progress and development primarily to Mindanao and ultimately

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to the rest of the country deserves the support of our people.
No
question about that. But its intent, as borne out by the content, must
conform to the Constitution.
My comments, therefore, Madam Chair, will deal only with two
basic issues that are contained in the proposed BBL: (1) The proposal
under Article IV, General Principles and Policies to install a Bangsamoro
government that is parliamentary in form and an electoral system
suitable to a ministerial form of government; and the next issue will be
on the limitation, part of which has already been pointed out by Justice
Feliciano on the reserve powers of the central government to certain
areas.
Now,
Madam
Chair,
under
the
Constitution,
the
form
of
government that is ordained is presidential that is found in Article VII

of the Philippine Constitution.
The same Constitution mandates in
Section 1 of Article X on the local government as a part of the general

provisions of the Constitution of Article X that the territorial and
political
subdivisions
of
the
republic
are
the
provinces,
cities,
municipalities and the barangays.

There is a second sentence:
There shall be Autonomous
Regions in Muslim Mindanao and the Cordilleras.
And I want to
emphasize the succeeding phrase, as hereinafter provided.

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We will now just talk about the Autonomous Region of Muslim

Mindanao because that is what is covered by the BBL. It is submitted,
Madam Chair, that to allow a part of the country to be governed under
a parliamentary form of government when the Constitution itself
proclaims that the whole country has adopted the presidential form of
government would be, to say the least, incongruous.
In Section 18 of Article X, it is provided that the Organic Act shall
define the basic structure of government for the autonomous region,
consisting
of
the
Executive
Department
and
the
Legislative
Department, both of which shall be elective and representative of the

constituent political units.
The basic structure of government of the autonomous region
then consists of the Executive Department and the Legislative
Assembly, both of which shall be elective, Madam Chair.
Which
means, Madam Chair, that this will be contrary to the intent to adopt a
parliamentary form of government because, as you very well know, in
a parliamentary form of government, it is the legislature that is elected
out of the members of which would come who would constitute the
Executive Department, Madam
Chair.
It is thus submitted that the
above-quoted article and section of the Constitution validate the thrust

of this paper that the autonomous region envisioned in the Constitution
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which the BBL intends to govern must follow the form of government
that is provided for in the fundamental law and that is none other than
the presidential form of government.
If the intention of the Constitution were otherwise, Madam Chair,
it would have worded the provisions accordingly.
But it did not.
Furthermore, through no fault of the Muslim peoples themselves, there

does not seem to be any historical or cultural reason why the form of
government sought to be established by the BBL should depart from
what is now
presidential
constitutionally mandated for the entire nation, the

form
of
government.
The
use
of
the
phrase
asymmetrical relationship by which the BBL described the link of the

Bangsamoro entity to the national government merely enhances the
incompatibility with the presidential form of government for the
Republic of the Philippines as mandated by the Constitution with what
is proposed under the BBL.
But would the assertion of an
asymmetric relationship be sufficient to justify the installation of a

parliamentary form of government for the Bangsamoro in lieu of the
presidential form?
That might need not only judicial determination to
settle but a constitutional amendment, Madam Chair.
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And therefore, our proposal isyou know, it is much better if

there is time now that the wording of the BBL be changed accordingly
so that it would conform with the thrust of the Constitution.
Madam Chair, I would only wish to emphasize that on the
reserve powers, let me point out that in Section 9 of Article VII of the
BBL, a Bangsamoro Electoral Code is adopted.
Specifically the Code
creates a Bangsamoro electoral office which in the words of the BBL

shall be a part of the Commission on Elections and which shall perform
the functions of the commission in the Bangsamoro.
Now whether or
not the functions of the Commission on Elections are actually

diminished or modified by the creation of this Bangsamoro electoral
office, this has to be scrutinized very deeply by the panel, by our
Committee members, Madam Chair.
There is also in Article IX of the BBL, the creation of the Human
Rights Commission.
cts
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MR. PIMENTEL.
the creation of the Human Rights
Commission. I would suggest that it is important that the wording of

that delegation of power from the Philippine Constitution to the
Bangsamoro be studied very carefully because particularly, Madam
Chair, let me point out that in Article IX of the Bangsamoro Law,
Section 1, freedom of speech is recognized. But it stopped there. It
does not include freedom of the press.
Now, maybe in the concept of the framers of this law, freedom of
speech already includesI mean, freedom of the press would already
include freedom of speech and vice versa. But if that is so, why did our
Constitution itself say, No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for a redress of
their grievances, which means therefore that under our Constitution,
the freedom of speech is treated separately from the freedom of the
press. And considering what happened, Madam Chair, to Charlie Hebdo
in Paris, I think its very important that we clarify that there should
also be not only freedom of speech but also of the press in the
Bangsamoro region.
And finally, as a point of interest, Madam Chair, the settlement
of disputes to the Sharia should clarify very clearly that when
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controversies entangle Muslims against Christians, Muslims against

Lumads, Lumads against Lumads or Christians against Lumads or vice
versa, national law should prevail.
It is also recommended, Madam Chair, that decisions on petitions
for declaration of absence or death or change of names should not be
considered final even when passed upon by the Sharia law but should
be allowed to be reviewed upon proper petition by the parties
concerned including agencies of the government.
Why do we say that, Madam Chair? Because as we very well
know, recent events show that some of the perpetrators of the
massacre in Maguindanao, some of them have disappeared, some of
them have changed their names and, you know, that will make the
search for justice more difficult, Madam Chair.
Basically, Madam Chair, I would like to end with this point that
we bring to the attention of the Committee two other issues: the
apprehension of His Excellency the Sultan of Sulu, that in his view the
BBL does not clearly state whether or not the traditional jurisdiction of
the sultanate of Sulu over the Sulu Sea is recognized by the BBL and
whether or not the sultanates claim over Sabah is simply not a priority
of the administration.
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Some members of the House have already spoken, Madam

Chair, against the inclusion of the Sabah claim on the ground that it
might only unduly prolong the implementation of the BBL. Maybe they
are right but the Sabah claim is well-documented and the sooner it is
tackled by the government, the better it will be for the nation.
Thank you very much, Madam Chair.
Thank
you too.
Since our resource panel are eminent personalities in their
respective fields and they have reached a certain age when the minds
of inferior individuals are not necessarily interesting, we would like to
announce that those who have finished with their statements may, by
leave of the Committee, leave ahead of the rest of the proceedings.
So, if Justice Feliciano and Secretary Deles want to leave now,
that is acceptable to the Committee.
But now, let me go on to the next topic. The next topic actually
has been given a prelude by the statements of Senator Pimentel:
Checks and Balances in the National Government versus None in the
BBL, precisely referring to the fact that the national government under
the proposed bill will continue under a presidential form of government
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while the Bangsamoro will operate under a parliamentary form of

government.
The first speaker will be former Secretary Senen Bacani,
Government Peace Panel member, and taking the opposite side will be
former Supreme Court Justice Vicente Mendoza.
Secretary Bacani.
MR. BACANI.
Honorable Madam Chair, Honorable Senator
Marcos, Honorable Senator Guingona, Honorable Senator Cayetano,

other invited guests, good morning.
To say that there are no checks and balances in the proposed
Bangsamoro Basic Law as compared to those existing in the national
government can only be due to a complete misreading of the proposed
Bangsamoro Basic Law. In fact, the proposed law that will establish the
framework for the future Bangsamoro government is replete with so
many examples of checks and balances on the powers to be exercised
by the new political entity. The proposed BBL in the first place is a
classic example of trying to balance autonomy, subsidiarity and
devolution with sufficient internal controls.
Overarching the whole concept of checks and balances is the fact
that the President will continue to exercise general supervision over
the Bangsamoro government to ensure that national laws are faithfully
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executed. It is worthy to note that national laws cannot be changed by

the Bangsamoro parliament unless authorized to do so by Congress.
Moreover, it is clear in the proposed BBL that reserved powers
both expressed and residual of the national government can at any
time without any limitation be exercised within the Bangsamoro
territory. For example, the Bangsamoro governments power to enter
into agreements regarding cultural exchange, technical cooperation
and economic matters is, of course, subject to central governments
reserved powers over foreign affairs. In addition, the exercise of the
concurrent or shared powers by the Bangsamoro government can only
be done with the coordination and cooperation of the national
government.
To supplement the work of the constitutional bodies in the
Bangsamoro like COA, Civil Service, Comelec, Commission on Human
Rights is the proposed establishment of auditing, civil service, election
and human rights units in the Bangsamoro without prejudice of course
to the powers, authorities and duties of these constitutional bodies.
The only goal is to assist and not, repeat, not to replace in any manner
whatsoever the powers and authorities of these constitutional bodies.
The Ombudsman shall continue to have the power to act on
erring Bangsamoro officials. Similarly, the Supreme Court will continue
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to exercise the powers of supervision and the judicial review over all
courts, including Sharia courts.
Moreover,
there
are
clear
statements
in
the
proposed
Bangsamoro Basic law that the Bangsamoro government will have to

adhere to the commitments of the national government as embodied in
international treaties and agreements.
The draft law also provides for additional intergovernmental
bodies/rommel
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MR. BACANI.
for additional intergovernmental bodies to be
established in order to ensure cooperation and coordination between

the national and Bangsamoro governments.
central
government-Bangsamoro
These are, first, the
government
intergovernmental
relations body to resolve issues on intergovernmental relations;

second, the intergovernmental fiscal policy board that shall address
revenue imbalances and fluctuations in regional financial needs and
revenue-raising capacity over the Bangsamoro; third, the Philippine
Congress-Bangsamoro parliament forum for purposes of cooperation
and coordination of legislative initiatives; fourth, the Bangsamoro
sustainable development board to ensure the harmonization of
environmental and development plans as well as to formulate common
environmental objectives; and fifth, the joint body for the zones of
joint cooperation which shall be responsible for drawing up policies in
the zones of joint cooperation in the Sulu Sea and the Moro Golf.
Also worthy of notice, the provision on the possible vote of no
confidence against the government of the day which can serve as a
further check on the performance of the Bangsamoro government by
the duly elected representatives of the Bangsamoro.
Another is the
full disclosure policy of the Bangsamoro government of its budget and

finances and of bids and public offerings.
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Regarding public order and safety, there will be a Bangsamoro

police board which shall perform the functions of the Napolcom in the
Bangsamoro.
The board shall be part of the Napolcom with the
Napolcom ensuring that the Bangsamoro police board performs its

powers and functions within the bounds of its authority.
Above all of these controls within and outside the Bangsamoro,
however, what is of paramount importance would be the demand of
how to govern for complete accountability of those who govern as
supported by a strong press and strong civil society organizations.
That way, we can further strengthen the democratic institutions that
will be established and assure the general welfare of the people in the
Bangsamoro.
Therefore, Madam Chair, the proposition that there are no
checks and balances in the proposed Bangsamoro Basic Law is simply
not correct.
Thank you for giving us the opportunity to set the record
straight.
Thank
you, too.
And still on the same topic, the avatar of the position that there
is no checks and balances in the BBL, one of the countryperhaps the
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countrys foremost authority on constitutional law, Justice Vicente

Mendoza, will give his own statement.
MR. MENDOZA.
Thank you, Madam Chairman, Senator
Marcos, Senator Guingona, Senator Pia Cayetano and the distinguished

panelists.
I have a prepared statement so what Im just going to say now
will be in the nature of answering points raised by Secretary Bacani
and maybe I will stray to other areas but still relevant as my answers
to those points raised by him.
Let me state at the beginning, Madam Chairman and members of
the joint committees, that my understanding of the principle of checks
and balances is that it is simply a corollary of the principle of
separation of powers. Without separation of powers, there can be no
checks and balances.
Madam Chairman, we speak of separation of
powers both in the horizontal and in the perpendicular senses. When

we speak of the separation of powers as we are familiar with the
principle in Philippine Constitutional Law, we refer to the horizontal
division of powers among the legislative, executive and judicial
departments.
But when you bring in the concept of perpendicular
separation of powers, you are there now talking in another realm and
that is in the realm of a federal system of government so that in the
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federal system of government, you have separation of powers

horizontally between or among legislative, executive and judicial
departments and a division of power perpendicularly between the
federal government and the state governments. We do not have that
kind of separation of powers under the Constitution.
So we do not
speak of the powers of the national government vis--vis the forms of

the local governments created in the Constitution. They do not have
the status of the states in a federal union.
So therefore, when you speak of the reserved powers of the
President or of the national government as checks on the exclusive
powers of the Bangsamoro government, you are there referring to the
perpendicular power, the separation of powers, which we do not have
for the simple reason that ours is not a federal system; ours is a
presidential unitary form of government. So when we speak here of
checks and balances, we refer to the checking and balancing function
of the three departments: the national legislature, the national
executive department and the national judiciary.
All right.
Now, the Constitution, Madam Chairman, as far as
autonomous regions are concerned, requires that they have an organic

act now called basic law.
I think basic law is the constitution in
Germany. I dont know why it is not called organic act. Now, the
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Constitution, Madam Chairman, requires Congress to pass an organic

law providing for the structure of government got in the words of the
Constitution should consist of executive department and legislative
assembly, both of which should be elective and representative of their
constituent units.
Now, this is not what is provided in the proposed BBL. What is
provided there is a parliamentary system with a ministerial form of
government where there is no division of power or separation of
powers between the executive and the legislative department.
powers of government are vested in the parliament.
The
The legislative
function is performed by the parliament. The executive functions are

performed by the Cabinet but the Cabinet, the majority members of
the Cabinet are members of the parliament.
The chief minister is
elected by parliament from among its members.
A majority of the
members of the Cabinet /meln
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MR. MENDOZA. ...of the Cabinet are members of parliament.

The chief minister is elected by parliament from among its members. A
majority of the members of the Cabinet are required to be appointed
by the chief minister from among the members of parliament. So there
is no separation of powers between the lawmaking and the executive
branches of that government. Therefore, there is no check and
balances in the horizontal sense
as a corollary of the horizontal
separation of powers.
Now, why should there be separation of powers and as a
corollary checks and balances in the Bangsamoro government? One,
because it is required by the Constitution. Second, because most of the
governments the world over have only one form of government. If it is
a
presidential
type,
the
local
governments
must
also
have
presidential type of government.

Example, Madam Chairman, and members of the Committee,
Malaysia
is
federation.
The
states
composing
Malaysia
are
parliamentary for the simple reason that the federal government is

parliamentary.
Take the United States of America, it's also a federal system but
its federal government, the national government is presidential in form
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so are the governments of the states of the United States presidential

in form.
A parliamentary form of local government however it is called in
an otherwise presidential system is to say the least an oddity and
anomaly.
So for those two reasons, Madam Chairman, I find the proposed
BBL contrary to the mandate of the Constitution.
Thank you, Madam Chairman.
THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Thank
you, Justice.
Since the two sides of this particular topic have already been
heard from, we are now ready to accept questions from the members
of the senatorial panel.
If there are none, then we'll proceed to Topic 3, sovereignty
versus the substate.
Speaking in favor of a substate will be Professor Miriam CoronelFerrer, Government Peace Panel chair. And after her, the opposite side
will be taken by Justice Mendoza whom we request for additional
human duties today because Dean Merlin Magallona was suddenly
taken by very high blood pressure today.
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Professor Ferrer.
MS.
CORONEL-FERRER.
Madam
Chair,
Senator
Miriam
Defensor Santiago, Honorable Senators Ferdinand Marcos Jr., Teofisto

Guingona III and Pia Cayetano.
I speak before you this blessed morning as a student and
practitioner of politics and less of law as I am not a lawyer. Politics
rather than constitutional law, I believe, is the best discipline with
which to approach the questions before usIs the Bangsamoro a
substate? Corollary, is being a substate in, by, for itself, necessarily
unconstitutional?
Why do I say that political science relative to jurisprudence is our
best recourse in getting into the heart of the matter of the
Bangsamoro?
We all know that matters of state are foremost matters of politics
rather than law. Over and above law is the matter of peace and justice
which to go back to the great classics constitute the reason for being of
the polity or of the state stretching forward to the enlightenment
period. Peace and justice likewise are the ends of the social contract.
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Madam Chair, the "substate" word has been unjustly demonized.

As in any demonized term, wave it like a red flag and people will rail
against it.
It is almost like the term "Moro." Say it and in the minds of
many, we generate fear, distrust, suspicion, hate. Such is the
unfortunate state of mind that we have inherited from the Spanish and
American colonial rule. Such hatred has led us to continue to think like
the colonialsa good Moro is a dead Moro. Fast forward, 100 to 500
years later, a good substate is a dead substate, unconstitutional. Bang!
You're dead.
This when, in fact, a substate can only mean being a
subdivision of and, therefore, part of the state in the subnational

sense. In the same way that a subset as we learned from grade school
math can only mean being part of a bigger set.
Madam Chair, the word "substate" is not even a legal term. It is
merely a descriptive word pertaining to one part or unit of a state. How
can
we
judge
legality
or
illegality,
constitutionality
or
unconstitutionality by mere mention of the word? This is not to say,

however, that substates or substate entities do not exist.
I have here a copy of the book, Substate Governance Through
Territorial Autonomy: A Comparative Study in Constitutional Law of
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Powers, Procedures and Institutions, published in 2011 and written by

the Finish professor of Comparative Law and Politics, Markku Suksi.
Madam Chair, if I may, may I respectfully give you a copy, a
humble contribution to your library.
THE CHAIPERSON (SEN. DEFENSOR SANTIAGO). We are
happy to accept it.
MS. CORONEL-FERRER. Atty. Anna Basman will hand it over,
with your permission.
The book provides us with a survey of substate entities that are
of particular interest to us. These are substate entities that they are in
the form of territorial autonomies such as one finds in countries like
China, in the case of Hong Kong, Macau and Tibet; in Finland which is
Swedish-speaking Holland; Indonesia in the case of Aceh, West Papua
and Yogyakarta.
Territorial autonomies, a genre that is applicable to our case on
hand are here distinguished from federal states and obviously,
independent states.
Madam Chair, independence was never on the negotiating
agenda of the government. The whole idea of negotiation was precisely
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to keep the country intact. Any notion of a substate can only mean a
setup within the Philippine state and under the Philippine Constitution.
Some critics insist that the Bangsamoro in the signed documents
is still the substate as originally conceived when we began negotiations
in 2010, almost four years ago. They do not realize how the
Comprehensive Agreement on the Bangsamoro for the sake of peace,
national unity and social justice, had arrived at the necessary
compromises in accordance with the 1987 Constitution and its
flexibilities without prejudice, of course, to future constitutional
change.
Now, to address a second level of the claim of unconstitutionality
before us, that the Bangsamoro, being a substate, is not the
autonomous region contemplated in the Constitution. Specifically, that
the powers that have been enumerated in the signed documents and
now in Senate Bill 2408 go beyond what is possible in a unitary setup.
Notably, our Constitution did not explicitly say that we are a
unitary state. In fact, coming from a highly centralized state under
martial rule where the executive branch was able to wield wide powers
both formally and informally, the crafters of the 1987 Constitution took
pains to devolve powers through principles and provisions on local
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autonomy, decentralization and autonomous regions that it ensconced

in Article X on Local Governments. Moreover and equally significant,
they wrote up a whole article on social justice to correct the political,
social and cultural exclusion in our country.
Markku Suksi, the author of the book, writes in the case of
Europe. It states that include one or several autonomous entities are
counted together with the number of federal states. The result, at least
in Europe, is that they've regular textbook example of state, the
entirely monolithic unitary state finds itself in a minority and is no
longer the prime example of a state. .../mhu
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MS. CORONEL-FERRER.
...of a state. Evidently, there are so
many existing possibilities to structure a relationship horizontal,

perpendicular between government and its multiple constituencies that
a binary system of political ordering either a federal or unitary state
can no longer accommodate.
The members of the Constitutional Commission in 1986 grappled
with adopting a federal system of government. But in the end, they
settled for this unique animal, so unique it may be set up in only two
parts of the country: In the Cordillera and in Muslim Mindanao. They
called this animal autonomous region.
In so doing, they also
produced a model that is distinct but also finds a semblance in other

non-federal republics such as Indonesia with its three autonomous
regions; China with its three special administrative regions that I
mentioned earlier; also Spain with its more than 10 autonomous
regions; and the United Kingdom with its four constituent parts, the
most appropriate term for which has not been found.
These
constituent parts are Northern Ireland, Wales, Scotland and England.

All these are variations of that much derided, although affably neutral
and practical, generic word called substate.
Regardless, other critics say that the structure of government
and the powers enumerated in the power-sharing and wealth-sharing
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annexes and now the draft BBL partake of the nature of a federal
state. Proof to such claim is the concept introduced in the documents
of an asymmetrical relationship between the Bangsamoro and the
central government.
To the Supreme Courts credit, we have recently been provided
with jurisprudence on what asymmetry means.
In the League of
Provinces of the Philippines versus DENR, the Supreme Court ruled,

and I quote, Autonomous regions are granted more powers and less
intervention from the national government than territorial and political
subdivisions. They are thus in a more asymmetrical relationship with
the national government compared to other local governments or any
regional formation.
The Constitution grants them legislative powers
over matters-- enumerating the provisions in the Constitution and

continuing with the statementthat are usually under the control of
the
national
government.
While
the
ruling
did
not
define
asymmetry, it provides us with the context clues by which we can

understand the concept within constitutional boundaries.
Another claim put forward to argue violation of the Constitution
is the list of powers enumerated in the draft BBLreserved, concurrent
and exclusive. Reserved powers are powers or matters over which
authority and jurisdiction are retained by the central government.
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Concurrent powers shall refer to the shared powers between the

central government and the Bangsamoro government.
powers shall refer to powers or matters over which
Exclusive
authority and
jurisdiction pertain to the Bangsamoro government.

Is there anything in this definition and the list of powers that
violate the Constitution? Does the granting of exclusive powers to the
Bangsamoro effect its separation from the state?
I use the word
separation here in the first context that was used earlier by Justice
Mendoza, in the perpendicular context.
Not so in many ways.
Exclusive powers, which are exercised within the Bangsamoro

territorial jurisdiction, may be clipped by the reserved powers of the
central government which are exercised in the whole country, including
the Bangsamoro.
Reserved powers, to repeat, are exercised in the
whole country, including the Bangsamoro. Indeed, Justice Mendoza is

right.
There is no separation of power, in the first context that he
used the term, as indeed we are not establishing a federal state. We

are establishing an autonomous region that continuous to be part and
parcel in that kind of horizontal relationship vis--vis the central
government.
To be more specific or to cite some examples,
regulation of
trade, banking and finance. The regulations of these items may have
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been devolved but this matter is governed by national fiscal and

monetary policies, foreign treaties and conventions our country has
entered into, foreign policy, customs and tariff laws.
All reserved
powers of the central government.

In case of conflict of laws, as Senator Pimentel mentioned
earlier, its evident that national laws and the Constitution shall prevail.
And in case there is conflict in the interpretation of such laws, then
there is always the recourse to the Supreme Court.
Clipping of the powers of the Bangsamoro can very well be
effected by these reserved powers not only as enumerated in the BBL,
but in the totality of central government powers as well as that of the
Supreme Court, Congress and the constitutional bodies that we find in
the Constitution.
But then what we envision here is a democratic
relationship based on mutual respect or parity of esteem as public

officials and leaders vested with their respective authorities.
Moreover, when the exercise of the Bangsamoro governments
powers
impacts
outside
of
the
territorial
jurisdiction
of
the
Bangsamoro, it is understood that the neighboring local government

units, with powers that have been given to them by the Local
Government Code,
and the central government can take the
appropriate action.
Again, based on their respective powers in

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accordance with the appropriate laws.

This is fairly well understood in that the president, as provided
for in the Constitution, shall exercise general supervisory powers over
the autonomous region.
As provided in Article X, Section 16 of the
Constitution and reiterated in Article VI, Section 3 of the Senate bill,

The president shall exercise general supervision over autonomous
regions to ensure that the laws are faithfully executed.
Finally, the Constitution itself grants the parameters for the
autonomous jurisdiction of the autonomous regions when it said that
these regions shall have the following legislative powers subject, of
course, to the Constitution and national laws.
Although,
existing
national law shall be qualified by the forthcoming Bangsamoro Basic

Law. Insofar as the Bangsamoro is concerned as in the nature of more
recent national law, but of special application.
Article X, Section 20, according to the Constitution, within its
territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions, the draft
BBL,
shall
provide
Administrative
for
legislative
organization;
powers
creation
of
over
sources
the
following:
of
revenues.
Therefore, the slew of taxing powers that we proposed to give to the

Bangsamoro. Ancestral domain and natural resources. Therefore, a
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set of concurrent powers and exclusive powers over matters having to

do with the environmental protection, mining and energy that are
properly defined in the different sections of the Senate bill. Personal,
family and property relations and therefore the special application of
Sharia law in this region where you have more than 90 percent of the
population, Muslims. Regional urban and rural planning development;
economic, social and tourism development; educational policies;
preservation and development of the cultural heritage; and such other
matters as may be authorized by law, including this Senate bill that we
hope to be passed in the form of the Bangsamoro Basic Law, for the
promotion of the general welfare of the people of the region. All socalled exclusive powers listed in the annex on power-sharing and
now the draft BBL fall under any one of this category, not to mention
the fairly encompassing category of matters for the promotion of the
general welfare of the people in the region.
All powers shall not prejudice the powers and authority of
constitutional bodiesthe Supreme Court and Congress.
If certain
provisions may have given rise to such misinterpretation, then

certainly we can improve and fine-tune the languaging.
Truth to tell, many of these powers actually were already given
to the ARMM.
However, many of these powersfor examples, the

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power to enact its own indigenous peoples rights act and civil service
code and to expand Sharia courts including appellate courtswere
never exercised by the ARMM even though in fact, these are already
provided for by Republic Act 9054.
To say that giving such powers as one now finds in the BBL
compromises the sovereignty of the state is to deny the powers which
the Constitution itself allocates to the autonomous regions.
Madam Chair, remember sovereignty is not just about our
standing before other states and relations with them, a matter that
remains in the hands of national government. Sovereignty is, first and
foremost.../jbc
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MS. CORONEL-FERRER.
...Sovereignty is, first and foremost
the exercise of the peoples will and the peoples will operates at
different territorial and political subdivisions of the state including
autonomous regions. And that is why we have local and regional
plebiscites as well as our law on initiatives and recall.
Modern
political
and
legal
thinking
on
devolution,
decentralization and autonomy and the right to self-determination not

only of colonists, but of indigenous peoples and minorities are all
pointing in this direction of a multi-layered sovereignty within states as
we can glean from these quotations from authoritative sources.
Sovereignty, like the atom, can be split. Another quote, In modern
times, sovereignty is divisible.
Indeed, Madam Chair, the world has changed much since the
Peace of Westphalia was forged in the 17th century with its emphasis
on state sovereignty.
We credit the framers of our Constitution, and we have before us
two members of the 1987 Constitutional Commission, retired Justice
Azcuna and Commissioner Chito Gascon who was also a member of our
panel. We credit them in finding the balance between the sovereignty
of the Philippine state and the sovereignty of the people of the
Philippines. We thank them for showing us the manner by which such
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sovereignty may be shared among the various peoples and groups

making up the Philippine Republic. And among these groups of people,
among the Filipinos, as we know, are the Bangsamoro. Let us give
them their due even as we ensure the protection of rights and
promotion of welfare of all that will fall under the territorial jurisdiction
of the Bangsamoro.
Towards these ends, we have noted the specific proposals that
we have heard, not only in this consultation but in other consultations.
And I believe that they will enhance the viability of the Bangsamoro
Basic Law.
Thank you very much, Madam Chair.
Thank
you, Professor Ferrer.

The other side would have been aired by Dean Magallona but he
was suddenly stricken and we request Justice Mendoza to gallantly
step in and complete the debate on this particular topic.
And furthermore, I am afraid we will have no more time for the
fourth topic. So next Monday, which is our second and last hearing, we
will request the following resource persons present today, with our
apologies, to come again.
Commissioner Gascon, Justice Azcuna. Just those two.
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We will request you to come again for the hearing on Monday,

February 2. We request further the third person to come back, Dean
Julkipli Wadi of the UP Institute of Islamic Studies. Joining them will be
former Senator Rene Saguisag.
And against them, also by topic, will be the following: the CBCP
(Catholic Bishops Conference of the Philippines) which has issued a
statement, just a bare statement that it is against BBL because of the
question of territorial integrity which they hope to expatiate on next
Monday. So there will be the CBCP; Dean Aquino of San Beda who
cannot come today because he has to give a lecture in Baguio City; the
Philconsa, which just issued today a statement against the BBL; and
Dean Magallona, if he is well enough. So we will have those resource
persons next Monday.
In the meantime, we will call again Justice Mendoza.
MR.
MENDOZA.
Thank
you,
Madam
Chairman,
the
distinguished members of the Committee.

There are just too many terms that are new, of course, I know
that law must change with the times. But, Madam Chairman, change is
not the only feature of a dynamic law. It is also conservation of what
has been taken. So what we strive, in particularin my case, what I
strive for is for continuity amidst change.
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Madam Chairman, what I simply cannot find in the literature

anything about a substate and it is not in the Constitution or anything
about asymmetric relation except as this is defined in the BBL. So
considering this, I would like to begin by saying whatever the
Bangsamoro government is called, a substate or anything else, it is not
one of the forms of local government authorized in the Constitution
namely, the provinces, the cities, the municipalities, the barangays,
and the autonomous regions. It is none of this. And I submit that
Congress cannot enact a law providing for any other form of local
government. That in brief is our position, Madam Chairman.
Let me begin with this discussion on the asymmetric relation
given as a justification for not applying to the BBL the provisions of the
Constitution. Under the Constitution, as I already said, the only forms
of local governments are the provinces, the cities, the municipalities,
and the barangays and the two autonomous regions in Muslim
Mindanao and the Cordilleras.
But Article VI, Section 1 of the BBL states that the Bangsamoro
is distinct from other regions and other local governments. This implies
that it is none of these forms of government provided in the
Constitution. And the question is: Can Congress do that? What is the
Bangsamoro if it is not one of these? It is what I would say similar to
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the status of the Commonwealth government before the grant of

independence in 1946.
As the United States Supreme Court noted, the Commonwealth
government was a sovereign government because the US Congress,
little by little or step by step, granted greater autonomy and powers to
the Commonwealth government retaining only what was necessary to
check its ascendancy.
The Bangsamoro government is similar to that. It is similar to
the trust territories under the United Nations Charter, which were
given a large amount of autonomy in preparation for the grant of
independence to them.
But we have just been told by Chairman Coronel-Ferrer that the
word independence cannot be found in the BBL. Of course, it is not in
the BBL, otherwise, that would spell the doom of that bill.../mjp
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MR. MENDOZA.
of that bill.
But although the word
independence is not there, it is studiously avoided to provide the

equivalent of independence.
In those instances where independence
cannot be justified, the principle of asymmetrical relationship and

subsidiarity are invoked.
To say that the Bangsamoro governments relation to the central
government cannot be similar to the government of the existing local
governments in the Constitution is to beg the question. Because the
Constitution very clearly says that the government shall be created-The Bangsamoro government shall be created within the framework of
the Constitution and national sovereignty as well as territorial integrity
of the Republic of the Philippines.
And Number 2, That any power delegated to the Bangsamoro
government shall be subject to the provisions of the Constitution and
the national laws.
Indeed the limitation that anything Congress does
in creating or granting powers to autonomous regions must be subject

to the Constitution and the national laws and that is clear for anyone
not to hear or not to see.
Otherwise if Congress can ignore such
limitations by simply declaring that the political entity it creates is

distinct from other regions and other local governments and therefore,
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you cannot compare them to those in the BBL, then to that extent,
Madam Chairman, Congress is actually rewriting the Constitution.
Now let me be more specific.
I have already discussed the form
of government which I say is contrary to what the Constitution

requires.
A parliamentary system is being prescribed in the BBL
contrary to the claim/mandate of the Constitution that government for

the autonomous regions must bear a presidential form of government,
in effect, by requiring that the Executive Department and the National
Assembly should be separate and elected and representative of the
constituent units.
So Ill not dwell anything more on that.
Number 2, you have here a definition of who are Bangasamoros.

It sounds like the definition of who are citizens of the Philippines. By
defining of who are to be considered Bangsamoros, the BBL, in effect,
gives the Bangsamoro parliament the power to pass a law such as the
Electoral Code, which it is authorized to pass; limiting suffrage and
membership in the Bangsamoro government to the Bangsamoro
people, thereby denying the rights and privileges of national citizenship
as guaranteed in the Constitution to others.
The result would be, non-
Bangsamoros, although Filipino citizens and residents of the region for

a requisite period, can be disqualified from election to public offices in
the provinces, cities, municipalities, barangays and other areas in the
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Bangsamoro territory.
This is because the definition of the bill of who
are considered Bangsamoros perform the same function that the

definition of who are citizens of a nation or a state, thus in a national
constitution, namely to screen out outsiders from certain privileges of
national life.
Powers of government.
As Justice Feliciano noted, there is a
lopsided division of powers between the national government and the

Bangsamoro. Only eight reserve powers to the national government,
48 exclusive powers to the Bangsamoro. What results from this is that
the powers of the national government are limited to those that are
called reserve and there are very few of them.
powers of government are given to the Bangsamoro.
The rest of the

So that instead
of possessing the residual powers after giving some to the Bangsamoro

government, the BBL reverses that and says that whatever has not
been given to the national government and there are only eight or nine
powers given to the national government, the balance, the rest of the
powers of sovereignty should be given to the Bangsamoro, with certain
powers in between called concurrent powers shared by the two
governments. Now thats a dangerous tinkering with the allocation of
powers between national and local government, Madam Chairman.
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Local governments are simply agencies of governmental powers.

Of course, theyve been granted autonomy through the years,
culminating in the recognition of autonomous regions because of the
differences in their history, their culture, their social and economic
structures, but to also recognize that they have to be respected with
respect
to
their
political
structures,
would
be
diminishing
the
sovereignty of the Philippines as a state.

I do not speak of the sovereignty of government alone or of the
sovereignty of the people.
Sovereignty is a whole, absolute power.
And under the Constitution, while it resides in the people as a whole,

all the Filipinos, the exercise of that is mostly granted to the
government, except in elections and amendments of the Constitution.
Now, Madam Chair, may I take a few more minutes, Madam
Chair, to round out?
Of
course.
MR. MENDOZA.
The problem is, some of these powers that
the BBL proposes to give the Bangsamoro government are not

legislative but constituent powers. Powers to amend the Constitution.
But Article X, Section 20, authorizing Congress to delegate
powers to the autonomous governments, is very clear. Only legislative
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powers--thats very clear in Section 20, Madam Chairman.
And, of
course, what can Congress delegate? Congress can delegate only the
powers granted to it by the Constitution and they are mostly
legislative.
Those are the powers that can be granted, the only
powers that can be granted by Congress to the Bangsamoro. But the

proposed BBL grants them more than this.
In the words of the 2008 MOA-AD decision, BBL is a state in all
but its form. It possesses a territory zealously defined and declared to
be the birthright of the Bangsamoro people as defined in the
Bangsamoro.
cts
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MR. MENDOZA.
as defined in the Bangsamoro.
The people who are going to be occupying that territory,

constituting
that
territory
are
defined
and
they
are
called
Bangsamoro. It has a government, parliamentary in form and

possessing more powers with respect to affairs of that region than the
national government. It even has limited powers over foreign relations.
It can contract loans. It can trade with ASEAN. It can receive donations
from foreign sources. And we know, Madam Chairman, that loans carry
with them certain conditionalities.
So, what are these? These are attributes of a State. What is
simply lacking is or probably more powers over foreign affairs,
otherwise it is a State. Add to this, the declaration that the people
have the right of self-determination. Well, as used in the United
Nations charters and other documents of the United Nations, selfdetermination does not mean external self-determination. It has been
recognized to be cabined and limited by a respect for the existing
government and has been limited to autonomy with respect to the
local matters but never external powers that would lead to secession.
Now, it is said that the President, just the same, exercises
general supervision over the autonomous government. That is what
the Constitution provides but in the proposed BBL, it is not only
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general supervision, already a very, very watered-down concept, still

qualified by the phrase that the Presidents general supervision shall
be subject to the principle of autonomy, and again, the word
asymmetric relation of the Bangsamoro government to the central
government.
Now, this contrast strikingly late with respect to the supervision
over the Wali. The BBL says the President also has general supervision
over the Wali. But unlike general supervision over the Bangsamoro
government, the Presidents general supervision is unqualified. But, of
course, Madam Chairman, the Wali has no powers, mostly ceremonial
and to dissolve the parliament, thats all. So that supervision there will
probably be meaningless as far as the powers of the national
government are concerned.
Now, all of these powers that I said raised some special concerns
are constitutional problems beyond the power of Congress to exercise.
If Bangsamoro is to be created as the prize for peace in Mindanao, it
must be by the will of the Filipino people as a whole, not solely the will
of the Bansamoro people living in the Bangsamoro territory. And it
must be by constitutional amendment and not by an act of Congress.
Senator Guingona was asking whether the proposed BBL cannot
be considered a proposal to amend the Constitution and this Congress
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sitting as a constituent assembly to propose amendment to the

Constitution and to consider the voice of the people expressed in some
referenda in the provinces as sufficient. The constituent power,
considering the importance of the subject must be exercised strictly in
accordance with the procedure of Article XVII which means that
Congress should sit together as a constituent assembly and make a
proposal.
Madam Chairman, this is too important to be disregarded and
informally considered. We have got to follow the form and the
procedure in Article XVII if we are to pass these features of the bill as
proposals for a constitutional amendment or revision. I think it will be
a revision to be technical. And then submit it to the people in a
plebiscite within a period from 60 to 90 days and all that is required in
order to amend or revise the Constitution. Short of that, Madam
Chairman, the BBL cannot be passed by Congress either as a proposal
to amend the Constitution.
It is noteworthy, Madam Chairman, that in the framework
agreement between the peace panels of the Philippine government and
the MILF, the creation of a Transition Commission was provided for,
the thrust of which was to draft a basic law and to work on proposals
to
amend
the
Constitution
for
the
purpose
of
accommodating
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entrenching in the Constitution the agreement of the parties whenever

necessary without derogating from any prior peace agreement.
However, only the draft Bangsamoro Basic Agreement was submitted
by the Transition Commission. Why no proposals for constitutional
amendments were also prepared has not been explained. But whatever
may be the reason for the absence of such proposals, implicit in the
assignment of the Transition Commission to draft such amendments is
an acknowledgement by the parties to the comprehensive agreement
that the essential provisions of the agreements which were to be
embodied in the basic law were incompatible with the provisions of the
Constitution, hence, the need to amend the Constitution to obviate the
constitutional objections before the basic law may be considered.
Thank you, Madam Chairman.
Thank
you very much, Justice Mendoza.

Now, are there any questions? Otherwise, with deep gratitude to
all who came today to constitute our resource paneloh, yes,
Professor Ferrer.
MS. CORONEL-FERRER.
With your indulgence, Madam Chair,
may I just make some statements of facts with regard to what former
Justice Mendoza has said today?
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THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). All right.

Its not going to be very lengthy?
MS. CORONEL-FERRER.
No, just some kind of factual
statements.
Please
proceed.
MS. CORONEL-FERRER. On the matter of residual powers, it is
not the case that the draft law says that the residual powers now
belong to the Bangsamoro government. There is nothing in the draft
law that transfers the residual powers provided for in the Constitution
specifically given to the central government. And I think that is a very
important qualification because it implies that the /rommel
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1
MS. CORONEL-FERRER.
because it implies that the listing of
reserved powers is incomplete in itself. It is not the totality of all the

powers that are exercised by the central government and, certainly,
does not even include the powers of Congress, the Supreme Court and
all the other Constitutional bodies. Thats just a factual statement.
On the statement of the Bangsamoro identity being equivalent to
citizenship, we beg to disagree on that matter. Each one of us has our
own identities based on ethnicity or maybe even religion but it does
not mean that identity is equivalent to citizenship. What is provided
for in the Bangsamoro basic law is acknowledgement of a right to a
certain identity in the same way that we take as a matter of, you
know, ordinariness that we may be Ilocanos and we may be
Kapampangans but we are all Filipino citizens.
On the matter of legislative powers as the only ones that are
being granted to the autonomous region, it is the case, Your Honoras
far as I understand, legislative powers is precisely the power to
legislate, meaning, that as you legislate, you can actually create offices
that you can define functions and responsibilities and all the other
elements that would be needed to exercise proper jurisdiction in
accordance with the powers that are provided in the law.
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Therefore, legislative powers are not in themselves, nor for

themselves, but they are precisely there to be able to exercise all the
other relevant powers that are befitting an autonomous region.
That is all, Madam Chair.
Thank
you.
These clarifications, as rebuttal, are well-taken.
We request, Messrs. Gascon, Azcuna and Wadi to come next
Monday, February 2, also at 10 oclock in these premises so we can
continue our hearing.
Thank you very much. This meeting is adjourned.
[THE HEARING WAS ADJOURNED AT 12:06 P.M.]/meln
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BBL IN SENATE - Hearing On Constitutional Issues, Jan 26, 2015

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Republic of the Philippines

CONGRESS OF THE PHILIPPINES

Monday, January 26, 2015

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

Constitutional Issues of Senate Bill No.

- Retired Associate Justice,

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON

Hon. Adolfo Azcuna

- Retired Associate Justice,

- Legislative Committee Secretary

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON

Ms. Avigail G. Andaya

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

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

AT 10:03 A.M., HON. MIRIAM DEFENSOR

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO).

come to order. Please turn off you cell phones.

So this is a super exceptional

The two other committees are: the

major committee, the Committee on Local Government headed by

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

of our country called Mindanao?

In the present hearing, we have

The first topic is legislation

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

We are happy to acknowledge the appearance of the Chair of the

Again, this is also notable

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

THE CHAIRMAN (SEN. MARCOS).

Thank you, Madam Chair,

consequences that an ordinary bill process will not do.

should undergo the process of constitutional amendment or revision.

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE

Thats what we mean.

And thats what I think what the

proponents mean when they speak of an asymmetrical relationship.

It bears further examination

because, basically, this entire report about constitutionality will revolve

local autonomy for national government possesses national powers and

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Will the international community accept this kind of an

arrangement which might be domestically acceptable but might not be

The first topic is: Can we just pass a bill, this

Senate bill, as if it were an ordinary law or do we have to go through

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the process of constitutional amendment and revision which will

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...Secretary Teresita Quintos-Deles, the Presidential Adviser on the

conceivably, the most prominent Filipino practicing law in the planet

Good morning, Your Honors, to the

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affected, the general sentiment of hopelessness were our constant

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participative and consultative. Nowhere in the CAB can the term

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constituent political units. That is Section 18, Article X of the

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barangays not just provinces and cities to participate in the plebiscite.

"geographic areas" when it was all but rendered a mere surplusage in

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this chamber, to my chief of staff, Atty. Fatima Panontongan. Will you

Cayetano, and also a former member of the Philippine Senate who

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