EAGLE EYES Dean Tony La Vina

19 May 2015

Ensuring a constitutional BBL

The Ad Hoc Committee led by its brilliant and energetic Chairman, Representative
Rufus Rodrigues of Cagayan de Oro City, votes this week on the draft Bangsamoro
Basic Law (BBL) that will be submitted for debate and voting possibly next in the House
plenary. In my last two columns, I suggested changes to ensure that indigenous
peoples rights are respected in the law to be enacted. That is necessary so that
Lumads will not join a petition against the constitutionality of the BBL, increasing the
chances that the Supreme Court would invalidate such a law.
In any case, regardless of the issue of indigenous peoples rights, the constitutionality of
the BBL will surely be questioned. And as so the Committee and the House votes, they
must have that in mind. My fear is that is mistakes are made and the wrong BBL is
enacted, the Supreme Court will not only invalidate the BBL but also include even the
Comprehensive Agreement on the Bangsamoro. The latter would be so tragic and will
set back peace efforts possible for decades.
I actually agree with the Peace Council led by Chief Justice Hilarion Davide: the BBL in
essence is constitutional as it is simply an implementation of the relevant provisions on
regional autonomy found in Article X of the 1987 Constitution. In a comprehensive and
in-depth analysis my colleague Janice Lee and I undertook (published in full by the
Ateneo de Davao and in installments by Mindanews) when the draft BBL was first filed,
we concluded that the proposed law contained no patently unconstitutional provisions.
In fact, the Bangsamoro that the BBL creates is nothing more than a strengthened
Autonomous Region of Muslim Mindanao, one bestowed with the highest form of
autonomy but certainly not independence nor even the qualities or powers of a
substate. Definitely, Congress has plenary as well as specific powers to enact such a
law.
Section 18, Article X of the 1987 Constitution provides the basis for the enactment of an
organic act for the autonomous region created in Muslim Mindanao, thus this section
provides: The Congress shall enact an organic act for each autonomous region with
the assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multi-sectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family, and property law jurisdiction
consistent with the provisions of this Constitution and national laws. The same section
also provides: The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called for the

purpose, provided that only provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region.
The Constitution also provides that the organic act shall define: (1) the basic structure of
government, consisting of the executive department and legislative assembly; (2)
special courts with personal, family, and property law jurisdiction. Section 20, Article X of
the Constitution provides for the powers that the said legislative assembly may exercise:
(1) Administrative organization;(2) Creation of sources of revenues;(3) Ancestral
domain and natural resources;(4) Personal, family, and property relations;(5) Regional
urban and rural planning development;(6) Economic, social, and tourism development;
(7) Educational policies;(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
As the Supreme Court has noted in the 2004 case of Disomangcop v. DPWH: The
need for regional autonomy is more pressing in the case of the Filipino Muslims and the
Cordillera people who have been fighting for it. Their political struggle highlights their
unique cultures and the unresponsiveness of the unitary system to their aspirations . . .
Perforce, regional autonomy is also a means towards solving existing serious peace
and order problems and secessionist movements. Parenthetically, autonomy,
decentralization and regionalization, in international law, have become politically
acceptable answers to intractable problems of nationalism, separatism, ethnic conflict
and threat of secession.
Consistent with this pronouncement of the Supreme Court, the BBL must conform to,
these boundaries of the 1987 Constitution. It must not create a separate state within the
Philippines nor provide for powers, which are beyond what is granted to autonomous
regions. As for a parliamentary system of government for the Bangsamoro, as long as it
is elective and representative of the constituent political units, such a system at the
regional level can pass constitutional scrutiny even under a presidential system.
While there is no doubt that the Bangsamoro autonomous region can be validly created,
a number of clarifications must be however made to the draft BBL in order to leave no
space for any misinterpretation. In our paper, Atty. Lee and I suggested that Congress
draft and incorporate a section in the law that would provide a definition of such key
terms as asymmetrical relationship, Bangsamoro, and exclusive powers. These
suggested definitions should not alter or diminish the rights granted to the Bangsamoro
under the draft BBL, but simply aim to couch these terms in a language that will leave
no room for misinterpretation as to their constitutional validity. Ina position paper we
submitted to the Ad Hoc Committee of the House of Representatives, we also proposed
to the revisions to certain provisions on natural resources, indigenous peoples rights,
human rights, judicial review and the justice system in order to allay any concerns of
them being beyond the fold of the Constitution.
Our study did point out legal issues related to the core territory of the Bangsamoro and
the plebiscite to be conducted in those areas included. In particular, we are concerned

with the provisions that allow municipalities and barangays to vote for, and become part
of, the Bangsamoro without the participation of the provinces to which they belong may
raise issues about governance and jurisdiction. These issues must be approached
carefully so as not to violate any Constitutional provisions or Supreme Court
pronouncements.
Is it possible to have a BBL that does not violate the 1987 Constitution? With extra
caution and the right crafting, including making sure indigenous peoples are protected; I
think it can be done.
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