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BBL - Agabin and Tan
BBL - Agabin and Tan
BBL - Agabin and Tan
Pacifico A. Agabin**
Oscar Franklin B. Tan**
1
2
INTRODUCTION
Presidential Power and Judicial Review, 86 PHIL. L.J. 523, 535 (2012) (citing Baker v. Carr, 69
U.S. 186 (1962); JOAQUIN BERNAS, S.J., THE 1987 CONSTITUTION OF THE
PHILIPPINES: A COMMENTARY 953-54 (2003 ed.)).
[2015 A LIBERAL INTERPRETATION OF THE BBL 3
6 Oscar Franklin Tan, Commentary: Bangsamoro Bill Can’t Be Analyzed Legally, PHIL.
DAILY INQUIRER, Nov. 7, 2014. The mindset reflected in this introduction was first
articulated in this newspaper column, in Oscar Franklin Tan’s speech at the House of
Representatives Ad Hoc Committee on the Bangsamoro Basic Law’s first hearing on
October 27, 2014, and in Oscar Franklin Tan’s speech at Malacañang Palace on
February 3, 2015 on behalf of The Outstanding Young Men awardees of 2014.
4
There are substantial reasons why the BBL’s critics take restrictive
views and cite important and well-established legal doctrines against
individual BBL provisions. Of all the reasons to refute such criticisms, the
most important is simply that law and legal attitudes change with time. The
atrocious, impertinent proposition of today may well be the hornbook
doctrine of tomorrow. Faced with so momentous a legislative enterprise as
the BBL, one might be prudent to give way to the political experiment
unless one is absolutely sure both of one’s doctrine and that it will resonate
with future generations of Filipinos into eternity. And in gauging whether
one is absolutely sure that a BBL provision contradicts our laws and
Constitution, one must recall that in the United States’ experience, slavery
and racial segregation were but mere decades ago upheld not just as legal
truth by the finest minds of the day, but ordained by God and part of the
laws of nature.
ANALYSIS
The most fundamental critique against the BBL is that Article III
gives the Bangsamoro Entity a distinct territory. Because other provisions
provide for a government, an apparent citizen base in the definition of the
Bangsamoro people, and the ability to enter into certain relationships
abroad, critics argue that the Bangsamoro Entity is given all the requisites
of a state and may thus secede any time.
The lengthier answer is that the BBL clearly does not intend to
imbue the Bangsamoro Entity with statehood and rigid readings should
not force the opposite conclusion. First, all Philippine local government
units have a defined territory. Defining a territory in itself does not turn a
political subdivision into a separate state, and the MOA-AD Decision10
certainly did not make this conclusion. The Bangsamoro Entity does not
claim sovereignty over its defined territory, and Article III, Section 1
explicitly reiterates: “The Bangsamoro territory shall remain a part of the
Philippines.”
9 Carolyn Arguillas, Abp Quevedo to GPH, MILF: “forge ahead with determination”,
explicitly provides that the external defense of the Bangsamoro Entity shall
remain the national government’s responsibility, and there is no separate
armed forces (as opposed to a civilian police force) for the Bangsamoro
Entity. This key detail further undercuts allegations that the Bangsamoro
Entity is one step away from becoming a separate country.
Indeed, the BBL avoids the semantic traps triggered in the MOA-
AD Decision and the Bangsamoro Entity in the BBL is a “political” instead
of “juridical” entity. Someone insisting that the BBL’s asymmetric
relationship and the associative relationship from its predecessor are the
same dogs with different collars might be asked to concede that where an
interpretation that is not unconstitutional is available as a ready alternative
to the unconstitutional interpretation, this should be upheld.
provides only very broad requirements for such autonomous regions, such
as their remaining subject to the President’s general power of supervision
over local governments.15 The Constitution provides that an autonomous
region’s organic act must provide for legislative power over an enumerated
list of fields, but this is flexible because the legislature may add, “Such
other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.”16
15 § 16.
16 § 20.
17 § 18.
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1. The President does not have the power of control but retains
the power of supervision over the Bangsamoro Entity, as
required for an autonomous region in the Constitution;
2. The President and other bodies such as the Judicial and Bar
Council and Commission on Appointments retain their
discretion in appointments whose requirements are specified in
the Constitution, as BBL provisions dealing with such
appointments are interpreted as policy recommendations;
The BBL, therefore, is the big difference between the two peace
agreements; its passage and approval is the suspensive resolutory condition
that would give life to the CAB’s specific terms. It omits, however, the
guarantees of its predecessor and is currently subject to Congress’
judgment.
G. OTHER ANALYSIS
Provision Comment
Article II, Section 2(4). Core The BBL might be further clarified
Territory – The core territory of regarding what “contiguous” will
the Bangsamoro shall be composed mean and what the smallest local
of … all other contiguous areas government unit (municipalities or
where there is resolution of the baranggays, for example) allowed to
local government unit or a petition join the Bangsamoro Entity will be.
of at least ten percent (10%) of the
registered voters in the area asking Further, the BBL might be further
for their inclusion at least two clarified whether sub-units of a
months prior to the conduct of the province may join the Bangsamoro
ratification of the Bangsamoro Entity but remain part of a province
Basic Law and the process of itself not a part of the Bangsamoro
delimitation of the Bangsamoro. Entity, or whether provinces will
have to be redrawn.
include the powers and privileges however, how exactly the CSC and
on civil service matters provided in Bangsamoro Civil Service office will
R.A. No. 9054, and without work together and how the
prejudice to the power, authority, Bangsamoro government’s “primary
and duty of the national Civil disciplinary authority” will function
Service Commission. in practice.
Shari’ah Judicial and Bar Council national Judicial and Bar Council
shall recommend to the Judicial and does not restrict its discretion.
Bar Council applicants for the
position of judges of Shari’ah Note, further, that there is no
District and Circuit Courts in the religious test involved in the
Bangsamoro and the justices of the appointment of Shari’ah judges or
Shari’ah High Court. The Judicial creation of a Shari’ah bar, as non-
and Bar Council shall give utmost Muslims with the requisite
consideration to the Shar’iah knowledge would qualify.
Judicial and Bar Council nominees
in recommending appointees to the
President. The President shall issue
the appointments within ninety (90)
days from the submission by the
Judicial and Bar Council of the list.
Section 15. Defense and Security. The BBL is explicit that the external
- The defense and security of the defense of the Bangsamoro Entity
Bangsamoro shall be the shall remain the national
responsibility of the Central government’s responsibility, and
Government. The Central there is no separate armed forces (as
Government may create a opposed to a civilian police force)
Bangsamoro Command of the for the Bangsamoro Entity. This
Armed Forces of the Philippines for key detail undercuts allegations that
the Bangsamoro, which shall be the Bangsamoro Entity is one step
organized, maintained, and utilized away from becoming a separate
in accordance with national laws. country.
Qualified inhabitants of the
Bangsamoro shall be given
preference for assignments in the
said Bangsamoro Command.
CONCLUSION
- o0o -
College of Law.