bbl in senate| hearing on constitutional issues, feb 2, 2015

Republic of the Philippines CONGRESS OF THE PHILIPPINES

SENA TE Pasay City

COMMITTEE ON LOCAL GOVERNMENT

JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL

AMENDMENTS AND REVISION OF CODES

DATE : Monday, February 2, 2015 TIME : 10:00 a.m. VENUE : Sen. Claro M. Recto and Sen. Jose P. Laurel Rooms 2nd Floor, Senate of the Philippines Financial Center, Roxas Boulevard

Pasay City AGENDA : Constitutional Issues of Senate Bill No.

2408 (Bangsamoro Basic Law)

ATTENDANCE

SENATORS PRESENT:

Hon. Miriam Defensor Santiago Chairperson, Committee on Constitutional Amendments and Revision of Codes

Hon. Teofisto TG L. Guingona III Chairman, Committee on Peace, Unification and Reconciliation

Hon. Ferdinand Bongbong Marcos Jr. Chairman, Committee on Local Government

Hon. Aquilino Koko L. Pimentel III - Vice Chairman, Committees On Peace, Unification and Reconciliation; and Consti- tutional Amendments and Revision of Codes

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Monday, February 2, 2015 Page 2 of 3 GUESTS/RESOURCE PERSONS:

Hon. Artemio V. Panganiban - Retired Chief Justice Supreme Court (SC) Hon. Adolfo S. Azcuna - Retired Associate Justice, SC Hon. Jose Luis Martin Gascon Member, Constitutional Commission of 1986 Dean Julkipli Wadi - UP Institute of Islamic Studies Datu Abul Khayr Alonto - Chair, Moro National Liberation Front (MNLF) Dean Merlin M. Magallona - UP College of Law Hon. Mohagher M. Iqbal - Chair, Bangsamoro Transition Commission Hon. Pablo P. Garcia - Former Deputy Speaker, House of Representatives Atty. Michael Tamayao - Professor, Cagayan State University College of Law And LLM Student, San Beda College Graduate School of Law Fr. Jerome R. Secillano - Executive Secretary Catholic Bishop Conference of the Philippines (CBCP) Episcopal Commission on Public Affairs Atty. Edwin B. Bellen - Deputy Secretary for Legislation, Senate

SENATORS STAFF:

Atty. Fatima Panontongan - O/S Defensor Santiago Atty. Donna Manlangit - O/S Defensor Santiago Ms. Tanya Perez - O/S Defensor Santiago Ms. Chelsea Dauz - O/S Defensor Santiago Ms. Arifah Macawa Jamil - O/S Marcos Atty. Luzviminda Lavarias - O/S Marcos Mr. Julius Palamos - O/S Marcos Atty. Jose Cadiz Jr. - O/S Marcos Atty. Mark Robert Dy - O/S Guingona Ms. Tanya Ramiro - O/S Guingona Atty. Homer Alinsug - O/S Angara Mr. Jess Abalos - O/S Angara

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Monday, February 2, 2015 Page 3 of 3

Atty. Fabs Lapada Jr. - O/S Binay Mr. Ricardo Calimag - O/S Binay Atty. Fritzie Selda - O/S P. Cayetano Ms. Zheanne Aeson Dantis - O/S P. Cayetano

SENATE SECRETARIAT:

Ms. Assumption Ingrid B. Reyes - Legislative Committee Secretary Mr. Elpidio A. Calica, MNSA - Legislative Committee Secretary Ms. Suharni Candao - Legislative Committee Secretary Ms. Eleuteria Mirasol - Legislative Committee Secretary Ms. Susana Grace L. Robles - Legislative Committee

Stenographer, LCSS B Ms. Bathaluman H. Gonzales - - do Ms. Maribel P. Mendoza - - do Mr. Guillermo E. Sapinoso Jr. - - do Ms. Nida A. Mancol - - do Ms. Carolina F. Driz - - do Ms. Mylene Palino - Legislative Committee Clerk Mr. Jimmy Gaviola - - do Mr. Lorenzo C. Barruga - - do Mr. Roland Laureano - Audio Operator Ms. Amity Caragay - Legislative Page, OSAA Ms. Jeanette Padilla - - do Mr. Reggie Mendoza - - do - (For complete list, please see attached Attendance Sheet.)

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-1 February 2, 2015 10:05 a.m. 1

AT 10:05 A.M., HON. MIRIAM DEFENSOR SANTIAGO, CHAIRPERSON OF THE COMMITTEE ON CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES, CALLED THE HEARING TO ORDER.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Please

come to order. Please stand up and we will say a one minute prayer

for our countrymen in the SAF massacre.

Lord, please bless our beloved countrymen who died during the

operations of the police Special Action Force or SAF. Grant them, Lord,

Your divine mercy as you sit in judgment on their immortal souls. And

grant, Lord, comfort to those who are bereaved and most especially to

our country where we shall remember by Your grace that without

justice there can be no peace. Thank you. Amen.

Welcome to the second and the last hearing of the Committee on

Constitutional Amendments. As I have said before, there are three

committees that are assigned to the BBL project. These are your

Committee on Constitutional Amendments, the Committee on Peace,

Unification and Reconciliation chaired by Senator Guingona who is

about to come--whos scheduled to come any time now and that prime

committee, Committee on Local Government is chaired by Senator

Ferdinand Marcos Jr., who is also about to come at any time.

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On this condition, therefore, we shall proceed. We have divided

the BBL into four topics. First topic, we have divided our resource

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

So first we call the affirmative side, then we call the other side and

thus we proceed among the four topics.

Our first topic today as in the first hearing is the topic of

legislation versus charter change. Meaning to say, we ask the question

of our resource panel. Is it sufficient to pass the BBL as an ordinary

piece of legislation or is it necessary to go to the more difficult and

sophisticated means of constitutional amendment or revision?

For this topic we would have wanted first to call former Justice

Adolfo Azcuna for the pro side. And then former Chief Justice Artemio

Panganiban of the Supreme Court for the contra side. But I

understand that Justice Azcuna is not yet here. So well go to the next

pair for this topic. Pro will be taken by Chair Datu Abul Khayr Alonto of

the MNLF. And the contra side will be taken by Dean Merlin Magallona

of the UP College of Law, an internationally recognized expert on

international law.

Where is the Chair Datu Abul Khayr Alonto? Hes not here

either? So what shall we do? Two people who are pro are not yet here

so we will reverse the procedure. We will begin with the contra.

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-1 February 2, 2015 10:05 a.m. 3 Those who think there is merit in the proposal that instead of

undergoing mere or legislative procedure, the BBL should undergo the

procedure for constitutional amendment or revision.

May we please call on former Chief Justice Artemio Panganiban?

MR. PANGANIBAN. Magandang umaga po, Madam Senator,

Chairperson.

Bago po ako magsimula, may I wish you speedy and complete

recovery. Sana po humaba pa ang buhay ninyo. Kailangan po kayo

ng ating bayan.

Second, may I read my letter, Your Honor, in response to your

invitation:

February 1, 2015,

Honorable Miriam Defensor Santiago

Senate of the Philippines, Pasay City

Dear Senator Santiago:

In response to your invitation transmitted to me today by Ms.

Assumption Ingrid B. Reyes via hard and soft copy and by Atty. Fatima

Panongtongan via telephone, I respectfully submit formally my position

paper which was published concurrently as a column in todays issue of

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-1 February 2, 2015 10:05 a.m. 4 the Philippine Daily Inquirer and Inquirer.Net.

I do have a prior appointment tomorrowmeaning todaybut I

will try to excuse myself from it or to cut short my time therein to join

you tomorrow during the hearing you scheduled.

And here is my position paper, Your Honor, entitled How much

do we love peace?

What price peace? blared the Inquirer editorial two days ago

actually three days ago now. I also ask, How much do we love peace

with the MILF? Do we want peace in spite of the recent killing, some

say massacre, of 44 Special Action (SAF) officers while performing

their duties?

Complete peace, assuming it is possible with the MILF, will not

halt continuing armed conflict by our military and police with orphans

like renegade MILF commandos, its breakaways like the Bangsamoro

Islamic Freedom Fighters or BIFF, and its rivals like the Moro National

Liberation Front (MNLF) of Nur Misuari.

In fact, when the government concluded a peace pact with the

MNLF in 1996, the MILF ignored the Misuari-signed agreement and

continued the armed struggle. Do we still want peace with the MILF

despite renewed wars with its orphans, breakaways and rivals?

Do we want peace despite the vehement objections of Christians

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-1 February 2, 2015 10:05 a.m. 5 and minority tribes like the Lumad in the MILF areas? Do we want

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

and other privileges to the minorities in the Cordilleras and other

regions?

Do we want peace so much as to approve in substance if not en

toto the Comprehensive Agreement on the Bangsamoro (CAB) and the

proposed Bangsamoro Basic Law (BBL) despite the not so trivial

constitutional objections of seasoned legislators like Senator Miriam

Defensor Santiago and former Senator Aquilino Pimentel Jr., seasoned

constitutionalists like retired Supreme Court Justices Florentino P.

Feliciano and Vicente V. Mendoza, and law groups like the Philippine

Constitution Association?

Indeed, many are the political, military, social and constitutional

barriers to peace but many and formidable too are the pleas for

support for the CAB and the BBL, notably from President Aquino,

Senate President Franklin M. Drilon, Speaker Feliciano Belmonte Jr.

and the officials of the Autonomous Region of Muslim Mindanao.

Very persuasive also is the consensus of the 14 of the 18

surviving members of the Constitutional Commission. The other four

survivors are, bedridden or could not be reached while the rest of the

original 48 drafters have died, but pleading. And I quote them, Let us

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-1 February 2, 2015 10:05 a.m. 6 set aside parties and politics and stop the urge to exhibit our ability to

find nuisances of legalism that can delay, or worse, derail the process,

feeding on the cynism and playing on the fears in the national psyche

that are more reflex reaction than reasoned response.

The esteemed constitution drafters, who include a retired chief

justice, Hilario G. Davide Jr., and a retired associate justice, Adolfo S.

Azcuna, assure us that the Bangsamoro is about the development of

people, not about the constitutionality of words. Hence, the public

conversation should not be about a semantics but about peopletheir

needs, their aspirations, their choicesand about empowering them

with the environment and the institutional framework for social justice.

I would like to join the government/sglr

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 1 MR. PANGANIBAN. I would like to join the government and

the constitutional commissioners in their impassioned plea for peace

and prosperity. However, I cannot ignore the formidable legal

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

remembering that the earlier attempt at peace with the MILF, the

Memorandum of Agreement on the Ancestral Domains (MOA-AD)

drawn in 2008 by the administration of then President Gloria

Macapagal-Arroyo, was scuttled by the Supreme Court and resulted in

a fiercer war.

That landmark case, North Cotabato versus Government of the

Philippines, promulgated on October 14, 2008, taught us that the

bottom line in all peace negotiations and agreement is strict

adherence to the Constitution. Despite lingual embellishments, the

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

MOA-AD spoke of associative while the CAB provided for

asymmetrical relation between the national or central government

and the Bangsamoro but their bottom meanings are the same.

These quoted words are not defined in familiar constitutional

language but should the critics prove to be right and the Supreme

Court debunks the CAB and the BBL in whole or in part, the result

could be worsefighting, division and regression.

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 2 I believe that peace is too monumental to be left to chance and

to differing constitutional perceptions and opinions. I think that

Congress should treat the constitutionally objectionable portions of the

BBL as amendments to the Constitution by passing them upon a vote

of three-fourths of all its members, pursuant to Article XVII of the

Constitution and subjecting them to a plebiscite by all the voters in the

country, not just in the affected areas in Mindanao. How this can be

done speedily deserves another column or position.

In this manner, all constitutional pitfalls which I respectfully

think are real and ominous would be avoided and all political, social,

economic and historical issues settled directly by our people. Truly,

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

that, in the national conversation that should no longer be on

semantics or legalism but on what is best for our entire nation.

If we truly love peace, then we should all be prepared to pay its

price and to change massivelyyes, massivelyour political, social

and governmental structures and mindsets by amending the

Constitution forthrightly and asking all our people, not just those in the

Autonomous Region of Mindanao, to join in a national debate and to

decide this great milestone in a nationwide plebiscite.

Respectfully submitted, Artemio V. Panganiban.

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 3 Thank you, Your Honor.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Thank

you very much.

First of all, I place you on guard that we are being broadcast live

by certain television stations.

Thank you very much, former Supreme Court Chief Justice

Artemio Panganiban, for taking the contra side on our topic of whether

the BBL should pass as an ordinary law or should be promulgated after

the intricate procedures prescribed for charter amendment or revision.

So to present the other side, meaning to say, the pro side, let

me call former Supreme Court Justice Adolfo Azcuna, now Chancellor

of the Philippine Judicial Academy and a former member of the 1986

Constitutional Commission.

MR. PANGANIBAN. Your Honor, can I just clarify that my

position is not that we first pass the law or we first amend the

Constitution. My position is that this can be done simultaneously by

Congress acting separately as a lawmaking body and as a constituent

assembly pursuant to the Constitution in order to speedily do this.

Thank you, Your Honor.


you very much for that addendum.

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 4 In effect, it presents a compromise with respect to the procedure

to be followed.

Justice Azcuna, please.

MR. AZCUNA. Thank you very much, Madam Chair.

Id like to apologize for being late.

My submission, Madam Chair, is that of my colleagues and the

framers of the Constitutional Commission. We have taken the stand

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

the autonomous region that is mandated under the Constitution

precisely because the Constitution has already mandated it.

It is very clear from Article X of the Philippine Constitution that

there shall be created this Autonomous Region in Muslim Mindanao.

The only question really is whether the proposed legislation is within

the framework of that provision of the Constitution on the Autonomous

Region in Muslim Mindanao. One of the objections presented against it

is because under the BBL, the form of government is ministerial and,

therefore, it goes against the Constitution because under the

Constitution, our form of government is presidential.

I respectfully submit, Madam Chair, that this is not a correct

argument because to start with, the present Constitution of the

Philippines is not strictly presidential in form. There are many features

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 5 of the parliamentary form of government that have been incorporated

in our system, including the question hour, including party-list

representation and many other features like recall. The framers of the

Constitution saw wisdom in having a mixed form of government where

you have features of the parliamentary system incorporated in our

structure of government.

Secondly, Madam Chair, what the Constitution requires for the

form of government in the autonomous region is simply that it should

be elective and representative of the constituent political units. A

parliamentary system will fulfill this minimal requirement. Under our

Constitution, what is, therefore, required of the autonomous region is

that it be representative and democratic. And under the BBL, the form

of government, although ministerial, is also going to be representative

and democratic.

Furthermore, Madam Chair, the practice of mixing the legislative

and the executive in our local governments is not new. In our local

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

have the executive in the provincial levela governor and a vice

governor participating in the parliamentary legislative body of the

province which is the provincial board.

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-1 February 2, 2015 10:15 a.m. 6 In the City of Manila, I understand, the vice mayor presides over

the council of the city. So it is not really an oddity but in fact, a

common occurrence in our country today to have this kind of

government where you have the executive and the legislative working

together.

It has also been said that the features of the autonomous region

is unconstitutional because it grants a definite territory to the

autonomous region. And since territory is an essential element of a

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

is to recognize it as a separate state.

I respectfully submit, Madam Chair, that that is a flawed

argument. The essential requisites of a sovereign state are territory,

people, government and sovereignty or independence. It is not

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

must have independence. An independence is definitely not granted to

the autonomous region in this proposed setup. Therefore, even if they

will have people, they have territory, they have government but

absent independence, they cannot be a sovereign state.

Furthermore, Madam Chair, the territorybrhg

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-1 February 2, 2015 10:25 a.m. 1

MR. AZCUNA. Furthermore, Madam Chair, the territory

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

Philippine territory. So it is not a separate territory taken out of the

Philippine territory but it is just delineated for purposes of governance

but still forms part of Philippine territory.

There are other features that are admittedly objectionable from

the viewpoint of the Constitution such as the police, for instance.

Under the Constitution, there can only be one police force, this is the

Natividad provision, authored by the late Teodulo Natividad and passed

without amendment that there shall be only one police force in the

whole country, civilian in character, national in scope.

I pointed this out to the Philippine panel of negotiators and they

assured me that this will be observed. And if it is not, it is up to

Congress to make sure that all these features are aligned with the

Constitutiona separate COA, separate Civil Service, separate police

force must not be allowed to be really separated from our

constitutional bodies because the Constitution does not allow it. So

the objectionable features can be remedied by Congress, the essential

feature which is an autonomous region that is part of social justice and

development of peoples can be retained.

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

would be granting the autonomous region autonomy on matters of

education. But, Madam Chair, educational policy is specifically granted

to the autonomous region under the Constitution, Section 20 of Article

X states educational policies, subsection seven, as among those

granted to the autonomous region to legislate over.

Another objection was that the enumeration of powers given to

the autonomous region was too much58 as against eight. But it is

not the number of the powers but the nature of the powers, the nature

reserved for the national government are precisely those of an

independent state and that is not granted to this autonomous region.

Furthermore, there was an error on the part of one of the

speakers against who said that under the proposal, the visible powers,

the powers neither granted nor reserved are given to the autonomous

region. That is wrong, Madam Chair. The residual powers are retained

by the national government. That is according to the Constitution itself

and that cannot be violated by the BBL. I dont think the BBL has a

provision to that effect either. So you have powers that are reserved,

retained by the national government, powers that are shared by both,

powers that are exclusive to the autonomous region and any other

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-1 February 2, 2015 10:25 a.m. 3 power, not mentioned is a residual power and is with the national

government.

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

the Constitution. The MOA-AD that was invalidated by the Supreme

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

defects. One of them was that there was failure of consultation.

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

government. That has been remedied in the present setup, there had

been numerous consultations done on this proposed autonomous

region.

Another feature was the absence of mention of the Constitution.

Now, it is very clear that this exercise is and must be in consonance

with the Philippine Constitution. So this, I submit, Madam Chair, our

big differences between the MOA-AD that was invalidated by the

Supreme Court and the present proposal. I respectfully reiterate the

paper that our colleague submitted, Madam Chair, supporting the

Bangsamoro proposal.

Thank you, Madam Chair.


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

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One of our staff will come around to every resource person and

collect the statement delivered, if it is in acceptable form this morning.

So kindly turn over your statements. They will help me to write my

committee report which I will submit to the Committee on Local

Government, the prime committee.

So important is the topic of whether BBL should pass as a mere

piece of legislation in the ordinary procedure or should pass the more

sophisticated procedure of charter amendment that we have not one

but two pairs of debaters. And as usual with a debate, we will call on

the affirmative first and then the negative side. The affirmative side

may we call on him now will be taken by Chair Datu Abul Khayr Alonto

of the MNLF, Moro National Liberation Front.

Please proceed.

MR. ALONTO. In the name of Allah, the most gracious, the

most merciful.

The Honorable Chair, Senator Miriam Defensor Santiago, may

the peace and blessings of Allah Subhanahu Wa Taala be with you all.

Good morning.

Our proposition is for the immediate legislation of the

Bangsamoro Basic Law. This position is without prejudice to my 43

years stand on federalism. In Allahs right time, together with the

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-1 February 2, 2015 10:25 a.m. 5 leaders of Mindanao, Visayas, and Luzon, and other advocates of

charter changeInsha Allah, we shall come, to the Philippine Congress

to call for a constitutional convention but not today, Madam Chair.

For the temper of time demands the immediate passage of this

Bangsamoro Basic Law or the BBL. It is of historical necessity that the

Philippine Congress hastens the legislation of the BBL. We ask the

honorable members of the two Houses of the Philippine Congress to

enact a stronger BBL, not an emasculated or mutilated BBL which

would run contrary to the very purpose of the law, that of correcting a

social and historical injustice to the Bangsamoro people. May I

reiterate once again that a stronger Bangsamoro government is the

key to the adoption of a federal parliamentary form of government in

this country. We strongly move for the legislation of BBL.

Madam Chair, from the American colonial rule to the Philippine

Commonwealth and to date the Philippine government, the

Bangsamoro people have embraced democracy, but democracy has not

provided security neither has it addressed the long line of injustices

committed against the Bangsamoro people in the name of law. We still

want democracy to rule, but the kind of democracy we speak of is one

that can ensure a safe and sane future for the children of Mindanao:

Muslims, Christians, the other cultural communities and all the other

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-1 February 2, 2015 10:25 a.m. 6 stakeholders in Mindanao. Democracy, Madam Chair, in Islam is

simply means the rule of law. We want this BBL to govern us.

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

my answer would be a resounding Yes! But this humble

representation respectfully defers to the better knowledge of the legal

experts the issue on the constitutionality of the BBL, and perhaps an

excellent reference will be the position paper submitted by the framers

of the 1987 Constitution. I am not a lawyer, Madam Chair. I did not

finish my law, but the law almost finished me. Nevertheless, my son

/mpm

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso IV-1 February 2, 2015 10:35 a.m. 1

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

prosecutor of the Department of Justice and a law professor.

The principle of common good and the principle of subsidiary are

the two principles which convinced the 1987 Constitution framers to

grant local autonomy to the Autonomous Region of Muslim Mindanao.

These two principles enshrined in the 1987 Philippine Constitution can

very well support BBL and, further, BBL can take its refuge, Madam

Chair, in Article II, Section 2 of the 1987 Philippine Constitution.

In the last few days, at the wake of the tragic Mamasapano

incident in Maguindanao, we felt once more the great divide of hatred

and prejudices rise between our peoples. Those who call for war and

the suspension of the peace process are people, who even in their

nightmares, would never know the horrors and cruelties of war that

the people of Mindanao, Muslims and Christians alike have been

subjected to in all these decades, neither will they know the pain of

losing loved ones to war. Barely a few weeks ago, Madam Chair, a

pious man, His Holiness Pope Francis came to this country bringing the

message of mercy and compassion, yet so soon has that been

forgotten.

The tragic Mamasapano incident is not a simple police matter nor

is it merely an issue of insurgency. What we have is a war, a real war

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso IV-1 February 2, 2015 10:35 a.m. 2 that necessitated the assistance of the international community for us

to reach this point. The BBL is anchored on the Framework Agreement

on the Bangsamoro and the Comprehensive Agreement on the

Bangsamoro, agreements recognized and witnessed by the civilized

countries of the world. The CAB is a continuum of the 1996 GRP-MNLF

Peace Accord and the 1976 RP-MNLF Tripoli Agreement anchored on

Resolution No. 18 of the 1974 Kuala Lumpur Summit of Heads of State

of the Organization of Islamic Cooperation which obliged the Philippine

government to negotiate with the good Muslim leadership of southern

Philippines, including the Moro National Liberation Front.

Amidst their prevailing peril and through the backdoor of

Mindanao, it was this representation, Madam Chair, along with Santi

Dangcal, Kim Riga, our martyred brother Ating Abdullah, all of the

FF90, and my first cousin Robert Maulana Marohombsar Alonto, who is

now with the MNLF panel cum Bangsamoro Transition Commission,

who delivered the manifesto signed by 20,000 delegates of the Moro

Liberation Movement of the 500,000 card-carrying members of the

Ansar-el-Islam of the Philippines which prompted the adoption of

Resolution No. 18 by the heads of states of the 52 member states of

the OIC, now 57.

23


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

have the character of an international treaty duly recognized by the

civilized world and accepted as part of the law of the land. As a

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

use of the word massacre in describing the incident in Mamasapano,

Maguindanao. Those 44 PNP-SAF commandos who were part of a 392

fully geared combatants that entered the MILF base command

alongside with their bounty hunter informants and civilian militia

guides as well as of those 17 MILF Mujaheedin were killed all in the line

of duty. The MILF defended their community and the PNP-SAF

commandos were under order from a superior and both sides fought

valiantly to their last breath believing they were doing their duty to

their nation and country. Saying it was a massacre is doing a great

disservice to those men of valor, Madam Chair.

The tragic Mamasapano incident prompted us to issue a

statement at the first hour asking for a joint government-MILF full

investigation of the military misencounter. While we share the pain of

the families of those fallen warriors on both sides, this Honorable

Chamber cannot renege on the BBL and more so cannot support the

resumption of war in Mindanao. The incident should all the more

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

24

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso IV-1 February 2, 2015 10:35 a.m. 4 fragmentation of this country and the outbreak of a fratricidal war of

attrition between our two people.

However, if the institutionalized, well-oiled machinery of hatred

in this country wish to insist on the word massacre, then let me

breeze through the painful events that imprinted in our minds and

hearts, Madam Chair.

In 1971, there were the Manalili Mosque Massacre with 74 bodies

gunned down and buried in a common grave inside a mosque in

Cotabato; the Tacub Massacre where two truckloads of Moro voters for

the election of 1971 were hacked beyond recognition; the Dilabayen

Massacre in Kauswagan, Lanao del Norte, where an entire village were

either gunned down or hacked to death and their women raped which

some having their breasts mutilated. One lone survivor, Madam Chair,

of his family, a young boy of four years, who I sneaked out of this

country and who was presented before the OIC is still alive living in a

foreign land with one ear, one arm and a battered soul.

Moreover, there were those series of massacres in Zamboanga

Peninsula and Palawan. These were massacres, honorable ladies and

gentlemen, Honorable Madam Chair, where unarmed men, women and

children were gunned down and mutilated and definitely were not in

full combat gear. In 1979, there was the Calookan-Marawi City

25

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso IV-1 February 2, 2015 10:35 a.m. 5 Massacre of a family of nine members which included an elderly couple

and a pregnant woman, killed and hacked to death with her fetus

extracted out of here womb and bashed with the butt of a gun.

In all these, the people were unarmed and helpless. That is the

essence of a massacre, Madam Chair, not when they are in full combat

gears and with high caliber artillery.

The Mamasapano tragic incident must not stop this BBL. The

Mamasapano incident, quoting the good general, the Secretary of

Defense Gazmin, it was a military misencounter.


stop that cellphone, please. It is very rude and very abstruse not to

remember that this is a solemn proceeding in the Philippine Senate.

Stop it immediately, on pain of contempt.

I am sorry, please proceed.

MR. ALONTO. All these massacres were filed in the courts of

law with the culprits identified

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Excuse

me.

Will you stop talking on your cellphone, please. Out. Page, take

that lady out.

I am sorry again. Please proceed.

26


MR. ALONTO. Thank you, Madam Chair.

All these massacres, Madam Chair, were filed in the courts of law

with the culprits identified, but to date, no single perpetrator or

perpetrators have answered to any one of those heinous crimes.

In the all-out war, state-sponsored violence perpetrated against

the Bangsamoro people called out by the Estrada and the Arroyo

administrations, there were no legal questions raised. Former Vice

President and Senator Honorable Teofisto Guingona Jr. conducted an

investigation that came out with the report that under the all-out war

of President Estrada, a total of 800,000 civilians were displaced and

more than 270,000 under the all-out war called out by Gloria

Macapagal Arroyo.

As of date, more than 200,000 lives have perished in this

Mindanao war. More than two million/jun

27

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Mancol V-1 February 2, 2015 10:45 a.m. 1

MR. ALONTO. than two million rendered homeless and

destitute, and more than three million of our people are scattered as

refugees all over the Philippines, in Malaysia, in Middle East and

elsewhere. These are all results of the Mindanao war.

At this juncture, kindly, Madam Chair, indulge me in my

narration of events.

In 1966, I organized the Lam Alif, the Muslim youth movement

which became the rallying flag of protest movement that ensued after

the 1968 Jabiddah Massacre. I recruited some members along with

others, youth leaders which included Nur Misuari who I dissuaded away

from the Kabataang Makabayan, the youth wing of the Communist

Party of the Philippines that he founded with Jose Maria Sison.

Together with these men, we formed the first 90 men of the

organization and I proposed to be named Moro National Liberation

Front and moved to call our military arm the Bangsamoro Army.

We led the defense of the Bangsamoro people as the highest

MNLF officer in this country during the war of the 70s and along with

my comrades, some of them are here with us today, Madam Chair, we

stayed put and gave our best to the defense of Mindanao as it raged in

the fire of war.

28


In 1974, I was tasked to bring before the OIC the manifesto that

gave birth to the 1976 RP-MNLF Tripoli Agreement. Unfortunately,

after the signing, Nur Misuari refused to come home. And in spite of

my letters to him, he refused to resolve the conflict he had with our

good brother, Hashim Salamat, that led to the split and the creation of

the Moro Islamic Liberation Front in 1977.

In the spirit of the Tripoli Agreement, I joined the way of peace

and worked for the implementation of the Tripoli Agreement in spirit

and letter in 1979. President Ferdinand Edralin Marcos issued the

Presidential Decree 1618 to serve as the implementing mechanism of

the Tripoli Agreement and the autonomous governments of Region IX

and XII constituting 10 provinces and six cities out of 13 provinces

agreed upon in the Tripoli Agreement.

I was elected interim head of the Regional Autonomous

Government and subsequently as the first Speaker of the Regional

Legislative Assembly, elected in absentia, Madam Chair. Our Assembly

proved that Muslims and Christians can govern together in Mindanao.

For in that first assembly were distinguished Christian leaders like

Governor Cerilles of Zamboanga del Sur; the late Vice Governor Fred

Tamula of Lanao del Norte; RTC Judge Frank Rabang of North

Cotabato; Assemblyman Juan Sibug of the Moro Highlanders

29


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

deputy.

It is of note that the alleged secretary general of the ILAGAS who

later became mayor of Pigkauwayan, Tito Galbo, I appointed as my

executive secretary. But after ensuring that all programs were

initiated and made for implementation, I submitted my irrevocable

resignation to the President of the Republic.

I say all these not to give importance to my person but to make

everyone understand that we have the personal knowledge of not just

the history but the factors that led to the non-implementation of the

mechanisms of the Tripoli Agreement.

There were no safety measures provided for the MNLF to lead

the implementation of autonomy as authority was usurped and

hijacked from the revolutionary leaders by the traditional politicians

and vested interest groups. The autonomy granted then can be

likened to a car without a fuel, battery and spare tires. As such, in the

enactment of the BBL, we exhort this august chamber to grant the

Bangsamoro a law that has the full mechanism of autonomy so that

the failures of the past need not be repeated.

We commend the sincere and courageous efforts that the MILF

and the GPH Panel manifested in signing the decommissioning

30


agreement last Friday, which shows the confidence of both sides on the

peace process. It is now in the hands of the Philippine Congress to

bring the agreement to its culmination. You have the historical

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

historical injustices done to the Moro-Malay Muslims of this

archipelago. History is inextricable from understanding this situation

we are in today.

When the Spaniards came to our islands and saw the Moro-Malay

Muslims of this archipelago having the same religion as the Muslim

Moors, their colonial masters for 800 years from 1711 to 1492, they

called the Malay-Muslims Moros, transferring their deep hatred and

vengeful spirit for their colonial masters to these native inhabitants.

For 333 years, Madam Chair, they inculcated that same deep

hatred and vengeful spirits to those they were able to colonize: the

Indios who are now the Filipinos.

Then the Americans committed an infamy of history


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

the resource panel. Can you please come to the conclusion of your

statement, if possible?

31


MR. ALONTO. I am sorry, Madam Chair, but what I am

briefing here is history because I dont think

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

MR. ALONTO. For those who are opposed to this BBL, we

understand without taking into account the historical past that made

us what we are here today.

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

Please proceed.

MR. ALONTO. Thank you, Madam Chair.

Then as I have said, the Americans committed an infamy of

history by agreeing to the inclusion of Mindanao and Sulu to the

Philippines in the Treaty of Paris. The Americans signed the Bates

Treaty in August 1899 with the Sulu Sultanate, a maneuver to lull the

Moros while they pacified Luzon and Visayas areas, then they came

back, they turned upside down our homeland. The American military

campaign in the Moroland claimed 20,000 lives. Then the Public Land

Act of 1909 reduced the land of every Moro family to just 10 hectares

while any individual settler can own from 24 hectares up which meant

a family of five can own 120 hectares or even more. The tragedy of it

all, honorable chair and membersI am happy the good Chair of the

Peace and Reconciliation Committee is here with you, Madam Chair,

32


and the good Senator Pimentelis that the Moros did not even know

their lands had been titled nor limited.

Furthermore, in 1926, the American Colonial Government

abolished the legitimate sultanates and principalities of our homeland.

Let historical record bear us out that there were three independent

sovereign Sultanate States and four Principalities recognized by the

Empire of China: the Sultanates of Sulu, Maguindanao, and Ramain

MalaaBayabao and its four principalities of Raja-Buayaan, Masiu,

Unayan and Kuta Bato-Tagoloan. Their diplomatic and trade relations

reached its peak under the Ming Dynasty in 1408 to 1440 facilitated by

Admiral Zheng Ho, called by the Moro monarchs as their brother

Muslim, Sampaw.

We are not barbarians or beggars, Madam Chair, and honorable

members of this august chamber. Our people have a history of more

than 2,000 documented years and according to the tarsilas, the oral

tradition, of the Sultanate of Ramain MalaaBayabao, as far back as

6,000 years. This is the people you now call the Bangsamoro.

In passing the BBL, our history becomes your history and

together we can finally write the history of the people of the

Philippines.

33


The Philippine Congress is in that position as our 1987

Constitution framers declared to be on the cusp of a historic

opportunity to make it happen. But not only do you make that

historic opportunity of ending the Mindanao war, but you also finally

liberate the Filipino nation from the shackles of the cruel colonial past.

That in the passage of the BBL, we will finally accept that we are two

distinct people with two different history but of the same Malay race

sharing one destiny under one Philippine flag and finally a truly free

and united Philippines. Beyond the law, Madam Chair, this BBL is a

noble and sacred covenant of peace with justice between our two

peoples and our Creator.

Honorable Chairs of the three committees, the Bangsamoro Basic

Law is in consonance with our inherent and inalienable right as a

people. The mainstream Moro National Liberation Front and the

Bangsamoro Army Command Staff Conference of Field commanders,

some of whom are here with me now, stand in solidarity with the Moro

Islamic Liberation Front for the immediate passage of the Bangsamoro.

. . (nam)

34

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CFDriz VI-1 February 2, 2015 10:55 a.m. 1

MR. ALONTO. of the Bangsamoro Basic Law.

May the Almighty Allah keep this Honorable Chairperson and

members of the Philippine Congress in excellent health and best of

faith and preserve this country in peace and unity.

Tarimaan niyo a kakasi, sarumbaytanan, sangibo a salamat.

Maraming salamat po, Madam Chair.


you very much, Chair Alonto.

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

Senate Committee on Peace, Unification and Reconciliation, Senator

Teofisto Guingona III, and the prior arrival of Senator Aquilino

Pimentel III, both of whom are from Mindanao area.

We have just heard the pro side. Now, we shall hear the contra

side from former UP College of Law Dean, Merlin Magallona, who is one

of our most respected authorities on International Law, served as

Undersecretary of Justice and has enriched the language of the

International Court of Justice by appearing in pleadings filed before

that court.

Dean Magallona.

MR. MAGALLONA. Honorable Chairs, Honorable Members of

the Senate Committee in joint hearing, with your permission.

35


In this public hearing, we must begin with the fundamental

reality that as a national community, we are governed by the

Constitution and the Constitution is the act of sovereignty of the

people. Thus, the present Constitution proclaims in its Preamble, and I

quote, We, the sovereign Filipino people, do ordain and promulgate

this Constitution.

Likewise, Constitutional change or any amendment or revision of

the Constitution must have ratification of the people in a national

plebiscite as detailed in Article XVII, Section 4 of the Constitution.

Any Constitutional change is invested with a sovereign character

twice, namely: (a) it must be in accordance with the Constitution as

an act of sovereignty of the people.

And (b), in its own prescription, the Constitution mandates that

the constitutional change must have the direct ratification by the

people through a national plebiscite.

On the other hand, radically different is the nature of legislation

which purportedly is attributed to the BBL in the present legislative

proceedings. It consists of the collective acts of the members of

Congress constituted by the Constitution as a process of enacting bills

into laws, their power being derived from the people in representation

and in direct election. The people themselves do not make laws in

36

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CFDriz VI-1 February 2, 2015 10:55 a.m. 3 direct participation. The exercise of the power to legislate is subject to

regulation by the Constitution, particularly in their accountability to the

people.

On the basis of formulation, the Constitution clarifies to us the

distinction between constitutional change and legislation from each

other. Moreover, it identifies through us the corresponding

constitutional provisions which regulate its category. Legislation is

subject to Article VI on Legislative Department and constitutional

change is within the coverage of Article XVII on amendments and

revision. The strict canalization of constitutional regulation for

constitutional change as clearly separated from that of legislation

should serve the purpose of keeping in mind the difference in juridical

nature of its category as well as the legal and practical consequences

in the application of its category. A deviation or violation of the

constitutional regulation--of constitutional system may take the

following form: a bill or legislative proposal which embodies the

constitutional amendment or revision is presented in Congress for

enactment under Article VI of the Constitution in compliance with the

rules of Section 26 of this provision on how a bill becomes law for the

Presidents approval.

37


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

nature of the constitutional change that the bill proposes. In which

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

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

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

a deliberate departure from the Constitution.

On 17 December 2012, the President issued Executive Order No.

120 in which he clearly expressed not the implementation of the

pertinent mandate of the Constitution in regard to the Autonomous

Region of Muslim Mindanao, but instead in the words of the preamble

of his executive order, I quote, The government acknowledges its

commitment to exert all efforts towards realizing the full

implementation of the 2012 framework agreement. The executive

order, appearing as an implementation of the said framework

agreement, in Section 3 (a), provides that BBL with provisions

consistent with 2012 Framework Agreement on the Bangsamoro.

Thus, the President, in his executive order, relates himself to the

pertinence of the Constitution.

Section 3 (b) of the Executive Order provides, as a function of

the Transition Commission that, and I quote, Whenever necessary to

recommend to Congress or the people proposed amendments to the

38

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES CFDriz VI-1 February 2, 2015 10:55 a.m. 5 1987 Constitution. Apparently this means that the President is of the

mind that if there is a conflict between the BBL as implementation of

the Bangsamoro agreement and the Constitution, it is the Constitution

that shall be amended to conform to the BBL.

It is on the foregoing premises that the President, pursuant to

the Bangsamoro agreement, transmitted to Congress the BBL as

urgent bill. In other words, the President intends a constitutional

change. But a change over and above the supremacy of the BBL

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

and Senate Bill 2408. Is the President involved in constitutional

change through his own participation in legislation and thereby

becomes a principal in the confusion on the part of Congress over the

exercise of its power and legislation as against constitutional change.

The government negotiation panel and the whole negotiation

process took place under the regime of the Constitution as the act of

sovereignty of the people. And yet, the framework or comprehensive

agreement is replete with stipulations which are outside the sphere of

compliance in relation or violation of the pertinent mandates of the

Constitution/cfd

39


MR. MAGALLONA. or violation of the pertinent mandates of

the Constitution with respect to the establishment and operation of the

Autonomous Region of Muslim Mindanao. It is never reasonably

arguable to insist that Bangsamoro be governed by principles outside

the Constitution.

Coming back to the conduct of negotiation which produced the

Bangsamoro agreement and its implementing BBL, they had all along

been subject to the Constitution in Article VIII, Section 17 that, and I

quote, All powers, functions and responsibilities not granted by the

Constitution or by law to the autonomous regions shall be vested in the

national government. But right at the start, the peace negotiators on

both sides rejected the powers, functions and responsibilities granted

to autonomous regions as vested by the Constitution in favor of the

national government under the foregoing provision and rejected as

well such powers and functions as the Constitution defines for

autonomous regions.

In place of all these, they created a new political system by

which they conceptualize as asymmetric the relationship of the

national government and the Bangsamoro. They characterized status

quo as unacceptable. Apparently, in particular, the concept of

40

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-2 February 2, 2015 11:05 a.m. 2 autonomous region as characterized by the Constitution.

The BBL itself as a legislative bill or as House Bill No. 4994 or

Senate Bill 2804 aims the reorganization of the powers of government

and of restructuring the relationship of the national government and

what the Constitution intends as an autonomous region. What appears

embodied in the BBL as such, is the construction of a new political

system designed as a legislative proposal. It initiates a major

constitutional change beyond the constitutional competence of

Congress under Article VI of the Constitution.

Under the concept of reserved powers, exclusive powers and

concurrent powers, the BBL is engaged in determining the powers,

functions, jurisdictions, hierarchies and accountability of the

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

government with the local government units and its instrumentalities

under the condition that these are already determined and established

by the Constitution and that, knowingly, they are effecting a

constitutional change.

Under this condition, the BBL is beyond the statutory

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

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

41

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-2 February 2, 2015 11:05 a.m. 3 the BBL is the creation of a political system that has the characteristics

of a state and that it is possessed of exclusive powers having its own

territorial domain, population, government and all integrated to one

another in relative independence of the national government. Thus,

the emergence of a substate within the Philippine state with a

phenomenon of a divided sovereignty. By installing a parliamentary

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

separation of powers together with the established system of checks

and balances which are the foundation principles of the present

constitutional system.

For your consideration, Your Honors, may I submit two papers.

One on legislation and constitutional change and the other, a... paper

for consideration by the Committees on problem areas in the

Bangsamoro Basic Law. Respectfully submitted.

Thank you, Your Honors.

THE CHAIRPERSON (SEN. DEFENSOR SANTIAGO). Yes,

please. That is acceptable.

We have just finished the first topic and it is already 12 oclock.

We have less than an hour for the remaining three topics.

With respect to the first topic, with that profusely, our very

42

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES Sglrobles I-2 February 2, 2015 11:05 a.m. 4 distinguished resource persons whose eminences made this hearing

more than ordinary, if the resource persons have already delivered

their statements so wished, you are excused. But you are, of course,

welcome to stay for further proceedings.

I will now go to the second topic, the presidential form of

government of the national government versus the parliamentary form

of government. And on this topic, the pro side will be taken first by

Chair Mohagher Iqbal of the Bangsamoro Transition Commission.

Sir.

MR. IQBAL. Bismillah ir-rahman ir-rahim. Thank you,

Honorable Chair.

Honorable members of this Senate Committee on Constitutional

Amendments and Revision of Codes, Madam Chair, I consider this

appearance of mine in this hearing as a rare privilege and it is an

honor on my part. Thank you very much, Your Honor.

My subject is about, where are the checks and balances in the

Bangsamoro Basic Law. The core idea of checks and balances is that

no one branch of government should be too powerful that it can get

too far out of control without being put in check by the other branches

of government.

43


The core sentiment is one of distrust. Vast power should not be

left to one entity alone. Checks and balance is a safeguard against

tyranny and abuse of power by one branch of government. Stated

positively, the system of checks and balances makes sure that

government action requires the cooperation and consent of the other

branches of government. In fine, the goal of system of checks and

balances is to ensure that actions of branches of government must

have the consent, whether implied or explicit, of the other branches

of government.

I. Checks and Balances: The Central Government and the

Bangsamoro Government.

First, let me focus our attention on the vertical relationship

between the Central Government and the envisioned Bangsamoro

Government. What mechanisms or design features are in place that

guarantees that the Bangsamoro Governments actions should be with

the cooperation or consent of the Central Government? That the

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

parameters of its agreed goals and policies with the Central

Government? What are the checks to the exercise of powers and

prerogatives of the Bangsamoro?

44


There are at least 20 key provisions that show the extent of

checks and balances:

1. The President of the Philippines has general supervision over

the Bangsamoro. That power of general supervision includes making

sure that the Bangsamoro Government action is in consonance with

the Constitution and Laws (Section 3, Article VI of the BBL);

2. Philippine Congress-Bangsamoro Parliament Forum makes

sure that legislations coming from Congress or the Parliament are not

conflicting but coordinated (Section 8, Article VI);

3. Judicial Power is with the Supreme Court and thus actual

controversies involving actions by the Bangsamoro Government can be

brought to the Supreme Court for final determination, including review

for grave abuse of discretion;

4. Intergovernmental/sglr

45

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 1 MR. IQBAL. 4. Intergovernmental Relations Body is tasked

with the authority to resolve disputes and issues relating to

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

5. Council of leaders composed of the chief minister, provincial

governors, mayors of chartered cities in the Bangsamoro and the

representatives of non-Moro indigenous communities make sure that

the needs of the people are effectively communicated to the

Bangsamoro government (Section 5, Article VI);

6. Bangsamoro police is part of the Philippine National Police

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

and 5, Article XI);

7. The Armed Forces of the Philippines may create a

Bangsamoro Command covered under national laws (Section XV,

Article XI);

8. Commission on Human Rights shall assist, coordinate and

compliment the work of the Bangsamoro Commission on Human Rights

(Section VII, Article IX);

9. The Civil Service Commission shall continue to exercise its

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

10. The Commission on Audit shall continue to have power,

authority and duty to examine, audit and settle all accounts pertaining

46

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 2 to revenues and the use of funds and property in the Bangsamoro. In

addition to this, a Bangsamoro Commission on Audit is created

(Section 2, Article XII);

11. The Commission on Elections shall have a Bangsamoro

Electoral Office which shall perform the functions of the Comelec in the

Bangsamoro. (Section 9, Article VII);

12. The Ombudsman has jurisdiction and authority over public

officers and employees in the Bangsamoro;

13. The Inter-Governmental Fiscal Policy Board addresses the

revenue imbalances and fluctuations in the financial needs and

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

14. Contracting of loans and credits requiring sovereign

guarantee requires the approval of the Bangko Sentral ng Pilipinas

(Section 22, Article XII);

15. Bangsamoro Government shall exercise the power to enter

into economic agreements subject to the power of the central

government over foreign affairs (Section 25, Article XII);

16. Cultural exchange, economic and technical agreements

subject to foreign affairs policies of the central government and only

with the countries where the Philippines has diplomatic relations and

47

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 3 the central government may assist the Bangsamoro Government for

this purpose (Section 26, Article XII);

17. Joint Bodies for Zones of Joint Cooperation composed of the

chief minister, at least one representative of a constituent local

government unit of the Bangsamoro adjacent to the Sulu Sea, at least

one representative of a constituent local government unit of the

Bangsamoro adjacent to the Moro Gulf, the secretary of Environment

and Natural Resources and Agriculture and the secretary of

Transportation and Communication of the central government has

jurisdiction over policies in the Zones of Joint Cooperation (Section 19,

Article XIII);

18. Additional powers over transportation and communications

are subject to the mutual consideration of the DOTC, CAAP, CAB,

MARINA, PPA, LTO, LTFRB, NTC and the Bangsamoro Government

(Section 31, Article XIII);

19. Islamic Banking is the joint responsibility of the BSP, DOF,

NCMF and the Bangsamoro Government (Section 30, Article XIII);

20. Financial and Technical Assistance Agreements covering

mineral resources are approved by the President of the Philippines

(Section 14, Article XIII).

48

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 4 Madam Chair, we now discuss Item No. 2, the Checks and

Balances within the Bangsamoro Government.

1. Philippine Constitution. The Bangsamoro Basic Law is drafted

in consonance with the Constitution and the universally accepted

principles of human rights, liberty, justice, democracy and international

law. This is a foundational principle of the Bangsamoro Basic Law.

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

Constitution applies to the Bangsamoro Government as well. There

should be no doubt about that.

2. Separation of Authorities. The authorities in the Bangsamoro

Government are divided into two branchesthe executive and

legislative.

Executive Authority is exercised by the Cabinet which is headed

by a chief minister (Section 3, Article VII). The chief minister has the

following functions: (a) heads the Bangsamoro Government; (b)

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

(c) formulates Bangsamoro plan of government; (d) issues executive

orders; and (e) represents the Bangsamoro in external affairs (Section

30, Article VII).

Legislative Authority is within the Bangsamoro Parliament

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

49

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 5 are elected by the people through a system of proportional

representation, single member districts and reserved seats.

Parliament has the authority to enact laws on matters that are within

the powers and competencies of the Bangsamoro (Section 2, Article

VII). The laws must promote the general welfare of the Bangsamoro

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

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

VII).

Judicial Authority is not granted the Bangsamoro Government. It

remains with the Supreme Court which is vested by the Philippine

Constitution with judicial power (Article VIII, Section 1, Philippine

Constitution). The Bangsamoro Basic Law, however, envisions the

creation of lower courts under the control and supervision of the

Supreme Court.

That the authorities of the Bangsamoro are divided into two

separate branches means that not one branch can lord it over or

whimsically exercise its powers without the cooperation or consent of

the other. For example, while the chief minister can appoint ministers,

craft the budget or determine priorities, these actions are subject to

approval and funding by Parliament. Parliament will also have

question hours, opposition days, etcetera, and other practices that will

50

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 6 ensure that the Executive is transparent and effective. Members of

Parliament can also issue a vote of no confidence against the

government of the day and dissolve parliament (Section 34, Article

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

the Legislative, can be brought to the Supreme Court for settlement of

actual controversies or when there is grave abuse of discretion. Thus,

the structure of the separation of authorities in the Bangsamoro

guarantees that a system of checks and balances is in place.

3. Wali. The Wali is the titular head of the Bangsamoro and

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

head, the Wali, as the moral guardian of the Bangsamoro people, will

ensure that government power is not abused and that what is right is

pursued. The support of the Bangsamoro people is crucial for the

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

the Wali who formally declares the dissolution of parliament in case

there is a vote of no confidence.

4. Council of Leaders. The Bangsamoro Council of Leaders shall

consist of the chief minister, provincial governors, mayors of chartered

cities and the representatives from non-Moro indigenous communities,

women, settler communities and other sectors (Section 5, Article VI).

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES BRHGonzales II-2 February 2, 2015 11:15 a.m. 7 The Council of Leaders will ensure that Bangsamoro Governments

actions will be in consultation with the local government units.

5. Professional Service Corps. Another mechanism is the

institution and development of a professional civil service corps

(Section 2, Article V). A professional civil service corps that is not

beholden to political patronage is key in providing a check on

government.

And lastly, Madam Chair, Bangsamoro People. Ultimately, the

single, biggest and most effective mechanism for checks and balances

is the support of the Bangsamoro people through the power of the

ballot. If a government fails in bringing in development and peace,

then that government will not be able to continue governing for they

will surely lose in the democratic elections. Democracy is the

mechanism that will make sure that government power is used for

what is good and not for what will bring ruin to the people.

Honorable Chair, thank you very muchbrhg

52


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


you very much, Chair Iqbal.

And now we call on the former House Deputy Speaker of the

House of Representatives Pablo Garcia to give the contra side.

Please.

MR. GARCIA. Thank you, distinguished chairman and members

of the joint committees of the Senate, distinguished resource persons,

ladies and gentlemen.

Id like to begin by stating the inconvenient yet fundamental and

compelling truth. Unless and until the Constitution is amended or

revised by the Filipino people, Congress cannot and should not enact

the proposed Bangsamoro Basic Law.

In other words, for the present and before such amendment or

revision, the Bangsamoro Basic Law is palpably and incorrigibly

unconstitutional. And Im sorry to say, very sorry, to all whom it may

concern, that the filing of this bill in Congress is a needless exercise in

futility.

The constitutional infirmities and transgressions of the

Bangsamoro Basic Law can be classified under two categories: the first

is on the legislative empowerment or capacity and the second is on the

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COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-2 February 2, 2015 11:25 a.m. 2 substantial provisions of the Bangsamoro Basic Law in relation to the

Constitution.

I shall discuss only the first category that is on legislative

empowerment and capacity which I consider under this category the

most, as the most formidable and insurmountable obstacles to the

passage of the Bangsamoro Basic Law. The first obstacle is the total

absence in the Constitution of any express and specific grant to

Congress of the power and authority to create a new and different

territorial and political subdivision or entity other than those authorized

and recognized in Article X, local governments of the Constitution.

Let me explain. The 1987 Constitution has authorized and

recognized only five territorial and political subdivisions of the Republic

of the Philippines. Only five, namely: provinces, cities, municipalities,

barangays and autonomous regions.

Section 1, Article X, Local Governments of the Constitution

provides, Section 1. The territorial and political subdivisions of the

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

barangays. There shall be autonomous regions in Muslim Mindanao

and the Cordilleras as hereinafter provided.

It will be noted, distinguished Honorable Chairman and members

of the Senate, that after the phrase autonomous regions in Muslim

54

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES MPMENDOZA III-2 February 2, 2015 11:25 a.m. 3 Mindanao and the Cordilleras, nowhere in Section 1 or in the other

sections of Article X referred to in theas hereinafter provided is there

any mention of any other political entity much less the Bangsamoro

which may be authorized and recognized as component territorial and

political subdivisions of the Republic of the Philippines. To carry out

the mandate to create the autonomous regions in Muslim Mindanao

and in the Cordilleras, the Constitution tasked and specified the first

Congress elected under the 1987 Constitution to pass the organic acts

for the two autonomous regions, not any other congress but only the

first Congress elected under the 1987 Constitution. And the first

Congress was given 18 months from its organization to pass the

organic acts.

Thus, Section 19 of Article X provides, The first Congress

elected under this Constitution shall, within eighteen months from the

time of organization of both Houses, pass the organic acts for the

autonomous regions in Muslim Mindanao and the Cordilleras.

The first Congress referred to, elected under the 1987

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

Congress. If we reckon from 1946 after independence, this Congress

served for five years, from 1987 to 1992. And in all humility, I was

privileged to serve in that Congress.

55


The first Congress elected under the 1987 Constitution, which as

I said, was actually the Congress within the time frame of 18 months

set by the Constitution passed Republic Act 6734 which is the Organic

Act for the Autonomous Region in Muslim Mindanao and Republic Act

No. 6766 or the Organic Act for the autonomous regions in the

Cordilleras.

The Constitution mandated two autonomous regions, but the

question has been asked from time to time after the passage or

enactment of the two organic acts as mandated by the Constitution for

the creation of the autonomous regions in Muslim Mindanao and in the

Cordilleras, may the Congressmeaning, the Congress after the First

Congress or the Eighth Congresscreate other autonomous regions in

other parts of the country? For example/mpm

56


MR. GARCIA. For example, can Congress create the

autonomous region for the Ilocos? Can Congress create the

autonomous region for Bicol or for the Visayas? The resounding

answer, Your Honors, is no. No, Congress cannot create any other

autonomous region in other parts of the country other than the

Autonomous Region in Muslim Mindanao and in the Cordilleras. Where

are the reasons?

In the first place, the Constitution has authorized or empowered

only the first Congress elected after the adoption of the Constitution or

the Eighth Congress to pass the organic acts for the two autonomous

regions.

Secondly, the language of the Constitution is clear that only two

are to be created. Thus, there shall be created Autonomous Regions in

Muslim Mindanao and in the Cordilleras.

And thirdlyand this is the most importantfrom the records of

the Constitutional Commission, the intent of the Constitution as

reflected in the discussion during the commission is very evident. In

other words, the constitutional intent that only two autonomous

regions can be created. Thus, Fr. Joaquin Bernas, an acknowledged

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

57

COMMITTEE ON LOCAL GOVERNMENT JOINT WITH THE COMMITTEES ON PEACE, UNIFICATION AND RECONCILIATION; AND CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES GESapinoso IV-2 February 2, 2015 11:35 a.m. 2 a distinguished member of the Constitutional Commission that drafted

our Constitution.

According to Father Bernas, Thus, only the Cordilleras in the

extreme north and Muslim Mindanao in the south are given the distinct

privilege of forming autonomous regions.

To the question whether Congress could create autonomous

regions other than for Mindanao and the Cordilleras, the clear and

categorical answer is that, Any other area which wishes to become an

autonomous region should seek a constitutional amendment. Bernas,

Constitution of the Republic of the Philippines, Volume 2, Pages 388

and 389.

But the opinion of Father Bernas is borne out by the records of

the Commission. Thus, we find the following from the records:

Father Bernasthey were voting on the resolution on Article X of

the Constitution: Before we vote, may I ask one clarificatory

question?

The president of the commission: Commissioner Bernas may

proceed.

Father Bernas: Is it then the sense of the committee that

besides recognizing the Cordilleras and Muslim Mindanao as

58

COMMITTEE ON LOCAL

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Documents

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julius palamos os marcos

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homer alinsug os angara

jess abalos os angara

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zheanne aeson dantis