Legal Technique and Logic

UST Faculty of Civil Law; 1E

BRITO, John Patrick

CASTRO, Irene

NABUAB, Neil

REYES, Teoti

TULAUAN, NEILIssues on the Constitutionality of Bangsamoro Basic Law:

1. Abolition of Autonomous Region as a Constitutional creation

a. 1987 Constitution (Article 10, Section 1)

The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.b. BBL (Article 3, Section 2)

Section 2. Core Territory The core territory of the Bangsamoro shall be composed of:

a. the present geographical area of the Autonomous Region in Muslim Mindanao; (Emphasis supplied)

b. the Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite;

c. the cities of Cotabato and Isabela; and d. all other contiguous areas where there is resolution of the local government unit or a petition of at least ten percent (10%) of the registered voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.

4 In order to ensure the widest acceptability of the Bangsamoro Basic Law in the core areas above-mentioned, a popular ratification shall be conducted among all the Bangsamoro within the areas for their adoption. Position: BBL is unconstitutional.

Rationale: The ARMM and the Bangsamoro have the same geographical area of jurisdiction Such encroachment of territory is a manifestation of conflict between the two laws. It is a well-settled rule that the Constitution must always prevail in case of disharmony due to the undisputed fact that it is the Supreme law of the land. Furthermore, the ARMM is a Constitutional creation and thus, cannot be erased by legislation.2. Creation of a New Political System

a. 1987 Constitution (Article 10, Section 15)Art 10, Sec, 15: There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.b. BBL (Article 4, Section 2)

The Bangsamoro Government shall be parliamentary. Its political system is democratic, allowing its people to freely participate in the political processes within its territory.(Emphasis supplied) Position: BBL is unconstitutional

Rationale: Article 10, Section 15 categorically provided the taxonomy of the term political subdivisions of the Republic. The creation of Autonomous regions in Muslim Mindanao must also be complimentary with the national sovereignty and framework of the Constitution. On the other hand, Article 4, Section 2 of the BBL provides a new and different territorial and political entity other than those recognized in Article 10. This is reflective of Bangsamoros recognition for Self-government, which would definitely result to divided sovereignty, vis--vis with national sovereignty contemplated on Article 10.3. Redefining the sovereignty of central government

a. 1987 Constitution (Article 10, Sections 16-17)

The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. (Sec. 16)All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. (Sec.17)b. BBL (Article 5, Section 1)

Reserved powers are matters over which authority and jurisdiction are retained by the Central Government. The Central Government shall exercise the following reserved powers x x x

Position: BBL is unconstitutional.

Rationale: The Constitution is the supreme and fundamental law which provides for the powers of the state. Under the Bangsamoro Basic Law, it reserves to the central government the exercise of certain so-called "reserved powers," which are referred to as the powers "retained by the central government." Hence, it can be concluded that the proposed lawdiminishes the sovereignty of the Philippine Government by definingthe powers that the central government can retain.

4. Taxesa. 1987 Constitution (Article 10, Section 17)All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

b. BBL (Article 11, Section 10)

Share in Taxes of the Central Government- Central Government taxes, fees, and charges collected in the Bangsamoro, other than tariff and customs duties shall be shared as follows:

a. Twenty-five percent (25%) to the Central Government; andb. Seventy-five percent (75%) to the Bangsamoro, including the shares of the local government units.Position: BBL is unconstitutional. Rationale: Allowing the Bangsamoro Government to keep75% of the taxesin the autonomous region unjustly reduces the corresponding shares allocated to the provinces, municipalities and cities which are not included in the Bangsamoro region. The reduction in their shares undoubtedly puts other local government units at risk.

5. Transition Commission voida. 1987 Constitution (Article 7, Section 17)The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

Position: BBL is unconstitutionalRationale: Public office in the Philippines may only be created by law, i.e., either by an expressly stated provision under the Constitution or by a law duly enacted by the Congress. Moreover, such may also be created when the Constitution or a law grants authority to the President of the Philippines to create a public office. In the absence of such authorization, the President cannot create a public office. Section 17 of Article 7 states the limit, scope, or extent of the President in creating a public office. In relation to the aforesaid article, the Transition Commission which drafted the Bangsamoro Basic law is therefore void. There is no particular provision under the Constitution which allows it creation. The creation of BBL is for the purpose of completely abolishing the existing organic act of ARMM. Thus, the drafted law does not exist which consequently denies the President and the Congress to act on the same.