Liberato, Kristine Marie E.

Legal Method
Block 1E
October 10, 2014
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A LEGAL ASSESSMENT ON THE BANGSAMORO BASIC LAW (BBL)
Six years had already passed when the Memorandum of Agreement on Ancestral
Domain (MOA-AD) between the Government of the Philippines and the Moro Islamic Liberation
Front was struck down as unconstitutional by the Supreme Court, for containing provisions that
are contrary to law and the Constitution. Now, they are attempting to finally put an end to the
armed conflicts. The final draft of the Bangsamoro Basic Law (BBL) has already been submitted
to Congress for review.
First, to prevent the Court from exercising the doctrine of stare decisis, let us identify the
following provisions which were declared as unconstitutional in the case of Province of North
Cotabato v. GRP and were answered by the present Basic Law.
1) Under paragraph 2(c) on Territory of the MOA-AD, municipalities which voted for their
inclusion in ARMM during the 2001 plebiscite are automatically part of the Bangsamoro
Juridical Entity (BJE) without need for another plebiscite. The Court held this as
unconstitutional for the people in the aforementioned municipalities voted for their inclusion
only in the ARMM, in pursuant to Article 10, Section 18 of the Constitution.
Now, the drafters of the BBL have now included in Article 3, Section 2 of the BBL, the
paragraph stating:
"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." (italics supplied)
2) Under paragraph 4 on Resources of the MOA-AD, the BJE is free to enter into any
economic cooperation and trade relations with foreign countries. Also, the Central
Government is to ensure the BJE's participation in international meetings and events, e.g.
ASEAN. The Court held that this is unconstitutional because as ruled in Pimentel v.
Executive Secretary:
"In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations."
Also located in Article 4, Section 3 (a) and (n) of R.A. 9054, the ARMM may not
exercise legislative powers on matters involving foreign affairs and foreign trade.
Thus, the drafters now stated that only the Central Government, through its reserved
powers, can exercise authority over foreign policy (Article 5, Section 1(2) of the BBL).
Also, the Bangsamoro agreement may enter into economic agreements subject to the
reserved powers of the Central Government over foreign affairs (Article 12, Section 25 of
the BBL).
3) The Court also ruled that MOA-AD is contrary to the prevailing procedure for the delineation
and recognition of ancestral domains laid down in The Indigenous Peoples' Right Act (IPRA)
of 1997. According to the Court, even the ARMM recognizes the clear distinction between
the Bangsamoro and other indigenous peoples living in Mindanao. It is also stated in the

United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) that the
indigenous have the right to self-determination and self-autonomy in matters relating to their
internal and local affairs, and so, they have the right to participate in the decision-making
and give prior consent before becoming part of the BJE.
Now, the BBL distinguishes the Bangsamoro from the indigenous peoples. Separate
provisions were included to respect the rights of the latter especially those which involve
their "right to free and prior informed consent, right to political participation in the
Bangsamoro government, the right to basic services, and the right of freedom of choice as
to their identity. (Article 9, Section 5 of the BBL)"

Second, let us identify the following provisions of the BBL that are in so far seen as
having the possibility of being contrary to the Constitution.
1) The concept of asymmetrical relationship between the Central Government and the
Bangsamoro Government as stated in shall be distinguished from the associative
relationship first used in the MOA-AD, which was declared unconstitutional.
2) The parliamentary form of government of the Bangsamoro is said to be inconsistent with our
current democratic form of government. However, the Office of the Presidential Adviser on
the Peace Process, contends that in accordance to Article 10, Section 18 of the
Constitution, all members of the Parliament will still be elected as representatives of the
Bangsamoro people.
3) Article 10, Section 27 of the BBL states: "It shall be the policy of the Central Government
that at least (1) justice in the Supreme Court and two (2) justices in the Court of Appeals at
any one time who shall be qualified individuals of the Bangsamoro territory."
The intention of the drafters is to ensure that the Bangsamoro is represented as well in the
Judiciary system. However, unlike in other branches of the government such as the
Congress, the Judiciary is established to be independent from different political units as
reiterated in Nitafan v. CIR. The latter shows that one of the reasons why the Judiciary is
given special privileges is to maintain their judicial independence. With this, although not
expressed as mandatory, a policy that will allow justices to be appointed just to represent
their districts is contrary to the rule of judicial independence and Article 8, Section 2 par. 2
of the Constitution.

With the presence of the Separability Clause, striking down other provisions to be
unconstitutional will not necessarily mean that the whole BBL will be struck down as
unconstitutional. Also, those provisions in the Bangsamoro Basic Law which will be deemed
unconstitutional by the Court in future deliberations could still be remedied through further
negotiations.