Legal Assessment - Bangsamoro Basic Law Draft

October 10, 2014
Legal Methodology
Inigo Victor Mathay Rojas

Block 1-A
Legal Assessment Bangsamoro Basic Law Draft
The Bangsamoro Basic Law was drafted in pursuance of the Peace Process and the
Framework Agreement between the MILF and the Government of the Philippines. The BBL
establishes the Bangsamoro Juridical Entity to provide for a government structure for the
Bangsamoro people in order to preserve more their culture and identity by providing them with
self-governance. The Constitutionality of the BBL is discussed in the case of Province of North
Cotabato v. GRP, with the court ruling that certain parts of the draft are unconstitutional:
Associative Relationship
First, the Associative relationship which is also referred to as an asymmetric relationship
that the BBL provides between the government and the political entity of the Bangsamoro is not
provided in the Constitution. An Association is formed when two states, in the case at bar the
BJE and the Republic of the Philippines, establish a relationship where the associate maintains
powers which make it an independent state while delegating certain powers to the principal
state. The power that is given to the BJE exceeds that rewarded to any Local Government Unit
or any Autonomous region provided in the Constitution. The BJE is granted by the BBL the
capacity to enter into foreign relations, participate in the ASEAN conventions and specialized
United Nations agencies. An Associative relationship, as provided in American Jurisprudence
and International practice is usually a step towards granting independence as practiced before
for colonies of invading states. The Montevideo Convention enumerates four requisites to be a
state namely: Territory, Government, Population and the capacity to enter into foreign relations;
these requisites are all present in the kind of entity the BBL aims to establish for the
Bangsamoro, evidently establishing it similar to an independent state. The Associative
relationship that the BBL aims to establish is not in accordance with national unity, a goal
established by the Constitution itself. The BJE is a powerful entity with a kind of relationship with
the government not allowed or even mentioned in the Constitution. Although the Constitution
provides that the State shall recognize and promote the rights of Indigenous Cultural
Communities, it must always be within the framework of national unity and development as
based on Article 2, Section 22. An Associative relationship cannot support unity, for it is more
inclined towards separation.
Territory
The United Nations Declaration on the Rights of Indigenous Peoples strengthen the
need to recognize the rights of Indigenous Cultural Communities, but nowhere in its provisions
does it require the State to grant the powers included in the BBL. There is no requirement to
guarantee to the Indigenous peoples an internal security force and their own police force. It is
still within the power of the State to provide the protection needed for the Indigenous. In addition
to that, the BBL under Article 3 specifically provides that the Bangsamoro territory shall include
the land mass, maritime, terrestrial, alluvial, and aerial domain. Even the extent of the maritime
jurisdiction of the Bangsamoro is specified to extend up to 12 nautical miles from the low-water
mark of the coasts. However this right given to the Indigenous peoples is not recognized in the
UN DRIP nor in the Constitution. They are only recognized to have the right to lands which they
have traditionally owned or acquired from time immemorial. Even the right to explore and obtain
natural resources is granted to the Indigenous peoples, a power which is not recognized by the
Constitution for it provides that the right to natural resources shall belong to the State.
Constitutional Amendments
The BBL also allows the President to guarantee amendments to the Constitution to give
way for the enforcement of the provisions of the BBL, a power which constitutes a usurpation of
the powers of the Congress, a Constitutional Convention or the people through the process of
initiative. It fails to take into consideration that the only power granted to the President with
regard to Constitutional amendments is only through proposal. The President cannot be granted
by any law the power to guarantee constitutional amendments, for the amending entails a strict
process provided by the Constitution which cannot be done solely by the President.
Court Jurisdiction
The BJE is provided by the BBL courts which cater to personal, family, property relations
and even criminal cases. As provided in the Constitution, the only jurisdiction granted to the
courts for autonomous regions is only for personal, family and property relations. Criminal cases
are not included for this must still adhere to the Revised Penal Code. The Shariaah commercial
and criminal laws as stated in Article 10 of the BBL shall be applicable for criminal cases, which
may be directly contradictory with the Revised Penal Code. As an example cruel and excessive
punishments which are allowed by the Muslim Laws are prohibited by the RPC. Even the death
penalty cannot now be imposed in accordance with Republic Act 9346.
The Framework Agreement and the Bangsamoro Basic Law was drafted unambiguously
for the establishment of peace between the MILF and the Republic of the Philippines, as well as
to reach goals for the welfare of the Bangsamoro people. However the powers and rights that
the BBL grants to the Bangsamoro is not mentioned and some even contradictory to the
provisions of the Constitution and statutory laws. The Indigenous peoples rights are to be
protected and strengthened but in still in accordance with the legal framework, which most
certainly includes not only the most supreme law of the land but also other numerous laws.

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October 10, 2014

Inigo Victor Mathay Rojas

Legal Assessment Bangsamoro Basic Law Draft

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