If we create a Bangsamoro “substate”, what constitutional provisions would need revising?

Now that the House of Representatives and the Senate have agreed in principle to adopt a bicameral constituent assembly as a mode of amending the Philippine Constitution (limited at this point to the “economic provisions”), it is a good time to think about charter change to accommodate the Moro right to self-determination. In my view, charter change to bring peace to Mindanao is, in the fullest sense of the word, an “economic provision”.

“Constitutional change” in relation to the negotiations Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) is an amorphous idea. It means everything, anything and nothing. Thus, we need a “bill of particulars”. Since the present draft of the MILF and the GPH are held in secret and not revealed to the public, we cannot say for sure what they contain. So if information is denied us, we speculate.

If we take the provisions of the “initialed yet unsigned” MOA-AD document as articulating a specific form of a “substate”, what are the specific constitutional provisions that would require amendment if we are to implement it?

I can make my own list but a list has been drawn already by the Philippine Supreme Court. It is a good and interesting list. From the perspective of Supreme Court Justice Antonio T. Carpio, he sees 35 constitutional provisions that need amendment in case the provisions of “initialed yet unsigned” MOA-AD (assuming it is a particular type of “substate”) are implemented. In his concurring opinion in the landmark case of Province of North Cotabato, he lists the following:

“Clearly, under the MOA-AD, the Executive branch assumes the mandatory obligation to amend the Constitution to conform to the MOA-AD. During the oral arguments, Atty. Sedfrey Candelaria admitted that the implementation of the MOA-AD requires “drastic changes” to the Constitution.[12] As directed by Justice Antonio T. Carpio, Atty. Candelaria undertook to submit to the Court a listing of all provisions in the Constitution that needed amendment to conform to the MOA-AD.[13] In their Memorandum dated 24 September 2008, respondents stated: “In compliance with the said directive, the constitutional provisions that may be affected, as relayed by Atty. Sedfrey Candelaria, are the following — Sections 1, 5, 18, 20 and 21 of Article X under Local Autonomy.”[14]This listing is grossly incomplete. A more thorough scrutiny shows that the “drastic changes” are amendments to the following provisions of the Constitution:

  1. Article 1 on the National Territory.[15] During the oral arguments, Atty. Sedfrey Candelaria stated that this provision would have to be amended to conform to the MOA-AD.[16]
  2. Section 3, Article II on the role of the Armed Forces of the Philippines as “protector of the people and the State.”[17] Under the MOA-AD, the AFP’s role is only to defend the BJE against external aggression.[18]
  3. Article III on the Bill of Rights. The MOA-AD does not state that the Bill of Rights will apply to the BJE. The MOA-AD refers only to “internationally recognized human rights instruments”[19] such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.
  4. Section 1, Article VI on the Legislative Department.[20] Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall “build, develop and maintain its own institutions” [21]like a legislature whose laws are not subordinate to laws passed by Congress.[22]
  5. Section 1, Article VII on executive power.[23] Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.[24]
  6. Section 16, Article VII on the President’s power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments.[25] All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE’s own basic law or constitution.
  7. Section 17, Article VII on the President’s control over all executive departments.[26] The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE.
  8. Section 18, Article VII on the President as “Commander-in-Chief of all armed forces of the Philippines.”[27] Under the MOA-AD, the President will not be the Commander-in-Chief of the BJE’s internal security force. The BJE’s internal security force will not be part of the AFP chain of command.
  9. Section 21, Article VII on the ratification of treaties and international agreements by the Senate.[28] This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.[29]
  10. Section 1, Article VIII on judicial power being vested in one Supreme Court.[30] Since the BJE will have “its own x x x judicial system,”[31] the BJE will also have its own Supreme Court.
  11. Section 2, Article VIII on the power of Congress to define and apportion the jurisdiction of lower courts.[32] Under the MOA-AD, Congress cannot prescribe the jurisdiction of BJE courts.
  12. Section 5(2), Article VIII on the power of the Supreme Court to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts.[33] Under the MOA-AD, the BJE will have its own judicial system. Decisions of BJE courts are not reviewable by the Supreme Court.
  13. Section 5(6), Article VII on the power of the Supreme Court to appoint allofficials and employees in the Judiciary.[34] This power will not apply to courts in the BJE.
  14. Section 6, Article VIII on the Supreme Court’s administrative supervision overall courts and their personnel.[35] Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.
  15. Section 9, Article VIII on the appointment by the President of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council.[36] This provision will not apply to courts in the BJE.
  16. Section 11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts.[37] This power will not apply to judges in the BJE.
  17. Section 1(1), Article IX-B on the power of the Civil Service Commission to administer the civil service.[38] Under the MOA-AD, the BJE will have “its ownx x x civil service[39] The Civil Service Commission will have no jurisdiction over the BJE’s civil service.
  18. Section 2(1), Article IX-C on the power of the Commission on Elections to enforce and administer all election laws.[40] Under the MOA-AD, the BJE will have “its own x x x electoral system.”[41] The Commission on Elections will have no jurisdiction over the BJE’s electoral system.
  19. Section 2(1), Article IX-D on the power of the Commission on Audit to examine and audit all subdivisions, agencies and instrumentalities of the Government.[42] Under the MOA-AD, the BJE can “build, develop and maintain its own institutions[43] without limit. The BJE can create its own audit authority. The Commission on Audit will have no jurisdiction over the BJE or its subdivisions, agencies or instrumentalities.
  20. Section 1, Article X on the political subdivisions of the Philippines.[44] A new political subdivision for the BJE will have to be created.
  21. Section 4, Article X on the power of the President to exercise general supervision over all local governments.[45] Under the MOA-AD, this provision will not apply to the BJE.
  22. Section 5, Article X subjecting the taxing power of local governments to limitations prescribed by Congress.[46] Under the MOA-AD, the BJE shall have “its own x x x legislation.”[47] The BJE’s taxing power will not be subject to limitations imposed by national law.
  23. Section 6, Article X on the “just share” of local government units in national taxes.[48] Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis-à-vis other local government units.
  24. Section 10, Article X on the alteration of boundaries of local government units, which requires a plebiscite “in the political units affected.”[49] Under paragraph 2(d) on Territory of the MOA-AD,[50] the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite “in the political units affected,” which should include all the barangays within a city, and all municipalities within a province.
  25. Section 15, Article X on the creation of autonomous regions within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines.[51] This will have to be revised since under the MOA-AD the BJE has all the attributes of a state.
  26. Section 16, Article X on the President’s power to exercise general supervision over autonomous regions.[52] This provision will not apply to the BJE, which is totally independent from the President’s supervision.
  27. Section 17, Article X which vests in the National Government residual powers, or those powers which are not granted by the Constitution or laws to autonomous regions.[53] This will not apply to the BJE.
  28. Section 18, Article X which requires that personal, family and property laws of autonomous regions shall be consistent with the Constitution and national laws.[54] This will not apply to the BJE which will have its own basic law or constitution.[55]
  29. Section 20, Article X on the legislative powers of autonomous regional assemblies whose laws are subject to the Constitution and national laws.[56]This provision will not apply to the BJE.
  30. Section 21, Article X on the preservation of peace and order within autonomous regions by the local police as provided in national laws.[57] Under the MOA-AD, the BJE shall have “its own x x x police[58] to preserve peace and order within the BJE.
  31. Section 2, Article XII on State ownership of all lands of the public domain and of all natural resources in the Philippines.[59] Under paragraph 3 on Concepts and Principles of the MOA-AD,[60]ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD,[61] the Bangsamoro people are the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples inMindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao , Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions.
  32. Section 9, Article XII on the establishment of an independent economic and planning agency headed by the President.[62] This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency.
  33. Section 20, Article XII on the establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas.[63] Under the MOA-AD, the BJE will have its own financial and banking authority.[64]
  34. Section 4, Article XVI on the maintenance of “a regular force necessary for the security of the State.”[65] This provision means there shall only be one“Armed Forces of the Philippines” under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have “its own x x x internal security force[66] which will not be under the command and control of the President.
  35. Section 5(6), Article XVI on the composition of the armed forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable.[67] This will not apply to the BJE’s internal security force whose personnel will come only from BJE areas.
  36. Section 6, Article XVI on the establishment of one police force which shall be national in scope under the administration and control of a national police commission.[68] The BJE will have “its own x x x police[69] which is aregional police force not administered or controlled by the National Police Commission.”
Of course, this view of Justice Carpio is premised on the idea that creating a substate would need a line-by-line, provision-by-provision type of retail amendment. But it is possible however to think also of other means of revising the Constitution without necessarily going into such a tedious manner. The whole Constitution as we know it today can be changed entirely. The Constitution is a living document. Its primary purpose is not to be permanent but to secure for its people peace, development and happiness.

2 thoughts on “If we create a Bangsamoro “substate”, what constitutional provisions would need revising?

  1. Assalamu alaykum Atty Bong, your article is very much enlightening. But I just want to remind you, in case you forgot, that the landmark case is Province of North Cotabato not Province of South Cotabato. You know it more, Atty. Thank you. Wassalamu alaykum

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