The proposed Bangsamoro Basic Law is illegal because it reduces presidential powers, according to former Supreme Court (SC) Associate Justice Vicente Mendoza.
Mendoza on Tuesday said the Bangsamoro measure only allows the President to exercise his power consistent with the principle of autonomy and for the asymmetric relation of the central government and the Bangsamoro government, a virtually watered-down version of the constitutional provision on presidential powers.
Under the 1987 Constitution, the President has general supervision over autonomous regions to ensure that laws are faithfully executed.
“This [constitutional power]cannot be diminished, modified or qualified. This [Bangsamoro law] can make the strict enforcement of national laws within the Bangsamoro territory difficult to secure as law enforcement may have to take account of the local customs of the people. I believe House Bill 4494 is beyond the power of Congress to pass,” Mendoza said.
The former SC justice was one of several resource persons invited by the House of Representatives’ Ad Hoc Committee, which is discussing the measure that seeks to establish a Bangsamoro region that will replace the Autonomous Region in Muslim Mindanao.
Mendoza noted that the Bangsamoro measure gives extensive, exclusive and concurrent powers to the Bangsamoro government while the central government’s power is limited to defense and external security; foreign policy; coinage and monetary policy; postal service; citizenship and naturalization; immigration; customs and tariff; common market and global trade and intellectual property rights.
The concurrent powers of the Bangsamoro and central government, on the other hand, include social security and pensions; quarantine; land registration; pollution control, human rights and humanitarian protection and promotion; penology and penitentiary; auditing; civil service; coast guard; customs and tariff; administration of justice; funding for maintenance of national roads; bridges and irrigation systems; disaster risk reduction and management and public order and safety.
“The provisions of this [Bangsamoro] bill cannot be justified on the ground that the relation of the central government and the Bangsamoro government is asymmetric. The question is precisely whether the Bangsamoro Basic Law is not contrary to the Constitution because of such relationship between the two governments,” Mendoza said.
“Such relationship cannot justify the recognition of the right of the Bangsamoro people to self-determination, to chart their political future without impairing the sovereignty and territorial integrity of the Philippines,” he added.
Even the reference to the autonomous region as a territory and as the ancestral homeland of the Bangsamoro people is contrary to the Constitution, which considers the autonomous region to be a part of the Philippine archipelago, Mendoza said.
“Territory is defined as a part of the country separated from the rest and subject to a particular jurisdiction. To call the autonomous region in Muslim Mindanao the Bangsamoro territory is to consider it a separate part of the Philippines, although under the Philippine government’s jurisdiction,” he explained.
“The recognition of the right to self-determination . . . to chart their political future…reinforces the notion that the Bangsamoro is a separate political entity.
The dismemberment of the national territory can result from such provisions of the [Bangsamoro Basic] bill,” Mendoza said.
But former SC Justice Adolf Azcuna disagreed, noting that the measure provides that the Bangsamoro Region will remain a part of the Philippines.
“This provision of the Bangsamoro Region being a part of the country is valid so there will be no dismemberment of the country involved. Bangsamoro means the nation of the Moro. A state is composed of nations of distinct experiences and cultures,” Azcuna said.
“It is possible for us to have many nations under one Philippine state. That is why the relationship between the Bangsamoro government and the central government is asymmetrical. It is not unconstitutional,” he added.
But regardless of the legal questions, retired Col. Cesar Pobre raised doubts if all of those who will be part of the Bangsamoro Region will honor the peace agreement between the state and the Moro Islamic Liberation Front (MILF).
“The MILF cannot claim the right to represent and act in the name of all the stakeholders, such as the MNLF [Moro National Liberation Front], the traditional Muslim leaders or datus, the ulamas, Lumads, indigenous people, the BIFF (Bangsamoro Islamic Freedom Fighters], in the absence of any formal declaration to that effect by each of them. For this reason, these groups are not bound” by the agreement between the government and the MILF,” Pobre said.
“And since they will be affected adversely by it, the likelihood is they would oppose it and cause trouble, thus endangering the peace that the agreement hopes to achieve,” he added.
But for Dr. Jose Abueva of the University of the Philippines, the laws should be used to establish the Bangsamoro Region on solid ground.
“The Constitution, the Bangsamoro Basic law and other laws must be interpreted as enabling authority, rather than obstacles to its fulfillment. We need a progressive political outlook and transforming leadership, an inclusive view of Filipino nationalism, nationhood and nation-building and a deep and broad concept of compensatory and redistributive justice,” Abueva said.
“There is no room for self-defeating legalism and obstructive technicality. Our Supreme Court must not be bound by restrictive precedents. To enable our leaders to pass this test is at the same time a great challenge to the Christianity and humanity of the majority of our Filipino leaders and citizens to accommodate the legitimate aspirations of our Moro brothers and sisters,” he added.