PEACETALK: Ten points on the constitutionality of the BBL’s power-sharing provisions

  1. The listing of powers of the Central Government and the Bangsamoro Government is not unconstitutional. The list of the powers for the autonomous regions is already provided by the Constitution itself in Article X, section 20.
  2. Hence, the powers granted to autonomous regions, and which may be granted the Bangsamoro, is not a delegation from Congress but a constitutional mandate that Congress and the Senate must carry out.
  3. While it is true that there are powers inherent to the state and even if not listed the state may nevertheless exercise these powers such as taxation, eminent domain and police power, there is absolutely no prohibition for listing the powers of the state. The listing of the powers, thus, is not unconstitutional. This is akin to the other doctrine in constitutional law that even if not stated in the law, the Constitution is read into the law.
  4. The grant of powers to the Bangsamoro or autonomous region does not diminish the power of the legislature since, as earlier mentioned, is already mandated by the constitution.
  5. Even granting arguendo that the same limits to a certain extent the exercise of the plenary power of the legislature, which in the case of autonomous region is limited by the Constitution, jurisprudence in this country already admits of a valid limitations in the exercise of the plenary powers of Congress.
  6. The case of Tanada, et al vs Angara, et al GR No. 118295 May 2, 1997 laid down the rule that the exercise of sovereignty and of legislative power is not absolute. This is a case where members of the legislature questioned the accession of the Philippines to the WTO-GATT on the ground that the same limits the exercise of sovereignty of the country as it prohibits the legislature from enacting laws such as the imposition of duties for goods entering the country. This curtails the exercise of the plenary legislative power of Congress. The Supreme Court sustained the accession of the country into the WTO-GATT. This is the principle of auto-limitation of sovereignty wherein the state through the legislature imposes self-limitation on the exercise of its power out of respect for the relations that it created.
  7. In other jurisdictions, the challenge of respecting peace agreements by limiting the plenary and absolute power of the Parliament has been achieved through the adoption of similar principles. In the UK, this was achieved through the Sewel Convention where the UK Parliament respects the competencies granted the Northern Ireland Assembly or the Scottish Parliament by not encroaching upon their competencies without their consent.
  8. Similarly, when the legislature, by mandate of the Constitution vests these powers to the Bangsamoro by enacting the BBL, the legislature may no longer exercise these powers granted the autonomous region, not because it lacks these powers, but because it respects the discretion granted the autonomous region, as such, the legislature (Senate and Congress) will refrain, out of its own volition, to exercise these powers.
  9. The inclusion in the BBL of the concepts of “parity of esteem,” “self-determination,” “asymmetric relations”, and other related concepts are all meant to support and strengthen the concept of a genuine autonomy and allow the Supreme Court to evolve a new set of jurisprudence on autonomy that will give life and meaning to the idea of autonomy mandated by the Constitution. If these concepts are not included in the BBL, then there will be no occasion for the Supreme Court to revisit its rulings on autonomy and evolve a new set of jurisprudence more in keeping with the mandate of the constitution and the aspirations of the Bangsamoro for self-governance.
  10. The BBL, in the hierarchy of laws must be treated as below the Constitution but above ordinary laws and therefore should not be subject to national laws. This is the ruling in the case of Disomangcop vs Datumanong, GR No. 149848 November 25, 2004 where the Supreme Court said that the Organic law for the ARMM is part of the autonomy scheme and the organic law is above other national laws because its legislation not only went thru the ordinary process of the legislative mill but also included the affirmation of the people thru a plebiscite. Besides, the BBL is a special law and should prevail over other laws of general application.

To paraphrase Commissioner Nolledo, the principal sponsor of the autonomy article in the 1987 Constitution, autonomy is an indictment of the unitary system. Let this BBL be an indictment of the unitary Constitution so that the spirit that animated the constitutional provisions on autonomy may finally see the light of day in this BBL. [MindaViews is the opinion section of MindaNews. Lawyer Naguib Sinarimbo is co-convenor of the Bangsamoro Study Group. He was Executive Secretary of the Autonomous Region in Muslim Mindanao from December 2009 to December 2011 and participated in the GPH-MNLF and GPH-MILF peace processes. Sinarimbo posted this on his FB page on July 7. Permission to publish granted to MindaNews]