Whether, the territorial scope of the FAB is constitutional.

The constitutionality of the territorial scope of the Framework Agreement of

Bangsamoro shall be discussed by having the Memorandum of Agreement on

Ancestral Domain as its guidelines.

The territorial scope of the Bangsamoro MOA-AD is unconstitutional, whereas

the territorial scope in the Framework Agreement of Bangsamoro is

constitutional. The MOA included municipalities, barangays and cities that are

not part of the Autonomous Region of Muslim Mindanao (ARMM). The

Framework Agreement (FAB) made the necessary amendments that made the

FAB constitutional as to its territorial scope.

The Autonomous Region in Muslim Mindanao (ARMM) is composed of five

provinces and only one city: Basilan Province, included in 2001 except for the

city of Isabella; Lanao del Sur Province; Maguindanao Province; Sulu Province;

Tawi-tawi Province; and Marawi City, Lanao del Sur.1 Executive Order No. 36

moved Basilan from Region IX and Marawi City from Region XII placing both

within Region XV ARMM.2

The territorial scope of the MOA is composed of the present geographical area of

the ARMM. It also includes the Municipalities of Baloi, Munai, Nunungan, Pantar,

Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays

in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and

Midsayap that voted for inclusion in the ARMM during the 2001 plebescite. It also

includes the cities of Cotabato and Isabela and all other contiguous areas where

there is a resolution of the local government unit or a petition of at least ten

percent (10%) of the qualified voters in the area asking for the inclusion at least

two months prior to the conduct of the ratification of the Bangsamoro Basic Law.3

The expansion of the area in the Bangsamoro MOA is in violation of the

Constitution, that “There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provincies, cities, municipalities,

1 http://www.zamboanga.com/armm/index.htm (visited March 31, 2014)2 Id.3 Special Issue on the Framework Agreement on the Bangsamoro (December 2012)

and geographical areas sharing common and distinctive historical and cultural

heritage, economic and social structures, and other relevant characteristics

within the framework of this Constitution and the national sovereignty as well as

territorial integrity of the Republic of the Philippines.”4 Wherein which the FAB

patterned its territorial scope with what the Constitution dictates.

As provided by the Constitution, the general supervision over autonomous

regions shall be exercised by the President to ensure that laws are faithfully

executed.5 In December 2009, former President Arroyo had issued

Administrative Order (A.O.) No. 273-A delegating that supervision over the

ARMM to the Department of Interior and Local Government (DILG) in the

aftermath of the Maguindanao Massacre. Thus, then DILG Sec. Ronaldo Puno

was tasked to oversee the handling of the state of emergency in the Provinces of

Maguindanao and Sultan Kudarat and the City of Cotabato. A.O. 273-A has not

been repealed by incumbent President Aquino and so that delegation of general

supervision over the ARMM was passed on to the late DILG Sec. Jesse

Robredo. It was then his task to oversee President Aquino’s ARMM reform

initiative, his administration’s rationale for R.A. 10153.6

The Constitution and the supporting jurisprudence reject the notion of imperium

et imperio (an empire within and empire) in the relationship between the national

and the regional governments. While autonomous regions are granted political

autonomy, the framers of the Constitution never equated autonomy with

independence. The ARMM as a regional entity continues to operate within the

larger framework of the State and is still subject to the national policies set by the

national government, save only for those specific areas reserved by the

Constitution for regional autonomous determination.7

The most controversial question has been the process for determining the

borders of Bangsamoro. The large Christian population of Mindanao has strongly

opposed these autonomy agreements, and has demanded plebiscites to

4 CONSTITUTION, Art. X, Sec. 15.5 CONSTITUTION, Art. X, Sec. 16. 6 Kida v. Senate, G.R. No. 196271, October 18, 2011.7 Id.

determinate the territory of Bangsamoro, as is mandated by the Philippine

Constitution. The high probability that many municipalities would vote against

joining Bangsamoro led the MILF to argue that the parties should step outside

the Philippines constitutional order to reach an agreement.

In 2008, constitutional issues came to a head when the Supreme Court of the

Philippines struck down the Memorandum of Agreement on Ancestral Domain

(MOA-AD) between the Philippine government and the MILF, which was the

result of the eleven (11) years of negotiations. The Court found the agreement

unconstitutional on substantive and procedural grounds. The MOA-AD referred to

the relationship between the central government and the “Bangsamoro” as

“associative”, but did not define that term. Since this terms exists under

international law to describe a relationship between two independent states, the

Court reasoned that the MOA-AD likewise aimed to confer statehood on the

Bangsamoro. Terms of the MOA-AD that empowered Bangsamoro to enter into

economic and trade relations with the foreign states buttressed this conclusion.

The Court held this unconstitutional because the constitution contemplated only

one state within the territory of the Philippines.8

In addition, the Court held that the President had abused her discretion in

committing under the MOA-AD to secure the requisite constitutional amendments

to implement it. Since the power of constitutional amendment rests with the

Philippine Congress.9

The MOA-AD assumed that amendments would be required to implement

Bangsamoro’s associative relationship with the rest of the Philippines, but

nonetheless held to be unconstitutional on the basis that it was inconsistent with

the existence of a single Philippine state. In effect, this is a basic structure

doctrine that limits the substantive scope of possible amendments to the existing

Philippine constitution.10

8 Comparative Constitutional Law in Asia.9 Id.10 Ibid at 3.

The difference between the Framework Agreement of 2012 from the MOA-AD of

2008 are as follows: the former does not commit the government to constitutional

change; the agreement had been done in full transparency, as noted by its

publication online prior to its signing; there is no mention of ancestral domain in

the document; while the MOA-AD was written in such a way that the government

could have acted without a plebiscite, the said Framework Agreement is very

clear in requiring a democratic mandate.11 By democratic mandate, means that

the organic law shall be written by the Transition Committee, must be passed by

Congress. Then the communities involve must approve it by plebiscite. Assuming

the law is passed and the plebiscite is approved, then the MILF must seek an

elected mandate from people.

However, Senator Miriam Defensor Santiago said on April 2, 2014, that the

recently signed Comprehensive Agreement on the Bangsamoro (CAB) is

unconstitutional, since it “violates the principle of constitutional supremacy.”12

She further added that the CAB establishes not a mere autonomous region as

provided for by the Constitution, but a sub-state, which will exercise certain

sovereignty powers that should be reserved only for central government.13

Jurisprudence dictates that only Congress can create provinces and cities

because the creation of provinces and cities necessarily includes the creation of

the legislative districts, a power only Congress can exercise. Said exercise of

power by the Congress is under Section 5, Article VI of the Constitution and

Section 3 of the Ordinance appended to the Constitution.14

The ARMM Regional assembly cannot create a province without a legislative

district because the Constitution mandates that every province shall have a

legislative district.15 In addition, the ARMM Regional Assembly cannot enact a

law creating a national office like the office of a district representative of

11 Ibid at 1.12 http://m.sunstar.com.ph/?url=http%3A%2F%2Fwww.sunstar.com.ph%2Fmanila%2Flocal-news%2F2014%2F04%2F02%2Fbangsamoro-deal-unconstitutional-336224#2678 (visited March 31, 2014)

13 Id.14 Sema vs. Comelec, G.R. No. 77697, July 16, 2008, 588 SCRA 700.

15 Ibid at 4.

Congress because the legislative powers of the ARMM Regional Assembly

operate only within its territorial jurisdiction, as provided in Section 20, Article X of

the Constitution.16

Therefore, the territorial scope of the Bangasamoro in the Framework Agreement

is constitutional as compared to the MOA which the Supreme Court declared in

2008 as unconstitutional. The said MOA is unconstitutional because it included in

its territorial scope those provinces, cities, municipalities and barangays that are

not included in the territory of the ARMM and those that do not wish to take part

in the Bangsamoro MOA. Unless the Bangsamoro is classified as an

autonomous region by the law, it is considered to be violating the constitution,

hence the FAB regarding its territorial scope is constitutional as it was created in

the light of the Constitution.

16 Id.