LEGAL RESEARCH

Re: Bangsamoro Juridical Entity

Submitted by:

1st year- i

SY 2008-2009

Bautista, Rianne Mae

Espiritug, Adrian

Gapuz, Golda

Gonzales, Jenny

Gonzales, Rossalie

Lansang, Lea Joyce

Ontog, Christopher Martin

Submitted to:

Atty. Sarmiento

Legal Research

4 September 2008

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TABLE OF CONTENTS

PERTINENT PROVISIONS 3

ABRIDGED CASE RESEARCH

Facts 5

Issue 1 6

Issue 2 7

Issue 3 8

Issue 4 8

LEGAL RESEACH

Facts 10

Issue 1- on Local Autonomy 16

Issue 2- on Power of the Executive 22

Issue 3- on Sovereignty 26

Issue 40- on Constitutional Amendment 29

APPENDIX

A- BJE Memorandum of Agreement 32

B- REPUBLIC ACT NO. 9504 also known as 44

“The National Internal Revenue Act of 1997”

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PERTINENT PROVISIONS

Article I on NATIONAL TERRITORY. The national territory comprises the

Philippine archipelago, with all the islands and waters embraced therein, and all

other territories over which the Philippines has sovereignty or jurisdiction,

consisting of its terrestrial, fluvial and aerial domains, including its territorial sea,

the seabed, the subsoil, the insular shelves, and other submarine areas. The waters

around, between, and connecting the islands of the archipelago, regardless of their

breadth and dimensions, form part of the internal waters of the Philippines.

Section 1 ARTICLE II on DECLARATION OF PRINCIPLES AND STATE

POLICY. The Philippines is a democratic and republican State. Sovereignty

resides in the people and all government authority emanates from them.

Section 25 ARTICLE II on DECLARATION OF PRINCIPLES AND

STATE POLICIES. The State shall ensure the autonomy of local governments.

Section 21 ARTICLE VII on EXECUTIVE DEPARTMENT. No treaty or

international agreement shall be valid and effective unless concurred in by at least

two-thirds of all the Members of the Senate.

Section 1 Article X on LOCAL GOVERNMENT. The territorial and political

subdivisions of the Republic of the Philippines are the provinces, cities,

municipalities, and barangays. There shall be autonomous regions in Muslim

Mindanao and the Cordilleras as hereinafter provided.

Section 2 ARTICLE X. The territorial and political subdivisions shall enjoy local

autonomy.

3

Section 15 of ARTICLE X. There shall be created autonomous regions in

Muslim Mindanao and in the Cordilleras consisting of provinces, cities,

municipalities, 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.

Section 16 ARTICLE X. The President shall exercise general supervision over

autonomous regions to ensure that laws are faithfully executed.

Section 17 ARTICLE X. All powers, functions, and responsibilities not granted

by this Constitution or by law to the autonomous regions shall be vested in the

National Government.

Section 20 ARTICLE X. Within its territorial jurisdiction and subject to the

provisions of this Constitution and national laws, the organic act of autonomous

regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the

general welfare of the people of the region.

4

ABRIDGED CASE RESEARCH

FACTS:

On February to December 2005, exploratory talks on ancestral domain were held,

breakthrough on contentious issue of ancestral land achieved at peace talks in

Malaysia between government and MILF rebels. On February 2006, talks resume

in Malaysia, there was an agreement reached on ancestral domain. The

Memorandum of Agreement on the Ancestral Domain (MOA-Ad BJE) grants an

expanded Autonomous Region in Muslim Mindanao (ARMM) its own basic law,

a system of governance that respond to the aspirations of the Bangsamoro people,

and affixes its territory, an internal security force, a system of banking and

finance, civil service, education and legislative institutions, full authority to

develop and dispose of minerals and natural resources within its territory and free

to enter into any economic cooperation and trade relations with foreign countries,

provided that such relationships and understandings do not include aggression

against the Government of the Republic of the Philippines. As posted in the

Philippine Daily Inquirer on August 17,2008, there were 9 dead, 22 wounded and

165,000 fled fighting as listed by the National Disaster Coordinating Council. On

August 20, 2008, MILF declared all out war for the rebels were angered with the

refusal of signing of the MOA-Ad BJE.

Justice Secretary Raul Gonzalez said that the decision to review or restudy

the MOA was reached on Tuesday night, August 19,2008 during a National

Security Council meeting in the Palace, the second in a row after the MILF

attacks in Lanao del Norte province on August 18,2008. MILF chief negotiator

Mohagher Iqbal claimed that the only way to peace is to sign the MOA-Ad or a

negotiated political settlement.

5

The hostilities arose due to the Supreme Court’s issuance of the temporary

restraining order against the scheduled August 5, 2008 signing of the MOA-Ad in

Kuala Lumpur due to the unconstitutionality on several petitions and said MOA-

Ad was a tool to effectuate the charter change as proposed by the Arroyo

administration which could lead to the reformation and modification of the form

of government or even the extension of the tenure of the office of the President.

An excerpt in the September 1, 2008 Philippine Daily Inquirer article, states the

view of Esperon in not abandoning the peace talks with the MILF but

emphasizing on conducting dialogues with communities, demobilization,

disarmament and rehabilitation.

This MOA was strongly objected by Senator Franklin Drilon as

manifested in his petition on the ground of the unconstitutionality of said

agreement and there was a clear and grave abuse of authority in negotiating,

finalizing and agreeing to the terms of the MOA.

ISSUES and STAND:

(1)Does the BJE MOA violate the local autonomy doctrine?

YES.

The Memorandum of Agreement (MOA) on the creation of the Bangsamoro

Juridical Entity (BJE) violates the local autonomy doctrine for it relinquishes

not only the administrative powers but as well as the sovereign power. The

BJE MOA abuses the provision in Section 2 of Article X on Local Autonomy.

BJE is not only empowered with authority and responsibility for land use,

development, conservation and disposition of the natural resources within

their homeland; 1 but as well as the power to revoke and repeal existing laws

1 Paragraph 1 on Resources, of The Memorandum of Agreement.

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governing the said juridical entity2, the power to revoke existing agreements

and contracts,3 the power to exercise police power provided it does not

support any aggression against the Central Government, and the power to

enter into international treaties.4 Paragraph 8 on “Governance” in the MOA

further states that “the BJE shall be empowered to build, develop and maintain

its own institutions, inclusive of civil service, electoral, financial and banking,

education, legislation, legal, and economic, and police and internal security

force, judicial system and correctional institutions, necessary for developing a

progressive Bangsamoro society the details of which shall be discussed in the

negotiation of the comprehensive compact.”

(2) Does the President possess the mandate to approve the BJE

MOA?

NO.

The President, being the head of the Executive branch, is never omnipotent.

The powers of the President to execute and enforce laws are still subject to

limitations. This is expressly provided in Section 1 Article VII of the 1987

Costitution which states that, “The executive power shall be vested in the

President of the Philippines.” The power of the executive is iterated in Section

17 of Article VII.

The signing of the Memorandum of Agreement would be an encroachment in

the exclusive authority of the Congress to enact policies as conferred by the

Constitution. Herewith, the President does not have the authority to approve

2 Ibid., Parag. 93 Ibid., Parag. 9.4 Ibid., Parag 4.

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the Memorandum of Agreement as this would constitute an encroachment into

the exclusive powers, competence and prerogative of Congress.

(3)Does the BJE MOA violate the doctrine of Sovereignty?

YES.

The Bangsamoro Juridical Entity- Memorandum of Agreement is a clear

violation of Section 1 Article II of the 1987 Constitution whereby it is

stipulated that, “The Philippines is a democratic and republican State.

Sovereignty resides in the people and all government authority emanates from

them.” Sovereignty is the exclusive right to have power over an area of

governance, people, or oneself. Approval of the BJE MOA grants sovereignty

to the Bangsamoro thereby making it unconstitutional. Sovereignty is

inalienable and indivisible. Sovereignty cannot be relinquished by the State.

Moreover, the Memorandum of Agreement informally and impliedly amends

the Constitution. The territory of the Philippines as stipulated in Article I of

our Constitution is being restructured and transferred. The territory defines us

as a State is being changed by a new memorandum sought for the

Bangsamoro Juridical Entity. It is clear in the MOA that the Bangsamoro is

given the right, authority, jurisdiction, and responsibility over the natural

resources, titles and other potential energy source of the

Bangsamoro“historical land”.

(4) Is there a need for Constitutional Amendment subsequent

to the signing of the BJE MOA?

NO.

8

As mentioned in the Petition – In – Intervention filed by Franklin M. Drilon

and Adel Abbas Tamano, “the express provision in the MOA calling for the

modification of the legal framework of the Republic of the Philippines and the

admission by the Executive branch of the necessity of an act of Congress are

already admissions that the terms and conditions of the MOA have no legal

and constitutional basis.”5

As argued in the preceding issues, the BJE MOA is deemed unconstitutional

for the violation, among others, of the Constitutional provisions i. e., Section 1

and Section 2 of Article X, Section 5 Article XII, and Section 6 Article XVI.

If the Constitutional amendment were to push through, there would be a

mockery of law and justice—whenever laws are deemed unconstitutional, the

government would have to push for a Constitutional amendment only to give

credence to the power of Congress in enacting laws.

5 G.R. No. 183591

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LEGAL RESEARCH

FACTS:

Muslims in the Philippines make up 5 percent, or around 4 million, of the

Philippines’ total population of 82 million. They are geographically concentrated

in the islands of Mindanao and Sulu in the southern Philippines, where they

constitute around 20 percent of the region’s population of more than 16 million

Illustration of the plausible effect of the MOA-Ad BJE

The Muslims’ historical claim on Mindanao and Sulu as their homeland predates

the Spanish colonization of the Philippines that began with the arrival of General

Legaspi in 1565. As early as the latter part of the thirteenth century, local Islamic

communities and settlements of foreign Muslims were already thriving in Sulu.

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The first sultan of Sulu came to power around 1450; Sharif Kabunsuan, who

founded the Maguindanao sultanate, came to Mindanao around 1515. Thus, long

before the Spaniards consolidated their control over the northern part of the

Philippines, Islam was thriving in the southern islands, and the sultanates in Sulu

and Maguindanao were already well organized. Trade and commerce by Muslim

traders across the Malay regions and beyond were also flourishing.

But American colonization succeeded in subjugating the Muslim south by 1914.

Aijaz Ahmad has identified the factors behind the relatively swift success of the

Americans in contrast to the repeated failures of the Spaniards: First, the balance

of forces: the Americans had sophisticated weapons and the ability to concentrate

forces across the archipelago effectively. Second, a new model of colonial

administration: the Americans allotted considerable administrative powers to

governments at the municipal and district levels, which clinched their allegiance

to the colonial authority. Third, the demographic model of colonization: entire

populations, for the most part landless and ambitious, were encouraged to migrate

from the Visayas and Luzon to create Christian enclaves in overwhelmingly Moro

areas—that is, on lands the Muslims claimed as their own.

From 1968 to 1971, political organizations composed mostly of Moro students

waged numerous campaigns for the recognition of the Moros’ right to self-

determination as a people with a distinct history and identity. These movements

culminated in the establishment of the Moro National Liberation Front (MNLF),

headed by Nur Misuari, ment a professor at the University of the Philippines.

The Tripoli Agreement embodied the general principles for autonomy and its

institutional mechanism that would to be established. The details were to be

discussed later by a mixed committee composed of the representatives of the

government and the MNLF. The mixed committee met in Tripoli in February

1977 but no agreement on details of the autonomy was reached. The highest level

of intervention was sought to save the negotiation which had to be terminated on

March 3, 1977, the deadline provided for in the Tripoli Agreement. President

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Marcos and President Ghadaffi spoke together by telephone. Again, President

Marcos sent his wife to Tripoli to meet President Ghadaffi and exchanges of

cables between the two presidents followed.

The two presidents agreed that (1) a decision be issued by the President of the

Philippines declaring autonomy in the thirteen provinces covered in the Tripoli

Agreement; (2) a provisional government be formed with the participation of the

MNLF and the inhabitants of the areas of autonomy; and (3) a referendum be held

in the areas of autonomy concerning administrative arrangements. The Ghadaffi-

Marcos agreement became the basis of the government to unilaterally implement

the Tripoli Agreement which was strongly objected to by the MNLF. The

negotiations was on a stalemate until President Marcos was removed from power

during the EDSA I revolution.

After President Corazon C. Aquino assumed the presidency in 1986 the

government initiated the revival of the talks. The President sent Aquilino Q.

Pimentel and her brother in law Agapito A. Aquino to Jeddah to meet MNLF

chairman Nur Misuari. The meeting that took place at the OIC headquarters

resulted in the signing of the Jeddah Accord on January 3-4, 1987. The two panels

agreed to continue discussion of the proposal for the grant of full autonomy

(Jeddah Accord 1987).

The negotiations were again on track but both parties were not able to reconcile

their different proposals. The commission that drafted the 1987 constitution

provided for the organization of autonomous regions for Muslim Mindanao and

the Cordillera. With this constitutional mandate, President Aquino proceeded to

establish the autonomous region known as the Autonomous Region for Muslim

Mindanao (ARMM).

It was under the presidency of Fidel V. Ramos, a former military general who

succeeded President Aquino, that the final agreement between the government

and the MNLF was reached. On September 2, 1996, in Manila, Ambassador

Manuel T. Yan, Nur Misuari, Ali Alatas and Dr. Hamid Al-Ghabid, representing

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the government, MNLF, the OIC Committee of Six, and the OIC Secretariat,

respectively, affixed their signatures to the agreement, which was the full

implementation of the Tripoli Agreement of 1976 and embodied the totality of all

agreements, covenants and understanding between the government and the

MNLF. Prior to the signing of the final agreement three rounds of talks were held

in Tripoli and Jakarta with the active mediation of Indonesia.

After President Gloria Macapagal-Arroyo assumed office, she sought the

assistance of Malaysian Prime Minister Mahathir Mohammad and Indonesian

President AbdulRahman Wahid to convince the MILF to go back to the

negotiation table. Prime Minister Mahathir sent his top aides to talk to MILF

chairman Salamat Hashim. After series of trips by the Malaysian emissaries to the

Islamic Center in Camp Rajamuda, Salamat agreed to resume talks with the

government and sent his top deputy, Al-Haj Murad Ebrahim, the MILF Vice

Chairman for Military Affairs and Chief of Staff of the Bangsamoro Islamic

Armed Forces (BIAF), to Kuala Lumpur to meet the Philippine Presidential

Adviser on the Peace Process Eduardo Ermita.

The Murad-Ermita agreement provided for the resumption of the peace

negotiations to “continue the same from where it had stopped before April 27,

2000 until they shall have reached a negotiated political settlement of the

Bangsamoro problem. Tripoli was chosen as the venue for the resumption of the

negotiations. The meeting on June 19–22, 2001 resulted in the signing of the

Agreement on Peace Between the Government of the Republic of the Philippines

and the Moro Islamic Liberation Front, otherwise known as the Tripoli

Agreement on Peace of 2001.

The agreement called for the discussion of three issues: 1) security (ceasefire); 2)

rehabilitation and development of conflict-affected areas; and 3) ancestral

domain. The agreement recognized the distinct identity of the Bangsamoro as a

people occupying a definite territory, referred to in the document as the

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Bangsamoro homeland, and the inherent right of the Bangsamoro people over

their ancestral domain. It also acknowledged the fundamental right of the

Bangsamoro people to determine their future and political status, and that,

therefore, the problem was political in nature that needed a comprehensive, just

and lasting political settlement through negotiations, and that negotiations and

peaceful resolution of the conflict should involve consultations with the

Bangsamoro people free of any imposition. The agreement allowed the evacuees

to be awarded reparations for their properties lost or destroyed by reason of the

conflict. While previous agreements did not mention the participation of the OIC,

this time the MILF and the GRP wanted that it acted as observer and monitor

implementation of all agreements, not just the ceasefire agreement.

The second round of the resumed talks in Kuala Lumpur focused on the

implementing guidelines of the ceasefire. At the end of the meeting of the peace

panels, agreement on the Implementing Guidelines for the Security Aspect of the

GRP-MILF Tripoli Agreement of Peace of 2001 was signed on August 7, 2001 at

Putrajaya, Malaysia.

The third round was supposed to tackle the issue of the rehabilitation of refugees

and development of conflict-affected areas, but the two panels could not agree on

the details.

Malacañang announced that the negotiations would still continue through the back

channel with Secretary Norberto Gonzales, the Presidential Assistant on Special

Concerns, in charge of the part of the government. The talks resumed on May 7,

2002 at Putrajaya, Malaysia after months of back channel contacts. Instead of the

Dureza panel representing the government, Secretary Norberto Gonzales and

Secretary Eduardo Ermita were in Kuala Lumpur talking to the MILF. They

signed the version of the agreement that Secretary Dureza had refused to sign.

14

The agreement reached by the two parties provided for the respect of human

rights and observance of international humanitarian laws. It authorized the MILF

to determine, lead and manage rehabilitation and development projects through a

project implementing body that it would organize. The agreement also provided

that the GRP would provide reparations for properties lost in the conflict.

On February to December 2005, exploratory talks on ancestral domain were held,

breakthrough on contentious issue of ancestral land achieved at peace talks in

Malaysia between government and MILF rebels. On February 2006, talks resume

in Malaysia, there was an agreement reached on ancestral domain. The

Memorandum of Agreement on the Ancestral Domain (MOA-Ad BJE) grants an

expanded Autonomous Region in Muslim Mindanao (ARMM) its own basic law,

a system of governance that respond to the aspirations of the Bangsamoro people,

and affixes its territory, an internal security force, a system of banking and

finance, civil service, education and legislative institutions, full authority to

develop and dispose of minerals and natural resources within its territory and free

to enter into any economic cooperation and trade relations with foreign countries,

provided that such relationships and understandings do not include aggression

against the Government of the Republic of the Philippines. It is based on the

agreement for general cessation of hostilities, Tripoli peace agreement 2001,

Republic Act No. 6734, as amended by R.A. 9054 which provided for the basic

structure of government within the framework of the Constitution and national

sovereignty and the territorial integrity of the Republic of the Philippines, ILO

Convention No. 169 with respect to Indigenous and Tribal People of Independent

Countries and Compact rights entrenchment emanating from the regime of dar-ul-

mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace

agreement) that partakes the nature of a treaty device.

15

Senator Franklin Drilon raised arguments with respect to his disapproval of the

MOA-Ad BJE for the reason that the MOA infringes constitutional provisions

such as the separation of powers, contrary to law and other related matters.

ISSUE 1

Does the BJE MOA violate the local autonomy

doctrine?

YES.

The Memorandum of Agreement (MOA) on the creation of the Bangsamoro

Juridical Entity (BJE) violates the local autonomy doctrine for it relinquishes not

only the administrative powers but as well as the sovereign power.

To distinguish between BJE and MOA, the former is a system of governance that

shall be entrenched in the Bangsamoro ancestral domain (land, sea and air) after

the signing of the Comprehensive Peace Compact and Charter change; and the

MOA is document that provides the framework and principles of the

BJE.6Appendix A provides a copy of the said Memorandum of Agreement.

6 Mercado, Jun. “Bangsamoro Juridical Entity”. Retrieved August 25, 2008, from http://blogs.gmanews.tv/jun-mercado/archives/19-Bangsamoro-Juridical-Entity.html.

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In order to look into the matter with ease, it is but noteworthy to define local

autonomy and distinguish the forms of autonomy. In Limbona vs. Magelin7,

autonomy is either decentralization of administration or decentralization of power.

Decentralization of administration “delegates administrative powers to political

subdivision in order to broaden the base of government power and to make local

governments more responsive and accountable and to ensure their fullest

development as self-reliant communities. This is to make the local governments

more effective partners in the pursuit of national development and social

progress.” With this form of decentralization, the President is able to focus in

national affairs. The President cannot replace the decisions of local government

units. The President thereby acts as an overseer for the efficient implementation

of laws and ordinances in the local units.

On the other hand, decentralization of power involves the abdication of political

power in favor of the local autonomous units declared to be autonomous.8 An

example of this is the Autonomous Region of Muslim Mindanao where it is

granted the power to manage its affairs with minimal supervision from the central

government. In the words of the Supreme Court in the Limbona case, autonomous

regions are “free to chart their own destiny”.

Given that the central authority exercises minimal supervision in the two forms of

decentralization, where do they differ then? Article X of the 1987 Constitution

clearly puts the delineation. Decentralization of administration applies to the local

government units (LGU), which would include the provinces, cities,

municipalities, barangays, and other political subdivision as may be created by

law.9

In the Local Government Code of the Philippines, the LGU shall have an effective

allocation of powers, functions, responsibilities and resources,10 an accountable 7 170 SCRA 52 (1991).8 Ibid.9 Section 4 on Scope and Application of the Local Government Code of the Philippines.10 Paragraph 1 Section 3 on Operative Principles of Decentralization, Local Government Code.

17

and dynamic organizational structure,11 an appropriate appointing authority.12 The

LGU is also granted the power to create and broaden its own sources of revenue,

and is also granted the right to a just share in national taxes and an equitable share

in the proceeds of the utilization and development of the national wealth within

their respective areas.13 The power of the LGU includes all powers that are

implied therewith for the better administration of the respective jurisdictions. 14

Decentralization of powers, although applied in the case of autonomous regions,

basically grants the same powers as that which the Local Government Code

provides. However, autonomous regions—ARMM and the Cordillera

Autonomous Regions--15 are granted the power to administer and exercise

legislative powers.

Section 20. Within its territorial jurisdiction and subject to the

provisions of this Constitution and national laws, the organic act of

autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion

of the general welfare of the people of the region.

Nevertheless, the grant of such legislative powers to the autonomous regions

neither eliminates the close supervision of the Central Government; nor it implies

the giving of absolute power to administer.

11 Ibid., Parag. 2. 12 Ibid., Parag. 3.13 Ibid., Parag. 4.14 Ibid., Parag. 2 Section 16 on General Welfare.15 Section 1 Article X of the 1987 Constitution.

18

Section 16. The President shall exercise general supervision over

autonomous regions to ensure that laws are faithfully executed.

Section 17. All powers, functions, and responsibilities not granted by

this Constitution or by law to the autonomous regions shall be vested in

the National Government.

The point of the matter is: Provided that the BJE comes within the purview

of that which the Constitution could grant powers to, the Memorandum of

Agreement for the creation of the Bangsamoro Juridical Entity clearly

violates the doctrine of local autonomy because it awards powers way beyond

what the Constitution could grant.

Primarily, in the arguments hereinafter follow, we hold the assumption that the

violation of the local autonomy doctrine is tenable because the “juridical entity”

comes within the purview of Section 1 of Article X on Local Government. We do

not contest herewith the concept of “juridical entity” for it will be dealt more in

the succeeding pages. Ceteris paribus, we look into the stipulations of the MOA

and prove its violation of the local autonomy doctrine.

Secondly, we argue that the MOA includes powers that explicitly surrenders the

territorial integrity of the State, ownership and use of natural resources, and the

conduct of diplomatic and trade relations. 16

Article 1 of the Constitution provides for The Territory of the Philippines, while

the BJE claims authority and jurisdiction over the Ancestral Domain and

Ancestral lands, including both alienable and non-alienable lands encompassed

within their homeland and ancestral history. 17 The Government of the Republic of

the Philippines (GRP) agrees that the Bangsamoro has the right to self-

16 Drilon vs. GRP Peace Panel, G.R. No. 183591.17 Paragraph 6 on Concepts and Principles of The MOA.

19

governance provided for by the ancestral territoriality exercised originally under

the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw.18

Clearly, recognizing the ancestral territory of the Bangsamoro and giving them

the jurisdiction and authority to govern themselves is tantamount to giving them

the ownership of Mindanao, particularly territories that the Bangsamoro assert as

theirs.

This should never be the case. Doing so would create a state within a state.

In the words of Joaquin Bernas as quoted in the case of Drilon vs. GRP Peace

Panel19, the Philippines is a unitary form of government and there cannot be an

imperium in imperio. “Local governments can only be an intra sovereign

subdivision of one sovereign nation.”

Moreover, the BJE is NOT ONLY empowered with authority and responsibility

for land use, development, conservation and disposition of the natural resources

within their homeland; 20 BUT AS WELL AS the power to revoke and repeal

existing laws governing the said juridical entity21, the power to revoke existing

agreements and contracts,22 the power to exercise police power provided it does

not support any aggression against the Central Government, and the power to

enter into international treaties.23 Paragraph 8 on “Governance” in the MOA

further states that “the BJE shall be empowered to build, develop and maintain its

own institutions, inclusive of civil service, electoral, financial and banking,

education, legislation, legal, and economic, and police and internal security force,

judicial system and correctional institutions, necessary for developing a

progressive Bangsamoro society the details of which shall be discussed in the

negotiation of the comprehensive compact.”

18 Ibid., Parag. 4.19 Drilon vs. GRP Peace Panel, G.R. No. 183591.

20 Paragraph 1 on Resources, of The MOA.21 Ibid, Parag. 9.22 Ibid.23 Ibid, Parag. 4.

20

As once again quoted by Joaquin Bernas, one of the drafters of the Constitution,

“Autonomous regions do not have jurisdiction over national defense

and security, foreign relations and foreign trade, customs and tariff,

quarantine, currency, monetary affairs, foreign exchange, banking and

quasi-banking, external borrowing, posts and communications, air and

sea transport, immigration and deportation, citizenship and

naturalization and general auditing.”24

In comparison of the MOA provision and the contemporary construction given

the creation of autonomous regions, we can see the overlapping. This intent or

construction of Bernas being a stringent rule to secure the sovereignty of the

State, the BJE is hence a clear violation of the local autonomy granted the

territorial and political subdivisions of the Republic of the Philippines.

More over, the BJE MOA violates the definition of autonomy provided in

Limbona vs. Magelin. Accordingly, autonomy “delegates administrative powers

to political subdivision in order to broaden the base of government power and to

make local governments more responsive and accountable and to ensure their

fullest development as self-reliant communities. This is to make the local

governments more effective partners in the pursuit of national development and

social progress.”

How can the Central Government assure accountability of the BJE when it has

already relinquished its administrative and sovereign power? For the meantime,

we cannot discuss the solution to this matter because the solution would involve a

thorough discussion on the amendment of the Constitution and a revision of the

form of government of the Philippines.

24 I BERNAS, Joaquin G., Constitutional Structure and Powers of Government: Notes and Cases, 810 (2nd ed., 1997) in Drilon vs. GRP Peace Panel, G.R. No. 183591.

21

We nevertheless maintain that when a law is violative of the Constitution, we

uphold the supremacy of the fundamental law of the Land. The BJE MOA

violates the doctrine of local autonomy, hence, it has no room for application

ISSUE 2

Does the President possess the mandate to approve the

BJE MOA?

No.

The President in approving the Memorandum of Agreement on Bangsamoro

Juridical Entity exceeded her authority, acted beyond her jurisdiction, and

violated the Doctrine of Separation of Powers.

Under the separation of powers doctrine, the powers of the government are

distributed among three branches—the executive, legislative and judiciary. In

Angara vs. Electoral Commission25 and People vs. Vera,26 the branches of

government are separate from, yet coordinate and co-equal.27 Furthermore, while

these branches of the government are considered co-equals, the relationship that

exists between them is primarily characterized by independence and separation of

powers, presupposing mutual respect by and between them.28

25 63 Phil. 139, 158, (1936). 26 65 Phil 56 (1937).27 Ibid.28 In Re: Wenceslao Laureta, G.R. No. 68635, March 12, 1987, 148 SCRA 382, 420.

22

In United States vs. Tang Ho,29 it is held that it is the duty of the Legislature to

make the law, it is the duty of the Executive to execute law, and it is the duty of

the Judiciary to construe the law. The Legislature has no authority to execute or

construe the law, the Executive has no authority to make or construe the law, and

the Judiciary has no power to make or execute the law.

Bengzon vs. Drilon30stipulating on the separation of powers, it is said that the

Congress, the President, and the Judiciary may not encroach on fields allocated to

the other branches of government. The legislature is generally limited to the

enactment of laws, the executive to the enforcement of laws and the judiciary to

their interpretation and application to cases and controversies.

In the abovementioned cases together with a number of cases not mentioned

herewith, it is clear and evident that the Honorable Court has consistently

expressed that the main concern of the Doctrine of Separation of Powers is to

make certain that no branch of the government encroaches upon or interferes with

the other branch that is acting within its constitutional competence.

In the case at bar, the President, being the head of the Executive branch, is never

omnipotent. The powers of the President to execute and enforce laws are still

subject to limitations. This is expressly provided in Section 1 Article VII of the

1987 Costitution which states that, “The executive power shall be vested in the

President of the Philippines.” The power of the executive is iterated in Section

17 of Article VII stating that “The president shall have control of all the executive

departments, bureaus, and offices. He shall ensure that the laws be faithfully

executed.”

29 43 Phil. 1 (1922).30 G.R. No. 103524, April 15, 1992, 208 SCRA 133.

23

Among the powers vested to the President of the Philippines is the power to

execute contracts as provided in Executive Order 292 also known as the

Administrative Code of 1987. Chapter 12 Section 51 of the said code states that,

“(1)Contracts in behalf of the Philippines shall be executed by the President

unless authority thereof is expressly vested by law or by him in any other public

officer; and (2) contracts in behalf of the political subdivisions and corporate

agencies or instrumentalities shall be approved by their respective governing

boards or councils and executed by their respective executive heads.” The 1987

Constitution has also granted the President such power subject to limitation under

Article 7 section 21 wherein it states that, “No treaty or international agreement

shall be valid and effective unless concurred in by at least two-thirds of all the

Members of the Senate.” Based on the foregoing articles, it can be surmised that

the executive department headed by the President has the power to enter into a

contract on behalf of the State and that such power may be delegated to its

political subdivisions and corporate agencies.

However, in the case at hand, certain limitations in the Constitution are bypassed

by the BJE Memorandum of Agreement. This therefore makes the agreement

unconstitutional and beyond the jurisdiction of the executive department.

The President agreeing with the provisions in the MOA acted beyond its power.

Under Section 11 Article 10 of the 1987 Constitution:

“The Congress may, by law, create special metropolitan political

subdivisions, subject to a plebiscite as set forth in Section 10 hereof (Article 10

of the 1987 Constitution). The component cities and municipalities shall retain

their basic autonomy and shall be entitled to their own local executive and

legislative assemblies. The jurisdiction of the metropolitan authority that will

thereby be created shall be limited to basic services requiring coordination.”

Section 18 of the same Article states that:

“The Congress shall enact an organic act for each autonomous region with the

assistance and participation of the regional consultative commission composed

24

of representatives appointed by the President from a list of nominees from multi-

sectoral bodies. The organic act shall define the basic structure of government

for the region consisting of the executive department and legislative assembly,

both of which shall be elective and representative of the constituent political

units. The organic acts shall likewise provide for special courts with personal,

family, and property law jurisdiction consistent with the provisions of this

Constitution and national laws.”

The creation of the autonomous region shall be effective when

approved by majority of the votes cast by the constituent units in a plebiscite

called for the purpose, provided that only provinces, cities, and geographic areas

voting favorably in such plebiscite shall be included in the autonomous region.”

It is clear from the foregoing provisions that the Congress has the power or

jurisdiction over the said agreement because such agreement entails the creation

of an entity. The President, in both cases, is only vested with the power of

supervision as stated in the 1987 Constitution under Article 10 Sections 4 and 16

as herein presented:

Section 4. The President of the Philippines shall exercise general supervision

over local governments. Provinces with respect to component cities and

municipalities, and cities and municipalities with respect to component

barangays, shall ensure that the acts of their component units are within the

scope of their prescribed powers and functions.

Section 16. The President shall exercise general supervision over autonomous

regions to ensure that laws are faithfully executed.

Such power of the Congress is further elaborated in the Local Government Code

under Section 6 of Chapter 2.

The signing of the Memorandum of Agreement would be an encroachment in the

exclusive authority of the Congress to enact policies as conferred by the

Constitution. Herewith, the President does not have the authority to approve the

25

Memorandum of Agreement as this would constitute an encroachment into the

exclusive powers, competence and prerogative of Congress. 31

ISSUE 3

Does the BJE MOA violate the doctrine of

Sovereignty?

YES.

The Bangsamoro Juridical Entity- Memorandum of Agreement is a clear violation

of Section 1 Article II of the 1987 Constitution whereby it is stipulated that, “The

Philippines is a democratic and republican State. Sovereignty resides in the people

and all government authority emanates from them.”

Sovereignty is the exclusive right to have power over an area of governance,

people, or oneself. Approval of the BJE MOA grants sovereignty to the

Bangsamoro thereby making it unconstitutional. Sovereignty is inalienable and

indivisible. Sovereignty cannot be relinquished by the State.

Herewith are the main provisions laid down in the Memorandum of Agreement:

31 G.R. No. 183591

26

“It is essential to lay the foundation of the Bangsamoro homeland in order to

address the Bangsamoro people’s humanitarian and economic needs as well as

their political aspirations. Such territorial jurisdictions and geographic areas

being the natural wealth and patrimony represent the social, cultural and

political identity and pride of all the Bangsamoro people. Ownership of the

homeland is vested exclusively in them by virtue of their prior rights of

occupation that had inhered in them as sizeable bodies of people, delimited by

their ancestors since time immemorial, and being the first politically organized

dominant occupants.” “Both Parties acknowledge that ancestral domain does not

form part of the public domain but encompasses ancestral, communal, and

customary lands, maritime, fluvial and alluvial domains as well all natural

resources therein that have inured or vested ancestral rights on the basis of

native title. Ancestral domain and ancestral land refer to those held under claim

of ownership, occupied or possessed, by themselves or through the ancestors of

the Bangsamoro people, communally or individually since time immemorial

continuously to the present, except when prevented by war, civil disturbance,

force majeure, or other forms of possible usurpation or displacement by force,

deceit, stealth, or as a consequence of government project or any other voluntary

dealings entered into by the government and private individuals, corporate

entities or institutions.” “The Bangsamoro homeland and historic territory refer

to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains,

and the aerial domain, the atmospheric space above it, embracing the Mindanao-

Sulu-Palawan geographic region. However, delimitations are contained in the

agreed Schedules (Categories).”32

“Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the

authority and jurisdiction over the Ancestral Domain and Ancestral lands,

including both alienable and non-alienable lands encompassed within their

homeland and ancestral history, as well as the delineation of ancestral

domain/lands of the Bangsamoro people located therein.”33

With the above provisions, it is but clear that the Memorandum of Agreement

informally and impliedly amends the Constitution. The territory of the Philippines

as stipulated in Article I of our Constitution is being restructured and transferred.

The territory defines us as a State is being changed by a new memorandum sought

32 Bangsamoro Judicial Entity Memorandum of Agreement33 Ibid.

27

for the Bangsamoro Juridical Entity. It is clear in the MOA that the Bangsamoro

is given the right, authority, jurisdiction, and responsibility over the natural

resources, titles and other potential energy source of the Bangsamoro“historical

land”.

Moreover, the diplomatic and trade relation that is a primary duty exercised by a

State is being relinquished in favor of the Bangsamoro.

“The Bangsamoro juridical entity is free to enter into any economic cooperation

and trade relations with foreign countries: provided, however, that such

relationships and understandings do not include aggression against the

Government of the Republic of the Philippines; provided, further that it shall

remain the duty and obligation of the Central Government to take charge of

external defense. Without prejudice to the right of the Bangsamoro juridical

entity to enter into agreement and environmental cooperation with any friendly

country affecting its jurisdiction, XXX”34

The BJE violates not only the doctrine of sovereignty but moreover the doctrine

on local autonomy and the separation of powers. These two main issues are given

light in the other sections of this research.

To sum up, if the MOA were signed, the BJE would neither be an independent nor a

full-fledged state. Given “shared authority and responsibility,” it may be safer to refer

to it as a “semi-state” or “quasi-state.” 35Being sub-national in its territory, we might

also call it a “sub-state.” This might jibe with the general notion that free associated

states are usually smaller minor partners to larger major partners, e.g. an existing

independent State or the former colonial power. But again, the terms of the free

association agreed upon can provide for a more equitable relationship between

peoples or nations which are ideally sovereign equals. The MOA-AD seems to be

going in this direction, which is just as well for redressing historical grievances and

34 Ibid.35 The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996.

28

imbalances. Perhaps, a best effort at an “associative relationship” should be made and

be given a chance — before all concerned consider other options.

For the meantime, the BJE Memorandum of Agreement is not only

unconstitutional but a blanket of vague ideals—a document which intends to end

the peace conflict in Mindanao and a document which renders an abstract and

unconstitutional solution.

ISSUE 4

Is there a need for Constitutional Amendment subsequent

to the signing of the BJE MOA?

NO

As mentioned in the Petition – In – Intervention filed by Franklin M. Drilon and

Adel Abbas Tamano, “the express provision in the MOA calling for the

modification of the legal framework of the Republic of the Philippines and the

admission by the Executive branch of the necessity of an act of Congress are

already admissions that the terms and conditions of the MOA have no legal and

constitutional basis.”36

The Constitution, being the fundamental law of the land, should be the basis of all

the acts, agreements, statutes or provisions that would be enacted, and not the

other way around.

As argued in the preceding issues, the BJE MOA is deemed unconstitutional for

the violation, among others, of the following provisions:

36 G.R. No. 183591

29

Section 1, Article X of the 1987 Constitution: The territorial and

political subdivisions of the Republic of the Philippines are the

provinces, cities, municipalities, and barangays. There shall be

autonomous regions in Muslim Mindanao and the Cordilleras as

hereinafter provided.

Section 2, Article X: The territorial and political subdivisions shall

enjoy local autonomy.

Section 5, Article XII: The State, subject to the provisions of this

Constitution and national development policies and programs, shall

protect the rights of indigenous cultural communities to their ancestral

lands to ensure their economic, social, and cultural well-being.

Section 6, Article XVI: The State shall establish and maintain one

police force, which shall be national in scope and civilian in character,

to be administered and controlled by a national police commission. The

authority of local executives over the police units in their jurisdiction

shall be provided by law.

If the Constitutional amendment were to push through, there would be a mockery

of law and justice—whenever laws are deemed unconstitutional, the government

would have to push for a Constitutional amendment only to give credence to the

power of Congress in enacting laws.

We live in a world where the absolute right and absolute wrong are inexistent.

Even the Congress that is vested with the power to make laws does not exercise

an infallible power. Like the other branches of government, the Congress need be

checked and there are times when it need be corrected. The same is true with the

Executive.

30

In connection thereto, The BJE MOA being highly endorsed by the President is

not equipped with the power to eliminate Judicial and Legislative review. Well in

fact, it need be reviewed and revised to further its consistency with the

Constitution. The BJE MOA need be reviewed and revised for it to be consistent

with the Constitution; and not change the Constitution for it to be consistent with

the Memorandum of Agreement. The Constitution is the highest law of the land

and all laws should emanate from it.

Changing the Constitution to comply with the BJE MOA that violates the basic

laws of the land is ABSURD.

APPENDIX A

31

INITIAL MEMORANDUM OF AGREEMENT

Re: BANGSAMORO JURIDICAL ENTITY

CONCEPTS AND PRINCIPLES

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify

themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to

those who are natives or original inhabitants of Mindanao and its adjacent islands

including Palawan and the Sulu archipelago at the time of conquest or colonization of

its descendants whether mixed or of full blood. Spouses and their descendants are

classified as Bangsamoro. The freedom of choice of the Indigenous people shall be

respected.

2. It is essential to lay the foundation of the Bangsamoro homeland in order to

address the Bangsamoro people’s humanitarian and economic needs as well as their

political aspirations. Such territorial jurisdictions and geographic areas being the

natural wealth and patrimony represent the social, cultural and political identity and

pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively

in them by virtue of their prior rights of occupation that had inhered in them as

sizeable bodies of people, delimited by their ancestors since time immemorial, and

being the first politically organized dominant occupants.

3. Both Parties acknowledge that ancestral domain does not form part of the public

domain but encompasses ancestral, communal, and customary lands, maritime, fluvial

and alluvial domains as well all natural resources therein that have inured or vested

ancestral rights on the basis of native title. Ancestral domain and ancestral land refer

to those held under claim of ownership, occupied or possessed, by themselves or

through the ancestors of the Bangsamoro people, communally or individually since

time immemorial continuously to the present, except when prevented by war, civil

32

disturbance, force majeure, or other forms of possible usurpation or displacement by

force, deceit, stealth, or as a consequence of government project or any other

voluntary dealings entered into by the government and private individuals, corporate

entities or institutions.

4. Both Parties acknowledge that the right to self-governance of the Bangsamoro

people is rooted on ancestral territoriality exercised originally under the suzerain

authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro

sultanates were states or karajaan/kadatuan resembling a body politic endowed with

all the elements of nation-state in the modern sense. As a domestic community

distinct from the rest of the national communities, they have a definite historic

homeland. They are the “First Nation” with defined territory and with a system of

government having entered into treaties of amity and commerce with foreign nations.

The Parties concede that the ultimate objective of entrenching the Bangsamoro

homeland as a territorial space is to secure their identity and posterity, to protect their

property rights and resources as well as to establish a system of governance suitable

and acceptable to them as distinct dominant people.

5. Both Parties affirm their commitment to mutually respect the right to one’s

identity and the parity of esteem of everyone in the political community. The

protection of civil rights and religious liberties of individuals underlie the basis of

peace and justice of their totality of relationships.

6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the

authority and jurisdiction over the Ancestral Domain and Ancestral lands, including

both alienable and non-alienable lands encompassed within their homeland and

ancestral history, as well as the delineation of ancestral domain/lands of the

Bangsamoro people located therein.

7. Vested property rights upon the entrenchment of the BJE shall be recognized and

respected subject to paragraph 9 of the strand on Resources.

TERRITORY

33

1. The Bangsamoro homeland and historic territory refer to the land mass as well as

the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the

atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic

region. However, delimitations are contained in the agreed Schedules (Categories).

2. Toward this end, the Parties entered into the following stipulations:

a. The Government of the Republic of the Philippines (GRP) and the Moro Islamic

Liberation Front (MILF) as the Parties to this Agreement commit themselves to the

full and mutual implementation of this framework agreement on territory with the

aim of resolving outstanding issues that emanate from the consensus points on

Ancestral Domain.

b. The Parties confirm their understanding that the mutual goal of reaching an

agreement on Bangsamoro territory specific to mapping the outlying borders and the

boundaries affecting local government units will lead to consolidation of the agreed

texts on the Ancestral Domain Strands.

c. The Parties affirm that the core of the BJE shall constitute the present geographic

area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar,

Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in

the ARMM during the 2001 plebiscite;

d. Without derogating from the requirements of prior agreements, the government

stipulates to conduct and deliver, within six (6) months following the signing of the

Memorandum of Agreement on Ancestral Domain,

e. The areas covered by Category B has already been reflected on a map and

officially agreed by both Parties.

f. Internal Waters:

The Bangsamoro Juridical Entity (BJE) shall have jurisdiction over the management,

conservation, development, protection, utilization and disposition of all natural

resources, living and non-living, within its internal waters extending fifteen (15)

kilometers from the coastline of the BJE area.

34

g. Territorial Waters:

(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to

the Republic of the Philippines (RP) baselines south east and south west of mainland

Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central

Government and the BJE shall exercise joint jurisdiction, authority and management

over areas and [of] all natural resources, living and non-living contained therein. The

details of such management of the Territorial Waters shall be provided in an

agreement to be entered into by the Parties.

(2) The boundaries of the territorial waters shall stretch beyond the 15-km BJE

internal waters up to the Central government’s baselines under existing laws. In the

southern and eastern part of the BJE, it shall be demarcated by a line drawn from the

Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of

the Philippines. On the northwestern part, it shall be demarcated by a line drawn from

Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the

western part of Palawan, it shall be demarcated by a line drawn from the boundary of

Bataraza and Rizal up to the straight baselines of the Philippines.

The final demarcation shall be determined by a joint technical body composed of

duly-designated representatives of both Parties, in coordination with the appropriate

Central Government agency in accordance with the above guidelines.

h. Sharing of Minerals on Territorial Waters:

Consistent with paragraphs 5 and 6 of the provisions on Resources, all potential

sources of energy, petroleum in situ, hydrocarbon, natural gas and other minerals,

including deposits or fields found within the territorial waters, shall be shared

between the Central Government and the BJE in favor of the latter through

production sharing agreement or economic cooperative agreement.

i. Activities Allowed on Territorial Waters:

(1) The Parties shall have authority to carry out the following activities within the

territorial waters:

(a) Exploration and utilization of the natural resources, whether living or non-living

within the territorial waters;

35

(b) Establishments and use of artificial islands, installations and structures;

(c) Marine scientific research;

(d) Protection and the preservation of the marine environment;

(e) Conservation of living resources;

(f) Regulation of shipping and fishing activities;

(g) Enforcement of police and safety measures, including interdiction of the entry and

use of the waters by criminal elements and hot pursuit of suspected criminal

elements;

(h) Regulation and control of contraband and illegal entry of prohibited materials and

substances, including smuggling; and

(i) Such other measures as the Parties may otherwise mutually agree.

(2) Activities relating to exploration and utilization of non-living resources, as well as

paragraphs (c) and (d) of the Authorized Activities will be carried out on a joint basis

agreed by the Parties which may be in the form of production sharing agreements or

joint development pacts.

j. Establishment of a Joint Commission:

(1) The Parties shall establish a Joint Commission, which shall elaborate the

modalities for the implementation and the carrying out of the Authorized Activities

and the measures adopted in cases of allegation of breach, and carry out any other

functions which may be assigned to it by the Parties for the purpose of implementing

the joint management of resources.

(2) The Joint Commission shall consist of one representative from each Party, who

are assisted by advisers as may be needed. The conclusions of the Joint Commission

shall be adopted by consensus and shall only be recommendatory in nature. Only

when the conclusions of the Joint Commission are adopted by the Parties do they

become binding on the Parties.

36

k. Demarcation and Status of Territorial Waters:

The demarcation and status of the BJE territorial waters shall be finally determined

together with the demarcation and final status of Category B of the BJE.

3. From and after entrenchment of compact rights over the Bangsamoro homeland

and the territorial jurisdictions for associative governance shall likewise embrace

those under proclamation for agricultural and human settlements intended for the

Bangsamoro people, all alienable and disposable land, pasture lands, timberlands

together with all existing civil and military reservations, parks, old growth or natural

forests declared as forest reserves, watersheds, mangroves, fishponds, wetlands,

marshes, inland bodies of water and all bays, straits and channels found within the

BJE.

4. All territorial and geographic areas in Mindanao and its adjacent islands including

Palawan, and the Sulu archipelago that have been recognized, and/or delineated as

ancestral domain and ancestral land of the Bangsamoro people as their geographic

areas, inclusive of settlements and reservations, may be formed or constituted into

political subdivisions of the Bangsamoro territorial jurisdictions subject to the

principles of equality of peoples and mutual respect and to the protection of civil,

political, economic, and cultural rights in their respective jurisdictions.

5. For purposes of territorial delimitation, the Parties have agreed to the joint

determination of geographic areas encompassed within the territorial borders of the

Bangsamoro homeland and territory based on the technical maps and data submitted

by both sides as provided above.

RESOURCES

1. The Bangsamoro juridical entity is empowered with authority and responsibility

for the land use, development, conservation and disposition of the natural resources

within the homeland. Upon entrenchment of the Bangsamoro juridical entity, the land

tenure and use of such resources and wealth must reinforce their economic self-

sufficiency. Among the purposes or measures to make progress more rapid are:

37

a. Entry into joint development, utilization, and exploitation of natural resources

designed as commons or shared resources, which is tied up to the full setting of

appropriate institution, particularly affecting strategic minerals.

b. Stimulation of local economy by a range of mechanism, in particular the need to

address unemployment and improvement of living conditions for the population in

the Bangsamoro juridical entity;

c. Intensification of measures needed to uproot the cause of poverty in the

Bangsamoro juridical entity through responsible harnessing and development of its

natural resources; and

d. Undertaking program review of public services, industrial or trade-related and

agrarian-related issues in situations of different sectors of the society in the

Bangsamoro juridical entity, which acquire communal character deriving from the

special nature of their industry.

2. The Bangsamoro People through their appropriate juridical entity shall, among

others, exercise power or authority over the natural resources within its territorial

jurisdiction:

a. To explore, exploit, use or utilize and develop their ancestral domain and ancestral

lands within their territorial jurisdiction, inclusive of their right of occupation,

possession, conservation, and exploitation of all natural resources found therein;

b. To conserve and protect the human and natural environment for their sustainable

and beneficial enjoyment and their posterity;

c. To utilize, develop, and exploit its natural resources found in their ancestral

domain or may enter into a joint development, utilization, and exploitation of natural

resources, specifically on strategic minerals, designed as commons or shared

resources, which is tied up to the final setting of appropriate institution.

d. To revoke or grant forest concessions, timber license, contracts or agreements in

the utilization and exploitation of natural resources designated as commons or shared

resources, mechanisms for economic cooperation with respect to strategic minerals,

falling within the territorial jurisdiction of the Bangsamoro juridical entity;

38

e. To enact agrarian laws and programs suitable to the special circumstances of the

Bangsamoro people prevailing in their ancestral lands within the established

territorial boundaries of the Bangsamoro homeland and ancestral territory is within

the competence of the Bangsamoro juridical entity; and

f. To use such natural resources and wealth to reinforce their economic self-

sufficiency.

3. The Bangsamoro Juridical Entity, and the Central Government agree on wealth-

sharing based on a mutually agreed percentage ratio in favor of the Bangsamoro

juridical entity through an economic cooperation agreement or arrangement over the

income and revenues that are derived from the exploration, exploitation, use and

development of any resources for the benefit of the Bangsamoro people.

4. The Bangsamoro juridical entity is free to enter into any economic cooperation and

trade relations with foreign countries: provided, however, that such relationships and

understandings do not include aggression against the Government of the Republic of

the Philippines; provided, further that it shall remain the duty and obligation of the

Central Government to take charge of external defense. Without prejudice to the right

of the Bangsamoro juridical entity to enter into agreement and environmental

cooperation with any friendly country affecting its jurisdiction, it shall include:

a. the option to establish and open Bangsamoro trade missions in foreign countries

with which it has economic cooperation agreements; and

b. the elements bearing in mind the mutual benefits derived from Philippine

archipelagic status and security.

And, in furtherance thereto, the Central Government shall take necessary steps to

ensure the Bangsamoro juridical entity’s participation in international meetings and

events, e.g. ASEAN meetings and other specialized agencies of the United Nations.

This shall entitle the said juridical entity participation in Philippine official missions

and delegations that are engaged in the negotiation of border agreements or protocols

for environmental protection, equitable sharing of incomes and revenues, in the areas

of sea, seabed and inland seas or bodies of water adjacent to or between islands

forming part of the ancestral domain, in addition to those of fishing rights.

39

5. Jurisdiction and control over, and the right of exploring for, exploiting, producing

and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral

oil and natural gas, whether onshore or offshore, is vested in the Bangsamoro

juridical entity as the party having control within its territorial jurisdiction, provided

that in times of national emergency, when public interest so requires, the Central

Government may, during the emergency, for a fixed period and under reasonable

terms as may be agreed by both Parties, temporarily assume or direct the operations

of such strategic resources.

6. The Bangsamoro government-take or profit split from total production shall be

shared with the Central Government on a percentage ratio of 75%/25% in favor of the

Bangsamoro juridical entity. All royalties, bonuses, taxes, charges, custom duties or

imposts on natural resources and mineral resources shall be shared by the Parties on a

percentage ratio of 75%/25% in favor of the Bangsamoro juridical entity.

7. The legitimate grievances of the Bangsamoro people arising from any unjust

dispossession of their territorial and propriety rights, customary land tenures, or their

marginalization shall be acknowledged. Whenever restoration is no longer possible,

the GRP shall take effective measures of adequate reparation collectively beneficial

to the Bangsamoro people, in such quality, quantity and status to be determined

mutually by both Parties.

8. All proclamations, issuances, policies, rules and guidelines declaring old growth or

natural forests and all watersheds within the BJE as forest reserves shall continue to

remain in force until otherwise modified, revised or superseded by subsequent

policies, rules and regulations issued by the competent Bangsamoro authority or

juridical entity.

9. Forest concessions, timber licenses, contracts or agreements, mining concessions,

Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management

Agreements (IFMA), and other land tenure instruments of any kind or nature

whatsoever granted by the Philippine Government including those issued by the

present Autonomous Region in Muslim Mindanao (ARMM) shall continue to operate

from the date of formal entrenchment of the Bangsamoro juridical entity unless

otherwise expired, reviewed, modified and/or cancelled by the latter.

40

10. The Parties recognized an immediate need to establish a five-member

Bangsamoro economic-expert mission (the “Mission”) bearing in mind that the

functioning of the economy and the operation of institutions involve financial and

other resource management as well as parallel or complementary means, by which the

Bangsamoro Development Agency will manage and administer resources acquired for

the above purposes, especially in coordinating strategies and programs for

cooperation in all fields.

11. The said Mission acts as a link in the conduct of Bangsamoro juridical entity’s

associative parallel relationships and shall cooperate fully with all organizations

involved in implementation of the peace settlement. It shall launch a plan and joint

international appeal for the repatriation and development of the conflict affected areas

in Mindanao. Persons appointed thereto must be familiar with the specific economic,

political and legal characteristics in the Mindanao-Sulu-Palawan region and must

possess recognized competence, integrity, and high moral standing.

12. Cognizant that the Bangsamoro economic-expert Mission will benefit from

international expertise, both the Central Government and the BJE hereby join the

Third Party facilitator in inviting international funding institutions or equivalent

entities for reconstruction and development to appoint two members and to designate

one as the Chairman. The BJE shall designate one member as Co-Chairman. The

remaining two members shall each be designated by the Central Government and the

BJE.

GOVERNANCE

1. The recognition and peaceful resolution of the conflict must involve consultations

with the Bangsamoro people free of any imposition in order to provide chances of

success and open new formulas that permanently respond to the aspirations of the

Bangsamoro people.

1. The ultimate objective of entrenching the Bangsamoro homeland as a territorial

space is to secure their identity and posterity, to protect their property rights and

resources as well as to establish a system of governance suitable and acceptable to

41

them as a distinct dominant people. The parties respect the freedom of choice of the

indigenous peoples.

3. The Parties agree to invite a multinational third-party to observe and monitor the

actual implementation of the comprehensive compact which will embody the details

for the effective enforcement of this Agreement. The participation of the third-party

shall not in any way affect the status of the relationship between the Central

Government and the BJE.

4. The relationship between the Central Government and the Bangsamoro juridical

entity shall be associative characterized by shared authority and responsibility with a

structure of governance based on executive, legislative, judicial and administrative

institutions with defined powers and functions in the comprehensive compact. A

period of transition shall be established in a comprehensive peace compact specifying

the relationship between the Central Government and the BJE.

5. The modalities for the governance intended to settle the outstanding negotiated

political issues are deferred after the signing of the Memorandum of Agreement on

Ancestral Domain.

The establishment of institutions for governance in a comprehensive peace compact,

together with its modalities during the transition period, shall be fully entrenched and

established in the basic law of the Bangsamoro juridical entity. The Parties shall

faithfully comply with their commitment to the associative arrangements upon entry

into force of a comprehensive compact between the MILF and GRP.

7. The Parties agree that the mechanisms and modalities for the actual

implementation of this MOA AD shall be spelt out in the comprehensive compact to

mutually take such steps to enable it to occur effectively.

Any provisions of the MOA on Ancestral Domain requiring amendments to the

existing legal framework shall come into force upon signing of a comprehensive

compact and upon effecting the necessary changes to the legal framework with due

regard to non derogation of prior agreements and within the stipulated timeframe to

be contained in the comprehensive compact.

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8. The parties agree that the BJE shall be empowered to build, develop and maintain

its own institutions, inclusive of, civil service, electoral, financial and banking,

education, legislation, legal, economic, and police and internal security force, judicial

system and correctional institutions, necessary for developing a progressive

Bangsamoro society the details of which shall be discussed in the negotiation of the

comprehensive compact.

9. The Parties further agree to undertake activities which will enhance the capacity of

the government institutions during the transition through technical assistance,

information-sharing and human resource development.

10. Matters concerning the details of the agreed consensus points on Governance

not covered under this Agreement shall be deferred to, and discussed during, the

negotiations of the comprehensive compact.

APPENDIX B

The National Internal Revenue Act of 1997

REPUBLIC ACT NO. 9504

June 17, 2008

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ANA CT AMENDING SECTION 22, 24, 34, 35, 51, AND 79 OF REPUBLIC ACT

NO. 8424, AS AMENDED OTHERWISE KNOWN AS THE NATIONAL

INTERNAL REVENUE OF 1997

Be it enacted by the Senate and House of Representative of the Philippines in Congress

assembled:

SECTION 1. Section 22 of Republic Act No. 8424, as amended, otherwise known as the

National Internal Revenue Code of 1997, is hereby further amended by adding the

following definition after Subsection (FF) to read as follows:

"SEC. 22. Definitions. — when used in this Title:

"(A) x x x.

"x x x

"(FF) x x x.

"(GG) the term 'statutory minimum wage' earner shall refer to a worker in the private

sector paid the statutory minimum wage, or to an employee in the public sector with

compensation income of not more than the statutory minimum wage in the non-

agricultural sector where he/she is assigned."

SEC. 2. Section 24(A) of Republic Act No. 8424, as amended, otherwise known as the

National Internal Revenue Code of 1997, is hereby further amended to read as follows:

"SEC. 24. Income Tax Rates. —

"(A) Rates of Income Tax on Individual Citizen and Individual Resident Alien of the

Philippines. —

"(1) x x x:

"x x x; and

"(c) On the taxable income defined in Section 31 of this code, other than income subject

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to tax under Subsections (B), (C) and (D) of this Section, derived for each taxable year

from all sources within the Philippines by an individual alien who is a resident of the

Philippines.

"(2) Rates of Tax on Taxable Income of Individuals. — The tax shall be computed in

accordance with and at the rates established in the following schedule:

"Not over P10,000 ..................................5%

"Over P10,000 but not over P30,000..........P500+10% of the excess over P10,000

"Over P30,000 but not over P70,000..........P2,500+15% of the excess over P30,000

"Over P70,000 but not over P140,000.........P8,500+20% of the excess over P70,000

"Over P140,000 but not over P250,000........P22,500+25% of the excess over P140,000

"Over P250,000 but not over P500,000........P50,000+30% of the excess over P250,000

"Over P5000,000......................................P125,000+32% of the excess over P500,000

"For married individuals, the husband and wife, subject to the provision of Section 51 (D)

hereof, shall compute separately their individual income tax based on their respective

total taxable income: Provided, that if any income cannot be definitely attributed to or

identified as income exclusively earned or realized by either of the spouses, the same

shall be divided equally between the spouses for the purpose of determining their

respective taxable income.

"Provided, That minimum wage earners as defined in Section 22 (HH) of this Code shall

be exempt from the payment of income tax on their taxable income: Provided, further,

That the holiday pay, overtime pay, night shift differential pay and hazard pat received by

such minimum wage earners shall likewise be exempt from income tax.

SEC. 3. Section 34(L) of Republic Act No. 8424, as amended, otherwise known s the

National Internal Revenue Code of 1997, is hereby amended to read as follows:

"SEC. 34. Deductions from Gross Income. — Except for taxpayers earning

compensation income arising from personal services rendered under an employer-

employee relationship where no deductions shall be allowed under this Section other than

under Subsection (M)hereof, in computing taxable income subject to income tax under

Sections 24(A); 25(A); 26; 27(A), (B), (C); and 28(A)(1), there shall be allowed the

following deductions from the gross income:

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"(A) Expenses. —

"x x x.

"(L) Optional Standard Deduction. - In lieu of the deductions allowed under the

preceding Subsections, an individual subject to tax under Section 24, other than a

nonresident alien, may elect a standard deduction in an amount not exceeding forty

percent (40%) of his gross sales or gross receipts, as the case may be. In the case of a

corporation subject to tax under section 27(A) and 28(A)(1), it may elect a standard

deduction in an amount not exceeding forty percent (40%) of it gross income as defined

in Section 32 of this Code. Unless the taxpayer signifies in his return his intention to elect

the optional standard deduction, he shall be considered as having availed himself of the

deductions allowed in the preceding Subsections. Such election when made in the return

shall be irrevocable for the taxable year for which the return is made: Provided, That an

individual who is entitled to and claimed for the optional standard shall not be required to

submit with his tax return such financial statements otherwise required under this Code:

Provided, further, That except when the Commissioner otherwise permits, the said

individual shall keep such records pertaining to his gross sales or gross receipts, or the

said corporation shall keep such records pertaining to his gross income as defined in

Section 32 of this Code during the taxable year, as may be required by the rules and

regulations promulgated by the Secretary of Finance, upon recommendation of the

Commissioner.

"(M) x x x. —

"x x x."

SEC. 4. Section 35(A) and (B) of Republic Act No. 8424, as amended, otherwise known

as the National Internal Revenue Code of 1997, is hereby amended to read as follows:

"SEC. 35. Allowance of Personal Exemption for Individual Taxpayer. -

"(A) In General. — For purposes of determining the tax provided in Section 24(A) of

this title, there shall be allowed a basic personal exemption amounting to Fifty thousand

pesos (P50,000) for each individual taxpayer.

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"In the case of married individual where only one of the spouses is deriving gross

income, only such spouse shall be allowed the personal exemption.

"(B) Additional Exemption for Dependents. — There shall be allowed an additional

exemption of Twenty-five thousand pesos (25,000) for each dependent not exceeding

four (4).

"The additional exemption for dependents shall be claimed by only one of the spouses in

the case of married individuals.

"In the case of legally separated spouses, additional exemptions may be claimed only by

the spouse who has custody of the child or children: Provided, That the total amount of

additional exemptions that may be claimed by both shall not exceed the maximum

additional exemptions herein allowed.

"For purposes of this Subsection, a ‘dependent’ means a legitimate, illegitimate or

legally adopted child chiefly dependent upon and living with the taxpayer if such

dependent is not more than twenty-one (21) years of age, unmarried and not gainfully

employed or if such dependent, regardless of age, is incapable of self-support because of

mental or physical defect.

"x x x."

SEC. 5. Section 51 (A)(2) of Republic Act No, 8424, as amended, otherwise known as

the National Internal revenue Code of 1997, is hereby further amended to read as follows:

"SEC. 51. Individual Return. —

"(A) Requirements. —

"(1) Except as provided in paragraph (2) of this Subsection, the following individuals are

required to file an income tax return:

"(a) x x x;

"x x x.

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"(2) The following individuals shall not be required to file an income tax return:

"(a) x x x;

"(b) An individual with respect to pure compensation income, as defined in Section

32(A)(1), derived from such sources within the Philippines, the income tax on which has

been correctly withheld under the provisions of Section 79 of this Code: Provided, That

an individual deriving compensation concurrently from two or more employers at any

time during the taxable year shall file an income tax return;

"(c) x x x; and

"(d) A minimum wage earner as defined in Section 22(HH) of this Code or an individual

who is exempt from income tax pursuant to the provisions of this Code and other laws,

general or special.

"x x x."

SEC 6. Section 79(A) of Republic Act No. 8424, as amended, otherwise known as the

National Internal Revenue Code of 1997, is hereby further amended to read as follows:

"Section 79. Income Tax Collected at Source. —

"(A) Requirement of Withholding. — Except in the case of a minimum wage earner as

defined in Section 22(HH) of this code, every employer making payment of wages shall

deduct and withhold upon such wages a tax determined in accordance with the rules and

regulations to be prescribed by the Secretary of Finance, upon recommendation of the

Commissioner:

"x x x."

SEC. 7. Separability Clause. — If any provision of this Act is declared invalid or

unconstitutional, other provisions hereof which are not affected thereby shall continue to

be in full force and effect.

SEC. 8. Repealing Clause. — Any law, presidential decree or issuance, executive order,

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letter of instruction, administrative order, rule or regulation contrary to or inconsistent

with any provision of this Act as hereby amended or modified accordingly.

SEC 9. Effectivity Clause. — This Act shall take fifteen (15) days following its

publication in the official Gazette or in at least two (2) newspaper of general

circulation.

Approved,

(Sgd.) PROSPERO C. NOGRALES (Sgd.) MANNY VILLAR

Speaker of the House of Representatives President of the Senate

This Act which is a consolidation of House Bill 3971 and Senate Bill No. 2293

was finally passed by the House of Representatives and the Senate on May 28,

2008 and May 27, 2008 respectively.

(Sgd.) MARILYN B. BARUA-YAP (Sgd.) EMMA LIRIO-REYES

Secretary General

House of Representatives

Secretary of the Senate

Approved: JUN 17, 2008

(Sgd.) GLORIA MACAPAGAL - ARROYO

President of the Philippines

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