Bangsamoro Basic Law is unconstitutional

Public office in the Philippines may be created only by law, that is, either by the Constitution, which is the fundamental law of the land, or by a law duly enacted by the Congress.  Examples of public offices created by the Constitution include the Judicial and Bar Council, the constitutional commissions, the Sandiganbayan, and the Ombudsman.  Public offices created by law include the executive departments enumerated in the Administrative Code of 1987, the Court of Appeals and the trial courts, the University of the Philippines, and the Securities and Exchange Commission.  This restriction on the power to create public office is an adjunct to the principles of “separation of powers” and “checks and balances” which characterize the 1987 Constitution.   

The term “law” includes enactments made by the now-defunct legislatures of the country including the Philippine Legislature, the Philippine Assembly, and the short-lived Batasang Pambansa.  It also includes presidential decrees issued by President Ferdinand Marcos under the 1973 Constitution, and executive orders issued by President Corazon Aquino prior to the opening of the first Congress under the 1987 Constitution.

Public office may also be created by authority of law, that is, when the Constitution or a law authorizes the President of the Philippines to create a public office.  Without such authorization, the President is powerless to create a public office.  Section 17, Article VII of the 1987 Constitution mandates the President to “ensure that the laws be faithfully executed.”  To this very limited extent, therefore, the President can create a public office solely for that purpose.

On December 17, 2012, President Benigno Aquino III issued Executive Order No. 120 which created the Transition Commission made up of fifteen (15) individuals.  Under this EO, the Commission is tasked with drafting a Bangsamoro Basic Law to replace the organic act currently governing the Autonomous Region in Muslim Mindanao (ARMM).  A majority of the commissioners, the chairman included, are Muslims.

Under the E.O. No. 120 and the Framework Agreement signed by the government and the Moro Islamic Liberation Front, the draft of the Bangsamoro Basic Law shall be submitted to the Congress for its enactment into law.  Once the measure is enacted by the Congress, the Transition Commission will cease to exist.  Thereafter, a plebiscite on the basic law, which shall be limited to the qualified voters in the territory specified in the framework agreement, shall be held.  Once the basic law is ratified, the ARMM shall be abolished, and a Bangsamoro Transition Authority (BTA) shall replace the Transition Commission.  BTA officials shall be appointed by the President, and they will serve in the interim until 2016 when a Bangsamoro Government shall have been elected and installed.    

Pursuant to the Framework Agreement, the Bangsamoro Government shall keep 75 per cent of the taxes in the Bangsamoro region, and shall get the lion’s share of revenues from natural resources.  Everything earned from the exploitation of fossil fuels will be shared equally with the national government. 

As of this writing, the draft of the Bangsamoro Basic Law is ready for submission to the Congress.  If the Congress enacts the Bangsamoro Basic Law, the same shall be in violation of the 1987 Constitution.

The Bangsamoro Basic Law is unconstitutional for two principal reasons.

First, the Transition Commission which drafted it is void because President Aquino III has no power to create a public office.  No constitutional provision or law allows its creation.  In no way can it be considered an existing agency prior to its creation.  It cannot be justified as a means by which the President ensures “that the laws are faithfully executed” precisely because its creation is for the purpose of abrogating the existing organic act of the ARMM – an existing law the execution of which must be ensured by the President in the first place.  Legally speaking, therefore, the draft Bangsamoro Basic Law does not exist, and because it does not exist, the President cannot certify it as urgent, and the Congress cannot act on the same.

Second, allowing the Bangsamoro Government to keep 75% of the taxes in the autonomous region, to get the lion’s share of revenues from natural resources in the region, and to get 50% of the revenues from fossil fuel exploitation there, inevitably reduces the corresponding shares of the Philippine provinces, municipalities and cities which are not included within the Bangsamoro region.  That reduction in their shares of revenues will translate to a substantial reduction in government services and will trigger more taxes if basic state services are to continue to be delivered.  In other words, the Bangsamoro Basic Law affords extra-ordinarily special treatment to the Bangsamoro Government, to the prejudice of and damage to other local government units in the Philippines.

Fairness dictates that if the people in Luzon, the Visayas, and the bulk of Mindanao will end up with a substantial reduction in their shares of the national revenues pursuant to the Bangsamoro Basic Law, then the plebiscite to be held on the Bangsamoro Basic Law should not be limited to the Bangsamoro territory.  Every qualified voter all over the country must be allowed to vote in that plebiscite.  To deny the people their right to vote in that plebiscite is to countenance class legislation.  The equal protection clause of the 1987 Constitution forbids class legislation.

For the record, the legal victories of the administration of President Aquino III have been anywhere from dismal to lackluster.

Executive Order No. 1, the very first issuance of the Aquino III dispensation, created the ill-fated Philippine Truth Commission.  That EO was voided by the Supreme Court (Biraogo v. Philippine Truth Commission).  Just recently, the Supreme Court declared unconstitutional key provisions of the anti-cybercrime law.  The Priority Development Assistance Fund defended by Aquino loyalists in the Congress was also disallowed by the High Tribunal.   Even the new gun registration law is facing a tough judicial challenge by gun enthusiasts.  This should prove ironic to President Aquino III, who is a gun enthusiast himself.

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