MANILA—Months into its passage into law and before it could even be ratified, the Bangsamoro Organic Law (BOL) is facing its first legal challenge yet.
The Province of Sulu questioned the constitutionality of Republic Act No. 11054 or the BOL before the Supreme Court and is asking the high court to halt efforts to conduct a plebiscite to ratify it.
In a 48-page petition filed this month, the provincial government represented by Governor Abdusakur Tan II claimed the BOL violated several provisions of the 1987 Constitution and should be declared unconstitutional.
It asked the SC to issue a temporary restraining order to prevent Executive Secretary Salvador Medialdea and DILG Secretary Eduardo Año from implementing the law, and the Commission on Elections from holding the plebiscite scheduled on January 21, 2019.
Other respondents named in the petition include Presidential Peace Adviser Jesus Dureza, the Senate, the House of Representatives, the Commission on Elections, the Bangsamoro Transition Commission, and the Moro Islamic Liberation Front.
Objections to law itself
In particular, the petition alleged that the law cannot abolish the existing Autonomous Region in Muslim Mindanao (ARMM) and replace it with a Bangsamoro Autonomous Region (BAR) because this will violate constitutional provisions that allow only 1 organic act to establish an autonomous region in Muslim Mindanao.
“Since ARMM is created by Constitutional fiat, Congress, by itself, has absolutely no authority to abolish ARMM. Only through an amendment of the Constitution may ARMM be abolished. This is so, because only the Constitution may create or abolish an autonomous region,” the petition said.
Objections to form of government
Among the provisions the petition objected to is the form of government the BAR will take.
Under the BOL, the BAR will have a parliamentary form of government with elected members of the legislative assembly who will choose from among themselves a chief minister who will lead the executive department.
According to the petition, this will violate the doctrine of the separation of powers under the Constitution.
“Under this parliamentary set-up, the powers of Parliament (legislative branch), and those of the Cabinet (executive branch), are not separate but, in fact, fused. This is contrary to the requirement under the Constitution that the structure of the government for each of the autonomous regions should consist of the executive department and the legislative assembly, compliant with the doctrine of separation of powers embodied in the Constitution,” it said.
And because the chief minister will be chosen only by members of the parliament, “the right of the people to elect the head of the executive branch of the Bangsamoro government is not recognized,” the petition argued, citing a constitutional provision requiring executive and legislative officials to be elected and to be representative of their constituent political units.
The petition also questioned the composition of the legislative assembly.
Under the BOL, 50% of the members of the assembly will come from political parties, 40% from parliamentary districts and 10% is reserved to sectoral representatives.
According to the petition, representation in the legislative assembly must correspond to constituent political units – in this case, 5 provinces and 2 cities under the current ARMM.
ARMM is composed of Basilan, Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and the cities of Marawi and Lamitan.
Objections to plebiscite
Justifying its personal interest in filing the petition, the Province of Sulu is claiming personal injury from the manner by which the plebiscite to ratify the BOL will be conducted in January.
The BOL provision on the plebiscite states that the votes of the provinces and cities that are currently part of the ARMM will be treated as “one geographical area.”
For Sulu, this means that it “is being coerced to be part of the soon-to-be-established BAR, even if the votes cast in the province fail to secure the acquiescence of the majority.”
“[T]o consider the provinces and cities of the ARMM as one geographical area for purposes of voting in the plebiscite to ratify the BOL violates the constitutional requirement enshrined in Section 18, 2nd paragraph, Article X of the Constitution that 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,” it said.
Objections to territorial jurisdiction
In addition, Sulu took issue with its automatic inclusion in the territory of the BAR, along with other existing members of the ARMM.
It claimed that this will effectively mean that Congress has erased the identity of indigenous cultural minorities and violate their rights to ancestral domains and lands.
Objections to MILF as Bangsamoro Transition Authority lead
The petition also questioned why the Moro Islamic Liberation Front has been designated to lead the Bangsamoro Transition Authority.
It alleged that this violated the equal protection clause of the Constitution because there are other rebel groups in Mindanao and there are also non-Muslims and Muslims who are not members of the MILF.
“Without a doubt, Section 2, Article XVI of BOL was included in the law solely for the purpose of placing the MILF in a class of its own, to the exclusion of others similarly situated, in violation of the equal protection clause mandated by our Constitution,” it said.
The petition also accused the Philippine government of promoting Islam to the prejudice of other religions in providing funds for the BAR.
The Supreme Court en banc has asked the government to comment on the petition.