The Bangsamoro waters

February 8, 2014 at 1:52pm

Together with the signing of the Annex on Normalization, the Government of the Philippines (GPH) and the Moro Islamic Liberaton Front (MILF) also signed the Addendum on Bangsamoro waters. The Addendum delineates the extent of the Bangsamoro waters which, as provided, is 12 nautical miles or 22.224 kilometers from the low-water mark of the coasts of the Bangsamoro territory. The 12 nautical mile limit of the Bangsamoro waters is co-extensive with the territorial seaas defined by the United Nations Convention on the Law of the Sea(UNCLOS); although the Philippines long ago adheres to the so-called archipelagic doctrine in determining its territorial boundaries as a policy choice. This is explicit in Article 1 (national territory) of the 1987 Constitution. At any rate, following either application the Bangsamoro waters under the Addendum is undeniably part of our territorial waters.

Contrast the set boundaries of the Bangsamoro waters vis-à-vis the municipal waters under the Local Government Code and thePhilippine Fisheries Code of 1998 or R.A No. 8550. In the latter laws, municipal waters extends only up to fifteen (15) kilometers from the coastline including streams, rivers, public forest, timber land, forest reserve or fishery reserve within the municipality except those defined under Republic Act 7586 or the National Integrated Protected Areas System Law. Within the coverage of the municipal waters the local government unit (LGU) exercises jurisdiction, including on the management, conservation, development, protection, utilization, and disposition of all fish and fishery/aquatic resources found therein. As things now stand insofar as the Addendum is concerned the jurisdiction of the Bangsamoro over its territorial waters goes beyond 15 kilometers up to 22.224 kilometers from the coastline.

While the jurisdiction exercised by the Bangsamoro over its waters is more extensive than that given to LGUs under the Fisheries Code and related laws, this by itself does not transgress the Constitution or any of the prescriptions in international law. As long as the Bangsamoro is consistently understood as an autonomous region of the Philippines, the only entity it can be without constitutional amendment; then for all intents and purposes, the Bangsamoro waters is nothing more than an expanded municipal waters.

In my view, the use of the term “jurisdiction” in the Addendum follows a similar meaning and import as that used in the Fisheries Code with respect to local government units over municipal waters. There is no suggestion in the Addendum of the exercise of sovereign rights or exclusive and absolute jurisdiction over the Bangsamoro waters or any power that suggest independence or even a substate.

If the Bangsamoro waters covers the full extent of the territorial sea it is because the Bangsamoro, as a political entity, is granted the highest form of autonomy that allows for the greatest possible latitude for self-determination and self-sufficiency. This liberality on the part of the government is merely consistent with what has been agreed by the Parties in the Wealth Sharing Annex which allows in favor of the Bangsamoro government greater fiscal autonomy and expanded revenue generating powers, entitlements decidedly more than those now being enjoyed by LGUs under the Local Government Code.

The Addendum also provides for the creation of the Zones of Joint Cooperation in the Sulu Sea and the Moro Gulf for the purpose a) protection of traditional fishing grounds b) benefiting from the resources and c) interconnectivity of the islands and the mainland parts of a cohesive Bangsamoro political entity. These Zones will be created outside the Bangsamoro Waters and the adjoining LGUs. The Zones of Joint Cooperation is characterized by freedom of movement of vessels, people and goods. At any rate the specific coordinates of the Zones will still be subject to determination in the Basic Law; the only limitation is that the Zones of Joint Cooperation shall not encroach upon Bangsamoro Waters or adjoining municipal waters.

That the Bangsamoro is not conceived as another juridical entity separate from the Philippine State but is only a new autonomous political entity is further evidenced by the creation of the Joint Body for the Zones of Joint Cooperation. Under this set-up representatives from the Central and the Bangsamoro government will compose the Joint Body where both are committed to ensure the participation of the other LGUs. There is an unmistakably implicit recognition of the roles and hierarchical relations of these administrative entities, that is, the central and local government including the autonomous Bangsamoro government. In this sense, the Bangsamoro is but a new species of an autonomous political entity similar, although in an enhanced and much improved form, to the Autonomous Region of Muslim Mindanao (ARMM).

In sum, contrary to other views, I am confident that in itself the Addendum is constitutionally defensible. Whether or not the Bangsamoro Basic Law will pass constitutional muster is another matter altogether. While it must be consistent with and guided by the agreement with the MILF and the output of the Bangsamoro Transition Commission, Congress has plenary legislative power over the crafting of this organic act.

In performing this role, Congress must have a clear legal theory and framework. For that, I suggest the following guiding premises: First, that the Bangsamoro is an autonomous region as allowed by the Constitution - nothing less, nothing more; Second, that all the territory of the Bangsamoro, including its natural resources and waters, are part of national territory but with special powers of control, administration, and revenue sharing given to the autonomous region (which is akin to the grant of similar, albeit less extensive powers given to local governments); Third, that the Bangsamoro organic law must take into account all relevant agreements that the government has signed with other parties, including the Moro National Liberation Front, and incorporate these and legitimate concerns of other stakeholders (e.g. indigenous peoples) into drafting the new law. Ideally, the Bangsamoro Transition Commission would have done all of these as well so that Congress will just build on its work.