MIND DA NEWS| BBL: Constitutionality in Letter or Spirit

GENERAL SANTOS CITY (MindaNews) — Despite the more than five months of “refinement” that the draft of the Bangsamoro Basic Law (BBL) had undergone to ensure adherence to the 1987 Constitution – from its final submission to the President on the end of March 2014 to its endorsement to the Congress of September10, 2014 — the Draft BBL (HB No. 4994 and SB No. 2814) is still besieged by contentious questions of constitutionality. The probability of Supreme Court intervention is real.

BBL is facing not only constitutional challenges and but also time constraint. By the latest media reports, the earliest that the House can transmit HB 4994 to the Senate for concurrence is March 2, 2015; but the earliest that the Senate can deliberate on SB 2804 in the plenary is May 4, 2015 and the Congress adjourns sine die on June 11, 2015. The vows of Senate President Franklin Drilon and House Speaker Feliciano Belmonte Jr. to pass the BBL “by the first quarter of the year” call for a miracle.

Constitutionality

The Government and MILF negotiating panels, the Bangsamoro Transition Commission and the Office of the President resolved constitutional issues within the flexibility of the provisions on autonomy – Sections 15 to 21 — of Article X of the 1987 Constitution. In certifying Draft BBL to the Congress, President Benigno Simeon C. Aquino III was sure that the Draft was very well within the Constitution.

The House formed a special committee, the Ad Hoc Committee on the Bangsamoro Basic Law (ADCBBL), to handle the passage of HB 4994. It heard issues on constitutionality during its five-month nationwide hearings. How the Committee will resolve these will be known in its report and during the plenary debates.

The Senate tasked the Committee on Constitutional Amendments and Revision of Laws chaired by Sen. Miriam Defensor-Santiago to tackle the constitutional questions. She will conduct the hearings on January 26 and February 2 (Philippine Daily Inquirer, January 10, 2015: Senator Santiago to raise legality of Bangsamoro basic law).

As reported, the issue of substate that would exercise certain sovereign powers otherwise reserved for the central government is the “main constitutional question” as Santiago has stated and confirmed by Sen. Ferdinand R. Marcos, Jr., chair of the Senate Committee on Local Governments. The Marcos Committee will steer SB 2804 through the Senate.

Of the Bangsamoro, Marcos posed at a press forum: “Does this constitute a state within a state?”

He recalled the Decision of the Supreme Court declaring the MOA-AD (Memorandum Agreement on Ancestral Domain) unconstitutional. He considered that Decision as very important because the basis for the unconstitutionality of the MOA-AD could be found in the BBL – obviously referring to the creation of the Bangsamoro Juridical Entity as an associative state. “That’s why that [the BBL] needs to be fixed so it won’t go the way of the MOA-AD.”

At the Hearing

Santiago’s mind is set. Draft BBL is unconstitutional since (1) Bangsamoro it creates is a substate; (2) the Agreements from which it was crafted were negotiated without respect for Philippine sovereignty; and, (3) the Executive Branch in negotiating with the MILF identified itself as “Government”, hence, misrepresenting Philippine Government that is also composed of two other Branches — the Legislative and Judiciary. (See: COMMENT: BBL: Santiago’s Firm Stand, MindaNews, January 13, 2015)

She will invite persons directly involved in the negotiations: Secretary Teresita Quintos-Deles, presidential adviser on the peace process; Miriam Coronel-Ferrer, chair of the GPH negotiating panel; Mohagher Iqbal, chair of the the MILF negotiating panel and the Bangsamoro Transition Commission; Ghadzali Jaafar, MILF vice chair for political affairs, and Michael O. Mastura, chair of advocacy committee of the MILF negotiating panel. The report did not mention any person from the Office of the President.

She will also invite constitutional law experts, among them, retired Chief Justice Reynato Puno, retired Supreme Court Justices Adolfo Azcuna and Vicente Mendoza, Fr. Joaquin Bernas of the Ateneo Law School, former Dean Merlin Magallona of the UP College of Law, Dean Julkipli Wadi of the UP Institute of Islamic Studies, and Fr. Ranhilio Aquino of the San Beda College Graduate School of Law. There could be more.

To those directly involved in the negotiation and in the crafting of the Draft, Santiago has this challenge: “I would like to hear what the proponents of the Bangsamoro Basic Law will have to say during the hearings. Let’s see if they can change my mind.”

Letter or Spirit?

The constitutional law experts, Santiago among them, are generally divided into two camps – one camp putting more emphasis in the “letter” of the Constitution; the other, on the “spirit”.

In the first, the Constitution adheres to the traditional principles of constitutionalism; it is a rigid basic legal instrument; and it is strictly interpreted according to its provisions and nuances. In the second, it is a social instrument liberally interpreted to benefit the country and its people.

Stated otherwise, in the first, the vision-mission of the Constitution is limited, as if etched in stone, to how the provisions are worded; in the second, this vision-mission is a free spirit animating flexible provisions suited to the changing political, social and economic needs of the country and its people. The traditional principles of constitutionalism may give way to the emerging principles of internationalism and human rights.

In the first, pertinent provisions must first be amended to accommodate any divergence from the letter of the vision-mission; in the second, any divergence is tolerated within the flexibility of the pertinent provisions.

Pertinent to the BBL

Pertinent to Draft BBL is Article X of the 1987 Constitution as provided in Sections 15 to 21. The MILF is satisfied with the assurance that the ministerial form of government and the asymmetrical relation of Bangsamoro with the Central Government and the other agreements are within the flexibility of Article X and other related provisions of the 1987 Constitution.

Yet, the same flexibility did not apply to RA 6734 drafted by the Mindanao Regional Consultative Commission in 1988 following Article X and to RA 9054 which amended RA 6734 according to the 1996 Final Peace Agreement between the Ramos Government and the Moro National Liberation Front. Both RA 6734 and RA 9054 strictly conformed to the presidential-unitary form of government under the 1987 Constitution and the Local Government Code.

While Senator Santiago and others of the same mind-frame as she would like Draft BBL to adhere to the letter of Article X in coherence with the presidential-unitary provisions of the 1987 Constitution, fourteen living framers of the same Constitution are unanimous in supporting the Bangsamoro and the constitutionality of the BBL. In so doing, they are invoking the spirit of Article X in their paper, the “Framers of the 1987 Constitution Support Bangsamoro”, dated January 9, 2015 which they issued three days later.

The Core Principles

In brief, the seven-page paper, condensed in an eight-paragraph executive summary, is “Statement on Bangsamoro”. It has a preamble and seven main statements: I. Our Position; II. Bangsamoro is about the development of people, not about constitutionality of words; III. The larger context of the CAB and BBL; IV. Social justice under the 1987 Constitution; V. Closing the gap between law and justice; VI. The price of peace; and, VII. What our people want.

The preamble states the paper’s proposition: “Statement on the Bangsamoro deals with the vision, spirit and the core principles behind the provisions on autonomous regions which to our mind constitute the essential constitutionality of the proposed Bangsamoro Basic Law.” The seven main statements are an overview of the “Statement”. While the executive summary condenses “the vision, spirit and core principles” not only of Article X, but more importantly of the 1987 Constitution, the “Statement” must be read to fully appreciate the framers’ unanimous support of the Bangsamoro.

Following is the Executive Summary [For reference in further discussion, we numbered the paragraphs and indicated after each the “main statement” it is from. – ppd]:

[1] The core principle of the 1987 Constitution in mandating a special status for the autonomous regions is the human development of the people of Muslim Mindanao and the Cordilleras. Hence, the public conversation should not be about semantics but about people – their needs, their aspirations, their choices – and about empowering them with the environment and institutional framework for social justice. (II) (Bold italics, ours)

[2] Social justice that calls for genuine social change is the central theme of the 1987 Constitution; and here, it is broader in scope and intent than in the 1973 and the 1935 Constitutions. An interpretation of any relevant provision of the Constitution that results in war and abject poverty would be contrary to its intention. (II) (Bold italics, ours)

[3] Reason tells us that a Bangsamoro Autonomous Region can close the centuries-old gap between law and justice and that we are on the cusp of a historic opportunity to make it happen. (V)

[4] The decision on the Bangsamoro will ultimately rest on what the people want of our country. And what the deliberations and the overwhelming vote in the plebiscite for the Constitution tell us is that they dream of a free people in a democratic society where peace and justice reign. It was clearly a vision borne of EDSA – an extraordinary event in our history because it was the coming together of ordinary people from all walks of life to peacefully regain their freedom. (VII)

[5] Let us set aside partisan politics and stop the urge to exhibit our ability to find nuances of legalism that can delay, or worse, derail the process, feeding on the cynicism and playing on the fears in the national psyche that are more reflex reaction than reasoned response. (VII)

[6] It has been 27 years since the Constitution was approved by our people but we are still living in the mass poverty, gross inequalities and cultural inequities of the past, and the promise of genuine social change has not unfolded. There is no better way to demonstrate our commitment to peace and development than by giving the Bangsamoro people the opportunity to create a higher and better future for themselves than what they have. This calls for courageous statesmanship from our leaders and the generosity of spirit of a united nation. (VII)

[7] In turn, the challenge to the Bangsamoro people is to demonstrate the same commitment by treating other indigenous peoples and uniting all Muslim communities with magnanimity and statesmanship. In this manner, Bangsamoro can be a model for us to do the same for the rest of the country and thereby build together a more just and peaceful nation. (VII) (Bold italics, ours)

[8] We fully support the creation of the Bangsamoro Autonomous Region. (I)

More Notes

In “(I)”, besides stating the paper’s proposition and clincher, the “framers” emphasize the importance of the Bangsamoro “to the future of our country” in their belief “that a new organic law is necessary to fulfill the vision and spirit that guided the constitutional provisions on autonomous regions since RA 6734 and RA 9054 have clearly not gone far enough to give life to the concept of autonomy for Muslim Mindanao as envisioned by the Constitution”.

It is regrettable that Filipino leaders have not grasped the core principle of the 1987 Constitution, and its central theme, “[1 and 2, II]”, that, today, 27 years under the 1987 Constitution, the Filipinos have been “humanly” undeveloped, “[6, VII]”.

In “III”, the “framers” state the meaning of the CAB and BBL, which, in “… the larger context of the CAB and the proposed BBL is our failure to effectively address the longest running insurgency and the development of our peoples, especially those of Muslim Mindanao”. An excerpt from the deliberations of the Constitutional Commission quotes from a paper presented, “Autonomy is an expression of the Bangsa Moro’s conviction of its being a viable alternative to separation….”

Supporting the Bangsamoro is a call for “mea culpa”, an act of “redress or atonement”.

In “IV”, the “framers”, quote Article XIII, Section 1 of the 1987 Constitution that clearly supports the constitutionality of the CAB and the BBL: “The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

“To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increment.”

In “V”, the “framers” elucidate “[3, V]” with statements that (1) international law allows “interpretations of words and language to fit the diverse situations of individual nations”; (2) Bangsamoro is “an integral and permanent part of the Philippines”; and, (3) the closure of the negotiation of the Bangsamoro peace agreement “is the shared vision of a nation”, not the will of President Aquino alone.

In “VI”, by narrating how Israeli Prime Minister Menachem Begin sacrificed the “non-negotiable” and Egyptian President Anwar Sadat, eventually his life, for the peace between their countries, the “framers” are appealing to the hardline opponents of the BBL and Bangsamoro to yield the letter of the Constitution to the spirit.

Only by this will “what our people want” be realized “[5, 6 and 7, VII]”.

One Side of the Coin

The “framers” have clearly, eloquently and cogently expressed their support for the creation of Bangsamoro. But don’t expect their “Statement” – that is only one side of the coin — to change outright the minds of Senator Santiago and those of others like she. In fact, it will likely intensify the debate.

What will resolve the question of constitutionality that can abort the Bangsamoro is the reconciliation of the letter and spirit of the 1987 Constitution. We will discuss this in our next COMMENT. (Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at patponcediaz@yahoo.com)

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