MIND DA NEWS| BBL: To Insure Constitutionality, Part 2

GENERAL SANTOS CITY – Insuring Constitutionality. The Draft BBL contains provisions that, by the letter of the 1987 Constitution, are evidently unconstitutional despite the assurance of the Office of the President that the “refined” Draft adheres to the Constitution and is acceptable to all. In the Congress, the Senate and House committees see it riddled with unconstitutionalities.

The agreements embodied in Draft BBL are assumed to be within the flexibility of Article X and related provisions of the 1987 Constitution. The OP legal team reviewed, revised and refined the draft to validate and insure the assumption. But the flexible interpretation is now conflicting with the rigid or strict reading of the letter.

Only two scenarios will happen in the Congress. First, the pro-Aquino coalition has the number to pass the BBL within the flexible interpretation of the Constitution. This will be challenged before the Supreme Court. Second, the pro-Aquino coalition disintegrates; the BBL strictly adhering to the letter of the Constitution is passed. This “watered-down” BBL may be rejected at the plebiscite. Either way, the BBL can get killed.

Retired Chief Justice Artemio V. Panganiban, in his column “With Due Respect” in the Philippine Daily Inquirer of February 8, 2015, is offering two alternative solutions to insure the BBL’s constitutionality and save the peace.

His proposal: “89

To save the peace process from formidable constitutional infirmities, Congress can either (1) delete the objectionable parts from the proposed Bangsamoro Basic Law (BBL) or (2) amend the Constitution.”

He said, “The first is the simpler alternative which the government and the Moro Islamic Liberation Front (MILF) may continue discussing.” That’s evident. Should the MILF agree to delete the objectionable provisions of the Draft, the BBL will be unquestionably constitutional and acceptable to all.

He stated the second in his February 1 column with the promise to explain it in the next: “I think that Congress should treat the constitutionally objectionable portions of the BBL as amendments to the Constitution by passing them ‘upon a vote of three-fourths of all its Members’ pursuant to Article XVII of the Constitution, and subjecting them to a plebiscite by all the voters in the country, not just in the affected areas in Mindanao.”

In his February 8 column, he explains the second — how it can be reasonably speeded up and secure the required three-fourths vote. The salient points:

[1] The stipulation:  “… Congress shall pass and the President shall approve the BBL together with the constitutionally-infirm portions, with the proviso that the law shall be effective only after the Constitution is amended. … [T]he amendments would be submitted for ratification by the people.”

[2] To speed up the approval: “I believe that Congress can hasten the process by no longer subjecting the proposed amendments to three readings and by cutting the debates to a minimum.”

[3] To insure the required “three-fourths vote”, he “would urge the members of Congress to vote for the amendments if only to give our people a chance to debate and to vote on the monumental issue of peace. Even if they may not agree with the proposed amendments, they may still vote affirmatively with the reservation that, during the national debate on the plebiscite, they could take any position on any of the proposed amendments.”

[4] Extent of the amendments: “I suggest that the amendments not just cover the MILF peace process but also define in generic terms the extent of congressional authority to grant, by law, the delicate issues of sovereignty, territory, or even self-determination.”

[5] Itemized plebiscite questions: Rather than lumping the amendments in one line of “Yes” or “No” for the entire package, “they should be chopped into separate provisions which our people could ratify or reject one by one. Only those voted by the majority would be deemed included in the BBL once it becomes effective. If our people reject all the provisions, then the BBL would never take effect.”

A Third Alternative

We propose a third alternative. If doable, it will be faster and less expensive.

The Congress passes by majority vote the BBL as it is in the certified bill or with the slightest revision. A proviso will require that upon approval by the Congress, the BBL will be submitted not to the President for his signature but to the Supreme Court for judicial review. If the MILF has submitted to the wisdom of the Congress, the more they will trust the wisdom of the Supreme Court.

The Act goes back to the Congress for the Bicameral Conference Committee to amend or delete the constitutionally questioned provisions according to the decision of the Court. This will be the “Court-refined” BBL. After it is approved by the Senate and the House it goes to the President for his approval then to the Moro people for ratification.

The Congress, in passing the constitutionally questionable provisions, does not amend the 1987 Constitution but presumes them constitutional within the flexibility or spirit and intent of the Constitution. In submitting the BBL to the Supreme Court for judicial review, the Congress is asking the Court, as the final determiner of constitutionality, to scrutinize its presumptions with the end in view of having a truly constitutional BBL.

The critical questions: Will the members of the Congress humble themselves? Will the Supreme Court accept the BBL for judicial review? (MIND DA NEWS is 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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