(Continued from yesterday)
GENERAL SANTOS CITY, April 15, 2015 – This piece has a two-question proposition: Is there hope to pass a meaningful BBL? If there is, is there a way to make it happen?
In the first sections published yesterday, we briefly discussed the urgent need for a meaningful BBL and what meaningful BBL is. We proposed that meaningful BBL can be realized by enacting it from Draft BBL, now pending in the Congress as HB 4994 and SB 2408, essentially intact. We showed how meaningful Draft BBL is and what imperils its enactment essentially intact.
In the following sections, we will discuss hope and how meaningful BBL can happen. However, the vital question is who will make it happen.
The higher hurdle now for the meaningful BBL is the Senate. Unless the senators relent, the Senate version of the BBL will be difficult to reconcile with the House version. This can toll death for the BBL.
Besides this hurdle, the meaningful BBL has to survive time constraint. The Senate and House committees are winding up their hearings and reports for the plenary debates when the Congress resumes its regular session on May 4. The BBL, to be ratified in September, has to be passed by June 11, the last session day before sine die adjournment. Beyond that the establishment of the Bangsamoro by June 30, 2016 hangs.
Is there hope for the passage of the meaningful BBL?
Only if the House version is as Rodriguez has intimated and the Senate collaborates with the House! Deleting only those eight provisions with fiscal autonomy ensured and the parliamentary-ministerial government structure, impliedly together with the asymmetric relation, considered as not in violation of the 1987 Constitution virtually keeps Draft BBL intact.
There is a shortcut worth trying to pass the meaningful BBL to save time and preempt any question before the Supreme Court. Bid the Court to do a judicial review.
First, the covenant: the Congress, the Palace and MILF agree that: (1) The Congress enacts a BBL as provided in the Draft with the least revision or amendment. (2)The Act, as provided, is submitted to the Court for judicial review. (3) They will abide by the ruling of the Court and promulgate the Court-refined BBL.
Second, the procedure: 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 Bangsamoro electorate for ratification.
Third, rationale: 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 the presumptions with the end in view of having a truly constitutional BBL.
We are not a lawyer or a constitutionalist. However, we think in doing this judicial review, the Court is not “render[ing] advisory opinions on the constitutionality of pending bills”. The BBL Act – no longer pending bill — can be challenged by anyone before the Court on constitutional and other grounds. The Congress, in including a provision for judicial review is petitioning the Court to review its interpretation of the Constitution according to its flexibility or spirit.
Should the Court refuse to do a judicial review, submit the Act to the President for his approval and for ratification unless it is questioned before the Court. In all probability, it will be. Perhaps, the opposition in the Congress will.
What are the odds against the hope the Court will uphold the constitutionality of the BBL according to Draft BBL?
The Court has an open mind concerning autonomy for the Moros and peace in Mindanao. It has shown this openness in two instances.
First Instance: There would have been no ARMM had the Court stuck strictly to the letter of the 1987 Constitution.
Paragraph 2, Section 18 of Article X of the 1987 Constitution paragraph states: “The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in the plebiscite called for the purpose, provided that only provinces, cities and geographical areas voting favorably in such plebiscite shall be included in the autonomous region.” (Bold italics ours)
The “majority” is in term of “constituent units”, not the total number of votes cast. To create the ARMM, at least twelve of the 22 provinces and cities – the constituent units of the proposed autonomy – were required to vote “YES”. Only four provinces and not one of cities voted “YES”.
The Congress modified Paragraph 2 to provide in Section 1(1), Article II of RA 6734: “There is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution.” (Bold type ours) Adopted in Section 1(1) was the “provided-clause” of Paragraph 2.
The Mindanao Regional Consultative Commission that drafted RA 6734, foreseeing the NO-Vote of the predominantly Christian provinces and cities, must have adopted in its draft the “Provided-clause” of Paragraph 2 instead of the main clause. Rightly though, in spirit emanating from the 1976 Tripoli Agreement, Paragraph 2 mandates the creation of the ARMM.
Even if Section 1(1) of RA 6734 was a recast of Paragraph 2, the Court sustained it when the creation of the ARMM out of Maguindanao, Lanao del Sur, Sulu and Tawi-Tawi was questioned – thereby, reconciling the letter to the spirit.
Second Instance: In its October 14, 2008 Decision declaring unconstitutional the Memorandum of Agreement on Ancestral Domain, the Court showed its flexibility and understanding of the importance of the peace negotiation with the Moros.
(1) The Constitution does not explicitly vest the President with the authority to negotiate peace. But it ruled the President has this authority as an extension of his powers as Chief Executive and Commander-in-Chief – not by the letter but by spirit of the Constitution.
(2) It said: “The MOA-Ad is a significant part of a series of agreements to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.” (Bold text ours)
Why did the Court not nullify the MOA-AD? Why did it lay down a guideline for further negotiations between Government and MILF? This encouraged MILF to reframe MOA-AD as its peace proposal and pursue the negotiation according to its matrix of demands spelling out the talking point, “To Solve the Moro Problem”.
Without this there could have been no GRP (GPH) – MILF agreements, no GPH-MILF Comprehensive Agreement, no Draft BBL.
There is hope. What about the way? Let’s assess.
The House AHCBBL will meet on Monday, April 20, to finish its report. Latest media reports from Committee Chairman Rodriguez imply that the House BBL version will not mangle Draft BBL beyond recognition but keep it essentially intact. Let us see the final copy the Committee will submit for plenary debates on May 4.
We are clueless what the Senate BBL version will be. Pre-Mamasapano media reports said the Senate would revise Draft BBL to have its BBL version strictly adhere to the letter of the 1987 Constitution and trim down the Draft’s fiscal and economic autonomy provisions. That BBL will surely be meaningless to Bangsamoro.
After Mamasapano, the leading senators showed how anti-Moro biases and prejudices and hate for the MILF had possessed them to affect adversely their deliberation on the BBL. As reported, Sen. Alan Peter Cayetano was drafting a bill to supplant Draft BBL.
The Senate is discordant. Senate President Franklin Drilon has been assuring the passage of the BBL by June 11. Sen. Ferdinand Marcos, whose Local Government Committee is steering SB 2408 cannot guarantee that even by June 30. His committee, on resuming its hearings last Monday, tackled matters irrelevant to Draft BBL.
The Senate can derail the BBL and abort Bangsamoro.
The imperative now is how to persuade the House and the Senate to collaborate to pass the same House BBL version – apparently meaningful — by June 11. The suggested “judicial review” to guarantee constitutionality is a long-shot. The BBL will be taken to the Court. However, the proven openness of the Court’s mind shown in its ARMM and MOA-AD decisions cited above augurs well for Bangsamoro.
The vital question is: Who will do the persuasion? President Benigno Simeon C. Aquino III has evidently lost his touch after Mamasapano. BThere is hope; but the way is unclear.
(Next: Meaningfulness and Transition)
(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 email@example.com.)