GENERAL SANTOS CITY (MindaNews / 9 Dec) – MILF (Moro Islamic Liberation Front) chief negotiator Mohagher Iqbal is right, “If you look at the process, it looks like they (the Congress) can no longer deliver . … I’m no longer optimistic.” He said this during the media roundtable discussion at the University of the Philippines (Visayas) in Iloilo City last December 4 (MindaNews, December 6 2015: MILF’s Iqbal sees no passage of BBL under Aquino).
By saying “it looks like”, Iqbal sounded resigned without room for optimism. Why hope hopelessly? Let’s face it. Only a miracle can save the BBL under the present Congress.
First: There is absolutely no more time. The Congress will adjourn on December 16. Will the House and the Senate be able to accomplish in six session days, from December 4, what they failed to in the entire Second Regular Session and half of the Third? It will resume session for 10 session days – January 19 to February 5, 2016 – then adjourn for the election campaign. The last sessions, May 23 to June 10, will be for the canvassing of presidential and vice presidential returns and proclamation of the winners.
Second: The BLBAR (Basic Law for the Bangsamoro Autonomous Region) is not the BBL. The revised House version (HB 4994) and Senate version (SB 2894) contain less than 50 percent and 80 percent of the original Draft BBL, respectively – one article and entire provisions deleted; others watered down; new provisions added.
Third: The Congress has had no intention to enact into law the peace agreement the government had negotiated with the MILF since 1997 spanning the Ramos, Estrada, Arroyo and Aquino administrations. The assurances and deadlines proved insincere. By the House and Senate Rules and as provided in the Constitution, the Congress members can be compelled to attend sessions in order to have quorum. The House leaders are equally to be blamed for the flagrant absenteeism.
Draft BBL did not have to be revised. It should have been treated like a treaty. Under the Constitution, as ruled by the Supreme Court in its October 15, 2008 Decision on the Memorandum Agreement on Ancestral Domain, only the President has the power to negotiate peace agreements. Contrary to objections of some members of the Senate and the House of Representatives, the President legally negotiated the BBL for the government.
With due respect to the doctrine of separation of powers, the Congress should not revise the agreement or treaty done by the President. After Draft BBL had been transmitted for enactment into law as required by the Constitution, like any treaty, the Congress should have either ratified or rejected it – meaning, enacted it with enhancement but without diminution or returned it to the President for revision or further negotiation.
Draft BBL was questioned and revised on grounds of constitutionality. But the agreements were negotiated within the Constitution; the Draft, when submitted to the President, was drastically revised to ensure its constitutionality and consistency with the signed agreements. The process was rigidly done by the legal team of the Office of the President in consultation with the Bangsamoro Transition Commission, the peace panels, the MILF Chairman Murad Ebrahim and the President.
How long was the Draft reviewed and revised? Four and a half months – the Draft was submitted to the Office of the President on April 22, 2014 and presented to the Congress on September 10.
How was it reviewed and revised? According to the official source, the review and revision was done by the OP team composed of “lawyers coming from the OES (Office of the Executive Secretary), OCPLC (Office of the Chief Presidential Legal Counsel), DOJ (Department of Justice), and OPAPP (Office of the Presidential Adviser on the Peace Process)”. The OP team sought and adopted comments of concerned government agencies like the constitutional Commissions, the Philippine National Police, etc.
By how Draft BBL was reviewed and revised, the President was sure that it adhered to the Constitution, was consistent with the signed agreements and refined in language. It was the height of arrogance for the members of the Congress to declare Draft BBL as grossly unconstitutional and must be drastically amended and revised and substituted.
It is most improper and disrespectful for the Congress to declare unconstitutional Draft BBL disregarding the assurance of the President since the Legislative and the Executive are co-equals and the power to determine constitutionality with finality does not belong to either of them but to the Judiciary. The power to rule on the constitutionality of Draft BBL belongs to the Supreme Court.
Had Draft BBL been enacted into law just with enhancement and refinement without diminution, the Bangsamoro Organic Act would have been passed in December 2014 and if brought to the Supreme Court could have been declared constitutional since the GPH-MILF negotiation under Aquino III was pursuant to the suggestion of the Supreme Court in its MOA-AD Decision and had been vetted thoroughly by the OP legal team to ensure constitutionality and accepted by MILF.
That was a big IF – the proverbial “water under the bridge”.
On second look, the vast majority of the members of the Senate and the House do not want to give the Moros the autonomy they rightly deserve provided in Article X, Sections 15 to 21 of the 1987 Constitution. That doomed Draft BBL, not constitutionality.
The President appealed; so did the peace process secretary, the government and MILF peace panel chairs, the MILF chairman, the various supporters of the BBL and advocates of the peace process for the early passage of the original Draft BBL. The members of the House and the Senate were unmoved and barely moved.
Last December 1, the Office of the Deputy Ombudsman for Mindanao in Davao City received a letter of complaint dated November 30 from 29 predominantly Moro civil society organizations urging Ombudsman Conchita-Carpio Morales to probe into the “chronic absenteeism” in the House of representatives (MindaNews, December 6, 2015: Congress reps urged: “Pumasok na kayo”). In Manila, this was reported by Rappler.com December 3 and Tempo November 7.
Unfortunately, Section 21 of RA 6770, the Ombudsman Act, exempts “Members of Congress” together with impeachable officials and members of the Judiciary from the disciplinary authority of the Ombudsman. Only the Congress has disciplinary authority over its members and power to compel them to attend sessions according to its Rules and the Constitution. But the Speaker has been reluctant to impose the House Rules.
Reacting to the complaint, Majority Leader Neptali Gonzales II said over DZBB radio “the House leadership fully understands the act of desperation of BBL backers who filed a complaint against absentee lawmakers before the Ombudsman” even if no power is “vested in the Ombudsman to interfere into the lawmaking process”. (Bold italics ours)
Business Mirror (Davao City, December 7, 2015), obviously referring to the same radio interview reported by Tempo above, said Gonzales emphasized the Ombudsman’s lack of authority over the House members and admitted the leadership cannot force lawmakers to attend sessions because of their duties in their districts, adding, “Ang hindi nila pagsipot (their absence) is already an expression of their nonsupport for the bill (BLBAR).”
The House leadership has been reluctant to impose the House Rules on attendance and justifies the absence of majority of the House members from the deliberations on the BLBAR nee BBL. The insincerity of the House leadership to pass of the BLBAR nee BBL is glaring. Why is there no problem of quorum in passing the national budget and the salary increase of workers in government including the Congress?
Gonzales II may be right. The BBL backers are desperate in complaining to the Ombudsman. Is President Aquino III not as desperate or more?
President Aquino hosted lunch for 150 House members in Malacañang last December 8 and made a 20-minute appeal to pass the Bangsamoro Basic Law (BBL), warning of the possible resurgence of Islamic extremism in the country if the law is not passed. In the afternoon the House failed to muster a quorum to resume the plenary debates on the BBL – only 134 of the 287 members were present; no quorum, adjourn. (The Philippine Star, December 9, 2015: Noy makes pitch for BBL, but no quorum at House)
That was really a desperate move. The President must now be in despair. But he has only himself to blame. He allowed the Legislative to overrule the Executive. He should have stood by the constitutionality of Draft BBL and stood up to the Congress to have the issue submitted to the Supreme Court which has the sole power to rule on the question.
[Author’s Note: Mind da News, the alternate of COMMENT, is a comment on current news. The author may be contacted at firstname.lastname@example.org.]