GENERAL SANTOS CITY (MindaNews / 1 Dec) – The Supreme Court finally dismissed the petitions filed against the Comprehensive Agreement on Bangsamoro (CAB) in June 2015 by the Philippine Constitution Association (Philconsa), the groups of Tanggulang Demokrasya, Rev. Vicente Libradores Aquino, Jacinto Paras and Rev. Elly Pamatong. It was reported by various Manila media – last Monday, November 28, in ABS-CBN News; last Tuesday, the 29th, in Rappler.com.
The consolidated five petitions were dismissed for being “premature”. As quoted by SC spokesman Theodore Te, The Manila Bulletin published in full the pertinent portion of the decision written by Senior Associate Justice Antonio Carpio:
“The Court noted that there is yet no Bangsamoro law that has been passed and ‘any question on the constitutionality of the CAB and the FAB, without the implementing Bangsamoro Basic Law, is premature and not ripe for adjudication.
“Until a Bangsamoro Basic Law is passed by Congress, it is clear that there is no actual case or controversy that requires the Court to exercise its power of judicial review over a co-equal branch of government.
“The Court also noted that even if there are bills pending in Congress, the Court cannot exercise its power of judicial review over such bills as it would be tantamount to the Court rendering an advisory opinion on a proposed act of Congress.
“The power of judicial review over an act of Congress comes into play only after the passage of a bill, not before.”
This is inconsistent with the action of the Supreme Court when it rendered a decision on October 14, 2008 declaring unconstitutional the MOA-AD (Memorandum of Agreement on Ancestral Domain), also an agreement like the CAB between the GRP (Government of the Republic of the Philippines) and the MILF (Moro Islamic Liberation Front). Justice Carpio was among the justices who voted unanimously.
Why did the 2008 Court not declare the case against the MOA-AD premature when, like the CAB, it was just an agreement – in fact less perfect since it had not been signed, just initialed? No law had been passed – neither was there a bill pending in the Congress – for its implementation.
Had the MOA-AD not been declared unconstitutional, it would have been further negotiated to draft the Comprehensive Compact, the enabling law of the Bangsamoro Juridical Entity, for submission to the Congress after 18 months – as provided in agreement.
In his petition, former Negros Oriental Rep. Jacinto Paras likened the FAB (Framework Agreement on Bangsamoro) and the CAB to the MOA-AD. He and another petitioner, Rev. Elly Pamatong, “argued that the FAB and CAB are a revival of the MOA-AD”. What they did not acknowledge was that the “revival” followed the suggestion of the 2008 Court.
The 2008 Court stated: “The MOA-AD is a significant part of a series of agreements necessary 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) That exactly was what the Aquino III government and the MILF did.
The CAB is a compendium of agreements. Its primary component, the FAB with its four Annexes, is basically the expanded MOA-AD; in form, they are both just agreements. It was their constitutionality, not that of the implementing law passed or still to be passed, that was the subject of the petitions in Court. Yet, the CAB case was “premature”; that of the MOA-AD, not.
The five cases were filed in June 2015 – that of the PHILCONSA on June 19, a Friday. On Tuesday, the 23rd, the Court took cognizance of the PHILCONSA petition and others and ordered the government to answer the petitions. (The Philippine Star, June 24, 2015: ‘Case vs BBL premature’, SC orders gov’t to answer petitions vs Bangsamoro deals.)
The same report by the Star said that during the same session, the Court dismissed, “for being premature”, the petition “by a certain Rolando Mijares” in the preceding month questioning the legality of the BBL since this had not yet been passed.
Curiously, on the spot, the Court decided that the Mijares petition was “premature” for the BBL had not yet been passed. Yet, it took the Court 17 months to decide that the PHILCONSA, et al. petition was “premature” since no BBL had been – the same ground by which it dismissed the Mijares petition during the same session it took cognizance of PHILCONSA, et al.
Datu Michael O. Mastura of Cotabato City, senior member of the MILF negotiating panel and intervenor in PHILCONSA, et al. was right when he described as “strange” the SC decision although from a different angle. “What was questioned was the constitutionality of the FAB and CAB. But the decision made was about the proposed law in Congress? They skirted the core issue. We’re back to square one.” (MindaNews, December 1, 2015: SC skirted core issue in ruling on petitions vs Bangsamoro peace pacts)
In the same MindaNews report:
Lawyer Benedicto Bacani, also of Cotabato City, Executive Director of the Institute for Autonomy and Governance, said the decision “does not provide guidelines for the BBL. SC is throwing the ball at Congress. We are back to square one.”
PAPP Secretary Jesus Dureza was more to the point. “A definitive ruling by the Supreme Court would have been the ‘best case scenario’ for the Bangsamoro peace process.” He said this to reporters attending a training seminar on peace reporting here last November 5. But that early he was wishing the Court would rule definitively.
He presented the critical issue which only the Court can resolve with finality. Members of the 16th Congress deleted or drastically revised provisions of Draft BBL, citing alleged unconstitutionality. The GPH and MILF negotiating panels maintained the provisions had been vetted by the Office of the President and various government agencies and found to have complied with the FAB, CAB and the Constitution. The same issue if not resolved definitively will beleaguer the new BBL in the 17th Congress.
The definitive ruling that will provide guidelines for the BBL could be any of the following:
- The CAB is entirely unconstitutional. Forget the BBL and start a new recourse to solve the Moro or Mindanao Problem.
- The CAB is only partially unconstitutional. Revise those unconstitutional provisions to become constitutional while still CAB-compliant.
- The CAB is entirely constitutional. The 17th Congress should pass the new BBL or BEL (Bangsamoro Enabling Law) as submitted by the President as expeditiously as possible.
In short, the Court has shirked from the task that it alone can do to ensure the safe passage of the peace process through the 17th Congress and solve the Moro or Mindanao Problem. On the contrary, it should have been decisive.
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