COMMENT: Amendments: Can They Backfire?

GENERAL SANTOS CITY, February 4, 2014 – The draft of the Bangsamoro Basic Law is sure of enactment in the Congress. On top of some precautionary statements, this was the assurance of Speaker Feliciano Belmote Jr. and some members of the Lower House when Bangsamoro Transition Commission Chair Mohagher Iqbal and his commissioners visited the Congress last January 29. On the next day, this, too, was the President’s assurance – his latest — when Iqbal and company paid him a courtesy call. Forget the warning of some minority senators.

Commissioner Raissa Jajurie summed up the assurance, “What we discussed was that Congress will pass a law within the framework of the Annexes, then we deal with the constitutional issue when it arises.” (The Philippine Star, January 31, 2014: House, MILF tackle peace process bills)

In another media report, Senate President Franklin Drilon said the Senate would give the BBL draft utmost priority but scrutinize it for its constitutionality. Congress leaders have repeatedly expressed their preference that the proposed basic law should not require any amendment to the Constitution to avoid legal complications, including questions before the Supreme Court that would derail the peace process.

In the House of Representatives

Speaker Feliciano Belmonte Jr. assured the BTC that the House would be “open-minded” as far as the BBL is concerned and that they are willing to assist the commission “singly or collectively.”All the congressmen who joined the speaker in receiving the BTC expressed support for the peace process. (Luwaran, January 31 2014: BTC Chairman and Commissioners meet House Leaders)

In a text message to last January 26, Belmonte said: “I hope that all the provisions, of which we have not been provided yet, can be implemented without touching the Constitution” — in response to some solons who thought the peace pact with the Moro group would call for constitutional amendments. (, January 27, 2014: Belmonte hoping law for Bangsamoro entity will need no Charter amendments)

Majority floor leader Neptali Gonzales II, in the same report above, said the Bangsamoro framework annexes included power sharing and territorial waters that are in the Constitution. In another report (, January 27, 2014: Solons: GHP-MILF peace pact may require Charter amendments) he agreed with other lawmakers who observed that these may require the amendment of the constitution in the crafting of the Bangsamoro organic law.

“If peace in Mindanao requires constitutional amendments, so be it.” The lower chamber should give in to a need for Charter change if it is the only way for a true solution to the conflict in Mindanao.

Muntinlupa Rep. Rodolfo Biazon (, said, “We need to study … if the provisions of the four annexes will require … constitutional amendments or enactment of new laws, amendment, revision or repeal of existing laws” – noting the need to give way for a special police force of the Bangsamoro even if the Constitution only provides for one police force, the Philippine National Police.

In the Senate

Senate President Franklin Drilon: The Senate will have to scrutinize the proposed Bangsamoro law and vowed to give it “utmost priority’ – stating that it would be universally fair, practical and constitutionally consistent. (Philippine Daily Inquirer , January 26, 2014: GPH, MILF peace pact complies with the Constitution – Palace)

Mindanao Senator Aquilino Pimentel III: The proposed Bangsamoro law should capture the “essence’’ of the four annexes and the lawmakers should make sure that the basic law that is approved is constitutional. (PDI-1-26-14 above)

Mindanao Senator Teofisto Guingona III filed proposed Senate Resolution No. 471 seeking an inquiry into the framework agreement and the recently completed annexes to know what it will hold for the country if a Bangsamoro Basic Law was enacted. A deeper understanding is imperative for Congress as well as for the public considering the impact of the entrenchment of the Bangsamoro. (Philippine Daily Inquirer, February 2, 2014: Senate wants to probe deal with MILF)

In the Palace

President Benigno Simeon C. Aquino III, according to Presidential Peace Adviser Secretary Teresita Quintos Deles, last July 30 urged the BTC to fast-track the completion of the draft Bangsamoro Basic Law  to ensure its passage and ratification with enough time to complete the transition tasks in time for the 2016 elections. Deles accompanied the BTC commissioners in their courtesy call to the President.

The President assured the BTC of the full support of the national government in terms of technical and political support, guidance and advice as well as budget; he would give as much of his own time as necessary to gain support for this undertaking; and expressed full confidence that, with everyone’s hard work and due diligence, the vote for the new law would be won. (OPAPP Website, January 31, 2014: P-Noy urges Transition Commission to fast-track Basic Law drafting; assures full support)

In another report, Deles revealed what could be the primary, as well as personal, reason moving the President’s full support. Deles stressed that it was President Aquino himself “shaped” the peace initiative with the MILF when he assumed office in 2010. In his instructions to the government peace panel, he outlined the peace agreement which should be constitutional, everything deliverable, inclusive and transparent. If a peace deal is clinched, it will happen during Aquino’s presidency. (Philippine Daily Inquirer , January 30th, 2014: ‘Failure not an option: There’s no Plan B’)

Communications Secretary Herminio Coloma: “The government negotiators followed the President’s directive to make sure each provision is constitutional, reflects the lessons of previous peace processes [alluding to the reasons why the MOA-AD was stricken down as unconstitutional], and most important, is consistent with political, cultural and economic capabilities of both parties.’’ (Philippine Daily Inquirer , January 26, 2014: GPH, MILF peace pact complies with the Constitution – Palace)

BTC’s Burden

This must be noted: The Palace is positive the FAB and the Annexes are within the constitution but the Congress leaders are wary of provisions that will call for amending the constitution. This reveals the compromises done during the negotiations and the issues still facing Government and MILF – much of their resolution now the burden of BTC.

To bridge their wide-apart positions, the Parties, in VII.4.b of the FAB, has allowed the BTC to recommend “proposals to amend the Philippine Constitution … whenever necessary …” which EO No. 120 creating the BTC restated in Section 3.b, “Whenever necessary, to recommend to Congress or the people proposed amendments to the 1987 Philippine Constitution.” By these, the FAB and the Annexes – hence, the BBL draft – are not unconstitutional; the Supreme Court in striking down the MOA-AD said proposals to amend the constitution are not unconstitutional.

However, the Congress in assuring the BTC of the enactment of the BBL draft expressed the preference that the proposed basic law should not require any amendment to the Constitution.

That is asking the BTC to submit, as much as possible, a draft without proposals to amend.

Can BTC do this? The BBL must contain the FAB and the Annexes. Like pre-fab building materials, they are ready for installation. But BTC cannot modify these “pre-fab” provisions. Can it remedy any unconstitutionality through some kind of “language engineering” when drafting the BBL?

Can the Parties, if BTC fails to – a certainty seemingly impossible to reverse — take comfort in the assurance of the Congress to enact the BBL, dealing with the constitutional issues as they arise?

Can Backfire

The Congress, if it decides to, can amend the 1987 Constitution to make the BBl constitutional. At present, only two items have been often mentioned: (1) the Addendum on Bangsamoro Waters to the Annex on Power Sharing which can be in conflict with Article I on National Territory; and, (2) the creation of the Bangsamoro police force which can be in conflict with Article XVI, Section 6 defining the Philippine National Police. There may be more.

The administration’s majority coalition in Congress can muster the two-thirds majority of all members to pass the proposed amendments. However, the real problem begins there. The amendments have to be ratified according to the 1987 Constitution.

What is that real problem? The BBL has to be ratified. As agreed, it will be ratified by the voters in the Bangsamoro territory. However, with provisions amending the 1987 Constitution, will this be done?

Article XVIII (Amendments or Revision) mandates a national plebiscite to ratify constitutional amendments. There may be two options: First, the BBL is submitted to a national plebiscite that will deem the amendments ratified if the national electorate ratifies the BBL. Second, a national plebiscite to ratify the amendments will first be held then submit the BBL to the Bangsamoro plebiscite.

The amendment backfire can jeopardize the BBL and, consequently, the Bangsamoro. In the first option, the BBL is certain to be rejected. In the second, the question is: What if the amendments are rejected in the national plebiscite? This is crucial. It can be life or death to Bangsamoro.

If the BBL contains amendments to the 1987 Constitution that have not been nationally ratified, this will surely be questioned in the Supreme Court. Will the Court deem ratified amendments not ratified nationally and the BBL constitutional?

Back from their memorable and encouraging visits to Speaker Belmonte and President Aquino III, are the BTC chairman and members not alarmed by the preference expressed by some Congress leaders for the BTC to submit a BBL draft that is not requiring any amendment to the 1987 Constitution to avoid legal complications, including questions before the Supreme Court that would derail the peace process?

Stated simply, the Congress can amend the 1987 Constitution and enact the BBL draft, but the amendments can backfire. (MindaViews is the opinion section of MindaNews. (“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. While in Cotabato City, he served as editor of Mindanao Cross and later Mindanao Kris. He is now based in General Santos City. 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 protected].)