COMMENTARY: A better way for Bangsamoro constitutional amendments

NAGA CITY (MindaNews/14 December) — Fr. Joaquin G. Bernas’s column piece “How may Congress handle the Bangsamoro bill?” (12/8/14, p. A19), more particularly on how Congress can handle the serious constitutional(ity) issues regarding the proposed Bangsamoro Basic Law (BBL) by exercising its constituent (constitution-making) powers, suggests that Congress make the plebiscite for the BBL “a constituent exercise at least with respect to the provisions challenged as unconstitutional” and that this would necessitate a nationwide plebiscite, not just one in the proposed core territory for the new Bangsamoro entity as envisioned in the proposed BBL.

With due respect, I see some issues of wisdom as well as political feasibility, rather than constitutional “allowability,” of such a suggestion.  It is not clear in the suggestion whether the whole BBL would undergo a nationwide plebiscite as a constituent exercise or would the latter only be for its provisions that are “considered as unconstitutional.”  To determine and specify which these provisions are, for purposes of their necessary specification in such a plebiscite, is quite tricky, to say the least. As to “what are considered as unconstitutional,” the opinion of one legal luminary is as good as that of another legal luminary, as the House Ad Hoc Committee on the BBL public hearings have shown.  Only the Supreme Court can determine that definitively.  It can be a foolhardy thing sometimes acting on the basis of second-guessing the Supreme Court.

A nationwide plebiscite, whether with or without the specification of constituent intent, was never the intention of the government (GPH) and Moro Islamic Liberation Front (MILF) peace negotiators as shown in their Framework Agreement on the Bangsamoro (FAB) and its Annexes as well in as in their proposed BBL.  While such a nationwide plebiscite would be laudable in terms of national majority stakeholdership in the BBL and the new Bangsamoro entity, the negotiating parties went for a more realistic and pragmatic route of a regional plebiscite necessary only for organic act purposes for what would constitutionally still be an autonomous region in Muslim Mindanao.  In fact, it is clear that the MILF acquiesced to the GPH position for a basic law or organic act “within the flexibilities of the Constitution.”

And because of the Congress’ own avowed and purposive efforts to ensure that the BBL falls within the four corners of the Constitution, will not require an amendment to the Constitution and will stand scrutiny if questioned in the Supreme Court, the BBL can be expected to have more than the usual presumption of constitutionality that all laws passed by Congress have.   Thus, it is reasonable to say that, at most, only a few provisions, if ever, would likely be found by the Supreme Court to be unconstitutional but separable from the constitutional whole – unlike the case of the aborted 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD), which was declared unconstitutional as a whole.  It is those few separable unconstitutional provisions, if any, of the BBL that could be deferred to a later, more feasible and opportune time for constitutional amendments.

In fact, it is the second mandated task of the Bangsamoro Transitory Commission (BTC) — after it had initially drafted the proposed BBL as its first mandated task under the FAB as well as under the Executive Order No. 120 which created it – whenever necessary, to recommend proposed constitutional amendments.  But the process and time frame for this is not indicated in the outlined GPH-MILF peace road map till the establishment of the Bangsamoro Government by mid-2016, the scheduled end of term of President Aquino. He has never shown keenness for such constitutional amendments and is instead effectively leaving this matter to the next administration to deal with.

At this point, it does not seem advisable to subject the BBL to a nationwide plebiscite with constituent intent just so that “this can result in new constitutional provisions… beyond the reach of the review powers of the Supreme Court.”   First of all, that is not the intention of the BBL for it to “result in new constitutional provisions.”  Secondly, a nationwide plebiscite for the BBL at this point will likely result in its failure to get passed as a law of organic act nature.   Actually, it is no secret that the MILF is of the strategic conviction that the full or complete solution of the Bangsamoro problem would require a constitutional amendment.  This is correct, if only for the Bangsamoro region to be adequately and effectively “liberated” from the “tyranny” of the overarching highly-centralized unitary system of government of the Philippines while remaining part of it.    But the MILF pragmatically knows and accepts that a constitutional amendment is not yet feasible at the point, and that it is better to have a BBL to build on rather than have nothing to show and be left with the “unacceptable status quo” of the “failed experiment” that is the Autonomous Region in Muslim Mindanao (ARMM) – which is actually “entrenched” in the present Constitution.

At the same time, some observers have noted that the proposed BBL has already had the unintended consequence of waking up the federalist movement which is mainly being generated from Mindanao. Others say that the new Bangsamoro entity being created through the BBL is showing the way for future charter change that would unloosen the strictures of a unitary state.  A shift to a federal state would indeed necessitate charter change.  Ironically, this particular political-constitutional reform might even overtake the necessary constitutional amendments to complete the political solution of the Bangsamoro problem. The political reality is that Bangsamoro constitutional amendments would have a better chance of getting approved in a nationwide plebiscite if they are part of a broader package of needed political-constitutional reform.  It is strategically towards such major and key political-constitutional reform to which Congress should best exercise its constituent powers, including calling a constitutional convention for the purpose.

But when the time for the idea of Bangsamoro constitutional amendments comes, ideally it should be the Bangsamoro people themselves who should draft them, of course still subject to the constitutional process of ratification by the Filipino people.  A more inclusive and representative multi-stakeholder body than the MILF-tilted BTC will be needed to work on proposals for such constitutional amendments.  As it is, the BTC shall cease to exist upon the enactment of the BBL. Just as it will take time for the idea of constitutional amendments to ripen, so too will it take time to bring together a more inclusive and representative multi-stakeholder Bangsamoro constitutional convention — much like a negotiating roundtable at which all stakeholders, armed and unarmed, represent themselves – and ideally in coordination with a national constitutional convention.

In such a constitution-making scenario, the proposed amendments should no longer be based on “what are considered as unconstitutional” in the BBL, which would likely be, at most, only a few provisions, if ever, because it was in the first place negotiated and then drafted “within the flexibilities of the Constitution.”  The framing of constitutional amendments based on provisions in the BBL that are “considered as unconstitutional” would be too shallow and limited to fully address the Bangsamoro problem.  It is this parameter of solving the Bangsamoro problem rather than of putting the BBL “beyond the reach of the review powers of the Supreme Court” that should guide the work on proposals for such constitutional amendments.  This is where the need comes in to “think outside the box” of the Constitution and of the proposed BBL.

[MindaViews is the opinion section of MindaNews Soliman M. Santos, Jr. has been a long-time Bicolano human rights and IHL lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer esp. for and on the Mindanao peace process, with several books on this, including The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001; with 2nd printing, 2009), where he has long made the first full argument for charter change for that peace process.  He is presently Presiding Judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, both in Camarines Sur.]