GENERAL SANTOS CITY (MindaNews/13 January) — Luwaran, in its editorial of January 1-7, 2015, referred to “2015” as “the year of reckoning vis-à-vis the Bangsamoro Basic Law (BBL).”
Expressing anxiety: “Its fate is hanging in the balance. We should watch how this year unfolds itself and how Congress shapes the destiny of this proposed law.”
This reveals tension gripping the Moro Islamic Liberation Front leaders while reposing their trust and confidence in the wisdom of the Congress and the sincerity of the President.
In its January 8-15, 2015 editorial, “Sensitive Situation,” it noted three categories of statements on the BBL from some House and Senate leaders: “Most of the public statements were good and very encouraging; others are not so wholesome; and still others spoke of some unconstitutional provisions of the proposed law.” It acknowledged “good faith” in some “statements of unconstitutionality” which media reporters might have “quoted out of context” and “we believe require clarification.”
The editorial admitted: “The truth is that we are in a very sensitive and delicate situation.”
The “we” must be referring to the MILF leaders, the Luwaran being their official website. It appealed “to all and sundry especially leaders not to make hasty pronouncements”, the issue being “in the domain of the Supreme Court.” In its December 28, 2014 posting, Luwaran noted the “vast powers on fiscal autonomy and taxation” of the Bangsamoro proposed in the BBL as “a constitutional pitfall.”
The most potent pronouncements, hence most crucial to the fate of the BBL, are those of Sen. Miriam Defensor-Santiago. As chair of the Senate Committee on Constitutional Amendments and Revision of Laws, she will conduct the hearings on the constitutionality and legality of the BBL. Her position will impact on the course of hearing and reflect in the bias of the report of her committee for the plenary. If her stand remains unchanged after the hearings, she will likely speak against the bill in the plenary.
Besides her statements in casual or ambush interviews, she spelled out her stand in the transcript of the interview she gave on the Framework Agreement on Bangsamoro (FAB) on October 9, 2012 and in an excerpt from her commencement address at the Gordon College in Olongapo City on April 2, 2014 taking to task the Comprehensive Agreement on Bangsamoro (CAB). These were posted in her blog, miriam.com.ph/newsblog. The original would clarify any quotation or citation out of context in the media reports.
In the October 9, 2012 interview, she zeroed in on the unconstitutionality of negotiation and on two areas that will necessitate amendments as predictably noted since the FAB only contained the “framework”. However, in her commencement address she itemized the unconstitutionalities. Incidentally, Gordon College supported openly the CAB as shown in the big streamer displayed in the campus.
She was categorical in her opening statement: “I am very concerned with the framework agreement with the Bangsamoro concerning Philippine government and Bangsamoro relations.” She observed: “… as explicitly mentioned in the framework agreement, this agreement depends upon the amendment of our Constitution.”
She questioned the participation of “foreign parties … in negotiations that involve the amendment of our Constitution” as contrary to the “very definition of Constitutional sovereignty” in which “we become independent of any other state”.
On this premise, she was categorical: “So I’m very worried that some other state –Malaysia, the mediator — or a few other states may have been participating in these negotiations which will dictate how the Filipinos will implement a constitutional provision on the Autonomous Region of Muslim Mindanao.”
She noted “at least two constitutional amendments involved”:
 “… in the Bangsamoro area or region, there will be not the Presidential form of government, but a completely different form of government, the Parliamentary form of government. That certainly will require an amendment of our Constitution.
 “… the second amendment, which seems to be necessitated by this framework agreement, is a federalized system with respect only to Bangsamoro area … treated as a so-called sub-state as in a federal state. Other local government units will be treated as local government units under our presidential form of government but this particular area will be treated as sub-state.”
She explained that by the “context of this Bangsamoro agreement … this so-called sub-state will have power that all governments exercise” – that, notwithstanding the powers excepted, will otherwise make it “a completely independent state”. Wondering whether the term “sub-state” was just “invented for us”, she believes that “the Bangsamoro area will become … a dependent state or a non-sovereign state”.
She is obviously intrigued by another element added to the “sub-state”: “… there is a transitional commission, which is supposed to draft the Bangsamoro basic law or Constitution of Bangsamoro area, but this Bangsamoro basic law will have to include these two constitutional amendments.” Normally, the power to draft the basic law is exclusive to the Congress.
First: “In the proper order of priorities, first, we have to amend our Constitution” before “we can pass the Bangsamoro basic act.” Meaning, the constitutional amendments have to be ratified in a national plebiscite before the Congress can pass the BBL.
Second, the proper order is a hard option: “If we do not pass these amendments in the plebiscite, or if Congress does not pass these amendments, then the framework agreement will be discarded. “ Then, she said, the Congress and the Filipino people will be held responsible and blamed for the failure.
Third, she deplored the fact “that our own constitution is being subject of a treaty. Since when did a foreign entity or even a rebel entity have the power to compel our people to pass amendments to our Constitution?”
In response to a question, she said she will not file a petition with the Supreme Court regarding the FAB, but she will always be firm in her stand “that our constitution must remain as it is. As much as possible we should not amend the constitution for trivial reasons or even for important reasons if we can still function under that Constitution, because amending it frequently violates the very principle of constitutional law.”
On the CAB
The CAB signed on March 27, 2014 consists of a five-page comprehensive agreement covering a compendium of 12 agreements including the FAB and its four Annexes with one Addendum which are the actual basis of the Draft BBL defining the relations of the central government, the Bangsamoro government, and the local government units.
She stated her stand: “I regret that, after my preliminary studies, I have concluded that the Framework Agreement on the Bangsamoro is unconstitutional, for the following reasons” — four primary with the seven sub-reasons for the fourth reiterating or elucidating her stand in the interview two years earlier:
She assails the constitutionality of the agreement:
“1. The Agreement is between the Philippine Government (GPH) and the MILF. It is misleading for the Agreement to identify that one party is the “Philippine Government.” The reality is that only one of the three branches of government — the executive branch, consisting of the Office of the President acting through a peace panel of negotiators — represented the government. The executive branch alone does not represent the Philippine Government.”
In concluding, “Thus, the executive branch, in negotiating the Agreement had no power to bind the two other branches — legislative and judicial. In negotiating for the government, I am afraid that the executive branch not only exceeded its powers, but may have infringed upon the powers of the legislative branch,” does she mean the President should have first sought authority from the Congress? The Supreme Court, in its Decision declaring the Memorandum of Agreement on Ancestral Domain unconstitutional, said the President has the authority to negotiate.
Such misrepresentation resulted in granting MILF a sub-state, not an autonomous region.
“2. When the executive branch misrepresenting itself as the Philippine Government enters into an agreement with the rebel group, the result is not a mere autonomous region as provided for by our Constitution, but a substate. Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a substate.”
The Agreement diminishes the sovereignty of the Philippine Government which, in the future, may be increased only with the consent of the Bangsamoro.
“3. The Philippine Constitution provides for the powers of the state. The Constitution is supreme. The Agreement reserves to the central government the exercise of certain so-called “reserved powers,” which are described as powers “retained by the central government.” Thus, the Agreement diminishes the sovereignty of the Philippine Government by listing what are the powers that the central government can retain. In other words, the Agreement attempts to redefine the sovereignty of the Philippine state.” (Bold ours)
“In addition, the Agreement provides that the powers reserved to the central government will depend upon further negotiation by providing: ‘This list is without prejudice to additional powers that may be agreed upon by the parties.’ Thus, the Agreement not only reduces the sovereignty of the central government, but also provides that in the future, such sovereign powers as have been reserved may be further increased, provided the Bangsamoro agrees. It will therefore be the Bangsamoro which will determine what should be the remaining sovereign powers of the central government.” (Bold ours)
The Bangsamoro as a substate is elucidated.
“4. That Bangsamoro will be a substate is revealed by the following provisions:
“a. The powers of the central government shall be determined by the Agreement, thus turning Bangsamoro into a substate.
“b. The Autonomous Region for Muslim Mindanao, which is provided for by the Constitution, will be abolished by mere agreement with the MILF, which is not surprising if you consider that the Bangsamoro has become a substate.
“c. Allocation to the Bangsamoro of all powers exercised by the national government over local government units.
“d. Although the Constitution provides that natural resources belong to the state, in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources.
“e. The Annex on Power Sharing gives to Bangsamoro so-called “exclusive powers,” which is defined as a tautology, as “powers or matters over which authority and jurisdiction pertain to the Bangsamoro government.”
“f. Only the Bangsamoro shall be under a ministerial form of government, while the rest of the country will operate under a presidential form of government.
“g. The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the Transition Commission which at present is reportedly drafting the Bangsamoro Basic Law. One of the functions of the Transition Commission is as follows: “To work on proposals to amend the Philippine Constitution for the purpose of amending and enriching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.
She observed: “Finally, I make the statement after preliminary study that the Bangsamoro Agreement apparently contains provisions very similar to those contained in the Memorandum of Agreement on Ancestral Domain (MOA-AD) which the Supreme Court declared as unconstitutional. Both the MOA-AD and the Bangsamoro Agreement appear to facilitate the secession of the Bangsamoro from our country, in a manner similar to the secession of Kosovo and Crimea.”
In clinching her stand, she also states the principle that will illuminate the hearings of her committee.
“On the whole, I could be removed as chair of the Senate committee on constitutional amendments. But while I am chair, it will be extremely difficult to convince me, as a student of constitutional law, that the Bangsamoro Agreement respects the Philippine Constitution. On the contrary: The Agreement violates the principle of constitutional supremacy.” (Bold ours)
Her stand is clear. Luwaran may not be referring to her alone. But how she will dissect Draft BBL during her committee hearings on January 26 and February 2 will be most interesting to anticipate — something to watch with bated breaths.
(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 protected])