II. Prerogative and Compromise
GENERAL SANTOS CITY (MindaNews / 24 Feb) – It has become clear the Bangsamoro Basic Law will not be passed as originally provided in the Draft BBL transmitted by Malacañang to the Congress. Key provisions are questioned on issues of constitutionality, legality and policy. MILF Chairman Murad Ibrahim had appealed for the passage of the bill with minor changes only. The leaders of the Congress took his letter as “blackmail” and hardened their resolve to amend, revise and add supplementary provisions to the bill.
The leaders of the Congress are invoking their prerogative to revise, amend and re-write bills and other proposed measures. As seen in the published excerpts, Murad’s letter did not question the prerogative of the Congress. It was rather an appeal to treat the BBL bill within the context of the negotiated agreements of the MILF and Government as the just solution to the Moro grievances and in pursuit of the Moro right to self-determination.
They avow they are for peace in Mindanao. Sen. Ferdinand R. Marcos, whose committee steers the passage of the Senate BBL bill, said last Thursday as reported by the Philippine Daily Inquirer, February 19 and 20, 2015: “We are not out to make changes in the BBL just because we like to do so.”
He explained: “We would be making changes, amendments, add, or delete provisions because in our view, that is the best way to make a more robust and effective law. Let’s not forget that the ultimate goal of BBL is peace in Muslim Mindanao. And we will strive to pass the best BBL possible so that we would achieve a true and lasting peace in Muslim Mindanao.” (Bold italics ours)
He was reiterating the same apology he and other key leaders of the Congress had said many times. Their wisdom and sincerity of purpose is not to be questioned. What should be is their “wisdom and sincerity of purpose” in giving little weight to, if not totally ignoring, the wisdom as well as sincerity of purpose of the MILF and Government in arriving at the solution of the Moro Problem after 17 years – four under President Aquino – of hard negotiations, fleshing out the spirit of peace in the Draft BBL.
The critical questions: What are their criteria – not just “in our view” – in determining (1) “the best BBL possible”; (2) with reference to the BBL, “a more robust and effective law”; and (3) “a true and lasting peace in Muslim Mindanao”? Without the valid and necessary criteria, how will they be able to make the BBL the best law possible, “more robust and effective” and to achieve “a true and lasting peace in Muslim Mindanao”?
As stated above, the Draft BBL contextualized the agreements of Government and MILF in their 17-year peace negotiation – the major agreements signed within the first four years of the Aquino administration. Hence, the references in crafting the Draft BBL are the Framework Agreement on the Bangsamoro of 2012; the four Annexes to the FAB with one Addendum signed in 2013 and 2014; and the Comprehensive Agreement on the Bangsamoro, the compendium of the FAB, its Annexes and other negotiation documents.
Murad is reminding the leaders of the Congress in his letter of December 29, 2014 of the CAB as the reference in amending the Draft BBL to “clearly improve it or enhance it”. In the 17 years of negotiation, Government and MILF have dissected the injustices and other grievances of the Moros and determined – through frank, tedious and contentious discussions of the Moro grievances and demands for redress – what Government can grant and what MILF will accept, compromises on the basis of “parity of esteem”.
The peace negotiation of 17 years has defined what “lasting peace in Muslim Mindanao” must be and arrived at the mutually agreed “best law” – the BBL – to achieve this peace.
On the contrary, what are the references of the Congress? As Marcos has stated, it is “in our view”. In reference to Draft BBL, “in our view” is clarified to be “according to the 1987 Constitution”.
This is the same thinking in “Filipinization”, the policy started in 1912. While originally, the policy was only for the Filipinos to be included in the U.S. Insular Government of the Philippines, it affected the Moros when the Moro Province was abolished to become the Department of Mindanao and Sulu administered by Christian Filipinos.
To the Americans, “in our view”, the Moro landholdings must be governed by land laws based on the Torrens title system; Christians from the north must be settled in Mindanao; the Moros must be under the political administration of Christian Filipinos in place of their sultanates; etc. Starting with the Commonwealth Government, the “in our view” guided Moro policies to integrate the Moros in mainstream Philippine society. Today, to the Congress, “in our view” the BBL must adhere to the letter of the 1987 Constitution.
Is It Binding?
The “in our view” is the Congress leaders’ negation of what Murad has reminded them in his December 29, 2014 letter:
1. Draft BBL, mutually agreed by Government and MILF, was drafted by the BTC with “congressional sanction through congressional resolutions” (Senate Res. No. 971 and Congress Res. No. 922, both issued in December 2012).
2. Before submitting the Draft to the Congress, the Executive Secretary and the legal team of Office of the President together with the MILF and its legal team reviewed and revised the draft to make sure “that the mutually agreed text of the BBL is within the flexibilities of the Constitution,” according to CAB as negotiated by Government and MILF peace panels.
3. MILF negotiated with the “understanding that it was negotiating with the totality of the Philippine government or ‘whole government’” believing that with the President’s “commander-in-chief powers” he is allowed “to bind the whole of government, including its different branches.”
In promising to pass their own version of the BBL, the leaders of the Congress, (1) in spite of their resolutions and glowing rhetoric, are not supporting the mandate of the BTC provided in Executive Order 120 – a support they had accepted as required in the FAB; (2) they refuse to see the flexibility of the Constitution; and, (3) they believe the President has no authority to negotiate with the rebels in the behalf of the “whole government” and to bind its branches, the Congress in particular, with his commitments.
The crucial questions, First: Are the Draft BBL as it is, its references in the CAB and the compromises and understanding under which it has been drafted (let alone the appreciation for the cooperation and concerns of international communities for lasting peace in Mindanao) binding to the Congress? Second: Is it within the prerogative of the Congress to amend and revise the Draft according to just “in our view” while completely disregarding – in effect abrogating – the CAB?
In its October 15, 2008 Decision on the petitions against the Memorandum of Agreement on the Ancestral Domain, the Supreme Court addressed the issues on  the authority of the President to negotiate with the rebels, and  peace negotiation and the Constitution. It appears the leaders of the Congress just talk a lot without doing their homework well.
On the “”, The Court, addressing the extent of the President’s power to conduct peace negotiations, said: “That the authority of the President is not explicitly mentioned in the Constitution does not mean she [Gloria Macapagal-Arroyo was President at the time] has no such authority.” It cited precedents quoting specific rulings to show the authority.
Then, it declared: “Similarly, the President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief she has the more specific duty to prevent and suppress rebellion.”
On the “”, the Court said, “In the Philippine experience, the link between peace agreement and constitution making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions is the framers’ intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between GRP and MILF …”
The Court noted only partial success in the implementation of the autonomy provisions as evident in the “on-going conflict between the Government and the MILF” and declared: “If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given leeway to explore, in the course of peace negotiations, solutions that may require changes in the Constitution for their implementation.” (Bold italics ours)
The Court acknowledged: “Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.” (Bold italics ours)
The Court lengthily explained that the President’s power “to explore solutions” requiring “changes in the Constitution” is limited to recommending amendments, not unilateral amendment that will usurp the power solely vested on the Congress.
Back to the crucial questions, the answer to First is YES; to Second, NO. These, we will elucidate below.
While talking a lot, the leaders of the Congress must also comprehend these:
First: The doctrine of separation of powers is a paradox; it separates but binds. The powers are separate like links bound in a chain. It does not mean the Executive, the Legislative and the Judiciary are absolutely free to act according to “in our view”.
Second: The Decision on the MOA-AD is very material to the Draft BBL. As an option for the government to pursue the GRP-MILF peace negotiation, the Courts said: “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.” The Arroyo government picked up the option; the Aquino government pursued it to end with Draft BBL.
Draft BBL, while not the MOA-AD renegotiated, has provisions similar and significantly dissimilar to the provisions of the MOA-AD.
Third: In continuing the peace negotiation with MILF, President Arroyo and, after her, President Aquino III had the Court assurance of the legitimacy of their authority to negotiate with the MILF and “to explore … solutions that may require changes in the Constitution” as long as these are submitted to the Congress as proposed amendments. What the Aquino government explored was the flexibility of the 1987 Constitution.
Assured that the Agreements were within the flexibility of the Constitution, the BTC did not recommend amendments to the Constitution even if authorized under EO No. 120.
Fourth: The power to negotiate peace is “uniquely vested” on the President who “is in a singular position to know the precise nature of [the rebel groups’] grievances….” Under the doctrine of separation of powers, the Congress does not conduct peace negotiation but under the binding aspect of the same doctrine, it is bound to enact into laws solutions to the peace problems as negotiated and recommended by the President.
From Ramos to Aquino III, only the President has the power to negotiate with the MILF. At the finishing stage of the Government-MILF 17-year negotiation, President Aquino III explored the establishment of the Bangsamoro to settle the Moro grievances. The terms are provided in the BBL; the Congress is bound to enact the BBL as provided in the Draft and certified by the President in agreement with the MILF.
The Congress must not revise and re-write the Draft merely based “in our view” to come up with its version of the BBL.
Fifth: The Supreme Court is the ultimate arbiter on dispute concerning constitutionality and legality. It alone wields the power – separate but binding to the Legislative and the Executive. Since Malacañang deems the Draft BBL constitutional based on the flexibility of the Constitution and the Congress holds to the contrary according to the rigid letter of the Constitution, only the Supreme Court can resolve the dispute.
Hence, the ultimate compromise: The Congress, the President and the MILF agree on this: The BBL is enacted with minor changes in the Draft. It is submitted to the Supreme Court for judicial review pertaining to constitutionality and legality. This will determine the final BBL to be signed by the President and ratified in the plebiscite.
The BBL will be the joint acts of three separate powers – negotiated and drafted by the Executive; enacted by the Legislative; and cured of constitutional and legal infirmities by the Judiciary. This is contrary to how the President and the Congress are avoiding judicial sanction – pass a BBL that will not be questioned in the Supreme Court.
Will this ultimate compromise happen?
The House AHCBBL chairman said his committee has already deleted all the provisions that are unconstitutional. The Senate and House leaders are not only determined to make the BBL adhere to the rigid letter of the Constitution but are also imposing on the MILF more impossible conditions for the passage of the BBL.
But the MILF, while still trusting the wisdom of the Congress, is consistent in its insistence to have Draft BBL passed with minor changes and it would not accept a diluted BBL. The Moros, with the women in the forefront, are intensifying their campaign to pass the BBL. This should not be ignored.
The more the prelude is becoming ominous. Again, prelude to what! May God forbid! To the effect Davao City Mayor Rodrigo Duterte is warning.
[To Be Concluded: III. Disturbing Updates]
(“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])