COMMENT: BBL: To Insure Constitutionality

GENERAL SANTOS CITY, February 17, 2015 – With 54 session days remaining of the second regular session of the 16th Congress, the timeline to pass the Bangsamoro Basic Law is shrinking day by day while deliberations have been suspended indefinitely. For sure, it won’t be passed in 25 session days until adjournment on March 20; it will take a miracle to pass it in 29 session days, May 4 to June 11 when the Congress adjourns sine die. The Moro pass-BBL rallies, one before the Congress, mean growing impatience.

Will it be passed in the first half of the third regular session, by December 2015? If not, the BBL will wait for the 17th Congress – a most scary prospect.

Mixed Voices

From the Senate, Sen. Ferdinand R. Marcos, Jr., chair of the Committee on Local Government that leads the BBL deliberation, said the Senate timetable to approve the BBL by March 18 “is completely demolished” because of BBL’s many controversial provisions and the Mamasapano incident. So the government and MILF must start to look for “alternative ways” of seeking peace in Mindanao. (INQUIRER.net, February 11, 2015: BBL now ‘demolished’; time to look for alternatives—Marcos)

In other reports, while Senate President Franklin Drilon has steadfastly guaranteed the passing of the BBL, two of the 13 sponsors have withdrawn. The critical stance and the ominous silence of others are enigmatic. Can the majority vote of 13 be mustered?

From the House of Representatives, Speaker Feliciano Belmonte Jr. said the proposed BBL is not dead despite the suspension of the deliberations on it following the tragic Mamasapasano incident. He said he remains optimistic the chamber will be able to pass it even if not within the original March 18 deadline. (The Philippine Star, February 11, 2015: Bangsamoro Basic Law not dead – Speaker)

In other reports: Rep. Rufus Rodriguez, chair of the Ad Hoc Committee on BBL said that while the 37th and last committee hearing of the provisions on national defense, security and public order has been suspended, the AHCBBL will continue consolidating its reports on the 36 previous hearings. But when the several groups investigating the Mamapasano incident can come out with the “whole truth”— the condition for the lifting of the suspension — makes really indefinite the holding of the 37th AHCBBL hearing.

The representatives from Muslim Mindanao are one in urging the early passage of the BBL. In contrast, the group of military and police officers turned congressmen are very critical; they and the majority Christian representatives – possibly indifferent in their silence and visibly antagonized by the Mamasapano incident – can delay the BBL enactment and imperil its approval.

Former EU ambassador to the Philippines Alistair MacDonald, chair of the Third Party Monitoring Team that assesses the implementation the Comprehensive Agreement on Bangsamoro, noted with alarm the setback, due to the Mamasapano incident, of the Mindanao peace deal despite its significant progress. However, heWithout making predictions, but hoped the commitment to the peace deal of the government and MILF would prevail. (The Manila Standard Today, February 14, 2015: Peace pact took a hit, foreign monitors say)

From the Palace: Last February 10, Malacañang reiterated its call on lawmakers to pursue the Bangsamoro peace process with warning through Communications Secretary Herminio Coloma that the only alternative the peace process is widespread instability that will result in the breakdown of security and violence. (philstar.com, February 10, 2015: Palace warns lawmakers anew against junking Bangsamoro peace talks)

Troubling Signs

Two congressmen agree with Speaker Belmonte (The Philippine Star, February 14, 2015: House: BBL can still be passed under P-Noy’s watch). However, they revealed signs of troubles that lie ahead. Another assured the passing of a watered-down BBL.

Rep. Celso Lobregat: On the premise that the BBL “… will indeed bring peace and development to Mindanao, then we should approve it, but not in the form it was presented to us.” But doubting its approval by June, “… we can try to pass it toward the latter part of the year or next year before the end of the President’s term.” (Bold italics ours)

Rep. Rodolfo Albano III: “There is still a lot of hard work ahead of us. We all want to ferret out the truth behind the Mamasapano massacre of 44 of our policemen and in the process provide justice to them, and to be able to finesse the BBL into an acceptable, constitutionally compliant peace agreement.” (Bold italics ours)

Rep. Rodolfo Biazon: “I assure everyone, the Bangsamoro Basic Law will be watered down because we need to satisfy two issues: One, the constitutionality issue, and two, reconciling the different interests of different groups.” (Philippine Daily Inquirer, February 10, 2015: Biazon: Bangsamoro Basic Law will be watered down)

Biazon has stated the two main reasons why, as predicted by the Senate and House leaders, the BBL would be disapproved if put into a vote today. While it’s difficult, it might be easier to insure constitutionality than making the BBL acceptable to all.

Conflicting Group Interests

Conflicting group interests emanate from (1) the fear of diverse groups of losing their rights under existing laws or of these rights being diminished; and, (2) the unacceptable and revolting perception that the Moros will become more privileged than other groups. Reconciling the different interests is in reality easier than imagined.

Of the “(1)”, the BBL has provisions guaranteeing rights. Why not just wait and see how the guarantees are going to work. If the guarantees turn out unsatisfactorily, the Congress can reconcile the pertinent laws and the BBL provisions through amendments.

Of the “(2)”, there is a need to re-examine biases and prejudices to understand the many historical political, social and economic realities that have bred the injustices at the root of the Moro problem and rebellions. The challenge to the Christian majority in and out of the Congress is to sacrifice their biases and prejudices to correct the injustices done to the Moros in the past centuries.

Insuring Constitutionality

The Draft BBL contains provisions that, by the letter of the 1987 Constitution, are evidently unconstitutional despite the assurance of the Office of the President that the “refined” Draft adheres to the Constitution and is acceptable to all. In the Congress, the Senate and House committees see it riddled with unconstitutionalities.

The agreements embodied in Draft BBL are assumed to be within the flexibility of Article X and related provisions of the 1987 Constitution. The OP legal team reviewed, revised and refined the draft to validate and insure the assumption. But the flexible interpretation is now conflicting with the rigid or strict reading of the letter.

Only two scenarios will happen in the Congress. First, the pro-Aquino coalition has the number to pass the BBL within the flexible interpretation of the Constitution. This will be challenged before the Supreme Court. Second, the pro-Aquino coalition disintegrates; the BBL strictly adhering to the letter of the Constitution is passed. This “watered-down” BBL may be rejected at the plebiscite. Either way, the BBL can get killed.

Retired Chief Justice Artemio V. Panganiban, in his column “With Due Respect” in the Philippine Daily Inquirer of February 8, 2015, is offering two alternative solutions to insure the BBL’s constitutionality and save the peace.

His proposal: To save the peace process from formidable constitutional infirmities, Congress can either (1) delete the objectionable parts from the proposed Bangsamoro Basic Law (BBL) or (2) amend the Constitution.”

He said, “The first is the simpler alternative which the government and the Moro Islamic Liberation Front (MILF) may continue discussing.” That’s evident. Should the MILF agree to delete the objectionable provisions of the Draft, the BBL will be unquestionably constitutional and acceptable to all.

He stated the second in his February 1 column with the promise to explain it in the next: “I think that Congress should treat the constitutionally objectionable portions of the BBL as amendments to the Constitution by passing them ‘upon a vote of three-fourths of all its Members’ pursuant to Article XVII of the Constitution, and subjecting them to a plebiscite by all the voters in the country, not just in the affected areas in Mindanao.”

In his February 8 column, he explains the second — how it can be reasonably speeded up and secure the required three-fourths vote. The salient points:

[1] The stipulation: “… Congress shall pass and the President shall approve the BBL together with the constitutionally-infirm portions, with the proviso that the law shall be effective only after the Constitution is amended. … [T]he amendments would be submitted for ratification by the people.”

[2] To speed up the approval: “I believe that Congress can hasten the process by no longer subjecting the proposed amendments to three readings and by cutting the debates to a minimum.”

[3] To insure the required “three-fourths vote”, he “would urge the members of Congress to vote for the amendments if only to give our people a chance to debate and to vote on the monumental issue of peace. Even if they may not agree with the proposed amendments, they may still vote affirmatively with the reservation that, during the national debate on the plebiscite, they could take any position on any of the proposed amendments.”

[4] Extent of the amendments: “I suggest that the amendments not just cover the MILF peace process but also define in generic terms the extent of congressional authority to grant, by law, the delicate issues of sovereignty, territory, or even self-determination.”

[5] Itemized plebiscite questions: Rather than lumping the amendments in one line of “Yes” or “No” for the entire package, “they should be chopped into separate provisions which our people could ratify or reject one by one. Only those voted by the majority would be deemed included in the BBL once it becomes effective. If our people reject all the provisions, then the BBL would never take effect.”

A Third Alternative

We propose a third alternative. If doable, it will be faster and less expensive.

The Congress passes by majority vote the BBL as it is in the certified bill or with the slightest revision. A proviso will require that upon approval by the Congress, the BBL will be submitted not to the President for his signature but to the Supreme Court for judicial review. If the MILF has submitted to the wisdom of the Congress, the more they will trust the wisdom of the Supreme Court.

The Act goes back to the Congress for the Bicameral Conference Committee to amend or delete the constitutionally questioned provisions according to the decision of the Court. This will be the “Court-refined” BBL. After it is approved by the Senate and the House it goes to the President for his approval then to the Moro people for ratification.

The Congress, in passing the constitutionally questionable provisions, does not amend the 1987 Constitution but presumes them constitutional within the flexibility or spirit and intent of the Constitution. In submitting the BBL to the Supreme Court for judicial review, the Congress is asking the Court, as the final determiner of constitutionality, to scrutinize the presumptions with the end in view of having a truly constitutional BBL.

The constitutionality of the Basic Law that will establish the Bangsamoro in fulfillment of the Moro right to self-determination within the Philippine national sovereignty, with guarantee to preserve territorial integrity and in justice to all is better determined by the Supreme Court rather than through a national plebiscite. No matter how lofty are the ideals of democracy and sovereign will of the majority, they cannot assure the Moro right to self-determination will not be discriminated against in a national plebiscite.

The critical questions: Will the members of the Congress humble themselves? Will the Supreme Court accept the BBL for judicial review? (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].)

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