COMMENT: BBL: To Insure Constitutionality II

Last of two parts

Diverging Tracks

GENERAL SANTOS CITY, April 3, 2015 – Draft BBL is constitutional within the flexibility of the Constitution according to the legal minds of the Palace and MILF. But it has many constitutional infirmities as seen by the members of the Congress. A third mind is needed to unite the diverging tracks.

Constitutional law experts are divided into two camps one camp putting more emphasis on the “letter” of the Constitution; the other, on the “spirit”. (See: MindaNews, January 16, 2015: BBL: Constitutionality in Letter or Spirit)

In the first, the Constitution adheres to the traditional principles of constitutionalism; it is a rigid basic legal instrument strictly interpreted according to its provisions and nuances. To this, the Congress belongs. In the second, it is a social instrument liberally interpreted to benefit the country and its people. To this the Palace and MILF legal teams belong.

In the enactment of the BBL, the Congress has the inside track. The Palace can only recommend. The Congress alone can enact the law. That it has found constitutional infirmities in Draft BBL notwithstanding the President’s guarantee to the contrary will stand; the Draft has to be cleansed of these infirmities.

The Congress has invited constitutional law experts and the peace panels to its hearings. However, it appeared that the hearings were not in aid of legislation but, rather, in aid of cementing closed minds. For instance, Sen. Miriam Defensor-Santiago has pronounced Draft BBL as unconstitutional in many counts. As chair of the Senate Committee on Constitutional Amendments, her challenge to those she had invited to her Committee’s BBL hearings was: Let’s see if they can change my mind.”

The diverging tracks of the letter and spirit of the Constitution imperil justice. The GPH panel saw through dialogues the need to restore the justice long taken away from the Moros; it conceded to the demands of MILF within the flexibility of the Constitution. How absurd it is that the Congress, without seriously talking to MILF about the Moro Problem, would deny the restoration of justice through the BBL because the Draft does not adhere strictly to the letter of the Constitution. Restore justice to save the peace.

The Third Mind

To the Congress, it is final: BBL must strictly conform to the letter of the Constitution – take it, or leave it – according to its members’ interpretation of the letter colored by their anti-Moro biases and prejudices. There is no chance for the spirit of the Constitution to prevail. Without justice restored to the Moros, peace is enigmatic.

Dismissively, the Congress is telling the Palace and MILF: Your interpretation of the Constitution is wrong; only ours is correct. But, no matter how self-assured the Congress is, the BBL it will pass will not solve satisfactorily the Moro Problem and it will be still challenged in the Supreme Court.

Only the Supreme Court can tell with certainty and finality how to balance the letter and spirit of the Constitution in order to enact a BBL that will satisfy constitutionality and the needs to solve the Moro Problem. But, Panganiban said that the Court will not intervene in the legislative process by rendering “advisory opinions on constitutionality”.

By a long shot, why not resort to the “judicial review” we proposed in our February16 MindaNews COMMENT – the same section we reproduced above? We are neither a lawyer nor a constitutionalist. But we see no harm in selling the idea of a journalist; it might be bought and prove effective. In this proposal, the Court is the third mind.

To begin with, the Congress, the Palace and MILF strike a covenant: The Congress enacts a BBL as provided in the Draft with the least revision or amendment. The Act, as provided, is submitted to the Court for judicial review. They will abide by the ruling of the Court and promulgate the Court-refined BBL.

To clarify:

  1. This “judicial review is not to “render advisory opinions on constitutionality” in aid of legislation but to rule on the constitutionality of provisions of an Act not to uphold or to nullify it but to allow its amendment, if necessary, into a law that will restore justice to the Moros and establish lasting peace.
  2. This does not violate the doctrine of separation of powers; it only calls for cooperation which is implied in the doctrine.
  3. If done according to the covenant, the BBL can be passed by June 11. The “judicial review” will preclude petitions against it before the Court. It may be promulgated by the end of December 2015.

One question: With the adverse Court ruling against the MOA-AD, what chances are there that the Court will rule favorably on the asymmetrical relation of the Bangsamoro with the Central Government, on its ministerial form of government and on its powers and privileges agreed in the Annexes?

Seven years have elapsed from October 14, 2008. Conditions and issues have changed. While the Court’s mind “rarely changes”, it is not monolithic.

In its MOA-AD Decision, the Court showed its flexibility and understanding of the importance of the peace negotiation with the Moros. For instance, the Constitution does not explicitly vest the President with the authority to negotiate peace. But it ruled the President has this authority as an extension of his powers as Chief Executive and Commander-in-Chief – not by letter (denotation) but by spirit (connotation).

In another instance, it said: “The MOA-Ad is a significant part of a series of agreements to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. 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.” (Bold text ours)

Why did the Court not nullify the MOA-AD? Why did it lay down a guideline for further negotiations between Government and MILF? This encouraged MILF to reframe MOA-AD as its peace proposal and pursue the negotiation according to its matrix of demands spelling out the talking point, “To Solve the Moro Problem”.

The much-hoped-for scenario – the enactment of Draft BBL as the Bangsamoro Basic Law essentially intact – has more chances of realization under this suggested “judicial review” scheme. With the opposing “letter-“ and “spirit-camps” expounding on their sides of the constitutional issues, the Court will balance the “letter” against the “spirit” and emerge in a converging track toward the restoration of justice for the Moros and lasting peace.

Of particular import, the fourteen surviving members of the Cory 1987 Constitutional Commission will be there to elucidate on their brief, “Statement on Bangsamoro”, supporting the BBL in the spirit of the 1987 Constitution. They will have better chances to be fairly heard by the Court than by the Santiago Senate Committee.

The ultimate question: Will the Congress, the Palace and MILF, and the Court buy this novel “judicial review” idea? (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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