COMMENT: BBL: To Insure Constitutionality II

Part 1 of 2

GENERAL SANTOS CITY (MindaNews / 2 April) – Incidentally, this is a sequel of BBL: To Insure Constitutionality (COMMENT No. 8:15, February 16, 2015). In that article, we first discussed summarily the obstacles that imperil the passage of the Bangsamoro Basic Law bill in the Congress. The bill had been at a standstill and swamped by a deluge of legal and constitutional issues while time was running out. It still is, time is – even more.

Then we brought up the two alternative proposals to insure the BBL’s constitutionality and save the peace which Retired Chief Justice Artemio V. Panganiban discussed in his column article, “Saving the peace” (With Due Respect, Philippine Daily Inquirer, February 8, 2015). The proposals: “Congress can either (1) delete the objectionable parts from the proposed Bangsamoro Basic Law (BBL) or (2) amend the Constitution.”

If adopted, the “(1)” will result in a BBL far from the original draft; the “(2)” will tie the BBL to the national plebiscite that would likely reject the proposed amendments.

We proposed a third alternative that while novel – in the form of a “judicial review” – is worth trying. Following is the proposal in full:

“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?”

Even More

Until the adjournment of the Congress last March 20, the bill did not move an inch. With time never in the mood to wait, the Congress has only 29 session days left for passing the BBL to meet its June 11, 2015 self-imposed deadline.

By the latest reports, the House Ad Hoc Committee on BBL will vote on its report on May 11 to 12; that will shorten to 22 session days at most the time for the plenary debates. Even if the House passes its version of the BBL by June 11, it will only be half of the work done. That’s only a “Big IF”. The other half, the Senate version, as seen in media reports, does not show any SIZE of “IF” to pass.

What makes the “IF” very much “BIGGER” while time runs on are the increasing deluge of constitutional and legal issues burying Draft BBL. This is most evident in the Philippine Daily Inquirer report of March 30, Chiz urges Aquino to alter draft BBL; Help of peace council needed, says senator”. The senators and congressmen sound more and more arrogant, jealous of their legislative authority, and uncompromising in their “take it or leave it” stance. We will comment on this next time.

Panganiban Opines Anew

We think that despite his legal eminence, Panganiban only offered his two alternative solutions to the BBL’s constitutional controversies for the members of the Congress to consider as among their options. If they did consider, Proposal (1) only boosted the option of the outspoken members of the Congress; Proposal (2) has been ignored.

In deleting what they deem unconstitutional provisions of Draft BBL, the members of the Congress have two primary objectives: (1) to pass a BBL the constitutionality of which the Supreme Court will sustain if questioned; and, (2) to have a BBL acceptable to all.

Panganiban commented on objective “(1)” in his PDI two column (With Due Respect) articles, “MILF aspiration unchanged” on March 22; and, “Three vital references for BBL” on March 29.

Panganiban is of the opinion that: Much has been said about the BBL’s constitutionality. However, all these opinions are mere guesses as to what the Supreme Court would do if the BBL, in its present form, is brought to it for a ruling.”(Bold text ours). Since under the present delineation of powers, the Court (and the entire judiciary) does not render advisory opinions on the constitutionality of pending bills”, the best that the legislators can do is to predict the thinking of the Court.

Then he suggested: I think the best way to predict what the Court would do is to analyze its decision in ‘North Cotabato vs Government’ promulgated on Oct. 14, 2008, and compare it with the BBL. This landmark decision, written by Justice (now Ombudsman) Conchita Carpio Morales, invalidated the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government and the Moro Islamic Liberation Front (MILF).”

His suggestion is premised on:

First, inferentially, the BBL and the MOA-AD are essentially the same embodiment of the unchanged Moro aspiration of MILF. The “Bangsamoro” in the BBL is the same “Bangsamoro Juridical Entity” in the MOA-AD.

Second, the Court invalidated the MOA-AD on finding its provision on “associative” relation between the BJE and the Central Government unconstitutional – the same relation of the Bangsamoro to the Central Government provided in the BBL termed as “asymmetrical”.

Third, the justices are zealous guardians of the Constitution. “Despite changes in its composition, the Supreme Court is a continuing entity that rarely reverses or modifies landmark decisions that are protective of the Constitution.” Only four members of the 2008 Court are in the present Court.

By closely comparing the BBL with the MOA-AD, the legislators can determine what provisions in Draft BBL to delete or revise for the BBL to be sustained by the Court should it be questioned. He advised the Congress “to ingest very well three vital documents: (1) the North Cotabato decision; (2) the concurring opinion of Justice Carpio, and (3) the memorandum of then Attorney Sereno” before enacting the BBL. Sereno, now Chief Justice, was counsel of Franklin Drilon as intervenor.

On saying, “How ironic it would be if, despite the lessons taught by the North Cotabato decision, the stirring opinion of Justice Carpio and the cogent arguments of CJ Sereno, Congress would still enact a constitutionally-defective BBL”, he was telling the Congress not to guess but to use “vital documents” of the Court to predict its thinking.

Rather than assuring the passage of the BBL by June 11, this raises vital questions.

Vital Issue Denied

Let there be no doubt. Revising Draft BBL in the light of the “three vital documents” will result in a BBL that will stand the test of constitutionality before the Supreme Court. Will that “save the peace”?

Will that establish the Bangsamoro that will solve the Moro Problem as felt and lived by the Moros not as seen by the Christian leaders in and out of the Congress? This vital question raises the vital difference – is what will save the peace.

The Moro Question is rooted in the Philippine Constitution that has consistently ignored vital Moro interests and aspirations. Prior to the BBL:

First, the 1934 Constitutional Convention ignored the 1934 Dansalan Petition for the inclusion of Moro aspirations. This precipitated the disenchanted but prophetic 1935 Dansalan Declaration.

Second, the Moro delegates to the 1972 Constitutional Conventions were similarly ignored. That added to the mounting Moro grievances.

Third, while the 1987 Constitution has provided for Muslim autonomy, the proposals for “genuine autonomy” by the 1989 Mindanao Consultative Commission and in the GRP-MNLF 1996 Final Peace Agreement were deleted respectively by the Congress in the name of constitutionality in enacting Republic Act 6734, the original ARMM Organic Act, and the amendatory RA 9054.

By revising the BBL Draft to strictly adhere to the 1987 Constitution, the Congress will deny the vital question: Can the legitimate Moro aspirations not be granted within the flexibility of the Constitution?

In Retrospect

Why did it take 17 years for Government and MILF to sign the CAB (Comprehensive Agreement on Bangsamoro)? It took that long for Government to understand that the Moros deserve some space within the flexibility of the Constitution.

From President Fidel V. Ramos to President Gloria Macapagal-Arroyo, MILF would not recognize the Constitution but made demands that would call for constitutional amendments. One of the biggest blunders of Arroyo that led to the scuttling of the MOA-AD was her explicit commitment to amend the Constitution, an act solely reposed on the Congress.

After the resumption of the GRP-MILF negotiation in 2009, MILF used “Constitution” for the first time in its Peace Proposal – a reframe of the MOA-AD obviously following the suggestion of the Supreme Court in its October 2008 Decision invalidating the MOA-AD. While MILF said that was not in recognition of the Constitution it was an acknowledgment of the indispensability of the Constitution to the peace negotiation.

Under President Aquino III, Government (GPH) and MILF resolved contentious issues in the spirit of mutual understanding. MILF reconsidered their key demands satisfied with the assurance that GPH concessions were within the flexibility of the Constitution, thus making constitutional amendments unnecessary. GPH and MILF legal teams studied the constitutionality of the agreements.

After the Draft BBL had been submitted to the President the Office of the President (OP) legal team reviewed and revised the draft to insure its constitutionality and acceptability to all – to insure its smooth passage in the Congress. When MILF vehemently objected, the revisions were revised by the negotiating panels, by the OP and MILF legal teams and by MILF’s Mohagher Iqbal and Executive Secretary Paquito Ochoa. The President and MILF Chairman Murad Ibrahim approved the finally “refined” Draft BBL.

To be continued

(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