MIND DA NEWS: Just Asking Questions Patricio P. Diaz

GENERAL SANTOS CITY (MindaNews / 26 June) — The Philippine Constitutional Association (Philconsa) and former Rep. Jacinto Paras (Negros Oriental) filed separate petitions last week asking the Supreme Court to “to declare as unconstitutional and void” the Framework Agreement on Bangsamoro (FAB), its Annexes, and the Comprehensive Agreement on Bangsamoro (CAB) (The Philippine Star, June 24, 2015: ‘Case vs BBL premature’, SC orders gov’t to answer petitions vs Bangsamoro deals).

While the Court consolidated the two petitions, it ordered now Justice Marvic Leonen, who as Philippine Government Negotiating Panel (PGNP) chairman, signed the FAB on October 12, 2012, and incumbent PGNP Chair Miriam Coronel-Ferrer, who signed the CAB on March 27, 2014, to separately answer the petitions.

Question No. 1: Why has the Supreme Court not resolved until now a similar petition against the FAB in 2012?

This was filed by Elly Pamatong and his group International Ministries for Perfect and Party Against Communism and Terrorism Inc. in December 2012. It was given due course. The petition argued that (1) The FAB in dissolving the Autonomous Region in Muslim Mindanao will dissolve the 1976 Tripoli Agreement and the 1996 Final Peace Agreement; and, (2) the negotiations leading to the FAB were held in Malaysia (INQUIRER.net, December 3, 2012: Group questions gov’t peace pact with MILF).

The other questions will be on the Philconsa petition of which we have a copy. There are evident errors in facts, inconsistencies and questionable assumptions.

No. 2: Can the Aquino Government disprove the petition’s alarming assumption?

The petition has an urgent objective, which is, “…to avert the destruction of the Republic of the Philippines, the dismemberment of its territory, the fragmentation of its people, the despoliation of its natural and human resources, and the wreckage of its tripartite system of government” — obviously to avert the enactment of the Bangsamoro Basic Law bill to implement the FAB and the CAB now pending in the Congress.

No. 3: Why did they not stop the negotiation outright when President Gloria Macaagal-Arroyo resumed it in 2001?

The petitioners contend “…that without prior constitutional amendments, the FAB proposal to establish the Bangsamoro to replace the Autonomous Region in Muslim Mindanao (ARMM) as the New Political Entity (NPE) is unconstitutional and void”.

This was a foregone conclusion when President Fidel V. Ramos negotiated with MILF in 1997. The petitioners were well around when President Macapagal-Arroyo resumed the negotiation in 2001. In fact, Francisco Tatad was senator and Norberto Gonzales was the security adviser, then the defense secretary of President Arroyo. The two prelates, Bishop Juan de Dios Pueblos and Archbishop Fernando Capalla, were close to Malacañang.

No. 4: Why was the conduct of the peace process not questioned in 2001?

The petitioners say the conduct of the peace process was flawed because the PGNP was not assisted by the “Panel of Advisers” as provided in Executive Order No. 125, s. 1993. Unless the petitioners can show otherwise, this had obviously been the same conduct of the peace talks since 2001.

No. 5: Did the petitioners do diligent research for their petition?

The petitioners point out that E.O. 125, without specifying them, “recognizes three (3) rebel groups to negotiate with for peace”. Then they ask “Why and how the GPNP only negotiated with the favored MILF is a riddle to be unfolded or unraveled” and identified two other Moro rebel groups, the MNLF and BIFF (Bangsamoro Islamic Freedom Fighters), as having been ignored. BIFF was non-existent when E.O. 125 was issued. The PGNP chaired by Manuel T. Yan signed the 1996 Final Peace Agreement with MNLF.

The three referred to in EO 125 were the CPP-NDF-NPA, the Moro groups and the military rebels. The Ramos Government negotiated and signed agreements with them – the MNLF, for the Moro rebels. They were specifically mentioned in “National Peace Commission”, an article written in 2002 by Miriam Coronel-Ferrer, now the PGNP chair, for Conciliation Resources, an English publication.

No. 6: Did the petitioners read the FAB together with the Annex on Transitional Arrangement and Modalities?

In three pages of the petition, “BTA” (Bangsamoro Transition Authority) is mentioned as having drafted the BBL from the FAB and the CAB. It’s the BTC (Bangsamoro Transition Commission) that did the drafting. The BTA is yet to be created upon the signing of the BBL by the President.

No. 7: Curiously, why did the petitioners mention only House Bill 4994 as the draft bill from the FAB and the CAB? HB 4994 and SB 2408 are the same Draft BBL based on the FAB and its Annexes consolidated into the CAB together with other agreements since 1997.

No. 8: Regarding the territorial composition of the autonomous region in Muslim Mindanao, which must apply – Sec 1, Art. X of the 1987 Constitution or Sec. 15?

The Petition states: “Sec. 1, Art. X of the Local Governments of the Constitution has authorized and recognized only Five (5) Territorial and Political Subdivisions namely: ‘(a) provinces; (b) cities; (c) municipalities; (d) barangays; and (e) autonomous regions’.” Sec. 15 specifies “provinces, cities, municipalities and geographical areas” – the last interpretable as “barangays” or areas smaller than a barangay – as the territorial composition of the autonomous region in Muslim Mindanao.

No. 9: Does Sec. 19, Art. X limit to the Eighth Congress the “mandate for Congress” to create “the autonomous regions in Muslim Mindanao and the Cordilleras” or it only mandates the passing of the organic acts for these regions “within eighteen months after the organization of both Houses” – a task which incidentally falls on the Eighth Congress it being “the First Congress elected under the Constitution”?

The Petition states, “Moreover, the mandate for Congress to create the Autonomous Region in Muslim Mindanao (ARMM) and the Cordilleras is vested only in the First Congress elected under the Constitution, within eighteen (18) months from the time of the organization of both houses, to enact the Organic Acts for the ARMM and Cordilleras.”

Corollary to the above question: Does Sec. 19, Art. X mandate the “autonomous region in Muslim Mindanao” to be named “Autonomous Region in Muslim Mindanao”?

Being written in common nouns, “autonomous region” is a common – not a particular –name, like “generic” and “brand” names in medical usage. [Any medicine has only one generic name but can have several brand names.] “Autonomous Region in Muslim Mindanao” and “Bangsamoro Autonomous Region” [just “Bangsamoro”, also referred to as “New Political Entity”] are composed of the same territorial units. Are they not two particular names of one common name, like two brands or one generic medicine?

No. 10: Are the organic acts of the ARMM and of the Administrative Region of the Cordilleras “parts and parcel” of the Constitution?

The Petition reads: “The First Congress elected under the 1987 Constitution is the Eighth Congress that served from 1987 to 1992. Section 19, Article X, is very specific, only the First Congress is empowered to pass the organic acts as part and parcel of the Constitution and not mere laws. In a nutshell, to establish legally the so-called ‘Bangsamoro Political Entity’, we must first amend the 1987 Constitution to recognize Bangsamoro as a political entity and enact the enabling laws pursuant to the consequent Constitutional amendments.” (Bold italics ours)

Sec. 18, Art. X, mandating the enactment of the organic acts, does not refer to the organic acts as “parts and parcel of the Constitution”. Correct – “organic acts” are not “mere laws”. Does that make them “parts and parcel of the Constitution”? It appears the petitioners have amended Section 18 to suit their petition.

No. 9: How can the petitioners be “so careless” in such a serious petition to void the 17-year negotiation of the Government with the MILF?

After accusing Justice Leonen and Professor Ferrer of “giving unwarranted benefits, advantage or preference to the MILF to the prejudice and clear disadvantage of the rest of the Filipino people”, the petitioners say: Moreover, Respondents Leonen and Ferrer have entered into agreements manifestly and grossly advantageous to the Republic of the Philippines, the Constitution and the Filipino people.” (Bold italics ours)

No.10: Upon the declaration of “the FAB and CAB as unconstitutional, illegal and void”, will the confidence-building efforts engendered by the peace process – peace keeping, rehabilitation of conflict-affected areas, social and economic development projects, etc. – be stopped?

Under the premises set in the petition, etc.), the fate of the FAB and the CAB is sealed. The petitioners are asking the Court: “After proceedings, judgment be rendered declaring the FAB and CAB as unconstitutional, illegal and void, inclusive of all acts/issuances arising from, connected with or related to the FAB and CAB …”

Only “H.B. 4994” is mentioned among the acts and issuances attributed to the FAB and CAB. There are more: the Ceasefire Agreement and all its instrumentalities, the Bangsamoro Development Authority, the Bangsamoro Leadership Institute, the Sajahatra, as well as international cooperation. Their only reason for being, as modalities and mechanisms of the peace process, is the realization of the end of the peace process embodied in the FAB, its Annexes and the CAB. Voiding the reason voids the being.

No.11: Are the four prelates members of Philconsa?

As “Petitioner” the Philippine Constitution Association (PHILCONSA) is “represented by its president Cong. Ferdinand Martin G. Romualdez, Francisco S. Tatad, Archbishop Ramon C. Arguelles, Archbishop Fernando R. Capalla, Archbishop Romulo T. de la Cruz, Bishop Juan de Dios M. Pueblos, and Norberto B. Gonzales”.

The question aside, their involvement must not reflect any religious color but only their personal opposition to the establishment of the Bangsamoro. Three other prominent Catholic prelates – Cotabato Archbishop Orlando B. Cardinal Quevedo, OMI, Cagayan de Oro Archbishop Antonio J. Ledesma, S.J., and Manila Archbishop Luis Antonio G. Cardinal Tagle are endorsing Draft BBL.

No. 12: Will the Supreme Court decision in restraining the Government from signing the Memorandum Agreement on Ancestral Domain on August 4, 2008 and in declaring it unconstitutional on following October 14 foretell the Court action in the present case?

The Petition states: “The ‘FAB’ and ‘CAB’ are the crafty and ingenious revival of the MOA-AD declared unconstitutional, littered with greater and more vicious incursions into the Constitution, the laws and jurisprudence deceptively wrapped in sophistic and stylish language to obfuscate the odious radiations.”

The Philippine Star (June 25, 2015:‘Premature? BBL a form of MOA-AD’) cited Rep. Celso Lobregat as saying that the Bangsamoro Basic Law, or its replacement bill, is an advanced form of the MOA-AD which the Supreme Court “invalidated” for being unconstitutional, then predicting, “I do not see why the Supreme Court cannot take cognizance and rule on the matter”, obviously referring to the Philconsa Petition.

The petitioners cited frequently the MOA-AD Decision and separate concurring opinions to support their arguments. They consider the MOA-AD case as the precedent to declare the FAB and CAB unconstitutional, illegal and void.

However, let’s consider these:

First, the Court cited the MOA-AD for provisions construed as outright amendments of the 1987 Constitution, not just as proposals to the Congress for amendment. The Court categorically stated that proposed amendments are not unconstitutional. Some provisions of Draft BBL as submitted to the Congress are proposed amendments.

Second, the Court declared the MOA-AD unconstitutional but not invalid. In fact, it suggested that it “can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original”. That exactly was what the Government and MILF did. That explains why there is now the FAB and the CAB objected to as the “revival” of the MOA-AD; the BBL, as the “advanced form” of the MOA-AD.

How the MOA-AD Decision would apply to the consolidated Philconsa-Paras Petition, leave it to the present Court. The Court is challenged to decide the Petition on merits, not evade the burden.

Enigmatic Question: If the FAB, the Annexes and the CAB are declared unconstitutional, illegal and void, Draft BBL is dead. What will be in the aftermath?

Crucial Question: If the FAB, the Annexes and the CAB are declared constitutional, legal and not void, will the Congress enact the BBL faithfully according to Draft BBL?

Final Question: Can the Court decide the Petition before the Congress opens for its Third Regular Session in the last week of July so the Members of the Congress can be properly guided on what to do with HB 4994 and SB 2408?

[Author’s Note: Mind da News, the alternate of COMMENT, is a comment on current news. The author may be contacted at patponcediaz@yahoo.com.]