RIVERMAN’S VISTA: Big win for Mindanao peace in Supreme Court

QUEZON CITY (MindaNews/31 January) — On 15 October 2012, during the presidency of Benigno Aquino, a preliminary peace agreement called the Framework Agreement on the Bangsamoro (FAB) was signed between the Philippine government (GPH) and the Moro Islamic Liberation Front (MILF). The FAB called for the creation of an autonomous political entity named Bangsamoro, replacing the ARMM. On 27 March 2014, the Philippine Government, represented by GPH Chairperson Miriam Coronel-Ferrer, signed the Comprehensive Agreement on the Bangsamoro (CAB), which was an integration of the FAB, the Annexes and the other agreements previously executed by the government and the MILF.

Several petitions were then filed assailing the FAB and the CAB. In the consolidated petitions challenging the constitutionality and validity of the CAB and the FAB entered into between the government and the MILF on 27 March 2014 and 12 October 2012, the Supreme Court, speaking through Senior Justice Antonio Carpio, dismissed the said petitions on the ground of prematurity.

In G.R. No. 218406, petitioners Philippine Constitution Association (Philconsa), contend that the provisions of the CAB and the FAB violate the Constitution and existing laws. They argue that the conduct of the peace process was defective since the GPH Peace Panel negotiated only with the MILF and not with the other rebel groups. Hence, respondent Philippine government violated Section 3( e) and (g) of Republic Act No. 30192 in giving unwarranted advantages to the MILF.

Another petition docketed as G.R. No. 218761, petitioners Tanggulang Demokrasya (TANDEM), Inc., claim that the CAB and the FAB are unconstitutional since the agreements seek to create a virtual sub-state known as the Bangsamoro Political Entity (BPE) to replace the Autonomous Region of Muslim Mindanao (ARMM), and guarantee to make amendments to the Constitution to shift from the present unitary state to a new federal state which is beyond the GPH Peace Panel’s power and authority to commit.

Filing their own petition, petitioners Rev. Vicente Libradores Aquino, Rev. Mercidita S. Redoble, and International Ministries for Perfection and Party Against Communism and Terrorism, Inc. (IMPPACT, Inc.) Argue that the GPH Peace Panel usurped the power of Congress to enact, amend, or repeal laws since it bound Congress to agree to the provisions of the FAB and abolish the ARMM.

For his part, petitioner Jacinto V. Paras (G.R. No. 218407) argues that the CAB and the FAB violate the provisions of the Constitution, as well as the consultation requirement under Executive Order (EO) No. 3 and Memorandum of Instructions of the President. Petitioner further contends that respondents exceeded their authority when they guaranteed the amendment of certain provisions of the Constitution to conform to the CAB and the FAB.
In his own petition, petitioner Rev. Elly Velez Pamatong (G.R. No. 204354) claims that the constitutionally infirm MOA-AD (Memorandum of Agreement on Ancestral Domain) of 2008 and the FAB are substantially the same since they are both aimed at creating a “fully independent Islamic State” covering Mindanao, Palawan, and Sulu. Petitioner argues, among others, that there were no consultations regarding the FAB.

In disposing of the petitions, speaking through a solidly researched and well argued opinion by Associate Justice Carpio, the Court agreed with the Solicitor General that there is no actual case or controversy requiring a full-blown resolution of the principal issue presented by petitioners. In the present case, there is no such guarantee when the CAB and the FAB were signed. The government gives no commitment, express or implied, that the Constitution will be amended or that a law will be passed comprising all the provisions indicated in the CAB and the FAB. Thus, contrary to the imagined fear of petitioners, the CAB and the F AB are not mere reincarnations or disguises of the infirm MOA-AD.

The Court notes that the CAB and the FAB cannot be implemented without the passage of the Bangsamoro Basic Law (BBL). The CAB and the FAB remain peace agreements whose provisions cannot be enforced and given any legal effect unless the Bangsamoro Basic Law is duly passed by Congress and subsequently ratified in accordance with the Constitution. The CAB and the FAB are preparatory documents that can “trigger a series of acts” that may lead to the exercise by Congress of its power to enact an organic act for an autonomous region under Section 18, Article X of the Constitution.

Further, according to the Court, it is not the CAB or the FAB that will establish the Bangsamoro but the BBL enacted by Congress and ratified in a plebiscite in accordance with the Constitution. Congress must still enact a BBL. Further, the requirement of a BBL under the CAB and the FAB ensures that the pitfalls under the invalid MOA-AD will be avoided. Even if there were today an existing bill on the BBL, it would still not be subject to judicial review.
While this case was decided on procedural issues, this is a big win for Mindanao peace. First, the author is not only the most senior Justice of the Supreme Court, he also has the reputation of both brilliance and fidelity to the Constitution. His opinion actually provides a map for the government on how to move forward on the Bangsamoro: do it right, stick to the constitutional boundaries. Second, it is good to know that the CAB and the FAB will survive on their own as political documents and their legality will no longer be in question. Thus I can envision a scenario where a BBL might actually not stand constitutional scrutiny but where Congress can revisit its work to address gaps that the Court may identify. That was one of my biggest fears in 2014-2015, that Congress enacted a flawed BBL and the Court would not only strike it down but invalidate with it the CAB and the FAB.

Moving forward on the BBL, my proposal is for the Bangsamoro Transition Commission (BTC) to now begin its work (once all appointments are released), consult widely with stakeholders, and finalize a draft for submission to the Office of the President. I think the proposal of the BTC should be respected but should not necessarily control the draft that President Duterte submits to Congress. The draft from the Office of the President, while taking into account the BTC draft, must be a draft of a BBL that the President believes can be accepted and enacted by the President. I expect it to mirror the BTC draft but not necessarily in its entirety.

The President, acting through his peace officials, legislative liason, and designated negotiators should engage with Congress to come out with the best and most realistic draft possible. The acceptability of such a draft to the MILF, MNLF, the Lumad, and other stakeholders, will of course be a primary consideration. The officials and negotiators mentioned above must seek all these stakeholders and have sense of what is acceptable to the latter. But no group should be allowed to veto compromise provisions that provide solutions to contentious issues. Nobody should insist on provisions that have no chance of passage nor those that could endanger the law in its entirety.

We are not yet in the end game of this second opportunity to create the Bangsamoro. But we are ina good place now. The Supreme Court has just shown us how to do this right. Lets not fail this time. (MindaViews is the opinion section of MindaNews. Antonio La Vina is currently a constitutional law professor in Xavier University’s College of Law, University of the Phlippines’ College of Law and other law schools. He is also Executive Director of the Manila Observatory. He was a member of the government peace panel negotiating with the MILF from January to June 2010).