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Hurdling the Constitutional Bar

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(BY: VICENTE R. SOLIS, Lawyer) With the proposed Bangsamoro Basic Law (BBL) now with the Senate and the House of Representatives, it’s only a matter of time that the bill, as certified by the President, is approved by both legislative chambers. That time would most probably come during the first quarter of next year. Before the approval, however, there will be long and contentious debates and arguments at the committee level and thereafter in plenary session of each house.  As a natural consequence, amendments, perhaps even revisions, will be proposed, to be approved or rejected, until a final version is agreed on in the third reading. Considering the nature of the proposed enactment, I expect dissimilarities in the final versions of each chamber, thereby necessitating a referral to a conference committee for reconciliation on the disagreeing provisions and then back to each house for ratification before it is forwarded to the President for his approval.

At the House of Representatives, both at the ad hoc committee and in plenary session, we expect our Representatives Lilia Macrohon Nuño and Celso L. Lobregat to vigorously defend the unwavering stand of our people for the exclusion of the entire Zamboanga City from the area of coverage of the Bangsamoro, now and in the future. Incidentally, the proposed BBL will be subject of public hearings and consultations by the ad hoc committee in the affected areas, including Zamboanga City, thereby providing our community with the opportunity to restate and reinforce our uncompromising position on the issue.  That may come about sometime after the observance of Fiesta Pilar.

The final test of the BBL, however, will be made at the Supreme Court, if and when an appropriate case is brought before it for judicial scrutiny by way of a challenge on the validity or constitutionality of the finalized BBL.  We are all aware of the concern of the President on the legal issues surrounding the BBL, as shown by the time devoted by his legal team in Malacañang in poring over (and presumably, recrafting) the BBL as drafted by the Bangsamoro Transition Commission before it was turned over to Senate President Franklin Drilon and House Speaker Feliciano Belmonte, Jr. two weeks ago. I believe this concern is part of the residual aftereffects of the earlier ruling of the high court on the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government (then under President Gloria Macapagal Arroyo) and the MILF sometime in 2008 and, more recently, those on the Priority Development Assistance Fund (PDAF) and the Disbursement Acceleration Program (DAP), where the challenged government actions were declared invalid and unconstitutional. In these three high profile and controversial cases, among others, the high court convincingly demonstrated to the public its independence from politics and its exclusive loyalty to the Philippine Constitution.

Relevantly, I am reminded of the statement made by Chief Justice Maria Lourdes Sereno  before media in Manila on August 28, this year, where she stressed that, “It should be clear to everybody that the Supreme Court could only be loyal to the Constitution.”

On the legal issues affecting the BBL, I can offhand and for now cite two (related to the “Bangsamoro Territory”) which could eventually become subjects for Constitutional consideration before the Supreme Court.

One is the use, connotation, and implications of the term “Bangsamoro Territory”  in Article III of the BBL, which refers to the areas within the coverage of the Bangsamoro. This term appears in lieu and instead of the term “Autonomous Region”, as provided in Sec. 15, Art. X of the Constitution. Pertinently, the question may be asked, Can there be a “Bangsamoro Territory” when the Constitution speaks only of one “National Territory” under Sec. 1 of Art. I?  As any student in political science knows, “territory” is one of the four principal elements of a State, the remaining three being, population, government, and sovereignty. With a distinctive “Bangsamoro People” living within a defined “Bangsamoro Territory” under a parliamentary “Bangsamoro Government”, is the Bangsamoro political entity more of a separate and semi-independent sub-state, a virtual state within a state, than an autonomous region?

The other issue refers to the areas qualified to become parts of the Bangsamoro territory.  Under Sec. 15, Art. X of the Constitution, only areas which are “predominantly Muslim” are qualified to form parts of the “Autonomous Region in Muslim Mindanao” or ARMM.  According to my former professor and known Constitutional law expert, Fr. Joaquin Bernas, there must be a “certain distinctive regional commonality of historical and cultural heritage, economic and social structures, and other relevant characteristics. Such commonality is found in Muslim Mindanao.” (“The 1987 Philippine Constitution - A Reviewer and Primer”, pp. 307, 308)  This characterization is not found in Sec. 3, Art. III of the BBL, when it provides for the areas which can become parts of the Bangsamoro territory in addition to and following the determination  of the original or core Bangsamoro territory.   Essentially, the issue boils down to whether the absence of such characterization in the BBL is a substantial departure from the Constitution which requires a predominantly Muslim population in the area of coverage of ARMM, and now the proposed Bangsamoro.

Other Constitutional questions will be treated in the future. (PO Box 333, Zamboanga City, solislaw@outlook.ph)




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