First of two parts
Last Saturday morning, the San Beda Graduate School of Law under Dean Fr. Rahnilio Aquino hosted at its Mendiola campus near Malacañang a three-hour session titled, “Symposium on Bangsamoro and Constitutional Issues.” Benedictine Fr. Aquino invited fellow academics from the Philippine Judicial Academy (PJA), a Supreme Court entity that gives continuing legal education to the legal profession, to discuss the topic.
Fr. Rannie convened a formidable lineup of presentors and reactors. Giving 10-15-minute presentations were former Supreme Court justice and incumbent PJA chancellor Adolfo Azcuna, former University of the Philippines law deans Merlyn Magallona and Pacifico Agabin, and constitutional law professor and Times columnist former senator Rene Saguisag.
Reactors included UP Institute of Islamic Studies dean Julkipli Wadi, rights lawyer and peace talks consultant Pablito Sanidad, Philippine Association of Law Schools executive director and Ateneo law professor Tanya Karina Lat, St. Louis University law vice-dean Lulu Reyes, and this writer, representing the Center for Strategy, Enterprise & Intelligence. CenSEI will summarize the proceedings in its 200-page report on the Bangsamoro Agreements (for copies, email firstname.lastname@example.org).
The arguments made may be divided into two lines of reasoning. One took the conventional approach of assessing whether the Comprehensive Agreement on the Bangsamoro (CAB) as well as the Framework Agreement (FAB), six Annexes and one Addendum it subsumes, abide by or conflict with the Constitution. The other tack downplayed strict legalities and highlighted overarching principles of self-determination, social justice, and community identity.
Fr. Rannie set the tone for the symposium by noting that the very nature and “political complexion” of the envisioned Bangsamoro political entity was unclear, opening the field to much debate and deliberation.
The San Beda dean also recounted an exchange between Dean Sedfrey Candelabra and Supreme Court Senior Associate Justice Antonio Carpio during the 2008 suit against the Memorandum of Agreement on the Ancestral Domain Aspects of the Tripoli Agreement. Candelaria said four constitutional provisions had to be amended in implementing the MOA-AD. Justice Carpio counted 36.
Thou shalt not delegate
In the presentations, Justice Azcuna and Dean Magallona went legal, citing Bangsamoro provisions which may raise questions. Azcuna was part of the High Court majority that voided the MOA-AD by an 8-7 vote. In striking down the deal, he noted that it was signed in Kuala Lumpur before an international audience. Such an official declaration before the world committed the Philippine government to implement the MOA-AD. Thus, the Executive branch, represented by its peace negotiators, exceeded its constitutional authority by binding Congress and even the sovereign people to enact laws and amendments needed to implement the memorandum.
Azcuna advised the government panel that negotiated the Bangsamoro agreements. He found nothing unconstitutional in an early version of the pact, and noted that there is no commitment to amend the Constitution, unlike the MOA-AD. Nonetheless, there may be charter changes needed to implement the new accord.
Still, at the symposium the PJA chancellor cited some provisions in the final pact which may raise questions. Noting that 58 powers of the national government might be delegated under the deal, he wondered if Congress can assert its supreme legislative authority and amend Bangsamoro laws.
The President’s power of general supervision over autonomous regions may have also been abdicated, Azcuna said, since the Bangsamoro authority would exercise LGU oversight. So too the Supreme Court’s administrative control over the judiciary with respect to Shariah courts, the Commission on Audit’s power to check Bangsamoro accounts, and, as Azcuna pointed out to chief negotiator Miriam Coronel-Ferrer, the National Police Commission’s control over the regional police.
Substate in the making?
Former UP law dean Magallona was even more strictly legal than Azcuna, reiterating the issue of Executive branch negotiators making commitments that affect Congress and the courts. Magallona also argued that the Bangsamoro pact reduced to contractual arrangements the sovereign state powers enshrined in the Constitution.
The Annex on Power Sharing limiting the central government to defense, foreign policy and trade, currency and postal services, implied that its other powers are given up or restricted. And the pact adds that more powers may be delegated in future negotiations. All that would reduce Philippine sovereignty—something that cannot be done without charter change, Magallona asserted.
Like former judge Senator Miriam Defensor Santiago, the former Oxford fellow further posited that the new peace pact created what the government has insisted it didn’t: a substate. National powers would be curtailed in favor of the Bangsamoro, Magallona said, with LGU supervision and resource powers given to the envisioned region.
“Associative relations” between the national government and Bangsamoro are “constitutionally objectionable and far from autonomy,” and the territory, population, government structure, and powers provided for in the accord “are elements of an independent state.” Even air space is covered in the territorial definition. And the definition of Bangsamoro people as native inhabitants at the time of Spanish conquest and colonization, and their descendants, was the same one voided in the MOA-AD ruling, according to Magallona.
The pact cites 58 matters in which Bangsamoro shall exercise exclusive authority, with concurrent powers with the central government over 14 areas. Plus: a mechanism would be created for the Philippine government to consult with the future regional authority in exercising state power. And there’s more, said Magallona, but Fr. Rannie alerted him that he had exceeded his speaking time, so he could not read a separate paper going through the Bangsamoro agreements point by point (CenSEI has requested the unread paper for inclusion in its report on the peace pact).
To these legal exegeses by Justice Azcuna and Dean Magallona the other presentors offered the principled perspective that centuries of injustice toward Muslims must be addressed, and out-of-the-box approaches should be explored. They may include measures that do not square with the Constitution, since that charter may have been crafted with little regard for the interests and problems of Muslims. Those views will be covered in the second part of this article to be published next Monday.