[The author’s original title for this piece is “Hasty submission requiring constitutional amendments can only delay passage of a Bangsamoro basic law”]
When President Eduardo Frei Ruiz-Tagle of Chile was asked at an academic economic forum in Moscow a decade ago why South America lagged behind other regions of the world, he replied that it could be because many Latin American presidents think that the history of their country begins with them. Certainly, this is not the case with President Benigno Aquino 3rd, considering that one of his illustrious predecessors was his mother, President Cory Aquino, one of whose legacies was the 1987 Philippine Constitution.
The Framework Agreement on the Bangsamoro (FAB) and its Four Annexes have aroused a lot of controversy although there is widespread desire for the peace process in Mindanao to succeed. Peace will provide the necessary environment for the poverty alleviation in the region and the economic transformation of Mindanao.
The Government’s (GPH) and the MILF’s negotiating panels have published a road map and timetable to complete the peace process by 2016 during the President’s term. Pursuant to FAB and its Annex on Transitional Arrangements and Modalities, a Transition Commission was created to draft the Bangsamoro Basic law (BBL) that is to be submitted by the President to Congress and certified by him as an urgent bill.
Against the background of legal luminaries finding constitutional infirmities with the FAB and its Annexes, the Office of the President conducted a thorough review of the draft BBL submitted to the President by the Transition Commission. In the process, the text of the BBL reportedly underwent extensive revisions to align it with the Constitution and protect the President from possible charges of culpable violation of the Constitution. The President has the sworn duty to “preserve and defend” the Constitution as the highest official of the land. He cannot submit a bill to Congress that contains provisions that violate the Constitution. Neither can Congress pass a bill that violates the Constitution.
This thorough review was a necessary and prudent process because the Transition Commission charged with drafting the BBL is composed of fifteen members all of whom are Bangsamoro. Of these, the MILF selected eight members, including the Chairman, and the GPH seven members, in accordance with the agreement.
The revisions by the Office of the President of the draft BBL are reportedly related to the structure of government of the Bangsamoro and centers on the question whether the Bangsamoro to be established is an enhanced autonomous region or a sub-state that would not accord with the unitary presidential form of government provided by the Constitution. .
The draft BBL faces other impediments, having aroused opposition from the MNLF and certain non-Muslim Indigenous Peoples. The MNLF alleges violation of the Tripoli Agreement and subsequent related agreements, and also questions whether the ARMM, which was created pursuant to the Philippine Constitution, can be abolished and replaced by the Bangsamoro, without amending the Philippine Constitution. A corollary question is whether the FAB can rightfully provide for the passing of the torch to the MILF without awaiting the results of a duly held election. The FAB and its Annex on Transitional Arrangements and Modalities provide that, until the duly elected officials of the Bangsamoro shall have been qualified into office in 2016, there shall be established the Bangsamoro Transition Authority as the interim Government, which shall be MILF-led,
On the other hand, the original Indigenous Peoples in Mindanao, who are non-Muslim, are alarmed at the creation of the Bangsamoro identity, which absorbs their separate identity as indigenous peoples. Under the FAB, they are also Bangsamoro., although they are not Muslim. They protest in order to preserve and protect their rights under the Philippine Constitution and the Indigenous Peoples” Rights Act of 1997 (IPRA), particularly with reference to their own ancestral domains.
The GPH and MILF panels met in Kuala Lumpur last month to discuss the revisions proposed by the Office of the President. They have resumed their discussions here and have announced the second week of August as their target date to agree on a revised draft. On hindsight, the strategy to set a timetable on such a sensitive goal as a peace settlement may have given the MILF undue advantage to obtain their demands although the GPH panel had consistently claimed that the implementation of FAB would not require constitutional amendments. It should be borne in mind that the GPH panel has no authority to bind the Government to constitutional amendments. The President has no role to play in the process of constitutional amendment or revision.
This is not to say that the President may not propose amendments. The Supreme Court has declared in the case of Province of Cotabato v. Philippine Peace Panel on Ancestral Domain (which pronounced as unconstitutional the Memorandum Agreement with the MILF on Ancestral Domains) that the President may recommend amendments or revisions to Congress and that this act need not be construed as an unconstitutional act as long as he submits to the proper procedure for constitutional amendments or revisions. But the President should not exercise undue influence or pressure.
The GPH and MILF panels should take their time and not act in haste to find a formulation that would not contravene the Constitution. If the MILF insists on having the Constitution amended, this will delay the passage of the BBL. Congress will not be able to consider the BBL pending the amendment of the Constitution. Moreover, amending the Constitution is not an easy process. This will require either a vote of three-fourths of all the Members of Congress voting separately to propose the amendments, or the vote of two thirds of all its members voting separately to convene a Constitutional Convention. The people may also directly propose the amendments but this would be a more difficult process. Thereafter, the proposal of Congress or the People’s Initiative to amend or revise the Constitution must be ratified by a majority of votes cast at a national plebiscite, and not just by the voters in the proposed area of the Bangsamoro, which would make the result of the plebiscite more uncertain.
To assist in the discussion of some of these issues, the Philippine Ambassadors Foundation (PAFI), in cooperation with the Center for Communication and Research of the University of Asia and the Pacific, held a roundtable discussion last 29 May 2014. The PAFI submitted a Report to the President on the Conclusions and Suggestions of the forum.
The convergence of views of the speakers and discussants at the above forum included the following:
“1. Support for peace, stability and development of Mindanao;
“2. Sustained efforts to allow the peace process to succeed;
“3. The Bangasmoro organic law to be passed by Congress must be:
a) Consistent with the Philippine constitution and laws of the Republic;
b) Acceptable as determined through consultations and dialogue;
c) Democratic and inclusive of all stakeholders;
d) Just and equitable in terms of wealth-sharing and power-sharing;
“4. It is useful to build on the strength of the Autonomous Region of Muslim Mindanao Law of 1996;
“5. Congress has the sole power to legislate…”
“6. Before enactment of a new organic law, consultations should be with stakeholders;
“7. Local autonomy is merely devolution of power and constitutionally, does not allow partition of Philippine territory…”
On a final note, DILG Secretary Roxas has proposed the extension of the term of the President. The Palace, however, has denied that the President has changed his mind on Charter Change.