Despite the huge public outcry against the proposed Bangsamoro Basic Law, President B. S. Aquino 3rd has vowed not to accept defeat on this important issue. He intends to ram it through, and not be swayed by the views and sentiments of the people.
The bill—for this is what it is rather than law—seeks to create an autonomous Islamic political entity in Mindanao for the MILF, to replace the present Autonomous Region in Muslim Mindanao under the Moro National Liberation Front. The bill is presented as the product of negotiations between the MILF and the Philippine negotiating panel, but many people seem to sense in it much that is the handiwork of foreign interlopers who have made “the Mindanao problem” their own.
The Mamasapano backlash
Stung by the Mamasapano massacre, where 44 Special Action Force police commandos were slaughtered by the Moro Islamic Liberation Front and the Bangsamoro Islamic Freedom Fighters, pro-Aquino senators and congressmen have promised to purge the bill of any questionable concession to the MILF, which has threatened to reject the slightest change in the bill. This puts Aquino in a pickle. The gloves are off, as far as the legislators are concerned; it may no longer be possible for them to withdraw their objections at this point.
What happened to Cory could happen to PNoy
The situation seems to recall the time when PNoy’s mother, the late President Cory Aquino, tried to get the Senate to extend the stay of the US military bases by another ten years after the original treaty had expired in 1991. Although Cory tried to do everything to get the new treaty approved, despite her having marched against the bases before she became president, her old Senate allies could no longer be persuaded to change their anti-bases position, just because they had already said so much against the US military presence. So the new treaty lost even as Cory remained inside the Senate session hall to watch the senators cast their votes.
The Iqbal effect
The same thing could happen to the proposed Babala. Many co-authors of the bill have withdrawn their signatures after the massacre. Many others have changed sides after seeing its hitherto unexamined constitutional defects. Many more have taken an adverse position after it became known that the MILF chief negotiator never used his real name in signing the Comprehensive Agreement on the Bangsamoro and related documents, but merely used his nom de guerre, Mohagher Iqbal.
Iqbal has not revealed his real name until now. And Aquino has remained unperturbed by it all. Some of the bill’s supporters have muddled the issue further by saying that Iqbal was doing merely the same thing that actor-politicians, like Joseph Ejercito Estrada, Jinggoy Estrada, Ramon Revilla and Ramon Revilla Jr, were doing. This is specious reasoning, for screen names are legitimate exceptions under the anti-alias law; moreover, the real identity of these actor-politicians is usually known to all.
Summoning the cronies
In an attempt to strengthen his position, Aquino has called on some members of the constitutional commission that drafted the 1987 Constitution to speak out in support of the proposed Babala. These are Aquino’s known supporters rather than public intellectuals known for their independent views on public issues; their support for the “constitutionality” of the proposed law has less value than some editorials and columns in our independent newspapers.
Thereafter, Aquino created a so-called national peace council to “advise” Congress on the bill. Included in this council are Manila Archbishop Luis Antonio Tagle, former Chief Justice Hilario Davide, Jr., Makati businessman Jaime Augusto Zobel de Ayala, former Philippine ambassador to the Vatican Howard Dee, and Muslim Princess Bai Rohaniza Sumndad-Usman. On Monday, the group met with the House of Representatives ad hoc committee deliberating on the proposed Babala, chaired by Cagayan de Oro Rep. Rufus Rodriguez, to endorse the passage of the proposed law.
What the good Cardinal said
In a statement read for him by Fr. Joel Tabora, S. J., president of Ateneo de Davao University, Cardinal Tagle said the proposed law is “overwhelmingly acceptable and deserves the support of all Filipinos.” He did not say how he arrived at this conclusion, and whether the extravagant phrase, “overwhelmingly acceptable,” expressed his position alone, or that of the Archdiocese of Manila, or that of the Philippine Catholic Church, and whether it would bind the faithful of the Archdiocese of Manila. As far as I know many other bishops are opposed to the proposed Babala.
What the former Chief Justice said
For his part, Davide was quoted as saying the proposed law “compliments” the Constitution. If this quotation is correct, I have not heard it before. The Constitution is the rock upon which stands the statutory order; every legislation must comply with it, not “complement” it. But Davide did not stop there. He went further to say that he did not believe there was any risk of the MILF eventually seceding and, alone or together with another state, forming a new independent state. This is well beyond his claimed expertise, but he had no inhibition saying a mouthful.
Davide’s uncelebrated record
As former Chief Justice, Davide’s presumed field of expertise is the law. But even here, his record has not been unquestioned. In 2000-2001, he presided over the Estrada Senate impeachment trial. The prosecutors walked out of the trial when they could not get what they wanted, and took Estrada’s case to the streets, where Davide joined them. One question that remains unanswered is why did Davide not summon the prosecutors back to court, instead of joining them at EDSA?
In 2003, an impeachment complaint was filed against Davide over the alleged misuse of the Judicial Development Fund. More than one third of the members of the House had expressed support for the complaint. Under the rules of the House, this meant certain impeachment, without need of any floor debates. But to save Davide from trial and possible conviction, the Court declared the complaint unconstitutional, simply by misinterpreting the relevant constitutional provisions.
Destroying the impeachment process
As written, “the House of Representatives shall have the exclusive power to initiate all cases of impeachment.” “The Senate shall have the sole power to try and decide all cases of impeachment.” “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.”
Properly understood, this means that no one may be impeached by the House more than once a year, but that one may be subjected to an impeachment complaint by a private party any number of times within the same year. But because Davide had been subjected to an earlier impeachment complaint by a private complainant, even though it did not prosper at all, the Court ruled, through Justice Conchita Carpio Morales, now Ombudsman, that he could no longer be the subject of a new impeachment complaint.
The ruling saved Davide, but it destroyed the impeachment process. Because of this ruling, an impeachable official could initiate a nuisance complaint against himself, so that after it has been thrown out, no serious complaint could be filed against him for a period of one year. We saw this during the Arroyo administration. What was Davide’s part in devising this scheme? This remains an unanswered question.
Going to the UN without the CA nod
Subsequently, Davide retired from the Supreme Court at age 70. He was promptly nominated to the Commission on Appointments as Permanent Representative to the United Nations. I formally opposed this on legal grounds. So did Sen. Jinggoy Estrada on other grounds. Under the Foreign Service Act, career diplomats are compulsorily and automatically retired at 65, while non-career individuals may not be appointed to any diplomatic position at 70 years or older.
This should have been clear to the former chief justice as it was to this layman. But it wasn’t. In one conversation we had at the CA meeting room, I told Davide how embarrassed I was, a mere layman, to have to point out what the law was to an “eminent master of the bench.” I heard nothing in response.
Davide was bypassed twice by the CA because of our opposition. After the second time, he was no longer renominated to the CA, but simply took off to assume his position in the UN, without any confirmation. Malacañang invented the theory that because the UN is an international organization rather than a foreign country, an ambassador thereto did not need any CA confirmation.
A clear violation of the Constitution
This was a clear violation of the Constitution, which provides: “The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.”
Every Permanent Representative to the UN before that had been confirmed by the CA. And Davide himself had submitted to the process, before he was bypassed twice. It is unfair to suggest that he did not thoroughly understand the Constitution. But his conduct was clearly unbecoming of a former chief justice, to say the least.
The abortive Truth Commission
In 2010 Aquino created the truth commission and named Davide as its chair. The
Supreme Court, however, struck down the Executive Order creating the Commission as unconstitutional. Is it possible that Davide did not read the text of the EO before Aquino signed it, or before he agreed to chair it? This, too, is an unanswered question.
In light of all this, what is the value of Davide’s legal opinion on something as important as the proposed legislation? I hope I am completely wrong, but why should the Congress, least of all the nation, listen to Davide at all?
The fundamental question
Until we see the proposed law in its final form, we cannot discuss it in detail. But one thing is clear. The MILF wants an autonomous political entity that is exclusively Islamic in character. Is there any room for this in our secular nation-state under the Philippine Constitution? None whatsoever. I would have had all sympathy and support for the good cardinal and for his Jesuit spokesman, if they had found the proposal exceptionally execrable. But “overwhelmingly acceptable?” As a practicing Catholic, I would like to know why this had to come from my most eminent moral guide and pastor.