Because of this, we went to the Supreme Court last Friday, June 19, on the 154th birth anniversary of Jose Rizal, our national hero, not to question the constitutionality of the proposed Bangsamoro Basic Law (Babala), which seeks to create an Islamic “sub-state” for the Moro Islamic Liberation Front (MILF), and is facing opposition even in the otherwise pliant Congress, but rather to question the constitutionality of the Framework Agreement on the Bangsamoro (FAB) and the Comprehensive Agreement on the Bangsamoro (CAB).
From these two agreements, entered into between the Aquino government and the MILF from 2012 to 2014, comes the objectionable draft law. From the petitioners’ perspective, the FAB and the CAB are consummated crimes; the proposed Babala or Bababa (Bangsamoro Basic Bill) is still in progress.
By “we” I refer to the Philippine Constitution Association (Philconsa), represented by its president, Rep. Ferdinand Martin Romualdez of Leyte, Archbishop Ramon Arguelles of Lipa, Archbishop Emeritus Fernando Capalla of Davao, former defense secretary and national security adviser Norberto B. Gonzales and myself.
Bishop Juan de Dios Pueblos of the Diocese of Butuan had wanted to be a signatory, but could not travel to Manila to sign the document. Arguelles was the first to sign, but had to leave for the United States and Canada the day before, and could not join the filing. Justice Manuel Lazaro of the M.M. Lazaro and Associates headed the panel of lawyers as lead counsel.
Who are these people?
The Philconsa is a venerable institution at the vanguard in the defense of the Constitution.
Arguelles is one of the moral and spiritual leaders of the National Transformation Council, who was military vicar for years. He is an apostle of peace who has ministered to men dying in war.
De la Cruz was bishop of Basilan for 13 years, Antique for eight years and Kidapawan for six before he became Archbishop of Zamboanga. He has lived with armed violence and conflict in Mindanao.
Capalla marked the 40th anniversary of his episcopal ordination last Thursday. He has worked all his life with the Christians, Muslims and lumads in Mindanao. He was president of the Catholic Bishops’ Conference of the Philippines from 2002 to 2004, and for years the moving spirit behind the Bishops-Ulama Conference (BUC). The BUC was a major participant in the search for peace in Mindanao, from Fidel V. Ramos’ presidency until Aquino abandoned it without any explanation to anyone.
Gonzales, a political activist during the Marcos years, started working for Cory Aquino, but ended as GMA’s trusted defense secretary and national security adviser. He has lived and worked with Muslims for years.
In my case, I am an everyday Catholic whom the Islamic Sultanate League in Marawi made honorary Sultan a-Makalangkap (Bearer of Truth), while serving the first part of my 10 long years in the Marcos Cabinet. In 1996, as senator, I met Nur Misuari, the Moro National Liberation Front chairman, twice in his home ground—the only senator he had agreed to meet with–prior to the MNLF peace accord with the Ramos government. In 1998, I talked to Haji Murad, now MILF chairman, at Camp Abubakar.
For me, the participation of the three Catholic archbishops (several others would have joined if we were able to circulate the petition for signature) is a most reassuring proof that while some shepherds may have been misled to pronounce as “overwhelmingly acceptable” what is clearly a travesty, there will always be other worthy pastors to lead the way.
None of the petitioners is an enemy of the MILF or of peace. We all want and work for peace. But we are convinced that, contrary to what the Aquino government and the MILF have said about the FAB and the CAB, these will create conditions of war rather than of peace.
Thus our petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, with prayer for the issuance of a Temporary Restraining Order and writ of preliminary injunction, seeks to declare the FAB and the CAB and any and all acts and activities arising therefrom as unconstitutional and void, and to restrain, enjoin and prohibit the Department of Budget and Management and the Commission on Audit from approving the release and expenditure of funds for any act or activity related thereto.
Named respondents are Supreme Court Associate Justice Marvic M.V. E. Leonen, in his capacity as chief government negotiator and signatory to the FAB; UP Professor Miriam Coronel-Ferrer, in her capacity as chief government negotiator and signatory to the CAB; the MILF, represented by its chief negotiator and signatory Mohagher Iqbal; Budget Secretary Florencio Abad; and the Commission on Audit. Both Leonen and Ferrer are sued in their personal as well as official capacity.
The first question people ask is, why proceed against the FAB and the CAB, when it is the proposed Babala that seeks to create the demonstrably unconstitutional and invalid Islamic sub-state for the MILF?
Answer: Because although the Babala has stirred people’s passions to boiling point, we cannot predict its final fate in Congress, while the FAB, signed by the parties on October 12, 2012, and the CAB, signed on March 27, 2014, are already signed documents, and may now be questioned before the court.
If anyone sees the draft Babala as patently unconstitutional and extremely dangerous, it is because the mother documents from which it is drawn are both patently unconstitutional and extremely dangerous. To the petitioners, the FAB and the CAB present a clear and present danger to the security, safety and peace of the nation and the state. They threaten, in their view, to dismember the national territory, fragment its people, despoil its natural and human resources, wreck its tripartite system of government and ultimately destroy the Republic.
In entering into a peace agreement with the MILF alone, to the exclusion of the MNLF, the Sultanate of Sulu, other Islamic rebel groups, and the much more numerous lumads; and in agreeing to create for the MILF a Bangsamoro political entity with exclusive and unwarranted powers asymmetric to those of the central government, to replace the Autonomous Region in Muslim Mindanao, and to be run by a “ministerial form of government” under a basic law to which the Constitution must be made to conform by compulsory amendment, should there be a conflict between the proposed basic law and the Constitution, Leonen and Ferrer, in the petitioners’ view, created two constitutional monstrosities, which dwarf the earlier MOA-AD (Memorandum of Agreement on Ancestral Domain) under President Gloria Macapagal-Arroyo, which the SC struck down as unconstitutional and void in 2008.
From the petitioners’ perspective, in granting the MILF all the rights and privileges contained in the FAB and the CAB, which the Executive alone or its surrogate cannot grant without first amending the appropriate articles of the Constitution, the respondents acted with grave abuse of discretion tantamount to lack or excess of jurisdiction. The result is an ultra vires or a constitutional nullity, which could not confer any rights, nor impose any duties.
What is most puzzling is that instead of insisting that both parties to the FAB and the CAB adhere strictly to the Constitution, the respondents gave the MILF everything they wanted from the government, in the apparent belief that total surrender to the rebel group was the only way to procure “peace.” This reduces the Constitution into a mere scrap of paper and turns a peace agreement into a copout.
In creating the so-called Bangsamoro political entity, the parties completely forgot that the Constitution defines the country’s territorial and political subdivisions as follows: provinces, cities, municipalities, barangay. The Bangsamoro political entity is not one of these. Indeed, the Constitution provides that “there shall be created autonomous regions in Muslim Mindanao and the Cordilleras consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” But there is an inflexible condition attached to it.
The task of creating these regions is specifically assigned to the First Congress elected under the 1987 Constitution, within 18 months from the organization of the Senate and the House of Representatives. The first Congress complied with this mandate, except that the people of the Cordilleras rejected it. No other Congress is empowered to pass any organic act to create an autonomous region after this.
If we want to enact a new organic act to create an autonomous region in Muslim Mindanao or the Cordilleras, we must first amend the appropriate article in the Constitution. Congress cannot simply pass an organic act now and move to amend the Constitution later in order to validate the legislation. Nor can a mere law create a ministerial form of government for an autonomous region while the national government remains presidential.
Only the Constitution can authorize this arrangement, assuming it is judged to be structurally desirable or permissible. Just as it would require a revision of the Constitution to shift from a presidential system to a parliamentary one, it would require a similar shift to allow a parliamentary regional structure to exist within the presidential superstructure.
These are but some of the reasons why the petitioners believe the FAB and the CAB are patently void and unconstitutional, and the Budget department should be restrained from disbursing public funds for any act or activity related thereto, which could only be similarly void and unconstitutional. It goes without saying that the constitutional defeat of the FAB and the CAB, which we are praying for, should not weaken but rather strengthen our search for a just and lasting peace in Mindanao.