Senators say BBL raises constitutional red flags

By Christina Mendez, The Philippine Star

Posted at May 22 2015 08:06 AM | Updated as of May 22 2015 04:06 PM

MANILA, Philippines - Senators yesterday urged the House of Representatives to amend the proposed Bangsamoro Basic Law (BBL) without raising constitutional problems.

“Unless we sufficiently address the question of constitutionality, the concerns of all stakeholders, as well as practical issues of administration and other problematic provisions of BBL, it will surely be challenged before the Supreme Court,” said Sen. Ferdinand Marcos Jr., chairman of the Senate committee tackling the BBL.

Sen. Miriam Defensor-Santiago said the BBL cannot be approved in its present form, pointing out some of its provisions need an amendment to the Constitution to be accommodated.

Santiago issued a committee report as chair of the Senate committee on constitutional amendments and revision of codes, which found “insidious doubts” on the BBL “in its present state.”

Marcos said he is giving due importance to the findings of Santiago’s committee on the BBL.

“We will certainly take serious consideration of the warning flags the report has raised,” Marcos said.

Marcos said he does not want to pass the BBL only to have it declared later by the Supreme Court as unconstitutional.

Marcos described as “irresponsible” the efforts of congressmen to railroad the passage of the proposed BBL just to meet the June 10 deadline set by Malacañang.

“As far as I’m concerned, the priority is to get it right,” he said.

The ad hoc committee led by Cagayan de Oro Rep. Rufus Rodriguez approved on Wednesday the proposed law after three days of deliberations, allowing for plenary debates of the measure amid allegations of railroading.

Santiago said the amendments the House ad hoc committee introduced in its version of the BBL draft failed to reconcile the bill with the Constitution, specifically on issues of sovereignty, autonomy, the creation of a sub-state and territorial integrity.

“The BBL fails the twofold test set by the Constitution: national sovereignty and territorial integrity. It is presented as a formula for capping off the peace process in Mindanao. However, it bears repetition that the end does not justify the means,” Santiago said.

She questioned the enumeration of powers in the BBL draft. The House panel retained three types: reserved powers reside only on the national government; concurrent powers are shared, while exclusive powers rest solely on the Bangsamoro government.

“The concept of ‘concurrent powers’ and ‘exclusive powers’ tear asunder the supreme authority possessed by the sovereignty of the people. These will make the Bangsamoro government co-equal with the national government, and thus a sub-state,” the senator said.

Santiago particularly opposed the extensive taxing and revenue-raising powers the BBL would give the Bangsamoro government. “Effectively, the Bangsamoro government will have seceded from, yet remain financially supported by, the Philippine government,” she said.

The provision granting the Bangsamoro exclusive powers and use of natural resources found in the area also drew Santiago’s criticism. “Under constitutional language, nothing of value may be exclusively allocated to any territorial part of the Philippine archipelago,” she said.

Santiago argued that although the BBL purports to be an exercise in local autonomy, “it bursts its bounds and turns into a part-sovereign state or a sub-state. The term ‘Bangsamoro territory’ implies that although it is under the jurisdiction of the Philippines, it is a separate part.”

She added the Bangsamoro territory is highly similar to the Bangsamoro Juridical Entity (BJE), or the associative state, which the Supreme Court struck down in 2008 for posing the threat of territorial dismemberment.

Santiago urged BBL proponents to heed the Supreme Court, which found that the BJE “meets the criteria of a state laid down by the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.”

Proof that the BBL would create a sub-state is the proposal for a parliamentary form of government despite the constitutional provision on Mindanao autonomy that limits the regional government to an executive department and a legislative assembly, she said.

‘The ultimate objective’

Malacañang maintained it would be up to Congress to ensure that the proposed BBL would comply with the Constitution amid continuous concerns that some of its provisions would have to be stricken out.

Presidential Communications Operations Office Secretary Herminio Coloma Jr. said it was important to adhere to the Constitution in coming up with a BBL and the decision on the provisions to be included would be the responsibility of the lawmakers.

“If there are those who want to question the legality of a law passed, they have the chance to do it by filing a petition before the Supreme Court,” Coloma said.

The Moro Islamic Liberation Front (MILF), however, stood firm on its position that it would not accept a diluted BBL even as the congressional ad hoc committee voted in favor of almost the entire original version.

“The Central Committee of the MILF will not accept in any way a diluted BBL,” MILF vice chair for political affairs Ghazali Jaafar said.

Jaafar, however, said the MILF, in a way, was “happy” with how the congressmen voted on the BBL.

“We cannot comment on anything yet. We will wait for the final process before we make any comment,” Jaafar said.

As regards the opt-in clause in the draft BBL, Coloma said this was still subject to plenary deliberations and that as per the House version, it would only happen on the fifth and 10th year of the implementation of the law if passed.

Some lawmakers fear that the opt-in clause will lead to the expansion of areas that could be included in the new political entity due to a phrase hastily inserted in the working draft the lawmakers voted on.

San Juan Rep. Ronaldo Zamora, House minority leader, said the mention of the 1976 Tripoli agreement in Article III Section 3 left the door open for at least 10 provinces that rejected their inclusion in the Autonomous Region in Muslim Mindanao (ARMM) to join the Bangsamoro region through a plebiscite.

Coloma said the ultimate objective of the BBL was to achieve peace, stability and progress in the Bangsamoro region when asked about the possibility of “creeping expansionism” if the opt-in clause would be included in the law.

“We should not go astray from the ultimate objective,” he said.

Coloma also stressed Congress would have to decide on whether to pass the BBL with such clause and see to it that this would hurdle the legal and constitutional challenges before the SC.

“This will also be presented before the people; and based on the Constitution, they have sovereign will. They will be the ones to decide, based on their assessment, as to what would help achieve peace. We believe that their decision would lead to lasting peace and development in Bangsamoro and Mindanao,” Coloma said.

Coloma added there was no reason to accuse Malacañang of prodding congressmen to railroad the passage of the BBL since this was being worked out since 2012 when the Framework Agreement on the Bangsamoro (FAB) was passed and then the Comprehensive Agreement on the Bangsamoro (CAB) in 2014.

“After that, a Bangsamoro Transitory Commission was formed and submitted the draft BBL to the Office of the President,” Coloma said.

He said the draft BBL had been studied and scrutinized since then and public consultations were held in various parts of the country.

Thankful

Supporters of the BBL expressed gratitude to congressmen for passing the draft autonomous law.

Government peace panel chair Miriam Coronel-Ferrer said the congressmen exerted due diligence as they deliberated and voted on every section of the proposed measure, noting that substantive elements of the proposed law were retained in response to the call of the Bangsamoro people for genuine autonomy.

Ferrer said the three most substantive elements of the BBL were carried in the amended draft of the ad hoc committee.

“The important elements are still there, notably: the structure of government; automatic block grant; and the layered voting process where the majority vote in the six Lanao del Norte municipalities and 39 North Cotabato barangays shall be determined at the level of the local government unit,” Ferrer said.

Ferrer said that most articles, especially on fiscal and economic matters, were also preserved.

“We are thankful that substantive parts and the spirit of the BBL to address the Bangsamoro aspiration for political and fiscal autonomy were heeded by our lawmakers in their voting on the provisions of the Bangsamoro law,” Ferrer said.

For her part, Presidential Adviser on the Peace Process Teresita Quintos-Deles said the passage of the draft BBL at the committee level is a step closer to just and lasting peace in Mindanao.

“We are aware that there will still be challenges along the way but we are confident that our lawmakers will heed the call of the people for meaningful autonomy and end to conflict,” Deles said.

Alih Aiyub, secretary-general of National Ulama Conference, hailed the approval of the draft law. – With Aurea Calica, Jose Rodel Clapano, John Unson, Edith Regalado

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