Friday, February 27, 2015
On assailing BBL's constitutionality
The armed separatist conflict, prevalent oppression, diverse
and complex socio-cultural structures and extraordinary violence at various
levels of intensity have been few of the serious problems in Muslim Mindanao
that the Philippine Government had been addressing. Aside from peace
negotiations, one measure that the government seeks to implement to resolve
such conflicts is the passage of House Bill no. 4994 or the Bangsamoro Basic
Law (BBL).
Basically, BBL is to establish a political entity that will
replace the Autonomous Region for Muslim Mindanao (ARMM), and provide for its
basic structure of government in recognition of the justness and legitimacy of
the cause of the Bangsamoro people and their aspiration to chart their
political future through a democratic process that will secure their identity
and posterity, and allow for meaningful self-governance. [1]
The proposed law seeks to provide as the nation’s quest for
peace in Muslim Mindanao. However, several questions have been raised assailing
BBL’s constitutionality.
In a public hearing on the constitutionality of the BBL last
January 25, 2015, Senator Miriam Santiago, chair of the Senate committee on
constitutional amendments and revision of codes, identified four major issues
on the constitutionality of BBL: (1) legislation v. constitutional change; (2)
checks and balances in the national government v. none in the BBL; (3)
sovereignty v. sub-state; and (4) territorial integrity v. functional division.
[2]
It is said that some of the provisions contained in the
proposed law redefines the concept of sovereignty embodied in the Constitution
and in turn infringes it. An assailed provision in the BBL is the powers of the
government embodied in Article V of the proposed law wherein the terms “reserved”,
“exclusive”, and “concurrent” appear.
"Reserved powers are matters over which authority and
jurisdiction are exercised by the National Government. The reserved powers
enumerated in the Annex on Power Sharing remains the same. Only the National
Government can exercise power or authority over national defense and security,
foreign relations, monetary policy, customs and tariffs, among others.
Concurrent powers refer to the powers shared between the
National Government and the Bangsamoro Government. In the exercise of these
concurrent powers, the concerned ministries of the Bangsamoro Government are
required to cooperate and coordinate with the National Government.
Exclusive powers are matters over which authority and
jurisdiction pertain to the Bangsamoro Government. (Sections 1 to 4)
All issues that may result in a conflict between the
National and Bangsamoro Governments, or may arise from the exercise of powers
enumerated in Art. V, shall be resolved by an intergovernmental relations
mechanism. Unresolved issues shall be elevated to the President, through the
Chief Minister. (See Art. VI)" [3]
The Agreement, thus, diminishes the sovereignty of the
Philippine Government by listing what are the powers that the central
government can retain. The Agreement not only reduces the sovereignty of the
central government, but also provides that in the future, such sovereign powers
as have been reserved may be further increased, provided the Bangsamoro agrees.
It will therefore be the Bangsamoro which will determine what should be the
remaining sovereign powers of the central government. In other words, the
Agreement attempts to redefine the sovereignty of the Philippine state. [4]
Indeed, the Constitution is the defined as the highest law
of the land of which any other law must conform with. However good a proposed
law is in resolving societal, economic and political issues that plague the
country, it must always conform to the Constitution.
Legislators and citizens are called upon to inquire and question
upon these proposed laws in order to create effective laws that may promote the
country’s welfare. This is what democracy speaks of.
Whether BBL is constitutional or not, keep in mind that it
is only an attempt to legislate peace.
“Since it is but an attempt, definitely it would be wanting…
But that is okay, the peace process does not end in the signing of
the agreement; and neither would it end in the legislation of the agreements.”
[5]
________________________
[1] http://www.interaksyon.com/article/103721/sen--miriam-to-hold-monday-hearing-on-bangsamoro-law-constitutionality
[2] i.d.
[3] http://www.gov.ph/2014/09/10/q-and-a-the-draft-bangsamoro-basic-law/
[4] https://www.senate.gov.ph/press_release/2014/0402_santiago2.asp
[5] http://www.gmanetwork.com/news/story/360783/opinion/blogs/bangsamoro-basic-law-quo-vadis
Bangsamoro Basic Law: Prejudices the Philippine Sovereignty and Constitution?
A state is usually defined and
describe as a definite territory occupied by a population that has an organized
government and has sovereignty internally and externally. A definite territory
gives a state an exact border of land, sea and aerial domain by which where it
could employ and extend control. A population embodies the number of
inhabitants of a state, which is considerably the most vital element because
without such, no one would be organizing the essence of statehood. Moreover, for
every population to move in a system and organize manner, there should be a
government who shall monitor them and be held in charge of such. And lastly,
all would be wasted if there would be no essence of internal sovereignty or
control and administration among its own people and external sovereignty or
recognition and independence from other nations. Those four elements (territory,
population, government and sovereignty) directly characterize what a state is
comprised and made of. However, given those classifications, would the
establishment of a Bangsamoro government and state would prejudice the Philippine
government, state, sovereignty and constitution?
The Philippine government has
been in conflict with the Moro Islamic Liberation Front (MILF) for decades
already. But due to the ongoing peace proceedings, the casualties of war have
been lessened. Good relations have almost been established and better
understanding of their grounds has been given consideration. It seems to be
going to the path of peace that everyone is looking forward for. However, due
to the untimely and unexpected events and actions (cases of act of terrorism that are said prompted by the group: bombing of Davao Airport (2003),
connections with Al Qaeda and Jemaah Islamiya) conducted by the group, the
peace process is almost put in to stop. Though, hope for peace is not yet out of sight,
there are still some people who deemed that there is still a chance to fix the
conflict in the area and enter to a long lasting peace. And in 2014, due to the
support of a number of members of the congress, the draft of the Bangsamoro
Basic Law (BBL) has been passed [1].
But not long after that, the
sympathy and support of the people for such law has been withdrew [2]. The
clamor for peace has shifted to the wish to end everything through entering
war. It is all because what happened last, January 2015 (SAF44 incident). And
because of such, questions regarding the constitutionality of BBL are being
raised. If BBL would be passed, the Bangsamoro would be having a definite
territory for them to occupy and a government to organize themselves
autonomously [3]. Having three-out-of-Four (territory, population and territory)
of the elements of a state, would it be possible that it will prejudice the
internal sovereignty of the Philippines? In such case, making the BBL
unconstitutional.
For my opinion, I think, it
would not prejudice the essence of sovereignty of the Philippines. It is true
that the region would be autonomous but it still under the direct supervision of
the Philippine government. It may act on its own but not totally without the
guidance and permission of the central government. All is still dependent to
the central government. So, nothing is prejudice and put at risk. Furthermore,
the passage of BBL might end the arms conflict, promote peace and further
organization and development of the area. I think, hoping for the dreamed and wished
peace is not yet over.
______________________________________________________________________
[1] http://jlp-law.com/blog/bangsamoro-basic-law-house-bill-no-4994-full-text/
[2] http://www.gmanetwork.com/news/story/442877/news/nation/senators-say-proposed-bbl-will-not-be-watered-down
[3] https://www.fidh.org/IMG/pdf/ph493a.pdf
BBL: Unconstitutional
Generally the
Bangsamoro Basic Law abolishes the Autonomous Region in Muslim Mindanao (ARMM)
and establishes the new Bangsamoro political identity in its place. The law is
based on the Comprehensive Agreement on the Bangsamoro signed by
the Philippine government and the Moro Islamic Liberation Front (MILF)
The purpose of the draft Basic Law is to establish the new Bangsamoro political
entity and provide for its basic structure of government, in recognition of the
aspirations of the Bangsamoro people.[1]
This Bangsamoro Basic Law is facing a lot of
questions specially when it comes to its constitutionality
Sen. Miriam Defensor Santiago said the proposed
Bangsamoro Basic Law (BBL) designed by negotiators to bring peace in
violence-wracked Mindanao is unconstitutional. Santiago said
that in her view “the BBL is unconstitutional because it violates what the
Constitution provides for as national sovereignty and territorial integrity of
our country. “Those
are the guidelines set by the Constitution in providing for autonomous regions
for regional authority. It’s obvious that in the contemplation of the
Constitution, the territorial units of our country are provinces, cities,
barangays, municipalities, and autonomous regions. There’s no mention at all of
a sub-state. That’s what they are proposing, a sub-state. That’s why in my view
as a scholar or as a student of constitutional law, it is unconstitutional,”
Santiago said.[2]
Retired
Supreme Court Associate Justice Vicente Mendoza warned that the proposed
Bangsamoro Basic Law (BBL) could reduce the powers of the national government
and lead to the break-up of the Republic. Mendoza said the proposed law is beyond
the power of Congress to pass. At least five of its provisions are
unconstitutional. The bill might end up like the Memorandum of Agreement on
Ancestral Domain (MOA-AD) that the SC declared unconstitutional in 2008.
“I regret,
however, that despite the splendid progress made toward the peaceful solution
of the Mindanao conflict, I still entertain doubts concerning the
constitutionality of certain concepts and provisions embodied in House Bill
4994,” he said.
Mendoza
added, the bill refers to the envisioned Bangsamoro region as a “territory” and
“ancestral homeland,” when the term “territory” in law refers to a part of the
country separated from the rest or a geographical area under the jurisdiction
of another sovereign power. The phrase on the recognition of the right of
the people to self-determination to chart their political future reinforces the
notion that Bangsamoro is a separate political entity under the jurisdiction of
the Philippines, such a political entity is only a little different from that
of the Bangsamoro Juridical Entity in the voided MOA-AD.[3]
And according
to Rep. Rufus Rodriguez of Cagayan de Oro City,
chairman of the House Ad-Hoc Committee on the Bangsamoro, after the panel
concluded at least 30 hearings and consultations on the proposed bill. The
proposed Bangsamoro Basic Law has at least 10 provisions that are
unconstitutional.
The proposed
Bangsamoro measure, the fruit of the comprehensive peace pact between the
government and the former separatist group Moro Islamic Liberation Front (MILF)
that provides for transitional modalities, power sharing, wealth sharing and
putting MILF combatants beyond use, will establish the Bangsamoro Region. This
region will replace the Autonomous Region in Muslim Mindanao, which
President Benigno Aquino 3rd described as a failed experiment.
“There’s no
more hurdle to the passage of the BBL [Bangsamoro Basic law] aside from
removing possible unconstitutional provisions. There are 10 to 15, give or take
a few,” Rodriguez said.
He refused to
disclose the “few” unsound provisions, but retired Supreme Court justices,
including Ombudsman Conchita Carpio-Morales, had raised possible infirmities of
the Bangsamoro measure, which provides that the Bangsamoro Region should have a
separate police force, audit body and an anti-graft entity. Also, the
Bangsamoro bill allows expansion of its coverage if at least 10 percent of
qualified voters in contiguous areas will ask for their inclusion at least two
months prior to ratification of the Bangsamoro Basic law and the process
of delimitation of the Bangsamoro.[4]
Whether
the Bangsamoro Basic Law is constitutional or unconstitutional, I believe that
the framers of the said law have the intention of invoking peace between the
Philippine Government and the MILF but I would like to end with the statement
of Senator Alan Peter Cayetano about the killing
of more than 40 police officers in a clash with the Moro Islamic Liberation
Front. He said the incident showed the alleged lack of
commitment of the MILF for peace and development in Mindanao.
“Para saan pa yung BBL
kung ngayon pa lang na hindi pa nila kontrolado yung area, ang sasabihin lang
nila pag may napatay na singkuwentang pulis, ay hindi nag-coordinate? So
I’m withdrawing my co-authorship of the BBL and I seriously doubt kung
mabubuhay pa itong peace agreement,” [5]
[1] http://www.gmanetwork.com/news/story/378530/news/nation/faqs-about-the-bangsamoro-basic-law
[2] http://www.mb.com.ph/bbl-unconstitutional-miriam/
[3] http://www.philstar.com/headlines/2014/10/29/1385658/ex-sc-justice-bbl-unconstitutional
[4] http://www.manilatimes.net/10-bbl-provisions-unconstitutional/152163/
[5] http://www.gmanetwork.com/news/story/417312/news/nation/doubtful-of-peace-deal-cayetano-withdraws-support-for-bangsamoro-basic-law
Bangsamoro Basic Law: The Moros Arduous Path to Peace
17 excruciating years, 204 months of bloodied
journey, or 6120 days of blatant display of violence. And this are all for: justice,
identity, political sovereignty, integral development, or Peace? Regardless of
the cause, it has been a bloodied outcry. People’s life were taken, their
future were shattered for they live in fear and astrayed beliefs. These people
are called moro- our Muslim brothers.
Their thirst for justice, peace and
independence started 300 years ago according to history. Who they are now is a
product of what they have been through. To name a few: their brothers by faith
were murdered due to the reckless adventurism of Marcos in Sabah which is known
to many as the Jabiddah massacre; the massacre of the muslims in Bud Dajo and Bud Bagsak in Jolo by the
americans which is known to non-muslim Filipinos yet they did nothing to prevent
such tragic accident from proceeding; and one possible reasons according to Fr.
Tabora is the homesteading policies from the north which ultimately deprived
Muslim and Lumad Mindanaoans of their lands.
In light of these incidents, the moros
felt antagonized, betrayed and mocked by the government yet they were wornout
out of living in fear, agony and violence. So they desired instead to be
partners for peace with the government. To achieve such desire, they are
pushing through the enactment of the Bangsamoro Basic Law (BBL).
The BBL now is subject to scrutiny by
the people due to the Mamasapano incident or misencounter according to Iqbal.
It is also under thorough review in the senate because some find the BBL to be unconstitutional.
PhilConsa is questioning the validity of the BBL provision which is “To
establish an asymmetrical political relationship of Bangsamoro with the central
government founded on the principles of ‘subsidiarity’ and ‘parity of system’
is an oxymoron.” For him it looks like the provision will pave the way for the
Bangsamoro entity to be equal or have more powers than the government. Cagayan
de Oro City Rep. Rufus Rodriguez, chairman of the 75-member House ad hoc
committee on the BBL admits that the creation of a separate Commission on Audit
(COA), Civil Service Commission (CSC), and Commission on Elections (Comelec)
for the proposed autonomous region is unconstitutional. Despite the vehement objections,
the constitutional framers of the law opines that the BBL is constitutional because “the core
principle of the 1987 Constitution in mandating a special status for the
autonomous regions is the human development of the people of Muslim Mindanao
and the Cordilleras. Hence, the public conversation should not be about
semantics but about people – their needs, their aspirations, their choices –
and about empowering them with the environment and institutional framework for
social justice.”
With the equally convincing arguments of the
opposing parties, I was left at the center of a cross-road. Since I respect the
integrity of our justice system, I have high hopes to our intelligent and
versed senators, and I unconditionally trust the government, then I will leave
the matter unto their sound discretion.
United We Stand, Divided we Fall
“And if a house be divided against itself, that house cannot stand”
- Mark 3:25
Many people are wondering what the Bangsamoro Basic Law (BBL) is all
about. Some believed that this law will establish a completely autonomous
Bangsamoro Region in Mindanao but still under the wing of the Philippine
Government. Other posits that it is nonetheless establishing a distinct country
within a country – an independent Bangsamoro Region not under the Philippine
Government’s control.
To answer this confusion, let us look into the details of the law
itself.
The Bangsamoro region, which is the current Autonomous Region of
Muslim Mindanao covers various provinces in Western Mindanao that has long been
tortured with the conflict between the Moro Islamic Liberation Front (MILF) and
the Philippine Government. Under Article III, of the BBL, the Bangsamoro
territory which will be finally determined through a plebiscite, will still remain
part of the Philippines.
Section 1, Article II of the same draft law provides that the
Bangsamoros are those who at the time of conquest and colonization were
considered natives or original inhabitants of Mindanao and the Sulu archipelago
and its adjacent islands including Palawan, and their spouses, and descendants.
Likewise, the draft Basic Law provides that the Bangsamoro shall
respect and adhere to the Philippines’ international treaties and
agreements. Thus, whatever power the
Bangsamoro may exercise over its territory must be consistent with and not
contravene the country’s international obligations and commitments. (Article
IV, Section 8).
Also, the draft Basic Law provides that the Bangsamoro Government
will have a parliamentary form of government wherin the executive is formed by
the legislature, i.e. the Chief Executive (who is the head of the executive
branch of the government) is elected by the legislature.
In contrast, a democratic form of government derives its legitimacy
from the people in which eligible citizens participate, directly or indirectly,
in the election of their representatives in government (i.e., the people elect
the Chief Executive of the President of the Government).
According to the framers of the draft Basic Law, the Bangsamoro
Government is still democratic because all members of Parliament will be
elected as representatives of the Bangsamoro People. Consistent with the 1987
Philippine Constitution, both the executive and the legislative in a
parliamentary system shall be elective and representative of their constituent
political units (Article VII).
However, it is worthy to note that Article 1, Section 3 of the said
law provides that the purpose of the draft Basic Law is to establish the new
Bangsamoro political entity and provide for its basic structure of government,
in recognition of the aspirations of the Bangsamoro people.
In light of the foregoing, it appears that the BBL aimed at slicing
a sovereign region within the Philippine territory. Basing from history, this
type of government set-up is very alarming considering that this might be a
prelude to an uprising or worst-case scenario a civil war, as experienced by
other autonomous region in Ukraine, South Sudan, Israel-Palestine, etc. We are
not sure whether the framers have studied the historical antecedence of this
type of structure, one thing is for sure, this BBL will either help or destroy
Philippine security and sovereignty.
Thursday, February 26, 2015
KILLING THE BBL (BANGSAMORO BASIC LAW)
The Bangsamoro Basic Law under Article I Sec.III states its purpose which is to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful self-governance. [1]
It was also stated that the BBL that wanted to have a Parliamentary Government. Parliamentary Government is a system of government having the real executive power vested in a cabinet composed of members of the legislature who are individually and collectively responsible to the legislature. [2]
This can be particularly dangerous to a government when the distribution of seats among different parties is relatively even, in which case a new election is often called shortly thereafter. However, in case of general discontent with the head of government, his replacement can be made very smoothly without all the complications that it represents in the case of a presidential system.
In Parliamentary System, congresses do not select or dismiss heads of governments and governments cannot request an early dissolution as may be the case of parliaments. Some states have a semi-presidential system which falls between parliamentary and congressional systems combines a powerful head of state (president) with a head of government (PM) responsible to parliament. [3]
Congress should not rush in passing of the Bangsamoro Basic Law (BBL) as there are still provisions to be reviewed and clarified. There are already a lot of questions came up especially when the alleged misencounter between police commandos and Moro Islamic Liberation Front (MILF) fighters in Mamasapano, Maguindanao. Some adverse commentary questioned its legality and constitutionality.
According to Miriam Santiago, “the BBL is unconstitutional because it violates what the Constitution provides for as national sovereignty and territorial integrity of our country.” She also added that their attitude is to amend the Constitution to get what they wanted). [4]
It is now a question for everybody, what our Muslim brothers really wanted in passing this Law. It is very obvious the danger it can create later on once it was approved. Can we imagine the supremacy they can have after all if the government will allow this, and most especially are we ready to face the consequences of it?
RHEA M. CURAMEN
JD4102
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