Constitutional balance in the BBL

The Senate invited me twice to share my views on the proposed Charter change (Cha-cha) and twice also on the proposed Bangsamoro Basic Law (BBL). However, due to prior commitments, I could not attend. To make up for my absence, I wrote four recent columns on the Cha-cha (1/7/18, 1/14/18, 1/28/18 and 2/4/18). And for the BBL, I am writing one now. The senators may or may not use them as they please.

Three vital references. The Senate subcommittee on the BBL, chaired by Sen. Juan Miguel Zubiri, wants to make sure the final version of the BBL will pass constitutional scrutiny and avoid the debacle of the Memorandum of Agreement on Ancestral Domain (MOA-AD) that was trashed by the Supreme Court in North Cotabato vs Government (Oct. 14, 2008).

To fulfill this desideratum, the Senate would be well-advised to wade deep into that landmark decision, penned by Justice (now Ombudsman) Conchita Carpio Morales, as an essential guide in crafting the current BBL. Good references, too, are the justices’ separate opinions, especially that of Senior Justice Antonio T. Carpio (still an incumbent) listing 36 unconstitutional provisions of the MOA-AD.

Further, the Senate may also wish to refer to the 72-page memorandum submitted by Maria Lourdes P. A. Sereno, the current chief justice, who was then the counsel of one of the petitioners in that case, Sen. Franklin M. Drilon.

Relevantly, Philconsa vs Government (Nov. 29, 2016) held as “premature” the suit to invalidate the Comprehensive Agreement on the Bangsamoro or CAB and the Framework Agreement on the Bangsamoro or FAB. The Court said it can “exercise its power of judicial review over a coequal branch of the government” only after the BBL has been approved.

Control and supervision. The creation of “autonomous regions in Muslim Mindanao and in the Cordilleras” is subject to the basic constitutional caveat that they must fall “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

Thus, the BBL (and all laws that devolve powers and functions to local government units) cannot cede any part of Philippine territory to the exclusive jurisdiction and use of the Bangsamoro.

Neither can such a law impair, restrict, or dilute the authority and prerogatives granted by the Constitution to any of the three branches of government: legislative, executive and judicial. Executive offices are always subject to the control and supervision of the president. On the other hand, all local governments units, including the autonomous regions, are subject to the president’s general supervision, but not control.

“Control” is the power to review, reverse, or modify acts of subalterns while “supervision” refers to the power to “ensure that laws are faithfully executed” by local officials.

Presumed constitutional. While the BBL may establish regional offices of the independent commissions (Commissions on Elections, on Civil Service, on Audit, and on Human Rights), such offices cannot replace, impair, or lessen the authority of the national offices granted by the Constitution. This is also true of the Bangsamoro police. It remains a part of and answerable to the Philippine National Police because the Charter mandates the “police force … [to] be national in scope …”

As a rule, what the Constitution does not prohibit expressly or impliedly is allowed. Hence, the BBL’s bias for a parliamentary structure headed by a chief minister to be elected by the Bangsamoro MPs (members of parliament) who are in turn elected by the people is, in my humble view, not unconstitutional.

Laws are always presumed constitutional. The BBL is too vital to our country to be invalidated in its entirety. Only when clearly irreconcilable to the Constitution will parts of it be set aside by our judiciary.

In sum, while we respect and obey our Charter, we also recognize “the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their future through a democratic process.” A delicate balancing of these parameters is the key to achieve peace in Mindanao and ultimately in the whole country.

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