Law as convenient anti-peace-deal scapegoat

Our Constitution is a convenient scapegoat for those opposing the Comprehensive Agreement on the Bangsamoro. However, the more extreme critics cite a straitjacket unrecognizable as the Constitution.

I think back to an upsetting episode from law school. A well-liked senior, a student leader and with good grades, approached me worried by a job offer from one of the most prestigious law firms. I was shocked, but my friend pressed: “What if I am the token Muslim?”

I once mentioned to a college classmate that Chinese-Filipinos are the Philippines’ other large cultural minority. We discussed growing up with the word “Chinese” usually appearing in news reports about kidnappings and “Muslim” usually appearing in news reports about terrorism. We got along quite well after that. My Facebook feed welcomes the flood of breathtaking mosque photos and irritable status updates come Ramadan, and worried reports of armored vehicles rolling through cities during the Zamboanga siege.

Later, regular trips to Indonesia made me the token Catholic. I was surprised at how strongly Indonesians related when I told jokes about corrupt Philippine politicians and overzealous religious leaders. I felt nationalistic pride when my stories of over-the-top Philippine bishops would always top their reactions to religious protests against Lady Gaga in Jakarta and the “Muslimah World” beauty pageant, featuring Koran reading and headscarf styling. I felt we had so much in common that their being Muslim soon became

invisible to me, to the point that I almost tricked one into eating pork when I unthinkingly gave her a packet of Singaporean dried pork for  Chinese New Year.

What is passing for legal analysis would hold these stories completely irrelevant when they are the crux. Bar-exam-oriented, rote-memory-driven legal education makes lawyers prone to treating law as intellectual puzzles in a vacuum. Law does not exist for its own sake. It is law that must conform to society, not society that must conform to law. And the Constitution, being the highest law, must be read as broadly and as progressively as possible to follow society’s advance.

Presidential Adviser on the Peace Process

Teresita Quintos-Deles, Peace Panel Chair Miriam Coronel-Ferrer, and their colleagues have treated law and the Constitution with this breadth in their work. Speaking before the Philippine Bar Association, they presented, not complex legal arguments, but the simple observation that members of the other panel had grown up not identifying themselves as Filipino, and that it is a giant emotional step for them to have come to the table ready to think of themselves as our countrymen. They thus expressed an equally simple faith that the negotiated peace agreement is a fair one that should fit within our Constitution.

The broad approach is justified given a legal history replete with examples of law taking long strides to keep in step with society. For example, our government may take private property for public use if it pays the market value to the owner. Our Supreme Court validated noncash payments to land owners under post-Edsa agrarian reform programs, explicitly citing a need to revolutionize legal doctrine to facilitate the immense task of agrarian reform. The same high court created a doctrine of “intergenerational responsibility” that allows unborn children (represented by the living of today) to sue in environmental cases, and made a selective reading of an obscure paragraph in the Constitution to come up with the writ of amparo in response to extrajudicial killings in 2007. In the United States, segregation was in force mere decades before it elected a black president. History has thus more often validated a less intellectually neat but politically acceptable solution than has the rigid, legalistic approach.

What are the difficult questions? The Annex on Normalization, for example, refers to “a police force for the Bangsamoro,” but the Constitution commands: “The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.” Thus, a Bangsamoro police force must be part of “one” national police force and “controlled” by the National Police Commission. The details of its relationship to the national agency will have to be fleshed out when Congress deliberates on the basic law creating the Bangsamoro political

entity. This example parallels many others, from authority over courts to tax collection. There is no single answer precisely because the Constitution is a broadly worded document and political judgment must necessarily help determine what “one police force” means.

When the Framework Agreement on the Bangsamoro was being rushed for signature, many lawyers immediately (and validly) criticized it as a framework with no agreement, as key provisions were left to annexes that did not then exist. Now that the complete agreement is before us and the time has come to fill in the basic law’s details, we must approach the Constitution with open minds appropriate to the rare chance at peace now before us.

Our post-Edsa Constitution is our greatest symbol of freedom, drafted one generation ago with every aspiration imaginable as only a people who had just regained democracy could. Today, it would be ironic if this great symbol is used to unduly stifle present hopes to forever erase the thought of the token Muslim from our society. When the basic law enters lengthy debate, law, not legalism, must reign.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.