Bangsamoro bill can’t be analyzed legally

The formidable array of legal experts tapped by the House of Representatives’ ad hoc committee on the Bangsamoro Basic Law will not be able to resolve the bill’s constitutionality. This issue turns on whether or not one chooses to interpret our fundamental law broadly to accommodate the idea of an unprecedented autonomous region in Mindanao. No clear legal standard governs this central question. It is ultimately not legal but political, and will be resolved with a political stand that the Supreme Court must respect.

The ad hoc committee’s first hearing last Oct. 27 opened with a representative of our retired generals. He asked that we ensure that our armed forces’ deployments are not restricted and that a de facto Bangsamoro army that may turn against us not be allowed. He insisted that the law contain an explicit provision prohibiting secession. With great conviction, he expressed the hope that his grandchildren would not spit on his grave for failing to protect our territory’s integrity.

The night before, I had coffee with an old Maranao schoolmate. He spoke animatedly about the Aquino administration’s cleanup of the Autonomous Region in Muslim Mindanao, with more roads built there this term than in the rest of the ARMM’s history. About the need to properly manage Lake Lanao’s crucial biodiversity and hydroelectric resources. About organizing idealistic, young Moro professionals.

In a student magazine feature I wrote in 2000, my Muslim schoolmates narrated both the discomfort of being served pork at our freshman orientation and appreciating the beauty of Catholicism as a Muslim in Jesuit Ateneo. “All-out war” against the Moro Islamic Liberation Front was declared that year. Female students wearing head scarves were searched more closely in Manila malls. In Quiapo’s Golden Mosque, a friend was accused of being a dupe in a Christian plot to use Atenean Muslims to subvert others in Manila. He told me of aspirations for a dignified space of their own and that dream’s many meanings for different people. He lamented how the deep resentment of our Muslim peers in the University Belt translated into refusing to call themselves Filipino or having the flag on display at interfaith events.

The ad hoc committee’s first hearing might have appeared frustratingly inconclusive. The legendary retired justice Vicente V. Mendoza, who taught the Constitution to a generation of University of the Philippines lawyers, firmly opined that the Bangsamoro bill was beyond Congress’ power to pass. He argued that the “asymmetric” relationship with the Bangsamoro in the bill was little different from the proposed “associative” relationship struck down by the Supreme Court in 2008, and undermines the President’s power to supervise local governments and enforce national laws. Further, defining a Bangsamoro people may restrict the rights of other peoples in Mindanao.

In complete contrast, retired justice Adolfo Azcuna, chancellor of the Philippine Judicial Academy and an author of the 1987 Constitution, argued that it is constitutional to recognize a distinct Bangsamoro people within the country. He accepted that the bill’s innovations could generally be read in the context of the Constitution. And he prominently stated he is from Zamboanga.

Various legal circles mirror the intellectual stalemate. The Integrated Bar of the Philippines’ Nasser Marohomsalic and myself for the Philippine Bar Association strongly supported the bill at the hearing. On the other hand, the Philippine Constitution Association under Manuel Lazaro has taken a critical, adverse position. IBP general counsel and former UP Law dean Pacifico Agabin told me history demands that we recognize how our Muslim brethren remained independent from foreign colonizers even before we thought of our archipelago as the Philippines. But IBP Journal editor and former UP Law dean Merlin Magallona wrote at length of the bill’s many infirmities.

Ateneo Law dean emeritus Joaquin Bernas, SJ, and School of Government Dean Tony La Viña accept the bill’s general structure, subject to minor adjustments. I do not envy the committee chair, Rep. Rufus Rodriguez, for his task of mediating among experts with his unique mix of legal credentials and political savvy.

When I spoke (last, being the youngest), I very simply asked our congressmen how broadly they wished to interpret the Constitution. I told them that as political leaders and not lawyers, they are entitled to consider the Constitution as, in the words of Justice Oliver Wendell Holmes Jr., “an experiment, as all life is an experiment.” The Constitution is not read as an ordinary legal document, but as a fundamental one intended to empower future generations. The critiques of the Bangsamoro bill’s constitutionality have solid foundations, but there was a time when slavery was the law of the land, accepted as absolute truth by the best legal minds of the day, and deemed part of the natural order. Segregation and apartheid were likewise the truths of their time. But law changes. Time changes.

The Bangsamoro bill is hardly a pure legal issue. At some point, it becomes political. Thus, its crafting is legitimately guided not just by abstract legal doctrine, but also by our broader experience and aspirations as Filipinos, down to teenage conversations on how a Muslim can feel like an outsider despite growing up with you. This bill is too important to be left to lawyers, and we had all better educate ourselves on and take responsibility for it.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association’s committee on constitutional law and teaches this subject in the University of the East. He also teaches securities law in the San Beda Graduate School of Law.