What is before Congress now is the Bangsamoro bill and, of course, it can be handled by Congress as a legislative bill in the exercise of its ordinary legislative power. But aside from legislative power, Congress also has constituent power—that is, the power to formulate constitutional amendments or proposals. Might the new Bangsamoro law be occasion for Congress to use its constituent power?
The constitutional provision on autonomous regions is very economical. Article X, Section 18 says: “The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic act shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.
“The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”
As can be seen, Congress has broad discretion to determine the shape and powers of the autonomous region with the limitation that everything should be consistent with the Constitution.
Now comes the Bangsamoro bill. The challenges to it are aplenty, some on the basis of unwisdom but the more serious ones are on the basis of unconstitutionality.
The wisdom issues are regular fare for Congress, but the constitutional issues are more delicate. How may they be handled? I suggest that they can be handled by Congress through the exercise of its constituent powers.
Already the Constitution contains the elements that Congress can use. The Constitution already requires that for the organic act to be effective, it must be presented to the people for ratification in a plebiscite. True, the Constitution does not say that the plebiscite will be a constituent exercise. But the Constitution does not prohibit Congress from making the plebiscite a constituent exercise at least with respect to the provisions challenged as unconstitutional. All that is needed is for Congress to specify and explain the scope of the plebiscite. This can result in new constitutional provisions.
If Congress presents the law in a plebiscite without the specification of constituent intent, the result will be an ordinary statute. What are considered as unconstitutional in such statute will be challenged as such before the Supreme Court. But if the plebiscite is clearly constituent in intent, the result can be beyond the reach of the review powers of the Supreme Court.
I would add, however, that for the plebiscite to create a constituent effect, it must be nationwide. It will be recalled that the current Bangsamoro organic act was not approved in a nationwide plebiscite. The plebiscite on the original Bangsamoro law was considered sufficient to satisfy the requirement “that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.” If, however, the new law will contain constitutional amendments, it will affect not only a limited number of provinces but the entire nation. This should require a nationwide plebiscite.