Mother of all flaws plagues BBL

The proposed Bangsamoro Basic Law (BBL), which is House Bill No. 4994 and Senate Bill No. 2408, is riddled with constitutional infirmities. No less than Rep. Rufus Rodriguez, chair of the House ad hoc committee on the BBL, has pledged to purge it of constitutional flaws.

Retired Supreme Court Justices Vicente Mendoza and Florentino Feliciano, both constitutionalists, have detailed before the Senate the BBL’s various provisions which are violative of the Constitution. The former even declared that the creation of a Bangsamoro substate could be a prelude to its secession from the republic.

The Philippine Constitution Association, whose president emeritus is former Chief Justice Reynato Puno, has debunked in a 74-page position paper the BBL as unconstitutional due to a litany of transgressions. The Catholic Bishops’ Conference of the Philippines has also warned that the BBL must not surrender the country’s territorial integrity.

The fatal infirmities of the BBL range from vesting the Bangsamoro with extraordinary powers that exclusively pertain to the national government, structural innovations that vitiate the presidential system, like the institution of the parliamentary setup in Bangsamoro, undue delegation of congressional prerogatives, and delimitation of the Supreme Court’s power of judicial review and appellate jurisdiction, to the duplication or even derogation of the authority of the constitutional commissions: the Commission on Elections, Commission on Audit, Civil Service Commission and Commission on Human Rights.

Yet what was underemphasized or overlooked is the mother of all constitutional infirmities: the projected abolition of the Autonomous Region in Muslim Mindanao, whose creation was ordained under the 1987 Constitution. The precipitate dismantling of the ARMM is being effected through the enactment of a mere statute (BBL) without a prior constitutional amendment authorizing the ARMM’s replacement by the Bangsamoro, a much more powerful entity not envisioned in the Constitution. More than all the other violations, this infraction is the original sin of the BBL. This places the cart before the horse.

Section 15 of Article 10 of the 1987 Constitution unequivocally provides that “[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras.” Section 18 mandates that “[t]he Congress shall enact an organic act for each autonomous region” and “[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose.” The immediacy of enacting the organic acts was underscored by the Constitution when it directed under Section 19 that “[t]he first Congress elected under the Constitution shall, within [18] months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.”

The 8th Congress enacted on Aug. 1, 1989, Republic Act No. 6734, titled “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao,” following the parameters on the limited powers of the ARMM. This was ratified in a plebiscite on Nov. 17, 1989. After its ratification, the ARMM was elevated to a constitutional entity or institution which could not be abolished and replaced through an ordinary statute like the BBL. The supremacy of the Constitution bars its amendment by a statute.

There are only three modes of proposing amendments to the Constitution: by Congress sitting as a constituent assembly, by a constitutional convention, and by people’s initiative. To reiterate, a statute cannot amend the Constitution.

The premature abolition of the ARMM is indelible in the BBL. No less than its title reads: “An Act Providing for the Basic Law for the Bangsamoro and Abolishing the Autonomous Region in Muslim Mindanao, Repealing for the Purpose … Republic Act No. 6734, entitled ‘An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.” Moreover, Section 5 of Article XVIII of the BBL provides: “Abolition of the ARMM.—Upon the ratification of this basic law, the Bangsamoro shall be deemed established, and the ARMM shall be deemed abolished.” Verily, the BBL incants the requiem for ARMM.

Nowhere in the Constitution is Congress authorized to abolish the ARMM and replace it with a formidable entity like the Bangsamoro. What the Constitution mandated was for Congress to enact the organic law for the ARMM. Since the enactment of the ARMM organic law is a constitutional mandate, the Congress is powerless to repeal this law without a prior constitutional amendment abolishing the ARMM and authorizing its replacement with another body.

This nonrepeal is an exception to the rule that Congress does not pass irrepealable laws because the enactment of the ARMM organic law was precisely ordained by the Constitution. The ARMM is constitutionally enshrined. It cannot be dethroned by ordinary legislation.

It is of no moment that the effectivity of the Bangsamoro depends on its ratification in a localized plebiscite. What is paramount is that the 1987 Constitution, which authorized the creation of ARMM, was ratified in a nationwide plebiscite. Consequently, the abolition of the ARMM must be preceded by a constitutional amendment ratified nationwide.

Congress cannot adopt the fatalistic attitude that anyway there is the Supreme Court that would act as the final arbiter on the constitutionality of the BBL. Congress must not saddle the high court with a manifestly infirm BBL. It must not also delude Filipino Muslims that Congress has done its task together with the President of enacting the BBL even as it is flawed.

Neither political expediency nor partisan accommodation is a viable anchorage for violating the Constitution.

Edcel C. Lagman is a former representative of the first district of Albay.