MILF aspiration unchanged

Two major obstacles beset the proposed Bangsamoro Basic Law (BBL): its constitutionality and its political palatability. Today, let me take up the first.

Mere guesses. Much has been said about the BBL’s constitutionality. However, all these opinions are mere guesses as to what the Supreme Court would do if the BBL, in its present form, is brought to it for a ruling. By “present form,” I refer to Senate Bill No. 2408, a 119-page document detailing how the Bangsamoro shall be governed.

Unfortunately, the Court (and the entire judiciary) does not render advisory opinions on the constitutionality of pending bills. Its power to decide is limited to “actual controversies”—that is, to actual violations of existing constitutional and legal rights, not to academic questions or anticipated laws. Hence, it cannot render an opinion on the constitutionality of a pending legislation like SB 2408.

I think the best way to predict what the Court would do is to analyze its decision in “North Cotabato vs Government” promulgated on Oct. 14, 2008, and compare it with the BBL. This landmark decision, written by Justice (now Ombudsman) Conchita Carpio Morales, invalidated the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government and the Moro Islamic Liberation Front (MILF). Fortunately, it also delved deep into the larger issue of “the extent of the power of the President in pursuing the peace process.” (bold type in original decision)

The Court explained that while the “facts surrounding this controversy center on the armed conflict in Mindanao,” the principles and doctrines enunciated should guide future peace talks “in all areas of the country.”

Lessons learned. What then are the lessons learned from that case? First, the people have a constitutional right to be informed and the government has a corresponding duty to disclose “even if nobody demands” the details of peace negotiations. “[O]urs is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance.”

Second, since the government’s peace negotiators are mere agents of the President, they cannot have more powers than their principal. Moreover, they do not represent and do not bind the legislature and the judiciary. Consequently, they cannot guarantee that the peace agreement they entered into would be enacted into law, and that the law thus enacted would pass judicial review.

Third, the “associative” relation between the Bangsamoro Juridical Entity (BJE) and the central government, as provided in the MOA-AD, is unconstitutional. The Court solemnly ruled: “No province, city, or municipality, not even the ARMM (Autonomous Region in Muslim Mindanao), is recognized under our laws as having an ‘associative’ relationship with the national government. Indeed, the [associative] concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government.

It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of the Philippine territory for independence.” (italics and underscoring in original)

The Court explained that “the spirit animating [the BJE]—which has betrayed itself by its use of the concept of association—runs counter to the national sovereignty and territorial integrity of the Republic.” (italics and bold types in original)

Consequently, because “[t]he defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.” (bold type in original)

Asymmetric relationship. Deferring to the Court’s invalidation of the relationship provided in the MOA-AD, the BBL abandoned the use of the word “associative.” Instead, the BBL proposes that the “relationship between the Central Government and the Bangsamoro Government shall be asymmetric. This is reflective of the recognition of their Bangsamoro identity, and their aspiration for self-governance. This makes it distinct from other regions and other local governments.” (bold type supplied)

Though the word describing the relationship has been changed from “associative” to “asymmetric,” the underlying meaning of the two words is basically the same. That basic meaning is clear from another sentence of the BBL: “The Central Government shall respect the exercise of competencies and exclusive powers of the Bangsamoro Government.” (bold type supplied)

Verily, the basic aspiration for self-governance of the MILF has not changed. Like in the old MOA-AD, it still wants self-governance that is distinct from and not given to other local government units, not even to the ARMM, and aspires for powers exclusive to itself. These distinction and exclusivity are the “defining concepts” that animated the invalidated MOA-AD.

I respect this aspiration of the MILF. The MILF rebelled because of its inability to obtain its longing for distinct and exclusive powers. That is why the way to peace, as I wrote in an earlier column (“Saving the peace,” 2/8/15), would be either to amend the BBL to conform to the Constitution or to amend the Constitution to empower Congress to grant the MILF’s asymmetric aspiration.

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