A sense of guilt pervades the whole defense of the proposed Bangsamoro Basic Law. We are asked to view the BBL not as an ordinary law but as an “extraordinarily special” one, whose enactment is “a sacred constitutional duty” of Congress. (Justice Laurel also said way back in 1936 that the exercise of judicial review is a “solemn and sacred obligation assigned to the judiciary by the Constitution.”) We are further told that the proposed law is an instrument of peace, social justice and development to correct injustices and abuses committed against the Moro people.
I do not know why I should feel guilty toward them. I have done them no wrong. Over the years I have acquired Muslim friends and former classmates. I have felt no animosity toward Muslims although it pains me to hear some of them sometimes say they are Tausug, or Maguindanao, or others rather than Filipinos.
It is unfair for Congress to acknowledge doing the Moro people wrong and to make amends for such wrongdoing. If government policies in the past were wrong, I do not think they were meant to discriminate against Muslims.
Defenders of the BBL claim that certain provisions only need some “refinement” or “clarification” by adding phrases like “subject to judicial review” or saying “exclusive devolved powers” instead of “exclusive powers” to make these constitutional. They gloss over conflicts with the Constitution, pointing out that the creation of a Bangsamoro civil service office is “without prejudice to the power, authority and duty of the national Civil Service Commission.” But how can that be when the CSC is displaced by the Bangsamoro office? The same can be said of the creation of a auditing office, human rights office, police force, and most of all the electoral office in the Bangsamoro government.
The same defenders say that the right of self-determination has two aspects: external and internal, external meaning the right to independence and internal meaning self-governance, and that it is the latter sense that is meant in the proposed law. But the proposed law says “the right to self-determination to determine their political future.” Moreover, had it meant “self-government,” the right to pursue economic, social and cultural development as the Constitution provides, it would not have said “the right of self-governance and self-determination.”
That the objective of the Bangsamoro is independence is clear from the following:
• Art. IV, Sec. 5 of the draft BBL stating the Bangsamoro government’s policy “to promote unity, peace, justice and goodwill among all peoples, . . . renounce[] war as an instrument of national policy, adopt[] the generally accepted principles of international law as part of the land and adhere[] to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.” Why such a foreign policy?
• Resolution of disputes through an intergovernmental mechanism which is characteristic of federal relations.
• The demand for “parity of esteem.”
• The Bangsamoro government’s power to contract foreign loans and receive foreign grants which may well commit it to act in ways other than as a unit of the Philippine government.
• A parliamentary form of government, which makes the Bangsamoro government look more like a state government of Malaysia than an autonomous unit of the Republic of the Philippines.
• The Organic Act of the Autonomous Region in Muslim Mindanao provides that “the area of the ARMM shall remain an integral and inseparable part of the national territory” of the Philippines. The draft BBL merely states: “The Bangsamoro territory shall remain a part of the Philippines.” Why?
• The Organic Act also provides: “The people of the [ARMM] shall uphold the Constitution as the fundamental law of the land and unequivocally owe allegiance and fidelity to the Republic of the Philippines.” Why is this not in the proposed BBL?
Defenders of the BBL say the Constitution should be liberally interpreted, invoking US Chief Justice John Marshall’s great statement that we “should never forget it is a constitution we are expounding.” We should also keep in mind, however, that liberally interpreting the Constitution does not license taking liberties with it. As recently pointed out in the Opinion pages of this newspaper, under the BBL public funds will be used for various Islamic activities in violation of the principle of separation of church and state (Rex D. Lores, “Rethinking the BBL,” 5/12/15; Araceli Z. Lorayes, “The constitutionality of Shari’ah,” 5/12/15).
The BBL also gives Shari’ah courts jurisdiction over Shari’ah law “pertaining to persons and family relations and other civil law matters, commercial law and criminal law” when under the Constitution their jurisdiction is limited to “personal, family and property law.” Inclusio unius est exclusio alterius.
Its defenders claim that under the Constitution the Bangsamoro parliament may be authorized to enact “such other matters … for the promotion of the general welfare of the people of the region.” This is merely a general welfare clause giving local governments police power to promote public health, comfort and safety. It is already in Art. VII, Sec. 24 of the BBL. It is not an additional source of lawmaking powers.
We are told that the Constitution is not a “bundle of legalism” for the delight of scholars. (They mean “academics,” perhaps?) The Constitution is truly for all of us, “we, the sovereign Filipino people.” However, it is the defenders of the BBL, not scholars, who delight in the esoteric principles and doctrines in the BBL: asymmetric, principle of subsidiarity, principles of parity of esteem, autonomy, ascription and self-ascription.
If the aim of the proposed legislation is peace, social justice and development in Mindanao, in what way would this aim be furthered by having, say, a parliamentary form of government for that region? Indeed, must the Constitution be violated to attain this end?
Vicente V. Mendoza is a former justice of the Supreme Court, professor at the UP College of Law, and author of books on constitutional law. As a concerned citizen, he continues to speak on public issues and frequently appears before committees of Congress and before the Supreme Court in constitutional cases.