Two BBL strategies

The two legislative committees primarily handling the proposed Bangsamoro Basic Law (BBL) favor peace. However, they are using diverse strategies to achieve their common goal.

Risky strategy. On one hand, the House committee headed by Rep. Rufus Rodriguez, voting 50-17, approved the BBL with some amendments, but did not revise or delete several provisions that critics claim are unconstitutional because their revision or deletion would contravene the government’s comprehensive peace agreement with the Moro Islamic Liberation Front.

On the other, the Senate committee headed by Sen. Miriam Defensor Santiago believes that, in addition to passing the BBL, Congress should also amend the Constitution to validate the questionable portions.

The congressmen, swayed no doubt by their meeting with the President a few days ago, are taking the calculated risk that the bill would survive scrutiny by the Supreme Court. Or, at least, they think that the Court would not invalidate the entire BBL (but only separable parts), unlike the Memorandum of Agreement on Ancestral Domain (MOA-AD) which was totally scrapped.

Better strategy. I believe the Senate track is safer and better. Why?

First, a constitutional amendment or revision would conclusively solve all the legal objections to the bill. True, such a route would take more time. But, as I pointed out in this space on Feb. 8 (“Saving the peace”), the process could be speeded up by Congress by tackling its legislative function of enacting the BBL alongside its constituent function of amending the Constitution.

For lack of space, I will no longer repeat how this could be done. Anyway, readers can easily access that older column from the website of this paper (www.inquirer.net) or from my personal website (www.cjpanganiban.com). Suffice it to say that the whole process can be done within this year, if Congress puts its mind to it.

Second, constitutional amendments would undergo a nationwide debate and plebiscite. In contrast, the purely legislative route would subject the BBL only to a plebiscite in the autonomous region of Mindanao which would constitute the proposed Bangsamoro homeland.

A national plebiscite would mean a free and robust discussion and vote by the entire electorate. After all, the peace we seek is not only for the Bangsamoro but for the whole country and for all our people.

Third, while the BBL would be passed under the present Congress and the present President, its implementation would be undertaken mostly by the new president to be elected in 2016. So, too, a purely legislated BBL would surely be challenged in the Supreme Court. Given the requirements of due process, the case may not be decided within the tenure of President Aquino.

The next president may not be as committed to the BBL and may not defend it as passionately as P-Noy and his administration. Cases are won or lost because of the facts, issues and arguments presented by the parties to the courts. If the parties do not present them prudently and diligently, the courts may not have enough justification to uphold the BBL.

But if the BBL is backed by constitutional changes, there would be no challenge to its constitutionality. Equally important, the next president would be compelled to implement the BBL in full because it would carry the mandate of the entire electorate, not just of those in the Mindanao autonomous region.

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More on arbitration. An internationally-respected arbiter, who requested anonymity (true to their calling, arbiters prefer to keep a low profile), e-mailed an interesting comment on my piece last Sunday (“Respect and obey arbitral decisions”).

He explained that the United Nations Convention on the Law of the Sea (Unclos) which created the International Tribunal for the Law of the Sea (Itlos) has an “opt out provision” allowing a member of the Unclos, like China, to “reject” an arbitration suit.

However, China did not expressly invoke this provision in its controversy with the Philippines over the Spratlys and other isles in the West Philippine Sea. It “simply refused to participate” in the arbitral proceeding. The question is whether the Itlos panel hearing the arbitration case will construe this “refusal” as a “rejection.” If so, then the Philippines will probably lose because the tribunal would simply dismiss the case for lack of jurisdiction.

On the other hand, the arbiter stressed, if the Philippines would “hurdle the jurisdictional issue, the likelihood is that it will win. Reason: the Philippine government is the only one presenting arguments and evidence.” The second question is: If, indeed, the Philippines wins, how can the decision be enforced against China?

He agreed with me that the Philippines would lose its moral ascendancy to ask China to honor an Itlos decision unfavorable to China, if the Philippines would honor and obey only arbitral decisions it wins (like the Manila Water case) and disobey those it loses (like the Maynilad Water case). Our country should be consistent in observing the rule of law regardless of the outcome of arbitral proceedings in which it freely and actively participated.

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The temporary restraining order issued by the Court of Appeals stopping the Bases Conversion and Development Authority from evicting the Camp John Hay Development Corp. upheld the arbitral decision of the Philippine Dispute Resolution Center Inc. Equally important, it also protected the rights of the innocent bystanders I wrote about last Sunday.

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Comments to chiefjusticepanganiban@hotmail.com