THE PROPOSED Bangsamoro Basic Law hurdled a major obstacle last week when it passed a crucial committee in the House of Representatives. But more hurdles remain, including more committee votes in the House and continuing hearings at the Senate. Despite Malacañang’s all-out effort to convince its allies in both houses of Congress to pass the measure in time, it seems unlikely that the bill will be passed by June 10, the last day of the second regular session of the 16th Congress.
This is the bitter fruit of the ill-fated, ill-conceived raid in Mamasapano last January—and the Palace is deluding itself if it believes that its original schedule for the passage of the law, which enacts key provisions of the landmark Comprehensive Agreement on the Bangsamoro, still holds. Even if two more committee votes in the House go Malacañang’s way, it cannot expect the Senate to march in step—not after the emotional bloodletting that followed in the wake of the Mamasapano incident which killed 64 Filipinos, including 44 Special Action Force troopers, and not after the BBL came under intense, negative scrutiny.
It is still possible, of course, for reason to sway the deliberations in the Senate, back to that memorable moment in the peace negotiations when the chief government negotiator at the time spoke of the principle of “constitutional flexibility”—the bracing idea that the Constitution was a living document that allows room for legal and legislative creativity. Today, the discussion has reduced itself to the inflexible issue of whether provisions of the BBL (and therefore provisions in the peace accord that form the basis of the proposed law) are constitutional or not.
This is a battlefront where the Aquino administration is at a positional disadvantage. Despite Communications Secretary Herminio Coloma’s challenge to BBL critics to bring the matter to the Supreme Court, the very notion that the BBL will be challenged before the high court can only undermine legislative support for it.
The time has come for the administration to accept the limits of reality, and push for the approval of the proposed law through what we can call the Panganiban formula. Former chief justice Artemio Panganiban has argued in these pages that supporters of the BBL prepare for the fight ahead by also using Congress’ “constitution-amending” function, in addition to discharging its legislative function.
The Panganiban formula may lead to at least three favorable outcomes.
“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… 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.” This outcome assumes that both chambers of Congress will be able to separately constitute themselves as constituent assemblies—a novel idea in the Philippines, but the normal route for constitutional amendments in countries like the United States.
“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.” Admittedly, this is not without its dangers, because Muslims in Mindanao may see in the widening of the scope of the plebiscite yet another source of grievance. But 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, even if the BBL will be implemented by the next administration, and even assuming that the succeeding government is not as committed to the Bangsamoro ideal as the Aquino administration, “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.”
Would that President Aquino consider the Panganiban formula, closely.