Avoid creating coexisting autonomous regions

I wish to add my two cents’ worth to the news item, “Koko has misgivings on new BBL” (9/17/17), where Senate President Aquilino Pimentel III is reported to have raised concerns on the latest draft of the proposed Bangsamoro Basic Law (BBL).

According to him, the draft retained questionable provisions in the earlier version of the bill that failed to pass during the Aquino administration. I, too, have my own serious misgivings about the constitutionality of the proposed BBL triggered by its core provision setting up a Bangsamoro Autonomous Region in Mindanao to replace the existing Autonomous Region in Muslim Mindanao (ARMM).

It is beyond dispute that the ARMM is a constitutional creation by virtue of the 1987 Constitution which, for the first time, included a separate segment titled “Autonomous Regions” as a salient feature of its Article X on local government. Notably, Section 1 of said article provides that “There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided” under Section 15 of the sub-article on autonomous regions mandating that “There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras…”

Clearly then, the 1987 Constitution intended to create only two autonomous regions, one in Muslim Mindanao and another in the Cordilleras. It does not proceed to encompass such other autonomous regions as may be established by law in addition to the two specific autonomous regions already created therein. No other autonomous region is contemplated. Expressio unius est exclusio alterius (express mention of one thing excludes all others).

To be sure, the Bangsamoro which is purported to be a new autonomous region in Mindanao, is beyond the ambit of the 1987 Constitution. Its creation via the BBL is bereft of constitutional underpinning. Nor has it any constitutional imprimatur or recognition. Its omission from among the autonomous regions specifically created under Section 15 of Article X of the 1987 Constitution is, I suppose, deliberate. Not being constitutionally authorized, the BBL may well be likened to a still-born infant.

Judged by the explicit language of the 1987 Constitution, it is indubitable that the ARMM is a constitutional creation. It exists by virtue of the Constitution; its creation is authorized by the Constitution itself; it draws its life from the Constitution which is its raison d’etre.

Every lawyer worth his salt should know that a constitutional creation can be validly abolished or dismantled only by the Constitution itself through an amendment, not by mere legislation. It is axiomatic that only the Constitution can destroy (uncreate) what it has installed (created). An ordinary law enacted for the purpose, such as the BBL, would be a “no-no” in the realm of Constitutional Law. As I see it, this is the constitutional obstacle to the passage of the proposed BBL which is not being crafted as a constitutional amendment. The plebiscite to be held is aimed at ratifying the law. It is not the plebiscite held to ratify proposed constitutional amendments.

It bears emphasis that being an ordinary piece of legislation, the proposed BBL is legally incapable of dismantling the ARMM. Its proposal to do away with the ARMM, which is now branded as the “erstwhile ARMM,” and replace it with the new Bangsamoro Autonomous Region would be an unfortunate exercise in futility. Enacting the BBL would be, per se, constitutionally flawed. It would be an egregious error on the part of Congress to bypass the 1987 Constitution toward that end.

In the case of the ARMM’s Organic Law, the 1987 Constitution contains an enabling provision authorizing its passage precisely to implement and give flesh to the constitutional mandate to create the ARMM. No such enabling provision is found in the 1987 Constitution that would empower Congress to enact the BBL. Without such constitutional foundation, the BBL would be devoid of any legal force and effect. As such, it may not pass the test of constitutionality. On this score alone, the proposed BBL may well be slain in sight and struck down outright as repugnant to the Constitution and, hence, nulo e inexistente.

My concern is that if the proposed BBL is not purged of its taint of unconstitutionality, the implications would be frightening. I dread to even imagine that the Bangsamoro Autonomous Region would exist under an unconstitutional law. Its operations and functions would suffer the vice of nullity for being the fruits of a poisonous tree.

It is, thus, imperative that since the intention of the proposed BBL is to abolish the ARMM, a constitutional amendment to that end is indispensable. Indeed, if only to avoid unconstitutionality, Congress should convene itself as a constituent assembly and initiate a proposed constitutional amendment that would consist simply in adding a second paragraph to Section 15 of Article X of the 1997 Constitution reading as follows:

’’THE AUTONOMOUS REGIONS HEREIN CREATED MAY BE REPLACED OR RESTRUCTURED BY SUCH OTHER AUTONOMOUS REGIONS AS MAY BE ESTABLISHED BY LAW WITHIN THE FRAMEWORK OF THIS CONSTITUTION.”

Unless so amended, the provision on “Autonomous Regions” in Article X of the 1987 Constitution would remain embedded therein in its present format. More specifically, the ARMM created therein would technically continue to exist in tandem with the Bangsamoro Autonomous Region. It would technically remain extant. Then, we would be witness to the sorry spectacle of coexisting autonomous regions in Muslim Mindanao. Chaos and confusion would reign. Governance in Mindanao would be severely impaired. It would be placed in serious jeopardy. Public services might be prejudiced. The national government would be in a bind. The looming scenario would be intolerable. Ironically, peace in Mindanao would likely remain elusive, a dream unfulfilled.

BARTOLOME C. FERNANDEZ JR., retired senior commissioner, Commission on Audit