Three vital references for BBL

In “North Cotabato vs Government” (Oct. 14, 2008), the Supreme Court struck down the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government and the Moro Islamic Liberation Front (MILF) and declared unconstitutional the underlying “associative” relationship between the government and the Bangsamoro Juridical Entity.

Exclusive and distinct. As I explained last Sunday, although the proposed Bangsamoro Basic Law (BBL) changed the word “associative” to “asymmetric,” still the MILF’s lofty aspiration for self-determination remains unchanged.

Notably, the MILF’s chief negotiator for the old MOA-AD and for the new Comprehensive Agreement on the Bangsamoro (CAB) upon which the BBL is anchored is one and the same person: Mohagher Iqbal. And the MILF’s chair to whom Iqbal reports is also the same: Al Haj Murad Ebrahim. Understandably then, their common dream for self-rule remains the same, even though worded differently and the implementing details watered down.

The MILF’s aspiration for self-rule, by the very terms of the BBL, is exclusive to the Bangsamoro only, and distinct from any self-governance given by our Constitution to any local government unit. It goes far beyond what has been granted to the Autonomous Region in Muslim Mindanao, or to any province, city or town.

However, the Court’s decision is emphatic in clarity: Any law that dilutes, restricts, equivocates or degrades any power or authority granted by the Charter to any of the three branches of government (executive, legislative or judicial) or to any independent agency (Commission on Elections, Office of the Ombudsman, Commission on Audit, Civil Service Commission and Commission on Human Rights), especially those that involve the sovereignty and territorial integrity of our country, would be unconstitutional.

Will SC change ruling? Given that only four of the original 15 Supreme Court justices who decided the North Cotabato case are still sitting now, and given the utter importance of peace to our country, is there a chance that the Court may change its mind and uphold the BBL in its present form?

I do not think so. The Constitution is the singular deity of the Court. It is the Court’s raison d’être. The justices are its high priests and zealous guardians, who are ever ready to strike down anything that desecrates and defiles it directly or indirectly, immediately or remotely. For without the Constitution, the Supreme Court is nothing.

Despite changes in its composition, the Supreme Court is a continuing entity that rarely reverses or modifies landmark decisions that are protective of the Constitution. Though the decision writer, Justice Conchita Carpio Morales, has retired from the Court, the current most senior justice, Antonio T. Carpio, wrote a concurring opinion that found more constitutional objections than the decision itself.

True, the three other still-sitting justices, Presbitero J. Velasco Jr., Teresita J. Leonardo-de Castro and Arturo D. Brion, wrote dissenting opinions. However, their dissents were not so much on the substantive issue of constitutionality as on the procedural questions of mootness and prematurity of the petitions challenging the MOA-AD.

The three jurists opined that the case was mooted after then President Gloria Macapagal-Arroyo advised the Court that the MOA-AD would no longer be signed and that she had dissolved the government negotiating panel. Thus, it was pointless to discuss its constitutionality.

On the other hand, Justice Carpio unflinchingly declared unconstitutional not only the underlying “associative” concept but, quite significantly, also 36 specific provisions of the MOA-AD, the shadows of which can be gleaned in the BBL.

CJ Sereno’s position. Although not a member of the Court when the North Cotabato case was decided, Chief Justice Maria Lourdes P. A. Sereno, nonetheless, participated in the controversy as counsel for Sen. (now Senate President) Franklin M. Drilon, who was an intervenor.

Her 72-page memorandum was a brilliant defense of the Constitution and veritable source of her mindset on the conduct of peace negotiations. She detailed “the constitutional violations … [that] eroded the sovereignty of the Republic of the Philippines …, split its national identity … [and] created a state within a state—a concept alien and antithetical to the one sovereign nation embodied in the Constitution.”

At bottom, I believe that before enacting the BBL, Congress would be well-advised to ingest very well three vital documents: (1) the North Cotabato decision; (2) the concurring opinion of Justice Carpio, and (3) the memorandum of then Attorney Sereno.

In past columns, I strongly supported the peace process. And I still do. I know that our peace panel worked long and hard to address sensitive issues. Together with its MILF counterpart, the panel succeeded in producing the CAB without any judicial interference, unlike the MOA-AD which did not even see the light of day because its signing was struck down by a temporary restraining order (TRO) of the Supreme Court.

This time around, the Court did not intervene midstream despite the filing of petitions to stop the CAB. This time, the Court did not issue a TRO. How ironic it would be if, despite the lessons taught by the North Cotabato decision, the stirring opinion of Justice Carpio and the cogent arguments of CJ Sereno, Congress would still enact a constitutionally-defective BBL.

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