Sunday, May 24, 2015

Philippines In search of a final option in Mindanao

At the rate President B. S. Aquino 3rd is rushing Congress, against all known standards of decency, to create an Is-lamic enclave in Mindanao for the Moro Islamic Liberation Front, the swarm of pork-driven legislators supporting the proposed Bangsamoro Basic Law (Babala) could soon outnumber the MILF mujaheedin who may be willing to kill for it.


Last week, the House ad hoc committee chaired by Cagayan de Oro Congressman Rufus Rodriguez endorsed the Malacañang draft of the proposed Babala without any extended debate. After assuring the public that he would unleash a number of non-negotiable amendments, the chair made sure that no major amendment was put.

After two meetings with Aquino, the congressmen set aside the most serious sovereignty and territorial issues, and turned their backs on the memory of the 44 Special Action Force police commandos who were massacred by the MILF and the Bangsamoro Islamic Freedom Fighters at Mamasapano, Maguindanao on Jan. 25, 2015 while try-ing to capture three international terrorists.

A militant group has accused Aquino and the House panel of treachery and treason, the former for bribing the lawmakers, and the latter for allowing themselves to be bought. Sources inside Congress spoke of cold cash, rather than SAROs.

Yesterday, at the Luneta, some protesters tried to reignite the demand for Aquino’s “resignation,” and the aboli-tion of Congress. We saw this demand peak after the Philippine National Police and the two Houses of Congress failed to show Aquino’s accountability for the death of the 44 commandos who were denied military reinforce-ment. But it began to cool after Cardinal Archbishop Luis Antonio Tagle of Manila told an ABS-CBN TV interview in London that there was no need for Aquino to step down, because we had only a little over a year to suffer his bullheadedness and incompetence.

This was echoed by some well-meaning but naïve people, who thought that having committed so many mischiefs during the last four years, Aquino may no longer want to commit more mischief during his last year in office. It did not occur to them that he needed just one day to inflict grave injury upon the sovereignty and territorial integrity of the Republic. So with just one MILF bill, he has managed to threaten the balkanization of the Philippines.

This is not yet done. The Bangsamoro Basic Law Bill (Bababa) is not yet a Babala, contrary to the clever propaganda, which nearly everyone has managed to ingest. But it now seems unstoppable like a runaway train. Malacañang has imposed a deadline, and the congressmen and senators are under instructions to pass it before June 12. Only Sen. Bongbong Marcos, chairman of the local government committee, has had the courage to say he will not be dictat-ed upon by Malacañang.

House Bill 4994 has been powdered but not washed, and therefore not cleaned of its unconstitutional provisions. We shall discuss some of the most obvious cases here.

A nation within a nation
1. The use of the word Bangsamoro. Bangsa is a Malay or Bahasa word for “nation.” Does the creation of a Bang-samoro political entity mean the creation of a nation within a nation?

In response to the intense public criticism, the bill’s short title has been changed from “Bangsamoro Basic Law” to “Basic Law of the Bangsamoro Autonomous Region.” Everywhere else in the document, however, the term “Bang-samoro” remains untouched. Article II defines “Bangsamoro identity” as follows:

“Section 1. Bangsamoro People—Those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and their adjacent islands including Palawan and their descendants, whether of mixed or of full blood, shall have the right to identify themselves as Bangsamoro by as-cription or self-ascription. Spouses and their descendants are classified as Bangsamoro.”

This creates a citizenship for those coming from a certain part of the country, separate and distinct from that of Filipino, which is the nationality of all citizens of the Philippines.

If the Bangsamoro people say they are also Filipinos, then the provision should have been written to read like this:

“Section 1. Bangsamoro People. Citizens of the Philippines whose ancestors were considered natives or original inhabitants of Mindanao and the Sulu archipelago and their adjacent islands including Palawan, at the time of con-quest or colonization, whether of mixed or of full blood, shall have the right to identify themselves as Bangsamoro by ascription or self-ascription. Spouses and their descendants are classified as Bangsamoro.”

Now, the national language of the Philippines is Filipino. Our laws are normally written in English, seldom if ever in Filipino. What is the reason for using a word in Bahasa, without sufficiently explaining its full meaning and the need for its usage? Is it in preparation for the Bangsamoro’s eventual union with, or incorporation into, Malaysia?

2. The creation of a Bangsamoro parliamentary government underlines the existence of a state or substate sepa-rate and distinct from the Republic of the Philippines. The Bangsamoro parliamentary government as part of the presidential government of the Philippine government creates not only a political incongruity, but a patent consti-tutional anomaly. Assuming this situation can survive the problem of political aesthetics, it cannot possibly survive the test of constitutionality. Were this political hybrid permissible, only the Constitution, not a mere act of Con-gress, could allow it.

Philippine president cannot countermand the Chief Minister
The problem assumes real life in Sec 34, Article VII of the Bababa. This provides: “Sec. 34. Call for a New Bangsamo-ro Parliament Election. — Within seventy-two (72) hours upon a two-thirds (2/3) vote of no confidence of all members of Parliament against the government of the day, the Chief Minister shall advise the President of the Republic of the Philippines to dissolve the Parliament and call for a new parliamentary election. In no case shall the President of the Republic of the Philippines countermand the advice of the Chief Minister.”

This is normal in a parliamentary system. The power to dissolve parliament normally resides in the sovereign, like the Queen of England in the case of Britain. Now were this power to be given to the President of the Philippines, this should be done by the Constitution, not by a mere act of Congress. No mere law should be able to tell the President that he cannot countermand the advice of the Chief Minister to dissolve parliament; this has to be an express mandate of the Constitution.

There are at least two instances in the Constitution when the President may not countermand a decision of Con-gress. First, when Congress overrides the President’s veto on a bill, by a vote of two-thirds of the two Houses of Congress, voting separately. And second, when the Congress, voting jointly, by a vote of at least a Majority of all its Members in regular or special session, revokes the President’s proclamation of martial law or suspension of the privilege of the writ of habeas corpus. In both instances, it is the Constitution, not a mere act of Congress, that says so. Clearly, only the Constitution can create a parliamentary government by itself, or within a presidential govern-ment, or grant the President the power to dissolve parliament.

3. But isn’t the “Basic Law of the Bangsamoro Autonomous Region” a Constitution instead of a mere statute?

As an implementing measure of the Comprehensive Agreement on the Bangsamoro (CAB) between the MILF and the Aquino government, it is supposed to be no more than an act of Congress. But as written, it purports to be a Constitution. The term “Basic Law” is used in lieu of “Constitution” in the Federal Republic of Germany, the Hong Kong Basic Law, Basic Laws of Israel, Macau Basic Law, Basic Law of Saudi Arabia, Basic Law for the Palestinian Na-tional Authority.

House Bill 4994 reads more like a draft constitution than a statute. It begins with a four paragraph Preamble, the first paragraph of which reads: “We, the Bangsamoro people, the non-Moro indigenous peoples, Christian settlers, and the other inhabitants of the Bangsamoro Autonomous Region, imploring the aid of the Almighty God, aspiring to establish an enduring peace on the basis of justice in our communities and a justly balanced society, and assert-ing our right to conserve and develop our patrimony;”

The first lines show that it is the inhabitants of the Bangsamoro Autonomous Region who are legislating this docu-ment, through Congress, and what is being legislated is a constitution, not a mere statute. If so, this would have to be approved by a vote of at least three-fourths of all the members of the two Houses of Congress, voting sepa-rately. As soon as it is approved by Congress, it would have to be submitted to a national plebiscite involving the entire electorate. All pursuant to the Constitution. And yet none of this is being discussed in Congress.

The substate’s expansion will be easy
4. One provision that frightens some Mindanaoans is that which allows the inclusion of any area contiguous to the Bangsamoro geographical area, on the basis of a resolution by a local government unit or a petition by at least 10 percent of the registered voters in the affected area. By sheer political manipulation, a population that is totally against the BAR today could find itself part of it the next day just because the LGU administration has decided to opt for it, or because the inward migration of Islamic settlers has allowed 10 percent of the altered population to opt for it. At the same time, there is no opting out of BAR once one has become part of it.

But aside from all of the above, one major objection from those primarily concerned with peace and order is that the rush to enact a Basic Law for BAR is not accompanied or matched by any effort on the part of the MILF to dis-arm, demobilize and reintegrate into the peace-loving mainstream. There is genuine concern that the MILF armed forces would be left standing, even after the Bababa shall have become the Babala. We could end up holding an empty bag. This has to be averted.

I would seriously propose that even as we challenge the constitutionality of the various provisions, the govern-ment should insist on one absolutely necessary amendment to the Babala. Assuming the bill passes Congress and the test of constitutionality, it should take effect only upon completion of the decommissioning and disarmament of the MILF forces and their reintegration into the political mainstream, and upon signing of the “Exit Document” by the MILF and the government. The MILF could jumpstart this process by giving back the weapons they had con-fiscated from the fallen SAF 44 in Mamasapano, without our having to buy them back, and by turning over to the government justice system the MILF fighters who had slaughtered the SAF 44.

Should the Bababa express train prevent a purging of all its constitutional defects, we should immediately ask the Supreme Court to strike it down. But in the opinion of lawyers like Manuel “Lolong” Lazaro of Philconsa, the Cam-bridge-trained Jemy Gatdula of the University of Asia and the Pacific, our good friend Manuelito Luna, and many others, it is best to ask the High Court to declare the Bababa’s mother document, the CAB, unconstitutional now, just as it declared its predecessor, GMA’s Memorandum of Agreement on the Ancestral Domain, unconstitutional.

Our final option must be better than this one, but we may have to do this before that one. by FRANCISCO S. TATAD

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