Former SC justices differ on Bangsamoro constitutionality

MANILA, Philippines—Two former Supreme Court justices offered clashing opinions on the constitutionality of the proposed Bangsamoro Basic Law, with one saying it could dismember the country, and the other arguing that distinct nations and peoples could coexist within one Philippine state.

At the resumption on Tuesday of the congressional hearings on the draft legislation, former Justice Vicente V. Mendoza cast doubt on the constitutionality of certain provisions of the bill even as he acknowledged its authors’ attempts to conform to the 1987 Constitution.

He raised five points, the first of which was the reference to the Moro autonomous region as the “Bangsamoro territory,” which, based on the definition of “territory” by Black’s Law Dictionary, would imply that it was “a part of a country separated from the rest and subject to a particular jurisdiction.”

Mohagher Iqbal, chief MILF negotiator, and Miriam Coronel-Ferrer, head of the government negotiating panel, exchange copies of the peace agreement between the MILF and the Aquino administration they signed in Malacañang on March 27. LYN RILLON

Separate from PH

“Hence to call the autonomous region in Muslim Mindanao the ‘Bangsamoro territory’ is to consider it a separate part of the Philippines, although under its jurisdiction,” Mendoza told the ad hoc committee on the Bangsamoro Basic Law (BBL) chaired by Cagayan de Oro Rep. Rufus Rodriguez.

He added that the BBL’s recognition of the Bangsamoro’s “right to self determination… to chart their political future” also appeared to reinforce the idea that the Bangsamoro was a separate political entity.

This, he said, is only a little different from the “associative state” called the Bangsamoro Juridical Entity in the Memorandum of Agreement on Ancestral Domain in 1998 that was voided by the Supreme Court for being unconstitutional.

“The dismemberment of the national territory can result from such provisions of the bill,” Mendoza said.

Similarly, he said, the definition of a “Bangsamoro people” in the bill performed basically the same function as the definition of the citizens of a nation or a state in a national constitution.

“Non-Bangsamoro people, although Filipino citizens and residents of the region for the requisite period, can be disqualified from election to the parliament and appointment to the cabinet,” he said.

Exclusive powers questioned

The creation of a parliamentary Bangsamoro government in the bill is also contrary to the Constitution, which states that the government of autonomous regions shall consist of an executive department and legislative assembly, he said.

Mendoza also questioned why the BBL would give extensive “exclusive” powers to the Bangsamoro government, while the central government was limited to only nine reserved powers and 14 concurrent ones.

Finally, he wondered about the concept of an “asymmetric relationship” between the Bangsamoro and the central government introduced by the BBL proponents.

“The question is precisely whether the bill is not contrary to the Constitution because of such a relationship between the two governments,” he said.

Mendoza said such a relationship could not justify the unconstitutional provisions of the bill.

PH will be intact

But another former justice of the Supreme Court, Adolf Azcuna, did not agree with most of Mendoza’s observations.

Although he shared Mendoza’s concerns about the Bangsamoro territory, he said Article 1 of the BBL sufficiently defined it and indicated that the Bangsamoro would remain part of the Philippines and not separate from the Philippine territory under the Constitution.

“This provision is valid. There shall be no dismemberment of country involved,” Azcuna said.

He said “Bangsamoro” basically meant the “nation of the Moro.”

“You can have a state with different nations… in the US, you have several nations. It is therefore possible for us in search of identity to have several peoples and nations,” he said.

Azcuna defended the idea of an asymmetric relationship between the national government and the Bangsamoro entity as that would recognize the Bangsamoro as “a distinct people,” and the Bangsamoro as a “nation within the Philippine state.”

He said the setup of states and the federal government in the United States was different from the one between the Bangsamoro and the central government.

“In the US, states retain their powers unless it’s given to the central government… they retain unspecified powers. In our setup, unspecified powers are retained by central government,” he said.

He admitted that his interpretation of the BBL involved “thinking outside the box.”

“A substate does not have to be a mirror image, as long as parameters with the Constitution are followed,” Azcuna said.

Amend the Charter

Commenting on the comments of the two former justices, Rodriguez said he appreciated listening to two distinct views that were “equally correct.”

Another guest, former University of the Philippines president Jose V. Abueva, an advocate of a parliamentary form of government, suggested that the goals of the BBL trumped the constitutional questions.

“Amend the Constitution if we must,” he said.

Abueva said reading the BBL was “very, very inviting, very humbling, very gratifying and most hopeful.” He described it as a “masterpiece in peacemaking and basic institutional reform towards the establishment of the Bangsamoro.”

RELATED STORIES

Body to resolve power issues on Bangsamoro

IPs protected in Bangsamoro, says lawmaker 

Ex-SC justices, legal experts set to give views on Bangsamoro law