Ex-justice warns of Moro state secession

MANILA, Philippines–The future Bangsamoro region, which is vested with so much power on paper, may yet secede from the Philippines, former Supreme Court Justice Vicente Mendoza warned on Monday.

Appearing in a Senate hearing, Mendoza, former Supreme Court Justice Florentino Feliciano and former Sen. Aquilino Pimentel Jr. outlined a host of constitutional issues facing the draft law carving a new Bangsamoro region in Mindanao.

They argued that the proposed Bangsamoro region enjoyed more powers that undermined Philippine sovereignty, was a substate unto itself, and hewed to a parliamentary form under a presidential system.

Hence, the structural changes that the draft Bangsamoro Basic Law (BBL) sought to introduce may require constitutional amendments, they argued.

“A parliamentary form of local government in an otherwise presidential system is an oddity, an anomaly,” Mendoza told the joint hearings of the Senate committees on constitutional amendments, local government and peace.

Miriam Coronel-Ferrer, head of the Philippine panel that negotiated the Bangsamoro deal with the separatist Moro Islamic Liberation Front (MILF), sought to allay any fear of secession and made a strong case for the constitutionality of the BBL that would set up the Bangsamoro region and replace the Autonomous Region in Muslim Mindanao.

The word “substate” was used to describe the Bangsamoro, and meant being part of a state, she said.

“Independence was never on the negotiating agenda of the government. The whole idea of negotiation was precisely to keep the country intact,” she said.

Hearing the arguments, Sen. Miriam Defensor-Santiago, chair of the committee on constitutional amendments, agreed that the proposed BBL could not stand legal scrutiny, and expected it to be questioned in the Supreme Court.

“It’s more than a novel proposition, it’s like Cloud-computing. You know when you sit down before your computer, if you need to know your resources and material, sometimes you reach out to the Cloud if you run out of ideas. I think that’s what happened to the BBL,” she later told reporters.

Self-determination

Mendoza observed that the future Bangsamoro region has a clearly defined territory and people, and a parliamentary form of government, but otherwise possesses “more powers” in the region than the national government.

For instance, the Bangsamoro could contract loans, trade with the Association of Southeast Asian Nations, and receive donations from foreign sources, among a host of others, he said. “These are attributes of a state,” he said.

More interestingly, Senate Bill No. 2408, the Senate version of the proposed BBL, carried the declaration that the Bangsamoro people have the “right to self-determination,” Mendoza said.

“Whereas in the UN (United Nations) charter and other documents, self-determination doesn’t mean external self-determination. It’s been recognized to be limited by a respect for existing government and has been limited to autonomy with respect to local matters, but never external powers that could lead to secession,” he said.

Briefing reporters, Santiago shared Mendoza’s apprehensions.

“There is a big threat of secession staring us in the face. There have been comments during the hearing this morning that what appears to be structured or organized by the BBL is not a mere region of local autonomy as provided by our Constitution,” she said.

Race against time

“The problem of this BBL is that it appears to be going beyond what is listed in the Constitution,” Santiago added.

Ferrer, who hammered out with the MILF the Comprehensive Agreement on the Bangsamoro (CAB), dismissed such fears.

“We are convinced that secession will not happen if we’re able to come together as a country and welcome the establishment of the Bangsamoro through legislation. When that happens, there’s no reason for any group to secede,” she told reporters.

The Senate is racing against time to approve on final reading the draft BBL before adjourning for Lent in March. The government is eyeing its ratification by plebiscite in October so that the Bangsamoro officials could be elected in May 2016.

Feliciano said the Bangsamoro’s “exclusive powers” on agriculture, food security, trade, industry, investments, banking system, education, ancestral domain, among others, were “reductions of the general sovereign authority” of the Philippine government.

“They can’t be taken from the atmosphere. They have to be taken from what exists under our constitutional law. And what exists today is the government of the Republic of the Philippines,” he said.

“If you cut out and designate as exclusive powers and authority, and give that to the Bangsamoro government, you necessarily need to reduce the sum total of the authority vested in the government of the Republic of the Philippines,” he added.

To put the distribution of powers into effect, constitutional amendment is needed, Feliciano said.

Not window-dressing

Feliciano also proposed that the provision that the Bangsamoro shall remain part of the Philippines should be given a “forceful meaning.”

“It’s not a window-dressing measure. In other words, retention within the Republic of the Philippines must be real and not merely verbal in character. That is the problem that we have in understanding both the draft BBL and the comprehensive agreement,” he said.

After Feliciano concluded his statement, Santiago invited the audience to give him a standing ovation.

Teresita Quintos-Deles, presidential adviser on the peace process, said that the draft law did not require constitutional amendment.

“We will also not find a single guarantee for Charter change to accommodate the CAB. The most accurate that can be said is that this agreement recognizes the right of any citizen of the republic, including those who are appointed in the Bangsamoro Transition Commission, to propose amendments to the Supreme Law,” she said.

Incongruous

Pimentel, for his part, said that to allow a part of a country to be governed under a parliamentary form of government when the Constitution had proclaimed that the whole country had adopted the presidential form “would be, to say the least, incongruous.”

Article 4 of the draft BBL states that the Bangsamoro will be parliamentary, but its political system will be democratic, allowing its people to participate in political processes. It also says that the Bangsamoro will adopt an electoral system “suitable to a ministerial form of government.”

Mendoza also pointed to the “lopsided division of powers” between two parties: Bangsamoro has 48 exclusive powers, and Philippine government, eight reserved powers.

“That’s dangerous tinkering with the allocation of powers between national and local government,” he said.

Congress can delegate powers, mostly involving legislation, to the Bangsamoro government, but the draft law “grants them more than these,” Mendoza said.

Mendoza pointed out that the Bangsamoro constituted a substate, but this was not one of the forms authorized by the Constitution such as province, city, municipality, barangay and autonomous region.

“I submit that Congress can’t enact a law providing for any other form of local government,” he said.

“What is the Bangsamoro? It’s not one of those. It is similar to the Commonwealth government before the grant of independence in 1946. As the US Supreme Court noted, the Commonwealth government was sovereign because the US Congress little by little, or step by step, granted greater autonomy and powers to the Commonwealth, retaining what was necessary to check its ascendancy,” he said.

Unjustly demonized

While independence was not mentioned in the draft BBL, it was “studiously avoided” to provide an equivalent of independence, Mendoza said.

“In instances where independence could not be justified, the principles of asymmetrical relationship and subsidiarity are invoked,” he said.

Ferrer said the word substate had been “unjustly demonized.”

“As in any demonized term, waive it like a red flag and people will rail against it. It is almost like the term ‘Moro’—say it and in the minds of many, you generate fear, distrust, suspicion, hate,” she said.

“Such is the unfortunate state of mind that we have inherited from Spanish and American colonial rule. Such hatred has led us to continue to think like the colonials: A good Moro is a dead Moro. Fast forward 100-500 years later: A good susbtate is a dead substate. Unconstitutional! Bang, you’re dead,” she added.

Originally posted: 8:20 PM | Monday, January 26th, 2015

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