18.11.14

Submission to the Ad Hoc Committee on the Bangsamoro Basic Law, House of Representatives Congress, 18 November 2014

AD HOC COMMITTEE
ON THE BANGSAMORO BASIC LAW
House of Representatives
Congress, Manila

Sirs,

This is with regard to the deliberations on House Bill No. 4994.

With a deliberate intention of not replicating what I expect have been discussed previously before this body, I limit this submission and focus on certain remaining key points.[1] Essentially, what I would like to say is this:
  • Discussions on the Bangsamoro Basic Law have, respectfully, served as a distraction from the actual issue: the constitutionality of the Comprehensive Agreement on the Bangsamoro. Whatever draft the outcome of these deliberations may be on the BBL, the same would be futile as ultimately the arbiter of the BBL’s effectiveness would not be the Constitution but rather the CAB;
  • Having said that, it is respectfully the duty of the Congress to legislate constitutional laws and laws that are not in the nature of a “grave abuse of discretion”. It is submitted that the BBL does not satisfy this standard, their being other possible solutions available to address the concerns faced by our brothers in the South and in a manner that does not discriminate against other citizens.
I would now expound on these two points, as briefly as possible:


CAB as International document

The subject proceedings before the House of Representatives have to do with House Bill No. 4994, popularly identified in the media as the Bangsamoro Basic Law. The declarations made in relation thereto are that the planned BBL could “fix” or “cure” any possible or alleged infirmities in the CAB. It is submitted that such is not the case.

Firstly, the BBL cannot “fix” (amend) the express provisions of the CAB, and, finally, the BBL is only applicable to those who admit themselves Filipinos and subject to the Constitution.

It is in the nature of international agreements that they are not to be thwarted by local laws (including the Constitution).[2] As to the latter part, the same is brought about by the ambiguities relating to the nature of the identity of the Bangsamoro vis-à-vis the Philippines and the fact that the Constitution itself was mentioned only once in the CAB and only for purposes of saying that it is to be amended.

The fact is, the government, by agreeing to terms in the CAB like “armed conflict”, “self-governance”, “combatants”, the “justness” and “legitimacy” of the “cause of the Bangsamoro”, “internal waters”, “core territories”, and the unwitting use of the term “self-determination” (which essentially under international law is akin to “secession”)[3], and the participation of other States in the process (e.g., Malaysia) has arguably elevated the CAB to the level of an international instrument.

Malaysia’s “witnessing” of the CAB is a definite eccentric development in this matter.[4] It further bolsters the contention of the internationalization of the CAB and also raises questions of prudence: Malaysia, after all, is contesting our ownership of Sabah.

One interesting matter is the Department of Foreign Affair’s leading role in this issue. After all, the matter of autonomous governments has always been within the purview of the Department of the Interior and Local Governments.[5] There was no reason why the same was not done in the matter of the Bangsamoro. The foregoing is not merely an administrative question. It actually signals how the government sees the nature of this issue. As it is, the DFA’s participation strengthens the possible claim that the CAB is an internationalized document and issue.

Bottomline: whether or not the BBL is constitutional may, at present context, be ultimately irrelevant. If it is constitutional, it will still (by the express provisions of the BBL) have to be read within the context of the CAB’s doubtful constitutionality. Its effectiveness also becomes doubtful. If the BBL is not constitutional, then that situation speaks for itself.


Statehood and unconstitutionality

Focusing then on the CAB, the biggest issue (at least to my mind) is the fact that it actually created a new State.

It is to be noted, as an aside, that the CAB imposes on Filipinos a “peace” under a very specific set of conditions that does not require conformity to the dictates of our Constitution. It is a “peace” that demands we acquiesce to the notion of certain “hurts” allegedly inflicted by our Republic. This is to forget that the Muslims contemplated part of the Bangsamoro have freely participated in the democratic process and thus share responsibility for any development (or lack thereof) in this country.

In any event, that the Bangsamoro is geared towards Statehood independent of the Philippines is palpable. One sees that in Article I.5 of the Framework Agreement on the Bangsamoro (which forms an integral part of the CAB), the Bangsamoro getting their wish that their continued insistence of the quite discredited (under international law) “First Nation” argument be acknowledged in an official instrument.

And as I have pointed out in other venues, it can be argued – by anyone inclined to do so – that all four elements of a State[6] have been granted to the Bangsamoro. That it has the elements of “people” and “government” are seen from the provisions of Arts. 1.1, I.2 and 1.5 of the Framework Agreement. That it has the element of “territory” are seen from the provisions of Article I, as well as Article V, particularly Article V.1. That the fourth and final element (“the capacity to enter into relations with other States”) is also already acquired by the Bangsamoro can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement, example of which is that the Bangsamoro has “the power to enter into economic agreements.”[7]

The Bangsamoro, furthermore, has been granted all the powers of a State: police powers[8], taxation, and eminent domain. It even has its own executive, legislative, and judicial branches of government.[9] At this point, for the Philippines to refuse “recognition” is inutile. The fact that it’s provided for under the Agreements that the Bangsamoro and the Philippine government has an “asymmetric” relationship means nothing.

Thus, as of 27 March 2014, all the Bangsamoro needs to do is declare that they are a new State. No recognition is required from other States (as recognition is not an element for Statehood). And even then, at least for political reasons, it is not farfetched to believe that the countries thanked in the “Acknowledgement” portion of the Comprehensive Agreement would readily give that recognition.

Accordingly, it is submitted that the provisions of the CAB, supplemented by certain provisions in the BBL, have utterly laid futile any determination on the propriety and constitutionality of the BBL. They key really is to determine the CAB’s constitutionality and as long as it exists in its present form, then a palpable detriment to Philippine interests remain that a BBL will not be able to solve.


Constitutionalism as duty of all

At the outset and this time looking at the constitutionality of both the CAB and the BBL, it must be emphasized that Article VIII Section 1 of the 1987 Constitution has broadened the scope of judicial review. Traditionally, constitutional theory has distinguished between political and justiciable questions. Political questions refer to questions of policy, “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government”.[10]  In other words, a political question is a question regarding the wisdom, not the legality, of a particular measure.[11]

However, while this doctrine still holds, the scope of justiciable questions has expanded with the adoption of Article VIII, Section 1 of the 1987 Constitution, which defines judicial power as “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.” (Underscoring supplied.)

“Grave abuse of discretion” is frequently defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction."[12] In addition, explanations of the concept of “grave abuse of discretion” frequently state that, “[t]he abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.”[13]

The foregoing also must be accomplished with the directive of the Constitution, that the State must “promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under a rule of law and a regime of truth, justice, freedom, love, equality, and peace.”[14]

The point here is that the mandate given to the Supreme Court also results in the logical corollary duty on the legislature: that the broad discretion that the legislature enjoys in enacting laws is not absolute but must follow, among others, such standards on legislation being “sound”, fair, and reasonable.

Equally importantly, constitutional law, properly understood, does not give to the Supreme Court the exclusive power to determine the constitutionality of an issue. It is not meet or proper that the other branches of government pass such questions to the Supreme Court. The questions of constitutionality is something that must be addressed and answered by all. And Congress is certainly authorized, empowered, and mandated to pass only legislation that in its rightful use of judgment is in compliance with our Constitution.


Unequal treatment

The CAB and BBL does not serve consistency and serves as bad precedent.

Government and others’ numbers peg our indigenous peoples’ population to be between 14 to 17 million. In any event, the numbers, whatever they may be, they constitute a far bigger group than the Muslims (around a mere 5%). Although the latter is indeed more concentrated in the South, nevertheless, again in scope of territory claimed (by way of ancestral domain or ancestral lands), indigenous peoples would account for around 20% of the total land area of the Philippines.

Hence, there’s the issue of consistency and of precedence. Inasmuch as indigenous peoples have a far larger population, claim a bigger land area, have consistently proclaimed their being of the Philippines and that they are proudly Filipinos, and – most importantly – have been quite peaceful in their advocacy for better rights and contented themselves with resorting to our legal system, then the indigenous peoples have been given short shrift indeed.


Living and originalist constitutional readings

A short word on how some tried to justify the Bangsamoro agreements and draft law by advocating for a more 'flexible' reading of the Constitution. Their position is that the words of the Constitution should be interpreted "liberally" (actually loosely) to fit the policy advocacy of the present. This is representative of the “living constitution” theory so beloved by the "progressive" left.

But ultimately, it is just that: a theory. Which upon closer inspection makes no sense when one considers how carefully words are considered during the Constitutional Commission process and the fact that we have amendatory provisions in the Constitution. Put another way, if one can interpret the Constitution any which way one wants, then whats the point of having an amendatory provision?

In that regard, to give a further point against the “living constitution” reading, it must also be pointed out that both the CAB and BBL expressly ask for the amendment of the Constitution should the former be seen not to comply with the latter. Such a provision would hardly be necessary if indeed anyone believes (particularly those who negotiated the CAB) that the Constitution can be read in such a flexible manner as to justify the CAB/BBL.

University of Navarre trained law expert Cristina Montes explains the matter more directly: “With all due respect, this mentality towards the constitution is flawed and dangerous. First, it assumes that only lawyers have the duty to uphold the constitution. Second, it forgets that the Constitution has been enacted precisely by ‘the sovereign Filipino peopleto define and limit the exercise of the fundamental powers of government. The flexible reading of the Constitution that the said legal expert espouses could justify exercises of government powers beyond the limits imposed by the Constitution, and thus could spiral into tyranny or anarchy. This would defeat the purpose for enacting a written constitution in the first place.”

Furthermore, as Ms. Montes explains: the “comparison of the situation of the Muslim population in the Philippines with slavery and apartheid is off-base. The situation of the Muslim population in the Philippines is a far cry from that of the blacks under the regimes of slavery and apartheid. The Muslims in the Philippines enjoy the same rights as other citizens under the Constitution, including freedom of religion and equal protection of law.

The Sharia courts are part of the Philippine judicial system, and Congress enacted the Muslim Code of Personal Laws to accommodate their unique religious customs. The Constitution even provides for the creation of an autonomous region in Muslim Mindanao. No other religious group in the Philippines enjoys governmental protection to that extent. The issue is not whether or not the rights of the Muslims in the Philippines are to be upheld, but rather, whether they have a right to secede from the Republic of the Philippines and establish their own Islamic state.”[15]

The point here is this: the provisions of our Constitution have been carefully worded and deliberately so. It has been done to amply consider our past and account for the foreseeable future. Its words are to be respected and not disregarded cavalierly. If indeed the provisions of the Constitution do not meet the exigencies of the time, the remedy is to follow the amendatory procedures outlined therein and not to merely stretch the Constitution’s words and make believe that its words can mean anything. That path, the latter path, leads to despotism.


Other possible solutions

To support the creation of the planned Bangsamoro, the Bangsamoro Development Plan (BDP) was conceptualized as a “comprehensive roadmap for the social recovery and rehabilitation of the Bangsamoro.” It was “tasked by the MILF Central Committee on March 22, 2012” and is supposed to “address the underlying sources of conflict in the region through the strengthening of institutions, provision of equitable access to social services and jobs and livelihood; and the establishment of citizen security, stability and rule of law. All these to promote and lead to the eventual realization of a just, peaceful and prosperous Bangsamoro.”

Incidentally, the European Union pledged on Wednesday to provide at least 5 million euro worth of assistance by next year to implement the Bangsamoro Development Plan (BDP).[16] The Australian ambassador, on the other hand, hailed the BDP as “a key milestone to lasting peace and prosperity in Mindanao.”[17] Meanwhile, the Japan International Cooperation Agency looks “forward to the plan’s sound implementation to help Mindanao and its people realize the impact of peace and development in their lives.”[18]

This is interesting when you consider that most Filipinos haven’t even seen the BDP.[19]

And which also raises this question: why is it necessary for there to be a Bangsamoro before a development plan appreciated by many is made?

With all the constitutional and political concerns surrounding the CAB and BBL, perhaps it may be a good time to review the Brunei Darussalam-Indonesia-Malaysia-the Philippines East ASEAN Growth Area, otherwise known as the BIMP-EAGA.

The BIMP-EAGA was a project started during the presidency of Fidel Ramos and had for its objectives “increased intra- and extra-trade among EAGA focus areas; increased investments in the EAGA subregion by 10%, and increased tourism arrivals in the EAGA subregion.” One of its defining characteristics is a strong working relationship between the private and public sectors. And according to most accounts, it worked.

In its early days, the BIMP-EAGA made gains in the area of transportation (both for goods and people), telecommunications, and tourism. The latter had the collateral effect of raising awareness in the region, thus giving strong potential to investment.

From the Philippine perspective, the problem is that succeeding administrations have paid merely lip service to this project. Surely, there were recent government nods to a “regional and international cooperation”, as well as the Davao City-General Santos City-Tahuna-Bitung sea route. But the latter is more of a private sector initiative than anything else.

The fact is, we already have a constitutionally approved autonomous system in place in that area and that is the Autonomous Region in Muslim Mindanao (ARMM). And most of ARMM’s problems are traceable to the economic, more than anything else. Despite its wealth in resources, it remains a quite impoverished area, with a per capita gross regional domestic product around 70% below that of the national average. Ironically, ARMM depends on the national government for a huge bulk of its revenue needs. And yet that is what the BIMP-EAGA was designed to solve.

The BIMP-EAGA is certainly a more palatable, mature route than the CAB’s “peace” made up of conditions that fail to conform to the dictates of our Constitution. And most damningly, it is a “peace” that demands the Philippines meekly submit to the accusation that it indeed inflicted “hurts” on Muslims.

Just to be clear: this submission does not say that the BIMP-EAGA can solve the concerns that the CAB/BBL purportedly seeks to solve. No. It was merely stated here to serve as an example that there are other possible solutions, developmental mechanisms, that could be done without resorting to the CAB/BBL and that such could be done within the present legal framework.

Or to be more succinct, the fact that the CAB/BBL seems to present a consistency problem vis-à-vis indigenous peoples, serves as bad precedent, and that with all the constitutional issues laid against it and yet with there being other possible and less controversial solutions that could be explored, then an insistence on the CAB/BBL seems to be fairly imprudent and a grave abuse of discretion.


- - in sum - -

The real issue before us is not the Bangsamoro Basic Law but rather the constitutionality of the Comprehensive Agreement on the Bangsamoro. Whatever outcome may be of the BBL, the same would be futile as ultimately the arbiter of its effectiveness is not be the Constitution but rather the CAB. As long as the CAB exists in its present form, then a palpable detriment to Philippine interests remain that a BBL will not be able to solve. Nevertheless, having said that, it is respectfully the duty of the Congress to legislate constitutional laws and laws that are not in the nature of a “grave abuse of discretion”. It is submitted that the BBL does not satisfy this standard, their being other solutions available to address the concerns faced by our brothers in the South and in a manner that does not discriminate against other citizens.

Very truly yours,



JEREMY I. GATDULA




[1] Details of the previous hearing on this matter can be seen here http://www.manilatimes.net/former-sc-justice-says-bbl-illegal/137648/
[2] See Handbook of International Law by Anthony Aust (Cambridge University Press, 2005, p.79): “Treaty law and domestic law operate on different legal levels. Treaty law creates rights and obligations binding on states and other international legal persons.”
[3] Briefly put, self-determination is a right that gained wide recognition under international law only insofar as regard colonial peoples. It is essentially a right against colonialism and foreign military occupation. It does not give license to secession. In the 1975 Advisory Opinion in the Western Sahara Case, the International Court of Justice, taking note of General Assembly Resolution No. 2625, declared that self-determination could be exercised in the following ways: a) by asserting oneself as an independent State, b) by associating freely with another independent State, or c) integrating with an already existing independent State. It is therefore well worth pointing out that the right to self-determination would not necessitate the entity allowed under international law to assert such right to becoming an independent State.
This right to self-determination could be found in Articles 1.2 and 55 of the United Nations Charter, as well as common Article 1 of the two 1966 Covenants of Human Rights. The right could also be found in several General Assembly Resolutions, such as the abovementioned GAR 2625, as well as GAR 1514 of 1960 (or The Declaration on the Granting of Independence to Colonial Territories and Peoples). It must be emphasized that such Resolution pointedly states: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”
Admittedly, in a certain limited sense, the right to self-determination could be seen as a right for certain racial groups to claim equal and full access to government. However, that is as far as it goes. Insofar as cultural, religious, ethnic, or linguistic minorities are concerned, no general rights under the ambit of self-determination is applicable to them.
[5] With regard to Native American issues, the same is under the US’ Department of the Interior. For a time, the Northern Ireland issue was under the purview of the UK’s Home Office.
[6] As normally considered under the formulation of Article 1 of the 1933 of the Montevideo Convention.
[7] See International Law by Malcolm Shaw, Fifth Edition, Cambridge University Press, p.181: “The capacity to enter into relations with other states is an aspect of the existence of the entity in question as well as an indication of the importance attached to recognition by other countries. It is a capacity not limited to sovereign nations, since both international organisations and non-independent states can enter into legal relations with other entities under the rules of international law. But it is essential for a sovereign state to be able to create such legal relations with other units as it sees fit. Where this is not present, the entity cannot be an independent state. The concern here is not with political pressure by one country over another, but rather the lack of competence to enter into legal relations. The difference is the presence or absence of legal capacity, not the degree of influence that may affect decisions.”
[8] Relatedly, as to a police force, under the Annex on Normalization law enforcement and maintenance of peace and order in the Bangsamoro shall be the primary function of the police force of the Bangsamoro.  This, it can be argued, is not compliant with Art. XVI, Sec. 6 of the Constitution: “The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law”.
[9] Notably, the Constitution provides for a Presidential form of government and yet the Bangsamoro documents call for a ministerial form, a stark departure from the unitary form designed by the Constitution. Taking due regard of Article X, Sec. 3, nevertheless, it is expected that the BBL’s governmental structure be consistent with the governmental structure of the Philippines.
[10] Casibang v. Aquino, G.R. No. L-38025, August 20, 1979.
[11] Ibid., citing Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957.
[12] See, for example, De Vera v. De Vera, G.R. No. 172832, April 7, 2009.
[13] Ibid.  Citation omitted.
[14]  see the Preamble
[15] See “Bangsamoro: a question of consistency and constitutionality”; BusinessWorld, 14 November 2014
[16] See http://www.gmanetwork.com/news/story/386766/news/nation/european-union-pledges-euro-5-million-to-bangsamoro-programs
[17] http://www.gmanetwork.com/news/story/386934/news/regions/bangsamoro-devt-plan-key-to-peace-prosperity-in-mindanao-aus-envoy
[18] http://www.gmanetwork.com/news/story/386569/economy/business/jica-hails-bangsamoro-devt-plan-vows-assistance-to-mindanao-s-growth-sectors
[19] The Bangsamoro Development Agency website (see http://bangsamorodevelopment.org, as of 14 November 2014), for example, does not even contain a text of the BDP but only a :primer” and “executive summary”.