Of constitutional interpretation and the Bangsamoro Basic Law

was my Trade Tripper column in the 30 January 2015 issue of BusinessWorld:

This article is dedicated to the Filipino security forces recently killed in Maguindanao.

I recently came across the Jan. 9 statement by a number of Constitutional Commission (ConCom) members that drafted the 1987 Constitution. In it, they expressed support for the “creation of the Bangsamoro Autonomous Region.”

Very sincerely, I am quite respectful of many of the members that signed that statement, having learned constitutional law or economics from them. But I also feel that I must speak up to point out areas that need to be clarified or examined further. As always, should there be flaws in my reasoning, the fault is mine and not on the teachers.

First off, the ConCom members’ opinions are, of course, helpful in determining the meaning of the Constitution’s words. But it must be remembered that they are not its authors. The people are. And it is their understanding of the words when they ratified it in 1987 that prevails (hence, the “ordinary meaning” rule in statutory construction). It is when such is not possible that we go to the ConCom members for guidance.

But the Constitution is clear on maintaining territorial integrity, with Yale-trained constitutionalist and retired Supreme Court Justice Vicente Mendoza already making public his concerns regarding the Bangsamoro Basic Law.

Now, the statement does say that the “Bangsamoro is about the development of people, not about the constitutionality of words.” But this is circular. How can one know the view of the Constitution on development if not through its words? And how can one know about the Bangsamoro Autonomous Region as a tool for development except through the words of the Comprehensive Agreement and the draft Basic Law? And it is precisely the point of those who have raised issues in relation to the Basic Law that such will not lead to true development.

Furthermore, how can genuine development be reached if to do so means violating the Constitution (the very question of the congressional hearings)? Certainly, to begin by not following the rule of law could not be a very good start indeed.

Now implied referral has again been made to the “living” constitution theory (emphasis on “theory”), in that the Constitution’s words can be said to “evolve” to fit the present situation. But this argument is a bit eccentric. If the Constitution’s words can be said to evolve, then why did the ConCom members bother taking months to carefully craft the words of the Constitution? Why have amendatory provisions? And who is to say that the words have evolved and in what form? Certainly not the ConCom members. Not even the Supreme Court, as it can only act within the authority mandated by the people (as written in the Constitution). So that leaves the Filipino people. But usually only through referendum or plebiscite.

The statement goes on to declare: “International Law is not an iron law imposed by a suprabody above all nations that disallows interpretations of words and language to fit the diverse situations of individual nations.” This is a huge understatement. If anything and to mix metaphors, international law is so opaque that it gives a country enough room to hang itself.

But that is not really the point. What is revealing about this is that the statement then goes on to say that the creation of the Bangsamoro Autonomous Region “can become part of international law” upon “its acceptance by the community of nations.”

Which is what I have been asking all along that others keep denying: why is this issue internationalized? Why do we have another country (i.e., Malaysia) part of the process? Why are foreign countries influencing the legislative process with promises of foreign aid? Why is the Department of Foreign Affairs and not the Department of the Interior and Local Government taking the lead in this regard? Why do even ConCom members believe that there is a need to have “acceptance” by other countries? This is a matter supposed to be about Filipinos between Filipinos. Why are we talking as if this involves another international personality?

Which leads to this baffling part in the statement: “...by the explicit requirement in the [Basic Law] that the new organic law should be in conformance with the Constitution, and the unequivocal statement that the Bangsamoro territory shall remain part of the Philippines.”

Because there is nothing in the Comprehensive Agreement that says such things. In fact, the Constitution is barely mentioned (just once and to say that it should be amended to fit the Agreement). The Basic Law does mention the Constitution, but it also mentions the need to conform to “international law,” “system of life prescribed by [Muslim] faith,” and “harmony with our customary laws, cultures, traditions.” In short, rather than being supreme, the Constitution is but one of other laws that the Basic Law obeys.

All in all, and with due respect to the members of the ConCom, the entire Filipino people themselves need to give closer attention and examination to the provisions of the Agreement and the Basic Law, and ultimately decide its fate.