MANILA, Philippines鈥擳wo 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鈥� 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 鈥淏angsamoro territory,鈥� which, based on the definition of 鈥渢erritory鈥� by Black鈥檚 Law Dictionary, would imply that it was 鈥渁 part of a country separated from the rest and subject to a particular jurisdiction.鈥�
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 Malaca帽ang on March 27. LYN RILLON
Separate from PH
鈥淗ence to call the autonomous region in Muslim Mindanao the 鈥楤angsamoro territory鈥� is to consider it a separate part of the Philippines, although under its jurisdiction,鈥� 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鈥檚 recognition of the Bangsamoro鈥檚 鈥渞ight to self determination鈥� to chart their political future鈥� also appeared to reinforce the idea that the Bangsamoro was a separate political entity.
This, he said, is only a little different from the 鈥渁ssociative state鈥� 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.
鈥淭he dismemberment of the national territory can result from such provisions of the bill,鈥� Mendoza said.
Similarly, he said, the definition of a 鈥淏angsamoro people鈥� in the bill performed basically the same function as the definition of the citizens of a nation or a state in a national constitution.
鈥淣on-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,鈥� 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 鈥渆xclusive鈥� 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 鈥渁symmetric relationship鈥� between the Bangsamoro and the central government introduced by the BBL proponents.
鈥淭he question is precisely whether the bill is not contrary to the Constitution because of such a relationship between the two governments,鈥� 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鈥檚 observations.
Although he shared Mendoza鈥檚 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.
鈥淭his provision is valid. There shall be no dismemberment of country involved,鈥� Azcuna said.
He said 鈥淏angsamoro鈥� basically meant the 鈥渘ation of the Moro.鈥�
鈥淵ou can have a state with different nations鈥� in the US, you have several nations. It is therefore possible for us in search of identity to have several peoples and nations,鈥� 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 鈥渁 distinct people,鈥� and the Bangsamoro as a 鈥渘ation within the Philippine state.鈥�
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.
鈥淚n the US, states retain their powers unless it鈥檚 given to the central government鈥� they retain unspecified powers. In our setup, unspecified powers are retained by central government,鈥� he said.
He admitted that his interpretation of the BBL involved 鈥渢hinking outside the box.鈥�
鈥淎 substate does not have to be a mirror image, as long as parameters with the Constitution are followed,鈥� 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 鈥渆qually correct.鈥�
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.
鈥淎mend the Constitution if we must,鈥� he said.
Abueva said reading the BBL was 鈥渧ery, very inviting, very humbling, very gratifying and most hopeful.鈥� He described it as a 鈥渕asterpiece in peacemaking and basic institutional reform towards the establishment of the Bangsamoro.鈥�
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