MIRIAM: NEW NAME WON'T CURE BBL

Sen. Miriam Defensor Santiago on Thursday said that changing the name of the proposed Bangsamoro Basic Law (BBL) will not make it any less objectionable unless Congress also revamps the bill to address numerous "constitutional infirmities."

Santiago, chair of the Senate committee on constitutional amendments and revision of codes, was commenting on the House of Representatives' approval of its amended version of the bill now called draft "Basic Law of the Bangsamoro Autonomous Region."

"The words 'basic law' are attached to the name. 'Basic law,' in legal construction, is a synonym for 'constitutional law' and 'organic law,'" the senator said, citing her committee report on the BBL draft, pending as Senate Bill No. 2408.

Santiago added that the name itself showed that the BBL is intended to have the same effect as the "constitution" or "constitutional law" of the Bangsamoro territory, in the same manner that the 1987 Constitution is supreme in the territory of the Republic of the Philippines.

"It goes without saying that two different constitutional instruments cannot have legal effect at the same time and in the same territory. The proposed BBL must be consistent with the provisions of the Constitution of the Philippines," she said.

The Santiago report is based on two public hearings on the draft BBL, where resource persons included former Supreme Court Chief Justice Artemio Panganiban; Associate Justices Florentino Feliciano and Vicente Mendoza; and former UP law dean Merlin Magallona.

Aside from Santiago, senators who signed the report include committee vice chair Sonny Angara, and members Jinggoy Estrada, Bongbong Marcos, Koko Pimentel, Tito Sotto, and Cynthia Villar. Senators Lito Lapid and Ralph Recto said they will sign the report Monday.

The 27-page document is one of three committee reports that will form the Senate's position on the BBL effort. The two others will come from the committee on local government, the primary committee, and the committee on peace, unification, and reconciliation.

Copies of Santiago's committee report on the draft BBL were released to the media as the ad hoc committee of the House of Representatives approved its version of the bill. Malacañang hopes to pass the proposed BBL before Congress adjourns sine die on June 10.

Constitutional amendment

"The committee on constitutional amendments appreciates the brilliant efforts of the hardworking men and women who put the BBL together. However, in its present state, the BBL raises many insidious doubts on constitutionality," Santiago said.

She urged her colleagues not to approve the BBL with haste, stressing that the Senate and the House acting only by themselves cannot approve the proposed BBL in its present form. "It has to be promulgated by nothing less than an amendment to the Constitution," she added.

Santiago also said that a constitutional amendment should apply the method prescribed by the Constitution itself--constitutional convention, constituent assembly, or people's initiative--with revisions subject to ratification by the national electorate in a plebiscite.

Quoting U.S. Chief Justice John Marshall, she said: "The people made the Constitution and the people can unmake it-- But the supreme and irresistible power to make or unmake resides only in the whole body of the people, not any subdivision of them."

She nonetheless warned that insisting on changing the Constitution instead of amending the proposed BBL is "constitutional impiety," and recommended in her committee report that the Senate version of the BBL substantially be revised.

"Instead of implying a transfer of sovereignty from the national government to the Bangsamoro Government, the BBL should observe the principle of subsidiarity as a way to allocate decision-making power," the senator said in her first recommendation.

Santiago explained that in law, subsidiarity is the principle that a central authority's function should be subsidiary, performing only tasks that cannot be performed effectively at a mere local level.

Her second recommendation is for the proposed BBL to provide a minimal threshold of competencies in order to ensure that the national sovereignty of the Philippines remains intact, and is not limited nor shared.

House version

Santiago said that the amendments the House ad hoc committee introduced in its version of the BBL draft failed to reconcile the bill with the Constitution, specifically on issues of sovereignty, autonomy, the creation of a sub-state, and territorial integrity.

She questioned the enumeration of powers in the BBL draft. The House panel retained three types: Reserved powers reside only on the national government; concurrent powers are shared; while exclusive powers rest solely on the Bangsamoro government.

"The concept of 'concurrent powers' and 'exclusive powers' tear asunder the supreme authority possessed by the sovereignty of the people. These will make the Bangsamoro government co-equal with the national government, and thus a subs-state," the senator said.

Santiago particularly opposed the extensive taxing and revenue raising powers the BBL would give the Bangsamoro government. "Effectively, the Bangsamoro government will have seceded from, yet remain financially supported by the Philippine government," she added.

The provision granting the Bangsamoro exclusive powers and use of natural resources found in the area also drew Santiago's criticism. "Under constitutional language, nothing of value may be exclusively allocated to any territorial part of the Philippine archipelago," she said.

The senator argued that although the BBL purports to be an exercise in local autonomy, "it bursts its bounds and turns into a part-sovereign state or a sub-state. The term 'Bangsamoro territory' implies that although it is under the jurisdiction of the Philippines, it is a separate part."

She also claimed that the Bangsamoro territory is highly similar to the Bangsamoro Juridical Entity (BJE), or the associative state, which the Supreme Court struck down in 2008 for posing the threat of territorial dismemberment. Santiago urged BBL proponents to heed the Court, which found that the BJE "meets the criteria of a state laid down by the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states."

Proof that the BBL would create a sub-state is the proposal for a parliamentary form of government despite the constitutional provision on Mindanao autonomy which limits the regional government to an executive department and a legislative assembly, she said.

Excess of decentralization

"The BBL seeks to establish a political entity so far unknown in the rest of constitutional democracies. While the Constitution takes care to define the limits of local autonomy, the BBL is vested with powers far beyond constitutional limits," Santiago said.

She cautioned that the Autonomous Region in Muslim Mindanao is "less-than-sovereign self-determination," but the excess of decentralization under the BBL may lead to a spectre of "Balkanization," the action of dividing an area into smaller, eventually hostile states.

While lauding the efforts of the proponents of the BBL, the senator said she doubts that the law, if enacted, will bring peace to Mindanao, especially as the MILF is not the only secessionist group active in the Philippines.

Other secessionists include the Moro National Liberation Front (MNLF), an older rebel group which earlier signed a peace pact with the government, but which cried foul over being left out in negotiations for the recently forged Bangsamoro peace deal.

The MILF is also struggling to manage the Bangsamoro Islamic Freedom Fighters (BIFF), a breakaway group blamed for several Mindanao bombings and charged with harboring international terrorists.

Recent reports have also claimed that leaders of the Sultanate of Sulu were also not consulted during negotiations for the draft BBL, and are now pushing that their area be recognized separate from the contemplated Bangsamoro territory.

Santiago in her report reminded her colleagues that the so-called peace effort is in fact a discussion between the government of a sovereign state and a group of leaders seeking to either overthrown or secede from the former.

In Santiago's view, this is a peculiar situation because, ordinarily, peace is discussed between the sovereign and the rebels only after the former has militarily imposed its will on the latter. "Peace negotiations are not a substitute for military success," she said.

"The BBL fails the twofold test set by the Constitution: national sovereignty and territorial integrity. It is presented as a formula for capping off the peace process in Mindanao. However, it bears repetition that the end does not justify the means," Santiago said.

BBL report of the Commttee on Constitutional Amendments