2 ex-magistrates clash over Bangsamoro bill’s constitutionality October 29, 2014Posted by HERBERT CURIA in PEACE TALK UPDATES.
From the Website of INQUIRER
2 ex-magistrates clash over Bangsamoro bill’s constitutionality
MANILA, Philippines—Two former magistrates on Tuesday clashed about the constitutionality of the proposed Bangsamoro basic law, with one claiming the legislation would split the country, while the other maintains that the Bangsamoro entity is still a part of the Philippine state.
During the Bangsamoro ad hoc committee hearing on Tuesday, former Associate Justice Vicente Mendoza said the bill remains riddled with unconstitutional provisions despite the efforts of the peace panel and legal experts to conform it to the Constitution.
“I believe (the Bangsamoro basic bill) is beyond the power of Congress to pass despite efforts to make it conform to the Constitution,” Mendoza told lawmakers during the hearing.
For one, the bill defines the Bangsamoro entity as a “territory” and “ancestral homeland” of the Bangsamoro people.
Territory is defined in law as a separate part of a country, Mendoza said. The bill thus runs counter to the Constitution which does not allow dismemberment of a country.
“The reference to the autonomous region as a territory is contrary to the Constitution which considers autonomous region … to be a part of the Philippine archipelago,” Mendoza said.
The former justice cited the experience of the country under the Arroyo administration with the memorandum of agreement on ancestral domain (MOA-AD) that was later struck down by the Supreme Court as unconstitutional.
The MOA-AD called for the establishment of a Bangsamoro Juridical Entity, which would have given the Moro Islamic Liberation Front (MILF) a sovereign state replete with its own police and banking system.
“The recognition of the ‘right (of the people) to self-determination… to chart their political future’ reinforces the notion that Bangsamoro is a separate political entity, although under the jurisdiction of the Philippines. Such a political entity is a little different from the ‘associate state” called Bangsamoro Juridical Entity in the MOA-AD invalidated by the Supreme Court in 2008,” Mendoza said.
“The dismemberment of the national territory can result from such provisions of the bill,” he added.
But former Associate Justice Adolfo Azcuna said he disagreed that the Bangsamoro bill will create dismemberment, precisely because it has a provision that says “the Bangsamoro territory shall remain a part of the Philippines.”
“It is not separated from the territory of the Philippines… I think it is a valid provision because there is no dismemberment of the country involved,” Azcuna said.
He said he agreed, however, on Mendoza’s observations that the bill’s usage of the word “territory” may be unconstitutional.
Mendoza also said the bill is unconstitutional because it provides for a parliamentary form of government by which the Prime Minister and the Cabinet members are chosen from the Parliament.
He said the Constitution only provides for an executive department and legislative assembly, both of which are elective and representative of the constituent political units.
But Azcuna said he disagreed with Mendoza’s observation, saying that the Constitution only provides for a democratic government of officials that are elected.
“Is it unconstitutional because our unitary government is presidential? Would it be unconstitutional for a substate to be parliamentary? I don’t think so because what the Constitution requires is that the officials be elected and government be democratic,” Azcuna said.
He added that the Constitution does not prohibit election of a Prime Minister by the Parliament.
“Election is selection by the members. I think the Constitution does not require direct election by the people as long as the officials are elected,” Azcuna said.
Mendoza also said the bill is unconstitutional because it gives the Parliament the power to limit elections for the Bangsamoro government to the Bangsamoro people, thus denying the rights and privileges of national citizenship guaranteed in the Constitution.
The former justice also said the bill runs counter to the constitutional provision on a unitary form of government by granting the national government powers that it shares with the Bangsamoro government, and by giving the Bangsamoro government “exclusive” powers on certain Muslim affairs.
Mendoza also said the bill gives the President powers of general supervision on the autonomous region “consistent with the principle of autonomy and the asymmetric relation of the Central Government and the Bangsamoro Government.”
This set-up can make enforcement of national laws within the Bangsamoro entity difficult because national government would have to consider the local custom of the Moro people, Mendoza said.
Azcuna, for his part, said the bill remains consistent with the Constitution on the matter of the enumerated powers of the Bangsamoro and the national government.
He said the Constitution states that all the powers, functions and responsibilities not granted to the autonomous region will be vested in the national government.
“That will prevail. There’s nothing inconsistent. There are enumerated powers but we must always have that in the back of these enumerated powers. The Constitution says powers should be with the national government, not delegated by the national government,” Azcuna said.
In concluding, Mendoza said the bill cannot justify the unconstitutional provisions by claiming that the relationship between the central and Bangsamoro government is “asymmetric,” or “distinct from the inter-governmental relationship in other regions and local government.”
“Such relationship cannot justify the recognition of the right of the Bangsamoro people to ‘self-determination, to chart their political future’ without impairing the sovereignty and territorial integrity of the Philippines,” Mendoza said.
Azcuna said an asymmetric relationship is necessary “to suit the culture and local situation in an attempt to redress the long imbalance of injustice in Mindanao.”
“There has to be some rebalancing done in order to pay for the long years of injustice. Pagbigyan na natin, talagang aping api na,” Azcuna said.
The lower chamber is hearing the proposed Bangsamoro basic law that seeks to create a politically autonomous Bangsamoro entity to replace the Autonomous Region in Muslim Mindanao.
The bill was the result of years of peace negotiations with the Moro Islamic Liberation Front (MILF), which signed a peace deal with the government this year.
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