Friday, April 10, 2015

Aquino’s BBL review panel is useless

By Victor Avecilla
The legal experts have spoken.  Retired Supreme Court Justices Vicente Mendoza and Florentino Feliciano, former Solicitor General Estelito Mendoza, and Senator Miriam Defensor-Santiago, all noted experts in Constitutional Law, are among the many high-caliber legal minds who maintain that the Bangsamoro Basic Law (BBL) has numerous provisions which violate the Constitution. The BBL embodies the controversial peace deal President Benigno Aquino III brokered with the Moro Islamic Liberation Front, and is pending approval by Congress.
Faced with this overwhelming legal obstacle, Congress should have no choice but to remove or modify the objectionable parts of the BBL.  Of course, if the unconstitutional features of the BBL were removed or modified, the final product will be a far cry from the original draft.
So far, House Speaker Feliciano Belmonte, Jr., a staunch Malacañang ally, wants the lower house to approve the BBL. In the Senate, however, the future of the BBL is in limbo, thanks to opposition from Senators Ferdinand Marcos, Jr. and Alan Peter Cayetano. 
In addition, the BBL must hurdle an expected judicial obstacle. It is now certain that once the BBL is enacted into law, many sectors of society will challenge its validity before the SC.
At the end of the day, the congressional approval of the BBL and its chances of surviving judicial scrutiny depend on legal considerations.  Since the legal vulnerability of the BBL lies in its numerous unconstitutional features, the legal issues must be squarely addressed.  Populist statements like “give the BBL a chance,” “do not let the Mamasapano massacre derail the peace process,” and “the BBL is the last hope for peace in Mindanao” are impertinent because they do not have any legal foundation, and because they are mere endorsements of a very risky experiment where the odds are against the Filipino people.
President Aquino must be really desperate to get the BBL enacted into law that on March 27, 2015, he created a panel that will “review” the BBL.  By Aquino’s own admission, however, this panel will work for the passage of the BBL.  In other words, the peace panel will sanitize the BBL enough to get a misinformed public to support it. 
According to the president, the panel will be composed of Manila Archbishop Luis Antonio Cardinal Tagle, former Chief Justice Hilario Davide, Jr., businessman Jaime Augusto Zobel de Ayala, retired envoy Howard Dee, and youth leader Rohaniza Sumndad-Usman.  Aquino likewise said that the panel will lead a so-called “national peace summit.”
Evidently, the creation of this peace panel is going to be an exercise in futility, and will be a waste of public funds.
It appears that other than Davide, nobody among the peace panel may be considered an expert in Constitutional Law.  If they are to address the legal aspects of the BBL, they will almost surely end up merely echoing the legal opinions of hired lawyers.  Where is the credibility in that?
Davide may be a retired magistrate of the highest court in the land but he must contend with the formidable legal opinions of more than one former magistrate of the SC.  This is not to say that Davide has lost out on the legal arguments.  It’s just that Davide will end up the dominant figure of the peace panel, and that its view will only reflect the views of Davide.
Moreover, Davide’s very close political association with President Aquino will dilute whatever arguments Davide may have for the BBL.  It will be recalled that in December 2010, the Philippine Truth Commission created under Executive Order No. 1 issued by Aquino was declared unconstitutional by the Supreme Court in Biraogo v. Philippine Truth Commission.  Aquino handpicked Davide to head that truth commission.     
Even the creation of the peace panel itself may give rise to a constitutional issue.  Under the Constitution, the power to create a public office belongs exclusively to Congress.  One exception to this fundamental rule is when the President needs to create a body to ensure that the laws are faithfully executed, as mandated likewise by the charter.  Since the peace panel is a public office, its creation by the President is presumed  unconstitutional, unless Malacañang can show that its creation was for the purpose of helping the president monitor that the laws are faithfully executed. 
The question that necessarily arises then is – what laws is the peace panel supposed to be monitoring for the President in the first place?  There is none.  It cannot be the Framework Agreement of the Bangsamoro because this is not a law but a mere executive act.  It cannot be the BBL, either, because the BBL is not a law but a mere draft of one.  In fact, the only applicable law in point here is the Organic Act of the Autonomous Region in Muslim Mindanao (ARMM).  Since Congress has not repealed this organic act, it remains a valid law which President Aquino is constitutionally obligated to enforce.  Ironically, the approval of the BBL will mean the demise of the ARMM organic act.   
By creating this peace panel “to work for the approval of the BBL,” Aquino not only abandoned his constitutional obligation to enforce the law; he is urging the violation of an existing law, and at public expense at that.  He may be impeached for this. 
As pointed out in past essays, one reason the BBL will fail is because the group which drafted it does not include a member of the Armed Forces of the Philippines (AFP).  The AFP has an interest in the peace process because in a war, the soldier does the dying.  Since the peace panel created by Aquino has no representation from the AFP, it faces the same fate of the very BBL it is expected to promote.  
 The people named to the peace panel should refuse the invitation for them to hoodwink the Filipino people into supporting a law that is unprecedented in its disregard for the Constitution.

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