The Supreme Court on Tuesday dismissed the petitions to declare unconstitutional the peace agreements signed by Government (GPH) and the Moro Islamic Liberation Front (MILF) on the ground that they are “premature” but critics say the High Court “skirted the core issue.”
In a press briefing at the Supreme Court, spokesperson Theodore Te said the Court noted that the Bangsamoro Basic Law (BBL) has not been passed and that any question on the constitutionality of the 2014 Comprehensive Agreement on the Bangsamoro (CAB) and the 2012 Framework Agreement on the Bangsamoro (FAB) “without the implementing Bangsamoro Basic Law, is premature and not ripe for adjudication.”
“Until a Bangsamoro Basic Law is passed by Congress, it is clear that there is no actual case or controversy that requires the Court to exercise its power of judicial review over a co-equal branch of government,” the Court said.
Signing of the Comprehensive Agreement on the Bangsamoro on March 27, 2014 in the gardens of Malacanang. Photo courtesy of Julius Mariveles / Philippine Center for Investigative Journalism
“We wanted some issues resolved, with substance, so in the future drafts (of a Bangsamoro law), we will be guided by it,” said Datu Michael Mastura, a senior member of the peace panel of the Moro Islamic Liberation Front (MILF) that negotiated the FAB and the CAB.
The Philippine Constitution Association (Philconsa) filed with the Supreme Court on June 19, 2015 a 26-page petition to declare unconstitutional the CAB and FAB.
Headed by then Leyte Rep. Ferdinand Martin Romualdez and former Senator Francisco “Kit” Tatad, it filed the petition along with Zamboanga Archbishop Romulo dela Cruz and retired Davao City Archbishop Fernando Capalla, and former Defense Secretary Norberto Gonzalez. The last three are members of the National Transformation Council which called on President Benigno Simeon Aquino III to step down after the January 25, 2015 tragedy in Mamasapano.
Back to square one
Mastura described the SC’s decision as “strange.”
“What was questioned was the constitutionality of the FAB and CAB. But the decision made was about the proposed law in Congress? They skirted the core issue. We’re back to square one,” Mastura told MindaNews.
Lawyer Benedicto Bacani, Executive Director of the Institute for Autonomy and Governance said the decision “does not provide guidelines for the BBL. SC is throwing the ball at Congress. We are back to square one.”
A definitive ruling by the Supreme Court would have been the “best case scenario” for the Bangsamoro peace process, Presidential Adviser on the Peace Process Jesus Dureza told reporters attending a training on peace reporting here last November 5.
A number of provisions in the draft BBL which the previous Congress under the Aquino administration deliberated on were removed by the lawmakers, citing alleged unconstitutionality, while the MILF and the government peace panels maintained the provisions had been vetted by various government agencies and were found to have complied with the FAB, CAB and the Constitution.
Dureza told the reporters that the BBL needs to be entrenched and if found to be Constitutionally compliant, “test pilot na (for federalism) ang Bangsamoro. Baka maging model for federal states.”
He said provisions in new BBL that will be questioned for constitutionality “will be parked and passed on to those who will amend the Constitution.”
Congress will convene as a constituent assembly to amend the Constitution to change the governance system from unitary to federal-parliamentary.
“But the best case scenario — because there is a petition filed vs CAB in the Supreme Court — is if the Supreme Court can rule on its constitutionality,” Dureza said.
Did not participate
Three justices did not participate in the deliberations: Associate Justices Marvic Leonen, Francis Jardeleza and Benjamin Caguioa – Leonen because he was government peace panel chair when the FAB was signed, Jardeleza because he was Solicitor-General and Caguioa who was Chief Presidential Legal Counsel then.
The Court also noted that “even if there are bills pending in Congress, the Court cannot exercise its power of judicial review over such bills as it would be tantamount to the Court rendering an advisory opinion on a proposed act of Congress. The power of judicial review over an act of Congress comes into play only after the passage of a bill, not before.”
The previous Congress adjourned without passing the BBL.
President Rodrigo Duterte early this month signed an Executive Order expanding from 15 to 21 the membership of the Bangsamoro Transition Commission that would draft the BBL.
The Philconsa also asked the Court to stop the Department of Budget and Management from releasing funds to pursue or implement the FAB, the CAB and the draft BBL which was then under deliberation in Congress. Four more similar petitions were filed before the Court.
The FAB was signed on October 15, 2012 by Leonen, then GPH peace panel chair and MILF peace panel chair Mohagher Iqbal. The CAB was signed on March 27, 2014 by GPH peace panel chair Miriam Coronel-Ferrer and Iqbal.
Day in court for the Bangsamoro
On October 27, 2015, Mastura filed an urgent motion to intervene before the Supreme Court in defense of the FAB and CAB and to allow the Bangsamoro a day in court.
In his motion, Mastura, a member of the 1971 Constitutional Convention and a former Maguindanao Representative, sought to intervene in the case in his “personal capacity as a native born successor generation of Moro ancestry and as bearer of heritage of indigenous institutions in Muslim Mindanao seeking to assert a ‘public right’ to political identity on equal protection grounds and ‘parity of esteem’ on ‘judicially made’ policy, not constitutional rulings.”
Datu Michael Mastura files urgent motion to intervene at the Supreme Court on October 27, 2015 in defense of the Framework Agreement on the Bangsamoro and Comprehensive Agreement on the Bangsamoro.
Mastura said allowing him to intervene “will provide an opportunity for the Bangsamoro people to be heard before the Supreme Court as their own identity is pilloried, their allegiance to this Republic harshly questioned, and their genuine aspiration for freedom, justice and peace repeatedly suppressed by the sheer tyranny of the majority of this country.”
“The cardinal rule on due process dictates that before this Honorable Supreme Court exercises its power of judicial review and decide on the fate of the FAB and the CAB, the Bangsamoro people through this intervention, need first to be heard and properly understood,” Mastura said in 82-page Comment in Intervention.