Quick Thoughts on the Petition of the Province of Sulu on the Constitutionality of Bangsamoro Organic Law
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1. To your question ("Do you think Intervention would still be useful?"), Yes, an intervention is useful for those who feel strongly for defending the BOL towards its ratification. It would at least reflect a civil society voice -- aside from that of Sec. Dureza, the BTC & the MILF who are impleaded as respondents and would/should presumably be commenting on the Petition. I once did something along that line, in collaboration with Bangsamoro women lawyers Atty. Raissa Jajurie and Atty. Laisa Alamia, in defending the constitutionality of the MOA-AD in 2008, ten years ago. We lost. But the lesson therefrom of necessary constitutional change seems to have been lost on some of us.
2. I mention "for those who feel strongly" recalling what Ishak Mastura texted me when I sounded him out about the matter of interposing a Motion for Reconsideration to Justice Carpio's Nov. 29, 2016 Decision dismissing (wrongly in my view) as premature the PHILCONSA vs GPH Petition (G.R. No. 218406) questioning the constitutionality of the CAB, basically so as to await its translation into the BBL (which the SC did not do/wait for when it was the MOA-AD). Ishak said something like go ahead if you feel strongly about it (that the SC should have ruled on the constitutionality or unconstitutionality of the CAB, so as to then guide the subsequent BBL and possibly consti amendments proposals), but he would rather focus his energies on the consti shift to federalism.
3. My own mixed feelings about intervening to defend the constitutionality of the BOL arises from several (levels of) concerns in doing so:
3.1 Would we be undermining the advocacy for necessary consti change for a desirable level of Bangsamoro self-determination?
3.2 As it is, even BOL advocate Sen. Koko Pimentel acknowledges that the Sulu Petition raised valid questions. For me, I find the Petition's Grounds D, E, F. G and H quite valid, if not strong. Stated otherwise, it would be hard for one to argue against what one might even agree with.
3.3 The Sulu Petition, particularly those said Grounds, also represents a valid grievance of Sulu (and the Tausugs & the MNLF) of feeling left out or unduly by-passed by the BOL. The MILF and other BOL advocates should see this as red (MNLF) flag warning signal.
3.4 Is the BOL we are defending meritorious enough (based on the standard of implementing the CAB) notwithstanding the MILF's bending backward (as usual it seems) to accept it? There is really a need for a fair analysis/evaluation of the BOL. Like something along the line of certain Bangsamoro civil society groups (Ranaw Multisectoral Movement, Coalition of Moro Youth Movement, Ranao Confederation for Peace, and Bangsamoro National Movement for Peace and Development) which in July 2018 highlighted 6 points in their appeal to Congress to restore from the original BTC version of the BBL. Then there was Ishak's Preliminary Draft Analysis of the Senate Ratified BOL in June 2018 which pointed out specifics of the BOL's limited grant of autonomy even in comparison to RA 9054.
4. Earlier, I had sent out to some friends, inc. some of you, by way of sharing Jude Josue L. Sabio's PDI Commentary "Bangsamoro substate, not federalism." Let me highlight here now the following quoted passage therefrom since it is close to my views, esp. the second paragraph:
As a matter of practical politics, the most viable solution to the problem of the Bangsamoro is to push through with its clamor for a substate. This solution should be threshed out in the Supreme Court, where the government and the Bangsamoro should be able to ardently defend the constitutionality of the project.And if there is a need to amend the 1987 Constitution to forestall any constitutional challenge, then the proper constitutional amendment should be done to accommodate a Bangsamoro substate.
5. As it is with the current SC that is largely aligned now with the Duterte administration, there might not be too much to worry about the SC striking down the BOL as unconstitutional as sought by the Sulu Petition. So, the MILF and BOL advocates might win that court battle (although, to repeat, I find the afore-cited Grounds of the Petition to be quite strong) but it could lose the political battle (or war?) of establishing a new autonomous political entity that has all-Moro support. And even if the new BAR is eventually birthed (born) and -- like the BOL -- can be seen as a somehow incremental step forward, the MILF and Bangsamoro self-determination advocates should have a more strategic perspective beyond it.
Judge Soliman Santos Jr. is a long-time Mindanao peace observer.