Expected SC Decision: Bangsamoro Deal A Political Question

The Supreme Court sits as a full bench today and at bar is the controversy that has caused much consternation, and bloodshed, these past three weeks: the constitutionality of that plan to set up a separate sovereign entity within the Philippines:the MILF-Bangsamoro Juridical Entity.

Four days ago in the Philippine Daily Inquirer, Fathe Joquin Bernas of the Society of Jesus and one of the framers of the 1986 Constitution wrote what you midfielder believes is the most accurate analysis of how that Supreme Court will rule today, if it does decide to: the high tribunal will rule that the issue at bar is a political question that is beyond its authority to act on.

This non-lawyer agrees. Father Bernas also reiterates what has already been widely reported and analyzed: since the MoA-AD was simply been initialed and not signed it is not in force and there is no action yet by the executive that can be declared unconstitutional:

Here is Father Bernas’s view in full, with due and full credit to the PDI:

http://opinion.inquirer.net/inquireropinion/columns/view/20080818-155263/That-piece-of-paper-or-Relax-lang

“Sounding Board : That ‘piece of paper’ or Relax ‘lang’!

By Fr. Joaquin G. Bernas, S.J.
Columnist
Philippine Daily Inquirer

Posted date: August 18, 2008

MANILA, Philippines - Preliminarily, let me say a word about the full-page ad for the MOA which appeared at least twice in the Bulletin and the Star. I am embarrassed that some think it was mine. But the only thing that was mine in that ad was the quotation of what I had said to an Inquirer reporter. However, I am not complaining because, as Cito Beltran remarked about the naughty trick, even the devil can quote Scripture!

Now, about that “piece of paper.”

Some proposals in it are being attacked by many as unconstitutional. But what I know about Constitutional Law is that the issue of unconstitutionality can come up only after something has been done which can result or has resulted in deprivation of a constitutional right. Has this happened? Or, as lawyers would put it, is there an “actual case”?

The MOA is not a done deal. Whether the framers knew it or not, the MOA was nothing more than an elaborate collection of the “wish-list” of those who want to revise the Organic Act of Muslim Mindanao and even the Constitution. In other words, it is an ambitious list of proposals for the amendment of the Organic Act and even of the Constitution.

But amendment proposals cannot be illegal and much less unconstitutional. If that were so, no law or constitutional provision could be amended. We might as well delete Article XVII of the Constitution on Amendments and Revision! Article XVII is there because the Constitution is not written in stone.

What I have learned from jurisprudence is that the only amendment that is not allowed is one which violates the principle of jus cogens. Jus cogens, or peremptory norm of international law, means “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”

Any proposal which is not contrary to jus cogens, no matter how stupid or even potentially harmful, cannot be dismissed by the Court—because the Court does not have the power to do so. The matter is what is called a “political question”; that is, a question which, under the Constitution, can be resolved only by Congress or the Executive or the sovereign people.

What then can the Supreme Court do about the petition to prohibit the government from signing the MOA? We are back to separation of powers. I can only repeat what the Supreme Court said earlier about a similar problem:

“The doctrine of separation of powers calls for the departments being left alone to discharge their duties and as they see fit. The judiciary as Justice Laurel emphatically asserted ‘will neither direct nor restrain executive [or legislative] action . . .’ The legislative and executive branches are not bound to seek its advice as to what to do or not to do. Judicial inquiry has to be postponed in the meanwhile. It is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. At such a time, it may pass on the validity of what was done but only ‘when . . . properly challenged in an appropriate legal proceeding.’”

What the Court said about the 1972 Constitutional Convention can be applied mutatis mutandis to the sponsors of the MOA. “More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight.”

But if the MOA is signed, should the Court declare as unconstitutional proposals in it which are incompatible with the present Constitution? To answer that question we must ask what commitment the administration would make if the MOA is signed. It would commit nothing more than that the Arroyo administration will exercise “best efforts” to achieve the changes. It may be a foolish commitment, but folly and unconstitutionality are not the same.

The President has not disowned the MOA. Can the President, under her oath to “preserve and defend” the Constitution, sponsor proposals that will result in amending the Constitution? The duty of the President under her oath is a total package which includes not just to “preserve and defend its Constitution” but also to “execute its laws, do justice to every man, and consecrate [herself] to the service of the nation.” Better execution of the laws, doing justice to every man without exception and consecrating herself to the service of the nation may require sponsoring a needed amendment of the Constitution. To paraphrase the words of a man we all know, the Constitution is made for man and not man for the Constitution.

Whether or not the ARMM Organic Act should be amended to accommodate more territory than presently included in it and whether or not the ARMM or a Bangsamoro Juridical Entity (BJE) should be given powers that presently are not allowed by the Constitution are not for the Court to decide. These are “political questions” which should be addressed by a constituent assembly, whether Congress or a Constitutional Convention, and ultimately by the people in their sovereign capacity.

The MOA is being linked by critics to the extension of term limits for the President. Although extension of term limits is not on the face of the MOA, it is not impossible that the desire to extend the term of the President may have lurked in the secret minds of the framers of the MOA. But again even that will have to come out of the secret mind and go through a constituent assembly and a plebiscite.”E