"There is only one way the Supreme Court can decide on this matter."
"There is only one way the Supreme Court can decide on this matter."
The BOL (Bangsamoro Organic Law) that is scheduled for a January-February referenda is so full of violations of the 1987 Constitution—constitutional infirmities, legal scholars call them—that the only plausible conclusion one can reach is that the members of Congress, when drafting the new law, believed that it somehow would pass Supreme Court muster. The legislators’ thinking appears to have been along the lines of blind approval of BOL by a Supreme Court filled with appointees of President Rodrigo Duterte.
Philconsa (Philippine Constitution Association), a group founded in 1963 by a number of prominent lawyers to question the payment and subsequent audit approval of legislators’ “allowances,” has just gone to court to make it very difficult for BOL to get past the Supreme Court. Philconsa had pointed out numerous infirmities—some political, some economic, in nature—in the BOL.
First, the Constitutional infirmities that are political. Chief among the political infirmities pointed out by Philconsa is the irregularity of BARMM (Bangsamoro Autonomous Region in Muslim Mindanao) itself. In the 37-page, late-2018 petition that it filed with the nation’s highest tribunal, Philconsa questioned the Constitutionality of the BARMM provision of Republic Act 11054. Said the petition: “The creation of a Bangsamoro political entity is contrary to the Constitution which created only ….. autonomous regions in Muslim Mindanao and the Cordilleras.” The petition went on to say: “R.A. 11054 abolished the ARMM and created the BARMM ….. in lieu thereof without first amending the Constitution ….. violated and/or amended Sec. 1, Art. X of the Constitution without jurisdiction or authority, with grave abuse of discretion tantamount to lack of or in excess of jurisdiction.” Philconsa called BARMM a “stranger” and an “interloper.”
Another basic violation of the Constitution pointed out by Philconsa was the grant to BARMM of powers reserved by the Constitution for Congress, i.e., legislative powers. As examples, Philconsa cited the power to create GOCC (government-owned and -controlled corporations), the power to grant tax exemptions and subsidies and the power to designate protected areas, such as nature reserves, forests, watersheds and aquatic parks.
Philconsa also noted the grant to BARMM of powers reserved by the Constitution to the President of the Philippines. It singled out two: in the power to enter into trade relations with other countries and the power to contract foreign loans.
Philconsa further noted that BOL allowed BARMM to create a Bangsamoro Economic and Development Council. This, the Philconsa petition said, was contrary to the Constitution, which had designated NEDA (National Economic and Development Authority) as the economic planning agency of the government. NEDA is headed by the President and is composed of members of the Cabinet.
Additionally, Philconsa noted the “unjustified advantage” given to BARMM over the other regions by the BOL provision allowing the revenues collected by certain national taxes—DST (documentary stamp tax), donor’s tax and estate tax—to go straight to BARMM’s coffers. This unfair advantage was violative of the Constitution’s equal protection clause, Philconsa argued.
Furthermore, Philconsa questioned a BOL provision granting BARMM the power to enact laws governing commercial and other civil actions that now are not covered by the Code of Muslim Personal Law. Under the Constitution the Shariah and other special courts do not have jurisdiction over such actions.
The BOL violations of the Constitution discussed above are so basic and so numerous that one wonders how the BOL can possibly survive Philconsa’s Supreme Court challenge and other similar challenges that are bound to follow. The involved Constitutional provisions are so clear and, as every law student is repeatedly told, clear legal provisions are either enforced or they’re not enforced.
How is the Supreme Court likely to decide Philconsa’s challenge? If the Constitution is worth the paper it is written on, there is only one way it can decide the matter.