Saturday, August 27, 2011

THE SUBSTATE DREAM


Once again the nation takes up what is commonly referred to as the Mindanao Problem. The government is approaching it with benefit of hindsight.
Almost three years ago the Supreme Court, in what I consider an advisory opinion, came out with counsel on what to avoid in any peace agreement about Mindanao. Although the vote against the agreement was 8 to 7, it actually contained more agreement than what the vote indicated. Aside from the ninety-page main opinion, there were eleven other pieces some concurring and others dissenting. Going through them one will find that there really was more unanimity than what the 8-7 count might indicate. A clear majority agreed that there were provisions in the MOA-AD which, if carried out without constitutional amendment, would depart from the present Constitution. The most notable of these were the powers envisioned for the Bangsamoro Juridical Entity (BJE). The powers envisioned went beyond those possessed by local governments and even by the Autonomous Region. The MOA-AD spoke of the relationship between the BJE and the Philippine government as “associative” thus implying an international relationship and therefore suggesting an autonomous state. Clearly these went beyond what the present Constitution has set up. Like other peace negotiators, the MOA-AD authors were willing to try untested approaches and to operate “out of the box.”
Thus it was that eight justices of the Court felt impelled to send a stern directive to an executive department which they could not trust. The Court, however, did not say that the President should not think “out of the box.” After all, the President’s oath binds the President not just to “preserve and defend” the Constitution but also to “do justice to every man.”
What the President did when he met with Chairman Murad in Tokyo was to start a new process of doing justice to every man and, if necessary, to “think out of the box.”
It is now becoming clear, however, that what is envisioned by Chairman Murad and the MILF is something which will not fit into the structure of the present Constitution. It will need constitutional amendment. What will the Palace agree to since constitutional amendment is not one of its priorities?
I am convinced, however, that the priorities of the President are not cast in bronze. From what I have seen of the efforts to achieve permanent peace in the region I have become convinced that lasting peace cannot be achieved without some significant changes in the structure of government in Mindanao. Put simply, there is need for some constitutional change. Can this be achieved without a complete overhaul of the current Constitution?
Theoretically this can be achieved. But the fear is very real that the initiation of any form of amendment will open up the floodgates for a total overhaul of the Constitution. But if the powers that be will support it, a “surgical” form of amendment can be achieved. This is possible because of the way the current provision on constitutional change is worded.
The Constitution now says: “Any amendment to, or revision of, this Constitution may be proposed by: (1) the Congress, upon a vote of three-fourths of all its Members; or (2) a constitutional convention.” Under these terms, neither a constitutional convention nor a joint session is needed. The two Houses have the option either of coming together in joint session or of deliberating separately as they are where they are as they do with ordinary legislation. Whether to act as two separate bodies or as one body that votes separately, is for Congress to decide. It is a “political question” beyond the jurisdiction of courts. Thus either House can initiate a constitutional amendment bill or a constitutional revision bill, debate on it, and approve it by a vote of three-fourths of all the members and thereafter pass it on to the other house for similar deliberation and action. If approved by both houses, it can go to a plebiscite for ratification or rejection by the electorate.
Under such an arrangement the proposed change can be as broad or as narrow as the legislators might want. The fact that no one has tried this method for the purpose of radically overhauling the Constitution is perhaps an indication that neither the Senate nor the House of Representatives is prepared to overhaul the current Constitution.
Neither, however, has the surgical method been tested. In my view, the search for a solution of the Mindanao problem can be approached through this “surgical” method. More specifically the goal can be either a reformulation of what can be given to the Autonomous Region or the formation of a federated state for Mindanao. I believe that a limited constitutional change can be proposed by Congress under the present constitutional provision.
Under this separate arrangement, the needed changes for Mindanao can be initiated either in the House of Representatives or in the Senate. Once a proposal is approved in one house by a vote of three fourths of all its members, it can be sent to the other house for its consideration and disposition. If one house refuses to cooperate, that will be the end of the proposal. Or, if the version approved by one house is different from that of the other, then, as in ordinary legislation, a bicameral committee can be formed to resolve differences. Once a common provision is achieved, it can go back to both houses for ratification by a vote of three fourths of all the members. If all goes well, then the provision will be ready for submission to a plebiscite.
29 August 2011



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