PEACETALK: Dissenting on Sulu’s exclusion from BARMM (2)

2nd of 2 Parts

NAGA CITY (MindaNews / 17 September) — It must perhaps be first pointed out that the BOL and its creation of BARMM by plebiscite does not at all contemplate or imply the abolition of the Province of Sulu “upon its rejection of the BOL.”  It was still very much existing as a province that was a part of the post-plebiscite establishment of the BARMM until the “immediately executory” SC Decision ruling that it “shall not be part of the Bangsamoro Autonomous Region.”  It is the SC Decision that has done the “abolishing” — of one integral provincial part of BARMM.   

In proffering an alternative constitutional interpretation to that of the SC Decision, we can be inspired by the spirit and wisdom of its ponente SAJ Leonen when he was the Chair of the Government of the Philippines (GPH) peace panel that successfully negotiated with the Moro Islamic Liberation Front (MILF) for a Framework Agreement on the Bangsamoro (2012) and had repeatedly said that the “asymmetric relationship”  that the MILF had put forward for the future Bangsamoro “new autonomous political entity… to replace the ARMM” can be worked out “within the flexibility of the 1987 Constitution.”  That and certain established rules of constitutional and statutory construction or interpretation.

The very spirit, intent and purpose of the Constitution’s key Art. X, Sec. 15 that “created autonomous regions in Muslim Mindanao…” (earlier fully quoted above) should tip the balance against the strict letter of its ensuing Sec. 18, second sentence proviso “that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”  Since this proviso mentions “geographic areas,” the BOL’s own corresponding Art. XV, Sec. 3(a) proviso “That the provinces and cities of the present Autonomous Region in Muslim Mindanao shall vote as one geographical area” should be upheld pursuant to the higher spirit, intent and purpose of the creation or enhancement of an autonomous region in Muslim Mindanao. 

Ratio legis.  “The spirit or intention of the law prevails over the letter thereof.” (U.S. vs. Yee Ngee How, D.C. Cal. 105, F. Supp. 577)  “The statute may be extended to cases which are not included within the literal meaning of the words if such cases are within the reason for the statute.”  (U.S. vs. Freeman, 11 L. ed., p. 724)  “When the interpretation of the statute according to the exact words would lead to absurdity, it should be construed according to the spirit and reason, disregarding if necessary, the letter of the law.” (Lopez vs. Court of Tax Appeals, 100 Phil. 850)

We respectfully submit that the exclusion of Sulu from BARMM is an absurdity not only in itself in terms of separation from and detraction of Muslim Mindanao but also other further likely adverse consequences.  Lanao del Sur Rep. Zia Alonto Adiong said the loss of Jolo leaves a deep void in the Bangsamoro homeland.  These are political tremors that endanger the very foundation of a unified Bangsamoro.  With the departure of Sulu, the remaining provinces must now ask themselves whether the door has been opened for their own departure. The cracks in this collective struggle for autonomy may undo the decades of effort that brought us to this point.  We all find ourselves back [to] square one.”  Former BARMM Interior Minister Sinarimbo adds, “In the end, we will be left with no provinces and cities.”    

To uphold the Organic Law proviso implementing the Constitutional proviso would also be pursuant to upholding the hierarchy of local autonomy between autonomous regions (higher) and regular local government units like provinces (lower).   This was importantly clarified in the SC likewise unanimous Decision in Cordillera Broad Coalition vs. Commission on Audit, 181 SCRA 495 (1990), penned by the late Bikolana Justice Irene R. Cortes: (underscoring supplied)

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was no express guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in the country [Villegas v. Subido, supra.]

On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions [Art. X, sec. 18].

We respectfully submit that in the concept and spirit of the higher political autonomy of or “decentralization of power” to autonomous regions, the lower administrative autonomy of or “decentralization of administration” to the regular LGUs may be made to yield to the former, especially on so crucial a matter as the creation of an organically whole autonomous region, as may be necessary, even if this “deprives the constituent units of their local autonomy” and “the right of suffrage of [a province’s] constituents.”  This is of course a judgment call in favor of the maintaining no less than the established integrity of the autonomous region.  A judgment call based on “The greatest good for the greatest number,” to take a maxim of Utilitarianism, a tradition of ethical philosophy that is associated with Jeremy Bentham and John Stuart Mill, two British philosophers, economists, and political thinkers, who have also been referred to in legal philosophy.       

Interim Bangsamoro Parliament Deputy Speaker Sema said:  “Autonomy was already established in 1989 hence, the ARMM (Autonomous Region in Muslim Mindanao) was already a government unit when the 2019 plebiscite was conducted, in fact, [it] was classified by the Supreme Court as a local government unit in many of its decisions.  Therefore, the determination of consent to change from ARMM to BARMM should be based on the entirety of the ARMM as a whole and not per component province. That was the intent of the Bangsamoro Transition Commission during the deliberations in Congress.”  Sema said that even as the ruling was shared by all magistrates of the Supreme Court, an appeal should be lodged to argue on the wisdom of reckoning the majority vote for the BOL in the 2019 plebiscite at the regional level “and for the sake of Sulu, even if that is a longshot [effort].”

But more so, given that “The Decision is immediately executory,” thus not even giving room for reconsideration before execution. And the most affected entity BARMM cannot even lodge a Motion for Reconsideration (MR) because it was not a party to the case. But the MILF is a party respondent.  It should soonest file a timely best effort MR.  Fortunately, it and the Bangsamoro cause have a new younger generation of legal eagles, including some notable women lawyers this time, and now is the time for all good Bangsamoro lawyers to come to the aid of that cause before the SC. May they be inspired by the preceding generation of Bangsamoro lawyers who fought the good fights of the past like Michael Mastura, Musib Buat, Lanang Ali, and the brothers Macapanton and Firdausi Abbas.  

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SOLIMAN M. SANTOS, JR. is retired RTC Judge of Naga City;  a long-time human rights and international humanitarian lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer on both the Communist and Moro fronts of war and peace; author of a number of books, including:  The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001, 2^nd printing 2009);  Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao 2005);  Referendum on Political Options: Study Papers on the Legal and Historical Basis (Mindanao Peoples’ Peace Movement, 2010);  In Defense of and Thinking Beyond the GRP-MILF MOA-AD: A Peace Advocate’s Essays on the Controversial Memorandum of Agreement on Ancestral Domain (AFRIM, 2011); and Federalism and Cha-Cha for Peace:  Critical Papers on Federalism and Charter Change for the Mindanao Peace Process (Institute of Autonomy and Governance, 2016).