TWO BBL STRATEGIES
entire electorate. After all, the peace we seek is not only for the Bangsamoro but for the
By: Artemio V. Panganiban - @inquirerdotnet
Philippine Daily Inquirer / 12:49 AM May 24, 2015
The two legislative committees primarily handling the proposed Bangsamoro Basic
Law (BBL) favor peace. However, they are using diverse strategies to achieve their common
goal.
Risky strategy. On one hand, the House committee headed by Rep. Rufus
Rodriguez, voting 50-17, approved the BBL with some amendments, but did not revise or
delete several provisions that critics claim are unconstitutional because their revision or
deletion would contravene the government’s comprehensive peace agreement with the
Moro Islamic Liberation Front.
On the other, the Senate committee headed by Sen. Miriam Defensor Santiago
believes that, in addition to passing the BBL, Congress should also amend the Constitution to
validate the questionable portions.
The congressmen, swayed no doubt by their meeting with the President a few days
ago, are taking the calculated risk that the bill would survive scrutiny by the Supreme Court.
Or, at least, they think that the Court would not invalidate the entire BBL (but only separable
parts), unlike the Memorandum of Agreement on Ancestral Domain (MOA-AD) which was
totally scrapped.
Better strategy. I believe the Senate track is safer and better. Why?
First, a constitutional amendment or revision would conclusively solve all the legal
objections to the bill. True, such a route would take more time. But, as I pointed out in this
space on Feb. 8 (“Saving the peace”), the process could be speeded up by Congress by
tackling its legislative function of enacting the BBL alongside its constituent function of
amending the Constitution.
For lack of space, I will no longer repeat how this could be done. Anyway, readers
can easily access that older column from the website of this paper (www.inquirer.net) or from
my personal website (www.cjpanganiban.com). Suffice it to say that the whole process can
be done within this year, if Congress puts its mind to it.
Second, constitutional amendments would undergo a nationwide debate and
plebiscite. In contrast, the purely legislative route would subject the BBL only to a plebiscite
in the autonomous region of Mindanao which would constitute the proposed Bangsamoro
homeland.
A national plebiscite would mean a free and robust discussion and vote by the
whole country and for all our people.
Third, while the BBL would be passed under the present Congress and the present
President, its implementation would be undertaken mostly by the new president to be
elected in 2016. So, too, a purely legislated BBL would surely be challenged in the Supreme
Court. Given the requirements of due process, the case may not be decided within the tenure
of President Aquino.
The next president may not be as committed to the BBL and may not defend it as
passionately as P-Noy and his administration. Cases are won or lost because of the facts,
issues and arguments presented by the parties to the courts. If the parties do not present
them prudently and diligently, the courts may not have enough justification to uphold the
BBL.
But if the BBL is backed by constitutional changes, there would be no challenge to
its constitutionality. Equally important, the next president would be compelled to implement
the BBL in full because it would carry the mandate of the entire electorate, not just of those
in the Mindanao autonomous region.
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More on arbitration. An internationally-respected arbiter, who requested
anonymity (true to their calling, arbiters prefer to keep a low profile), e-mailed an interesting
comment on my piece last Sunday (“Respect and obey arbitral decisions”).
He explained that the United Nations Convention on the Law of the Sea (Unclos)
which created the International Tribunal for the Law of the Sea (Itlos) has an “opt out
provision” allowing a member of the Unclos, like China, to “reject” an arbitration suit.
However, China did not expressly invoke this provision in its controversy with the
Philippines over the Spratlys and other isles in the West Philippine Sea. It “simply refused to
participate” in the arbitral proceeding. The question is whether the Itlos panel hearing the
arbitration case will construe this “refusal” as a “rejection.” If so, then the Philippines will
probably lose because the tribunal would simply dismiss the case for lack of jurisdiction.
On the other hand, the arbiter stressed, if the Philippines would “hurdle the
jurisdictional issue, the likelihood is that it will win. Reason: the Philippine government is the
only one presenting arguments and evidence.” The second question is: If, indeed, the
Philippines wins, how can the decision be enforced against China?
 He agreed with me that the Philippines would lose its moral ascendancy to ask
China to honor an Itlos decision unfavorable to China, if the Philippines would honor and obey
only arbitral decisions it wins (like the Manila Water case) and disobey those it loses (like the
Maynilad Water case). Our country should be consistent in observing the rule of law
regardless of the outcome of arbitral proceedings in which it freely and actively participated.

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The temporary restraining order issued by the Court of Appeals stopping the Bases
Conversion and Development Authority from evicting the Camp John Hay Development Corp.
upheld the arbitral decision of the Philippine Dispute Resolution Center Inc. Equally
important, it also protected the rights of the innocent bystanders I wrote about last Sunday.

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