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Congress cannot abolish ARMM

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As of this writing, there are two separate petitions filed in the Supreme Court which assail the constitutionality of Republic Act (RA) 11054 or the Bangsamoro Organic Law (BOL). The petitioners are the provincial governor of Sulu and the Philippine Constitution Association (Philconsa).

“The present Congress is certainly not the first Congress.

To recall, the BOL is a revised version of the controversial Bangsamoro Basic Law (BBL) which was an attempt by President Benigno Aquino III to establish a Moro sub-state in Mindanao. Fortunately, the BBL was not acted upon by the Senate due to its many objectionable provisions pointed out by experts in constitutional law.

If approved in a plebiscite to be held in Mindanao early next year, the BOL will create the Bangsamoro Autonomous Region (BAR) which will replace the existing Autonomous Region in Muslim Mindanao (ARMM). The BAR will have a parliamentary government, unlike the presidential system in the country. A prime minister will head the BAR, with powers almost akin to the President of the Philippines.

The petitioners contend, among other arguments, that Congress cannot abolish the ARMM and replace it with the BAR because the 1987 Constitution allows only two autonomous regions and they are already operating. For them, the Constitution must be amended first to allow Congress to replace the ARMM.

Actually, the issue raised by the petitioners can be simplified. Does Congress have the power to enact legislation abolishing the existing ARMM and replacing it with the BAR? May the BAR government be a parliamentary one?

Section 15, Article X of the Constitution allows the establishment of two autonomous regions — in Muslim Mindanao and in the Cordilleras — which shall have characteristics within the framework of the Constitution.

There is Section 18 of Article X which requires Congress to enact an organic act for each autonomous region. It also states that the creation of the autonomous region shall take effect if approved in a plebiscite.

Under Section 19, the power to enact the organic acts for the two autonomous regions is vested in “the first Congress elected under this Constitution.”

The Philconsa cites the proceedings of the 1986 Constitutional Commission which drafted the 1987 Constitution which indicate that two commissioners, Fr. Joaquin Bernas, S.J. and Blas Ople, clarified during the deliberations of the commission that a constitutional amendment is the only way to create a new and distinct autonomous region.

From a holistic perspective, therefore, it looks like the BOL suffers from constitutional infirmity.

Section 19 vests the power to enact the organic acts for the two autonomous regions in the first Congress, that is, the one which operated from 1987 up to 1992. The present Congress is certainly not the first Congress.

“If approved in a plebiscite, the BOL will create the BAR which will replace the existing ARMM.

Doesn’t Congress have the power to amend the organic act of the ARMM by enacting a law replacing the latter with the BAR?

That may seem so, but the organic act of the ARMM is no ordinary piece of legislation because the said organic act was approved in a plebiscite. Congress cannot undo what the Filipino voters decided by way of the plebiscite, unless Congress disregards the concept of popular sovereignty recited in Section 1, Article II of the current charter.

The 1987 Constitution was approved by the sovereign Filipino people in a plebiscite. Why is it that Congress can propose amendments to the 1987 Constitution, notwithstanding its approval in a plebiscite?

For one, Congress cannot amend the Constitution. It can only propose amendments, for approval in a plebiscite and only because Article XVII of the Constitution explicitly allows amendments in accordance with a strict procedure recited likewise in Article XVII.

In contra-distinction, Article X of the 1987 Constitution has no provision allowing Congress to change a statute that has been approved in a plebiscite by the sovereign Filipino voters. This is probably the reason why Commissioners Bernas and Ople clarified during the deliberations of the 1986 Constitutional Commission that a constitutional amendment is the only way to create a new and distinct autonomous region, either in Muslim Mindanao or in the Cordilleras.

Congress, therefore, cannot abolish the ARMM and replace it with the BAR by means of RA 11054.

Finally, the parliamentary government to be installed in the BAR runs afoul of Section 15, Article X of the Constitution which mandates that the government system in the autonomous region shall have characteristics within the framework of the 1987 Constitution. The government operating under the 1987 Constitution is a presidential system, not a parliamentary one. On this score as well, the BOL is constitutionally flawed.

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