Tinkering with BARMM autonomy (2)

This piece is a sequel to our discussion on the issue of the draft Bangsamoro Electoral Code being questioned by five governors of the Autonomous Region. They claimed the powers sought to be granted are outside the ambit granted by the Bangsamoro Organic Law. This has ruffled feathers in the region, especially among professionals like lawyers, engaging them in legal and political hermeneutics. Local legal luminaries, attorneys Dimapuno-Datu Ramos, Bayan Balt and Faisal Padate, have reacted to the issue.

This early, this column would like to make it known that it will be the first to object to any trampling and travesty of the law. When the text, spirit and history of the law are made crystal clear and are devoid of an iota of doubt about its meaning then, by all means, it should be implemented and the autonomous government should refrain from any act that would bend its import. As lawyers, the law is our master and its majesty should be protected from any self-serving and misguided interpretation.

But knowing that laws are inherently saddled with loopholes that leave legal minds to speculate, we discuss it in a way to find an educated explanation to support, say, the stand of the progressive autonomists. Laws are like water in a porous container. Gurus say: Put five lawyers in a room and you have five interpretations of the law. This is the raison d’etre of the judiciary — to referee controversy.

Offhand, it is conceded that the relationship between central and autonomous governments is asymmetrical. This is a given. National laws are superior at all times to local laws irrespective of the grant of local autonomy. A spring cannot rise higher than its source. But that is not to say the autonomist should accept hook, line, and sinker the interpretation of a jealous central government. As adverted to earlier, the reason autonomy is granted is not only to address political concerns but more importantly to deal with social problems peculiar to a certain sector due to variance in culture, religion and practices.

The governors claim that the draft violates a provision of the Constitution which provides that the Commission on Elections has the “exclusive original jurisdiction over all contests relating to election returns and qualifications of all elective, regional, provincial and city officials.” According to them, the BTA and even the Comelec cannot validly delegate Comelec’s exclusive jurisdiction over electoral contests to the Bangsamoro Parliament Electoral Tribunal. Clearly, you cannot take that power away from the Comelec. But for purposes of academic discussion, the law does not preclude the creation of an adjunct body that will perform the initial determination of facts and unweave the conflicting issues at the first instance. Meaning, the final resolution still lies with the Comelec by way of referral or appeal from the preliminary finding of the BPET. Isn’t this administratively viable? This scheme will unload so much of the work of the Comelec and give more meaning to autonomy. Given the chance, this column will address the other issues raised by the oppositors.

There is an administrative mechanism provided by law, the Intergovernmental Relation Body, which seeks to provide consultation among parties in cases of questions arising from the exercise of autonomous power. This body seeks to provide good chemistry between the autonomous and central governments which should lead to a healthy and progressive relationship. Can we not at least refer the controversy to this body for clarification before “slaying the dragon at sight” as being unconstitutional?

Proponents of the draft code can always invoke the flexibility of the Constitution to address a particular situation without inflicting damage on the substance of the law. Constitutional flexibility is a principle recognized among democratic republican states, including the Philippines. No law is carved in granite.

Can we not leave the issue for the courts to resolve? The judiciary is the built-in mechanism in a democratic setting that can define the extent of the autonomous power.

“The final resolution still lies with the Comelec by way of referral or appeal from the preliminary finding of the Bangsamoro Parliament Electoral Tribunal.

“National laws are superior at all times to local laws irrespective of the grant of local autonomy.