CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
11 January 2015
We continue in our analysis of the key aspects of the draft Bangsamoro Basic Law (BBL) in the hope that this will become useful as the Philippine Congress continues deliberations on the draft BBL. We now go to Article IX of the draft BBL which is entitled BASIC RIGHTS. From the way these provisions are worded, they read like our 1987 Constitution’s Bill of Rights, the most important part of a modern constitution which guarantees the rights of individuals vis-à-vis that of the State. While they seem harmless, these questions arise :
1. Are they enforceable without need of any other implementing legislation?
While it seems strange that no explicit reference at all to the 1987 Constitution was made when referring to the “basic rights already enjoyed by the citizens residing in the Bangsamoro”, the more important question when it comes to these bill of rights arises from the phrase “the Bangsamoro Government shall guarantee the following enforceable rights” which should be read along with the tail-end of the provision after those basic rights have been enumerated where a sentence is found which reads : “The Bangsamoro Parliament may pass a law for the promotion and protection of the above-enumerated rights.”
First observation – these rights are declared already as enforceable given that they are guaranteed by the Bangsamoro Government;
Second observation – for these rights to be promoted and protected, the legislative body of the Bangsamoro Government is not compelled to pass a law for this purpose, given the word “may” in the sentence.
From these observations, it is apparent these rights are not self-executing without this particular legislation from the Bangsamoro Parliament. Can they however be asserted by the Bangsamoro residents without such legislation? The answer here seems to be yes, though whether these rights can be asserted against the government by the individuals who claim these rights, and like in the Civil Code which provides for damages for violations of constitutional rights, no damages can be claimed in case they are not enforced, promoted or protected.
The Philippine Congress should clarify this seeming ambivalence in the draft BBL so that the basic rights of the Bangsamoro can be guaranteed and enforced.
2. Why didn’t they just copy-paste the Bill of Rights and the other key parts of the 1987 Constitution and be done with it?
Going through the entire twenty-one provisions in this Article on BASIC RIGHTS, the careful reader cannot but ask, the drafters of the BBL should just have written a single provision which imports the entire text of the 1987 Constitution, including its Bill of Rights, and that is already a clear assurance these basic rights can be invoked by the residents of the Bangsamoro. That is not what happened here in this draft BBL; in fact, as earlier observed, there is even no explicit reference to the 1987 Constitution in any of these provisions.
Why is this so, perhaps that was the result of the negotiations with the Moro Islamic Liberation Front. What this lack of explicit reference to the 1987 Constitution means is that all those rights that are found in the 1987 Constitution cannot be invoked in the Bangsamoro and by the Bangsamoro residents. Some of them, like the freedom of expression discussed below, appears to have been re-configured or re-prioritized, based on the plain reading of the provisions. If this is what will happen to the bill of rights of the residents of the Bangsamoro who happen to be subject to the 1987 Constitution no matter what the BBL will say, then this will result in confusion and unnecessary litigation just to clarify what these basic rights in the BBL and the bill of rights of the 1987 Constitution mean when put side by side with each other. As a matter of course, if these basic rights of the BBL contravene the letter and spirit of the bill of rights of the 1987 Constitution, the basic rights will definitely be nullified eventually.
Notwithstanding these considerations, there has to be a clearer policy rationale why there is this variance between these basic rights and the rights in the 1987 Constitution including those in the Bill of Rights. It should also be clear what are the remedies available to those who feel their basic constitutional rights have been diminished by the BBL. This is what the legislators in both the Senate and the House of Representatives should look closely into.
3. Will freedom of religious expression trump freedom of speech?
Examining closely the content of these basic rights, some of them appear to be repetitive or may just be aspects of a more basic item, like the following :
Sec. 1 (b) – right to freedom and expression of religion and beliefs;
Sec. 1 (d) – right to freedom of speech
Sec. 1 (e) – right to express political opinion and pursue democratically political aspirations.
The 1987 Constitution in sec. 4 of Article III formulates the same set of rights in this manner:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Taking the cue from the above-cited provision of the 1987 Constitution and looking at the more basic content of the above-enumerated basic rights, all of them in essence deal with freedom of expression, but it seems there are three kinds of freedom of expression in the Bangsamoro – those that relate to religion and beliefs, those that relate to free speech and those that relate to political opinion and the pursuit of democratically political aspirations.
A related question now also arises given the sequence in which they are mentioned, do they point to a hierarchy such that the freedom of expression of religion and beliefs is more preferable to freedom of speech and below these two are the freedom of expression relating to political opinion and the pursuit of democratically political aspirations?
With the recent massacre of writers and cartoonists of Charlie Hebdo in Paris, France, because they purportedly violated the rights of Islamists who hold sacred their notion of the Prophet Mohamad, this issue becomes relevant, since this unclarity in the hierarchy of these freedoms can be seen by the devoutly religious in the Bangsamoro, whatever their religion may be, to say that their freedom of expression of their religion and beliefs comes first before any freedom of speech or freedom of expression relating to political opinion and the pursuit of democratically political aspirations.
The Philippine Congress has a duty to ensure that these rights are formulated in a way that respects these various freedoms without providing or entrenching a seeming prioritization among these rights.