1st of 2 parts
NAGA CITY (MindaNews / 16 September) — With due respect, the September 9, 2024 Supreme Court (SC) unanimous Decision in Province of Sulu, et al. vs. Executive Secretary Salvador Medialdia, et al.takes away, with one hand, Sulu from the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) what it gives with the other hand, otherwise upholding the constitutionality of the rest of the Bangsamoro Organic Law (BOL), Republic Act No. 11054. This given constitutional imprimatur by the SC is of course quite important. But what is taken away may ultimately be more than what is given.
The exclusion of Sulu from the BARMM may be likened to the exclusion of Muslim Mindanao (or the West Philippine Sea) from the Philippines. Precisely, the 1987 Philippine Constitution’s key Article X, Section 15 “created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographic areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”
The late eminent Bikolano constitutionalist and 1987 Constitution framer Joaquin G. Bernas, S.J. has written that such “distinctive regional commonality… is found in Muslim Mindanao and in the Cordilleras. As to the areas between these two, they are not characterized by distinctive characteristics but are practically a homogenous culture…. Another purpose of the creation of autonomous regions is to furnish a possible solution to the regional conflicts that have arisen partly from cultural diversity.”
Bernas explained the meaning of “Muslim Mindanao” as “a shorthand expression to designate those areas of Mindanao which are predominantly Muslim.” For the longest time, Sulu has been the Philippine province with the highest Muslim population percentage above 95%, higher in most censuses than Lanao del Sur, Tawi-Tawi, Basilan and the old Maguindanao province. Sulu is also the homeland of the Tausug tribe, one of the three major (out of 13) Muslim ethnolinguistic tribes. The founders of the Moro National Liberation Front (MNLF), who came from the three major tribes (Tausug, Maguindanao, and Maranaw), are credited with imagining (and realizing) the Moro nation (Bangsa Moro) out of these 13 tribes.
Sulu is not just a Province that is a territorial and political subdivision of the Republic of the Philippines. It was also the homeland of the once sovereign state-like Sultanate of Sulu, one of the two great historical Muslim Sultanates in Mindanao, Sulu and Palawan, the other being the Sultanate of Maguindanao. The Sulu Sultanate predated in the 15th Century the Spanish conquest and colonization in the 16th Century of what was then the non-state entity of the scattered Las Islas Filipinas. It took another three-and-a-half centuries before the Philippine Revolution of 1896 against Spain led to the Philippine independence proclamation and the state formation that was the First Philippine Republic in 1898, alongside the then still subsisting two Muslim Sultanates. The ensuing Philippine Republic has in fact invoked the Sulu Sultanate for the Philippine claim to Sabah/ North Borneo.
Sulu is a major integral part of Muslim Mindanao just as the latter is an integral part of the Philippines under the current Constitution. In fact, Sulu has more distinctive commonality with the rest of Muslim Mindanao than the latter has with the rest of the Philippines. But imagine the national furor of the mainstream Filipino Christian majority if Muslim Mindanao were separated, or would separate, from the Philippines. You do not hear that national furor about the SC Decision ruling that “The Province of Sulu shall not be part of the Bangsamoro Autonomous Region.” There are only some Filipino Muslim and BARMM leaders’ dissenting and critical voices in the wilderness reflected in the national media.
Former BARMM Interior Minister Naguib Sinarimbo said, “The consequence of this will be the death of the Bangsamoro idea where a single identity unites all the 13 ethnolinguistic groups of Muslims who have stood against all forms of colonialism over the centuries.”
House Deputy Minority Leader Rep. Mujiv Hataman said: “Even if we revisit our history countless times, it will show that Sulu is the cradle of the struggle for an independent Bangsamoro. Then as now, it will remain the symbol of the Moro’s fight against repression. The story of the valiant warriors of Sulu is part of the Bangsamoro narrative. Many of the MNLF’s heroes and mujahideen come from this province.” Of course, led by MNLF Founding Chairman Nur Misuari.
Interim Bangsamoro Parliament Deputy Speaker Omar Yasser Sema said: “It appears that the court decided on the basis of their limited notions of democracy. They failed to consider that what the people of BARMM consented to was the abandoning of the armed struggle and placing their hopes and aspirations for genuine self-governance in peaceful democratic processes and the preservation of the gains of the peace process.”
In a total of 103 pages (the 98-page Decision penned by Senior Associate Justice Marvic M.V.F. Leonen and the 5-page Concurring Opinion of sole Muslim Associate Justice Japar B. Dimaampao) and 15 strokes of the signature pen, the SC, said to be “the weakest” of the three great constitutional departments of government, appears to have been able to do what the Armed Forces of the Philippines (AFP) has been unable to do in more than four decades: “divide and rule” over (or overrule) the Bangsamoro people. The sword that Lady Justice wielded here to cut off Sulu from the BARMM was none other the Constitution. In particular, Art. X, Sec. 18, second sentence proviso (underscored here): “The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”
On the basis mainly of that constitutional provision, the SC cut down as unconstitutional the BOL’s Art. XV, Sec. 3(a) proviso (underscored): “The Bangsamoro Autonomous Region shall be established and all provinces and cities of the Autonomous Region in Muslim Mindanao created under Republic Act No. 6734, as amended by Republic Act No . 9054, shall form part of the Bangsamoro Autonomous Region if the majority of the votes cast in the Autonomous Region in Muslim Mindanao shall be in favor of the approval of this Organic Law: Provided, That the provinces and cities of the present Autonomous Region in Muslim Mindanao shall vote as one geographical area.”
This BOL proviso on the Results of the Plebiscite does appears on its face to be contrary to and violative of the earlier quoted and underscored applicable constitutional proviso. The SC Decision’s legal reasoning on this sounds logical enough, and we quote its crucial key passage in p. 89: (bold italics in the original)
In considering the ARMM as one geographical area, the Bangsamoro Organic Law transgressed the Constitution and disregarded the autonomy of each constituent unit of what used to comprise the ARMM. The Province of Sulu, as a political subdivision under the ARMM, did not lose its character as such and as a unit granted local autonomy. The Constitution and the Local Government Code provide for how political entities may be abolished. The Province of Sulu cannot be deemed abolished upon its rejection of the Bangsamoro Organic Law. Thus, it was illegally included in the autonomous region, and the Organic Law explicitly violated the constitutional provision that “only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”
There are other passages of relevant legal reasoning in the SC Decision but this above-quoted one is the most crucial and key, and we thus focus on it here, without prejudice to subsequent fuller discussions of the Decision, as there certainly will be, not necessarily by this author.
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, 2nd 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).
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, 2nd 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).