During the celebration of the 35th Anniversary of the Al Manar Philippines, Incorporated at the Mindanao State University, one of the guests was no less than Hon. Mohagher Iqbal, the former chairperson of the Bangsamoro Transition Commission (BTC). In his speech, he categorically stated that the enacted Bangsamoro Organic Law (BOL) is not an Islamic Law; and that the same is not for genuine autonomy.
The Bangsamoro Transition Commission is the entity mandated to consult the Bangsamoro people and draft the basic or organic law for the amendment of the charter of the Autonomous Region in Muslim Mindanao (ARMM). The sole mandate of the BTC was to come up with a replacement law to the charter of the ARMM, and to address the ideals and aspirations of the Bangsamoro people for self-determination and self-governance.
Mr. Iqbal’s assessment was candidly right; the political and economic aspects of the BARMM are fused, and its legal system component is integrated into the Philippine judicial system. The ideals and aspirations of the Bangsamoro people for self-determination and self-governance is confused by the BOL.
Sections 2 and 3, Article VI of the BOL provides for the governmental and political fuses, which provide for the creation of the powerful Intergovernmental Relations Mechanism (IRM) and Philippine Congress-Bangsamoro Parliament Forum (PCBPF), respectively. Governmental plans and programs of the BARMM will be subjected to the guidelines and system control of the IRM, while laws and policies that maybe pursued by the BARMM will be under the scrutiny of the PCBPF.
Further, Sections 4 (Intergovernmental Fiscal Policy Board, IFPB), Section 5 (Joint Body for the Zones of Joint Cooperation, JBZJC), Section 6 (Intergovernmental Infrastructure Development Board, IIDB), Section 7 (Intergovernmental Energy Board, IEB), and Section 8 (Bangsamoro Sustainable Development Board, BSDB) of Article VI of the BOL provide for the short-circuiting of the economic, infrastructure, and development programs of the BARMM.
The IFPB is mandated inter alia to determine the participation of the Bangsamoro Government in the board of directors of GOCC’s, their participation in the operations of GOCC’s, and their participation in the Al-Amanah Islamic Investment Bank and the Southern Development Authority.
The JBZJC is responsible for formulating policies relating to the Zones of Joint Cooperation in the Sulu Sea and Moro Gulf. It is mandated to ensure cooperation and coordination between the NG and the BARMM on the exploration, development, and utilization of non living resources in the Zones of Joint Cooperation and determine the sharing of income and revenues derived therefrom.
The IIDB shall be responsible for coordinating and synchronizing national and Bangsamoro infrastructure development plans; while the BSDB shall ensure the integration and harmonization of economic, social, and environmental considerations as vital dimensions of sustainable development policy and practice in the Bangsamoro Autonomous Region.
And, the IEB is mandated to ensure that provisions of R.A. 9136, otherwise known as the “Electric Power Industry Reform Act of 2001,” shall be implemented in the Bangsamoro region. It goes without saying that the energy sector privatization policy of the NG will be pursued in the Bangsamoro.
The intergovernmental cooperation mechanisms embodied in the BOL may be well-envisioned and nobly-intentioned, however the truth of the pudding is in the eating. It cannot be denied that when representatives of the BARMM and the National Government (NG) are sitting in a forum or board the moral ascendancy of the latter over the former cannot be overemphasized. The NG is the possessor of the purse and sovereignty, while the BARMM is a subject that is dependent on the benevolence of the NG. These cooperation mechanisms somehow are antithetical to a meaningful and genuine regional autonomy.
Moreover, Section 2, Article V of the BOL enumerates the fifty five (55) powers of the BARMM that over which it can exercise authority—from administration of justice to water supply and services, flood control, and irrigation system; yet confusingly, Section 5 thereof, enumerates only five (5) powers of the Bangsamoro Parliament whereby it can enact laws, such as:
- Enact laws to promote, protect, and ensure the general welfare of the Bangsamoro people and other inhabitants in the Bangsamoro Region; xxx;
- Enact a law on initiatives; xxx;
- Enact a law that allows the Chief Minister, Speaker of the Parliament, and the Presiding Justice of the Shari’ah High Court to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations;
- Enact a law within the competencies of the Bangsamoro Government to regulate the grant of regional franchises and concessions, and empower the Chief Minister to grant leases, permits, and licenses over agricultural lands and for forest management; xxx
- Enact laws declaring Bangsamoro holidays; and xxx.
The BOL categorically states that the powers of government shall be vested in the Bangsamoro Parliament (Section 2, Article VII). Needless to mention, the ideals and aspirations of the Bangsamoro people for self-determination and self-governance is as good as the powers endowed to their representatives in the Bangsamoro Parliament.
The ocean of discrepancies and variances between the authorities that can be exercised by the Bangsamoro Government and the corresponding powers of the Bangsamoro Parliament to enact laws only give lights to the suspicion of the public that BARMM is a mere administrative region facilitating and coordinating the plans, programs and policies of the National Government. Indeed, as earlier claimed by Mr. Iqbal, BARMM is not a meaningful and genuine autonomy.
Of greater importance and maybe a source of confusion, too, is the inclusion of the administration of justice as one of the powers of the Bangsamoro government. Article X of the BOL provides for the Justice System in the Bangsamoro, the Shari’ah Courts, the Sources of Shari’ah, the power of the Parliament to Enact Laws Pertaining to Shari’ah, the creation of the Shari’ah High Court, and the Qualifications of Shari’ah justices and judges, among others.
The Shari’ah courts within the Bangsamoro territorial jurisdiction shall form part of the Philippine judicial system subject to the supervision of the Supreme Court. The Congress of the Philippines may create additional Shari’ah courts in the Bangsamoro region upon the recommendation of the Supreme Court. It may also create Shari’ah courts outside the Bangsamoro Autonomous Region in areas where a considerable number of Muslims reside (Section 2, Article X, BOL).
Presidential Decree No. 1083, also known as the Code of Muslim Personal Laws of the Philippines (CMPL), was promulgated by then President Ferdinand Edralin Marcos on February 4, 1977, which mandated the recognition of the legal system of the Muslims in the Philippines as part of the law of the land; codification of Muslim personal laws; and the provision for an effective administration and enforcement of Muslim personal laws among Muslims.
In the administration and enforcement of Muslim personal laws, PD 1083 provides for the creation of Shari’ah Circuit Courts and Shari’ah District Courts within and outside territorial jurisdiction of the now BARMM, like in the Provinces of Zamboanga del Norte and Zamboanga del Sur, Provinces of North Cotabato and Sultan Kudarat, and the Province of Lanao del Norte. It also created the Office of the Jurisconsult in Articles 164-168 of the said law.
Section 7, Article X of BOL provides for the creation of a Shari’ah High Court, to wit:
“There is hereby created within the Bangsamoro territorial jurisdiction, as part of the Philippine Judicial system, a Shari’ah High Court. It shall exercise exclusive original jurisdiction over the following cases where either or both parties are Muslims: Provided, that the non-Muslim party voluntarily submits to its jurisdiction:
- All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes, in aid of its appellate jurisdiction; and
- All actions for annulment of judgments of Shari’ah District Courts.
The Shari’ah High Court shall exercise exclusive appellate jurisdiction over cases under the jurisdiction of the Shari’ah District Courts within or outside the Bangsamoro Autonomous Region.
Gleaned from the interplay of the provisions of P. D. 1083 and BOL, it appears that the Bangsamoro Justice System is not confined within the territorial jurisdiction of the BARMM, and is integrated into the Philippine Judicial System. The administration of Shari’ah legal system in the Philippines is nationwide in scope. The BOL is not however categorical as to the sources of funds needed for the operationalization of the Shari’ah legal system in the Philippines.
Presently, the administration of the Shari’ah courts created under and by virtue of P. D. 1083 are being funded from the budget of the Philippine Judiciary. Since the Shari’ah High Court is created under the BOL, does it follow that the operationalization of the Shari’ah High Court will be funded from the budget of the BARMM? If not, then it will be funded under the budget of the Philippine Judiciary. How about those Shari’ah Courts that maybe created by the Congress of the Philippines that operate outside the territorial jurisdiction of the BARMM, will it be funded similarly with the Shari’ah High Court?
If the scheme and design of the Bangsamoro Justice System is integration with the Philippine Judicial System in order to ensure its independence from the political branches of government, the budget for its operationalization must be included in the budget of the Philippine Judiciary and shall also enjoy some form of fiscal autonomy. The implication and import of the provision of BOL, particularly Section 5(e), Article V, regarding the authority of the Bangsamoro Parliament to enact laws for the augmentation of the budget of various offices, including the Shari’ah High Court, from their savings, however, does not connote enjoyment of fiscal autonomy by the Shari’ah High Court.
And, the mother of all confusions brought about by BOL, especially in the administration of Shari’ah legal system, is the abolition of the Office of the Jurisconsult created under and by virtue of P. D. 1083. The importance of the functions of the jurisconsult cannot be overemphasized. Historically and theoretically, one of the functions of the jurisconsult is to bridge the relationship of the ulama, a very important component of Shari’ah legal system, with the ruler or the political branch of the government. The only word that can explain the abolition of the Office of the Jurisconsult is ‘mindboggling.’
Truly, there are aspects of the Bangsamoro Organic law that are mindboggling. Thus, the words of then MSU President Macapado Muslim find relevance when he whispered to the writer that the quest of the Bangsamoro people for a meaningful and genuine regional autonomy must continue amidst the BOL. The show must go on, he added.
Ating Diacat, also goes by the name, Inno Mangaday, is a prosecutor and professor of law. He has been a long time Nexus Contributor.