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Commentary

An Islamic state under the BBL

12:06 AM May 25, 2015

SUPPORTERS OF the proposed Bangsamoro Basic Law advance the view that it is perfectly in accordance with our Constitution. How can they say this? By interpreting vague provisions in a manner that is consistent with our fundamental law.

The provisions on the Bangsamoro police are one example. In the BBL, the Bangsamoro police is declared to be part of the Philippine National Police. But it also says that the police shall be under the operational control and supervision of the Bangsamoro chief minister, and that in case of conflict with the national level of the PNP, there will be an intergovernmental relations body that will thresh out differences.

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To advocates of the BBL, the Bangsamoro police remains part of the PNP, and so is constitutional. But the point is that this may not be how the Moro Islamic Liberation Front or its successors in the Bangsamoro government will see the question. If they believe that the Bangsamoro police should operate autonomously, will they agree to the Supreme Court saying otherwise? There is no provision in the BBL for judicial review, only an intergovernmental body to achieve a so-called coordination, and we all know that coordination only works if there is mutual agreement.

Another gray area involves the so-called exclusive powers of the Bangsamoro parliament. The Citizens Peace Council created by Malacañang came up with a report that under the setup, the Bangsamoro would still remain under the national government, but to remove any misunderstanding, the title on exclusive powers should be amended.

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This shows why we think it is not enough to argue that the BBL is constitutional. The stipulations of any bill that comes out of a peace deal with belligerents must be spelled out in an unequivocal way. This is to avoid a possible return to the use of force in resolving differences.

As we see it, by granting the Bangsamoro parliament exclusive powers, the BBL forces Congress to surrender a large measure of its competence to a parliament whose laws will be beyond its reach. If legislative supremacy is a feature of sovereignty, the Bangsamoro will become a state in its own right. It will, moreover, be an Islamic state given the extent of the powers it will have.

An Islamic state exists to enforce the Shari’ah law. The primary sources of Shari’ah are the teachings found in the Koran and the Sunnah. Yet, like the Christian Bible, these books are subject to varying interpretations giving rise to different schools of thought within Islam. Conflicting verses, indeed, may be found in the Koran. Critics have pointed out that earlier passages in the Koran talk of brotherhood and peace, but in later passages, which refer to the time when Muhammad was planning to return to Mecca from exile in Medina, the concept of jihad, or extermination of infidels who stood in the way of Islam, took shape. Fundamentalists say that earlier teachings must give way to later ones, and since jihad came later, it must be the final expression of the prophet’s will. This is why jihad has gained currency among Islamic groups seeking the spread of Islam.

The moderate, more secular strand of Islam shuns the violent side of jihad. In many ways, modern Muslims have embraced a lifestyle that makes them indistinguishable from non-Muslims save for their observance of religious practices. But politics is inseparable from Islam, and Islamic states will ultimately strive, through legislation, to enforce Shari’ah in practically all aspects of life of the population.

Can such an Islamic state be established in Mindanao under the BBL? The answer is decidedly yes.

Islamist groups will, first of all, take control of the Bangsamoro parliament through parliamentary elections. Once this is done, they can pass a law declaring Islam as the official religion. We may wonder how such a measure is possible under our system of government; but note that, while the principle of separation of Church and State is enshrined in our bill of rights, the BBL has engaged in a selective incorporation of such rights, and the principle of separation is not among those carried over. Is the omission deliberate?

With no bar to the union of Church and State, the road is clear for Bangsamoro support of Islamic religious institutions. For while the national government is prohibited from appropriating public money to support a church, it will grant funds to the Bangsamoro which can use them to support its mosques and imams.

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Far more worrisome will be the restrictions the Bangsamoro can impose on basic freedoms of expression and religion—based on its exclusive legislative power to promote Muslim culture. Freedom of religion is contained in the BBL, but from what we see in Islamic states, this can be more theoretical than real. Malaysia recognizes in its constitution the right to a religion, but despite such guarantee, the population is subject to considerable restraints. A Malay native, for instance, must be Muslim, and any

attempt to convert to another religion is punished. On the other hand, it is illegal to disseminate non-Islamic religious material to Muslims.

The limits on freedom of dissent are the most controversial. Under one interpretation of the Shari’ah law, any teaching made by a Muslim that is offensive to Islam is apostasy punishable by death. Not all Islamic states impose capital punishment. But the case of the Egyptian writer Farag Foda is illuminating. Foda was assassinated by militants in 1992, and in the subsequent trial of his killers, an establishmentarian cleric testified that since the state was not willing to punish the apostate, the militants who did were not to blame.

What if we have a fundamentalist for a chief minister? He can use his powers over the Bangsamoro police to prevent it from going after the militants, and because of protocols instituted in the BBL, the PNP and the Armed Forces of the Philippines will be powerless.

All these ambiguities make it imperative to clarify the BBL. The following are suggested: institute the separation of Church and State in the Bangsamoro; subject Bangsamoro legislation to the oversight powers of Congress; and maintain full operational control in the Bangsamoro for the PNP and AFP.

Mario Guariña III is a former associate justice of the Court of Appeals.

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