Dateline Manila: The Bangsamoro parliamentary format of gov’t PDF Print E-mail
Saturday, 13 September 2014 11:55

(Second of Three parts)

 

BY Sammy Santos

 

This is the second installment of the Frequently asked Questions (FAQ) on the proposed Bangsamoro Basic Law that President Aquino submitted to Congress last Wednesday. The President asked Congress to swiftly enact a law creating the Bangsamoro political entity in a crucial step in ending nearly five decades of conflict in Mindanao.

How does a member of the Bangsamoro Parliament forfeit his seat?

A member of the Bangsamoro Parliament shall forfeit his/her seat if:

(i) He or she resigns voluntarily through a written or oral declaration in Parliament;

(ii) He or she is convicted of a grave offense as stipulated in the House Rules that the Bangsamoro Parliament will promulgate, or treason, high crimes, heinous crimes, crimes against morality, or other crimes punishable by more than six years;

(iii) He or she becomes permanently physically or mentally incapacitated and is unable to discharge his/her duties as Member of Parliament or dies while in office;

(iv) He or she, having been elected under the proportional representation system, is replaced by the party to which he/she belongs with another member of said party;

(v) He or she, having been elected under the proportional representation system, transfers to another party during his/her incumbency as member of Bangsamoro Parliament;

(vi) Such other grounds as may be provided under the Bangsamoro Electoral Code.

How will the vacancy created by the forfeiture be filled?

A vacancy in a Proportional Representation Seat shall be filled by the party to which that seat belongs. A vacancy in a District Seat previously occupied by a member affiliated to a party shall be filled by that party, who shall nominate a replacement.  A vacancy in a District Seat previously occupied by an unaffiliated member shall be filled through special election, conducted in the manner prescribed by law enacted by the Bangsamoro Parliament.

Can any political party run in the Bangsamoro elections?

No, only regional political parties that are duly accredited by the Bangsamoro Electoral Office may participate in the parliamentary elections in the Bangsamoro.

How long is the term of office of the members of the Parliament?

A Member of Parliament shall serve for three years, unless otherwise provided by law passed by the Bangsamoro Parliament. However, no member shall serve for more than three consecutive terms.

What are the qualifications of the members of the Parliament?

A member of the Bangsamoro Parliament shall be a citizen of the Philippines, at least twenty-five years of age on the day of the election, able to read and write, and a registered voter in the Bangsamoro.

In addition, District Representatives must be a registered voter of the district in which he or she is a candidate on the day of filing of the certificate of candidacy,and has resided in said district for at least three years immediately preceding the day of the election.

How will the election of the officers of the Bangsamoro Parliament be conducted?

On the first session following their election, the members of the Bangsamoro Parliament shall, in open session, elect by a simple majority vote from all its members the Speaker, and the other officers of the Bangsamoro Parliament as the House Rules of the Bangsamoro Parliament may provide.

Who is and what are the tasks of the Presiding Officer?

The Speaker, Deputy Speaker, or any other person presiding over the Bangsamoro Parliament shall be responsible for ensuring the rights and privileges of all members and public access to the proceeding of the Bangsamoro Parliament and its committees. He or she shall have the authority and moral ascendancy to maintain order and decorum in the Bangsamoro Parliament, in accordance with its House Rules. He or she shall act impartially, and without fear, favor and prejudice.

The Bangsamoro Parliament exercises both legislative and executive functions. How are executive powers exercised?

Executive authority shall be exercised by the Bangsamoro Cabinet, which shall be headed by a Chief Minister. The Chief Minister shall be elected by a majority vote of the Parliament from among its members. The Chief Minister shall appoint the Deputy Chief Minister from among the Members of Parliament, and the members of the Cabinet, majority of whom shall also come from the Parliament.

What are the qualifications of the Chief Minister?

The Chief Minister shall be at least 25 years of age at the time of the election, a bona fide resident of the Bangsamoro for three years immediately preceding the day of the elections, and with proven competence and probity, mentally fit, and known for his/her integrity and high moral standards.

What are the Powers, Duties and Functions of the Chief Minister?

The Chief Minister shall exercise the following powers, duties and functions:

(i) Heads the government of the Bangsamoro;

(ii) Appoints heads of ministries, agencies, bureaus, offices of the Bangsamoro Government or other officers of Bangsamoro owned or controlled corporations or entities with original charters;

(iii) Appoints other officers in the Bangsamoro Government, as may be provided by the Parliament;

(iv) Formulates platform of government subject to approval by the Parliament;

(v) Issues executive orders and other policies of the Bangsamoro Government;

(vi) Represents the government of the Bangsamoro in affairs outside the Bangsamoro; and

(vii) Exercises such other powers and functions inherent to the position.

The Chief Minister shall also be an ex-officio member of the National Security Council (NSC) on matters concerning the Bangsamoro and of the National Economic and Development Authority Board (NEDA).

Why will there be a vote of no confidence against the government?

Parliament may vote against the government, through a vote of no confidence by two-thirds of its members, for a variety of reasons, e.g., when there are serious allegations of corruption rendering the Chief Minister or his or her Cabinet unfit to continue holding his or her/their position/s.

Who will be in charge of the Bangsamoro in case Parliament is dissolved?

In case of dissolution, the incumbent Chief Minister and the Cabinet shall continue to conduct the affairs of the Bangsamoro Government until a new Parliament is convened and a Chief Minister is elected and has qualified.

Who is the Wali?

The Wali shall be the titular head of the Bangsamoro. As titular head, the

Wali shall take on only ceremonial functions. The Wali shall also be under the supervision of the President.

What are basic rights; what is their nature?

Basic rights are those guaranteed by the Bangsamoro Government to its constituents. These include those already enjoyed by all Filipino citizens as well as the right to pursue democratically political aspirations; the right of women to meaningful political participation and protection from all forms of violence; the right to freedom from religious, ethnic and sectarian harassment; and the right to free public education in the elementary and high school levels.

How will human rights be protected in the Bangsamoro?

Under the draft Basic Law, all laws and policies are required to conform to international human rights and humanitarian standards. The rights under the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, and other international human rights instruments are guaranteed by the National Government and the Bangsamoro Government.

What is the Bangsamoro Commission for the Preservation of Cultural Heritage (BCPHP)?

The BCPCH is created to preserve the culture, arts and tradition of the Bangsamoro through the management of cultural and historical sites, and establishment of libraries and museums. Its primary responsibility includes writing the history of the Bangsamoro people and establishing and sustaining the cultural institutions, programs and projects in the Bangsamoro component areas.

How will the right to health be promoted in the Bangsamoro?

The right to health is promoted through the delivery of comprehensive and integrated health service and support for persons with disability.

What is the transitional justice mechanism?

This is a mechanism to address the grievances of the Bangsamoro people, such as historical injustices, human rights violations, marginalization through unjust dispossession of their territorial and proprietary rights and customary land tenure.

How will the right to political participation of sectors in the Bangsamoro be promoted?

Seats for IPs, women, and other sectors shall be allocated in the Bangsamoro assembly and ministers responsible for promoting their rights and welfare may be appointed.

What does the draft Basic Law provide on the rights of the indigenous peoples/indigenous cultural communities (IPs/ICCs)?

The draft Basic Law recognizes the following rights of IPs/ICCs:

(i) Right to native titles and/or fusaka inked;

(ii) Preferential right to explore, develop, and utilize natural resources within areas covered by their native titles. In case these activities are to be undertaken by the Bangsamoro Government, or an authorized concessionaire, the free and prior informed consent of the holder of the native title is required;

(iii) Right to an equitable share in revenues from the exploration, development, and utilization of natural resources within areas covered by their native titles. The Bangsamoro Parliament shall enact a law for this purpose;

(iv) Right to political participation, including to reserved seats for non-Moro IPs/ICCs in the Bangsamoro Parliament. The seats shall be filled pursuant to their customary laws and indigenous processes.

(v) Right to education through the establishment of a tribal university system that will address the higher educational needs of the indigenous cultural communities in the region;

(vi) Recognition of a traditional/tribal justice system. The Bangsamoro Parliament shall enact laws for this purpose, and an Office for Traditional/Tribal Justice System shall also be created.

(vii) Recognition of indigenous structures, or systems which promote peace, law and order;

(viii) Other rights provided in the United Nations Declaration on the Rights of Indigenous Peoples.The draft Basic Law also mandates the creation of an office for the IPs/ICCs in the Bangsamoro, the head of which shall automatically become a member in the cabinet.

What is the relationship between the Shari’ah and National justice systems?  Under the explicit language of the draft Basic Law, Shari’ah  law shall have application over Muslims only, and nothing shall operate to the prejudice of non-Muslims and non-indigenous peoples. There shall be cooperation and coordination with the National Government regarding the Shari’ah justice system (Sections 1,2). The national justice system will remain intact for all matters outside the jurisdiction (matters not mentioned under Sections 5 to 7) of the Shari’ah Courts, and the inherent power of judicial review by the Supreme Court (to review any grave abuse of discretion amounting to lack or excess of  jurisdiction by the Shari’ah Court) under Art. VIII, Sec. 1 of the Constitution, and Rule 65 of the Rules of Court, will not be affected

What laws/matters will the Shari’ah courts have jurisdiction over?

Shari’ah courts in the Bangsamoro shall, in addition to their jurisdiction over personal and property relations under Presidential Decree No. 1083, otherwise known as the Muslim Code of Personal Laws, have jurisdiction over Shari’ah commercial and criminal laws enacted by the Bangsamoro Parliament.  The Shari’ah District, Circuit, and High courts will have jurisdiction over matters enumerated under Sections five, six, and seven, respectively.

Can the Bangsamoro Parliament enact commercial and criminal laws, and are these matters properly cognizable by Shar’iah Courts?

Yes. The Framework Agreement on the Bangsamoro provides for the expansion of the jurisdiction of the Shari’ah courts in the draft Basic Law. Moreover, even as the Bangsamoro Parliament may enact commercial and criminal laws [in addition to “Personal, family, and property relations”], these laws are required to be “subject to the Constitution and national laws”. Pertinently, it should be mentioned that Section Five of Republic Act 9054 (Organic Act of the ARMM), already provides that Shari’ah Courts shall have jurisdiction over criminal and commercial cases involving Muslims.

As for criminal laws, the draft Basic Law provides that they shall only be effective within the territory of the Bangsamoro and shall be in accordance with the universally accepted principles of human rights standards.

What justice institutions are established under the draft Basic Law?  A: The following justice institutions shall be established in the Bangsamoro:

a. The Shari’ah District, and Circuit Courts, and the Shari’ah High Court. Judges/Justices of the Shari’ah courts must have the qualifications listed under Section 9, and they will be appointed by the President through the same mechanism as judges/justices of the regular courts [save for the additional recommendatory powers given to the Shari’ah Judicial and Bar Council (JBC) for the national JBC’s consideration.

b. Shari’ah JBC shall recommend applicants to the national JBC for the positions of judges/justices in the Shari’ah courts in the Bangsamoro. In addition, a consultant to the national JBC shall be appointed to advise it on appointments to the Shari’ahcourts in the Bangsamoro. Power here is merely recommendatory and does not supplant the authority of the national JBC. The Shari’ah JBC shall be composed of five members as provided under Section 12. It may conduct investigations over erring personnel in Shari’ah  courts in the Bangsamoro, and submit the results of such investigation to the Supreme Court for the latter’s action.

c. The Shari’ah Prosecutorial Service shall be part of the National Prosecutorial Service under the Department of Justice.

d. The Shari’ah Academy shall conduct courses and trainings on the practice of Shari’ah law in the Bangsamoro, accredit Shari’ah courses and degrees obtained by Bangsamoro from schools and universities abroad, and develop the curriculum of schools and universities in the Bangsamoro.

e. A traditional/tribal justice system shall be created by the Bangsamoro Parliament. Further, an Office for the Traditional/Tribal Justice System shall be created which shall be responsible in overseeing the study, preservation and development of the tribal justice system within the Bangsamoro.

(To be continued)