Cocabo, Patrick Vincent Go

Fundamentals of Thesis Writing 1

3B
____________________________________________________________________
THESIS TOPIC:
The Expansion of the Jurisdiction of Sharia Courts
LEGAL ISSUE:
The expansion of the Shari'a court's jurisdiction under the Framework Agreement was
adopted by the Comprehensive Agreement on the Bangsamoro. However, the
enumeration of Article X sec 18 of the constitution imposes several restrictions on the
mandate of congress to extend powers to the autonomy. The limitations on
government powers and the exclusive enumerations in the constitution run contrary to
the current developments in the expansion of the Shari'a court's jurisdiction.
THESIS STATEMENT :
Article X of the 1987 Constitution created a mandate for Congress to enact an organic
act for the autonomous region of Muslim Mindanao. Under paragraph III-3 and III-5
of the Framework Agreement, the Philippine Government and the MILF agreed to
expand the jurisdiction of Shari'a courts to criminal law. This thesis will show how
the expansion is unconstitutional. It is unconstitutional because of the limited
mandate under Article X par. 18, it is violative of equal protection, separation of
powers and the rights accorded to religion. A constitutional amendment is necessary
to fulfill the goal of a complete Shari'a court.
PRELIMINARY OUTLINE:
Chapter I: Introduction
A. A brief background of Sharia Courts.
i. Purpose
ii. Powers
iii. Relevance
B. The development of the Bangsamoro
i. Muslims in the Philippines
ii. The creation of Shari'a courts under the Code of Muslim Personal Law.
iii. The 1987 constitution.
iv. The Framework Agreement on the Bangsamoro/ Comprehensive
Agreement on the Bangsamoro.

C. The expansion of jurisdiction

i. The mandate under Article X of the 1987 constitution
ii. The current status of Shari'a Courts and their jurisdiction.
iii The proposed expansions of Shari'a Court jurisdiction inside and outside
the Bangsamoro.
a. Subject Matter
b. Territory
c. Person
D. Constitutional issues affecting the expansion of Jurisdiction.
i. Enumeration of Article X sec 18: Limited to Personal, Property and Family.
ii. Scope of designation of "Special courts"
iii. Violation of Equal Protection Clause
iv.Separation of Powers
v. Freedom of Religion
Legal Issue: The expansion of the sharia court jurisdiction under the Framework
Agreement was adopted by the Comprehensive agreement on the Bangsamoro.
However, the enumeration of Article X sec 18 of the constitution imposes several
restrictions on the mandate of congress to extend powers to the autonomy. The
limitations on government powers and the exclusive enumerations in the constitution
are contrary to the current developments in the expansion of the Shari'a court's
jurisdiction.
E. Objectives
i. This thesis aims to address constitutional issues relating to the expansion
of the Jurisdiction of Shari'a courts.
ii. This thesis aims to suggest approaches to unifying and harmonizing gaps
between the constitution and the negotiated provisions of the Organic law
that reflect current state interest in peaceful co-existence with the Filipino
Muslims.
Problem statement: Article X of the 1987 constitution created a mandate for Congress
to enact an organic act for the autonomous region of Muslim Mindanao. Under
paragraph III-3 and III-5 of the Framework Agreement, the Philippine Government
and the MILF agreed to expand the jurisdiction of Shari'a courts to criminal law. This
thesis will show how the expansion is unconstitutional. It is unconstitutional because
of the limited mandate under Paragraph X and 18, it is violative of equal protection,
separation of powers and the rights accorded to religion. A constitutional amendment
is necessary to fulfill the goal of a complete Shari'a court.

F. Significance of the study.

i. For 17 years, the government of the Philippines and the Muslim Separatist
Groups have sought to reconcile state-Muslim interests. Being the closest
both parties have ever been to the idea of a true Bangsamoro, it is
imperative that we examine the limits of the constitution to avoid future
controversies that may cull all the progress we have made through the
years.
ii. Failure to avoid future controversies may resort to armed conflict.
iii. As a cultural minority, the state is vested with the responsibility to take
care of the Muslims in consideration of their unique cultural and religious
beliefs. Because of the positive developments in Shari'a court jurisdiction
that are sure to happen in the future, it is important that the
transition does not cause any injustice.
G. Limitations.
i. The Framework Agreement contemplates two courts: A Shari'a court and a
tribal court. For this thesis, the proponent will not include tribal courts.
H. Methodology:
i. Qualitative Research: Interviews and observations.
ii. Comparative analysis: Comparing the Philippines to other Countries with a
more developed Shari'a court system.
I. Definition of Terms.
i. Framework Agreement on the Bangsamoro
ii. Comprehensive Agreement on the Bangsamoro.
iii. Jurisdiction
iv. Jurisdiction as to subject matter.
v. Jurisdiction as to territory.
vi. Bangsamoro.
Chapter 2: Review of Related literature:
Chapter 2.1: Expanded Jurisdiction as to Subject Matter.
A. The call for the expansion of a complete Shari'a Court Jurisdiction over
Criminal, Commercial, Religious, International laws etc.
i) An analysis on Villagracia vs. 5th Shari'a court and the call for an
organization of a complete Shari'a court.
ii) Interviews
iii) An analysis of the growing trend towards the complete Shari'a
court.

B. The intent behind Article X sec 18 of the 1987 framers in enumerating

Personal, Family and property law Jurisdiction.
i) A discussion on the transcripts of the deliberations from the
Constitutional Commission.
ii) Interviews of members of the Constitutional Commission.
C. The FAB and the inclusion of Criminal law Jurisdiction.
i) Transcripts of the deliberation of the Office of the Presidential
Adviser on the Peace Process.
ii) Interviews with Negotiators.
D. The introduction substantive Muslim laws: penal, commercial and other
laws.
`
Chapter 2.2: Implications of expanding the territorial jurisdiction.
A. The current scope of Shari'a court Jurisdiction in the Code of Muslim
Personal laws.
i) Shari'a Court Territorial Jurisdiction in the current Circuit and
district courts..
ii) Current Shari'a Court Territorial Jurisdiction outside the Circuit
and district courts.
B. The FAB's expansion to include Muslims outside the Bangsamoro.
i) An comparative territorial jurisdiction between the current
circuit/district courts and the new Bangsamoro Region.
ii) The creation of new courts to encompass the Bangsamoro.
C. The possibility of creating Shari'a courts outside the Bangsamoro.
i) Proposed models for original jurisdiction.
ii)Proposed models for concurrent jurisdiction
iii) Proposed models for appellate jurisdiction.
D. Critiques on Constitutional issues:
i) Equal protection: Muslims within and outside the Bangsamoro
would be governed by different rules and different courts.
ii) There is an application of a religious test for jurisdiction between
Muslims in different territories.

Chapter 2.3: Expanded Jurisdiction in Circuit Shari'a and District Shari'a

Courts.
A. An overview of special courts
i) A comparison between Sandiganbayan, Tax Courts,
etc. as to purpose.
ii) A comparison between Sandiganbayan, Tax Courts,
etc. as to modes of appeal.
iii) As to who may be brought to the courts.
B. The power of Congress to create special courts.
i) Scope
ii) Purpose
iii) Application
iv) Critique on Separation of Powers:
a) Legislative vs. the Judiciary.
b) Judiciary's power to regulate the practice: Shari'a Lawyers,
not really lawyers? A critical analysis on the implications of
the expansion of jurisdiction.
C. The intent behind Article X sec. 18 of the 1987 in the designation of the
creation of "special courts".
i. A discussion on the transcripts from the Constitutional commission
ii. Interviews with the members of the Constitutional commission.
D. The power of Congress to determine a hierarchy of courts.
E. Constitutional limitations on Separation of powers.
Chapter 3: Analysis
A. Limitations of the current constitution prevent the expansion of the
jurisdiction of the Shari'a courts.
i. As to subject matter, the enumeration is exclusive.
ii. As to territory, it is limited to the Bangsamoro Juridical Entity.
iii. As to the limitation of "between Muslims", it creates unequal
protection.
B. An overview of a complete Shari'a court.
i. The provisions of the constitution that need amendments.
ii. Adaptation and procedures in adopting new systems of the Shari'a
juridical entity.

C. Working models of other countries: Sharia Court systems practiced in other

states:
i. Established Muslim Communities
a. Saudi Arabia
b. Indonesia
ii. Developing Muslim Communities
a. Nigeria
b. Malaysia
iii. A comparison of the current and proposed framework of Shari'a
Courts in the Philippines v. Models abroad.
Chapter 4: Recommendation and Conclusion
A. Recommendation
i. Legislation has to be created, the Constitution amended if necessary,
to accommodate the complete jurisdiction of Shari'a Law.
ii. Modification of current procedures regarding Shari'a law.
B. Conclusion
i. The current constitution does not permit the inclusion of a complete
jurisdiction of Shari'a law.
ii. The recommendations of Justice Leonen should be taken into
consideration.

Preliminary Bibliography:
Primary Sources:

A. Constitution:

1973 PHIL. CONST.

1987 PHIL. CONST.

B. Statute:

1997 Rules of Civil Procedure [RULES OF COURT], (1997).

An Act Creating the Court of Agrarian Relations, Prescribing Its Jurisdiction, And
Establishing its Rules of Procedure, Act No. 1267 (1955).

An Act Creating the Court of Tax Appeals, Republic Act No. 1125, (1954).

An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the
Purpose Presidential Decree No. 1606, As Amended Providing Funds Therefor,
And for Other Purposes, Republic Act No. 8249, (1997).

An Act Providing for An Organic Act for the Autonomous Region in Muslim
Mindanao, Republic Act No. 6734, (1989).

An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE],
Act No. 3815, (1932).

An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code],
Republic Act No. 386, (1950).

An Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled
"An Act Providing for the Autonomous Region In Muslim Mindanao," As
Amended, Republic Act No. 9054, (2001).

A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino
Muslim Laws, Codifying Muslim Personal Laws, And Providing for its
Administration and for Other Purposes [Code of Muslim Personal Laws],
Presidential Decree No. 1083, (1977).

"Comprehensive Agreement on the Bangsamoro." Office of the Presidential
Adviser on the Peace Process. March 28, 2014. Accessed August 14, 2013.
http://opapp.gov.ph/resources/comprehensive-agreement-bangsamoro.

"Framework Agreement on the Bangsamaoro." Office of the Presidential Adviser
on the Peace Process. October 15, 2012. Accessed August 14, 2014.
http://www.opapp.gov.ph/resources/framework-agreement-bangsamoro.

Implementing the Organization of the Sangguniang Pampook and the Lupong

Tagapagpaganap ng Pook in Region IX and Region XII and for Other Purposes,
Presidential Decree No. 1618, (1997).

C. Jurisprudence:

Abbas v. COMELEC, GR. 89651, (1989).

Chiongbian v. Orbos, GR 96754, (1995).

Montaer v. Shari'a District Court, GR. 174975, (2009).

Musa v. Moson, GR. 95574, (1991).

Villagracia v. 5th Shari'a District Court, GR. 188832, (2014).

Zamoranos v. People of the Philippines, GR. 193902, (2011).


Secondary Sources:

A. Books:

Alvarez, Abhoud Syed M. Referendum on the Political Options for the
Bangsamoro: Study Papers on Legal and Historical Basis. No ed. 2010.

Alvarez, Jeannette. Bangsamoro Juridical Entity: Philippine Territory at the
Negotiating Table- The Price Tag of Peace? No ed. 2009.

Efante, Fil. Bangsamoro Pact: Unconstitutional or Not? 2014.

Efante, Fil. Bangsamoro: The Quest for Peace. 2013.

Efante, Fil. Mindanao, The Quest for Peace: Two Down, Two to Go. 2013.

Efante, Fil. No Turning Back on MILF Deal: Government Signs Comprehensive
Agreement on the Bangsomoro at Palace. 2014.

Efante, Fil. Ramos Gambit: FVR on the Bangsamoro. 2013.


Lim, Shelly T. The Road to Peace Mindanao: Examining the Bangsamoro Juridical
Entity Option. No ed. Makati: Ateneo De Manila University, 2009.

Magallona, Merlin. Constitutional Dilemmas in the Creation of the Bangsamoro
Political Entity. 2012.

Marohomsalic, Nasser. Framework Agreement on the Bangsamoro: Towards
Hurdling the Constitutional Obstacle to Moro Self-Determination. 2012.


Mendoza, Vincent. Legal Significance of the MOA on the Bangsamoro Ancestral
Domain. No ed. 2008.

Su, Anna Liza. Divided We Stand? An Islamic Case for an Islamic State in a
Federal Philippines. No ed. 2009.

B. Journal:

Special issue on The Framework Agreement on the Bangsamoro, IBP JOURNAL,
(2012).


C. Internet Sources:

Firdaus, Hadiz. "Jurisdiction of Syariah Courts in Malaysia." Academia.edu.
Accessed August 14, 2014.
http://www.academia.edu/3660319/Jurisdiction_of_Syariah_Court_In_Malaysia.

"Jurisprudence on Jurisdiction on Agrarian Courts." Republic of the Philippines
Department of Agrarian Reform. Accessed August 14, 2013.
http://www.lis.dar.gov.ph/documents/6662.

Porcalla, Delon. "Gov't Ready to Defend Constitutionality of Bangsamoro Bill."
Philippine Star. April 14, 2014. Accessed August 14, 2014.
http://www.philstar.com/headlines/2014/04/15/1312823/govt-ready-defend-
constitutionality-bangsamoro-bill.

Saludo, Ricardo. "Will the Bangsamoro Agreement Work?" Manila Times. April 3,
2014. Accessed August 14, 2013. http://www.manilatimes.net/will-the-
bangsamoro-agreement-work/87423/, April 3,2014.

Simons, Jeremy. "Pagdaro Sa Kalinaw: Just Coincidence?- Criminology, Justice
and the Bangsamoro Convergence." MindaNews. July 14, 2014. Accessed August
13, 2013. http://www.mindanews.com/mindaviews/2014/07/14/mindaviews-
pagdaro-sa-kalinaw-just-coincidence-criminology-justice-and-the-bangsamoro-
convergence-1/.