DOJ Opinion No. 200, s. 1982

DOJ OPINION NO. 200 , s. 1982 September 9, 1982 The Presidential Executive Assistant Malacaang, Manila Sir : This refers to Resolution (No. 1, series of 1982) of the Sulu Sultanate and Muslim Leaders and Elders which you referred to this Office for appropriate action and/or comment on their request to the President "to consider the issuance of an executive order reviving and recognizing certain traditional powers and authority of the Sultan of Sulu, to wit: '" FIRST : The Government of the Republic of the Philippines, thru His Excellency President Ferdinand E. Marcos, as Head of the State, officially recognize His Royal Highness Paduka Mahashari Maulana Al-Sultan Punjungan Kiram, Al Hadji, as the rightful Sultan of Sulu and the areas within historical and traditional sphere of influence of the Sulu Sultanate in accordance with the traditional and hereditary right of succession; " SECOND : That in the interest of preserving the honor and integrity due the Sultan of Sulu in accordance with the Sultanate's tradition, and in turn show to the other Islamic nations of the world the sincerity of the Philippine Government for the Muslims and their religion, providing the Sultanate a Royal Residence to become the center of all the Sultan's official and ceremonial activities, to be located in the town of Jolo, Sulu; " THIRD : Revising (sic) and recognizing the traditional religious powers and authority of the Sultan to be exercised within the areas of the Sulu Sultanate's historical and traditional sphere of influence, such as, but not limited to: (a) The administration of all mosques, madrasas (Islamic Schools), and such other properties exclusively devoted to religious or ecclesiastical purposes which may lawfully and properly fall within his authority; (b) The authority to and confer titles to religious or ecclesiastical heads or personnels; (c) The authority to issue rules not contrary to law, and customs, good moral, public order and public policy, necessary to effectively implement the powers and duties of the Sultan; (d) Making the Sultan of Sulu the symbolic and titular head of the Shariah Courts, and as such entitling him to all, the rights and privileges (sic) appurtenant thereto; prcd (c) Making the Sulu Sultanate and Islamic Council an Honorary Consultative Body of the Government of the Republic of the Philippines on all religious and ecclesiastical matters affecting the Muslims within the areas of the Sultanate; (f) Placing the management of the annual pilgrimage to Mecca coming from within the Sulu Sultanate area of influence under the Sulu Sultanate and Islamic Council. " FOURTH : And, with the aim of making the Muslims within the areas of the Sulu Sultanate historical and traditional sphere of influence self-reliant of their religious needs, authorizing the Sultan of Sulu evolve a system of lawfully generating financial resources from all religious and other sectors, activities or functions, and channel then to the construction and maintenance of mosque, madrasas, ecclesiastical offices, and for other religious purposes; " FIFTH : For the creation of a Project Office under the joint undertaking of the Office of the President and the Sulu Sultanate and Islamic Council, to be task with the work of translating the Holy Quoran into the major Muslim dialect in the Philippines, particularly though not limited to; Tausug, Maranao, Maguindanao; printing, publishing, and distributing then to all public and private schools in Region IX, and XII, as basic text in Islamic studies (religion), and in other Muslim areas in the Philippines, for the purpose of enlightening the Muslims in those areas concerning the teaching of the Holy Quoran, considering that Islam is the most effective peaceful means of achieving peace and order among the people therein. For this purpose, authority be granted to import tax free, special paper for the printing of the Holy Quoran;" 1. Comments on the "First" subject matter; The official recognition that may be extended by the Government to the incumbent Sultan as the "rightful Sultan of the Sultanate of Sulu" would have the effect or would amount to the grant of title of royalty or nobility. This may run counter to the provisions of Section 10, Article IV of the Constitution which prohibits the enactment of a law granting title of royalty or nobility. This provision of our Constitution well as that which guarantees a republican government for the Philippines (Sec. 1, Art. II, Constitution), is similar to the provisions in the United States Constitution whose purpose "is to protect a Union founded upon republican principles, and composed entirely of republican members, against aristocratic and monarchial innovations. (Cooley, A Treatise on the Constitutional Limitations, pp. 17-18). Indeed, such recognition would constitute an infringement on the said constitutional injunction and guarantee. 2. Comments on the "Second" subject matter ; As we see it, the subject resolution asks the Philippine Government to provide the Sultanate with a Royal Residence which shall become the center of all the Sultan's official and ceremonial activities. As it does not state the source of the fund for the construction of such Royal Residence, we presume that public funds would be used for the purpose. This may not be allowed by Section 18(1), Article VII, of the 1973 Constitution which prohibits the use of public money, directly or indirectly, for the benefit or support of any priest, preacher, minister, or other religious teacher or " dignitary as such." 3. Comments on the "Third" subject matter ; We do not think that it would be legally or constitutionally feasible for the President to issue an executive order providing for the revival and recognition of the Sultan's religious powers and authority, in view of the provisions of Section 8, Article IV, of the Constitution which provides; "no law shall be made respecting the establishment of religion." A similar clause in the American Constitution has been held to mean that "neither a state nor the federal government can set up a church, neither can it pass laws which aid one religion, aid all religious, or prefer one religion over another; neither can it force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion; no person can be punished for entertaining or professing religious beliefs or disbeliefs, or for church attendance or non-attendance; no tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion, neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organization or groups and vice-versa. (Illinois ex rel.. McCullum v. Board of Education, 333 U.S. 203, 92 L.Ed. 649, 68 S. Ct. 461, 2 A.L.R 2d 1338 [1948]; Everson v. Board of Education, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 564, 168 A.L.R. 2d 1392 [1947]. LexLib The application of the above-cited rule would militate against the issuance of such executive order. The revival and recognition by the government of the traditional religious powers and authority of the Sultan would not only amount to than interference by the government with the religious freedom of the Muslims within the Sultanate, but would also be in dissonance with the principle of separation of church and state enshrined in the Constitution (Sec. 15, Art.. XV, Constitution), under which the State is mandated to observe strict neutrality, neither favoring or discriminating against religious groups. (Fernando, The Bill of Rights, 1970 ed., p. 153). The executive order embodying the requested revival and recognition of the traditional powers and authority of the Sultan would be assailable as favoring or giving a decided advantage over the other religious denominations or groups in the Philippines. It is stated that the traditional powers and authority sought to be revived and recognized are not limited to those enumerated in the third paragraph of the Resolution. Hence, such traditional powers and authority may also include other powers associated with government since it also seeks authority for the Sultan to "issue rules . . . necessary to effectively implement the powers and duties of the Sultan." It is worthy to note that the traditional and historical powers of the Sultan of Sulu are not only associated with the exercise of his religious authority, but also with the exercise of governmental powers within his realm. His subjects look up to him not only as their spiritual leader, but also as their sovereign leader to whom they render habitual obedience. The revival and recognition of such powers would, in effect, amount to the institution of another government in the areas covered by the Sultanate of Sulu. This is a situation not provided for and not contemplated in the Constitution. 4. Comment on the "Fourth" subject matter : We perceive that the authority sought by the Resolution to be granted to the Sultan to evolve a system of "generating financial resources" may be the authority to raise revenues. It is axiomatic that the power to tax is a legislative prerogative and, while this power may be delegated, it is only the legislature which can do so. But even prescinding from this issue, even the authority sought would still be constitutionally assailable as it would infringe upon the provision on religious freedom guaranteed by Section 8, Article IV, of the Constitution under which the State is inhibited from favoring or giving and advantage, by law, to any one sect over the others. (see also Cooley, A Treatise on the Constitutional Limitations, Vol. II, pp. 966-967). 5. Comments on the "Fifth" subject matter : The Resolution seeks the creation of a Project Office under the joint undertaking of the Office of the President and the Sulu Sultanate and Islamic Council, to be tasked with the work of translating the Holy Quoran into the major Muslim dialects in the Philippines, printing, publishing and distributing the same to all public and private schools in Regions IX and XII, as basic text in Islamic studies (religion). Project Office and the translation, printing, publishing and distribution of the Holy Quoran to the public funds. Quite apparently, the use of public funds for the above-mentioned purposes would violate the constitutional injunction against the use, application, or appropriation of public money or property to benefit to support any sect, church, denomination, sectarian institution, or system of religion (Aglipay v. Ruiz, 64 Phil. 201 [1937]; Sec. 18[2], Article VIII, Constitution). WHEREFORE, considering that the issuance of an executive order by the President embodying the abovementioned matter would be constitutionally vulnerable in the light of the above observations, we are constrained to recommend that the request for the issuance thereof be not accorded favorable action. Very truly yours, (SGD.) RICARDO C. PUNO Ministry of Justice