CRUCIBLE: Overarching Foundation and Reform in Philippine Shari’ah

QUEZON CITY (MindaNews / 04 May) — The passing of a number of Islamic Studies students in the recently held shari’ah bar examination augurs well not only for Islamic Studies at the University of the Philippines and other schools and colleges in Mindanao. It also coincides with the entrenchment process of the Bangsamoro wherein part of which is the strengthening and broadening of shari’ah courts in the country.

The shari’ah bar sets a legal standard and rating system where mostly Islamic Studies and law students, for that matter, other students in other disciplines interested with shari’ah (Islamic law), are given the opportunity to develop and compete among themselves. It means Islamic Studies curriculum would have to be continuously upgraded and updated with contemporary trends, debates, and discourses on shari’ah.

This point is partly the context when I got an invitation from the Academic Council of the Philippine Judicial Academy (PHILJA) last Wednesday, where mostly senior legal luminaries in the country inquired on number of issues about the problems and challenges of Muslims in the Philippines including some issues of shari’ah in the Philippines. Although our conversation was broad touching, in fact, a wide range of historical, socio-political, cultural, geo-strategic, and policy issues, I saw to it that I was able to articulate the major issues about shari’ah in the Philippines, which for lack of better term, we may call it Philippine shari’ah and its major features in relation to Philippine law including adat or customs and tradition among Muslims in the Philippines.

In a sense, that meeting signals an expression of interests in the PHILJA given, too, increasing development in the country that has something to do with Islamic law like Shari’ah court, halal industry, Islamic finance, banking, insurance, stocks, sukuk (bond), and so on.

Natural law

Such interest came at a time when few months ago the country was raging in a debate particularly the Reproductive Health Law. The discussion was intense not only in Congress but also in the Supreme Court. It is just quite unfortunate that Islamic perspective hardly surfaced in RH discussion despite, as we have noted in our previous khutbah (discourse), the rich ideas of Islam on the issue about the beginning of life, which is the core of the debate amongst the Justices.

The Supreme Court’s ruling on RH law as “not unconstitutional” generally revolves around the discussion on natural law, a field that is beyond the domain of positive law as the latter is where many of our Justices and lawyers are more familiar with.

The reason perhaps the debate has gone quite lengthily is because the subject on natural law is usually not the domain of lengthy academic discussion in traditional schools of law. Said issue is discussed extensively in religion, theology, philosophy, science, and medicine.

A critical part in the perspective of Islam about the beginning of life is what we referred to in our past discourse as the breathing or blowing of the spirit or the soul or taswiyyah at certain period during conception, a crucial phase when and how to appreciate life’s higher meaning. The Qur’an says: “thumma sawwahu wa nafakha fiihi min ruhihi” (But He fashioned him in due proportion but breathed into him something of His spirit (Sajda: 9). Taswiyyah is, in a sense, the élan vital of life-world in man. This has never surfaced in the RH discussion given that the major basis of the debate was simply founded along Judeo-Christian and secular legal traditions.

Be that as it may, it only shows the need to upgrade about the rich discourses in Islam with varied fields or subjects on Islamic law so that if faced with the same concern, then our shari’ah experts are ready to articulate the Islamic perspective.

Incidentally, during the height of RH issue, there was a release of fatwa (ruling) amongst Ulama in the Autonomous Region in Muslim Mindanao (ARMM) about Islam’s view about reproductive health. It was indeed important. But it was rather done hastily that it did not even attract national attention. Despite that fatwa, the perspective of Islam on reproductive health did not become a serious discussion in media. I don’t know if it was because of a rather distinct culture among Muslims with their inability to engage in informed and critical debate on any issue. It is not simply, I guess, a case of coming up with resolution or fatwa; the issue could have provided opportunity or means into which other sectors of Philippine society are able to learn the nature and rudiments of Islamic law on major issue like reproductive health.

PD 1083

A closer review, for instance, of certain aspects of Islamic law that have been recognized in the country is Presidential Decree No. 1083 known as the Code of Muslim Personal Law. For all intents and purposes, it is framed in the context of Western concept and secular classification of law. There are only certain aspects of Islamic law that are actually recognized in the said decree. Other more important aspects of shari’ah like civil, commercial, and penal aspects are obviously not part of the Code.

We could understand why this was so because the context of Muslims in the Philippines as minorities requires the need to highlight certain dimension of Islamic law and the need, at the same time, to temporarily shelve certain aspects in order to fit them into Philippine legal system where a “marriage” of the two systems could happen.

The challenge, I guess, on Muslims in the Philippines is based on the postulate that the necessity for shari’ah should not only be anchored on the fact that Muslims need it. Rather, it should be such that the national community actually needs it too. This means scholars of shari’ah should be able to upgrade their understanding not only of Islamic law but the manifold fields or areas of law if they want to perform the overarching role of shari’ah in the Philippines. Such role includes, in fact, their appreciation of the continuing debates and trends particularly on the subject of contemporary shari’ah, ijtihad (rational exertion), and maqasid al-shar’iah or the higher purpose of Islamic law. Obviously, before they can talk of others and how should such others look at shari’ah, Muslim legal experts should know first what is going on in their own backyard. It means updating with current discourse on shari’ah and developing capabilities and rigor in Islamic legal theory.

When we say partly that PD 1083 is framed along certain conception of secular law, it is due to the fact that traditional law is conceived, at least, into two categories: natural law and positive law. In traditional understanding, the dimension or aspect of Divine law (i.e., shari’ah) is simply viewed as part of natural law. This is an arrangement that is a bit problematic because in Islamic conception, Divine presence or hadrah or Divinity, if you may, precedes creation, the world, and society. Therefore, natural law does not exist by itself. It is rather an offshoot of a Divine manifestation or tajalli. Hence, our view of natural law does not necessarily coincide perfectly with that of traditional conception in secular law.

The underlying implication of such conception is such that when we go to sources of law, traditionally under secular arrangement, there are only, at least, three sources namely: legislation, precedent, and custom. But when we look at the sources of Islamic law, said sources are simply considered secondary sources in shari’ah. The primary sources of shari’ah as many of us are familiar with are: Qur’an, Sunnah, ijma (consensus), and qiyas (analogy).

Therefore, the “marriage” between Philippine law and Islamic law does not necessarily appear in complete congruence. There are wide divergences between them especially when conceived in either secular or Islamic prism, although it is not necessarily impressed that the two perspectives are always mutually exclusive. This means we have to continuously examine Philippine legal system in relation to shari’ah, including the adat system and vice-versa.

Foundational dimension

What we, in fact, suggest is the need to develop both foundational and reformative dimension of shari’ah; by foundation we refer to the major frame of Islamic law as part and parcel of Din al-Islam or the Religion, or in a manner of saying, the Totality or System that coheres with what we refer to as Islam. Such dimension of Islam should be made clear given the fact that Din and its pillars consist of iman (faith), Islam (submission), tauhid (Unity), and ma’rifah (gnosis). Any students of Islamic law should be well grounded with such fundamental as shari’ah cannot be conceived divorced or independent from the foundation of Din. As observed, there is less theologico-philosophical rigor allotted on these concepts as they are hardly connected to contemporary philosophical and scientific development issues. They are simply impressed as “basic.” Yet, they serve as major frames of Islamic thought including shari’ah.

Moreover, when we probe further into traditional sources, we are informed that Islam apart from its pillars like prayer, fasting, and so on, is undergirded by, at least, four “ways”: shari’ah, tariqah (path), haqiqah (truth), and ma’rifah (knowledge or gnosis) or sometimes referred to also as ihsan (ethics). In the “Fathud Dayyan fii Fiqhi l-kahyril Adyan,” a work of Syed Muhammad Ibn Ahmad Lebbai al-Kahiri al-Kirkari, it says:

“According to Hadith, shari’ah consists of the word of the Prophet, tariqah consists of the action of the Prophet, haqiqah consists of the state of the Prophet, and ma’rifah consists of the secret of the Prophet. These four “ways” are very closely linked together and cannot be separated one from the other. They are like the pearl in the oyster that lies in the dark cave of ocean beds. They are like the marrows in creature constituted of skin, flesh, bones, and brain matter (p. 31).”

Natural growth

Those who are familiar with the classic in Islamic law, the work we quoted hardly surfaced given that, in our view, the author belongs to certain theologico-philosophical school not to school of fiqh or jurisprudence; but Ahmad Lebbai’s interfacing of shari’ah with the pillars of Din, pillars as well as “way” of Islam as mentioned above allow us to develop certain conception of Islam and shari’ah that is holistic.

Incidentally, the Qur’an reads:

The Religion before God is Islam (Submission to His Will): Nor did the People of the Book dissent therefrom except through envy with each other, after knowledge had come to them. But if deny the Signs of God, God is swift to calling to account.

So if they dispute with thee, say: “I have submitted my whole self to God and so have those who follow me.” And say to the People of the Book and those who are unlearned: “Do ye (also) submit yourselves?” If they do, they are in right guidance, but if they turn back, the duty is to convey the Message; and in God’s sight are (all) servants (19-20).”

These verses speak about the universality of religion as conceived in the Qur’an. It recognizes the People of the Book, while fully aware of differences amongst them. The thrust is to call people to submission and to convey the message. In this regard, plurality of laws is thus recognized in Islam. The conveyance of the message should be done continuously while leaving it to people to decide on their own so that the notion of submission is broadened not only amongst believers but even those of the other. This is the basis when we say that the recognition or implementation of Islamic law should not only be based on the fact that Muslims need it. Rather, it must be in a manner that the larger community actually needs it too.

Probably the easy passing of the fatwa on reproductive health in Mindanao was done quite abruptly without much fanfare because of the openness of Islamic law to the idea of reproductive health. But there are equally important issues these days that are related with Islamic law and thus must be appreciated; these are, for instance, the proposed bill on divorce in Congress, the Central Bank’s increasing interest on Islamic finance, and many others. All these show that the country is now opening up more towards Islamic law.

It is just ironic that this process is not happening “naturally.” Apart from obvious reasons, there had to be some conditions that would instigate the government to recognize Muslim personal law triggered with the Moro rebellion in the ‘70s as the context why the PD 1083 was formulated. And now the entrenchment of the Bangsamoro in 2016 is also a context in the strengthening and broadening of shari’ah.

When we propose the need for natural evolution of Philippine shari’ah as basis of recognition in Philippine legal system, it is because Muslims do not simply need it but, to reiterate, the larger system actually needs it also. Ironically, the popular interest on Islam as generally known in public or portrayed in media hardly transcend beyond shallow questions like why Muslims adopts polygamy or why Islam’s prohibition on pork. The idea of polygamy in public understanding is impressed that it is a “law” when in fact it is more of exception than rule. A closer look on Philippine culture and society today given the loosening of moral fabric in marriage and other relationship, one would really have to think twice whether stringent rules on monogamy and prohibition of divorce are still working among Filipinos.

On its part, the idea of prohibition of pork in Islam with strong Biblical support is gaining acceptance due to popularity of halal foods not to mention frequent reports of unsanitary meat products sold in public markets like double dead meat or botcha. Lately, the idea of Islamic finance is getting popular as well as the Philippine Stock Exchange opened Islamic stocks and declared shari’ah compliant corporations few months ago. If legislation on Islamic finance could follow, then it will cascade to other areas of business as it would entice foreign investment from the Middle East, Malaysia, Europe, Australia, Japan, and the United States to invest in halal finance in the country.

All these show that there are now many aspects of Islamic law that are gaining stride not because of Muslim pressure but because of growing interest of the national community on those developments that are actually rudiments and implementation of shari’ah.

Ijtihad and maqasid al-shar’iah

The new discourse of understanding shari’ah should begin, as noted, with the fundamental while aware of reformative and critical development that is now subject of discussions like ijtihad and maqasid al-shari’ah. Of course, following the new discourse on these subjects is not as easy.

For instance, in the framing of the Constitution in Egypt before President Mohamed Morsi was elected president, there was a very stringent debate what to identify in the Egyptian Constitution whether it is shari’ah or maqasid al-shari’ah. To see the least, it shows that the subject of ijtihad and maqasid al-shari’ah are now gaining popularity in legal theories of Islamic law together with equally important frameworks of shari’ah in the context of “traditionalism; modernism comprising maslaha-based theories, usul revisionism, science oriented re-interpretation; post modernist approach comprising post-structuralism, critical legal studies, and post-colonialism,” and so on (Auda, 2010).

All this requires holistic system in understanding modern Islamic law. This is the view of Jasser Auda when he raised the subject of maqasid al-shari’ah as juridical method of ijtihad. In his work, “Maqasid al-shari’ah – A Philosophy of Islamic Law: A System Approach,” Auda concludes:

“Thus, a maqasid approach takes the juridical issues to the higher philosophical ground, and hence, overcomes historical differences over politics between Islamic schools of law and encourages much needed culture of conciliation and peaceful co-existence. Moreover, the realization of purposes shall be the core objective of all fundamental linguistic and rational methodologies of ijtihad regardless of their various names and approaches. Therefore, the validity of any ijtihad should be determined based on its level of achieving purposefulness or realizing maqasid al-shari’ah (p. 258).”

These are just some aspects of Auda’s perspectives on contemporary Islamic law together with few other scholars who have raised the bar of discourses on contemporary shari’ah. We hope that in the Philippines we are able to upgrade our discussion along with contemporary trend in Islamic law as we have to participate and contribute with the new development.

As we said, the intermingling of legal systems in the Philippines with Islamic law including the customs and tradition of Muslims in the Philippines necessitates continuing conception even reframing, if need be, so that we could emerge more plural, multidimensional, and incremental development of Islamic law in the country.

It means students of shari’ah should develop comprehensive understanding on foundational dimension of Islamic law as they have to update themselves with critical and reformative discourses of contemporary shari’ah. The latter would include practically all subjects and issues ranging from personal to global. Subjects, for instance, like bioethics, environment, science, politics, culture, society, and so on so forth, should be within the ambit of expertise amongst our shari’ah specialists, scholars of Islamic and other fields and disciplines related to Islamic law. There is no doubt, progressive understanding of shari’ah its rudiments, development, and issues are now current trends not only in the Philippines but also in many parts of the world.

[A slightly revised khutbah delivered at the Institute of Islamic Studies, University of the Philippines on 25 April 2014. MindaViews is opinion section of MindaNews. Julkipli Wadi is Associate Professor of Islamic Studies, University of the Philippines].

URL: http://www.mindanews.com/mindaviews/2014/05/04/crucible-overarching-foundation-and-reform-in-philippine-shariah/

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