COTABATO CITY (MindaNews / 02 Sept) — At the outset, this reflection piece suggests to readers “The Introduction of Muslim Law into the Philippines Legal System” published in Solidarity, vol. X, no. 6 (July-August, 1975}. Advocacy writing was formatted in our submission for institutional “fit” to the Judiciary Code Committee headed by Fred Ruiz Castro SCJ purposively to break new judicial grounds on the power of the Supreme Court to review decisions of the Shari’a courts.
Framework of Challenges
On July 22, 1974, I was invited with my law partner Musib M. Buat together with former Senator Mamintal A. Tamano to appear before that Committee.
Confronting framework issues related to our Draft Administration of Muslim Law was for us a prelude to judicial activism. One significant issue was whether a substantive enactment or an enabling legislation should come first. My engagement as Project Director of the Research Staff for Codification of Philippine Muslim Laws moved the work of the Commission to Review the Muslim Code (PD 1083) to establish the Shari’a Court system in 1976.
Our narrative first addressed: “If we do adopt your recommendations to the extent that it is feasible would these recommendations fit within the framework of our present Constitution?”
The ideology of constitutional supremacy anchored on (juris) prudencia of eminent jurists who are properly qualified in the field of Islamic jurisprudence is a category of contemporary crafted-opinion. In itself, the Shari’a Court system of sources of law is a juristic model upon which to base substantive decisions. Advocates of this view candidly point out: The presence of a justice who is a Muslim, or jurist who is learned in Islamic laws in the composition of Higher Court makes for satisfactory or potential failure in substantial consideration of matters of customary laws, Islamic law and doctrines by expertise for the Shari’a Courts intended in PD 1083.
Decisions by Higher Courts
Thus far, the aptitudes of Higher Courts and Justices need progressive critique. So that the business of finding the sources or limits of Islamic law applicable on appeal is not cumbersome as it appears now. Advocates paraphrase this paradigmatic view: What the Court needs is a contemporary comfort level, and not a discomfort tilting the balance test — Justices weigh in to impose “creeping constitutionalism.” From the nature of proceedings at Shari’a District Court and Shari’a Circuit Court trials, the principles of precedent (case law) is more of a contemporary importation influenced by competing juristic norms apart from the substantive norms.
Consultations further explored: “If my impression is correct – that you do not want a complete separate judicial system and I think you want to try to achieve an integrated judicial system to the judicial system that we have now – what is the extent of the integration that you propose?”
In our view, the role of courts, judges and practitioners in Shari’a judicial system is hard to envision insofar as no rules of court or statutes exist. What hampers, if not undercuts, the accuracy of the Decisions by the Higher Court and the faith of the public on the Shari’a Court system? This writer has laid out our judicial hierarchy in another piece, “Sharia Law and the Philippine Legal System” to examine the flow of cases within the judicial structure. (Supreme Court Centenary Lecture Series, Sept. 2000-01).
Whereas justice at core is primarily procedural, hence another question was posed: “What kind of rules of procedure do you want included in the Rules of Court?”
The appeal process from the lower Shari’a Court straight to the Supreme Court was to fill in the interstices in existing laws and legal precedents. When I was appointed deputy Minister of Muslim Affairs, once more I became involved in 1983 in the implementation of the Muslim Code. And so, we crafted a simplified Special Rules of Procedure Governing the Shari’a Court (1983) with Felix Makasiar SCJ who—during his short stint as Chief Justice—committed to seek its promulgation for the Shari’a courts to be operational.
Referenced to the Muslim Code, Article 141 provides: “The decisions of the Shari’a District Court whether on appeal from the Shari’a Circuit Court or not shall be final. Nothing herein contained shall affect the original and affiliate jurisdiction of the Philippines as provided in the Constitution.”
Personal Jurisdiction and Subject Mater Jurisdiction
For a reason that I will state when we comment on the failure to appoint judges in some Shari’a lower courts, I will deal with the cause and effect of apparent delay in organizing the Shari’a Appeal Court later (See Sec. 2, RA 6734). The answer begs the question. As for now, it has to be said that the problem lies not on this point but on the next question.
Asked in retrospect: “And finally, while you mention something about appeals, you were not precise about the extent, nature, substantive aspect of the problem?”
Presently, BOL contains wider matters listed in which Shari’a District Courts acquire jurisdictions. The qualifying clause “where either or both are Muslims” is enhanced with a proviso: “That the non-Muslim party voluntarily submits to its jurisdiction” (Section 6 of Art. X). The Muslim Code is more general in that “the provisions shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non-Muslim” (Paragraph (3) of Art. 3).
In the Draft Administration of Muslim Law, we proffered the formal relationship of appellate and first instance Shari’a courts to delineate statutory “subject-matter jurisdiction.” This aspect is material. The term covers any suit, action, dispute, proceedings or ancillary reliefs encompassing the essential elements, requisites and impediments that come within the ambit of the Applicability Clause (Title II, Chapter I). In single long paragraph, Article 13 (c) of PD 1083 sets out matters relating to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, and so on, that are governed by Muslim law. Similarly, jurisdictional matters itemized under Art. 143 and Art. 155 and now incorporated under Article X, Sec. (b) of BOL come also within the purview of the “Applicability Clause.” We can call the array of statutory schema “Jurisdiction Clause.”
In effect, PD 1083 confers personal jurisdiction over persons on grounds of their consensual relations fulfilled on evidence. This is the personal aspect. The term “personal jurisdiction” is important because of its effect on the operational aspect of this Muslim Code when the parties or any of the parties, is not a “Muslim.” That is to say, a person not professing the religion of Islam.
The Supreme Court, in a marriage controversy it has reviewed tritely, recognized the tension in the context of the statutes’ jurisdictional framework. In this case, a Filipino Catholic wife of a Saudi Muslim embraced Islam in 1987 before her marriage in 1988. Afterwards, she converted back to the Catholic faith and had their children baptized as Christian in 1996. And so the husband filed with the Shari’a District to obtain custody of his two minor children which was granted by the lower court, but reversed in Artadi v. Bondagjy (2001) on appeal straight up to the Supreme Court.
And thus in 2008, the parties resorted to the Court again for the resolution of what the ponencia had expressed in its Bondagjy v. Artadi ruling “. . . a seeming procedural stalemate” over the dissolution of the “connubial bond.” Why do we grapple with jurisdictional questions? Here I find it paradoxical that the term “jurisdiction” derives from Latin (juris) dicta meaning the act of saying or pronouncing civil law when the basic legal authority to pronounce and enforce Islamic law comes from Arabic (hukm) shar ‘i meaning the juristic rule or decree to bring the matter to a close.
The Court’s Bondagjy decisions applied “civil law in the best interest of the children” to set aside the custody and support awarded by the Shari’a District Court to the husband in 2001. The Supreme Court rejected the factual findings of the Shari’a court on suspicions feeding their troubled relations and ruled that the evidence was not sufficient to establish the wife’s unfitness according to Muslim law or the Family Code. On its face, the Court holding posed a peremptory challenge: Is appellant “still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her children?” (The unstated premise of apostasy (murtadh) with potential to affect dignity as the by-product of case law with “negative effect” can vary legality or validity on the basis of the Applicability Clause. The Court failed to recognize utterly the personal aspect that provoked religious sensitivities, expectations or faults without being controlled by the Court.
Legal Effect of Judicial Review
Query: Considering all of the above discussion, is the present appellate system with the Supreme Court as the final arbiter sufficient in enforcing Muslim laws in the Philippines? Corollary to this concern among Shari’a law experts is that the present Shari’a appellate system, with the Supreme Court being the final arbiter, does not truly enforce the spirit of PD 1083.
Having said all these, the answer is in the affirmative as to legality, but no to validity for prior interpretation and results. The Shari’a Court or Judge in exercising jurisdictions conferred by PD 1083 must fundamentally resort to the “Applicability Clause” of Muslim Personal Laws (Article 13 of Chapter 1, Title II). Indeed, juristic rule (hukm shar‘i) governing personal obligations restrict jurisdiction of the Shari’’a courts only over persons professing the religion of Islam. This aspect we already said is the personal jurisdiction.
The autonomy of legal ideas has highlighted the work of the Commission to Review the Muslim Code alongside the Draft Code of the Research Staff to serve as historical legal premises to the Bangsamoro justice system. We submit that an appeal lies with the [superior] Shari’a Court on the ground that the findings of facts are not supported by substantive evidence, or that the present case involves a question of substance [subject-matter] not heretofore determined by the [apex] court, or that the decision has been rendered in a way not in accordance with hukm shar ‘i or the applicable fatwa or fiqh. (See Sec. 64 of the Draft Code). Collateral issues provide guideposts across a system that has yet to crystallize in case law-process.
The Supreme Court considered Moson v. Malang (2000) precedent “one of first impression” because the evidence presented were all substantially based on oral testimony. Viewing the complexity of the issues short on findings of facts, the majority opinion remanded it to the Shari’a District Court for the reception of additional evidence. Amici briefs of Justice Ricardo Puno as well as my own memoranda gave Moson short shrift to clear some collateral issues and accorded significant divide between civil court and sharia court jurisdictions.
The Draft Code amplified jurisdictional challenges on “direct effect” or “negative effect” one step further. “The decision of the Shari’a Court of Appeals in such cases shall be final: Provided, however, that the Supreme Court in its discretion may in cases involving constitutional issues, questions of jurisdiction, or petitions for the issuance of writ of certiorari, prohibition, and mandamus at the instance of the party aggrieved, [or not] require that the record be certified to it for review and determination, as if the case had been brought before it on appeal.” (Referenced to Draft Sec. 62).
The more significant aspects of Bangsamoro justice system is access to Sharia courts that now goes beyond the legal autonomy of Muslim law being “outside” and “above” politics. When litigants come to Shari’a courts it opens up new avenues for formal contestation and the real importance of it is to turn to law, process, and judicial review.
Question: “Would you want a separate penal system and if you do or do not, what is the precise law system that you want adopted?”
The criminal justice system under Shari’a law and ta’azir will be dealt with separately.
(MindaViews is the opinion section of MindaNews. Datu Michael O. Mastura, President of the Sultan Kudarat Islamic Academy, crafted the Muslim Code of the Philippines and once served as an Amicus Curiae in the Supreme Court. A lawyer and former congressman of the 1st district of Maguindanao, Mastura was a senior member of the peace panel of the Moro Islamic Liberation Front in the negotiations with the Philippine government. The peace talks led to the signing of the Framework Agreement on the Bangsanoro in 2012 and the Comprehensive Agreement on the Bangsamoro in 2014 which paved the way for the creation of the Bangsamoro Autonomous Region in Muslim Mindanao)