SHARPAH For The Muslim Region In The Philippines: The Essence of Moro Self-Determination BY NORHABIB BIN SUOD S. BARODI Member, Integrated Bar of thé Philippines Member, Integrated Shari'ah Bar of the Philippines Member, Board of Directors ISBP Mindanao State University College of Law Profesor of: Constitutional Law Review, Constitutional Law I and II, Public International Law, Election Law and the Law of Public Officers Law of Public Corporations Property, Problem Areas in Legal Ethics, Advanced Legal Writing, Legal Research and Shari’2h; Lecturer and Special Lecturer, 1S Series of Shari'ah Training Seminary 4 2" Placer, 2006 Shan’ah Bar Exam; 16% Placer, June 2007, PNP Entrance Eligibility Exam (Napolcom); CS Professional Eligible Formerly, Public Attorney 1, PAO Marawi District Office; Practicing Lawyer and Shari'ah Practitioner; Bachelor of Laws Mindanao State University College of Law, Tigan Extension Class; AS International Relations Department of International Relations, King Faisal Center for Islamic, Arabic, and ‘Asian Studies, MSU * =e ISBN 971-735-070-58 | ‘2017 Scanned with CamScannerPhilippine Copyright © 2017 by y )D 6} BARODI, LLB, Sh.L, ‘[email protected] [email protected] No portion of this book may be copied tuced in books, pamphlets, outlines whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. NORHABIB or reprod) or notes, Any copy of this book without the corresponding number and the authorized signature of the author on this page either proceeds from an illegitimate source or isin possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED BY THE AUTHOR No eet Scanned with CamScannerPublished with recommendation ‘from: Mindanao State University (MSU) College of Law King Faisal Center ‘for Islamic, Arabic, and Asian Studies (KFCIAAS) International Institute of Islamic Thought (IIIT) (Through the IIIT Representative for the Philippines) Integrated Shari‘ah Bar of the Philippines (ISBP) Mindanao State University Legal Aid Clinic (Mindanao SULAC) Nota’ Bene: The views of the author do not necessarily represent the views of the abovementioned institutions. Hence, only the author is responsible for his views expressed in this book. With funding assistance from: Hon. Farouk “Froxy” A. Macarambon, Jr. Assemblyman, RLA, 24 District, Lanao del Sur Hon. Atty. Majul U. Gandamra Mayor, Islamic City of Marawi Hon. Rolan Fiat A. Macarambon. Assemblyman, RLA, 1* District, Lanao del Sur Printed by: Ivory Printing and Publishing House 0186 Quezon Avenue Extension, Palao, lligan City January 2017 iil Scanned with CamScanner4 ductivity in the field of research is a contin, eens ao to be filled by the members ote academe in a constant passion. To this challenge, the i le Faisal Center for Islamic, Arabic, and Asian Studies newt failed to respond. The Center is the nucleus of Sharia, n in the Mindanao State University. Many of re graduates are now leading Shari‘ah lawyers in te Philippines. The members of the Faculty of the vatioug departments of the Center are looked upon here and abroad for their excellence in and dedication to their respective disciplines. The Center has produced many graduates who later on pursued law in the various law schools in the Philippines, But the bulk of regular lawyers who ar KECIAAS alumni are graduates of the MSU College of Law, which is an equally prestigious institution. One of these alumni is Atty. Norhabib Bin Suod S. Barodi. He is both a regular lawyer and a Shari’ah lawyer. He is a regular member of the Faculty of MSU College of Law. FOREWORD educatio: Publication of a book by a member of the legal academia in the Meranao community is a rarity. However, what is more infrequent to see are Muslim lawyers writing on the intricate subject of the Muslims in the Philippines with a blend of legal dimensions. It is therefore a welcome development that Atty. Barodi took the cudgel to write a book that competently explored the link and relevance of Shari'ah, as a complete legal system, to the aspiration of the Muslims in the Philippines for self-determination. The author gives us his insights about a Muslim region in the Philippines under a regime of law based on the Shariah. His book projects a persuasive writing style that accommodates certain realities of the contemporary sociely affecting the Muslims in the Philippines, ranging from the iv Scanned with CamScannerstatus of the Shari‘ah justice system through the Shari’ah Courts vis-a-vis the Supreme Court of the Philippines and the Muslims in the Philippines vis-a-vis the non-Muslim majority. As a law professor handling Constitutional Law subjects, the author soundly established his arguments on how to surmount constitutional and legal obstacles to Moro self-determination. His book likewise delved on how the regional government for the Muslims in the Philippines may function based on the parameters of Shari’ah without necessarily operating outside the non-Muslim government of the Philippines. The publication of this book came at an opportune time amidst the effort of the government under President Duterte to forge a lasting peace in Mindanao. Thope that this book entitled “Shari’ah for the Muslim Region in the Philippines: The Essence of Moro Self- Determination”, will reach a wide audience so that the scholarly observations of Atty. Barodi will eventually find their way to any endeavor, now or in the future, that is aimed at achieving a lasting peace in Muslim Mindanao. I did not have the reason to hesitate to write this foreword as a favor asked of me by the author who graduated from the KFCIAAS in 2003 under my Deanship then. The author deserves nothing less than commendation and encouragement. Atty. Hamid Aminoddin Barra, Ph.D. Visiting Professor International Institute of Islamic Thought and Civilization International Islamic University Malaysia Scanned with CamScannerMindanao State Universi ity COLLEGE OF Law ‘MARAWI CITY Extender Cates sexu, GAN CIT Lawyer who once gave honor tothe MSU College of Law by topping the 2006 Shar ‘oh Bar Fans Second Placer, he wetng ofthis book, with a scholarly syle, petining to Shak relation to Moro Self Determination effectively ‘puts into reality one of the objectives of the College of Law, Le, "to assist in the development of Shari'ah through the production of Lawyer, ‘who are also kmowicdgeable of both Shari'ah and Philippine laws and provide an avenve fr te training, selection, and qualification of Shari'ah judges.” As Dean of the College of Law of MSU’System, this declaration is hereby given to offically the publication of the book of Atty. Barod! and the reading of which by the members of the academic community, regular and Shari'ah lawyers, and the Muslims i the Philippines in general. Atty. MACACUNA A. MOSLEM ‘Dean January 16,2017 vi Scanned with CamScanner@) Bante i rata ES rt on nd wrote OFFICE OF THE COUNTRY REPRESENTATIVE (ATIONAL INSTITUTE OF ISLAMIC THOUGHT STATEMENT OF RECOMMENDATION ‘The philosophy and vision of KECIAAS read, “The establishment of the Center is anchored on the philosophy of the total development of man ~ the molding of insan ‘aml (real men) or men and women who are not only submissive to the will and the laws of theit Creator but are also able to balance their material progress with spiritual and moral standard. Men who are imbued with the necessary Islamic virtues and are ‘scientifically and technically competent.” I find this remarkable book written by Atty. Norhabib Bin Suod S, Barodi, Si.L. to be truly reflective of the ideals subsumed in this philosophy and vision of KFCIAAS. His scholarly work squarely puts into action one of le objectives of the Center, i., to emphasize Islam not only as part of the rich Filipino culture but also as a religion and a complete way of life - to make the Muslims good Muslims and for that matter, as good citizens of the Republic, and as productive partners in nation-building. This book entitled “Shar‘ah for the Muslim Region inthe Philippines: ‘The Essence of Moro Self-Determination” conforms to the ideals and philosophy of KFCIAAS and the principles of IIT. It truly deserves strong recommendation befitting its distinction as a ‘must’ read, scholarly written book. Hence, in my capacity as the Dean of KFCIAAS, of which Atty. Barodi is an outstanding alumnus, and as the Country Representative of the International Institute of Islamic Thought, strong recommendation for the publication of this book and the subsequent reading of the same by all components of the academic community, students and educators alike, especially those from the KFCIAAS, and by the public in general, especially the Muslims in the Philippines, is hereby extended. De AMAZE voneena Dean, King Faisal Center for Islamic, Arabic, and Asian Studies, and International Institute of Islamic Thought (IIT) Representative for the Philippines January 18, 2017 vil | Scanned with CamScanner‘STATEMENT OF RECOMMENDATION since i establishinent, the Infegrated Shah Baro he py gaged on a continuing march to full its vig 7? (SBP) has been engaged vimed tala, ‘the ISBP, responded to this call by writing, with scholarly quality ented “Sharh forthe Muslim Region in the Pilippines: The Ee of Moro Sef-Determination.” Hs scholarly work i a testament tha ISBP is ever ready t0 rise to the challenges of the times in all mates requiing its attention as an organization of Shar‘ah Lawyers in te Philippines. ‘Therefore, this august organization is strongly recommending publication of this remarkable: book and all Stan'ak Lamyer ite alppes are hereby exhrted o Ted the same os fliment of ur uty to support laudable efforts that uphold Shari'ah and promote development of the Muslims in the Philippines, te Scanned with CamScanner[MINDANAO STATE UNIVERSITY LEGAL AID CLINIC AF College of Law Bg, MSU, Maraw Cty ‘STATEMENT OF RECOMMENDATION Law family. ‘MSULAC President January 18,2017 Scanned with CamScannerDEDICATION This humble work is dedicated to My parents: Hj. Suod Moliya Barodi, CESO and Hija. Faida sumndad Macalangcom Barodi My wife: Amirah|. Amate, LIB., RS.W. My daughters: Alheena Shireen bint Norhabib and Alyaanah Sophia bint Norhabib My siblings: Norhasni, Norsahanie, Norhajirah, Norhannah, and Norhafez And tothe Muslims in the Philippines Scanned with CamScannerIn the name of Allah, The Most Gracious, The Most Merciful PREFACE Praise be to Allah Almighty, the Lord and Sustainer of the worlds, who has taught (the writing) by the pen, who has taught man that which he knew not, and who has taught him eloquent speech, and may peace and blessings of Allah (s.w.t.) be upon the noblest of the Prophets and Messengers, our Prophet Muhammad, his family, and companions. It has been my aspiration as a Muslim to contribute a lasting legacy to the Muslims in the Philippines. Perhaps, this is the indelible doctrine that I learned as a graduate of both the King Faisal Center for Islamic, Arabic, and Asian Studies and the Mindanao State University College of Law. What amplified my desire to that effect was the twin privilege afforded me by Allah (s.w.t) of passing the Shari‘ah Bar Examinations in 2006 and the Philippine Bar Examinations in 2009. I did not encounter difficulty in deciding that the lasting legacy that I will contribute is a book about Shari‘ah that I want to dedicate to the Muslims in the Philippines. However, writing the book itself proved to be a strenuous task to fulfill. As a regular Member of the Faculty of the College of Law of Mindanao State University, I endeavored to be afforded an opportunity for further studies abroad to enrich my academic arsenals before I even attempt to write a book about Shari’ah in relation to Moro Self-Determination. However, this is a privilege, which I have yet to receive. Notwithstanding this xi Scanned with CamScannerthar deemed it wise to pursue the itis interrupted with finality, ting cae ut limitation, the 2 of this book before < intended to be exploratory, It og... _ This wa jg, modest PrOPOsHONS and obser aa the sincere E concerning the establishment = of the oa of Shari‘ah for the Muslims jn implementa the essence of Moro self-determination in le Philippin® solve the Moro Problem. This is in no ay aad as an authoritative treatise on Shari’ah. Rather, i, i offered as an insight from an ordinary Bangsamoro forth consumption of those who care tos the Muslims in the Philippines in one way or another. If there is any degree o; scholarly quality that this book might evince, then that is for the reader to affirm. At this juncture, the author wishes to thank his family particularly his parents for their enduring support, both financial and moral, and their encouragement, and especially to his wife whose assistance and understanding proved to be imperative for the completion of this work. | wish to thank Atty. Hamid Aminoddin Barra, Ph.D. for the Foreword he willingly contributed for this book. My profound gratitude also goes to Atty. Macacuna A Moslem, Ph.D, Dean of MSU College of Law, for constantly encouraging me to do research. Likewise, Dr. Asnawil G. Ronsing, deserves my utmost appreciation for favorably tecommending the publication of this book in his capacity as Dean of KFCIAAS and as Country Representatice ot Intertational Institute of Islamic Thought (IIIT) for the pines. Finally, I would like to thank the benefactors who unhesitatingly gave fundi i the printing of this beck. 8 nding assistance for xii Scanned with CamScannerThe author grappled to find the right reason for the writing of this book. But at the end of the day, what propelled him with enormous force to finish this work is his sincere desire to please Allah (s.w.t.) who said in the Holy Qur'an that the only purpose why He created jinn and man is for them to worship Allah (s.w.t.). This humble work is aimed towards that purpose. NORHABIB BIN SUOD S. BARODI Assistant Professor, MSU College of Law Islamic City of Marawi January 2017 xiii Scanned with CamScannerTABLE OF CONTENTS Foreword ... Statement of MSU Co Reco! lege of Law ISBP. Mindanao SULAC Dedication - Preface INTRODUCTION A Bold Hypothesis Expected Results Scope and Limitations Rationale for This Work . Methodology Sequence of Exposition . CHAPTER ONE The Islamic Legal System: A Bird’s-eye view. Islam... Shariah Figh .. A Comple' An Unfamiliar Terrain ... The Sources of Islamic Law 31 The Holy Qur'an 31 Sunnah . 8 Tima .. 37 Qiyas Other Civil Law Matters .......... On Obligations and Contracts On Property Scanned with CamScannerIslamic Commercial Law ... Formalities of Commercial Transactions 45 ty Prohibited Commercial Transactions :.....ieietdiadalliteccies 49 Islamic Political Law The Concept of State . Sovereignty of Allah . 51 Vicegerency of Man . Fusion of Religion an » 55 Islamic Constitution ........ . 58 Islamic Form of Government 60 61 Islamic Penal Law The Concept Human Rights: A Muslim Perspective Introduction . How Human Rights came into existence Respecting Human Rights as a duty to Allah... Islamic Treatment of the Right to Life . 73 . 75 CHAPTER TWO Shari’ah and the ‘Moro Problem’ The Introduction of the Islamic Legal System to Mindanao and Sulu Islam and Its Legal System: Their Survival in the Philippines ............ 87 The ‘Moro Problem’. Definition of the ‘Moro Problem’. xv Scanned with CamScannerCHAPTER THREE a for shariv’ah for the Muslims Need for oe cnet nthe Philippines - Impetus for Social Life Islamizing Alleviation of Poverty - kat Concept of Zal Food for Thought’. ic GOVEIMANCE «.-erresrreee ae Saas of What is Right and Forbidding of What is Wrong Accountability . of Participants in Shura Justice in governance .......+++ Evident Inadequacy of the Legal System under the Muslim Code ............eeeeeseeceeee 141 CHAPTER FOUR Shari’ah Justice System Under the Muslim Code and Beyond Under the Muslim Code ... 147 Shari’ah Aspect of the CAB . The Marcos version of the BBL .. Bangsamoro Supreme Court: A Gesture of — Shariah Supremacy in the Bangsamoro Autonomous Political Entity Basis of Creation ofa Bangsamoro Supreme Court 159 Xvi Scanned with CamScannerThe Nature of the Bangsamoro Supreme Court vis-a-vis the Supreme Court of the Philippines The Supremacy of the Bangsamoro Supreme Court The Members of the Bangsamoro Supreme Court ..... The Bangsamoro Supreme Court and the Power of Judicial Review of SC ... The Decisions of the Bangsamoro Supreme Court and Appeal . The Bangsamoro Supreme Court and the Judicial and Bar Council The Rationale for Creating a Bangsamoro Supreme Court CHAPTER FIVE Legal Impediments and Their Counterweights Shackle of the 1987 Constitution . The Philippine Constitution and the Holy Qur'an. am The Hudud Penalties in Islamic Penal Law . Sovereignty of the People and Divine Sovereignty of Allah.... Constitutionality of the Comprehensive Agreement on the Bangsamoro ......... The Bangsamoro Autonomous Political Entity: a sub-state? A Ministerial Form of Governmen: for the Bangsamoro Separation of Church and State in the Philippine legal system Effect on the Nature of the BAPE .. xvii Scanned with CamScanner . 166 170 a led: 172 174 175 . 178 . 181 181 - 184 186 190 . 199 - 201 203 . 204Scanned with CamScannerINTRODUCTION “Our practices, laws and decisions of our Moro leaders should be respected...Our religion should not be curtailed in any way...All our practices which are incidental to our religion of Islam should be respected because these things are what a Muslim desires to live for...Once our religion is no more, our lives are no more.”! - 1935 Dansalan Declaration A survey conducted by Pew Research Center between 2008 and 2012 shows that a majority of Muslims in the world today are in favor of making Shari'ah the official law of their respective countries. This is particularly true of the Muslims in the Southeast Asian region such as those in Malaysia and Indonesia. In 2014, Brunei declared that it is now governed under Shariah law. Initially, this * Lifted from Nasser A. Marohomsalic, The Framework Agreement on the Bangsamoro: Towards Hurdling the Constitutional Obstacle to Moro Self- Determination, IBP Journal, Special Issue No.2, December 2012, p. 26. [Hereinafter cited as Marohomsalic] This is an excerpt from the 1935 Dansalan Declaration, a petition of Moro Datus from Lanao expressing to the ‘American Colonial Government their aspiration for independence apart from the Filipinos. ? See www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politcis- society-beliefs-about-sharia/; www.pewresearch.org/topics/muslims-and- islam/; www.chersonandmol schky.com/2014/04/07/support-sharialaw- world; www.huffingtonpost.com/2013/04/30/muslim- survey_n_3186144.html;http://muslimstatistics.wordpess.com/2015/03/15/ pew-poll-analysis-a-billion-muslims-want-shariaaw/ (All of which were last accessed November 24, 2015, 11:00 AM) 3 Seechttp ://www.pmo.gov.bn/Lists/Announcements/NewDispform.aspx?ID= 30> (Last accessed September 17, 2016, 9:01 AM) Scanned with CamScannerShari’ah For The Muslim Region In The Phin ine, 2 id Jhenomenon may not be of worldwide ie the Philippines being a me iy ignificance eens ao While the Philippines has a Muslim pops but the Muslims thereof constitute the minority in tiog, than one hundred (100) million Filipinos as o¢ ie Tox 2015.4 This may not spontaneously spark a though ty what it emphasizes is the number of populatio;® * ignites a reflection is the ethnic denomination ont Muslims in the southern Philippines as the Bangsamory the it could immediately bring to the fore the so-calleq a Problem.’ By then, the penumbra of this ever recu ee phenomenon will envelope statistics. nt There is no similar survey in the Philippines by Pay Research Center that shows whether the Muslims in Mindanao are in favor of making Shari‘ah the official law of their autonomous region. What is certain though Tequiring no survey, is their struggle that has been persistent in the entire Bangsamoro narrative starting from their resistance of Spanish colonialism many centuries ago and up to the modern day Muslim Mindanao. Present circumstances suggest that the Bangsamoro struggle will suffer no natural death any sooner. Had the Bangsamoro struggle stood on weak foundations, then it could not have survived the hands of time throughout the centuries. The mere ticking of the clock could send frail endeavors into dormancy and obsolescence. This constrains us to postulate that something must have been constantly breathing life into the continuity of the Bangsamoro struggle. There must be# force that orchestrates a common Bangsamoro impulse 4 es (Last accessed September 18, 2016, 1:54 PM) Scanned with CamScannerShari’ah For The Muslim Region In The Philippines 3 constantly pumps a rejuvenating element into their struggle. Writers on the subject point to Moro self- determination as a standard theme of the Moro Problem. However, for one to be comprehensive in his study of the Moro Problem, he does not simply say that the Bangsamoro have the right to self-determination for that is well- established already. There is a wider expanse beyond this categorical declaration. This writer believes that what could yield a wider perspective is an inquiry on what does self- determination mean to the Bangsamoro as a people whose religion is Islam. It involves a choice on the type of system that the Bangsamoro would want to apply granting arguendo that they enjoyed the right to self-determination. In such a situation, the Moro will have to choose between an Islamic system and a non-Islamic one in bringing about the sweetest fruits of self-determination. In making the choice, there is no third category. This is where Islam as the greatest element of the Moro's life takes the most pivotal role in the narrative of the Bangsamoro now and beyond. For this writer, Shari‘ah should be introduced as an indispensable element into the equation to solve the Moro Problem. It could be that the desire of the majority of Muslims in the world to make Shari‘ah the official law of their respective countries is also true of the Muslims in the Philippines. This is rather difficult proposition to substantiate. But at least it is not as challenging with what scientists are grappling with that there is a possibility of the existence of parallel universes. This is the kind of mindset that overcomes gigantic challenges. Scanned with CamScanner5 wrote in March a Wises ae 1g, mast oght with it a clamor by ie Adis ance the world - be govemeg ‘ vplamic TM ghot jaw (Shari ‘ah). Muslims ,” Musi itl Jslam of Islamic states. Those Who accordane” the cre Ovguntries where they live are aj 4 col atriving 1° inority in oe jn order to establish an Tslamig e1 for autonomy agitatin very Teast demand ith Islami " - ee ot at the VEO in accordance Wi ne latter’ they may be a lippines is an example of the latter.” juslims in . 7 of the present writer that the It is the Pe oe ‘ementation of the entirety or at leag establishment ty of Shari’ah in the Muslim region in i ‘substantial a g syst that will satisfy the yearning of the Pilippine® a self-determination. In other words, the Bangsamo jementing Shari’ah for the Muslim ishing and imp! A ne south is the essence of Moro self-determination, Bonee itis the most responsive and durable solution to the ‘Moro Problem. This writer cannot claim this idea to be his brainchild. While my proposal is still on a very fluid stage, others may have formulated already their solid la 5 Former Dean of MSU College of Law, and Delegate, 1971 Constitutional Convention Atty. Oga M. Mapupuno. Oga _M. Mapupuno, Islamic Political Concept of Sovereignty and amie Mindanao law Journal, Official Journal of the MSU-College of Pd ay ne a les ony and ony there vine the author as the entirety of Shari'ah, lea sptam event ich cannot be accommodated by the Philippine ifthe Constitution is revised, For instance, certain ‘hudud’ author intends ‘substa Prox mating’ the entirety of Shari'ah, Scanned with CamScannerShari'ah For The Muslim Region In The Philippines 5 conclusions. Even non-Muslims had observed the importance of the religion of the Bangsamoro as an important ingredient in solving the Moro Problem. John Finley alluded to this when he said that: [I]t is well to remember that any solution of the Moro Problem by the American, or any other government, must count upon this element of his life (his religion), as the largest factor of the equation’ The Muslims in the Philippines are bonded to Islam, which is not a mere religion only but also a complete way or system of life. It includes the Shari‘ah legal system. I can only wonder then what system of life of the Bangsamoro that the Parties to the Framework Agreement on the Bangsamoro referred to when said agreement provides, “The Basic Law shall reflect the Bangsamoro system of life...”9 Referring to an aspect of the Shari’ah legal system, Bensaudi I. Arabani!° writes that it has always been the genuine aspiration of the Filipino Muslims to have their personal laws recognized by the state.!! However, as will be shown elsewhere in this work, the genuine aspiration of * John P. Finley, The Mohammedan Problem in the Philippines. In the Journal of Race Development, Vol. 5, No. 4, April 1915 cited in Nasser A Marohomsalic, The Framework Agreement on the Bangsamoro: Towards Hurdling the Constitutional Obstacle to Moro Self-Deter mination, IBP Journal, Special Issue No.2, December 2012, p. 20. * Item 11 (3), Framework Agreement on the Bangsamoro. *° ‘author, Commentaries on the Code of Muslim Personal Laws of the Philippines with Jurisprudence and Special Procedures, 1990. [Hereinafter cited as Arabani] ™ prabani, p. 188. Scanned with CamScannershari'ah For ‘The Muslim Region In The Philippine, | 6 U q ilippines is not limited the Muslims in ee ae personal tie og a reco; ition by te sntioned, the reader should not Re when Shart ‘ah is a ly ersonal laws found in the ‘Code me Laws of the Philippines.”™? The regime gy i Personal Laws of the Philipp; the Code im sippines, the extent of re Prines indicates that, in the PhilipP tom for the Musli aoe given to the ‘elamic legal system Ore caus In, the: Philippines is confined to Muslim Personal Laws only, In other words, the Islamic legal system has not been made fully operational to the Muslims in the Philippines. of a fully operational Islamic legal 0 actually fuels among other the Bangsamoro. For Nasser vn of Muslims from practicing Islam as a way of life and in all its splendors is the main raison d'etre of their insurgency. To the present writer's mind, one of the splendors of Islam is its legal system that is inseparable from it. In fact, the establishment of a Bangsamoro Homeland fully governed by Shari’ah has been the clamor of the late MILF Chairman Ustaj Salamat Hashim.'5 As alluded to above, any solution to the Mor Problem cannot discount the religion of the Moro as the largest factor of the equation. One may wonder then for the reason why. However, a logical premise in finding out the reason thereof is deducible from the nature of Islan itself. The absence system in Muslim Mindana root causes the struggle of Marohomsalic, the deprivatio sia 2 Hereinafter referred to alsoas the ‘Muslim Code! © nasser & Marchal an author of a book on the history of Bangsamoro entitled, “Aristocrats of the Malay Race”, 2001. ‘f See Marohomsalic p.20. ‘ See Ash-Shaykh Ash-Shaheed Salamat Hashim, We must win the strussle! [Hereinafter cited Ash-Shaykh Ash-Shaheed Salamat Hashim]; Marohomsall p. 20. 1 Scanned with CamScannerShari’ah For The Muslim Region In The Philippines 7 Islam cannot be likened to a restaurant menu from which the patrons can choose only the dishes of their preference. Thus, when a person embraces Islam, he embraces everything in it starting from the six (6) articles of faith such as the belief in the Oneness of Allah (s.w.t:) and the Prophethood of Muhammad (s.a.w.). Likewise, he must also believe and obey the law of Islam. Once a person accepts Islam as his religion, he has to give full submission to Allah and all his conduct shall be subjected to the teachings of the Shariah.16 To push it even further, a Muslim has to believe with what Islam has to say about the splitting of the atom, the orbit of the planets, and the creation of the universe. Similarly therefore, from the comprehensive Islamic legal system, a true Muslim is not expected to desire to be bound by Muslim personal laws only, for to reject the other aspects of Shari‘ah is to question the completeness of the Islamic faith itself, which is declared to be so in the Holy Qur’an. Hence, the desire of the Muslims in the Philippines to be governed by Shan’ah in its entirety, or perhaps substantial entirety, may be reasonably presumed. This is a stronger proposition than the contrary. The late Dr. Mamitua Saber1? referred to the Muslim, politically, as a “new Filipino,” forced into allegiance to the government by military and peaceful government means. He went further by saying that at the back of the Muslim's mind and in practice, he still owes loyalty to the traditional form of government and the laws of the sultanates to which he is to comply, as he has been accustomed to, under the * Abdul Rasak, Islamic Ethics, infra, p.73. *” See Mamitua Saber, Majority-Minority Situation in the Philippines, Mindanao Journal, July-September 1974, Vol. |, No.1, pp. 14-15. [Hereinafter cited as Saber] Scanned with CamScannerp jon In The Philippi; Th Muslim Region ‘Ppines jah For The 8 Sharia! and Islamic law (Shari‘ah) or law (ostome publican government, he t00, my under the Phil be then concluded that the Muslim is 4, obey its laws. Jiance of adat-Islamic laws, on one hase between the comp on the other hand. This puts wa ims i tose dilemma, for e Mcondence between the Shariah and the Philippine corres legal system is not always square. Should there be an aspiration of the Muslims in the nae werned by Shari‘ah in its entirety o, Philippines to be go RRL apnrar ‘substantial entirety’, then it is signt icant to Know if such an aspiration may be pursued in the legal framework of the non-Muslim government of the Philippines. _This is unexplored though concededly it may be incompatible with the existing legal framework with the 1987 Philippine Constitution as the fundamental focal point. A Bangsamoro Homeland governed by Shari‘ah is obviously unattractive to the sight of the Philippine government or the majority of the Filipino people. This has been revealed in the past. For instance, the substantive issues raised in The Province of North of Cotabato (MOA-AD case) were supposed to have become moot in view of the pronouncement of the Executive Department to abandon the Memorandum of Agreement. In other words, there was no necessity, based on the dissents, to pass upon the constitutionality of the MOA-AD for said issue has become moot and academic, thereby effectively losing the character of an actual case OF le adat st se x : The following Associate Justices of the Supreme Court voted to disrriss 7 round of mootness, the petitions assaling the constitutionality of the ny (The Province of North Cotabato Case): Antonio Eduardo B. Nachu®) ios v. Chico-Nazat, Presbitero J. Velasco, Jr., Teresita J. Leonardo-P° stro, and Arturo D. Brion. See their respective dissenting opinions. on Scanned with CamScannerShari’ah For The Muslim Region In The Philippines 9 controversy as one of the requisites of judicial review. There was no necessity for a pronouncement that the MOA-AD, which could have benefited the Bangsamoro people, is unconstitutional. Nevertheless, this did not stop the majority from deciding on the constitutionality of the MOA-AD for the provisions of which indicate that the Parties aimed to vest in the BJE (Bangsamoro Juridical Entity) the status of an associated state or, at any rate, a status closely approximating it. The main decision went on to say, “[t]he concept of association is not recognized under the present Constitution.” Our experience with the proposed Bangsamoro Basic Law shows that majority if not all the Members of the Philippine Congress are not willingly inclined to push for the passage of said law even jf it is categorically declared that the BBL will operate within the existing constitutional framework. If the Philippine Congress is not willing to pass the BBL which seeks to establish an ‘autonomous’ political entity only, with more reason that it may be difficult to expect, albeit not forever impossible for Congress, or a constituent body for that matter, to allow the establishment of a Bangsamoro Homeland governed substantially by Shari‘ah. Nevertheless, the proposition of retired SC Justice Minita V. Chico- Nazario in her dissenting opinion in The Province of North Cotabato case is worth noting. It encapsulates what is precisely in the mind of the present writer. She said that: It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao still remained to be elusive under its Present terms. There is the possibility that the solution to the peace problem in the Southem Philippines lies beyond the present Constitution. Exploring this possibility and considering the Scanned with CamScannerion In The Philippines Shari'ah For The Muslim Reg’ 10 itution are not rendment of the Constitution essary am neonstitutional.? lim Personal f the Code of Mus! ince the enactment o: an elaborate ss atthe Philippines, we oon tae Philippine Has ction of the Islamic legal Dae ee ada intera 5 te is also prompted th ‘ legal system. ae z f establishing and implementing uncharted ee entirety, or ‘substantial entirety,’ upon the Shari’ah in its e recognition of the Philippine ith the oe er is especially alluring considering that the go tl Bangsamoro Agreements eee dine ou See eee over cases through the firumentality of the Bangsamoro Basic Law. Hence, within the context of a new autonomous political entity for the Bangsamoro, the Islamic legal system and the Philippine legal system may possibly find themselves again on a : crossroad where Shari‘ah Courts this time are strengthened with the expansion of their jurisdiction. But of course this phenomenon sets aside in the meantime the existence of the BBL for said proposed legislation so far is not yet enacted into law as of this writing. Therefore, any scrutiny of the possible crossroads of the Islamic legal system and the Philippine legal system in the envisioned Bangsamoro autonomous political entity would be academic at best. Though appearing only in Papers, the Draft BBL, the version approved by the House of Representatives Ad Hoc Committee, and the Marcos substitute bill provide a nec per se w * See the Dissentin, '8 Opinion of Justice Chico-Nazario j Sctober 14, 2008, Ce Chico-Nazario in G.R, No, 183591, A reltosiaa it (greement on the Bangsamoro (FAB), as confirmed and inthe Comprehensive Agreement on the Bangsamoro (CAB). Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines ll glimpse of what could be the interaction of the two legal systems under the proposed autonomous political entity. Fortunately though, the Autonomous Region in Muslim Mindanao (ARMM), which represents the status quo, is an actual specimen which is readily available for scrutiny aside from the Bangsamoro Basic Law which is still somewhere in the political horizon. Recent developments involving the proposed legislation would readily show that pessimism or, perhaps, passivity prevailed over optimism. For instance, the House version of the Bangsamoro Basic Law as approved by the House of Representatives Ad Hoc Committee was criticized as watered down, while the Marcos version of the proposed legislation was condemned as diluted. In fact, the term “Bangsamoro Basic Law’ was a misnomer for the proposed legislation was later on named as of this writing as the “Basic Law for the Bangsamoro Autonomous Region” or BLBAR. However, for convenience, the present writer prefers in this book the use of ‘Bangsamoro Basic Law’ or BBL for brevity. A scrutiny of the possible crossroads of the Islamic legal system and the Philippine legal system in the envisioned Bangsamoro autonomous political entity is our springboard to an analytical study of the possibility of establishment and implementation of Shari‘ah in its entirety, or ‘substantial entirety,’ upon the Bangsamoro with the recognition of the Philippine government. This remains to be an unexplored proposition considering that the combination of all laws enacted so far in the Philippines with Shari‘ah implications is by no means the totality of Shari‘ah. This does not suggest however that the Islamic Scanned with CamScannerShari'ah For The Muslin toh" Pres 12 dopted and implemented by m was not a oe the Spanish conquest. netration of Islam in Mindana legal system itself. Tp, n before the coming a legal syste’ Muslims in il i Jater, the ; er 1 Do with it the Islamic phenomenod occurred already eve! the Spaniards jn 1521 AD. A Bold Hypothesis is study presents an academic exposition, which ae esi the feasibility of the proposition of adopting the entirety OF substantial entirety of Shari‘ah for the Muslims in the Philippines. It is conceded though that at certain points, this book must go beyond the parameters of the 1987 Philippine Constitution in order to arrive at certain realities that transcend the concept of a fundamental law. For this purpose, there will be discussions on the legal and/or constitutional impediments to the adoption of the hypothesis of this study and the legal issues surrounding the Islamic legal system vis-a-vis the Philippine legal system in the envisioned Bangsamoro and their interface autonomous political entity with ARMM as the existing paradigm. In the writing of this work, this author has been constantly mindful of the so-called ‘Moro Problem’ and its einnas effects on this study. Therefore, this legal sleasiien will also establish its inevitable connection ! pele ‘hough the same is replete with politic tlic Jndersianding the ‘Moro Problem’ is % imporant as the propesition of this humble work. ae , this ook is not intended to be an exhaustive and prehensive study of the ‘Moro Problem’ for such @ Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 13 subject requires at least a volume of expert discourse. While the present writer is committed to a quest to understand the Bangsamoro struggle, yet he may not be in the best position to make his own accounts pertaining thereto. Through this research though, he was able to pierce into the Bangsamoro narrative and make an appreciation of the various rays that emanate from the spectrum of the Bangsamoro struggle. Certain events overtook this work and affected how the author solidified his ideas into the manuscript. For instance, the election of Rodrigo Roa Duterte as President of the Republic of the Philippines is another factor that this study cannot ignore. He is the first President from Mindanao and the first President with a substantial familiarity with the plight of the Bangsamoro. He is the first President of the Philippines who declared on national news coverage that Moros had in the past been massacred. by the Americans during the latter’s subjugation of the Philippines.21 Taking into consideration some relevant development and the implications of the Bangsamoro Agreements, the present writer will also probe whether or not the hypothesis of this work, though unexplored, is already in the horizon. The use of the word “horizon” here invites an array of meanings. However, the present writer 7 See , last accessed September 17, 2016, 8:53 AM; http://www.sunstar.com.ph/davao/ocal-news/2016/09/06/duterte-reminds- us-bud-dajo-massacre-495916,, last accessed September 17, 2016, 8:48 AM,; ‘ , last accessed September 17, 2016, 8: Scanned with CamScanner14 Shari'ah For The Muslin Region In The Philippines i etical nature of this pe Heh ya legal Posy or ‘reasonable expectation OF anticipation of changes in an existing legal framework.” Specifically, this paper intends to address the following core questions: 1, What is the extent of implementation of the Islamic legal system in the Philippines during the pre-Spanish period and up to present? f 2. What is the relevance and causal connection of the Islamic legal system to the struggle of the Bangsamoro for self-determination? 3. Why is it that the establishment and implementation of the entirety or ‘substantial entirety’ of Shari’ah for the Muslim region in the Philippines is the most responsive and durable solution to the ‘Moro Problem’? 4. Why is there a need for Shari’ah for the Muslims in the Philippines? 5. How is it possible to adopt the entirety or substantial entirety of the Islamic legal system for the Muslims in the Philippines with the recognition of the Philippine government? 6. What _are the legal and/or constitutional impediments to the establishment and implementation of Shari‘ah in Muslim Mindanao and how to overcome them? 7. Why is there a need to go beyond the present Constitution in the end eavi , Problem’? or to solve the ‘Moro Scanned with CamScannerShari‘ah For The Muislim Region In The Philippines 15 8. What propositions, suggestions, plans and strategies, which are germane to the theory of this treatise, are to be recommended? .While this book focuses on the aforementioned core questions, there will be an emphasis on how extensive may the expansion of the jurisdiction of Shariah Courts be. Furthermore, this book would also explore the notion that ARMM is a failed experiment that failed to solve the Bangsamoro Question and the underlying reasons therefor. In view of.the magnitude of the foregoing questions, the present writer reminds the reader of the caveat that this is an academic exposition, which is far from being free from error in interpretation and mediocrity of opinion of the author. Should these flaws permeate the entire exposition, they are attributable to this author as an imperfect being. To this, the reader must never lose recollection. Expected Results The ultimate aim of this study is to substantiate the proposition that the establishment and implementation of Shari’ah in its entirety, or substantial entirety, is the most responsive and durable, but remains unexplored, solution to the ‘Moro Problem.’ It also aims to explain the relevance and the causal connection of the Islamic legal system to the struggle of the Bangsamoro. Further, this study will establish the possibility of adopting the entirety or substantial entirety of the Islamic legal system for the Muslims in the Philippines with the recognition of the Philippine government. Through this study, the extent of Scanned with CamScanner16 Shari'ah For The Muslim Region In The Philippines risdiction of Shari’ah Courts will p, also explore the notion a ARMM is a failed experiment that failed to solve the Bangsamoro Question and the underlying reasons therefor. Finally, this work will come uP with recommendations that are formulated based on the totality of the propositions, ideas, and observations presented, and the citations adopted herein. the expansion of the ju determined. This book would Scope and Limitations s book deals with fami al system, liar principles and however, mention ples and doctrines will also pervade in the enti because Islam and its legal system are inseparably interwoven. ‘As observed by retired Court of Appeals Justice Ricardo C. Puno, “(t]he Muslim religion is inextricably linked to the Muslim legal system, a ‘an all-encompassing religion which ue character of ct of the life of its followers.” while thi: concepts in the Philippine leg: of Shari’ah-based or Islamic princi ire disquisition unig permeates any aspet The present writer admits the limitation that he is not a history major. Hence, while this work will cite some historical literature, yet the interpretation thereof by the present writer will just be a result of an ordinary analysis, far from being an expert one. Nonetheless, recent developments in the Bangsamoro struggle bi ee rantt several important documents that have legal ro tot and are essential for the present een connotations documents include the 10 Decision Points a ee These Bangsamoro agreements, and the BBL bills naomi to ee lecture of Hon. Mehol Sadain, Mindan; ga Clty. [Hereinafter cited as Sadain, eae ot Lecture, ey. Scanned with CamScanner 22 Taken from th Lawyers, ZamboantShari'ah For The Muslim Region In The Philippines 17 Draft BBL submitted by Malacariang to Congress, the version approved by the House of Representatives Ad Hoc Committee, and the Marcos version. Vis-a-vis these documents, the present writer, although not a recognized expert in the field of law, but as a law professor handling Political Law subjects and a practitioner both in the regular courts and Shari‘ah courts, may have the minimum competence for legal scrutiny and analysis, modesty aside. To demonstrate the perceived inability of the status quo to solve the Bangsamoro Question, this author will scrutinize the Autonomous Region in Muslim Mindanao in a general manner. This study would also include in its scope a survey and evaluation of relevant provisions of Presidential Decree No. 1083, otherwise known as the “Code of Muslim Personal Laws of the Philippines” and the Organic Act for the Autonomous Region in Muslim Mindanao. Some cases decided by the Supreme Court will also be cited insofar as they are relevant. Rationale for This Work While this study does not endeavor to become an authoritative treatise, yet to some extent, it is significant for it addresses a centuries-old problem that has been proven to be thorny enough to cause crippling effects on the life of the Filipinos. It proposes a bold but durable and sensible peaceful mechanism that addresses responsively the struggle of the Bangsamoro particularly its aspect on legal system. It would also provide an initial glimpse on Islamic thought, which may be able to brighten blurred - Scanned with CamScannersor Te Mastit Region In The Philpy, | Shari’alt 18 ic legal system. Heng, the Islamic lege : e, study ey mulation of POUCY Eat as cal useful in the ernment affecting e fuslims 7 branches ma . Srole. Finally, this study ia be eae springboard for further research on g, serve as affecting the Bangsamoro. > thy Id ts Polit, able Ubjegt, Methodology Atthis juncture, the reader is advised that this stug is far from being authoritative for it relies solely on documentary or archival research as the methodology, adopted to support its thesis. Relying on document research, this book uses primary and secondary many of which are personal collections of writer. The articles or books authored by so writers are given more emphasis as source of and basis of criticisms, Su highlight impressions, Sources, the present me Meranao information ich emphasis is intentional to which are originating from the very ‘ngsamoro struggle who have As this book; the eangbtl documents, including laws cited in Websites such as th, “7 Mainly from government Of the Presidential not © Official Gazette and the Office ential Adviser On the Peace Process, Sorte Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 19 relevant cases decided by the Supreme Court of the Philippines were also cited in this book but the scrutiny of these cases is not limited to the majority opinion. Taken into consideration also were the separate, concurring, and dissenting opinions of the concerned Justices of the Supreme Court of the Philippines. Online research of reliable materials was also availed of to compensate research limitations brought by financial and time constraints involved in a thorough research for a study of this magnitude. Sequence of Exposition The author will begin with a chapter that will introduce the reader to Shari‘ah with a caveat that only a bird’s-eye view thereof will be highlighted. This is unavoidable for Shari‘ah is so comprehensive. What will be emphasized are those aspects of Shari‘ah that are necessary to understand the hypothesis of this work. This would include a discussion on the Shari‘ah justice system under the existing legal framework of the Philippines and as envisioned in the Bangsamoro Agreements (FAB and CAB). From an introduction of Shari’ah, the discussions will gradually make a transition into the connection of Shari’ah to the ‘Moro Problem.’ This would require a predicate that will be derived from the penetration of Islam to Mindanao and Sulu. Thereafter, the present writer will substantiate the need for Shari‘ah for the Muslims in the Philippines. From there, he will painstakingly identify the legal and/or constitutional impediments to the hypothesis of this work and the possible remedies to overcome them. This will be followed by a reflection on the need to think outside the box, Scanned with CamScannerSy n In The Philippine, wally 4 rationalization that is of the Constitution. Finally FN, 7 the which #8 essenti a by the grasp si vil sulize the hypotheses of this work inj a conclusion and tender endations based on totality of the propositions, ideas, and observations that the author presente in this book. For this particular wor the author ends with a ‘final word.” tk, the Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 21 CHAPTER ONE Islam and Its Legal System: A Bird's-eye View Even if this entire book will be devoted only for discussion on the Islamic legal system, the author still cannot do justice to said legal system if it were to be elucidated comprehensively. The Islamic legal system is as comprehensive, if not more so, as the other legal systems. Hence, the author intends to project a general impression on the Islamic legal system only so that the reader will be given a general idea about said system. Fundamental for this purpose is an introductory elucidation on the following: Islam, Shari‘ah, and Figh. Islam The religion of Islam is the acceptance of and obedience to the teachings of God which He revealed to His last prophet, Muhammad (peace be upon him [original in Arabic]).”> Religiously, Islam is defined as the complete submission to the will of Allah and obedience to His law Ghari’ah).4 In details, it refers to submitting one’s self to the teachings brought by the Prophet (SAW), abiding by the commands and refraining from the prohibitions.25 In his book The Sources and Development of Muslim Law, Ahmad Ibrahim explained, “Islam literally means ® LA Ibrahim, A Brief Illustrated Guide to Understanding Islam, p. 45. [Hereinafter cited as Ibrahim} “Jashim A. Abdulrahman, Questions and Answers: Islamic Law (Shariah) and jurisprudence (Fiqh), p. 1. [Hereinafter cited as Abdulrahman] Ibid, Scanned with CamScannerMuslim Region In The Philippin 22 Shari'ah For The 11 of God and the will of God is “ of is beauty of life and chase gliness of life and Gare i d what is qush or morally , eee mal a om Divine revelation. The yal can mean action must be considered in the sight 4 oe its earthly consequences are incidental. What i, morally beautiful, must be done; what is morally ugly mug not be done. That is the path to be pursued or jh Shari‘ah.” >6 submission t0 should pursue ust, avoid qubh, that is 4 Islam is the religion which Allah (s.w.t.) categorically named as the only religion which He accepts. This js | indicated in several verses in the Holy Qur'an, to wit: “Truly, the religion with Allah is Islam.” [Surah Al-Imran, Qur’an 3:19)?” “And whoever seeks a religion other than Islam, it will never be accepted of him, and in the Hereafter he will be one of the losers.” [Surah Al- Imran, Qur’an 3:85) “This day, I have perfected your religion for you, completed My Favour upon you, and have chosen for you Islam as your religion.” [Surah Al-Maidah, Qur'an 5:3)29 26 fr cae Rasak, Introduction to Islamic Law and Jurispruden? Peas Gre s) ba [Hereinafter cited as Abdul Rasak] by Dr. Muhammad. reser "8s of The Noble Qur’an in the English La" rat [Hereinafter ce og et U-DIn al-Hilali and Dr. Muhammad Muhsin ¥ tt Cited as al-Hilali and Khan, Translation.) pune ” Ibid, Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 23 Shari‘ah39 The word shari’a is an Arabic term used to mean the dispensation of Prophet Muhammad (may peace be upon him)! It is a name given to the totality of the commandments of Allah.3? Each of such commandments is called hukm (pl. ahkam).%3 It is defined as “that which would not be known had there not been a divine revelation.’ This definition of Shari’ is broad enough to include the revelations made previous to Prophet Muhammad (may peace be upon him).35 However, the revelations made to the previous prophets are considered valid only in so far as they have been confirmed by those made through Prophet Muhammad (may peace be upon him).3¢ The latter, therefore, are the shari’a par excellence.3? Corollary from the above definition is that only what is expressly stated in the divine revelations, or may be inferred from them by analogy, properly comes under shari’a.3* Reports indicate that the newly converted Muslims who had come to the Prophet from different parts of Arabia, requested him to depute someone to their locality to instruct them in the “shara’i’ of Islam.39 As for the term shari’a, it was hardly 30 some authors use other spelling such as ‘Sharia,’ ‘Shariah,’ ‘Shari’a’ but these terms have the same meaning. 3. “saaduddin A. Alauya, Fundamentals of Islamic Jurisprudence with Appendix: Islamic Penal Law, p. 2. [Hereinafter cited as Alauya] * bid. * Ibid. * \bid,, citing Sadr-us-Shariat’s Tawdih, p. 21. * alauya, p. 1. * bid. * ibid, Scanned with CamScanner_a—X— se Maslin Region In The Phin, | 24 sharia For (Is m.40 However, at a late, din the early days ° the specific meaning, ie, thet see troduced © rd shari’a Means a “cours, was intro’ y, the WO! . mg tory, Islam. Literal He “resort of drinkers.”42 y ne wratering-pl@ce” i" th or “highway” to be followed. therefore the cleat pa + sant at: Pr New vies iah includes not only univers] ns et details of how man should mol Pigs hfe and deal with his neighbor and sear how he should eat, procreate and Seep: how he should buy and sell at the market phe, and how he should pray and perform other acts of worship. It embraces all aspects of human life and contains all tenets to guide a Muslim to conduct his life in harmony with the Divine Will. It has formed a framework in which man can mould his behavior and develop his manhood suitable to high standard of morality. The Shariah explains in detail which acts are obligatory (wajib), which are recommended (mandub), which are forbidden (haram), which ate reprehensible (makruh) and which. are ). Through this balance, the me and behavior is made | t he will be able to fod hie aK Path from that which Inouedge of Ble itt Shariah provides him Wrong. Such law is the "bid, ‘abi Ibid, Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 25 blueprint for ideal human life and behavior [Italics and boldfacing supplied] The five ultimate purposes of Islamic Law are the following: For religion or purposes of the Hereafter; Preservation of Nafs (life); Preservation of nas! (progeny); Preservation of aq] (intellect); Preservation of mal (wealth). 45 gPpepy pe Figh Fiqh is defined as “the deduction of the shari’a values related to conduct from their respective particular (tafsili) evidences.”46 Inasmuch as the prescriptions contained in the shari’a, to use a judicial analogy, serve as evidences for the establishment of shari’a values, they have been called by the doctors as “shari‘a evidences” (adilla shar’iyya).47 With reference to the source from which these evidences are obtained, the doctors have distinguished four types of sharia evidences, namely: (1) the Qur‘an, (2) the Sunna (Model Conduct of the Prophet), (3) the Ijma’, (Consensus or Agreement), and (4) the Qiyas (Analogical deduction).48 The science which derives the shari’a values from the shari‘a evidences is the “science of fiqh,” or simply called ‘ Prof. Nawawi, infra, pp. 60-61. (a See Abdulrahman, p.3. Alauya, p. 3, citing Aghnides, N.p., Mohammedan Theories of Finance (New York, 1916), p.24. Alauya, p. 3. “ibid, Scanned with CamScanner26 Shari'ah For ‘The Muslim Region In The Phiten es conversant with this scie h, and the person con Science, . ik ‘ Figh has been defined by an Hanif a ing i & . as “the self’s knowledge of what is to its a ~ iM disadvantage.”° Alauya observed that this i hy wig broad enough to include matters of conduct ( a as well as matter of belief (r tiqadiyyat), and of | Na) (coiidaniyyat)” although according to him, “som, ji have restricted figh only to matters of conduct, such 2 ns transaction (imu‘amalat) and religious rituals (‘iba dat) i A Complete Legal System The Islamic legal system is a complete legal System comprising civil, criminal, commercial, procedural, Politica} and international lao, among others. Corollarily, the tem “shari’ah” covers all aspects of Islam.52 Hence, to reiterate when Shari‘ah is mentioned, the reader should not confine its meaning to purely personal laws found in the Code of Muslim Personal Laws of the Philippines. This system however is more extensive than any existing legal system Unlike other systems of law, Shari‘ah also includes purely religious laws. That is because Shari‘ah is a wide circe embracing in its orbit all human actions, legal or non-legd acts alike’? Islamic law is the only legal system ever known by human being which covers the law of worship. Is ultimate aim does not end within the confines of ths Se ed * ibid, * Ibid lids pp. 3-4. See Alauya, 2. ting Fayzee, Asaf A A, Outlines of Muhammad? : } p24 as clted in Hasan, Ahmad, The Early DevelOP™ {slamic Jurisprudence (Islamabad, 1970), p.8. Prof. Nawawi, infra, p. 63, - Scanned with CamScannerShari'ah For The Muslim Region In The Philippines 27 earthly existence but it is extensive enough to envision ultimate success for its advocates even beyond mortality. “For the Shari’ah, which God entrusted His prophet to transmit,” so said S. Mahmassani, “is the pillar of the world and the key to success and happiness in this world and the next,”55 An Unfamiliar Terrain Shari'ah is an unfamiliar terrain to the uninformed thereby triggering his ‘apprehension’. The term initially adopted here by this writer is ‘rejection’ instead of ‘apprehension’. However, the word ‘rejection’ may be replete of invasive connotations, which may encroach upon the ego of the Muslim reader and those who may be against the adoption of Shari‘ah in a Muslim region in the Philippines. To reject Shari‘ah is to invite a status of ‘disbeliever’ hence, the need for a more ‘diplomatic’ term. After passing the Shari‘ah Bar Examination in 2006, this author has personally observed a dose of truth pertaining to the Shari‘ah legal profession. It appears based on actual observations that some regular members of the Philippine Bar show their disapproval, and sometimes even disgust, when Shari‘ah lawyers use the title “Attorney.” Though from a legal perspective, they should not be blamed. Perhaps they are familiar with the case of Alawi vs. Alauya5® This is a case where the Supreme Court of the Philippines confirmed that members of the Philippine * Taken from Falsafat al Tashri fi al-Islam (The Philosophy of jurisprudence in Islam), as cited by Azizan Abdul Rasak, Introduction to Islamic Law and Jurisprudence, (Marawi City,1985), p. 69. °° A.M, SDC-97-2-P. February 24, 1997. Scanned with CamScannerjah For The Maslin Region In The Py, Shari‘alt 28 the title “Attorney.” Howey, Shari’ah Bar oe Shur‘ Bar Examination been with hag the en the regular Bar Examination, then ic same extent ch indicium of apprehensive attitude towa ig opined that a to Shari‘ah would seldom Arise, 4s matters: Py es of non-members of the Sharia}, Bar a minimal preju from a real and honest observation the ee ene | jurisdiction is not the totality of the lan, legal system. The Supreme Court of the Philippines Could not be more emphatic in depicting the disparity in the extent the coverage of the Philippine Bar Exam and the Shati‘ah Bar Exam. In its resolution in Bar Matter No. 681,57 th. Supreme Court held that: “In order to be admitted as member of the Philippine Bar, the candidate must Pass an examination for admission covering the following subjects: Political and International Law; Labor and Social Legislation; Civil Law and Taxation; Mercantile Law; Criminal Law; Remedial Law; and Legal Ethics and Practical Exercises (Sec. 11, Rule 138) Further, in order that a candidate may be deemed tohave Passed the bar examination, he must have obtained a Seneral average of 75% in ir wn aforementioned subjects without failing iow ina ji the other hand, th weet (ec. 14, Rule 138). On ‘and, the subjects Covered by the special examination for ; n hari'a courts are: (1) (rence (Figh) and Customary laws (Adat); ome vont Relations and Property; (3) Successions, Wills/A djudication and Settlement ” august s, 1993, Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 29 of Property; (4) Procedure in Shari'a Courts (See Resolution dated September 20, 1983).” Indeed, there can be no way to label the purely Muslim personal laws embodied in the Muslim Code as the totality of Shari’ah. This may somehow logically explain the attitude of superiority complex of regular members of the Philippine Bar towards Shariah . lawyers in the Philippines. True, the members of the Philippine Shari’ah Bar had in the past been invited to attend in the convention of regular lawyers? However, such an invitation was probably more of a gesture of courtesy from the national leadership of the Integrated Bar of the Philippines than an official recognition of a right of Shari‘ah lawyers to attend the convention of regular lawyers. Many legal researchers in the Philippines have no extensive familiarity with the Islamic legal system. Even today, many Filipinos including members of the legal community have completely no idea about what Shari’ah is. This is expected because Islamic law officially gained prominence in the Philippines only upon the enactment of the Code of Muslim Personal Laws of the Philippines in 1977. In fact, within the context of the dispensation of legal education, it is only in the College of Law of the Mindanao State University where inceptively, Shari’ah subjects were offered as regular subjects in its law curriculum. Hence, law graduates from law schools in the Philippines that do 5* The present writer is both a regular lawyer and a Shari’ah lawyer. As such, he is ina proper position to observe the perceptions of his colleagues in the Philippine Bar and in the Philippine Shari‘ah Bar. 5° 4" and 5" Mindanao Convention of Lawyers and the 14" and 15"" National Convention of Lawyers. Scanned with CamScannertg are more likely utterly Unfany ka not offer sharialt subje with sharia ‘ords time and attention to at its present status A and appreciate may possibly give the res." pened 13 sr eyes. Alter attending a on which Shar! ee for Shari‘ah Judges at Zamboang. Developme in 1998, Dean Ranhilio Callangan Aquin, D, has this t0 y: “I went to Zamboanga curio, PhOD., J. fa law, although I endeavored to read up on thy : inar with profound respect fo, the Philippines.”°° wer, if one HOw j‘gh even subject. I lel : Shari’a law and its j One’s minimal antipathy towards Shariah is a result, maybe, of his apprehension arising from either his excusable or inexcusable unfamiliarity in matters of the 11 for Muslims. There is even an alleged ordained direction® assertion from certain quarters to the effect that some residents of ARMM are indirectly apprehensive of the implementation of Shari‘ah in Muslim Mindanao. This's not so. This apprehension, which is borne out of political considerations, has nothing to do with Shari’ah as a legal system. Rather, their apprehension revolves around the issue of in whose hands the reign of the Bangsamon government would be placed should the passage of the ial la 60 See t he Foreword of the learned Dean to the Shari’a Remedi 7 ay Compendium authored He Ameladin M pee by the late Hon. Judge ladin M. Al 6 ns a “cours See Alauya, op. ci re ri’a mea’ . cit, pp. 1-2: “Literally, the word shari’. eat ec ‘the watering-place” path or “hetway? oe a “resort of drinkers.” It means therefore d be followed. The Qur'an uses the words Shi 2° ear sharia in the mi eaning of alin (relig path of Allah for man (éiion), in the sense that it is the ¢ Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 31 Bangsamoro Basic Law becomes a reality. If they themselves are indirectly apprehensive of the Bangsamoro Basic Law for it would give political power to a particular group of individuals, then it would not be atypical for others to expect a package of uncertainties from a non- Muslim government at the end of the day. The Sources of Islamic Law The four sources of Islamic Law (Adilla Shar’iyya) are the following: 1) The Glorious Qur’an; 2) Sunnah; 3) Ijma; and 4) Qiyas. Muslim jurists identified other secondary sources of Islamic Law such as Istihsan (juristic preference), Maslaha al Mursala (consideration of public interest), Istishab (presumption of continuity), and ‘Urf (custom), inter alia. But for purposes of this chapter, the author will limit the citations to the four sources only. The Holy Qur’an The Qur'an, the last revealed word of God, is the primary source of every Muslim’s faith and practice. It deals with all the subjects which concern human beings: wisdom, doctrine, worship, transactions, law, etc., but its basic theme is the relationship between God and His creatures. At the same time, it provides guidelines and detailed teachings for a just society, proper human conduct, and an equitable economic system. ® Ibrahim, p. 54. Ibid. Ibid. Scanned with CamScannerPine, Jamic Law is th rce of Is! oh rst primaly ae literally means rea ding ty The fi Qur Qur'an is the Holy Script’, ; oe the very words of Allah i ae consisting h Angel Gabriel to Pet throu, ‘be upon him) during his Prophet Me aj a later in Medina. ec: A ifarious topics as well tains multi topics i is Rut ns? The orders and injunctions cane wrders and inj : e cassfid in the following group: a) Instructions regarding prayers a worship: s b) Fundamental principles regulating Telations between men and man which are grouped as under, i) Laws relating to the protection of Islamic faith suchas Jihad, etc; ii) Laws dealing with family life such divorce, paternity, inheritance, etc.; iii) Laws of transactions such as contracts, sales, ete, iv) Penal laws.68 as matriage, Ithas to be admitted, however, that the Quran being basically a book of reli A 7 reference fo legal studi jeuidance, is not an eas) cess’ ith * is mote Particularly an legal man soul rather than a According to Dp Said RantPtions 7 Such prescriptions ny are comparatively limited "id, of © pen 9, ara se Rosa, Dg P09, Wi 'URISPRUDENCE by M.H. Qureshi id, Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 33 and few, which he enumerates in his book Islamic Law, Its Scope and Equity.7! Regarding family laws, they are laid down in 70 injunctions; civil law in another 70; penal law in 30; jurisdictions and procedure in 13; constitutional law in 10; International relations in 25; and economic and financial order in 10,72 Though matters of juridical nature are dealt with by the Quran it will be noticed these are limited and few, yet they are of profound importance if looked into a proper perspective’? None can deny that principles of fundamental nature like human rights, relations between man and man, fulfillment of obligations and so on and so forth are all embodied in the Quran.”4 That is why the Quran is considered to be a code of conduct laying down fundamental principles and not the detailed provisions.’ Sunnah (Tradition of the Prophet) 76 Sunna literally means way, custom, habit of life, and technically connotes the utterances of the Prophet (other than the Qur‘an) known as hadith (plural, ahadith), or his personal act or acts and sayings of others tacitly approved by him.7”7 However, Sunna has also another technical meaning in reference to religious duties, namely, that which is recommended, although not obligatory, according 78 authors use other spellingsuch as ‘Suna’ but the meaning is the same. 7 alauya, p. 41. Scanned with CamScannerMuslim nes ss eppings A 34 shari’alt For The shari’a values.”° The te; to the dst ine of the Piephee bat "i " covers nol iI as the actions of his companions i actions as We’ eration WE ‘mieain’ t je “deeing © tolerated”? BY ing being done by his companion ae ert or even explicitly approving itso nt keeping Sl and Sunna either of which might yn two wor ications be translated “ tradition though ae some es differ in their significance.8! Hadith rely commonly, z representing an account of what hay eee iq means a practice or custom 32 happened, whereas Sunnt ae pied me short, Sunna is what was practiced and !1adith 1s the recon of what was practiced.® The Traditions of the Prophet constitute: The sayings (the major portion of Sunnah) of the Prophet. Deeds: all actions, method of performance and conduct of daily life comes under this kind. (iii) Conduct, an implied acceptance to certain things which came to be of the knowledge of the Prophet and he did not oppose them. This amounts to the tacit consent of the Prophet, such as the customs of Madina which wert not questioned 84 @ i) Scanned with CamScannerShari‘ah For The Muslim Region In The Philippines 35 The function of the Sunnah or Hadith is two fold.85 In the first place, it helps us to understand the meaning of and to apply the verse of the Holy Qur’an, by explaining them, by giving details of general rules, by specifically applying the rules when they are general, by providing exceptions to their application or by defining them when they are capable of several interpretations.% Secondly the Sunnah and the Hadith lay down rules of conduct and of laws in some matters not dealt with in the Holy Qur’an.87 There has to be a basis though why the Sunnah of Prophet Muhammad (p.bu.h) is a source of rules of conduct that are afforded a binding character as law in the Islamic legal system. Alauya writes that the basis is no less than the verse of the Holy Qur'an which reads (in English Translation) as follows:88 “And we have also sent down to you (O Muhammad) the Dhikr [reminder and the advice (ie,, the Qur’an)], that you may explain clearly to men what is sent down to theny and that they may give thought” [Surah An-Nahl, Quran 16:44 )89 Alauya thus observes, “Prophet Muhammad (p.b.u.h.) was not only the transmitter of the Glorious Qur'an but he also interpreted and completed it.’ This, ® alauya, p. 40. ® al-Hilali and Khan, Translation. °° See Alauya, p. 40. Scanned with CamScanner