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461
461
A.
A.Dynastic
DynasticRealms
Realms
& Secular
& States
Secular States
Legal
Legal Pluralism
Pluralism
in thein
Philippines
the Philippines
Michael 0. Mastura
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462 Legal Pluralism in the Philippines
formulate
formulatea single
a singledefinition
definition
of the ofconcept.
the concept.
If, however,
If, however,
we we
weave
weavetogether
together thethe
ideas
ideas
of law
of in
lawculture
in culture
and society
and society
with thewith the
ideas
ideasofoflaw
lawin in
religion
religion
and and
politics,
politics,
we canweestablish
can establish
the basicthe basic
elements
elementsofof legal
legal
pluralism.
pluralism.
As weAsconsider
we consider
these elements
these elements
that that
give
giveformal
formal structure
structureto the
to Moro
the Moro
legal system,
legal system,
general general
questions questions
of
of law
lawininreligion,
religion,culture,
culture,
and politics
and politics
are bound
are to
bound
surface.
to surface.
11 This
Thistheory
theory
of construction
of construction
providedprovided
the groundwork
the groundwork
for my own research
for my ap-own research ap-
proach.
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Michael 0. Mastura 463
Should
Shouldspecial
special
rulesrules
of procedure
of procedure
be adopted
be adopted
for cases for
involving
cases in
Muslim
Muslimpersonal
personallaw?2
law?2
Second,
Second,legal
legalissues
issues
havehave
socialsocial
implications.
implications.
The distinctive
The disti
social
socialcontexts
contexts
andandvalue
value
frameworks
frameworks
of Muslim
of legal
Musliminstitutions
legal inst
must
mustbebe taken
taken
into into
account.
account.
ShouldShould
plurality
plurality
in marriage
in be
marriage
abol-
ished
ishedby
bylaw?
law?
Should
Should
Muslim
Muslim
men have
men the
have
freedom
the freedom
to pro-
nounce
nouncedivorce
divorceby by
sayingsaying
talaq thrice,
talaq thrice,
and should
andtheir
should
wives
their
be w
entitled
entitled toto
alimony?
alimony?Do Muslim
Do Muslimwomenwomen
have parity
havein parity
property in p
rights
rightsand andinheritance
inheritance shares?
shares?
(See Fyzee
(See1971;
FyzeeMastura
1971;&Mastura
Buat
1977.)
1977.)Such
Such questions
questions
cannotcannot
be answered
be answered
without without
a thoughtful
a tho
consideration
consideration of of
social,
social,
cultural,
cultural,
and religious
and religious
factors relevant
factors to rel
the
theMuslim
Muslim people
people
of the
of Philippines.
the Philippines.
The introduction of the Drafts of the Administration of Mus-
lim Law of 1974 into the House of Representatives, an effort in
which I was involved as a member of the Congress, provided
some answers in the Philippines context. The seminal phase of
the work raised questions involving politics, a number of which
are treated in the documentation of our work and need not be
reviewed here.3 It is the framework of Muslim personal law that I
would like to discuss in more detail.
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464 Legal Pluralism in the Philippines
mous.
mous.The The committee
committee considered
considered
it important
it important
to lay down tothe
lay down the
fiqh
fiqh(i.e.,
(i.e.,general
general
jurisprudential
jurisprudential
rules), arules),
fundamental
a fundamental
principle principle
of
of legality
legality that
that
limits
limits
both delegated
both delegated
and vestedand
authority.
vested The authority. The
code
codeincorporates
incorporates personal
personal
laws concerning
laws concerning
acts whoseacts
practice
whose practice
is
is an
anabsolute
absolute dutyduty
(wajib)
(wajib)
under under
Muslim Muslim
law, and itlaw,
proscribes
and it proscribes
acts
actsthat
that areare
forbidden
forbidden (haram)(haram)
and demandand unconditional
demand unconditional
pun- pun-
ishment
ishment according
according to Muslim
to Muslim
law. Under
law.theUnder
code, the
Muslim
code,
per-Muslim per-
sonal
sonallaw law is considered
is considered to include
to include
all laws all
relating
lawstorelating
personal to personal
status,
status,marriage
marriage and and
divorce,
divorce,
matrimonial
matrimonial
and family and
relation-
family relation-
ships,
ships,and and property
property relationships
relationships
betweenbetween
spouses as spouses
provided as provided
for
forininP.D.P.D. 1083
1083
(art.(art.
7, ? 1).
7, But
? 1).
theBut
canontheofcanon
construction
of construction
in in
Islamic
Islamiclaw lawis more
is morecomplicated
complicated
than this than
provision
this provision
might sug- might sug-
gest.
gest.Codification
Codification necessarily
necessarily
entailedentailed
the selection
the of
selection
substantiveof substantive
legal
legalrules
rules (hukum)
(hukum) derived
derived
from thefromdifferent
the different
schools of law
schools of law
(madhab)
(madhab) to to
thethe
extent
extent
that these
that were
these intrinsic
were intrinsic
to the personal
to the personal
law system.
This process of selection is thus the second problem of legal
pluralism faced by the codifiers, who set forth in the code itself a
theory of construction and interpretation. The committee de-
cided that no precept should be included unless it was based on
the principles of Islamic law as expounded by all four (Sunni)
schools. The problem of law selection is also addressed in provi-
sions concerning the administration and enforcement of the
code among Muslims (art. 2, 11 b and c). Most Muslim jurists
agree on the legal doctrine that broad rule-making policy (siyasa
al-shari'a) forms the basis for competent authority to determine
the manner in which Shari'a should be administered in contem-
porary legal systems. When cultural or policy norms dictate that a
court apply a substantive rule that is not embodied in the Muslim
personal law or one that is extrinsic to it, proof (hujiyat) of such
sources is also required.
Law finding is the third problem of legal pluralism faced by
the framers of the code. They adopted the principle of the grada-
tion of rules of Muslim law. In some instances, the provisions of
Muslim law were too complicated to be set forth in the new code.
In these cases, only the fundamental principles were stated and
the details were left to judges for proper implementation. Legal
complexities are not made simple by statutory construction and
interpretation alone, for applying the law must also involve the
proper categorization of rules of decision when laws conflict. The
code states simply that when Muslim law and adat (customary
law) are not embodied in the code, they must be "proven in evi-
dence as a fact" (art. 5). This is essential to determine their valid-
ity as sources of supplementary law. In other words, the task of
the judges may entail finding further Muslim laws, as well as cus-
tomary laws having the force of law. No adat that is contrary to
the Constitution, to the code of Muslim law, or to public order,
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Michael 0. Mastura 465
public
publicpolicy,
policy,
or or
public
public
interest,
interest,
however,
however,
shall have
shall
legalhave
effect
leg
(art. 5).
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466 Legal Pluralism in the Philippines
3.
3. "If
"Ifallallthis
this
search
search
is fruitless,
is fruitless,
or if on
orsome
if on
Jurisprudence
some Jurisprudence
point
pointwe
wewish
wishto delve
to delve
into into
the deep
thesea
deep
of the
sea of the
fiqh,
fiqh,we
wethen
then
turn
turn
to an
toexpert
an expert
for texts
foroftexts of
authority
authority from
from
thethe
Hedaya."
Hedaya."
4.
4. "It
"Itisisonly
onlyin in
veryvery
rare rare
cases cases
that anthat
advocate
an advocate
or Quran or
or Hadith
Quran or Hadith
solicitor
solicitorneeds
needsto consult
to consult
an alim
an [pl.
alimulama]
[pl. for
ulama] for
unknown
unknown principles,
principles,
arguments
arguments
or illustrations.
or illustrations.
The
Thequestion
question of of
using
using
the Koran
the Koran
or hadith,
or hadith,
for for
all
all practical
practicalpurposes,
purposes,
comes comes
last, unless
last, unless
an an
author
authorwishes
wishesto fortify
to fortify
his exposition
his exposition
by Arabic
by Arabic
tests,
tests,orora judge
a judge
wishes
wishes
to examine
to examine
the first
the first
principles
principles for
for
himself."
himself."
Fyzee
Fyzeecontends
contends
that
that
the last
the method,
last method,
use of the
useQuran,
of the is Quran,
rarely is rarely
necessary
necessary nowadays
nowadaysbecause
because
of theof
wealth
the wealth
of case law.
of case
It would
law.beIt would be
wrong
wrongfor
forthethe
court,
court,
moreover,
moreover,
to attempt
to attempt
to put itstoconstruction
put its construction
of
of the
theQuran
Quranin in
opposition
opposition
to thetoexpress
the express
ruling ofruling
commenta-
of commenta-
tors
torsofofsuch
such
great
great
antiquity
antiquity
and high
andauthority.
high authority.
M. B. Hooker (1984:233) observes that the Code of Muslim
Personal Laws relies on a tripartite scheme of classification: Mus-
lim law (Shari'a), Muslim personal law specifically incorporated
into the code, and other applicable Islamic laws. He sees the
code's reference back to orthodox Islamic legal sources (and
away from a "generalized 'Muslim ethos'" as a development in
Islamic legal formalism. When Islamic precepts were embodied
in codal form and their administration in national courts was
provided for, "the authority of law had been transformed from
(purely) religious ethic to State fiat" (ibid., p. 245). This funda-
mental change has placed Muslim Filipinos on the same footing
as their co-religionists in Malaysia, Indonesia, and Singapore. Yet
because of uncertainties about how these laws will actually be ad-
ministered, Hooker regards the formalization of Muslim law in
the Philippines as tentative. Evolving political realities in the
Muslim autonomous region will shape the implementation of the
Code and lead to a more predictable standard.
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Michael 0. Mastura 467
cable
cableMuslim
Muslim laws"
laws"
over
over
and and
above
above
the codal
the codal
provisions
provisions
that may
th
be
be brought
brought totobear
bear
in a
inparticular
a particular
case. case.
As forAsadat
for(customary
adat (cus
law)
law) as
asa apossible
possible source
source
of "other
of "other
MuslimMuslim
law," Majul
law," suggests
Majul su
that
that the
thecode
code clearly
clearly
subordinates
subordinates
adat to
adat
theto
Shari'a
the Shari'a
in this re-
in
gard
gard (Majul
(Majul1977:374-94).
1977:374-94).
Hooker
Hookerquestions
questions thethe
workability
workability of the
ofCode
the of
CodeMuslim
of Musl
Per-
sonal
sonalLaws
Lawsgiven
given thethe
ethnographic
ethnographic data on
datawhich
on which
it is grounded.
it is gr
Following
FollowingNajeeb
Najeeb Saleeby's
Saleeby's
lead lead
in Studies
in Studies
in Moro
in History,
Moro Histor
Law
and
and Religion
Religion (1905),
(1905),
andand
relying
relying
on theonethnographic
the ethnographic
fieldwork
fi
of
of Thomas
ThomasKiefer
Kiefer (1972),
(1972),
Hooker
Hookerconcludes
concludes
that the
that
Moro
thecon-
Mor
cept
cept of
oflaw
lawis is
essentially
essentiallyrelational
relational
for both
for source
both source
and content,
and c
as
as contrasted
contrasted with
withthethe
positive
positive
law approach
law approach
of the of
code.
theHooker
code.
1984:223-24)
1984:223-24) does,
does,
however,
however,
qualify
qualify
his pessimistic
his pessimistic
conclusion
co
about the future of the code:
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468 Legal Pluralism in the Philippines
Empirical
Empirical Evidence
Evidenceof
ofthe
theLink
Linkbetween
betweenCustomary
Customary
Law
Law
and Islamic Law
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Michael 0. Mastura 469
the
the question
questionof
ofinheritance.
inheritance.Her
Herdata
data
analysis
analysis
helps
helps
answer
answq
tions
tions that
that have
havebeen
beena acentral
central concern
concern forfor
legallegal
ethnogra
ethno
She
She finds
finds that
thatmore
morethan
than 50%50% ofof
adat
adat
practices
practiceson inherita
on inhe
conform
conform to tothe
theQuran
Quranand
and thethehadith.
hadith.Literacy
Literacyis the
is the
most mos
si
icant
icant predictor
predictorof ofthe
theconformity
conformity of of
adat
adat
to Islamic
to Islamiclaw law
in ini
tance.
tance. Degree
Degreeofofacculturation
acculturation hashas
notnot
affected
affectedthetheadatadat
of
Maguindanao
Maguindanaorespondents
respondents whowho stayed
stayedlonger
longerin the
in the
localloca
bar
than
than in
in the
theurban
urbancenters.
centers.Ontok's
Ontok's study
study thus
thus
provides
provides fur
evidence
evidence that
thatadat
adatlaw
lawand
andIslamic
Islamiclaw,
law,
while
while
notnotidentical
identicain
respects,
respects, are
areinextricably
inextricably linked.
linked.
Proof
Proof of
of Adat
AdatasasCustomary
CustomaryLaw
Law
Muslim
Muslim law
lawspecifies
specifiesthetheconditions
conditions under
underwhich
which
adatadat
is vai
A
A system
system ofofproof
prooffor
foradat
adat as as
customary
customary lawlaw
hashas
longlong
engage
eng
attention
attention ofofjurists
juristswho
who have
haveendeavored
endeavored to locate
to locate
its textual
its tex
thority.
thority. The
Thedrafters
draftersofof thetheCode
Code of of
Muslim
MuslimPersonal
PersonalLaws L
proached
proached this
thisproblem
problemby by defining
defining adat
adat
as customary
as customary law law
(art
The
The adat
adat laws
lawscontained
contained inin the
the code
code
provide
provideforfor
thethe
followi
foll
(1)
(1) customary
customarydowries
dowries(art.
(art.13);
13);
(2)(2)
customary
customary contracts
contractsinv
ing
ing property
property(art.
(art.175);
175);(3)(3)
communal
communal property,
property,including
includin h
looms,
looms, ancestral
ancestralproperty,
property,and
and
charitable
charitable
trust
trust
property
prope
173);
173); (4)
(4) offenses
offensesagainst
againstcustomary
customary lawlaw
forfor
settlement
settlement
by an
b
ama
ama arbitration
arbitrationcouncil
council
(art.
(art.
163).
163).
How
How does
does the
thecode
codedefine
definethe
the
grounds
grounds
forfor
invoking
invoking
adatad
a
legal
legal precept?
precept?ItItfalls
fallswithin
withinthe
the
original
original
jurisdiction
jurisdiction
of
Shari'a
Shari'a district
districtcourt
courttoto
decide
decide
allall
actions
actions
arising
arising
from
from
custom
cu
contracts
contracts in
inwhich
whichthe
theparties
partiesare
are
Muslims,
Muslims,
if they
if they
have
have
not not
spe
fied
fied which
whichlawlawshall
shallgovern
governtheir
their
relationship
relationship(art.
(art.
143,143,
1 d
for
for offenses
offensesagainst
againstcustomary
customary law,
law,
thethe
Shari'a
Shari'acircuit
circuit
cour
cases
cases that
that can
canbebesettled
settledwithout
withouta formal
a formal
trial,
trial,
may mayat its
at di
it
tion direct the Shari'a clerk of court to constitute a council of
not fewer than two or more than four members, with the clerk as
chair, to settle the case amicably (art. 163).
Code Harmonization
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470 Legal Pluralism in the Philippines
of
of the
thecommon
common good"
good"
(maslaha
(maslaha
al-mursala),
al-mursala),
which is harmonious
which is harmonious
with
withthethe
objectives
objectives
of theofShari'a.
the Shari'a.
According
According to to
the the
code code
harmonization
harmonization
approach,approach,
"[A]11 codes"[A]11 codes
converge on the broader ideal of the public good" (Rein
1976:59). The ideal of the public good appears in a different
light, however, when approached with a particular code in mind.
We then find moral imperatives to accept abatement from the
specific requirements of other codes whether written or unwrit-
ten, in a pluralistic society. Social scientists and lawyers have
grappled with this dilemma of fact-value analysis within the com-
mon-good parameter.
The process of harmonizing legal systems by court action
necessarily involves analytic complexities that go far beyond a
simple value framework. It may nonetheless be useful to give a
broad outline of how courts approach this problem.
1. Where the codes conflict and there is no way to harmonize
the conflicts, the solution applied by courts is not harmoniza-
tion but differentiation. That is, different rules are applied to
different groups in particular situations.
2. Where the system of law is formalistic, the courts tend to avoid
harmonizing conflicting moral and legal rules. That is, courts
are more attentive to rule application and interpretation than
to broad, flexible pronouncements about the public good.
Despite the pressures of legal formalism, the imperative for
harmonizing moral and legal systems has exercised the courts be-
cause human and ethical values have increasingly been intro-
duced into social legislation. As a consequence, the courts have
found themselves unavoidably engaged in code harmonization
and in establishing the validity of normative rules for equity and
social justice.6
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Michael 0. Mastura 471
brosio
brosio Padilla
Padilla
(1956:vol.
(1956:vol.
3) refers3)torefers
these as to
the these
"pentagonal
as the
pa- "pentag
rameters"
rameters" of limitation.
of limitation.
There are,
There
fortunately,
are, fortunately,
new statutory pro-
new statutor
visions in both the civil code and the Code of Muslim Personal
Laws covering these value priorities in the Philippines legal sys-
tem.
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472 Legal Pluralism in the Philippines
yond
yond"human
"human foresight
foresight
to provide
to provide
for adequate
for adequate
legal remedy
legal
in remedy in
the
thestatutes"
statutes"
(Presidential
(Presidential
Commission
Commission
1975:40). 1975:40).
Unspecified
Unspecified Interest
Interest
of the
ofCommon
the Common
Good Good
Questions
Questions of of
thethepublic
public
good good
have been
have addressed
been addressed
in Muslim in Muslim
law
lawininways
waysthat
thatare relevant
are relevant
to the to
codification
the codification
process in the
process in the
Philippines.
Philippines. TheThe
Shafi'i
Shafi'i
schoolschool
of law of
has law
a longhas
tradition
a long oftradition
legal of legal
theory
theoryonon maslaha
maslaha al-mursala,
al-mursala,
the unspecified
the unspecified
interest ofinterest
the of the
common
common good.
good.
What Whatis theiscommon
the common
good in good
the context
in the of context
Is- of Is-
lamic
lamiclegislation?
legislation?In theIn terminology
the terminology
of basic ofjurisprudence,
basic jurisprudence,
mas- mas-
laha
lahaal-mursala
al-mursala meansmeansany interest
any interest
of the common
of the goodcommonthat isgood that is
not
nottextually
textuallyspecified
specifiedin Quranic
in Quranic
or Sunniorsources
Sunniand sources
for which
and for which
no
no legal
legalreference
reference is available
is available
to consider
to consider
or neglect"or(Jubeir
neglect" (Jubeir
1980:63).
1980:63).In In
other
otherwords,words,
it concerns
it concerns
legally unsettled
legally unsettled
questions questions
of common interest.
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Michael 0. Mastura 473
Conflicts of Law
Rules of Construction
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474 Legal Pluralism in the Philippines
Table
Table 1.
1. Statutory
StatutoryProvisions
Provisionsand
and
Decision
Decision
Rules
Rules
forfor
Resolving
Resolving
Conflict
Conflict
of of
Law Questions
2.
2. Gradation
Gradation ofof
Authority
Authority Construction
a. The code and other Muslim laws Consider the primary sources of
Muslim law
b. The standard treatises on Muslim law Give them persuasive weight in the
and jurisprudence interpretation of Muslim law
c. The orthodox (Sunni) schools of Give effect to the schools in
Hanafi, Hanbali, Maliki, and Shafi'i consonance with the Constitution, the
and applicable Islamic law code, public policy, and public interest
d. The code and customary law (adat) Give no legal effect to adat if it is
contrary to the Constitution, the code,
Muslim law, public order, public policy,
or public interest
3. Nature of Conflict Interpretation
a. Conflict between the Code of Muslim Apply national law
Personal Laws and the tribal code
b. Conflict between the code and tribal National law prevails
code vis-a-vis national law
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Michael 0. Mastura 475
article
article 218,
218,the policy
the policy
and attitude
and ofattitude
the regime
ofofthe
law is
regime
stated of law
thus:
thus: "No"No
custom,
custom,
practice
practice
or agreement
or agreement
which is destructive
which of is destruc
the
thefamily
family shallshall
be recognized
be recognized
or given any
oreffect."
givenThisanylegal
effect."
pol- This
icy
icyisiscarried
carriedinto article
into article
149 of the149newofFamily
the Code.
newInFamily
this Code
sense,
sense, thetheapproach
approach
in the Philippines
in the Philippines
in a number ofindifferent
a number of d
contexts
contexts has has
been been
to make toadjustments
make adjustments
in uniform law incodes
uniform la
where
where exceptions
exceptionsare necessary
are necessary
and are consistent
and arewithconsistent
national with
law
lawandandpolicy.
policy.
The
Thepolicy
policydeveloped
developed
by the Dutch
by the in Indonesia
Dutch in provides
Indonesia
a pro
useful
useful comparison
comparisonand an and
example
an ofexample
adjustmentofby adjustment
reception. by rec
There,
There, a principle
a principle
of equalization
of equalization
of levels between
of levels
Western
between
law Wes
and
andadat
adatlaw law
was applied.
was applied.
According According
to this principle,
to this
colonial
principle,
law
lawreceived
received and absorbed
and absorbed
indigenousindigenous
laws such as adat
lawsandsuch
Mus- as adat a
lim law.
The British in Malaya, Ceylon, and India found another ap-
proach to legal pluralism, and provide an example of adjustment
by adaptation. In the British systems, known as the Trichotomy
Rules of Decision (Mahmood 1977:3), laws enforced by the state
were kept supreme, but religious and customary laws could be
recognized as relevant to the formulation of case law. In civil
cases, the court rendered decisions on the basis of (1) custom
and usage established as having the force of law; (2) religious
civil laws verified in written sources; and (3) laws of general appli-
cation enforceable by the government.
In the Philippines, the court gives effect to the Code of Mus-
lim Personal Laws as part of the national statutory law. Concep-
tual pluralism is given shape by exceptional legal imperatives ap-
plicable to a particular population group. The position of custom
and usage (adat) relative to Muslim personal law in the Philip-
pines thus adheres to Islamic jurisprudence, which accepts adat
only insofar as it satisfies juristic standards for the interpretation
and application of legal rules.
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