Chickens, Eggs (25 May 1999)
by Said K. Sadain
Lessons To Learn (18 June 1999) by Said K. Sadain
Southern Discomfort (3 July 1999) by Pearlsha B.
Abubakar, Youngblood, PDI
Full
Implementation of The Shari'ah
as a Solution to the Mindanao Problem
by Atty. Mehol K. Sadain
A Reaction Paper delivered during the
Mindanao Peace Forum held on August 7, 1999 at the Bahay ng Alumni, University of the
Philippines, Diliman, Quezon City.
The implementation of Shari’ah as part of a comprehensive
solution to the Mindanao Problem has, in the past, been broached by Muslim scholars and
officials in the government, like the former Dean of the Institute of Islamic Studies, Dr.
Cesar Adib Majul and the late Senator Mamintal Tamano.1
Compared to the alternatives of secession or separation, this
represents a moderate view which brings the concept of integration a step further. I say
"a step further" because while the former scheme of integration merely dwelled
on the one-sided idea of educating the Muslims (so they will feel that they are part of
the larger Philippine population), the act of adopting Shari’ah or part of
Shari’ah in the Philippine legal system demonstrates readiness and willingness on the
part of the Christian-controlled government and Christian-dominated society, to likewise
recognize, accept and accommodate aspects of the Islamic way of life, especially its legal
system.
Integration therefore is no longer treated as a one-way process, but
instead, a mutual recognition, exchange and acceptance by both the majority (the
Christians) and minority (the Muslims) populations of their respective cultures and way of
life.
Herein lies the promising prospect of utilizing Shari’ah as a
tool of peace and development, not just of the Muslim population but the entire Philippine
populace, not just of the Muslim areas or Mindanao, but the entire Philippine Archipelago.
To my mind, Shari’ah or Islamic law should be viewed in the
following context: (1) its contribution to the enhancement of the peace process in the
southern Philippines; (2) the rationalization of its institutionalization in the
Philippines; and (3) the other aspects of Shari’ah that can be considered for future
implementation in the Philippines.
Our distinguished speaker, the Honorable Justice Omar Amin gave a
very comprehensive historical treatment of the enactment and implementation of the Code of
Muslim Personal Laws. Aside from dwelling on the state of Shari’ah implementation in
the Philippines, our eminent lecturer also argued for the strengthening of Shari’ah
in the Philippines, undertaking improvements in its implementation so that the peace
program can be hastened by a continuous recognition of the true value and function of
Islamic law in Muslim life.
I fully agree with Justice Amin’s views. Allow me therefore to
just supplement the lecture.
I am a believer of concepts, particularly positive ones or those
that tend to promote the people’s general welfare. For instance, the concept of legal
pluralism and its concomitant embodiment in a pluralistic legal society, which the
Philippines is proving to be with its recognition of Islamic law and customary law
together with the prevailing civil law system. However, much as I believe in concepts, I
also advocate rendering these concepts functional because a concept, no matter how
positive, if not applied is nothing but useless thought and wasted wisdom.
The concept of legal pluralism which is the underlying idea of
Shari’ah implementation in the Philippines requires that certain steps be taken if
the implementation of Islamic law were to be enhanced in the Philippines:
Very briefly, these are as follows:
- A study should be made on the entire range of Islamic law for the
purpose of singling out legal concepts and provisions that are or will be useful in
resolving current problems facing the Philippine Muslim community. For instance, the
Islamic law on zakah and waqf and their operationalization in the context of
the Muslim legal system may be picked out as a response to the economic problems plaguing
many depressed Muslim communities. Zakah and waqf are legal concepts with
economic implications or the other way around, i. e., economic concepts with legal
implications.
- The study should further proceed to determine if these Islamic legal
concepts can be accommodated in the Philippine legal system. In the case of the waqf
or religious endowment for instance, we already have a general provision in P.D. 1083
which provides a legal basis for endowments. Art. 173 of the CMPL states: "The
following are communal properties: (a) Customary heirloom; (b) Ancestral property; and (c)
Charitable Trust Property," which is waqf in nature. Art. 174 further states:
"Except as otherwise provided in this Code, communal property shall be administered
or disposed of in accordance with Muslim law, ada and special provisions of
law." Clearly, Art 173 provides a basis for the legal recognition of the institution
of waqf, and Art. 174 tells us that the said institution is to be administered
pursuant to Muslim law, and since such law is not yet available in the Philippines, it
further gives us a hint that the same can be legislated and embodied in a special law.
This is a situation where the general framework of Philippine law has already been opened
(because of the provisions in P.D. 1083) to an Islamic legal institution (which is waqf
in this case). Hence, the issue of possible conflict between Muslim law and the prevailing
Philippine law will no longer surface as far as waqf is concerned.
- The applicable Islamic law provisions should then be legislated into
law or formalized, if possible, by administrative rules and regulations which can be
formulated by the executive or the judiciary as the case may be. This is the point where
implementation is pursued and government recognition of particular aspects of Islamic law
is gained. In this manner, the rules on waqf can be legislated followed by the
institutionalization of a bayt ul-mal or Muslim treasury to manage private
contributions by Muslims for use to develop Muslim areas or aid poor Muslims.
- Together with the foregoing formalities, grassroot legal education
must be undertaken, not so much for relaying the concepts because these may already be
known to most Muslims, but for the purpose of educating the Muslim masses (including the
Christian population) that particular legal provisions with their commensurate rights and
obligations are already recognized in the Philippines, and that there is a procedure one
has to go through to avail of these provisions or to seek redress under their authority.
This recommendation for functionalizing
Shari’ah in the Philippines and turning it into a tool for progress and development
can be summed up as follows: First, RESEARCH, but not just ordinary
research. It should be a legal research with an appropriate framework and methodology.
Second, LEGISLATION and RULE MAKING, to legally empower Islamic legal
concepts and elevate them to the level of execution and implementation. Third, EDUCATION
and AWARENESS, to render the law significant and useful to both
Muslims and non-Muslims.
Finally, it is my fervent hope that this
humble contribution to the Mindanao Peace Forum will go a long way in promoting the
interest of peace and development in the Moro homeland of Mindanao, and in improving the
lives of millions of our impoverished Muslim brethren.
1 Peter
Gordon Gowing in his book Muslim Filipinos – Heritage and Horizon (New Day
Publishers, Quezon City, 1979) stated: "Dean Majul and Atty. Tamano have strongly
urged that important provisions of the Shari’a (Islamic law), especially those
pertaining to personal and family relations (such as marriage, legal separation, rights
and obligations between man and wife, paternity and filiation, support, funerals, parental
authority, succession and inheritance) ought to be allowed to apply to Muslims out of
respect for their consciousness as a distinct religious community. It is a matter of human
right, not a matter of privilege. The customs, traditions, usages and laws of the Muslims
should be collected and collated by a committee of qualified scholars and religious
leaders, and a Code prepared which will become part of the Civil Code of the Philippines.
____________________________
Atty. Mehol K. Sadain is a graduate of the UP College of Law and is presently member of
the faculty of the Institute of Islamic Studies, University of the Philippines, Diliman,
Q.C.
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