DR. MAR LAR THAN. LL.B, LL.

M, PHD (LAW), ADVOCATE

ISLAM AND ISLAMIC LAW IN PHILIPPINES

1. Background History of Islam and Muslims in the Philippines

Philippines, known as the Republic of the Philippines, is a Southeast Asian country. It consists

of several islands located between the Philippine Sea and the South China Sea, and east of

Vietnam. Philippines, an archipelago, which includes about 2000 islands is the 73 rd largest

country and the 13th populated country in the world. Based on the numbers of the followers of

religions, the country consists of 82.9% Catholic, 5% Muslims, 2.8% Evangelical, 2% Iglesia

ni Kristo, 4.5% other Christians, 1.8% other religions, 0.6% unspecified religious adherents and

0.1% atheists are living in Philippines according to the 2000 census. Therefore, Philippines

can be described as a Christian majority country. Philippines is one of the countries that have

two independence days. Firstly, Philippines islands were colonized by the Spanish in 16th

century, which the Spain surrendered to the United States of America after the Spanish-

American war in 1898. Therefore, Philippines got independence on 2nd June 1898. Though

the Philippines became a self-governing commonwealth country in 1935, it was occupied again

by Japan in 1942 during World War two. After fighting back against the Japanese, together

with the forces of the United States in 1944-45, Philippines regained its independence on 4th

July 1946 and was announced as the Republic of the Philippines with 80 provinces and 39

chartered cities.1

Whenever the history of the Philippines is studied, the history of Muslims in the

Philippines cannot be overlooked because Islam is the oldest religion in the Philippines and

was introduced by the Muslim traders of Southern India, Persian Gulf and Malay sultanates

since around 14th century. During pre-historic times, the people of Philippines lived in

numerous independent communities under various native rulers and when Muslims arrived

1
Central Intelligence Agency, “Philippines”, The World Factbook, https://www.cia.gov/library/ publications/the-
world-factbook/geos/rp.html(accessed on 2.3.2014)

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

there, they settled in the southern Philippines. Despite that, the arrival of Muslims to

Philippines is not documented, there are some material evidences that the tombstone named

Tuan Maqbalu dated 1310 is found in Jolo, Sulu’s central island and the Sheik Karimal Makdum

Mosque built by the Arabian trader of Karimal Makdum in 1380 AD, which can be found till

today in Simunul island in Mindanao, southern Philippines, is recognized as the first mosque in

Philippines. Therefore, the existence of Muslims in the Philippines can be said to have started

in 14th century AD and the majority of Philippine Muslims follow Sunni Shafi School of law

although there are some Shia minorities. 2 Although Muslims have been living in the

Philippines for a long time, there is no evidence of official recognition and application of

Islamic personal law until the time of the Military Government. 3

2. Application of Islamic Law in the Philippines

It is obvious that Philippines is currently a Christian majority country and its legal system is

mixed with civil law and common law elements together with customary law because it was

occupied firstly by Muslims and native animists, then the Spanish and lastly by the United

States of America. The country still allows the observance of Islamic personal law in some

instances. 4 Muslims re-settled in the southern islands of Sulu where the Sultanate of Sulu was

established in the fourteenth century and other central Mindanao islands where most of the

Muslims areas were established over the next century.

Islamic personal law had been codified in Sulu and Maguindanao which are located in

the Muslim Mindanao because of the effect of the spread of Islam since the pre-colonial era but

2
Collier, Kit, “The Philippines”, in Voices of Islam in Southeast Asia,: a Contemporary Source Book, Compiled
and Edited by Gerg Fearly and Virginia Hooker, (Institute of Southeast Asian Studies, Singapore, 2006), at 64
3
Stephen, Mathew, “Islamic law in the Philippines: Between Appeasement and Neglect”, Islam SharÊÑah and
Governance: Background Paper Series, (University of Melbourne, 2011) at 3-
7http://www.law.unimelb.edu.au/files/dmfile/Stephens_web2.pdf (accessed on 4.2.2014)
4
Central Intelligence Agency, “Philippines”, https://www.cia.gov/library/publications/the-world-
factbook/geos/rp.htmlaccessed on 2.3.2014

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

it has always been combined with local customs. 5 There were two codes issued by the Datu

Sumakwel, namely the Maragtas Code which was enacted between 1200-1212 AD and the

Penal Code of Kalantio which was issued in 1433, however some historians argue about the

existence of these codes.6 Laws, although developed and enacted in the colonial eras, there

was no application of Islamic personal law for Muslims and apparently Muslims were

discriminated against under the rules of both Spain and the United States.

After Philippines attained the independence in 1946, the law relating to divorce for

Muslims was issued in 1949 although divorce was not lawful for non-Muslims in the

Philippines being a Catholic country. 7 Built on its long history, the region of Muslim Mindanao

was recognized as an Autonomous Region in the Philippines on 1 st August, 19898 and a new

law was passed for the expansion of the Autonomous Region of Muslim Mindanao again on

31st March 2001.9 In 1973, the President of the Philippines unveiled his plans to codify the

Muslim laws and the draft of Muslim personal law which was mainly based on traditional

customary law came out in 1974. Three years after, the Presidential Decree 1083 was

proclaimed as “the Code of Muslim Personal Laws of the Philippines” 10 on 4th February 1977,

under the martial law government of Ferdinand Marcos. There are three purposes for this code.

These are recognizing the Muslim legal system as the part of the law of the Philippines,

codifying Muslim personal laws, and providing an effective administration and enforcement of

Muslim personal laws among Muslims. 11

Although this Code is applicable only to Muslims of Philippines, it covers all personal

status such as marriage, divorce, succession and property relations between husband and wife.

5
Stephen, Mathew, at 7
6
ASEAN Law Association, Legal System in Philippines, (accessed on 4.2.2014) http://www.asean
lawassociation.org/legal-phil.html
7
Stephen, Mathew at 5
8
Republic Act No. 6734, (Congress of the Philippines, Republic of the Philippines, 1898), Art 1
9
Republic Act No. 9054, (Congress of the Philippines, Republic of the Philippines, 2001), Art 2
10
Hereinafter referred to as CMPL.
11
Code of Muslim Personal Law of the Philippines, (Presidential Decree No. 1083, 1977), Art 2 at 2

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

It also prescribes formation of Shariah courts, Agama Arbitration Council, Juris consults in

Islamic personal law and criminal offences. 12 The code is based on the Sunni School of laws

because majority of Philippines Muslims are Sunni Shafie and according to its articles, this

Code shall be applicable to the marriage and divorce where both parties are Muslims or a male

party is a Muslim. Therefore, any marriage which is performed between a Muslim female and

non-Muslim, or is not performed in accordance with Muslim law or this Code, then the Civil

Code of the Philippines shall be applied. 13

Besides, capacity is one of the essential of marriage and this code allows a male of at

least fifteen years of age and female at the age of puberty to enter into a marriage contract.

Although puberty of a female is presumed at the age of fifteen, the Shariah court may order

upon petition of the proper wali to perform the marriage of a female who is less than fifteen but

not below twelve years.14 Proposal and acceptance in marriage declared publicly in the

presence of the person performing the marriage and competent witnesses, signed or marked by

the contracting parties and said witnesses, and attested by the person who performs the marriage

are essentials of marriage although no particular form of marriage ceremony is required. 15

Mahr may be fixed by the contracting parties before or during or after the celebration

of the marriage. When the amount of the Mahr has not been fixed, the proper Mahr shall be

determined by the court upon petition by the wife and the social standing of the parties. 16 There

are equally detailed prescriptions for breach of contract and prohibitions of marriage. 17

Although, Islamic law allows a Muslim husband to have more than one wife, the Code permits

it only in exceptional cases. Besides, there are also some prescriptions of the subsequent

marriage of a widow and divorcee who need to observe Iddat, void marriage, irregular

12
Ibid., at 1-42
13
Ibid., Art 13
14
Ibid., Art 16
15
Ibid., Art 17
16
Ibid., Art 20
17
Ibid., Art 22, 23, 24,25,26,

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

marriage, rights and obligations between spouses and property relations between spouses. 18

Then CMPL allows the dissolution of marriage between Muslims even though divorce is

impossible for most Philippines because they are Christians. There are seven ways of divorce

which can be effected according to this code. These are: repudiation of the wife by the husband

(Talaq), vow of continence by the husband (Ila), injurious assimilation of the wife by the

husband (Zihar), acts of imprecation (Lian), redemption by the wife (Khula), exercise by the

wife of the delegated right to repudiate (Tafwid), and judicial decree (faskh).

Matters that are related to divorce such as Iddat, paternity and filial support, parental

authority, custody and guardianship are also prescribed in this code.19 Furthermore, the rights

of inheritance, successions, Wills, settlement and partition of the estate are also prescribed in

this code by reflecting the standard Islamic personal law regulations. 20 Besides, the three main

adjudication institutions like the Shariah courts system, the Agama arbitration council and

Juriconsult in Islamic personal law are recognized in the CMPL. 21

Shariah courts such as Shariah District Courts and Shariah Circuit Courts are formed

as a part of the judicial system under the administrative supervision of the Supreme Court which

is the highest court of the Republic of Philippines, according to the CMPL. 22 Shariah Circuit

courts have exclusive original jurisdiction in all criminal cases that are defined in CMPL and

all civil actions and proceedings between Muslims or the parties who have been married in

accordance with this code involving disputes relating to marriage, divorce, betrothal, Mahr,

disposition and distribution of property upon divorce, maintenance and support, consolatory

gifts, restitution of marital rights and all cases relating to matrimonial properties can be decided

in accordance with this code. Each Shariah Circuit court has a Shariah Circuit judge who must

18
Ibid., Art 27,28,29,30,31,32,33,34,35,36
19
Ibid., Art 45-80
20
Ibid., Art 89-136
21
Ibid., Book IV, Title I, II, III
22
Ibid., Art 137

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

be a natural-born citizen of the Philippines, at least twenty-five years of age and passed an

examination in Shariah and Islamic jurisprudence (fiqh), appointed by the President of the

Philippines and he shall have the same privileges as judges of Municipal Circuit Courts.23

Shariah District Courts have original jurisdiction over more serious cases and appellate

jurisdiction upon all cases tried in the Shariah Circuit courts. Shariah District judges for

Shariah District courts are appointed by the President of the Philippines, they must have the

qualifications for judges of Courts of First Instance fixed in the Judiciary Law and he must have

learned Islamic personal law and Islamic jurisprudence. They receive the same remuneration

and enjoy the same privileges as the judges of Courts of First Instance.

Both Shariah Courts shall be governed by special rules of procedure which are issued

by the Supreme Court.24 The clerk of Shariah District Court shall act as District Registrar of

Muslim marriage, divorce, revocation of divorce and conversions within the territory of the

said court and the clerk of Shariah Circuit Court shall act as Circuit Registrar of Muslim

marriage, divorce, revocation of divorce and conversion within his jurisdiction as well.25

Although there are Shariah courts formed by the CMPL, it has not covered the whole country

and Shariah Courts are located only in areas where majority of Muslims are concentrated. 26

The Agama Arbitration Council is constituted by the Shariah District Court or Shariah

Circuit Court for miscellaneous matters such as divorce by Talaq and Tafwid, subsequence

marriages and offences against customary law. 27 Juriconsult in Islamic personal law of

Philippines must be a citizen of Philippines who has reached at least forty years of age, of good

moral character, proven integrity and famous scholar in the Quran, Hadeeth and Islamic

jurisprudence as well as proficient in Arabic. He is appointed by the President of the

23
Ibid., Art 150-159
24
Ibid., Art 138- 149
25
Ibid., Art 81
26
Ibid., Art 138,150
27
Ibid., Art 160-163

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Philippines and would hold office for seven years. The office of the Juriconsult is referable in

the city of Zamboanga and under the administrative supervision of Supreme Court. Juriconsult

has the authority to contribute legal opinions, regarding any written questions relating to

Muslim law of any interested party. If he thinks it is necessary to consult for this purpose, he

may ask for a consensus of the Ulma. 28 The CMPL includes not only these prescriptions, but

also Muslim holidays, communal properties, customary contracts, conversions, penal

provisions and transitory and final provisions. There is the problem that whoever married

according to the CMPL shall no longer be bound by the Civil Code or Revised Penal Code.

They are only bound by CMPL and its provisions. 29

In the consolidated cases of Atty. Marietta D Zamoranos v. Samson R. Pacasum, Sr,30

Zamoranos converted into Islam before she married another converted Muslim Jesus De

Guzman. Firstly, they married in1982 according to Islamic personal law and then they married

in accordance with the civil ceremony but a year after in 1983, they divorced by Talaq and

Zamoranos got divorce decree in 1992 from the Shariah Circuit court. In 1989 Zamoranos

married with Pacasum according to the Islamic personal law and in order to strengthen their

marriage tie, they married according to civil ceremony again in 1992 and had children. Their

relationship turned sour and they were separated in 1998 and they settled the custody of their

minor children according to mutual agreement which vested primary custody to their mother in

1999. After that in 2003, Pacasum filed a case against Zamoranos petitioning for annulment

of marriage. He later amended the petition to seek for declaration of void marriage, alleging

among other things and mainly that Zamoranos has already married with Jesus at the time of

their marriage, her first marriage was solemnized according to the civil law, thus, their marriage

was bigamous and void from the beginning.

28
Ibid., Art 164-168
29
Ibid., Book V
30
G.R. No. 193902, S.C (Manila), June 1, 2011 http://sc.judiciary.gov.ph/jurisprudence/
2011/june2011/193902.htm(viewed on 12.5.14)

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 DR. MAR LAR THAN. LL.B, LL.M, PHD (LAW), ADVOCATE

According to his petition, Pacasum prayed that Zamoranos should be fined as a guilty

spouse, he should have the right of sole and exclusive custody on their minor children, and he

should get her share in the community property and her inheritance from Pacasum by testate

or intestate succession in favor of the children. Pacasum further filed criminal complaint

against Zamoranos for bigamy under article 349 of the Revised Penal Code in 2004 while

Pacasun remarried with Catherine, a Christian woman in 2004. In this case, the regular courts

have no jurisdiction to hear the crime of bigamy and the case for declaration of nullity of

marriage which was entered into in accordance with CMPL based on the fact that Zamoranos

was a Muslim and was validly married to another Muslim named Jesus under Islamic personal

law. Therefore the Supreme Court of Philippines decided according to the testimony of

witnesses that Zamoranos divorce from Jesus was valid because their marriage ceremony under

civil law did not remove their first marriage under Islamic personal law and their divorce by

Talaq has severed their marriage ties because they are governed by the Muslim Code.

Therefore, the criminal charge of bigamy was quashed and the other civil case was dismissed

as their problems are covered only by the Islamic personal law according to CMPL.

Also in another case of Atilano O. Nollora, Jr. v. People of the Philippines,31 a converted

Muslim man married a Muslim woman according to the CMPL, then he married another

Catholic woman through Muslim personal law without knowledge of the first wife. When the

first wife knew, she accused her husband and second wife of bigamy according to the Revised

Penal Code. The trial court held while referring to the CMPL that;

“No Muslim male can have more than one wife unless he can deal with them in
equal companionship and just treatment as enjoined by Islamic Law and only in
exceptional cases. The principle of Islam is that monogamy is the general rule
and polygamy is allowed only to meet urgent needs. Only with the permission
of the court can a Muslim man be permitted to have a second wife subject to
certain requirements. Any Muslim husband desiring to contract subsequent

31
G.R. No. 191425, S.C (Manila), Sept 7, 2011 http://sc.judiciary.gov.ph/jurisprudence/
2011/september2011/191425.html#sdfootnote10sym
(viewed on 12.5.14)

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marriages, before so doing, shall notify the Shariah Circuit Court of the place
where his family resides. Clark of court shall serve a copy thereof to the wife or
wives. If any of them objects; an Agama Arbitration Council shall be
constituted. If said council fails to secure the wife’s consent to the proposed
marriage, the Court shall decide whether or not sustain her objection.”

Finally the court found the man guilty of bigamy under the Revised Penal Code and

sentenced him to imprisonment though the co-accused second wife was acquitted for the failure

to prove her guilty beyond the reasonable doubt. The Court of Appeals affirmed the Regional

Trial Court decision.

The Philippines may, therefore, be a Muslim minority country, however, the majority

of Muslims lives in the southern part of the country and they are allowed to be governed by

Islamic personal law which has been codified for a whole country. Besides, Shariah courts

have been formed for Islamic personal law matters although these courts have not been

established throughout the whole country yet. According to the Islamic personal law of

Philippines, actions can be taken not only by Civil law but the Criminal law also.