Islamic Jurisprudence V

Final Examination

I. Distinguish Pre-Trial Conference from Agama

Arbitration Proceedings.

Pe-trial conference is provided under Section 6 of

the Special rules of procedure governing Philippine
Shari’a Courts. Pre-trial conference is a procedural
device used prior to trial to narrow issues to be tried, to
secure stipulations as to matters and evidence to be
heard, and to take all other steps necessary to aid in the
disposition of the case The purpose of the pre-trial
conference, according to the above section, is two-fold:
firstly, to work out for an amicable settlement of the
action; and secondly, if amicable settlement can not be
arrived at, to define and clarify the issues in the case. The
proceedings in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an order which
shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments
allowed to the pleadings, and the agreements or
admissions made by the parties as to any of the matters
considered. Should the action proceed to trial, the order
shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course
of the action, unless modified before trial to prevent
manifest injustice (Sec. 7, Rule 18, Rules of Court).

On the other hand, Agama Arbitration Proceedings

is provided under Section 19 of the Special rules of
Procedure governing Philippine Shari’a Courts. Under
this provision, within seven days from the receipt of the
notice filed by the Muslim husband who pronounced
talaq to his wife, the Clerk of the Shari'a Circuit Court
shall require each of the parties (the husband and the
wife) to nominate a representative. The representatives
shall be appointed by the Court to constitute, together
with the Clerk of Court as Chairman, an Agama
Arbitration Council. The Agama Arbitration Council
shall submit to the Court a report on the result of the
arbitration, on the basis of which and such other
evidence as may be allowed, the Court shall issue the
corresponding order. This should also be observed
should the wife exercise the delegated right to repudiate
the marriage. The same manner of constitution shall be
followed should a Muslim husband desiring to contract a
subsequent marriage files a written notice thereof and
the wife or any of the wives objects. These special rules
of procedures shall take effect immediately.
II. Explain the following Judgment
1. Ex-Parte Judgment
Islamic adjective law requires that, whenever a party appears
before a qadi (judge) praying for judgment, he ought to
summon the defendant. If despite summons, the defendant
does not appear, the qadi shall record the evidence produced
by the plaintiff and after appreciation of the evidence pass an
ex parte judgment .

2. Compromise Judgment
Judgment upon compromise is one rendered by a
court based on the agreement of the parties, by making
reciprocal concessions, to avoid a litigation or put an end to
one already commenced.

3. Judgment by Oath
Under Section 14 of Special rules of procedure governing
Philippine Shari’a Courts, an oath (yamin) legally
binding in a manner and form observed under Muslim
Law may, by order of the court, be administered upon
any of the parties who are Muslims to establish a fact, or
to affirm any evidence presented. It is a method of
proving a fact. Such oath may constitute as proof in the
absence of any other evidence. Meaning, an oath is an
invocation of the name of God or of some person or
object held sacred by the person using the invocation, to
witness the truth of a solemn affirmation and to
emphasize that affirmation. An oath may be
administered upon any of the parties by order of the
court. The court may order any competent Muslim,
preferably an Imam or religious leader of the local
community to administer the oath. In any case, the oath
should be administered in the presence of the judge.
When an oath is administered upon a party by order of
the court, such oath constitutes as proof of fact in the
absence of any other evidence.
4. Judgment by Admission
When a man testifies against himself in support of a
claim made against him, it is called admission. The Court
generally accepts an admission without requiring any further
proof from the claimant. An admission must, however, be
unconditional, and it must be voluntary, so that if obtained by
coercion it is not binding nor if made in jest. Similarly, if
the fact admitted is contradicted by apparent and obvious
circumstances of the person making the admission, it will not
be accepted. The requirements for the admissibility of an
admission are as follows:
1. The admitter must be sane;
2. He must be of age;
3. His admission must be voluntary;
4. He can lawfully transact business; and
5. He must not be known or popularly identified in telling
lie.

5. Judgment without Formal Hearing

Section 6, paragraph 3 of Special Rules of Procedure
governing Philippine Shari’a Courts states that should the
court find, upon consideration of the pleadings, evidence
and memoranda, that a judgment may be rendered
without need of a formal hearing, the court may do so
within fifteen (l5) days from the submission of the case for
decision. The statements of witnesses serve as their
testimonies upon which judgment may be based, among
other things, by the court when it finds that a formal
hearing is not necessary. If hearing is necessary, such
statement submitted by the parties at the pre-trial shall
constitute the direct testimony of the witnesses as basis for
cross-examination

6. Judgment on the Merits

When the plaintiff has evidence to prove his claim,
and the defendant desires to offer defense, trial on
the merits becomes necessary. The parties then will
prove their respective claims and defenses by the
introduction of testimonial (shuhud) and other
evidence (bayyina). The statements of witnesses
submitted at the pre-trial by the parties shall
constitute the direct testimony as the basis for cross-
examination.