2022 SPECIAL SHARI'AH BAR EXAMINATIONS

PROCEDURE IN SHARI'AH COURTS

Bismillahir Rahmannir Raheem

A. What are the nature and purpose of the Ijra'at Al-Mahakim Ash-Shari'ah? Briefly
discuss your answer. (5%)

The Ijra’ayt Al Mahakim Ash-Shari’ah is summary in nature as Shari ’ah Courts need
speedy proceedings. The main purpose of the Ijra’at Al mahakim Ash Shari ’ah is the effective
implementation and enforcement of the Muslim Personal Law of the Muslims in the Philippines.
This Ijra’at Mahakim Ash Shari’ah provides the rules and procedures governing Shari ’ah Courts
in the exercise and enforcement of the Muslim Personal Laws in the Philippines.

B. What are the sources of the rules of procedure for the Shari'ah Courts in the
Philippines? (5%)

In a capsule form, the sources of the Rules of Procedure for the Shari ’ah Court are 1987
Philippine Constitution, the Code of Muslim Personal Laws of the Philippines, the Rules of
Court and the Islamic Law on Procedure and Evidence.

II

Wife W, a Muslim revert, files a case for divorce against Husband H before the Shari'ah
Circuit Court, alleging cruelly on the part of her husband. During the pendency of the case,
she also files a motion for the court to issue an order to return their child C to her. C is 8
years old, and has been living with his father from the time the divorce was filed. Husband
H files an opposition to the motion, alleging that the Shari'ah Circuit Court does not have
jurisdiction to grant the motion because it is actually a custody case, and must be filed
before the Shari'ah District Court, which has jurisdiction over child custody cases.

A. If you were the Judge, how will you decide on the motion? Please explain your answer.
(5%)

If I were the Judge, I will grant the wife’s motion to return their Child C to her. In the
recent jurisprudence, the Supreme Court asserts that the Shari ’ah Circuit Court may take
cognizance of the motion following doctrine of ancillary jurisdiction because the second case is
merely incidental to the main issue of the case, which is also an effect of in irrevocable divorce
or faskh as provided under the Presidential Decree 1083. In this case, the Shari ’ah Circuit Court
may allow the filing of the wife the motion for the custody of their child because it is not the
main issue of the case but just incidental to it. Hence, my decision is to grant the motion of the
wife to return their child C to her as provided under the Muslim Code.
 III

A. What are the purposes of a Pre-Trial? What does the Court require to be submitted by
the parties in a Pre-Trial? (5%)

In a nutshell, Pre-trial is conducted for the following purposes: for the parties to arrive at
an amicable settlement, or if this fails, the court shall define and clarify the issues.

Before the Pre-Trial the court require the parties to submit statement of witnesses,
evidences, and memoranda setting forth the law and facts relied upon with.

B. What is the jurisdiction of the Shari'ah District Court? Please indicate if this has been
amended by the Bangsamoro Organic Law or R.A. No. 11054, If so, what are the
amendments? (5%)

The Shari'ah District Court is a specialized court in the Philippines that has jurisdiction over
cases involving Muslim personal laws, particularly those based on Islamic principles and
traditions. It handles matters such as marriage, divorce, custody, and inheritance among Muslim
Filipinos.

The jurisdiction of the Shari'ah District Court was significantly expanded and modified by the
Bangsamoro Organic Law (BOL) or Republic Act No. 11054. The BOL, which was signed into
law in 2018, established the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM)
and introduced changes to the jurisdiction of the Shari'ah District Court within this region.

Some of the key amendments introduced by the BOL to the jurisdiction of the Shari'ah District
Court include:

1. Expansion of Jurisdiction: The Shari'ah District Court now has broader jurisdiction over cases
involving Muslim personal laws within the Bangsamoro Autonomous Region.

2. Appointment of Judges: The BOL provides for the appointment of Shari'ah judges who are
well-versed in Islamic law and principles to preside over cases in the Shari'ah District Court.

3. Recognition of Decisions: Decisions made by the Shari'ah District Court are recognized within
the Bangsamoro Autonomous Region and are enforceable in accordance with Islamic principles.

4. Harmonization with National Laws: While the Shari'ah District Court operates based on
Islamic laws and principles, the BOL ensures that its decisions are consistent with the
Constitution and national laws of the Philippines.

IV

1. Differentiate the following:

A. Jurisdiction from Venue (2%)

Jurisdiction is differentiated from venue in a sense that the former means the
power and authority of a court to try, hear, and decide a case, meanwhile, the latter refers
to the place where the actions are instituted. Furthermore, Jurisdiction is creates a
relationship between the court and the subject matter, whereas, venue created relationship
between the parties to the action.

B. Pleading from Motion (2%)

Under the Law, pleading is the written statements of the respective claims and
defenses of the parties submitted to the court for judgment. On the contrary, motion refers
to the appropriate application for relief other than pleading.

C. Summons from Subpoena (2%)

- Summons: A summons is a legal document issued by a court that commands a person to

appear in court at a specific time and place. It is typically used to notify individuals that
they are required to participate in a legal proceeding as a party or a witness.

- Subpoena: A subpoena is also a legal document issued by a court, but it compels a

person to produce documents, testify, or provide evidence in a legal proceeding. It is
commonly used to obtain testimony or evidence from individuals who are not parties to
the case.

D. Agama Arbitration Proceeding from Pre-Trial (2%)

- Agama Arbitration Proceeding: Agama arbitration is a form of dispute resolution based

on Islamic principles and laws. It involves resolving conflicts through arbitration guided
by Islamic jurisprudence.

- Pre-Trial: Pre-trial refers to the phase in a legal proceeding where the parties involved
prepare for the trial. It includes activities such as discovery, settlement negotiations, and
procedural matters before the actual trial begins.

E. Procedure from Evidence (2%)

- Procedure: Procedure refers to the set of rules and steps that govern the conduct of legal
proceedings. It outlines how a case progresses through the legal system, including filing
documents, presenting arguments, and following court rules.
 - Evidence: Evidence is the information presented in court to prove or disprove facts
relevant to a legal case. It can include documents, witness testimony, physical objects, or
other forms of proof that support the claims made by the parties involved.

Mr. X reverted to Islam while he was married to his wife Z. After ten years of living together,
they parted ways and became separated in fact. Each of them developed other relationships, and
10 years after their separation, X decided to marry his girlfriend G under Islamic law in as much
as he was already a Muslim, and his wife Z was already living with another man.

A. Can X legally do this under Philippine law, or will his second marriage be considered a
bigamous marriage? Please justify your answer. (6%)

B. Suppose his first wife Z also became as Muslim while they were still husband and wife, will
your answer be the same? Please explain exhaustively. What are the procedural remedies or steps
that X could have taken to avoid legal problems? (6%)

Answer:

A. X's Second Marriage Under Philippine Law:

- Under Philippine law, X's second marriage to his girlfriend G would be considered a bigamous
marriage. Bigamy is a criminal offense in the Philippines and is defined as the act of contracting
a second marriage while the first marriage is still subsisting.

- In this case, even though X reverted to Islam and married his girlfriend G under Islamic law,
his first marriage to Z under civil law is still valid and recognized by Philippine authorities.
Therefore, X's second marriage to G would be considered void and illegal under Philippine law.

- The fact that X and Z were separated in fact does not dissolve their legal marriage unless they
obtain a legal divorce or annulment through the appropriate legal process recognized by
Philippine law.

B. Effect of Z's Conversion to Islam:

- If Z also converted to Islam while she was still married to X, it would not change the legal
status of X's second marriage under Philippine law. The civil marriage between X and Z would
still be considered valid and subsisting, regardless of their religious affiliations.

- In the scenario where both X and Z converted to Islam but did not obtain a legal divorce or
annulment of their civil marriage, X's second marriage to G would still be deemed bigamous and
illegal under Philippine law.
- To avoid legal problems in such a situation, X could have taken the following procedural
remedies:

1. Obtain a Legal Divorce: X could have initiated divorce proceedings to legally dissolve his
marriage to Z before entering into a second marriage. This would ensure that his second marriage
is not considered bigamous.

2. Seek Annulment: If there are grounds for annulment of his marriage to Z under Philippine law,
X could have pursued an annulment to nullify the marriage before marrying G.

3. Consult Legal Counsel: X could have sought advice from a legal professional to understand
the implications of his actions and ensure compliance with Philippine laws regarding marriage
and divorce.

VI

A. What are the essential contents of a Complaint and an Answer? (6%)

A. Essential Contents of a Complaint and an Answer:

1. Complaint:

- Parties: Identification of the parties involved, including the plaintiff and defendant.

- Jurisdiction: Statement of the Shari'a Court's jurisdiction over the matter.

- Factual Allegations: Detailed description of the facts giving rise to the claim under Islamic
principles.

- Legal Claims: Specific legal claims or causes of action based on Shari'a law being asserted by
the plaintiff.

- Prayer for Relief: Request for the specific relief or remedy sought by the plaintiff in accordance
with Islamic law.

2. Answer:

- Admissions or Denials: Response to each allegation in the complaint, admitting or denying its
truth based on Shari'a principles.

- Affirmative Defenses: Defenses raised by the defendant under Islamic law to refute the
plaintiff's claims.

- Counterclaims: If the defendant has any claims against the plaintiff based on Shari'a law, they
must be included in the answer.
- Prayer for Relief: Request for specific relief or counterclaims sought by the defendant in
accordance with Islamic legal principles.

B. When should an Answer be filed? What happens if the defendant fails to file an Answer?
(5%)

Filing of an Answer and Consequences of Failure:

1. When to File an Answer:

- In Shari'a Courts governed by PD1083, the defendant is required to file an answer within a
specified period after being served with the complaint. The timeframe for filing an answer is
determined by the rules of procedure for Shari'a Courts.

- The deadline for filing an answer is typically set by the Shari'a Court and failure to meet this
deadline can result in legal consequences for the defendant under Islamic law.

2. Consequences of Failure to File an Answer:

- If the defendant in a Shari'a Court fails to file an answer within the specified timeframe, several
consequences may occur:

- Default Judgment: The court may proceed with the case and issue a judgment in favor of the
plaintiff without the defendant's response.

- Waiver of Defenses: Failure to file an answer may result in the defendant waiving certain
defenses or rights that could have been raised in the case under Islamic legal principles.

- Default Decree: The court may issue a default decree or ruling against the defendant for failing
to respond to the complaint within the prescribed period.

VII

1. Differentiate the following:

A. Wakil from Qadi (2%)

B. Fatwa from Hukm (2%)

C. Da'wa from Dafa (2%)

D. Mudda'i from Mudda alai (2%)

E. Shuhud from Bayyina (2%)

Answer:

A. Wakil vs. Qadi:

- Wakil: A Wakil is a legal representative or agent appointed to act on behalf of another person,
especially in legal matters. The Wakil represents the interests of the principal and may have the
authority to make decisions on their behalf.

- Qadi: A Qadi is a judge in an Islamic court who is responsible for adjudicating legal disputes
and applying Islamic law (Shari'a) to resolve cases. The Qadi's role is to interpret and apply
Islamic legal principles in accordance with the law.

B. Fatwa vs. Hukm:

- Fatwa: A Fatwa is a legal opinion or ruling issued by a qualified Islamic scholar or mufti on a
specific issue or question related to Islamic law. Fatwas are advisory in nature and provide
guidance on religious matters based on the scholar's interpretation of Islamic texts.

- Hukm: Hukm refers to a legal judgment or decision rendered by a judge or authority in an

Islamic court. Hukm is a formal legal ruling that carries the force of law and is binding on the
parties involved in a legal dispute.

C. Da'wa vs. Dafa:

- Da'wa: Da'wa refers to the act of inviting others to Islam or conveying the message of Islam to
non-Muslims. It involves sharing the principles and teachings of Islam with the intention of
inviting people to embrace the faith.

- Dafa: Dafa, on the other hand, can be understood as defense or refutation. It may involve
defending Islamic beliefs and practices against criticism or refuting arguments that are perceived
as being against Islam.

D. Mudda'i vs. Mudda alai:

- Mudda'i: Mudda'i refers to the plaintiff or the party who initiates a legal action or lawsuit in
court. The Mudda'i is the one who brings a claim or complaint against another party.

- Mudda alai: Mudda alai, on the other hand, can be interpreted as the party against whom a legal
action or lawsuit is filed. This party is the defendant who must respond to the claims brought by
the Mudda'i.

E. Shuhud vs. Bayyina:

- Shuhud: Shuhud refers to witnesses or testimony in legal proceedings. Witnesses provide

evidence or testimony based on what they have seen or experienced in relation to a legal case.

- Bayyina: Bayyina can be translated as clear evidence or proof. It signifies irrefutable evidence
or a clear demonstration of a fact or truth that supports a legal argument or claim.
 VIII

A. When and how is an Agama Arbitration Council (AAC) constituted? (6%)

B. What are the cases covered by the AAC? (6%)

Answer:

A. Constitution of an Agama Arbitration Council (AAC):

- The Agama Arbitration Council (AAC) is typically constituted when parties agree to resolve
their disputes through arbitration under Islamic law. The process of constituting an AAC
involves the following steps:

1. Agreement to Arbitrate: The parties involved in a dispute mutually agree to submit their case
to the AAC for arbitration. This agreement may be part of a contract, agreement, or entered into
voluntarily by the parties.

2. Appointment of Arbitrators: The parties select or agree on the appointment of arbitrators who
are knowledgeable in Islamic law and principles to serve on the AAC. These arbitrators are
tasked with presiding over the arbitration proceedings and rendering decisions based on Islamic
legal principles.

3. Establishment of Procedures: The parties may establish rules and procedures for the arbitration
process, outlining how the AAC will conduct hearings, receive evidence, and issue rulings.

4. Commencement of Arbitration: Once the AAC is constituted and the arbitrators are appointed,
the arbitration proceedings begin, allowing the parties to present their arguments, evidence, and
witnesses for resolution by the AAC.

B. Cases Covered by the AAC:

- The Agama Arbitration Council (AAC) under PD1083 typically handles cases that are within
the scope of Islamic law and principles. These cases may include, but are not limited to:

1. Family Disputes: Matters related to marriage, divorce, custody, and inheritance among
Muslim individuals are commonly brought before the AAC for resolution.

2. Property Disputes: Cases involving land ownership, property rights, and inheritance issues that
require resolution based on Islamic legal principles may be adjudicated by the AAC.
3. Commercial Disputes: Business disputes, contracts, transactions, or financial disagreements
that parties wish to resolve through Islamic arbitration may be heard by the AAC.

4. Community Disputes: Disputes within the Muslim community, such as issues related to
religious practices, community affairs, or conflicts among members, may be referred to the AAC
for arbitration.

5. Other Civil Matters: Any civil disputes or conflicts that the parties agree to resolve through
Islamic arbitration can be brought before the AAC for adjudication.

IX

A. What is a yameen? May a party win a case on the basis of the yameen? If yes, how? Il no,
why? Please explain your answer. (4%)

B. What are the different kinds of oath under Islamic Law? What is the legal effect of an oath?
(4%)

Answer:

A. Yameen in Islamic Law:

- In Islamic law, a yameen refers to an oath or swearing by invoking the name of Allah as a
means of affirming the truthfulness of a statement or claim. It is a solemn oath taken by a party
to assert the truth of their assertion or deny an allegation.

- Winning a case solely on the basis of yameen is possible under Islamic law. If a party takes a
yameen and the other party fails to provide sufficient evidence to refute the oath or disprove the
claim, the court may accept the yameen as conclusive proof of the truthfulness of the statement.

- However, the acceptance of a yameen as sufficient evidence to win a case depends on the
circumstances, the credibility of the parties, and the nature of the claim. If there are doubts about
the honesty or reliability of the party taking the oath, the court may require additional evidence
to support the claim.

B. Different Kinds of Oath under Islamic Law and Legal Effect:

- In Islamic law, there are different kinds of oaths that can be taken by parties involved in legal
proceedings. Some common types of oaths include:

1. Yameen: As mentioned earlier, yameen is a solemn oath taken by invoking the name of Allah
to affirm the truth of a statement or claim.
2. Mula'ana: Mula'ana is a mutual imprecation oath where both parties swear by Allah that they
are truthful and call for the curse of Allah upon the one who is lying.

3. Qasam: Qasam is a general oath or swearing by Allah without invoking any specific
consequences.

- The legal effect of an oath in Islamic law is significant. When a party takes an oath, it is
considered a strong form of evidence and carries weight in determining the truthfulness of a
statement or claim.

- If a party takes an oath and the other party fails to provide evidence to contradict the oath or
disprove the claim, the court may accept the oath as conclusive proof of the truth. The legal
effect of an oath is to establish credibility and truthfulness in the absence of contradictory
evidence.

- However, the acceptance of an oath as conclusive evidence may vary depending on the
circumstances, the credibility of the parties, and the nature of the claim. Courts may also
consider other factors and evidence in evaluating the validity and reliability of an oath in
reaching a just decision.

A. What are probibited pleadings under the Ijra'at ul-Mahakim ash-Shari'ah? Explain the reasons
for its prohibition? (5%)

B. Draft a petition for Faskh on the ground of unusual cruelty. The complainant is wife, Salma
Sahirol and the defendant husband is Suntoc Sahirol. The couple were married in accordance
with the Muslim Code, and are both residents of Isabela City, Basilan. The petition must show
the caption and title of the case, body, prayer and jurat. You are free to come up with the specific
allegations as long as they are faithful to the above-given facts. (7%)

Answer:

A. Prohibited Pleadings under Ijra'at ul-Mahakim ash-Shari'ah:

- Under Ijra'at ul-Mahakim ash-Shari'ah, prohibited pleadings may include:

1. False Testimony: Providing false or misleading information to the court with the intent to
deceive or manipulate the legal process.

2. Frivolous Claims: Filing baseless or frivolous claims that lack merit or substance, leading to
unnecessary legal proceedings.
3. Disrespectful Language: The use of disrespectful or offensive language in pleadings that
undermines the dignity of the court or parties involved.

4. Violations of Islamic Principles: Pleadings that go against Islamic principles, ethics, or values,
such as dishonesty, injustice, or immorality.

- The reasons for prohibiting such pleadings include:

1. Preservation of Justice: Prohibiting false testimony and frivolous claims helps in maintaining
the integrity and fairness of the legal system by ensuring that only truthful and valid claims are
considered.

2. Respect for the Court: Avoiding disrespectful language in pleadings is essential to uphold the
respect and decorum of the court and promote a professional and respectful legal environment.

3. Upholding Islamic Values: Prohibiting violations of Islamic principles in pleadings ensures

that legal proceedings adhere to the ethical standards and values of Islam, promoting justice and
righteousness in the legal system.

B. Petition for Faskh (Annulment) on the Ground of Unusual Cruelty:

Caption and Title:

In the Shari'ah Court of Isabela City, Basilan

Case Title: Petition for Faskh (Annulment) on the Ground of Unusual Cruelty

Salma Sahirol, Complainant

vs.

Suntoc Sahirol, Defendant

Comes now the Complainant, Salma Sahirol, through undersigned counsel, and respectfully
states the following:

1. The Complainant, Salma Sahirol, and the Defendant, Suntoc Sahirol, were lawfully married in
accordance with the Muslim Code.
2. The parties are both residents of Isabela City, Basilan.

3. The Complainant alleges that the Defendant has subjected her to unusual cruelty, including
physical and emotional abuse, causing her severe distress and suffering.

4. The Complainant seeks the annulment of the marriage based on the grounds of unusual cruelty
as prescribed under Islamic law.

Wherefore, premises considered, the Complainant respectfully prays for the following relief:

1. That the marriage between Salma Sahirol and Suntoc Sahirol be annulled based on the ground
of unusual cruelty.

2. For such other and further relief as the Honorable Court deems just and equitable.

Jurat:

I hereby certify that I have read the foregoing petition and that the allegations therein are true
and correct to the best of my knowledge and belief.

Salma Sahirol

Complainant

[Signature]

In faithfulness to the facts provided, the above petition for Faskh on the ground of unusual
cruelty is presented for consideration by the Shari'ah Court in Isabela City, Basilan.

-END-