“

HUMILITY IS THE SOLID

”
FOUNDATION OF ALL VIRTUES

Atty. Esnihairah M. Disangcopan

 YOU ARE A
TOPNOTCHER!!!
 SHARI’A COURTS
and SPECIAL RULES
OF PROCEDURE
 Coverage
Shariah Courts and Procedures
Selected cases decided by the Supreme
Court
Previous bar questions
Techniques in answering bar examination
questions
 HISTORICAL
BACKGROUND
 HISTORICAL BACKGROUND
 Establishmentof Shari’ah Court has been originally conceived
in 1976 TRIPOLI agreement entered into by and between the
Philippine Government and MNLF under the auspices of the
Organization of Islamic Conference.
 President Marcos, in his exercise of legislative power,
promulgated in 1977, Code of Muslim Personal Laws, which
provide, inter alia, the creation of Shari’a Court.
 Organicact for ARMM provides that the Shari’a Court created
under PD1083 shall continue to function as provided therein.
Shari’a Appellate Court with limited jurisdiction was also
created.
What is the state policy regarding
the formulation and
implementation of the provisions of
PD 1083 and IJRA’AT AL-MAHAKIM
AL-SHARI’A?
ARTICLE XV, section 11 of the 1973
Constitution provides that “the state
shall recognize the CUSTOMS,
TRADITIONS, BELIEFS and INTERESTS of
the national cultural communities in
the formulation and implementation of
state policies.
WHAT ARE THE MAIN PURPOSES FOR
THE CODIFICATION OF PD 1083 AND
IJRA’AT AL-MAHAKIM AL-SHARI’A?
ARTICLE 2, PD 1083
1. Recognizes the legal system of the
Muslims in the Philippines as part of the law of
the land and seeks to make Islamic institutions
more effective;
2. codifies Muslim personal laws; and
3. provides for an effective administration
and enforcement of Muslim personal laws among
Muslims.
 The Court
 In general
*(uniqueness of the creation of Shari’a courts)
 Power to create courts vs. Supervision of Courts vs.
appointment of judges
 Judicial Power
 Rule making power of the Supreme Court; Limitations
 Classification of Courts
 Hierarchy of Courts; Principle of Judicial hierarchy; Doctrine
of judicial stability
Distinction
Court Judge
 Tribunal officially  Officer of such
assembled under tribunal;
authority of law;  person who sits in
 An organ of the court;
government under A public officer
the judicial
department;
 An office
WHAT IS JUDICIAL
POWER?
DO ALL COURTS
EXERCISES JUDICIAL
POWER?
 Judicial Power
 Includes the duty of the courts of justice:
 1. to settle actual controversies involving rights
which are legally demandable and enforceable;
 2. to determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
government branch or instrumentality.
(note: all courts exercises judicial power)
GRAVE ABUSE OF DISCRETION
SUPREME COURT SAID “ GAD is present when
there is an arbitrary exercise of power owing
from passion, prejudice, or personal hostility;
or a whimsical, arbitrary or capricious exercise
of power that amounts to a shirking from or
refusal to perform a positive duty enjoined by
law or to act at all in contemplation of law”.
The abuse of discretion must be gross and
patent. (Tomawis vs. Judge Balindong)
DISCUSS THE RULE-MAKING POWER
OF THE SUPREME COURT?
 Rule-Making power of SC
Sec. 5(5) of Article VIII of the Constitution,
vesting in it the power to promulgate rules
concerning the protection and enforcement of
constitutional rights, pleading, practice and
procedure in all courts, the admission to the
practice of law, the integrated bar and the
legal assistance to the underprivileged.
Basis of the promulgation of the
Special Rules of Procedure
 ARTICLE 148 and 158 PD 1083.
The Shari’a District/ Circuit Court shall
be governed by such special rules as
the Supreme Court may promulgate.
 Limitations to the Rule-making
power
1.That the rules shall provide a simplified and
inexpensive procedure for speedy disposition
of cases;
2.That the rules shall be uniform for courts of
the same grade;
3.That the rule shall not diminish, increase or
modify substantive rights. (Sec.5 (5) Art. 8 of
the Constitution)
HOW DO YOU CLASSIFY SHARI’A
COURTS ON THE BASIS OF THE
NATURE AND EXTENT OF
JURISDICTION?
Classification of Courts
Nature and extent of jurisdiction
1. General jurisdiction
2. Limited jurisdiction
3. exclusive jurisdiction
4. concurrent jurisdiction
5. original jurisdiction
6. appellate jurisdiction
ARTICLE 137 PD 1083
CREATION. There are hereby created,
as part of the judicial system, courts
of limited jurisdiction, to be known
respectively as Shari’a District Courts
and Shari’a Circuit Court…
WHAT DO YOU MEAN BY THE
PRINCIPLE OF JUDICIAL
HIERARCHY?
Principle of Judicial Hierarchy

The judicial system follows a

ladderized scheme which in
essence requires that lower courts
initially decide on a case brought
before it is considered by a higher
court..
Hierarchy of Courts
Supreme Court

Shariah appellate courts

Shariah District Courts

Shariah Circuit Courts

 DOCTRINE OF JUDICIAL STABILITY
 DOCTRINE OF NON-INTERFERENCE/ JUDICIAL
STABILITY
- the principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
each other’s orders. It bars a court from
reviewing or interfering with a judgement of a
co-equal court over which it has no appellate
jurisdiction or power of review.
SHARI’A DISTRICT
COURT
SHARI’A COURTS WHERE
ESTBALISHED; NAME THE
PLACES
 Name the places where the different
Sharia courts are established
1. First Shari’a District comprising the Sulu Province;
2. Second Shari’a district of the Province of Tawi-Tawi;
3. Third Shari’a District of the Provinces of Basilan,
Zamboanga del norte, Zambonga del sur, and the Cities of
Dipolog, Pagadian and Zambonga;
4. FourthShari’a District of the Provinces of Lanao del Norte,
Lanao del sur and the cities of Marawi and Iligan;
5. Fifth
Shari’a District of the Provinces of Maguindanao, North
Cotabato, Sultan Kudarat and the City of Cotabato
SHARI’A DISTRICT COURT

Territorialjurisdiction
Appointment;
Qualification;
Tenure;
Compensation of judges
 QUALIFICATION
ARTICLE 140. No person shall be appointed Shari’a District
judge unless, in addition to the qualifications for judges of
Courts of First instance fixed in the judiciary law, he is learned
in Islamic law and jurisprudence.
SECTION 15, BP 129
1. Natural-born citizen of the Philippines;
2. At least thirty five years of age;
3. At least ten years engaged in the practice of law in the
Philippines or held a public office in the Philippines requiring
admission to the practice of law as an indispensable requisite.
JURISDICTION (IN GENERAL)

it is defined as the authority and

power of the court to hear, try and
decide a case.
In general

Jurisdiction over the parties;

 Jurisdiction over the subject
matter;
 Jurisdiction over the res or
property in litigation;
JURISDICTION OVER THE PARTIES

How jurisdiction over the plaintiff is

acquired by the court?

How jurisdiction over the defendant is

acquired by the court?
 JURISDICTION OVER THE SUBJECT MATTER
Power to deal with the general
subject involved in the action;
Power to hear and determine cases
of the general class to which the
proceeding in question belongs.
 How determined?
Jurisdiction over the subject matter is
determined by the allegations in the
Complaint and the Relief sought.
Jurisdiction cannot be made to depend
upon the defenses set up in the answer, in a
motion to dismiss or in a motion for
reconsideration. (Jerry Tomawis, et al. vs.
Amna Pumbaya, et al.)
 How conferred?
It is conferred by law, which may either be the
constitution or the statute. Since Jurisdiction over
the subject matter is a matter of law, parties
cannot choose, consent to, or agree as to what
court or tribunal should decide their dispute.

 If the court hears, tries and decides a case in

which it has no jurisdiction, all its proceedings,
including the judgement rendered, are void.
 JURISDICTION OVER THE RES
Refers to the courts jurisdiction over the thing or
the property which is the subject of the
litigation.
Can be acquired by actual constructive seizure by
the court of the thing in question, thus placing it
in custodia legis; ex. attachment
Court power to deal with the property or subject
matter within its territorial jurisdiction.
 Practical exercise

Amina is a resident of Marawi city. By reason of the neglect

or failure of her husband Hassan to provide support for the
family for one year, Amina decided to file a petition
(divorce by faskh) in SDC against Hassan. However, because
of Marawi siege, Amina was not able to file the case in
Marawi. She is now temporarily residing in Cotabato as one
of the IDP’s. Amina is very much eager to file the petition
for divorce in Cotabato, so she hired you as her counsel. She
asked you if she is allowed to file the case in Cotabato.
what is your advice to Aminah? Explain with reason
If you were the counsel of Hassan, what is
your procedural remedy against the petition
filed in Cotabato?

If you were the judge, how will you rule?

 Problem
Abdul, a resident of Bongao, Tawi-Tawi and Daud, a resident
of Pagadian entered into a contract of loan. The loan was
secured by a real estate mortgage of a land located in
Pagadian. It is stipulated in the contract that “ in case of
dispute between the debtor and the creditor, the matter
shall be settled in the Court of Tawi-Tawi only”. A problem
now arises because Abdul, the creditor did not return the
mortgaged property to Daud despite the fact of payment of
the loan. Daud is planning to file an action against Abdul.
He went to your office and asked for an advice.
As a Shari’a practitioner, what will be your advice?
Distinction
Jurisdiction Venue
Power of the Place where the action
court to hear and is instituted;
decide a case; Can be waived;
Cannot be Procedural;
waived because
it if conferred by
law;
Substantive;
Cont.jurisdiction venue
 Fixed by law and  May be changed by the
cannot be the written agreement of the
subject of parties;
agreement;
 Establishes
a relation
 Establishesa relation
between the plaintiff and
between the court
defendant;
and the subject
matter;  Improper venue is not a
 Lack of jurisdiction is ground for motu proprio
a ground for motu dismissal;
proprio dismissal;
 VENUE

 it is the place or the geographical

area where an action is to be filed and
tried.
In civil cases, it relates only to the
place of the suit and not to the
jurisdiction of the court.
REAL ACTION
A Real action is one that affects title
to or possession of real property, or
interest therein.
Is one anchored on the privity of real
estate, where the plaintiff seeks the
recovery of ownership or possession
of real property or interest therein.
 PERSONAL ACTION
 Personal action is one that founded on
privity of contracts between parties, and
in which the plaintiff usually seeks the
recovery of personal property, the
enforcement of contract or recovery of
damages.
 VENUE OF REAL ACTION
Shall be commenced and tried in the
proper court which has jurisdiction over
the area wherein the real property
involved, or a portion thereof is situated.
Example of Real action : a dispute
involving land or ownership of land
 VENUE OF PERSONAL ACTION
 RULE 4, section 2 of the Rules of Court
 at the plaintiff’s election:
1. where the plaintiff or any of the principal
plaintiffs resides;
2. where the defendant or any of the principal
defendant resides;
3. in case of a non-resident defendant, where
he may be found.
 SHARI’A DISTRICT
COURT JURISDICTION
 SDC Original Jurisdiction
Article143 PD 1083
EXLUSIVE and ORIGINAL Jurisdiction
CONCURRENT and ORIGINAL Jurisdiction

***How many cases falling under exclusive and

concurrent jurisdiction?
EXCLUSIVE ORIGINAL: 18 CASES

CONCURRENT ORIGINAL: 7 CASES

Hypothetical problem
ATTORNEY X and DOCTOR Y are husband and wife. They
are both Muslims. They were married under Islamic rites.
They have a minor daughter Child Z. Ten years later, their
marriage turned sour and the husband, Doctor Y filed a
divorce against wife Attorney X. Three years thereafter,
Atty. X converted to Iglesia Ni Cristo. Upon learning of
the said conversion, Doctor Y immediately went to your
Sharia law firm to seek for a legal opinion on what he
should do to protect child Z. What legal remedy will you
advise to husband Doctor Y? and where you should file it?
 BAR QUESTION
ABDULWAHAB, a Muslim, married to Kathrina, a
Christian pursuant to PD 1083. His wife wants to
adopt a baby, who was abandoned by their
maid. As her lawyer,

a)Inwhat court the action for adoption? Explain

b)May the husband object to the adoption?
reason
EXLUSIVE and ORIGINAL Jurisdiction

Cases involving:
1. CUSTODY,
2. GUARDIANSHIP,
3. LEGITIMACY,
4. PATERNITY and FILIATION arising under
PD 1083;
Problem
Jamiri, a Muslim, passed away on Dec.31, 2010. He had 6 wives,
3 of whom he later divorced, and 23 children. He had extensive
real and personal properties located in the Provinces of Lanao
Del Sur, Agusan del sur and Agusan del Norte. Jahara (one of the
3 surviving widows) filed a “Joint petition for administration and
settlement of the inestate estate of late Jamiri and liquidation
of conjugal partnership” before the SDC of Marawi City. The
Divorced wives, who claim to be widows of the deceased alleged
the venue was improperly laid and properties located outside
Lanao del sur were beyond the jurisdiction of SDC.
Can the SDC take cognizance of the case? Is the venue properly
laid?
MUSA vs. MOSON (1991)
RULING OF THE SUPREME COURT
Issue on Jurisction : Article 143 (b) PD
1083;
residence of the deceased in an intestate
proceeding is not an element of jurisdiction
over the subject matter but merely of
venue;
 Issue on Venue: RA 6734 Organic act on ARMM
 “ ARTCLE IX, Sec.17 (4). Except in cases of
successional rights, the regular court shall acquire
jurisdiction over controversies involving real property
outside the area of Autonomy.
 Rules of court (Rule 73) “the court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts.
Cases involving
1. DISPOSITION, DISTRIBUTION, and
SETTLEMENT OF ESTATE of deceased Muslim,
2. PROBATE OF WILLS,
3. ISSUANCE OF LETTERS OF ADMINISTRATION
regardless of the nature or aggregate value
of the property;
 These are all special proceedings
(all about property of the decedent)
 Luisa Kho Montaer, et.al., vs. Shari’a District
Court, Fourth Shari’a Judicial District, et. Al
(2009)
 Facts: a Petition for Certiorari and prohibition seeks to set aside the
decision of Shari’a District Court;
 Petitioner Luisa Montaer, a roman catholic married Alejandro
Montaer Sr. at the immaculate conception parish. They have three
children;
 On 1995, Alejandro Montaer Sr. died.
 Private respondents Liling Disangcopan and her daughter Almahleen
Montaer, both Muslims, filed a complaint for the judicial partition
of properties before the Shari’a District Court;
 Allegations in the Complaint:
1. That Alejandro Sr. died
2. That he is a Muslim
3. Petitioners are the first family of the decedent
4. The estimated value of and the list of properties
comprising the estate of the decedent
 Private respondents prayed for the partition of the
estate and the appointment of an administrator of
the estate.
Petitioners filed an answer with a motion
to dismiss mainly on the following ground:
1.SDC has no Jurisdiction over the estate of
the deceased because he was a Roman
Ratholic.
Proceedings in the Sharia District Court:
 SDC dismissed the private respondents complaint. The
district court held that the decedent is not a Muslim.
 SDC reconsidered its order of dismissal and allow
private respondent to adduce more evidence. SDC
ordered the continuation of the trial, trial on the
merits and pre-trial conference.
 ISSUE

SDC lack of jurisdiction over petitioners

who are Roman Catholics and non-
Muslims;
 Jurisdiction: Settlement of the estate of
Deceased Muslims
 SDC jurisdiction is dependent on a question of fact, whether
the late Montaer is a Muslim.
 Article143 (b) of PD 1083 provides that SDC have exclusive
original jurisdiction over the settlement of the estate of
deceased Muslims.
 The determination of the nature of the action or
proceeding is controlled by the averments and character of
the relief sought. Rather than rely on the falsa description
or defective caption, courts are guided by the substantive
averments of the pleading.
 Cont.

 Although it is designated as a Complaint for

judicial partition of properties, it is a Petition
for the issuance of Letters of Administration,
settlement and distribution of the estate of the
decedent.
Jurisdictional facts in a settlement proceeding
1.The fact of death as well as the allegation that
he is a Muslim at the time of his death;
2.The said Petition must contain the enumeration
of the names of his legal heirs, so far as known
to the private respondents;
3.Probable list of the properties left by the
decedent being settled in a Probate court.
 Petitions for the
1. DECLARATION of ABSENCE
2. DEATH
3. CANCELLATION or CORRECTION OF ENTRIES in the
Muslim registries. ( relate to Art. 84 )

 these entries are the following: any entries in the Muslim

civil registry relating to marriages, divorces, revocation of
divorces and conversion that is sought to be cancelled or
corrected by an interested proper party.
 PROBLEM
HASSAN(debtor) and DAUD(Creditor) entered into a contract
of loan of Php100,000 with the stipulated interest of 12%
per annum. They are both Muslims. To secure the loan
Hassan delivered his house and lot to Daud. When Hassan
was set to redeem his house and lot by paying the
Php100,000 but without the 12% interest, Daud refused and
countered that the payment should include the stipulated
interest.
HASSAN went to your firm and ask for legal opinion on
where he should file the case.
In the Shari’a court or in the regular court?
4. All actions arising from CUSTOMARY
CONTRACTS in which the parties are
Muslims, if they have not specified
which law shall govern their relation;

Please relate to ARTICLE 175 PD 1083

Article 175 Customary contract

Any transaction whereby one person

delivers to another any real estate,
plantation, orchard, or any fruit bearing
property by virtue of sanda, sanla,
arindao, or similar customary contracts,
shall be construed as a mortgage (rihan)
in accordance with Muslim Law.
 All petitions for
1. MANDAMUS (Special civil action)
2. PROHIBITION (Special Civil action)
3. INJUNCTION (Special Civil Action)
4. CERTIORARI (Special civil action)
5. HABEAS CORPUS (Special proceeding)
6. and all other AUXILLIARY WRITS and processes in
aid of its appellate jurisdiction.
 Mandamus (Rule 65, sec.3 ROC)
 ELEMENTS

1. Corporation, board, officer or person

2. Unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust
or station OR unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled
3. No other plain, speedy and adequate remedy available
4. Prayer:
commanding the respondent to do acts required to be
done to protect the rights of the petitioner by reason of the
wrongful acts of the respondent.
 Prohibition (Rule 65, sec.2 ROC)
ELEMENTS
1. When the proceedings of any tribunal, corporation, board,
officer, or person;
2. Exercising judicial, quasi-judicial or ministerial function;
3. Acted without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction;
4. No appeal or other speedy and adequate remedy available;
5. Prayer:
commanding the respondent to desist from further
proceedings in the action;
 CERTIORARI (Rule 65, sec.1)

ELEMENTS
1. Tribunal, Board or officer;
2. Exercising judicial or quasi-judicial function;
3. Acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or in excess of
jurisdiction;
4. Noappeal, nor any plain, speedy or adequate remedy
available;
5. Prayer:
judgement be rendered annulling or modifying the
proceedings.
 INJUNCTION(Preliminary)
Define
A Pleminary Injunction is an order granted at any stage of an
action or proceeding prior to the judgement or final order,
requiring a party or a court, agency or a person to either:
1. Refrain from a particular act or acts (Preliminary Prohibitory
injunctio) OR
2. Require
the performance of a particular act or acts; (Preliminary
mandatory injunction)

***Is Injunction similar to a Temporary Restraining Order? TRO

may be granted ex-parte
A suit for injunction is an action in personam. It
is an ancilliary or preventive remedy that is
meant to be temporary and subject to the final
disposition of the principal action.
 Purpose: to prevent future injury and maintain
the status quo.
 HABEAS CORPUS (a special proceeding)

 It literally means “to produce the body”

A WRIT OF HABEAS CORPUS essentially a writ of inquiry,

granted to test the right under which a person is detained,
and to relieve a person if such restrain is illegal.
 Itextends to all cases of illegal confinement or detention
by which any person is deprived of his liberty OR by which
the rightful custody of any person is withheld from the
person entitled thereto. (RULE 102, sec.1 Rules of Court)
 Other Auxiliary writs (Provisional remedies)
 ATTACHMENT

plaintiff ask the court before which the

principal case is lodged involving a claim for the
satisfaction of pecuniary obligation which has become
due and demandable, arising from law, contracts,
quasi-contracts, or quasi delict to attach, upon
certain properties whether real or personal belonging
to the defendant sufficient to satisfy his claim in
order to secure its satisfaction after trial.
RECEIVERSHIP
plaintiff ask the court to appoint a
receiver, who is not a party to a pending case,
to take possession of the property subject of
litigation and hold it until the party who is
entitled thereto is finally determined.
 REPLEVIN

The plaintiff during the pendency of the

principal action, apply for the delivery to him of
certain specified personal property by the defendant.
The purpose is to protect his right of possession of the
personal property subject of the main action.

 SUPPORT PENDENTE LITE

Support during the pendency of the main case
 CONCURRENT
JURISDICTION
 CONCURRENT and ORIGINAL with existing
civil courts
Petition by Muslim for the
1. Constitution of a family home
2. Change of name
3. commitment of an insane person to
an asylum
 FAMILY HOME
 Itis the dwelling house constituted jointly by the husband and
the wife or by an unmarried head of a family where their family
reside, and the land on which it is situated.
 How constituted: the Family home is deemed constituted on a
house and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continuous to be such and is exempt from execution, forced sale
or attachment except for non payment of taxes, debts incurred
prior to the constitution of the family home, for debts secured
by mortgage prior to its constitution and for payment due to
laborers.
CHANGE OF NAME
COMMITMENT OF AN INSANE PERSON
PROBLEM
MRS. Pumbaya together with other complainant, an alleged
owner of a parcel of land, filed with the Shariah District
Court, an action for quieting of title of a land, against
MR.Tomawis. In their complaint, they alleged that they are
the owner of the said land and that MR. Tomawis assumed
ownership on the said property on the claim that he bought
the same from the father of MRS. Pumbaya.
In his answer, MR.Tomawis debunked the claim of ownership
and raised, as one of the affirmative defenses lack of
jurisdiction over the subject matter. And that BP 129 repealed
the jurisdiction of the SDC involving issues affecting real
properties.
*Is the SDC has jurisdiction over the
subject matter of the case?

*Did BP 129 impliedly repeal the

jurisdiction of the SDC?
Jerry Tomawis vs. Hon. Rasad Balindong, Amna
Pumbaya, et al (2010)
RULING OF THE SUPREME COURT
1. In Republic vs. ASUNCION, the Supreme Court, citing the
Administrative code of 1987, classified Sharia Courts as
regular courts but with limited jurisdiction therefore,
they are part of the judicial department;
2. Art. 143 of PD 1083 vests SDCs, exclusive original
jurisdiction and concurrent original jurisdiction over
certain causes of action such as actions involving real
properties.
3. BP 129 (1981), define the jurisdiction of RTC including “in
all civil actions which involve actions affecting title to or
possession of real property, or any interest therein…”
4. BP 129, although a later law, cannot repeal a former law PD
1083; BP 129, a law of general application to civil courts, has
no application to, and does not repeal, the provisions found in
PD 1083, a special law, which only refers to Shariah courts.
5. The scope of BP 129 shows that Sharia Courts were not
included in the reorganization of courts that were formerly
organized under RA 296.
PROBLEM
 Mr. Mala purchased a parcel of land located in Parang, Maguindanao. A
Geodetic engineer surveyed the said land and found out the MR.
Villagracia occupied the parcel of land. Mr. Mala filed an action to
recover the possession of the parcel of land with respondent Mr.
Villagracia before the Fifth Sharia District Court. The SDC caused the
service of summon on Villagracia. However, despite the service,
respondent failed to file his answer. Mr. Mala present his evidence ex
parte.
 SDC ruled in favour of the Plaintiff ordering the respondent to vacate
the property.
 Mr. Villagracia questioned the Jurisdiction of SDC over him with the
following argument: SDC has no jurisdiction over his person because
he is a Christian;
 Mr Mala’s argument before the SC:
1. He filed the action to recover possession in the SDC for
speedy disposition of the case;
2. No provision in the PD 1083 prohibiting non-muslim from
participating in Sharia court proceeding, especially when the
Sharia Court applied the provisions of the Civil Code;
3. The court validly acquired jurisdiction over Villagracia upon
service of summon and Villagracia raised the issue on
jurisdiction for the first time on appeal.
4. Mr. Villagracia effectively waived his right to participate in
the proceedings in the SDC.
HOW WILL YOU RESOLVE THE ISSUE?
 Villagracia vs.Fifth SDC and Roldan Mala (2014)
RULING OF THE SUPREME COURT
1. Respondent Fifth Sharia District court had no
jurisdiction to hear, try and decide the action for
recovery of possession;
2. The Law conferring jurisdiction of SDC is under Article
143 of PD 1083; SDC jurisdiction applies only when
both parties are Muslims.
3. Petitioner did not state in his action for reconveyance
that Villagracia is a Muslim;
Cont.

4. The application of the provisions of the Civil code does

not validate the proceedings before the court;

5. A party may assail the jurisdiction of a court or tribunal

over a subject matter at any stage of the proceedings, even
on appeal. The reason is that, it is conferred by law, and
lack of it affects the very authority of the court to take
cognizance of the case.
 PROBLEM
MR.A is engaged in a business of leasing real properties. He
leased one of his apartment to MR. D for ten years. On the
expiration of the contract of lease, lessee demanded lessor to
vacate the apartment as he will going to renovate it. Lessor
refused and asked the lessee to give him one more year. MR.A
filed with the Sharia Court an action for Reconveyance over
real property. MR.D, in his answer argued the SDC has no
jurisdiction over the case.
If you were the judge, how will you decide the case?
 PROBLEM
AHMAD is an owner of a building. One day, a
group of armed men deprived Ahmad of his
possession over the building by force. Ahmad
went to your Sharia law firm to seek for a legal
advise on how he could bring back his property.

What will be your advise to Ahmad?

All other
1. PERSONAL and
2. REAL ACTION wherein the parties involved are
Muslims
 except those for FORCIBLE ENTRY and
UNLAWFUL DETAINER which shall fall under the
jurisdiction MTC.
 REAL ACTION

A Real action is one that affects title to or

possession of real property, or interest
therein.
Is one anchored on the privity of real
estate, where the plaintiff seeks the
recovery of ownership or possession of
real property or interest therein.
 PERSONAL ACTION
 Personalaction is one that founded on privity
of contracts between parties, and in which
the plaintiff usually seeks the recovery of
personal property, the enforcement of
contract or recovery of damages.
 EXCEPT: Forcible entry and unlawful detainer
RULE 70 SPECIAL CIVIL ACTION
 A person deprived of the possession of any land or
building by force, intimidation, threat, or stealth;
(Ejectment suit for FORCIBLE ENTRY)
 A person deprived of the possession of any land or
building by a lessor, vendor, vendee or other person
against whom the possession of any land or building
is unlawfully withheld after the expiration or
termination of the right to hold possession.
(Ejectment suit for UNLAWFUL DETAINER)
 PROBLEM
HAFSA is a lessor of a stall in the market. She paid her monthly
rental to DAUD every 15th day of the month. On November 15,
2017, AHMAD told HAFSA that he is now the new owner of the
stall and that the payment of the rental must be given to him
and not to DAUD. On the other hand, DAUD told HAFSA that he
remained to be the owner of the stall and that payment must
be continuously given to him.
Bothered by the conflicting claims made by DAUD and AHMAD,
HAFSA went to your firm and asks your legal opinion.
All Special civil action for
1. INTERPLEADER or
2. DECLARATORY RELIEF wherein the parties
are Muslims or the property involved
belong exclusively to Muslims.
 INTERPLEADER (Rule 62)
A SPECIAL CIVIL ACTION
A remedy whereby a person who has in his possession
or has an obligation to render wholly or partially,
without claiming any right in both, comes to court
and ask that the defendants who have made
conflicting claims upon the same property be required
to litigate among themselves in order to determine
who is entitled to the property or payment.
 DECLARATORY RELIEF (Rule 63)
Any person interested under a deed, will, contract
or other written instrument OR whose rights are
affected by a statute, executive order or regulation,
ordinance or any other governmental regulation
may, before breach or violation thereof, bring an
action in the appropriate Court to determine any
question of construction or validity arising, and for a
declaration of his rights or duties thereunder.
 APPELLATE JURISDICTION

Over all cases decided by

Shari’a Circuit courts within
their territorial jurisdiction
(Article 144).
What is the basis of the decision
rendered by SDC in the exercise of
its appellate jurisdiction?
APPELLATE JURISDICTION

BASIS OF DECISION
1. Evidence and records
transmitted;
2. memoranda, briefs and oral
arguments as the parties may submit.
SHARI’A CIRCUIT COURT
SHARI’A CIRCUIT COURT
Territorialjurisdiction
Appointment;
 Qualification;
Tenure;
 Compensation of judges
 Territorial jurisdiction
Article 150 (2) “ the territorial
jurisdiction of the Shari’a Circuit courts
shall be fixed by the Supreme Court on
the basis of GEOGRAPHICAL CONTIGUITY
of the municipalities and cities
concerned and their Muslim population.”
 QUALIFICATION
ARTICLE 150. No person shall be appointed judge of
the Shari’a Circuit court unless:
1. Natural born citizen of the Philippines;
2. At least 25 years of age;
3. Has passed the examination in the Shari’a and Islamic
jurisprudence to be given by the Supreme court;

 Must be a Regular member of the bar (R.A 9054)

SCC JURISDICTION
Article 155 PD 1083

1. All cases involving offenses

defined and punished under this
code.
 Specific offenses
 Illegal solemnization of marriage; (marriage without
authority)
 Marriage before the expiration of idda;
 Offenses relative to subsequent marriage; divorce,
and revocation of divorce;
 Failure to report for registration fact concerning
civil status of person by one duty bound to do so;
 Neglect of duty by Muslim civil registrars.
 ARTICLE 181 (Illegal solemnization of
marriage)
Who may be liable? Any person
Who shall: without authority, solemnized any
marriage purportedly under this Code;
Or who shall: do so in a manner contrary to
the provisions of the Code.
ARTICLE 182 (Marriage before expiration
of Idda)
Who may be liable? Any widow or divorced
woman
Who shall: having married under Muslim Law
or under this Code, contracts another
marriage before the expiration of the
prescribed idda;
 ARTICLE 183
OFFENSES RELATIVE TO SUBSEQUENT
MARRIAGE, DIVORCE AND REVOCATION OF
DIVORCE
WHO MAY BE LIABLE? ANY PERSON
For failure to comply with:
1. Art. 86: Effects of Registration in the Muslim
registry
2. Art. 161: Divorce by Talaq or Tafwid
3. Subsequent marriages
ARTICLE 184 (Failure to report for registration)

Who may be liable?

 Any person who knowingly fails to perform his duty
under this Code to report for registration any fact
concerning the civil status of persons;
 ARTICLE 185

Neglect of duty of Registrars. “ any

district or circuit registrar who fails to
properly perform his function in
accordance with this Code;
 PROBLEM
A (an Egyptian) and B (an Arab) were married in Saudi Arabia in
accordance with Muslim rites. They went here in the Philippines
for a vacation. After their one month stay, they decided to
establish a business here. Their relationship went rough after a
year. The wife decided to file a divorce by Faskh against the
husband on the ground of unusual cruelty. The wife asked you as
a Shari’ a counsel on where she should file the case?
 Thehusband argued that since their marriage were solemnized in
Saudi Arabia, the provisions on PD 1083 will not apply to them
and the Courts here in the Philippines cannot acquire jurisdiction
over them.
 As a judge, how will you rule?
 PROBLEM
Ahmad, a Muslim and Kath, a Roman Catholic were
husband and wife. They were married in accordance
with Muslim rites in Dubai. After 10 years of being
together, their relationship went rough. Ahmad went
to the Philippines and is planning to file a divorce
against Kath. As a Shari’a practitioner, Ahmad ask
you on what legal steps he should do to prosper the
case? What will be your advise? Is the Shari’a court
can take cognizance of the case?
 AL-AWADHI vs. ASTIH (1988)
 FACTS: Petitioner and private respondent were married in
Kuwait. Petitioner is a Filipino nurse and a Roman catholic.
Her husband, private respondent is a Kuwaiti students.
 She
filed an action for support and guardianship over her three
minor children in the RTC Bohol;
 The husband in the same court filed a joint a motion to be
allowed to exercise joint parental authority over their
children;
 However, without waiting for the action of the RTC, he filed a
Petition for Custody and Guardianship of their minor children
in the Fourth Shariah District Court in Marawi City.
 The wife filed a Motion to dismiss before the
SDC on the following grounds: 1. no jurisdiction
over the subject matter nor over the parties,
lest of all, herself; 2. litis pendencia; 3.
improper venue
 SDC Ruling: Denied the Motion to Dismiss. The
order of denial primarily based on Section 13 of
the Special Rules of Procedure (Pleadings and
Motions disallowed).
 Basis of the petition before the Supreme Court by the
petitioner:
1. that the husband is not s Filipino-Muslim but a
Kuwaiti National;
2. that he resides in Tagbilaran and not in Marawi City;
3. That the wife Filipino citizen and a non-Muslim;
4. That their marriage was not solemnized in any part
of the Philippines, for they were married in Kuwait;
5. That they don’t reside within the Fourth Shariah
District
ISSUE: Whether or not the Shariah
Court can take cognizance of the
case
RULING OF THE SUPREME COURT
 RTC Tagbilaran which had assumed jurisdiction over
petitioner’s complaint for Support and Guardianship,
may not be divested of its jurisdiction over the
parties by the SDC of Marawi City by the husband’s
filing therein a Petition for Custody and Guardianship
over their children. The rule is that once the court
has assumed jurisdiction over the case, its
jurisdiction shall continue until the case is finished.
It may not be ousted by its jurisdiction by a co-equal
court.
Article13, PD 1083. APPLICABILITY CLAUSE
The provision of this title shall apply to
marriage and divorce wherein…… “only the
male party is a Muslim and the marriage is
solemnized in accordance with Muslim law in
any part of the Philippines”.
Article 3, PD 1083. “the provision shall not
prejudice a Non-Muslim”
Problem
Hamid and Khalid are best friends. Hamid has a son
Rayyan, while Khalid has a daughter Princess. Hamid and
Khalid made an arrangement that Rayyan will marry
Princess after they finish schooling. The arrangement went
smoothly as Hamid already planned for the wedding and
they already gave the dowry to Princess. On the wedding
day, Rayyan did not show up for unknown reasons . The
family of Princess were embarrassed.
Khalid now went to your firm to ask for a legal advise on
what legal remedy does his family has against Rayyan.
What will you tell Khalid?
 Problem
Abdul is the Sultan in their community. He has a
niece Princess who is only thirteen years old. Abdul
desires that her niece will marry the son of a Datu in
the nearby village. As a well known Shari’a lawyer,
Sultan Abdul went to your firm and ask for a legal
opinion on what steps to undertake in order for the
marriage to be valid under the provisions of the
Muslim personal law.
What will be your advice?
 ARTICLE 16 (par. 2)
“ However, the Shari’a District Court may,
upon petition of a proper wali, order the
solemnization of the marriage of a female
who though less than fifteen but not
below twelve years of age, has attained
puberty”. (Betrothal Marriage)
 Cont.
Five years after the marriage of Princess and her
husband, she discovered that her husband is ill
mannered. He disrespects her feelings and ideas.
Princess desires to end up their relationship. She
went to your office and consulted you on the
matter. As a Shari’a lawyer, what legal steps will
you undertake? What will be your advice to
Princess?
 CONT.
2. All civil actions and proceedings between parties
who are Muslims OR have been married in accordance
with Article 13 involving disputes relating to:

a) MARRIAGE;
b) DIVORCE recognized under this Code;
c) BETROTHAL or BREACH OF CONTRACT to marry;
d) CUSTOMARY DOWER or MAHR
CUSTOMARY DOWER or MAHR

An action for customary dower refers to a

case for the payment of unpaid dower.
The woman or her guardian in marriage
can sue for the payment of prompt dower,
or the fixing of a proper dower, or the
annulment of marriage.
 However, when the marriage is dissolved after the
death of the husband, the claim for any unpaid or
deferred dower must be brought against the
administrator of estate in the settlement of the
estate of the deceased before the Shari’a District
court.
 Death of the husband during the pendency of the
case for payment of unpaid dower, the case shall be
dismissed and included as a claim against the estate
of the husband during the settlement of his estate.
SHERYL MENDEZ vs. SHARI’A DISTRICT
COURT, et., al (G.R No. 201614, Jan.12,
2016)
 Facts: Mendez (wife) and Dr. John Maliga were
married under Muslim rites.
 Prior to their marriage, the couple was already
blessed with a daughter, Princess Fatima Maliga;
 Their marriage soured shortly after their wedding;
 Maliga filed with the Shari’a Circuit Court (ShCC) A
PETITION FOR THE JUDICIAL CONFIRMATION OF TALAQ FROM
MENDEZ, WITH A PRAYER FOR THE GRANT OF PROBATIONAL
CUSTODY OF THEIR MINOR CHILD PENDING THE RESOLUTION
OF THE CASE.
 According to him, Mendez was a Roman Catholic and she
embraced the Islamic faith on the date of their marriage.
He alleged that she reverted to Christianity. That she
taught their daughter how to practice Christianity by
enrolling in a Catholic school.
 Before Mendez could file her answer, Maliga filed an urgent
Motion to be awarded temporary custody.
 RULING OF THE ShCC: Confirmed the Talaq pronounced by Maliga
against Mendez and awarded to him the care and custody of
Pricess Fatima.
 Mendez appealed the order of ShCC only with respect to the
ruling on custody. She asserted that the question of custody was
within the excusive original jurisdiction of SDC only.
 RULING OF THE SDC: affirmed the order of the ShCC stating that
in Shari’a Law, a mother might be legally disentitled to the
custody of her child if she turned apostate, and disqualified until
she returned to Islamic faith; and the father, as a Muslim, was in a
better position to take care of the child’s well-being and raised
her as a Muslim.
ISSUES:
1. Whether or not the ShCC erred in acting on Maliga’s
urgent motion for issuance of temporary custody;
2. Whether or not the ShCC and SDC had jurisdiction to
rule on the issue of custody;
3. Whether or not custody was properly granted to
Maliga.
RULING OF THE SUPREME COURT
 ART. 143 “Jurisdiction of SDC in cases
involving Custody”
 ART. 155 “Jurisdiction of ShCC in cases of
disputes involving disputes relating to
Divorce recognized under Muslim Law”
 Application of the DOCTRINE OF ANCILLARY
JURISDICTION
 DOCTRINE OF ANCILLARY JURISDICTION
 “While a court may be expressly granted the incidental
powers necessary to effectuate its jurisdiction, a grant of
jurisdiction, in the absence of prohibitive legislation,
implies the necessary and usual incidental powers essential
to effectuate it, and, subject to existing laws and
constitutional provisions, every regularly constituted court
has the power to do all things that are reasonably
necessary for the administration of justice within the
scope of it jurisdiction and for the enforcement of its
judgement and mandates”.
By recognizing the power of ShCC to rule on the
issue of custody, would this effectively render
Article 143 meaningless, considering that the
same is unequivocal in providing that the SDC
has exlusive original jurisdiction to decide on all
cases of Custody?
 SUPREME COURT SAID:
“ A distinction must be made between a case for
divorce wherein the issue of custody is an
ancillary issue and a case where custody is the
main case. Jurisdiction in the former, lies with
the Shariah Circuit Court, as the main cause of
action is divorce. The latter on the other hand,
where the main cause of action is one of custody,
the same must be filed in the Shariah District
Court, pursuant to Article 143 of PD 1083”.
 CONT.
e) DISPOSITION AND DISTRIBUTION of property
upon divorce;
f) Maintenance and support, and consolatory
gifs or Mut’a; and
g) Restitution of marital rights.

3. All cases involving disputes relative to

COMMUNAL PROPERTY.
 Consolatory gift (Mut’a)

A gift to console another, i.e., a modest

gift according to the social standing of the
family in the nature of donation inter vivos
given by the husband to console his wife’s
feelings.
 Cases involving Restitution of marital
rights
 When a party to marriage, without lawful and just
cause refuse either to provide consortium to the
other, the latter may sue the former for restitution of
conjugal or marital rights.
 Note on the rights and obligation of the husband and
wife under the Code.
Effect of non-compliance to the
decree for restitution
 The reluctant spouse losses whatever right
arising from their marriage relationship such
as the right to receive support;
 COMMUNAL PROPERTY (Art. 173)
 What constitute:
1) Customary heirloom, which shall include artifacts and
ancestral implements of things of cultural value handed
down from a common ancestor;
2) Ancestral property, which shall comprehend hallowed
ancestral plot, ancestral shrine, royal courts and similar
properties; and
3) Charitable trust property.
“
IF ALLAH S.W HELPS YOU, NO ONE
CAN OVERCOME YOU
”
AGAMA ARBITRATION
COUNCIL
AGAMA ARBITRATION COUNCIL

Surah An-Nisa (IV:35)

“If ye fear a breach between the
two (e.i., husband and wife) then appoint
an arbitrator from his people, and an
arbitrator from her people. If they mutually
wish to set things right, Allah S.W will allow
them to reconcile.”
 Agama Arbitration council
Article 7. Definition of terms (PD 1083)
(a) “Agama Arbitration Council” means a
body composed of a Chairman and a
representative of each of the parties to
constitute council to take all necessary
steps for resolving conflicts between them.
 Composition of AAC
Agama Arbitration Council is that duly
constituted councils of arbitrators by the SDC
or SCC, composed of Shari’a Clerk of court as
ex-officio chairman and the two members
nominated by the parties and deputized by
the courts, for the purpose of arbitrating for
the parties with the aim of finding any
possibility of amicable settlement.
 Arbitration vs. Mediation
 In arbitration, the parties to a dispute agree that a
mutually acceptable and independent person will
be appointed to hear each of their version of the
dispute in question and will make a decision, which
the parties have previously agreed will be binding
on them.
 An arbitrator’s decision will normally have the
force of law.
 In mediation, it is the appointment of a mutually
acceptable independent person to sit with the
parties and hear their individual sides and then
help them reach an agreement.
 In mediation, the decision is not impose by the
mediator, but is arrived at by the parties
themselves with the mediator’s assistance.
 “terms of settlement or a consent agreement”
CASES WHEN ARBITRATION
COUNCIL MAY BE
CONSTITUTED?
ARTICLE 160 PD 1083

Article 160. The SDC and SCC MAY, in appropriate

cases, constitute an AAC.

CASES SUBJECT TO AAC UNDER SCC (specific)

 Article 161. DIVORCE BY TALAQ AND TAFWID
 Article 162. SUBSEQUENT MARRIAGES
 Article 163. OFFENSES AGAINST CUSTOMARY LAW
 ARTICLE 161 (Divorce by Talaq and Tafwid)

File a written notice to the Clerk of court

of the place where his family resides of
such fact and circumstances attended
thereto after having served a copy thereof
to the wife concerned;
The Talaq or Tafwid shall be revocable
except upon the expiration of the
prescribed idda;
Cont. (Art. 161)
 The written notice shall be conclusive evidence
that a Talaq or Tafwid has been pronounced;
 The Clerk of Court shall require each of the parties
to nominate a representative, within seven days
from receipt of notice;
 The representative shall be appointed by the
judge;
 The Arbitration shall submit a report on the result
of the arbitration;
 Article 162 (Subsequent marriage)
A written notice filed by any Muslim husband, desiring
to contact a subsequent marriage;
 Upon receipt of the notice, the Clerk of court shall
serve a copy thereof to the wife or wives;
 Should any of them object, an arbitration council shall
be constituted;
 If the arbitration fails to obtain the wife’s consent to
the proposed marriage, the Court shall subject to
Article 27, decide whether or not to sustain her
objection.
Article 163 (Offenses against Customary Law)
 The Shari’a Circuit Court, in cases involving offenses
against customary law which can be settled without
formal trial may, at its discretion, direct the Shari’a
Clerk of Court to constitute a council of not less than
two nor more than four members, with him as
chairman to settle the case amicably.
Any other case under the Code
that is subject to arbitration?
 Article 36 (3) Rights and Obligations of
the wife
 The wife may, with her husband’s consent, exercise any
profession or occupation or engage in lawful business
which is in keeping with Islamic modesty and virtue.
 However, if the husband refuses to give his consent on
the ground that his income is sufficient for the family
according to its social standing or his oppositions is based
on serious and valid grounds, the matter shall be referred
to the Agama arbitration Council.
At what stage of the
case when the AAC
may be constituted?
It depends

For cases under SDC and SCC (except those

specifically provided under the Code art.
161, 162, 163), the Council may be
constituted upon the request of the parties
during the pre-trial stage.
Specific cases under the Code

Art. 161. Divorce by talaq and tafwid

Art. 162. Subsequent marriages
Art.163. offenses against customary law
Question

How will you distinguish the

constitution of AAC from a Pre-
Trial conference?
ARBITRATION PROCEEDINGS

Can there be an ex parte arbitration

proceeding?
How may the AAC be conducted
under the Special Rules of
procedure? (bar question)
 SECTION 18 (SPECIAL RULES)

ARBITRATION HOW CONDUCTED?

In accordance with the
methods it deems appropriate
 Matters considered during arbitration
taking into consideration:
1. the circumstances of the dispute;
2. the conciliation of the parties;
3. interest of children;
4. interest of third party involved;
5. and need for speedy settlement of the
dispute.
JURISCONSULT
JURISCONSULT IN ISLAMIC LAW
 Creation of office and appointment
 Qualification

1. Citizen of the Philippines;

2. Forty years of age;
3. good moral character and proven integrity;
4. eminent scholar in Qur’an, Hadith and in
Islamic jurisprudence;
5. Proficient in Arabic
FUNCTIONS
 1.
AUTHORITY TO RENDER LEGAL OPINION (relate to
Sec. 12)

 2.Shall consider and act on every such request UNLESS

IN HIS OPINION AND FOR GOOD REASON THE QUESTION
NEED NOT BE ANSWERED;

 3.Shall KEEP a COMPILATION and cause the publication

of all his legal opinions.
Under what circumstances may the Fatwa of
the Jurisconsult be sought? What is its binding
under Shari’a courts? (bar question)
SECTION 12. Before judgement is rendered, any
court may seek the opinion of the Juris consult
on matters concerning difficult questions of
Muslim law and Jurisprudence.

The opinion of the Jurisconsult is not binding

upon the court.
 LEGAL OPINION (FATWA)
JURISCONSULT is created with the function of
giving legal opinion based on recognized
authorities on matters concerning difficult
questions of Musim law and Jurisprudence on
the written request of any court or of any
interested party.
 No appointed Jurisconsult yet
 Villagracia vs. Fifth Shariah District court and Roldan Mala
(2014)
 The Supreme Court said: priority should be given in
organizing the office of the Jurisconsult in Islamic law. A
Jurisconsult in Islamic law or a Mufti is an officer with
authority to render legal opinion on any law relating to
Muslim law. In the Philippines, where only personal laws are
codified, a legal officer learned in the Qur’an and Hadith is
necessary to assist this Court as well as the Shari’a court
judges in resolving disputes not involving Muslim personal
laws.