Dossier 27: The Shari’a courts in the Philippines: Women, men and Muslim personal laws
Publication Author:Isabelita Solamo-Antonio
number of pages:93
Independence movement in Muslim parts of Mindanao emerges in 1967, achieving autonomy for Muslims in four provinces of Mindanao after a 1989 Organic Act was enacted and a plebiscite was held in implementation of the 1987 Constitution. In 1996, a peace accord between the Philippine government (GRP) and Moro National Liberation Front (MNLF) was forged. Among others, the peace accord provides for a process of autonomy in areas identified in the Tripoli Agreement.
Under the New Organic Act (Republic Act No. 9054), the regional legislative body of the Autonomous Regions in Muslim Mindanao (ARMM), “in consultation with the Supreme Court and consistent with the Constitution may formulate a Shari’a legal system including criminal cases which shall be applicable in the region, only to Muslims or those who profess the Islamic faith.”
Mindanao is home to about five million Muslims, which is approximately 30% of the total population of Mindanao. Muslim Mindanao has been in the development agenda in recent years. Despite government focus and heavy flow of resources in these areas, the benefits of development have not trickled down and Muslim women and men continue to feel socially excluded. All the Muslim provinces are still included among the Mindanao’s poorest provinces. As expected, this situation is more difficult for the Muslim women. The maternal mortality rate in the ARMM Region is similarly higher compared to the other areas in Mindanao which could be due to several factors, i.e. lack of access to health facilities including pre-natal care, poor nutrition, lack of resources. There is a low level of participation in community affairs among women whose tasks remain confined to traditional roles. Men sit in leadership and decision-making positions while women are in the background. Women are not very visible in policy direction and decision-making positions. Muslim women have very limited presence in local political affairs and governance and their status is significantly lower than that of women from other communities. Talk of reproductive rights is perceived as an effort to further ‘minoritize’ Muslims. However, the NGO movement is very strong and in Mindanao recognition now exists that social development work needs to address Muslim women and men.
The ARMM have the lowest literacy rates even as Filipino women are among the world’s most highly educated, with literacy levels of 94.3%. According to National Statistics Office data, the functional literacy rate for women in Muslim Mindanao is 59% while the simple literacy rate is 71%. For a period of 10-12 years or more (1970-1980), the majority of Muslim women have not gone to school because of the situation of armed conflict in Mindanao. Again in school year 2000-2001, many could not enrol because of the war and because the schools were used as evacuation centers.
War recently erupted between the Armed Forces of the Philippines and the Moro Islamic Liberation Front (MILF) in Central Mindanao and as of 16 February 2003, the total number of evacuees and internally displaced persons in north Cotabato and other ARMM areas have reached almost a hundred thousand (90,620) and still rising. According to the Department of Social Welfare and Development, more than 70% of these refugees are women and children. Whole families have left their farms and burnt houses and it is expected that these internally displaced will not return to their places of residence and livelihood. There is no shelter and security if they return. The insurgent groups invoke Islam for its ideological legitimacy but peace loving Muslim communities could equally rely on Islam to uphold peace and democracy.
In spite of the GRP-MNLF peace accord and the on and off peace talks between the GRP and the MILF, the Muslim secessionist movement continues and lasting peace in Mindanao remains a dream.
All laws have to conform to the 1987 Constitution, which contains a gender equality provision and provides for a secular state. In 1977, in an attempt to appease Muslim separatists, a Code of Muslim Personal Laws (CMPL) was enacted under the Marcos regime. The Code applies to all Muslims but since the Code was promulgated before the 1987 Constitution that has a gender equality provision, there is a case for looking whether Muslim women enjoy the same women’s rights that have been won by the women’s movement worldwide and in the Philippines.
In 1988, a survey research was conducted by the PILIPINA Legal Resources Center (PLRC) on the extent of usage, attitudes, aspirations and behaviour of Muslim women in relation to the CMPL. It was found out, among others, that majority of the Muslim women were not familiar about their official legal rights. The solution to the problem of lack of legal literacy is easy. The greater problem, as the survey indicated, is that women’s lack of autonomy is largely cultural and justified by invoking customary laws and religious traditions. This worldview affects the individual’s ability to participate in every level of social life – from decision-making within her home and family, to education, employment and public office.
From 1999, the PLRC has been working with the National Network for Muslim Women’s Rights in proposing changes to the current CMPL1. The proposed ‘Revised Code of Muslim Personal Laws’ was carefully shaped and nurtured through the years. The process involves organizing a critical mass of advocates who are committed to work for the passage of the proposed changes in the Code into a new law.
The process started with research in 1988 by the PLRC on the aspirations of Muslim women in Mindanao. The next steps were legal literacy work for many years to popularize the Code and to discuss the provisions in the context of gender issues. In 1998, when our political party Abanse! Pinay2 won a seat in Congress and our party’s Representative became the Chair of the Committee on Women in the House of Representatives, PLRC regarded this as a methodological and political chance to work for legal reform. In 1999, PLRC started to facilitate the process of reviewing and proposing changes to some provisions of the CMPL.
Like our counterpart sisters in other parts of the Muslim world advocating for reform, one of the current hurdles faced by the network is the labelling of the CMPL as ‘Islamic’, which has essentially put it beyond the reach of justice. Animating a legal reform process with the Muslim community was bound to take issue with ethnic identity, i.e. non-recognition of ethnic identity and cultural ethnocentrism. But, as advocates and as women living under Muslim law, we know we cannot be champions of political and civil rights - if we are loathe to address many of the issues most critical to women, ostensibly for fear of trampling on religious freedom and ethnic identity. We are not saying that religious freedom, identity, or even the right to follow cultural traditions are false issues. For the National Network of Muslim Women Advocates, they are among the most pressing and difficult issues we face. But, the difficulty of such issues is not justification for abandoning the aspirations of Filipino women; rather it is precisely the reason why legal reform is especially crucial. For we are acutely aware that, on the questions of how and whether and when to pursue legal change, we who work as feminists advocating for legal and structural changes must take our lead from the women who live and work and struggle in the grassroots, and not vice versa.
These efforts of the National Network for Muslim Women’s Rights to draft reform of the Code are based on progressive legislation in other Muslim countries. Early on, in the drafting stage, the network invited a representative of the network Women Living Under Muslim Laws (WLUML) to talk on progressive legislation in other Muslim jurisdictions.
The several consultations on the proposed reforms discussed lengthily the conflation between what is Islamic and what is Muslim. In a nutshell, this conflation, as discussed by Ayesha Imam in the WLUML Dossier states that;3
“Islam is the religion or faith (the way of Allah) while Muslims are those who believe in Islam and attempt to practice it. Islam is an issue of theology. However, what Muslims (human fallible people) make of Islam is an arena open to social scientific inquiry. In other words, how human beings understand and apply Islam in their contemporary realities and daily lives is at least an area of debate not only in the present but also throughout the past history of Muslim communities. There are commonalities - i.e. the text of the Qur’an is not questioned. But, interpretations of what the message of the Qur’an means in the daily life of Muslims – always have been questioned.”
The Qur’an is separated from the codification of Islamic law or Shari’a by a process of legal development lasting up to the early 20th century.4 During this period the Qur’anic norms underwent considerable change, that mirrored the context of existing patriarchy at that time and which has survived to this day. And Islamic law, which is the interpretation and application of the primary sources by early Muslims, came to be regarded as Islam itself.
The religious text of the Qur’an, considered by all Muslims to be the literal word of God, is a primary source of Islamic law and contains approximately 80 verses dealing with legal matters, most of which pertain to personal laws of family and inheritance.5 The term ‘Muslim personal laws’ (MPL) has been coined by various Muslim countries and jurists because it pertains to, among others, marriage, divorce, inheritance, polygyny, custody and guardianship that fall under the category of family law.6 In the Philippines, laws affecting the personal status and family relations of Muslim women have been codified as MPL.
While an inherent strategy has been reinterpreting from existing jurisprudence (fiqh) issues such as marriage, polygamy, child marriage, contraception, abortion, etc. it was emphasized in our legal reform project, that current fiqh is a social construction. The proposed strategy is both from the perspective of human rights and in the context of an ever evolving culture that is progressive and informed by the feminist discourse on Muslim Law and reproductive rights which is emerging among feminists around the world. As it is difficult to argue within the current fiqh paradigm, an alternative feminist agenda is for women to construct their own fiqh while acknowledging that contributions of earlier scholars are a product of men’s discourse with other men and women have earlier been excluded from this production of knowledge. Since time immemorial, women have never felt qualified to construct a new school of fiqh/dynamic fiqh. So far, very few women have acquired this facility. One strategy, therefore, is to listen to feminist ideas from different sources and different countries. This underscores the importance to be connected to other progressive feminists from other Muslim jurisdictions.
There is also an acute awareness that one difficult balancing act in Muslim parts of the Philippines is to develop strategies to protect one’s human right as a member of minority communities without having to resort to oppressive, religious impositions of fundamentalist projects/agenda that violate women’s sexuality and bodily autonomy.
Filipino Muslim women have the same status problems in the private and public spheres of life as experienced by their fellow Filipino Christian counterparts but as members of a religious community, for Muslim women there seems to be another level of inequality. For Muslim women, the rhythms, the patterns, the structure of everyday life are shaped by an intricate web of laws, rules, and customs often said to be Islamic and thus, not open to negotiation and change. That, what in fact is considered Islamic, is in fact not Islamic (i.e. that which is divine or ordained) but Muslim (i.e. of those who adhere to Islam) and reflects the assimilation of Islam into prevailing structures, systems, and practices and hence explains the many significantly different varieties of Muslim societies or tribes that exist today.7
The maximum impact of the codification of Muslim law is felt in family and personal matters since it affects women disproportionately in a manner that undermines relations between women and men.8
The provisions that were discussed and analyzed pertains to freedom to choose one’s husband, guardian in marriage, unilateral oral divorce, polygamy, exercise of occupation or profession, family domicile, management of the household, support of the family, and inheritance. Women’s freedom and autonomy were considered by the discussants as important values in society.
Sexuality and reproductive rights advocates now agree that customary and religious laws and practices are often used as tools to control women’s sexuality and to maintain the imbalance of power in sexual relations. This affects women’s ability to participate in every level of social life – from decision-making within her home and family, to education, employment and even her own body. For instance, early marriages, arranged marriages and polygamy are prevalent and sanctioned by our current CMPL – which is part of Philippine law. Women feel unable to seek divorce if their husbands have extra-marital affairs since this is not a legal ground for divorce. Although cruelty is one of the grounds for divorce, our studies show that no cases for divorce have been filed on grounds of domestic violence, wife beating or marital rape.
Knowledge of Muslim law is largely the monopoly of men. There are very few women ulema 9.
Most ustajes are men and scholarships in Islamic studies are the preserve of men. The task of demystifying the sources of these customary laws that reduce the autonomy of women must involve the training of many Muslim women scholars who will have the authority and confidence to claim the entitlements of women by searching for space within these customs or interpretations to reformulate laws based on social justice.
The power and authority to propose alternative formulations in codified laws will come from the feminist social and political movement - a critical mass of women using reason. Among our Muslim communities, religion is the code of life that governs all of behaviour including our own sexuality. There are many positive traditions but there are also many cultural barriers. Dealing with Islamism is showing how Islam, like many other religions, has often been misused as a powerful instrument of control, legitimizing violations of women’s human rights. Some Muslim majority countries like Turkey have made fiqh books irrelevant and have been replaced by statute books - which should be the goal of human rights activists. In this sense, popularizing a progressive, alternative formulation in our own CMPL is a step in the right direction and will be used as an instrument of dialogue with legislators from the ARMM. Since, the continuing mandate of PLRC is empowerment through the law and legal resources as strategy, the centre continues to popularize progressive and positive Muslim practices and codified laws through local trainings and dialogue with local officials and at the level of the ARMM. This is a strategy worth sharing and discussing with other Muslim communities in other countries.
The Network would like to propose changes in the following areas in the Code:
- the provision on hereditary rights which is different for both sexes;
- the provision on unilateral oral divorce which is the prerogative of Muslim men;
- the provision on domicile;
- the provision on the right to work or practice one’s profession;
- the provision on the management of the household;
- the provision on child marriage which violate the rights of a child;
- the operational definition of just treatment in subsequent marriage/s.
Consent in marriage
The mutual consent of the spouses is required. Consent of the woman is not presumed by the offer of the marriage guardian (wali).
Age of marriage
The age requirement for marriage has to be increased to eighteen for both women and men. It is proposed that for those individuals below the required age who wanted to marry, they must obtain a special permission from the Shari’a court. The court may issue a license or certificate to marry after maturity tests have been made to ascertain that the person is mentally and psychologically mature. It is also suggested that contracting parties to the marriage should undergo marriage counselling.
The role of the wali is spelled out as someone who represents the best interests of the woman. A new provision on marriage guardian (wali) shall be included. In this suggested new provision, the extent of the wali’s participation or involvement in the marriage has to be specified. For instance, he or she shall not be allowed to compel a person under guardianship to marry. He or she shall also be prohibited to give the woman in marriage without her consent.
A wali is not required under the Hanafi School of Muslim jurisprudence and so a wali who does not represent the interests of the bride can be done away with.
A pre-nuptial agreement is required regarding the type of marriage whether monogamy or polygamy because under the Shari’a contracts are sacred. It is suggested that a pre-nuptial or ante-nuptial agreement be entered into by the contracting parties immediately before the celebration of the marriage, stipulating among others; the property relations of the spouses; the amount, schedule and mode of payment of dower (mahr); agreement on support after idda in case of divorce; whether talaq be delegated to the wife; and the type of marital relations that will govern the marriage - whether monogamy or polygamy. It shall also be stipulated that violation of any of the agreements will be a ground for divorce. This pre-nuptial agreement will be made a formal requisite of marriage.
Specification of mahr
The fixing of the amount or value of the dower should be specified before the celebration of the marriage and not during or after the celebration. Hence, there is no longer a need for the wife to petition the court so as to determine the amount of the mahr.
The provision on mahr should also be amended to include a provision that requires that something valuable should be given to the woman for her to keep temporarily as a collateral/security in cases of unpaid mahr.
There has to be a new provision specifying that the agreed amount or value of mahr, its schedule and mode of payment should be stipulated in the pre-nuptial agreement and the marriage contract.
The proposal is towards abolition. Under the current law, a child marriage cannot be annulled if the marriage guardian (wali) is the father or paternal grandfather. This is a violation of a child’s rights.
Rights and obligations between spouses
This provision on the rights and obligations between spouses has to be amended to include a provision requiring mutual consultation between the spouses as regards the fixing of the residence of the family. It should be part of the pre-nuptial agreement. The law must be reformulated towards sharing of responsibility between spouses in managing the affairs of household.
Rights and obligations between spouses11
- The wife is entitled to support from the husband.
- Husband fixes the family domicile.
- Wife manages the household.
- Wife may, with husband’s consent exercise her profession or engage in occupation or business.
1988 Family Code
- Spouses are jointly responsible for the support of the family.
- Husband and wife jointly fix the family domicile.
- Husband & wife jointly manage the household.
- Husband’s consent is not required for wife to exercise or engage in occupation or business.
The spouses should consult each other and mutually agree on the exercise of their profession or occupation or in the engagement of their lawful business.
The Code should be amended to include new provisions pertaining to the following: (a) grounds for divorce by talaq, (b) divorce by mubara’at and (c) essential requisites of divorce. It is suggested that the following be considered as essential requisites: 1) the decision to divorce is the free will of the spouse who initiates the divorce and that she/he is not forced into it by her/his parents; 2) that the reasons for seeking divorce are valid and in accordance with the Code and the Muslim Law; 3) that all the required approaches for reconciliation, including arbitration, have been exhausted, and; 4) that there must be the presence of two or more witnesses.
The provision on divorce by talaq should be amended to include a particular mode of repudiation that shall be observed by the husband. It is suggested that there shall be formal repudiation (pronouncement of talaq) to be done in the court in the presence of two witnesses together with the Judge and the Clerk of Court. Such repudiation shall be reduced into writing and shall be filed with the Clerk of Court and a copy thereof shall immediately be served to the wife.
The following are the proposed conditions for oral repudiation:
I. That there must be justifiable or valid grounds;
II. Repudiation must be done in the presence of two or more witnesses.
III. If the husband will divorce his wife by talaq without complying with the essential requisites then the divorce shall not be valid. The wife shall continuously be entitled for support as there is no divorce.
The provision on divorce by faskh should be amended to include more grounds such as: a marriage was entered into without the consent of the wife or her consent was obtained through force or duress and deceit, and; b) the failure of the husband to honour or comply with the stipulations or conditions of the prenuptial or ante-nuptial agreement.
Divorce is automatic once a husband contracts a subsequent marriage (tafwid).
Divorce by mutual agreement (mubaraat) neutralizes the prerogative of men to exercise unilateral divorce by oral repudiation. A Muslim husband does not need to petition the court to get a divorce. If he exercises oral repudiation (talaq) all he has to do is to repudiate the wife, file with the clerk of the Shari’a court a written notice of such fact; wait for the expiration of the idda. An Agama arbitration council is constituted which makes a report on the result of the arbitration; then the court issues an order of divorce. Most divorces are through oral repudiation (talaq) and a decree of divorce is possible only after an arbitration mechanism is set up and through this judicial process, the entire divorce process appears to lose its original unilateral character.
In reality, the courts have issued decrees or orders similar to divorce by mutual agreement even if this type of divorce is not found in the CMPL. To differentiate this from the judicial process of divorce by oral repudiation (talaq) the following is the proposed formulation of divorce by mutual agreement: Either one or both of the spouses may petition the court for confirmation of their mutual agreement to divorce. Failure to register a divorce by mubaraat is punishable (Art.181 CMPL).
The waiting period (idda)
Art.57, Sec.b of the Code should be amended to include a specific time when to start the counting of idda or waiting period.
One proposal is that in the case of divorce by talaq, the period of idda shall be counted from the time the written notice of such fact is filed by the husband with the Clerk of Court of the Shari’a Circuit Court and after a copy of such notice has been served to the wife in accordance with Art.161 of the Code. The current CMPL provides that the notice filed by the husband is the conclusive evidence that talaq has been pronounced.
The other more popular proposal is that the term of idda in all divorces that go to court, including a divorce by talaq that in Philippine law requires a judicial process, shall be counted from the time a final decree of divorce is granted by the Shari’a court for as long as it is not be less than the current legal requirement of three months counted from the time the petition was filed in the court.
The proposed reform is towards restriction of polygamy. Specifically, the proposal is for women and men to draw up a pre-nuptial agreement as to the type of marriage (whether monogamy or polygamy). This is in keeping with the cultural high regard to honour contracts because contracts are sacred under religious law or Shari’a.
The following is the proposed reform on subsequent marriage:
Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife, unless:
- He can deal with them with equal companionship and just treatment as enjoined by Muslim law and only in exceptional cases;
- He has discussed the matter diligently with his current family before serving notice to the court;
- The pre-nuptial agreement allows him; and
- The court finds him capable.
Also, a husband should be required to file, in addition to the written notice, an application for permit to contract a subsequent marriage together with the necessary documents, such as: his income tax returns or in the absence thereof, his employer’s certification or affidavit stating his income to prove that he is financially stable hence, qualified to have another family. The application shall also indicate the number of children or dependents he is presently supporting. And in accordance with Art.27, the Shari’a court has to determine if the husband has the ability to provide ‘equal companionship’ and ‘just treatment’ to existing wife or wives and the incoming one. An operational definition of ‘exceptional case’ should be written in the law for easy court determination.
Rights and obligations between husband and wife
The proposed reform is to veer away from the protection mode towards equality of responsibility. In effect, there is a clamour for the reinterpretation of the religious injunction that declares men as protectors (qawamun) of women.
That men need to financially support women is based on the assumption that only the man is working or gainfully employed or that unpaid work at home and childcare are the turf of women. Reform, therefore, in this area need to highlight that both man and woman must share management of the household as well as share in childcare work. Or the state must be involved in childcare through social security policies.
Property of the spouses
It is suggested that new provision should be included in the Code requiring:
- The listing of the exclusive properties of the spouses brought to the marriage in the pre-nuptial agreement and/or in the marriage contract;
- The giving of a share to the wife who contributed her labour or industry in a business owned by the other spouse;
A new provision has to be included in the Code that will require the husband to pay his divorced wife additional amount, as a ‘penalty’ but in a form of gift like the mut’ah which is observed in some Muslim countries (e.g. Malaysia). Mut’ah or a consolatory gift has a basis in the Qur’an but not provided in the Code. In one decided Philippine Shari’a court case, the Shari’a Judge awarded this to the divorced wife, citing the Qur’an as basis.
Based on actual Shari’a court monitoring reports, as husbands oftentimes ignore court orders to give support to the family, the Shari’a courts should order the husband, who is liable to share in the maintenance of the family, to deposit certain property in the court or provide security in order that the maintenance of the family is ensured.
The Shari’a Circuit Court must also see to it that it will have a sheriff or court staff who could enforce the decision of the judge.
The proposal is towards equity. The following is the reformulation sought: A daughter who is providing for or supporting the brothers and/or other members of the family or a daughter who is in dire need may petition the court for payment of her incurred expenses of support as well as payment for future expenses of support. Such support shall be charged to the estate.
The custody of the minor children up to the age of puberty shall be given to the mother. Children who have reached the age of puberty will be given the choice with whom they want to stay.
Mothers and other female relatives should be included in the list of persons authorized to act as guardians for marriage (wali) and guardians of minor’s property.
The word ‘father’ should be changed to ‘parents’; ‘paternal grandfather’ to ‘grandparents’; ‘brother and other paternal relatives’ to ‘brother or sister and other paternal and maternal relatives’; ‘paternal grandfather’s executor or nominee’ or the ‘court’ to ‘court or a person designated by the court.’
From Islamic to Muslim
In the introduction to the Code (spirit of the law) change the word ‘Islamic’ to ‘Muslim.’ This will emphasize the fact that written statutes are really based on human interpretation.
Creation of more Shari’a courts
The oversight committee in Congress (i.e. of the Committee of Muslim Affairs) must look into the current implementation of the Code and such committee will find out that not all Shari’a courts as spelled out in the law has been created. Thus, one of recommendations is to create Shari’a courts in the following areas where there are none: National Capital (Manila), Davao City, Soksargen and Palawan.
In making justice accessible to women, it is important to study what kind of courts and what kind of judges’ orientation we want our women to have access to. While there is a road map to judicial reform as carefully outlined in the Supreme Court’s Action Program for Judicial Reform (APJR), this project has empirically tested a methodology on how civil society can be harnessed to participate in the monitoring of courts towards a judicial reform agenda.
The project provides the opportunity to introduce judicial reform, specifically in the Shari’a court system. It interfaces with the Supreme Court’s APJR which aims to enhance judicial conditions and performance for the improved delivery of social services. Through the project, PLRC has connected the community with the formal court structure.
The study sought to document positive practices and gaps in the Shari’a courts’ administration of justice (e.g. people’s access to the courts, efficiency and effectively, impact of the courts in the local community, etc.). The Shari’a judges have welcomed the chance to describe their courts and how the system can be improved.
Initial results show that many members of Muslim communities seek services of Shari’a courts for the settlement of their cases. But, there are courts that do not have judges and so this has implications on citizen’s access to justice. Exclusion of large communities from justice system structures is an indicator of poverty. Therefore, a review of the effectiveness and efficiency of justice system structures to inform a judicial reform agenda should be part of any poverty reduction program.
The poverty situation in Muslim Mindanao is compounded by the fact that for Muslim women in Mindanao, the official legal landscape as evidenced by some provisions of the Code of Muslim Personal Laws (CMPL) is profoundly different and less liberating than those that apply to the majority of women in the Philippines and worldwide.
The trends of the project have been presented to various stakeholders including the donor community particularly, the United Nations (UN) Donors Gender Equality Network.
As an immediate next step, PLRC facilitated an engagement by civil society with the government bureaucracy in charge of recruiting judges to the courts in order to fill up the vacancies and so judges travelling to many courts located far from each other can give full attention to the community of a particular court.
The dialogue with the Department of Justice yielded a resolve and a creation of a government search committee to fill up the vacancies in the Shari’a courts. Through enough, a total of 16 new judges were recently appointed to the Shari’a courts. Unfortunately, all these are male judges.
Communicating to the public the plight of the Shari’a courts is being done through mainstream media and through this publication that will be put in the market.
The PLRC and the National Network for Muslim Women’s Rights which worked on this project together have developed a three year project which primarily will popularize alternative MPL legislations and Shari’a jurisprudence as well as a local advocacy program on women’s rights and social justice in partnership with various agencies at the local, at the level of the ARMM and national levels.
The depressed condition of our Shari’a courts and the fact that there are various courts with no judges are related to the fact that the entire budget of the Judiciary is less than 2% of the national budget. Therefore, there is a case for increasing the budget allocation for the entire Judiciary.
For the long haul, the results of the study can be a handle for strengthening the justice system in Muslim communities, in particular, and thus contribute, somehow, to promoting genuine and lasting peace in Mindanao, in general.
The process of proposing reforms in the MPL will be popularized on the ground because to an extent that the CMPL is dramatically different for women than for men, this body of rules mediates an individual’s ability to participate in every level of social life - from decision-making within her home and family, to education, employment and public office. It calibrates and measures a woman’s value as a human being in her home and her society.
As we say, laws are derived from customary, religious and social and political sources, each contributing its share towards denying women their legitimate rights. The challenge is how to make our institutions like our legal and justice systems reflect progressive changes for our well being as women and our communities. There is a growing critical mass of Muslim women in the Philippines who are convinced that the gains of the women’s movement in the Philippines and worldwide must be reflected in all laws. This has implications for popularizing progressive legislations (which are also compatible in the cultural context of Filipino Muslims) from other Muslim jurisdictions in other countries.
Since laws are supposed to be codifications of perceived social realities, then legislations and policies must also reflect current social changes. And as nobody can comprehend the variety of human relations for all occasions and for all epochs, legislative enactments and judicial decisions must reflect this dynamism.
Reprinted with kind permission from the author and originally published in Isabelita Solamo Antonio, The Shari’a Courts in the Philippines: Women, Men and Muslim Personal Laws, PILIPINA Legal Resources Center, Inc (PLRC), 2003.
1 The proposed “Revised CMPL” has officially been presented to the 11th House of Congress through Congressman Abdulgani Salapuddin, the Vice Chair of the Committee on Muslim Affairs and through Congresswoman Patricia Sarenas, Chair of the Committee on Women. The advocacy of the network for the passage of the proposed law continues. Also, local advocacy activities at the local government units and at the level of the Autonomous Region in Muslim Mindanao have started.
2 Abanse! Pinay is a women’s political party with the goal of advancing the women’s agenda in Congress through the election of three women sectoral representatives under the party-list system.
3 For a discussion on the conflation between Muslim and Islamic see Imam, A. ‘The Muslim Religious Right (Fundamentalists) and Sexuality’, in WLUML Dossier 17, p. 7-25.
4 El Alami, D. and Hinchcliff, D. p. 35-37.
5 Moosa, N. p.1.
7 From Shaheed, F. ‘Controlled or Autonomous: Identity and the Experience of the Network Women Living Under Muslim Laws’, in Signs: Journal of Women in Culture and Society, Vol. 19, No.4, Summer 1994.
9 Ulema, an Arabic word, is the plural form of alim that literally means a learned person, generally used for an expert on Muslim jurisprudence.
10 These network proposed revisions were also shared in a joint paper by N. Maruhom and I. Solamo Antonio which was prepared for the Sisters in Islam project, Islamic Family Law & Justice For Muslim Women and presented by members of the National Network for Muslim Women’s Rights who were part of the Philippine delegation in Kuala Lumpur on 8-10 June 2001.
11 Ma. L. Montanez, Woman Underneath The Malong, PILIPINA Legal Resources Center, 1989, p. 29.
Anwar, Z. and Abdullah, R., Islam, Reproductive Health, and Women’s Rights (Sisters in Islam, 2000).
Balchin, C. (ed), A Handbook On Family Law in Pakistan (Shirkat Gah & WLUML 1994).
Barra, H. A., The Code of Muslim Personal Laws: A Study of Islamic Law in the Philippines (Marawi City: Mindanao State University, 1988).
Bautista, E. B., An Introduction to the Code of Muslim Personal Laws (Quezon City: Central Law Book Publishing Co., 1977).
El Alami, D. and Hinchcliff, D., ‘Background to Codification’ in Islamic Marriage and Divorce Laws of the Arab World (CIMEL Book Series, 1996)
Gowing, P. G., Muslim Filipino: Heritage and Horizon (Quezon City: New Day Publishers, 1979).
Mastura, M. O., ‘Shari’ah and Codification: Islamic Legislation in Relation to Legal reforms In the Philippines’, Shariah Law Journal, Vol. 4, January 1987 (International Islamic University, Malaysia), p. 61-94.
Montanez, Ma. L., The Woman Underneath That Malong: The Implications of the Code of Muslim Personal Laws on the Muslim Women of Regions IX & XII (PILIPINA Legal Resources Center, 1988).
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