Shariah Law and the Code of Muslim Personal Laws
Published in the Sun.Star Davao newspaper on January 21, 2015.
Part 1 of 2 series
Read second part here.
IN THE 2000 Philippine Census 5.1% of Filipinos identify as Muslim. By 2030 the Muslim population is expected to increase to 5.7%. The Philippines is one of seven countries in the Asia-Pacific region with increasing Muslim populations. They are the most significant minority group in the Philippines. (Taken from Pew Research Centre’s Forum on Religion & Public Life, January 2011) Given that many of the Muslim Filipinos are already following the Code of Muslim Personal Laws or PD 1083 which includes marriage, divorce, custody and inheritance, there is still a need to review this law in line with the principles of human rights and social justice. What is it all about and how does it relate to the strict sense of Shariah principles?
What is Shariah law?
The literal meaning of the word Shariah refers to "a path trodden by camels to a water source and the commonly used Arabic phrase al-Shariah al-islamiyah may be translated as “the Islamic way.”
When used as a source of law, in Muslims definition, it refers to the way that leads the righteous believer to Paradise in the afterlife. However, Muslim scholars believe that Shariah is not deemed a religious law by virtue of the subject matters it covers. It may refer to culture, economics, and even political form of government.
How do we interpret Shariah? The interpretations of the requirements of the Shariah are contained in the fiqh. The word fiqh means “knowledge” or “understanding". However, it is also used in the more specific sense of Islamic jurisprudence. Shariah and fiqhare often treated as synonymous terms designating the body of rules constituting Islamic law. In another view, fiqh can also refer to the science of interpreting the Shariah.
The primary source of Shariah is the Qur'an. The Qur'an is the holy book of Muslims which contains the revelation that was given to the prophet Muhammad (SAW) by God through Archangel Gabriel. Another source of Shariah is the Sunnah (the practice) of prophet Muhammad (SAW).
In addition to the two main sources, the fiqh (jurisprudence) books of the Sunni school – the Hanafi, Hanbali, Maliki and Shafi’i – may also be used for legal construction. Studies have shown that Shariah court judges and experts suggested a strong preference for the Shafi’i books as ‘more appropriate’, given the beliefs of most Muslim Filipinos.
Recent studies have shown that the development of Shariah in recent times has two significant dimensions, corresponding to its dual nature as a positive law and a deontology.
Positive law means statutes that have been laid down by a legislature, court, or other human institution. Deontology is the normative ethical position that judges the morality of an action based on the action's adherence to a rule or rules. It is sometimes described as "duty" or "obligation" or "rule"-based ethics, because rules "bind you to your duty.
In today's modern time, the Shariah cannot evolve on isolation. This is due to the fact that Muslim countries had a direct or indirect relation with colonizers from Europe. Thus, Shariah law needs proper legislation.
In our local context, our own version of Shariah law is the Code of Muslim Personal Laws. Following the line of laws that needs legislation and the concept of divine law, it is in this context that Shariah reform became one of the major legal problems faced by Muslim societies and provoked protracted political and intellectual controversies. The challenge we have now is what the future role of the Shariah in our nation and within the Bangsamoro region.
What is the Code of Muslim Personal Laws (CMPL or PD 1083)?
The Code of Muslim Personal Laws (CMPL) refers to the law that governs the family and personal relations of the Muslim Filipinos. It was promulgated by President Ferdinand Marcos through Presidential Decree 1083. CMPL recognizes the legal system of Muslims in the Philippines as part of the law of the land, codifies Muslim personal laws, and provides for the administration and enforcement of the Code through the establishment of Shariah courts.
Former President Ferdinand Marcos initiated the codification of the Muslim personal laws and provided for its administration to assure Muslims that “the government protects their religion and their rights, that they are treated equally with the rest of the population, and that they are an integral part of the Filipino nation”. (Taken from the report of the Presidential Code Commission to Review the Code of Filipino Muslim Laws, August 29, 1975, p.12.)
In short, the attempt of President Marcos to have a special law to address the Muslim concerns was actually and attempt of the state in “systematizing, institutionalizing and rationalizing” as a process to mainstream Muslims in the Philippine Republic towards integration rather than assimilation.
The CMPL has three main functions – to recognize elements of Islamic law as part of the law of the Philippines, to codify Muslim personal law, and to provide a system for its administration and enforcement. As the title of the law suggests, the Code does not cover the entirety of Shariah, only elements of personal laws and does not recognize Shariah as a separate, autonomous system of law. It is, rather, a part of the wider justice system of the state. The entire code has 190 articles in five books and it covers personal status, marriage and divorce, matrimonial and family relations, succession and inheritance, and property relations between spouses. It is applicable only to Muslims.
Mussolini Sinsuat Lidasan is the director of Al Qalam Institute for Islamic Identities and Dialogue in Southeast Asia based in Ateneo de Davao University. Follow him on Twitter @mussol2