Reviewer in Procedure and Evidence Governing Philippine Shari'a Courts

REVIEWER IN

PROCEDURE AND EVIDENCE GOVERNING PHILIPPINE SHARI’A COURTS

Mangontawar M. Gubat

Second Edition

Copyright 2012, Mangontawar M. Gubat

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TABLE OF CONTENTS

Dedication

Preface to the Second Edition

Preface to the First Edition

INTRODUCTORY CHAPTER

PART A. GENERAL CONSIDERATIONS

The Courts

Jurisdiction

Action

Venue

PART B. THE SHARI'A COURTS

Shari'a Appellate Court

Shari'a District Courts

Shari'a Circuit Courts

The Special Rules of Procedure Governing the Shari'a Courts

PART I GENERAL PROCEDURES.

Section 1. Commencement of Actions

Section 2. Complaint

Section 3. Service of Summons

Section 4. Answer

Section 5. Failure to Answer

Section 6. Pre-trial

Section 7. Hearing or Trial

Section 8. Judgment

Section 9. Appeal

Section 10. Appeal to the Shari'a District Court

Section 11. Appeal to the Supreme Court

Section 12. Legal Opinion (Fatwa)

Section 13. Pleadings and Motions Disallowed

PART II. OATH (YAMIN)

Section 14. Administration of Oath

Section 15. Mutual Oath (Tahalif)

Section 16. Mutual Imprecation (Li'an)

PART III. SUPPLEMENTAL PROCEEDINGS

Section 17. Suppletory Rule in Civil Cases

Section 18. Suppletory Rule in Special Offenses

PART IV. ARBITRATION PROCEEDINGS

Section 19. Agama Arbitration, how conducted

Section 20. Effectivity.

About the Author

Other Books by the Author at Smashwords

This edition is dedicated to my parents

Hadji Fahad Mabandes Alonto Gubat

and

Hadja Nasriyyah Matara Mapasang Domaub

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PREFACE TO THE SECOND EDITION

In the name of God, the Most Compassionate, the Most Merciful.

The first edition of this book was entitled Reviewer in Islamic Procedure and Evidence. My decision to name the work as such was due to the fact that one of the tests in the Philippine shari’a bar is called Islamic Procedure and Evidence.

Because the citations in this work are not entirely of Islamic origin but partly of Philippine procedural law, I have decided to change the title for fear that I might do a grave disservice to the Islamic faith. I am afraid I have attributed unto Islamic law what it is not. Thus, I seek refuge to the Almighty God and seek His forgiveness for the mistakes that I have committed in the first edition, and for those that I may commit in the present one.

It is because of that grievous fear that I had foregone the reprinting of this work since it went out of circulation. But recently I have realized that this work may still be needed by candidates to the special shari’a bar examinations as well as shari’a students. In order to overcome that fear, I felt that a renaming of the work is appropriate.

In coming out with this revised edition, I have considered few decisions of the Supreme Court involving the Shari’a courts. The appendices in the original edition were discarded in view of the facility by which students can access local legislations.

I thank the Almighty Creator for giving me the will, courage and strength to come up with this edition.

Mangontawar M. Gubat

July 31, 2012

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PREFACE TO THE FIRST EDITION

At a time when my initial work entitled "The Special Rules of Procedure Governing the Shari'a Courts (Ijra-at Al Mahakim Al Shariah) Annotated" has still to pass the test of time, there were suggestions I received to convert it into a reviewer. I would, as I did, take those suggestions as mere passing compliments which indicate no more than a public patronage of my humble work. For, indeed, even students of the King Faisal Center for Arabic, Islamic and Asian Studies find the work a helpful reference material, if not a textbook, in one of their undergraduate shari'a courses.

With the periodic administration of the special Shari'a bar examinations by the Supreme Court of the Philippines at biennial interval and the absence of a comprehensive review material on Islamic Procedure and Evidence, such a benevolent advice deserves consideration.

This review material is a virtual transformation of my work into a Question and Answer form. However, innovations brought about by the 1997 Rules of Civil Procedure adopted by the Supreme Court on April 8, 1997 are taken into consideration. As an added feature, suggested answers to Shari'a bar questions in Procedure and Evidence are incorporated herein to give prospective candidates the vicarious feeling of an actual bar examination. The Code of Muslim Personal Laws, pertinent provisions of the Organic Act for the Autonomous Region in Muslim Mindanao, and relevant circulars of the Supreme Court are included in this meager volume as appendices.

In passing, I do not lay claim to any credit attributable to this review material. Any such credit belongs to the legal draftsmen who set out the law, to the great minds of the bench who interpreted and applied it, to the legal authorities whose works guided me in understanding the law, and, finally, to the Almighty who has the monopoly of knowledge. However, errors from misconstruction or inaccurate presentation of the law, jurisprudence and opinions are mine alone.

It is my fervent hope that this work, like its predecessor, will fill the needs of shari'a students, practitioners, judges, and candidates to the Shari'a Bar.

Finally, I wish to express my profound thanks and gratitude to President Juanito Fontelera and Executive Vice-President Dominador Buhain ofthe REX Group of Companies as well as to Ma. Teresa V. Abaca, Head of its Legal Editorial Office, who opened the gate for this humble work to see the light of public circulation.

Mangontawar M. Gubat

03 April 1997

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INTRODUCTORY CHAPTER

PART A

GENERAL CONSIDERATIONS

Q: Define procedure. (1997, 2001 Shari’a Bar) What is law of procedure?

ANS: It is the body of rules that governs or provides the framework of the judicial process (Cound, et al., Civil Procedure, 4th ed., p. 14). It is that which prescribes the method of enforcing rights or obtains redress for their invasion. (Bustos vs. Lucero, 81 Phil 650).

Q: Distinguish rules of procedure from substantive law. (1997, 2001 Shari’a Bar)

ANS: As a general rule, laws which fix the duties, establish rights and responsibilities among and for persons, natural or otherwise, are ‘substantive laws’, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are ‘procedural laws’ or ‘rules of procedure’ (Black’s Law Dictionary, 6th ed., 1990, p. 1203).

Q: How should rules of procedure be construed and why? (1991, 1997, 2001 Shari'a Bar)

ANS: Rules of procedure should be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1, Rules of Court) The rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided (Piczon vs. Court of Appeals, G.R. 76378-81, Sept. 24, 1990). The general object of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is created not to hinder and delay but to facilitate and promote the administration of justice (I Moran, p. 115, citing Udanv. Amon, 23 SCRA 837; MacEntee vs. Manotok, 3 SCRA 272).

Q: Define procedure and distinguish it from evidence. (1991 Shari'a Bar)

ANS: Procedure is that which prescribes method of enforcing rights or obtaining redress for their invasion (Black’s Law Dictionary, 6th ed., 1990, p. 1203).

Procedure and evidence are distinguished as follows:

a) Broadly speaking, procedure, being remedial in nature and not substantive law, includes evidence; whereas evidence is fundamentally a procedural law;

b) Rule of procedure is the means by which the power or authority of a court to hear and decide a class of cases is put to action. (Garcia vs. De Jesus, 206 SCRA 779,788; Manila Railroad Co. vs. Attorney-General, 20 Phil 523) whereas evidence is the mode and manner of proving competent facts in a judicial proceeding. (Bustos vs. Lucero, Phil 640)

c) In the Shari'a courts, its procedure shall be supplemented by the Rules of Court of the Philippines; whereas evidence shall be governed by sources of Muslim law on evidence. (Section 17, Special Rules)

Q: What is the statutory basis of the Special Rules of Procedure Governing the Shari’a Courts (Ijra-at Al Mahakim Al Shariah)?

ANS: The Special Rules of Procedure Governing the Shari’a Courts was promulgated by the Supreme Court pursuant to Articles 148 and 158 of the Code of Muslim Personal Laws which provide:

The Shari’a District Courts (and the Shari’a Circuit Courts) shall be governed by such special rules of procedure as the Supreme Court may promulgate.

Moreover, Section 12, Article IX of RA 6734 provides that [P]roceedings in the Shari’ah Appellate Court and in the Shari’ah lower courts as are established in the Autonomous Region shall be governed by such special rules as the Supreme Court may promulgate.

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The Courts

Q: Define court.

ANS: A court is an organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice (Black's Law Dictionary).

Q: Is the word courts synonymous with judges?

ANS: Yes. The words courts and judges are used synonymously and interchangeably, generally speaking. In ordinary parlance, judges are spoken of as courts and courts are referred to when the person means the judge only. It is common for laymen, lawyers and judges, as well as the law, to use these terms interchangeably. But there is an important distinction between the court as an entity, and the person who occupies the position of judge .Courts may exist without a judge. There may be a judge without a court ( I Moran citing Pamintuan vs. Lorente, 29 Phil 346).

Q: What are the classifications of courts in the Philippines?

ANS: The classifications of courts in the Philippines are:

A. According to their nature and extent of jurisdiction:

(1) Court of general jurisdiction, one which has the power to adjudicate all controversies which may be brought before it within the legal bounds of rights and remedies except those expressly withheld from its plenary powers. Example: Regional Trial Courts.

(2) Court of limited or special jurisdiction, one whose power to adjudicate is confined to particular causes or can only be exercised under the limitations and circumstances prescribed by statute. Example: Shari'a Circuit Courts.

(3) Court of original jurisdiction, one which has the power to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Example: Shari'a District Courts.

(4) Court of appellate jurisdiction, one which has the authority to review the final order or judgment of a lower court with the power to modify, reverse, sustain or remand, or affirm the same. Example: Shari'a Appellate Court.

B. According to the principles on which they administer justice:

(1) Civil court, one which determines controversies between private persons.

(2) Criminal court, one which is charged with the administration of criminal laws, and the punishment of wrongs to the public (Black's Law Dictionary).

(3) Court martial, a military court pertaining to the executive department of the government for trying and punishing offenses committed by members of the armed forces.

(4) Admiralty court, one which has jurisdiction over admiralty and maritime matters.

(5) Juvenile court, one which has special jurisdiction, of a paternal nature, over delinquent and neglected children.

(6) Court of equity, one which has jurisdiction in equity, which administers justice and decides controversies in accordance with the rules, principles, and precedents of equity, and which follows the forms and procedures of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law. (Ibid.)

(7) Court of law, in a wide sense, any duly constituted tribunal administering the laws of the state or nation; in a narrower sense, a court proceeding according to the course of common law and governed by its rules and principles, as contrasted with a court of equity. (Ibid.)

(8) Ecclesiastical court, one which has jurisdiction over matters pertaining to the religion and ritual of the established church, and the rights, duties, and discipline of ecclesiastical persons as such. (Ibid.)

(9) Shari'a court, one which is charged with the administration of shari'a laws over Muslims.

C. According to the law creating them:

1) Constitutional court, one which owe its creation and existence from the Constitution. Ex: Supreme Court.

(2) Constitutionally-mandated court, one whose existence is provided for in the Constitution but its creation by statutory enactment. Ex: Sandiganbayan.

(3) Statutory court, one which is created and organized and with jurisdiction determined by statute. Ex: Municipal Trial Court.

D. According to their relation with other courts:

(1) Superior court, one which has the power to review, reverse, modify or affirm the order or judgment of a lower court.

(2) Inferior court, one whose order or judgment