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BOOK ONE
GENERAL PROVISIONS
PURPOSES OF
AND
TITLE
TITLE I.
Article 1. Title. -
THE
COnE
This decree shall be known as the
Laws
"Code of Muslim Personal
of the Philippines."
Notes/Comments
Source of Article.
Meaning
-
Code Commission
of Decree.
-
Decree
is
an ordinance
or edict
promulgated by civil or other authority.1 Thus, edict is a decree issued
by a sovereign or other authority; an authoritative
Purpose of Title. -
code which contain
proclamation
The Code is patterned from most modern
preliminary title providing for the general
principles of the law. By giving it a title as the Code of Muslim
Personal Laws of the Philippines,it is
given an identity that would
distinguishit from the other laws and provides an idea of what the
law is all about.
a
For the purpose of this work
and for
be referred to in short as the Muslim
or
Code,
brevity,it shall
the Code.
Concept of Muslim Law.
Muslim law (Sharia) refers
to all the ordinances and
regulations
principallyin the Quran and the Hadithgoverning Muslims as found
Muslims believe are revealed law from(prophetictradition)which
God or by God's divine
guidance that envisages a complete code of
moral conduct for the
guidance of mankind; a system of law
generally referred to as A
Shari'a.
-
Webster EncyclopediaUnabridge
Ibid., p. 453.
Dictionary,p.
376.
244 (uadelah@gmail.com)
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BOOK ONE
-
GENERAL PROVISIONS
Title I- Title and
Code Defined.
-
245
Purposesof the Code
Code has been
defined
as a
body of law
established by legislative authority of the state, and designed to
regulate completely, so far as a statute may, the subject to which it
relates.
Code of Muslim Personal Laws of the
Philippines. In
the legal sense, personal laws are those which
appertainsto person.
It is that which follows the person, as
distinguishedfrom the place
where the person may be.5 The Code of Muslim Personal Laws of
the Philippinesis a body of laws that treats of the
personal laws of
the Muslim in the Philippines, and provides for the administrative
machinery for its implementation. It applies only to Muslims in
matters relating to their personal status, matrimonial and
-
family
relations, succession and inheritance, and property relations between
spouses. Non-Muslim are not embraced in the law, except in those
cases provided by the Code; a body of law the principal, direct and
immediate object of which is the personal legal system of the Muslim
in the Philippines. In this regard, the governing principle of the Code
Commission in reviewing the Muslim Code was guided principally
by the fundamental criteria, among which is that; of the Islamic legal
system of the Philippines, which is considered a complete system
comprising civil, criminal, commercial, political, international and
purely religious laws, only those that are fundamentally personal in
nature were to be codified.s
Historical Background of the Code of Muslim Personal
Laws in the Philippines.
-
The present Code of Muslim Personal
Laws of the Philippines is the result of Islamic influence that was
first introduced in Sulu by the
earlyMuslimmissionaries.The
period is believed to be about 710 A.H. (after Hijra) or 1310 A.D. on
the basis of the inscriptions in Arabic alphabet found in the tomb of
Tuan Magbalu Rajah Saginda at Bud (Mount) Datu, a place some
kilometers from Jolo, the capital town of Sulu. This is as far as
earlier
ne available historical artifact data is concerned, italthough
is believed that
Delore that, a certain "Tuan Mushaika came and
were not yet Muslims.
time the inhabitants of Sulu islands
at that
1s
not also certain whether Tuan Mashaika was a Muslim, though
Bouvier's Law Dictionary,
(197
73).
nck
and
Fingalls,
Vol. I, p. 507.
Comprehensive
Standard
International
BallantineLaw Dictionary,960 (1948the President
d
"Report of the Code Commission to
August 29, 1975.
Dictionary, 942
of the Philippines,
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246
COMMENTARIESON THE cODE OF MUSLIM
OF THE PHILIPPINES
PERSONAILLAWS
WITH
JURISPRUDENCE& SPECIAL PROCEDURE
judging from the names of his reported children Tuan
Hajim, and
Aisha, he must have been a Muslim. Thereafter, another
Arabian
missionary named Karum-ul-Makidum,arrived in Sumawil,
Sul
It is said that he built a mosque and
difterent
people
rom
parts
of the islands flocked to him. Then he was
followed by Sayyid
Abu
Bakr. The most notable of these early Muslim missionaries
is Sayvid
Abu Bakr who came all the way from Arabia,
passing
Sumatra, Malacca, then to Sulu. His mission, according to through
sources
was ignited by an enthusiasm to
preach the doctrine of Abu Isha
which were embodied in a book called "Dar-ul-Mazlum"
(the House
of the Oppressed).
Accordingto the "Sarsila" (historicaltraditions)of the
"Tausug"
the early natives of Jolo, an Arabian
missionarySayyid Abu Bakr
believed to have descended
from the family of the Holy
Prophet of
Islam
came
cause
of Islam, and age
to
Buansa, Jolo, the
seat of
government
island's
local chieftain Rajah
The
Baginda.
of Sayyid Abu Bakr
knowledge
about Islam earned him the admiration of
the Rajah who gave his
daughter Lady Paramisuli in marriage to the former. In due
time,
because of the competence of Sayyid Abu Bakr in
preventedthe
of the
promoting the
Rajah from administeringthe
affairs of the state, and having no son he made
Sayyid Abu Bakr his
successor giving him the title Paduka Mahasari
Maulana al-Sultan
al-Shariful Hashim and vested him with the
powers and authority
as the new ruler of the Islamic theocratic
state. The Tausug refer to
him as Sharif al Hashimite,meaning the Hashimite
Sharif or noble.
Abu Bakr established Madrasas (Islamic
schools) and Mosque. He
decrees laws according to Islamic injunctions and settled
cases in
accordance with laws. He is said to be a famed
jurist. He acted as the
natives spiritual and temporaryleader.s
The influence of Islam and the Islamic law in
Sulu spread to
the other islands in the archipelago,that more
than two centuries
later in 1570, when the Spaniardscolonizer under
de
Miguel Lopez
Legazpi arrived in this country, they found a noticeable infuence ot
the religion of Islam among the natives, a religion practiced by the
Moors of Spain as Spain herself was under the Muslim Moors for
over seven
hundred years, and
consequentlythe Spanish historian
"Salsila,by Sulu Cultural Society.
Saranjanis, Islamic Penetration in Mindanao and Sulu, Mindanao Journi
Vol. III, No. 3-4, p. 33; Successos de las Islas
Filipinas,by Antonio de Morza, Hetana
edition.
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BOOK ONE
-
GENERAL PROVISIONs
Title I- Title and
Legaspi, called
the natives of the
247
Purposes of the Code
islands Moro after the Arab
Moors
of Mauritania, Morocco, and Spain.
In
accordance with
the
tradition of Islam as started and
Arabs land, the Sultans or
Rajahs, as heads of the
Muslim communities of these islands then, were
the
upholders of the Islamic law or Muslim law. They protectorsand
appoint Qadi,
or Chief Judge (called Tuan Kali in the native
an
dialect),
Arab learned in lslamic law who serves as adviser in usually
matters of
legislation of all important laws. On the other hand, some datus
or local chieftains stood as
protectors of customarylaw, since they
to
stood gain from it. Moreover, some datus had enough Islamic
developed in the
consciousness or sophistication that led them to moderate differences
between customary law and the Divine Law.
Thus,
in order to
guide
the qadis, as well as their subjects
for whom customary laws and the Holy law in some areas were
intermingled without basis for distinction, the sultans tried to codify
selective aspects of the personallaws. It is said that Azimuddin,
a learned Sultan of Sulu, tried such codification around the 1740s.
But no evidence of this work seems to have survived.
Certainly,
the Sulu Sultan Pulalun (Fadl) around 1850 had one prepared and
adhered closely to the classical texts especially on punishments.
His successor, Jamal-ul-Azam (reigned 1862-1881), had another
some
code prepared where punishments were relatively more moderate.
This code was accepted by the leading datus and other officials of
the state in 1878 AD. It is sometime called "Diwan" (codex) of the
Sultan of Sulu. Another code based on this was drafted in 1902; but
t appears that it was not, for many political and social reasons, even
operatives. In Maguindanao, the qadis were guided by the Luwaran
consisting of 85 articles" (some consisting of various "sections,"
its bulk represented translated selections from Arabic books, one
of them being a 15th century law manual) but amended in some
details to make them practical in the context of local situations and
customs. Attached to most of these provisions are about 100 Arabic
marginal quotations taken from four Arabiec law manuals adhering
to the Shafi'i Madhab. The intention was to
erve as authoritative props to the provisions. It is calculated that
ne Luwaran was compiled in the middle of the 18th century. It was
make these quotations
quite universal
in Maguindanao
or Cotabato
area.
Book Guild,
p. 333.
Philippines,
Ceasar Adib Majul,
in the
Muslims
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UMPA
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aeeb Saleeby,History of Sulu, Filipiniana
Its provisions
Inc., 1965,
p. 152.
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248
COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWSs
OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURR
deal mainly with property, slaves, transactions, partnership, debts
marriage,
homicide,
or oaths, testimony,
1atureinheritance,
gifts,
wills, fines, and punishments.
divorce,
adulter
It does not deal
With other aspects of Islamic law such as rituals and moralities
With the coming of the American in 1898, came the establish.
ment of the American System of Government
y, the power of the Sultan to implement
and law. Consequent.
its laws began to wayer
especially with the introduction of the American system of law in
the islands. Immediately after the organization of the Moro province
in 1903, a careful study was made of the laws and customs of the
Moros" (Muslim Filipinos) with a view of determining whether"a
consistent sensible and humane code of law could be put in force,
Act No. 787 of the Philippine Commission was approved on June 1,
1903, enjoining that it shall be the duty of the Legislative Council
of the Moro province "to enact a law which shall collect and codify
the customary (adat) laws of the Moros (Muslim Filipinos); overa
period of one year," the council investigated and studied such laws
as it was able to make use of. Copies of the "Code of Laws for the
Moro people" and the "Moro Civil Laws" which were then in
force
in Sulu were sent to the council. However, the American
Military
Governor of the Moro Province Leonard Wood was
obviouslyunprepared because he claimed that "nothing has been found worthy
of
codification or imitation." The outright
rejections must have been
propelledby the conditions of the time. The Moro Province
Military
was then
saddled with administrative
aside
problems
from the fact that the
governmentdid not as yet comprehendthe
predicamentof the Muslims. Inspite of this cessation of their
vitalizingforce under an organized authority the Muslim
communities have continued to follow
their
law" as a
"personal
matter of internal communal
ordinance.
laws were passed such as Act
Consequently,
No.
1283 of June
13, 1905 amending Act 787,
for
the
providing
enactment of laws to
suit local conditions
among Moros (Muslims),and to cause
to conform
such laws
whenever practicableto their local
customs and usages,
And Act No. 2520 of the
Philippine
Commission,passed on April 3,
1915, Section 3 of the Act
authorizes
laws in civil cases
judges to modify Philippine
involving
Muslim
toms and
litigants to suit Muslim cus
practices.
in
Thus,
the
for its
the sanctio
ordinancehas not relied Muslim
upon the
some
1y
ot the
Communities,
coercive power and
government but rather the
autno
subtler influence of custou
Saleeby, Studies in Moro,
Guild,Najeeb
Manila, 1976,
History and Religion,
pp. 99-104.
FilipinianaBook
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BOOK ONE
GENERAL PROVISIONS
Title I- Title and Purposes of
the Code
-
249
and practices, the traditional respect for their leaders and the moral
force
ofMuslim
After
the
law.2
American
Commonwealth
government
in
the
Philippines and during the period of the Government of the Republic
of the Philippines,
some laws were enacted
recognizing
certain
aspect of the Filipino Muslim Personal Law among which are RA
No. 394, recognizing divorce among Muslims in accordance with
their customs and practices. Articles 78 and 79 of the new Civil Code
or Republic Act No. 386, recognizing
marriages
among Muslims or
mixed marriages between Muslim male and non-Muslim female
solemnized in accordance with Muslim customs, rites or practices;
both laws however,
were to be operatives
for a period of twenty
years, thereafter, the general law as provided in civil code regarding
marriage and divorce shall be the law to be observed the ultimate
aim being the subsequent assimilation to the general laws of the
Filipino Muslims;" and PD No. 410 of March 11, 1974, recognizing
Muslim ancestral lands, and many others all of which however are
laws of special and non-permanent applications, which in due time
will definitely give way to the general laws of the land which waas
the state ultimate aim. However, to take away from a people part of
their way of life handed from generation to generation is certainly
not easy with the Muslim Filipinos who continued to work that the
state recognizes their personal law.
It has always been the genuine
aspiration
of the Filipino
Muslims to have their personal laws recognized by the state. This
aspirations
was realized
when President
Ferdinand
E. Marcos
on August 13, 1973, signed Memorandum Order 730 creating a
Research Staff to prepare a preliminary of the draft proposed Code
of the Philippines Muslim Laws and its
implementing agencies.
Subsequently, on December 23, 1974, the President issued EO No.
442, which created the Presidential Commission to review the Code
of
Filipino Muslim Laws, directingfurther
that, in the performance
of ts task, it shall likewise consider the draft of the "Proposed Code
of the Administration of the Philippine Muslim Laws of 1974,"
ubmitted by the Research Staff. Consequently, on February 4,
1977, PresidentialDecree 1083, otherwise known as the "Code of
Muslim Personal Laws of the Philippines" was signed into law by
then President Ferdinand E. Marcos,
thereby finally giving reality
he Primer, Proposed Code on the Adm. of Phil. Muslim Laws, by the Re-
Bearch Staff, p. 5.
13Art. 78, NCC, par. 2.
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PERSONAL LAWS
COMMENTARIES ON THE CODE OF MUSLIM
JURISPRUDENCE & SPECIAL
OF THE PHILIPPINES WITH
250
PROCEnI
to have their
aspiration of the Filipino Muslims
and applied to them.
personal laws recognized, enforced
to the
URE
stem of
svsta
The arrangementof the Mut
Arrangement of the Code.
Code of the Philippin
Code is patterned after the new Civil
or topics, each of whick
is grouped into five general headings
-
subdivided into different titles, some of which are in turn fiure
iher
into sections.
Subdivided into chapters and some chapters
Book I of the Muslim Code contains the General Provisio
isions;
it has the following titles; Title I, which is the title and purposes of
of
the Code, and Title II, the construction of the code and definition e
terms.
Book II relates to Persons and Family Relations. It is made up
of seven titles; Title I deals with Civil Personality (saksiya madani.
ya) and Title II covering marriage and divorce. Title I consist of
three chapters: Chapter One is the applicability clause; Chapter
Two Involves marriage (nikah), which in turn consist of six sections8,
Section One provides the requisites of marriage; Section Two en
merates the prohibited marriages; Section Three deals with subse
quent marriage; Section Four gives the batil and fasid marriages
Section Five the rights and obligation between spouses and Section
Six treats the property relations between spouses.
Chapter Three
deals with divorce (talaq). It has two sections under it. Section One
refers to the nature and form of divorce; while Section Two is about
idda (waitingperiod).Title Ill concerns
paternityand filiation;Title
IV on support(nafaga);and Title V on
parental authority.The latter
consist of two chapters.Chapter One is about the nature and effects
of divorce; and Chapter Two relates to
guardianship.The last title
in Book II is about Muslim Civil
Registry.It consist of two chapters.
One
is
about
Chapter
registrationof
and
marriage
Chapter Two concerns acts affecting civil status.
conversion;an
Book III of the Muslim Code deals with
the law on successi0
and inheritance.It is made
up of four titles. Title I are the
genera
provisions;Title II deals with testamentarysuccession;the latter
a
one chapter
dealingwith wills; Title III deals with legal successio
This too has also two
chapters; Chapter one deals
shares, a
ent
ChapterTwo about residuaryheirs; and Title IV is with
about settleme
and partition of estate.
Book IV of the Muslim Code deals
with the
settlement of disputes and the rendition
of legal opinions.
three titles
underit.
Title I
provides for
the Sharia courts;
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BOOK ONE
GENERAL PROVISIONS
Title I- Title and Purposes
of the Code
-
251
are two chapters under this title. Chapter One relates to the Shari'a
District Courts, Title II relates to the Agama Arbitration
and Title IIl is about the jurisconsult
Council;
in Islamic Law.
Book V of the Muslim Code provides for the miscellaneous
and
transitory provision. There are six titles in it as follows: Title I which
gives the Muslim Holidays; Title II states what consist of Muslim
communal property; Title Il states what are customary contracts;
Title IV relates to conversion; Title V the penal provisions.
Under
this latter title, there are two chapters: Chapter One, relating to
bigamy; and Chapter Two enumerates the specific offenses under
the code; and, finally, Title VI is the transitory and final provisions.
Language of the Muslim Code. - The Muslim Code was
written in the English language and signed into law and implement
ed in that language. In its interpretation
and construction, there-
fore, the English text shall prevail over any translation. It should be
noted, however, that where the provision of the law was lifted from
the primary text of Muslim law, the Quran or the Hadith, or other
primary sources of Muslim law, and literally
translated
into the
English language which do not have exactly the same meaning, such
provisions must be translated whenever practicable according to its
original Arabic text; otherwise, the rule on statutory construction
that the spirit of the original text should be considered and applied.
Art. 2. Purpose ofCode.- Pursuant to Section II of Article
XV of the Constitution of the PhilipPpines, which provides
that "The State shall consider the customs, traditions,
beliefs and interests of national cultural communities in the
formulation of state policies," this code:
Recognizes the legal system of the Muslims in the
Philippines as part of the law of the land;
(a)
(b)
Codifies Muslim personal laws; and
(c)
Provides
for
an
effective
administration
and
en-
forcement of Muslim personal laws among Muslimns.
Notes/Comments
Sources of Article.
,Code Commission,
p.
8,
-
with
Code Commission.
regard
of the Philippines
to the New Civil Code
provisionsin Spanish text translated into English.
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252
OF
CoMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS
THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE
Constitutional Basis of the Code.- Pursuant to SectionIlot
Article XV of the 1973 Constitution of the Philippines, which provides
that: "The State shall consider the customs,
traditions,beliefs and
interests of national cultural communities in the formulation of stata
policies," the Muslim Personal Law of the Philippines was prepared
signed and approved into law on February 4, 1977, as Presidentiaj
Decree No. 1083. The present constitution of 1987, Section 22, Art
II, on Declaration of Principles and State Policies also provides, and
quote: "The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and
development." This constitutional provision likewise gives sanction
to the present Muslim Code.
Objectives of the State in Providing for P.D. 1083.
The preamble of the Muslim Code (P.D. 1083) states the
general
objectivesof the state as enunciated in the above cited constitutional
provision in making the law which are, to state:
1.
To
promote the advancement and effective participationof the
National Cultural Communities (in general, and the
Filipino
Muslim in
particular) in
the
building of the
New Society, by
considering their customs, traditions, beliefs and interests in
the formulation and
2
3.
implementationof the state policies
law and its principles of equity and
justice,
To make Islamic
to which the Muslim Filipino communities adhere, provide for
the fuller development of said communities in relation to the
search for harmonious relations of all segments of the Filipino
nation to enhance national unity;
To attain a more ordered life among them (Filipino Muslim);
and
4.
To
strengthen all
the
ethno-linguisticcommunities in the Phil
ippines(particularlythe FilipinoMuslim) within the context of
their respective ways of life in order to bring about a cumula
tive result satisfying the requirements of national solidarity
and social justice.
n order to achieve those objectives, the state has in this Muslm
Code (P.D. 1083) recognized the legal system of the Muslims in the
Phiippines as part of the law of the land and thereby made Islamie
institution in the Muslim communities more effective; codifiea the
15Preambleof P.D. 1083.
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BOOK ONE -
GENERAL PRoVISIONS
253
Title I- Title and Purposes of the Code
Muslim personal
laws; and provided an administrative
machinery
for an effective administration and enforcement of the Muslim
Personal law among the Muslims in the Philippines.
Effects
Professor
of Recognition
Esteban
of Muslim
Legal
System.
B. Bautista of the U.P. Law Center who was a
member of the Presidential Code Commission that drafted the
Muslim Code (P.D. 1083) made the following observations regarding
the effects of the recognition of the Muslim Legal System. "As a result
of its recognition as part of the law of the land, the Filipino Muslimn's
entire legal system, not just what are known as persona
be observed,
whenever
laws, must
and wherever it may apply, throughout
the country and may now be enforced, like other Philippine Laws,
with full sanction of the State. It does not mean, however, that it
is an independent legal system that will exist and operate without
regard to other laws of the national interest. Like the other laws,
the Muslim legal system is subject to the constitution," Therefore,
anything in it that is contrary to the Constitution is not deemed
recognized as part of the law of the nation. Even such of it, especially
custom law (ada), is not in accord with the Code, public order, public
policy and public interest will not be given effect."s
Effects on Other Laws of Muslim Code, -
The learned
Professor Esteban B. Bautista went further to say: "Nor is it true,
contrary to the now current misconception or speculation, that the
Muslims will now be governed solely by their legal system and be
exempt from observing other Philippine laws. Muslims will continue
to be governed by the laws of general application like the Revised
Penal Code (except, in certain cases, as to bigamy)" and other Penal
laws, the Land Registration Act, the Public Land Act, the Mining
law, the Forestry law, the Fisheries Act, the Land Transportation
Code, the Tax and Custom law, the Commercial laws, the Civil
Service law, all public laws in fact, and many others. The Civil Code
itself will continue to be applied to Muslims, except insofar as it
relates to persons and family relations (i.e., inheritance). (Indeed,
even with
respect to those matters, the Civil Code is expressly given
suppletory application)." Thus, if an ejectment suit should arise
Art. 2, P.D. 1083.
"Arts.5 and 6, P.D. 1083.
Prof. Esteban B. Bautista, An Introduction to the Code of Muslim Personal
Laws of the
Philippines,p. 3.
1Art. 180, P.D. 1083.
Arts. 38 and 187, P.D. 1083.
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254
COMMENTARIESON THE CODE OF MUSLIM PERSONAL LAWS
OF THE PHILIPPINES WITH JURISPRUDENCE& SPECIAL
PROCEDURE
between two Muslims or between Muslims and non-Muslims, th
Civil Code or any other applicable law would apply. If the dispute
refers to a mining claim or to a piece of land, the Mining law or the
Land Registration Act or Public Land Act, as the case may be, will
govern."21
Governing
Principles
Muslim Personal Laws. -
Observed
in the Codification
of
In reviewing the Proposed Code on the
Administration of Philippine Muslim Laws of 1974 prepared by the
Research Staff, as well as in the drafting of the "Code of Muslim
Personal Laws of the Philippines," the Commission was guided
principally by the following fundamental criteria, namely:
Of the Islamic Legal System, which is considered a complete
1.
system comprising civil, criminal, commercial, political, international and purely religious laws, only those that are
fundamentally personal in nature were to be codified;
Of the Personal laws, those relative to acts, the practice of which
are absolute duties under Muslim law were to be included,
2.
and those which according to Muslim law are forbidden and
demand unconditional
punishment were to remain prohibited;
Where the provisions of the law on certain subjects were too
3.
complicated for a Code, only the fundamental principles were
to be stated, and the details left to the judges for proper imple
mentation;
4.
No precept, fundamental though it might be, was to be
incorporated in the Code where it appeared to be contrary to
the principles of the Constitution of the Philippines; and
5
No precept was to be included unless it was based on the
principles of Islamic law, as expounded by the four orthodox
(Sunni) school.2
From the aforequoted
codificationof the
governing
principles
Muslim Code, it will thus be
adopted
seen
in the
that only the
purely personal laws of the Filipino Muslim were codified. However,
it does not mean that it has included all Muslim personal laws in
the present
Laws
p.6,
Code. The Code Commission
that drafted
the Code
Prof Esteban B. Bautista, An Introduction to the Code of Muslim Personal
of the
Philippines,pp.
3-4.
Report of the Pres. Code Commission
to the President of the Philippine
dated August 29, 1975.
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BOOK ONE -
GENERAL PROVISIONS
255
Title I- Title and Purposes of the Code
reported: "The Commission
beyond improvement."
is, however, aware that this is not
In other words, the Code did not codify all the
elements of Islamic law that applies to personal and family law, and
it still allows the adoption of other Muslim personal laws which are
not included in the Code. In brief, the Code is not exclusive in details
regarding Muslim Personal Laws. Thus, the Code itself, particularly
Article 4 thereof, allows the Shari'a Courts created pursuant to this
Code to take into consideration the primary sources of Muslim Law)
in the construction
and interpretation
of the Code,
13(3) likewise provides that in matters mentioned
and Article
therein,
such
as marriage, divorce, etc., the Code and other Muslim laws shall
govern.25
Administration
administrative
and Enforcement
of Muslim Code. -
The
machinery created under the Muslim Code for its
effective implementation and enforcement are the Shari'a District
Courts, the Shari'a Circuit Courts, the Agama Arbitration Council
and the Jurisconsult in Islamic Law, the Muslim Civil Registry un-
der the Shari'a District and Circuit Courts. The Supreme Court
has provided a Special Rules of Procedure lira-at Al Mahakim Al
Shari'a) for the Shari'a Courts placing the Shari'a Courts and the
personnel under its administrative supervision,
thereby securing
them just like the other courts of the state in the discharge of their
functions in order to make the administration and enforcement of
the Muslim Code more effective.
In order to ensure observance and compliance of its provisions
the Code has also provided some specific offenses in Articles 181 to
185, and providing penalties therefore in case of violation.
2bid., p.9.
4Art. 4, P.D. 1083
25Art. 13(3), P.D. 1083.
Art. 137, P.D. 1083.
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TITLE II. cONSTRUCTION OF THE CODE
AND DEFINITIONS OF TERMS
Art. 3. Conflict of Provisions.
(1) In case of conflict
between any provision of this Code and aws of general
-
application, the former shall prevail.
(2)
Should the conflict be between any provision of
this Code and special laws or laws of local application,
the
latter shall be liberally construed in order to carry out the
former.
(3) The provisions of this Code shall be applicable only
to Muslims and nothing herein shall be construed to
operate
to the prejudice of a non-Muslim.
Notes/Comments
Sources of Article.
-
Legal Hermeneutic;
Sec. 4, Proposed
Code of 1974 for the Administration of the Muslim Law; Code
Commission.
Rules
of Construction
Any Provision
Application.
-
in Case of Conflict
Between
of the Muslim Code and Laws of General
The
first
situation
is
a
conflict
between
provision of the Muslim Code and laws of general application.
any
By
laws of general application or general laws are those which apply to
and operate uniformly upon all members of any class of persons, pla
ces or things, requiring legislation peculiar to themselves in matter
covered by the laws,' e.g., the Revised Penal Code and the New Civil
Code. Special laws are those the principal, direct and immediate
purpose is to regulate a particular subject, object, or for a speca
purpose, e.g., the Muslim Code. A general law is distinguished from
a special law like the Muslim
Code, in that generally,the former
applies to all persons
within the state or community,
while in tne
ocal
and
Bouvier's Law Dictionary, Vol. I, p. 134; cit. Binney Restrictions upon
Special Legislation;Quoted in Com. V. State Treasurer, 29 Pa. Co. Ct. R. dio
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BOOK ONE -
GENERAL PROVISIONS
257
Title II- Construction of the Code and Definitions of Terms
case of the latter, it deals with the affairs of a specific or particular
group or class or interest of a people within the state or community.
The rule is in case of conflict between any provision of the Muslim
Code and laws of general application, the former shall prevail.
Briefly stated, the Muslim Code being a special law, shall prevail
over a general law. For example, under Art. 340 of the Revised Penal
Code which is a law of general application, contracting a subsequent
marriage while the former marriage subsist is prohibited and
punishable as a crime of bigamy. Under Article 27 of the Muslim
Code which is a special law, a subsequent marriage so long as it
complies with the requirements provided for its validity under the
Muslim Code is valid, the latter being a special law, prevails over
the former which is a general law. It has been held that in case of
conflict between a general law and a special law, the latter must
prevail as an exception to the former regardless of the dates of their
enactments.?
Same; Rule of Construction in Case of Conflict Between
the Muslim Code and Another Special Law or Laws of
Preferential
Application.
-
The second situation
contemplates
of two rules. The first is conflict between the provision of the Muslim
Code and laws of local application. By laws of local application are
those laws which refers to persons or things or particular persons
or things of a class or which operates on or over a portion of a class
instead of all class in a certain jurisdiction.3 In case of conflict
between the provision of the Muslim Code and a special law, the
latter shall be liberally construed in order to carry out the former.
By liberal construction mean not that the words should be forced out
of their natural meaning, but simply they should receive a fair and
reasonable interpretation
with respect to the objects and purposes
of the instrument. For example, Presidential Decree 794 recognizes
divorce among Filipino Muslims in accordance with their customs
and practices, however, it did not specify the grounds for granting
such divorce. Whereas, the provision of the Muslim Code, Articles 45
to 52 ofthe Muslim Code enumerates the grounds for granting divorce
among Muslim Filipino. In case of conflict between the provisions of
the former law and the provision of the latter law, the former shall
be liberally construed in favor of the provision of the Muslim Code.
The same rule is true regarding conflict between the provision of
Solid Homes v. Reyes, G.R. Nos. 74226-27,July 27, 1989
Tbid., Vol. IL, p. 3130; Black's Law Dictionary, p. 939, 6th ed.
Tbid., p. 1964, US 426, II L. Ed. 326.
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258
COMMENTARIESON THE CODEOF MUSLIMPERSONALLAWS
OF THE
PHILIPPINES WITH JURISPRUDENCE& SPECIAL
the Muslim Code and the provisionof a law of local
PROCEDURE
application;e
Under the Indigenous People's Act of 1997, R.A. No. 8371 there
some provisions on ancestral domain. The Muslim Code in Articla
173, likewise defines what are communal property which includs
ancestral property. In case of conflict between the Muslim Coda
and the IndigenousPeople'sAct of 1997, the
rule under the Muslim
Code is the provision of a law of local application shallbe liberally
construed in order to carry out the provision of Muslim Code. This
evident from Section 52(a) of R.A. No. 8371.
is
Same: Construction;
-
Code Applicable Only to Muslim
The third paragraph of Art. 13 of the Code should have
been
worded as follows: "The provisionsof this Code shall be applicable
only to Muslim and except as otherwise provided herein, nothino
shall be construed to operate to the prejudice of non-Muslim"The
reason for this is that it would not be appropriated to
construe that
"the provisionsof this Code shall be applicableonly to Muslims
and
nothingtherein shall be construed to the prejudice of non-Muslim."
There are many instances under the Code when its
provisionsshall
apply to non-Muslim. For example, under Art. 13, the
provision of
the Code on marriage and divorce shall
to
a
apply
where the
male is a Muslim and the female is non-Muslimcouple
whose marriage
was solemnizedin accordancewith
the Muslim Law or this Code in
any part of the Philippines; Art. 93(c), a
non-Muslimis disqualified
to inherit from a Muslim
relation; Art. 107, a non-Muslimwho is
disqualifiedto inherit from a Muslim relation is entitled
however, to
a one third of what he or
she would have receive from the
decendent
estate where it not for such
Arts.
disqualification;"
146, 156, 164
and 168, the non-Muslim officers and
other personnels of the
Shari'a District Courts, the Shari'a Circuit
Courts, and the Ofice
of the Jurisconsult,will have to
perform the duties of their office
as provided under the
Muslim Code; Arts. 169 to 172 on Muslim
legal holidays, non-Muslim employers and
communities in the Philippinesare bound toemployees in Muslim
observe them. Arts.
176 to 179 on conversion would
involve non-Muslims accepting
Islam as their faith;" and Arts. 181
and 185 on specific offenseswill
apply to non-Muslimwho would be found
of
them.
guilty violating
Art. 3(3), P.D. 1083.
Art. 13, P.D. 1083.
2nd Sentence of Art.
107, P.D. 1083.
Arts. 146, 156, 164,
P.D. 1083.
168,
Arts. 169 to 172, P.D.
1083.
10Arts. 176, 179, P.D. 1083.
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BOOK ONE -
GENERAL PROVISIONS
Title II Construction of the Code and Definitions of Terms
259
Who Are Those Muslim Covered by the Muslim Code.
-The term Muslim is given a definite meaning in this Code as:
a person who testifies to the oneness of God and the Prophethood
of Muhammad (P.B.U.H) and professes Islam."
Muslim in the
Philippines may be classified into: (1) those born of Muslim Fili
pino parents; (2) those who were converted to Islam who are now
popularly called "Convertslam" (convert to Islam) or Balik Islam
(one who has returned to Islam),and (3) those foreigners or aliens
who are Muslims residing in the Philippines.
In the case of those whose parents are Muslim Filipinos, the
Code applies specifically to them. There is no accurate official cen-
sus made of the total Muslim Filipino population in the country at
present. It is believed to be approximately over five million who are
distributed throughout the nation but the greatest number of them
are generally distributed into thirteen (13) ethnic groups and scattered over the islands of Mindanao, Sulu, Basilan, and Tawi-Tawi
archipelago, and the island of Palawan, South of Puerto Princesa,
as follows: (1) Maguindanao (largest group), in Cotabato Region; (2)
Tausug (second largest group), in Sulu and Tawi-Tawi archipelago,
mainly in Jolo; (3) Badjaos, Bangigih, Samal in Zamboanga, Basilan and Tawi-Tawi and Sulu Archipelago; (4) Jama Mapun (Samal,
Cagayan), in Cagayan de Sulu now called Cagayan de Tawi-Tawi,
now Mapun Municipality, when Tawi-Tawi was created into another province separate from Sulu); (5) Kalibugan,
in Zamboanga del
Sur; (6) Sangil, a small group in Sarangani island; (7) Yakan, in
Basilan; (8) Ilanun, (third largest group) from Buldon, Parang, Maguindanao Province, North along the shores of Illana Bay in Lanao
del Sur; (9) Maranao, in Lanao Region; (10) Kalagan (kin of Tagakaolo), in Davao Provinces, on the shore of Davao gulf; (11) Palawani
in Southern Palawan; and (12) Molbog, a small group in Balabac
Island, Southern Palawan. Due to the migration of the Muslims to
Visayas and Luzon, Muslims are now found all throughout the country.
In the case of the Muslim converts, the Muslim Code shall apply
to them from the moment of the registration
of the act of conversion
with the Muslim District or Circuit Civil Registrar." Non-Muslim
spouses converted to Islam, the provision of the Code shall apply
to them from the moment of their marriage,
since conversion
Art. 7(g), P.D. 1083.
12Art. 176, P.D.
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COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS
262
OF THE PHILIPPINES WITH JURISPRUDENCE& SPECLAL
PROCEDURE
of the Muslim law which are the Quran, Hadith
(tradition
of the Prophet of Islam, ljma and Qiyas are to be considered on)
(Lat
consideratum est per curiam) in giving its judgment.
sources
Standard Treatises and Works on Muslim Law.
Standard treatises and works on Muslim law shall have
persuasive
weight upon the court and although the court is not bound to
follow them, nevertheless on the strength of their merit as
just, sound, or equitable, it may make use of them as aids inbeing
the
interpretationor
construction of the Code or other Muslim law
in
order to ascertain the meaning of the terminologyof the law
or the
aim of the lawmaker in enactingit.
Rules in Case of Conflict
Law.
-
Among the Sources
When there exist in the Shari'a
later in
Muslim
evidence, one of which
refutes what other
1.
of
establishes,the followingcourses are possible.
Where both evidences are of equal
strength, but one is
time, the latter repeals the former, except: (a) attribute of
Allah, and (b) a provision connected with
negates the possibilitiesof time limitation
a
circumstances which
abrogation.
of equal strength,but it is not known
2.
-
Both evidences are
which is the later. Attempt should be made at
reconciliationby
references to their value, subject-matteror time; if not in the
Quran,
reference should be made to Sunna; if none, to
and
the
Qiyas
saying
of the companions
Where one of the evidence is stronger as
against another
evidence. In the case of inequality,the
stronger evidence is always
preferredto the weaker. But in all cases, the text must be considered
with the utmost respect. However this classical
text must not be
followed blindly. But it must also be remembered at
the same time
that the Muslim jurisprudenceis not a static
It is a
3.
jurisprudence.
jurisprudencewhich has grown and developed
with time, and the
quotationsfrom Muslim text could be so applied as to suit modern
circumstances and condition.
It is also dangerousto pick out illustrations
out of their context
and apply them
literally.
Ilustrations merely illustrate
should try to do is to deduce the
illustration.
a
principle and
what the Court
principle which underlies the
When the judge is faced with a
conflict of opinions among
the jurists of
(in
civil
authority
cases in the Indo-Pakistan suo"
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Title II
ntinent),
BOOK ONE- GENERAL PROVISIONs
Constructionof the
it is for the
judge to
will follow and why.
Code and
Definitionsof Terms
263
decide for himself which
opinion he
However, the opinion which the presiding judge considers in
narticular circumstancesand adopts, it must be in accordance with
the norms of justice.
the
Where there is no unanimity.This will have the effect of
leaving
questionopen. Qadi is
of the
opinion that judge has
In consonance with the sources of Muslim
free choice.
law, the
courts in
administering Muslim law, should not, as a rule, attempt to put their
own construction on the Quran in
oppositionto the express ruling of
commentatorand fuqaha of great traditional and high authority."
However, the courts may in cases where there is no direct
authority available, use the texts of the Quran, the Hadith or ljma
by means of illustration,
or effective cause and Himat (wisdom)2
apply the genious of the law to changed circumstances keeping in
view of the
policy of the law.
Ilustrative Cases:
In the case of Khurshid Jan (PDD, 1964 L. 518) it has been said
that the courts in Pakistan can interpret the fundamental sources
of law in the
Quran
and Sunna for further
differ from views of earlier Muslim jurists
evolution, and they may
on
matters not
governed
by the fundamental sources (P.608.612). In cases of conflicts in the
textbooks where there is no Quranie or traditional text on the point,
the courts may come to their own conclusion by process of Ijtihad
(analyticalreasoning).2*
In the case of Khurshid Bibi, PLD 1967 S.C. 97 (113) it was also
held that the Imams of the Sunni Schools never claimed finality for
their opinions and as such the Courts occupying a position akin to
adi, are competent to interpret the fundamental sources of law on
Cf. Agha Mahomed Jaffer, (1897) 25 Cal. 9, 18: 24 I.A. 196-204.
AI-Hikmah,
"the wisdom," is a term used by the Sufi mystics, to express a
Knowledge of the essence, attributes, specialities, and result of things as they exist
na, are seen with the study of the cause, effects and uses. (p. 175, Dictionary of
Islam by Thomas P.
Hughes)
"On application of Shari'a Law, Miratual Usul 66, 68, 78, 79, 281 and its com-
entary Azmeree Vol. I, 291, I1, 391, Kashri Bazdavi I, 268.
"CE. Mst. Zohra Begum vs. Sh. Latif, PLD 1965 L. 695 (701).
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MUSLIM PERSONAL LAWS
THE CODE OF
ON
SPECIAL PROCEDURR
264
JURISPRUDENCE &
OF THE PHILIPPINES WITH
COMMENTARIES
new
of Taalia
followersof
by
Quran itself provides for the
viewed that the
points of the law.a The Court
invented
doctrines
the
(adherence to existing precedent) was
the Imams, but it is submitted that the
including Sunna and
same in Quran 1:5-6 and other places
ljma,
the case of Mst. Bilqis Fatima PLD
L 566, where the power of the court to exercise 1jtihad was
1959,
held to exist, but the case was dissented from; in Mst. Resham Bibi
To the
same
effect
was
vs. Muhammad Shafi, PLD 1967 A.J. & K. 32, where it was upheld
that the judges are incompetent to interpret the Quran as they are
not fully conversant with the Arabic language.
It is submitted that the view of interpretation of the Quran and
jtihad, is in consonance with requirement of time in cases where
there is no direct authority available, but it should be done under
an Islamic legal system for better appreciation of the law.a* Finally,
it has been laid down that where there are two opinions on a point
of Muslim law, the rule of equity, justice and good conscience should
be the guiding principle.3"
However, in case of conflict among the four major schools of law
recognized by this Code, Article 6, hereof shall be observed.
Art.5. Proof of Muslim law and "Ada."- Muslim law and
ada not embodied in this Code shall be proven in evidence
as a fact. No "ada" which is contrary to the Constitution of
the Philippines, this Code, Muslim law, public order, public
poliey or public interest shall be given any legal effect.
Notes/Comments
Sources of Article. Sec. 5, par. 3, Ord. 7, par. 2, Proposed
Draft of the 1974 Code for the Adm. of Muslim law; and Arts. 11 and
12 of the Civil Code.
Muslim Law not Embodied in this Code. -
The Muslim
law referred to in this treated article which are required to be proven
in evidence as a fact must be understood as those other
Muslim
personal laws not embodied in this Code other than the Quran and
the Hadith (tradition) which are already recognized under the first
5Raddul Muhtar, Vol. IV, 3 (EgyptianEd.).
A.D. Ajijula, Introduction to Islamic
Law, pp. 17-18.
ustice Sulaiman, J. in Aziz Bano v. Muhammad Ibrahim, Husain, I.L.R. 4l;
All 823, p. 54, Muslim of Divorce
by L.R. Ahmad.
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BOOK
ONE- GENERAL PROVISIONS
265
Title II- Construetion of the Code and Definitions of Terms
naragraph
of the preceding
Article
4, when it mandated
hat "The Court shall take into consideration
therein
the primary sources
of Muslim law."
Proof of Muslim Customary
(Ada) Law and Muslim
Law.- Ada usually means custom; Technically,
it is also used to
refer to customary law, which 18 a body of rules of norms of conduct
traditionallyand continually recognized, accepted and observed as
a binding rule of law by a community of people for a long period of
time.
The Court is not bound to take judicial notice of the Muslim
law or customs or usages of the Muslim Filipinos relating to their
person, property and family relation which are not embodied in this
Code, unless it is first proven as a fact in evidence, which means that
the party invoking such Muslim law or ada must prove by means
of evidence the existence of such Muslim law or ada as a fact to the
court and once it is established as such, then it shall have the force
of law between the parties to the case and the court will have to
countenance such Muslim law or ada as a binding rule of law among
the people of the place where such law or custom is observed.
Requisites of Ada to Be Admissible as a Binding Rule.Ada (custom), in order to be considered as a binding rule by the
court, must meet the following requisites: (1) It must have the force
of law upon the community;
the community;
(2) It must be generally acceptable
to
(3) It must not be contrary to the constitution
of
the Philippines, the Muslim Code, other Muslim law, public order,
public policy or public interest; (4) It must be proven in evidence
as a fact.2
Art. 6. Conflict in Islamic Schools of Law. -
(1) Should
there be any conflict among the orthodox (Sunni) Muslim
Schools of law (madhahib), that which is in consonance with
he constitution of the Philippines, this Code, public order,
public policy and publie interest shall be given effect.
(2) The Muslim schools of law shall for the purpose
or this Code be the Hanafi, the Hanbali, the Maliki and the
Shafi'i.
2Art. 5, P.D. 1083.
29Ibid.
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266
COMMENTARIESON THE CODE OF MUSLIM PERSONAL
PHILIPPINESWITH JURISPRUDENCE& SPECIAL LAWS
OF THE
PROCEDURE
Notes/Comments
Sources of Article.
Secs. 7 and 10, par. 15, ProposedDraft
of the 1974 Code for the Administration of Muslim.
-
Conflict Among the Islamic Schools of Law. -
It must
must
It
be noted that all the four schools of Muslim law are essentially the
same in the sense that all relies on the &Quran and the Hadith. The
differences lies in their respective approach in formulating a rule of
law based on those original texts, or not contrary thereto. On this,
one authority on Muslim law said: "If one closely examines the figh,
of the four schools of Muslim law (Madhahib), one will never find
any differences of opinions as far as the basic principles of Islam are
concerned. The differences mainly center around the furuat (tiny
branches) of theology rather than the usul (fundamental principles)
of belief.3" Similarly, on the law on muamala't (regulating men),
the differences lies only in interpretation
of the law and not on the
bases of the law. However, in matters where their analysis opinions
or conclusions differs as to what ought to be the rule applicable
to a particular case at issue among Muslim Filipinos, the Code
pursuant to the treated article has provided the means of settling
the conflict of rules among the four schools of law, which is, that the
school of law whose school of thought or view is in conformity with
the Constitution of the Philippines, this Code, publie order, public
policy and public interest shall be given effect. Also, Muslim jurists
of recent times developed and applied two methods to meet this
situation, the first is takhayur which is the selection of rules from
the various schools to apply to different problems, and the second
is talfiq, which is the method of combining the rules from different
schools to apply to specific problems.
One important
aspect in this regard
that should
not be
overlooked is the fact that in the course of time and developmentof
the Muslim law in this country, the school of law that has become
predominant
among Muslim Filipinos
is the Shafii madhab,"a
fact which in this Code is recognized. Thus, Article 134, of the Code
on the law of sucession,
in matter
involving
the settlement
ana
partition of estate, the court is enjoined to take into consideration
the school of law of the decedent, but ifhis madhab is not known, the
OH.R. Doi, Shari'a, The Islamic Law, p. 85.
Isam Ghanem, Outline of Isl. Jur., p. 88.
3Caesar Adib Majul,
Nature of Islamic Law, p. 9.
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BOOK ONE
Title
II
-
GENERAL PROVISIONS
Code and Definitions
of Termns
Constructionof the
267
Shafi madhab is given preference together with the Special Rules
of Procedureadopted pursuant to this Code.
Definitionof Terms.- Unless
Art. 7.
wise provides:
the context
other
(a) "Agama Arbitration Council" means a body comDOsed of the chairman and a representative
of each of the
parties to constitute a council to take all necessary steps for
resolving conflicts between them;
(b) "Ada" means customary law;
(c) "General Register" means the General Register of
marriages, divorces, revocation of divorces, conversions and
such other deeds or instruments kept by the Registrar under
this Code;
(d) "Thram" signifies the state of ritual of a person
while on pilgrimage to Mecca;
(e) "Madhab" (plural, Madhahib) means any of the four
orthodox (Sunni) schools of Muslim law
(f)
Month" means a period of thirty days;
(g) Muslim" is a person who testifies to the oneness
of God and the Prophethood of Muhammad and professes
Islam;
h) "Muslim Law" (Shar'a) refers to all the ordinances
and regulations governing Muslims as found principally in
the Quran and the Hadith; and
t
Muslim Personal Law" includes all laws relating
personal status, marriages, succession and inheritance,
and property relation between spouses as provided for in
this Code.
Notes/Comments
Sources of Article. - Art. 7, par. (a) taken from Sec. 10, par.
, Proposed Draft of the Adm. of Muslim Law Code of 1974; par. (b)
rom Shari'a and the Hindu-Malay Ada't law; par. (c) from Sec. 9,
Ehe said Draft Code of 1974; par. (d), Quran II:197, par. (e), Sec.
Art. 134, P.D. 10083.
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268
COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS
OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURR
15 of the Draft Code of 1974; par. (f), Art. 13, Civil Code; par. (p
Hadith; par. (h), Sec. 22 of the Draft Code of 1974; par. (1), Sec. 23 of
the Draft Code of 1974.
Agama Arbitration
Council. See Title Il, Art. 160 of the
Code.
Ada; Its Meaning and Sources.- The word ada is derived
from the Arabic word meaning, custom," and the Hindu-Malay word
adala't, meaning justice and equity. Literally, therefore, ada mean
eans
custom. Sometimes it is replaced by the term urt or usage. As a term
in law, it refers to the customs of the Muslim community which were
given through consistent general usage the force of law in the course
of time. It has three sources, namely: (1) the ancient Malay Ada't
law; (2) the Indian Ada't law (Hindu); and (3) the Huk'm Sharia
law. It is regarded as a material source of Islamic jurisprudence
under the guise of ljma, or the consensus
Muslim community and as an extraneous
jurisprudence;
of Muslim jurists or
source of law in Islamic
It approves of customary practices as have been the
subject of consensus of Muslim community. They may be relative to
transactions and rights, or mores and behavior, or customs or social
conduct.3
Ada
Distinguishedfrom
Adab.
-
Ada must be distinguished
from Adab, which refers to the upright moral behavior. It also refers
to respect, courtesy and manners; it governs the propriety of one's
behavior in relation to parents, elders and superiors."
Ihram;
Its
Meaning.
-
Ihram
literally
means
robe.
A
garment consisting of two seamless clothes that the pilgrims wraps
around the waist and the other thrown loosely over the shoulder.
Technically, it means entering upon a state of pilgrimage.
Periods or Places Covered by Ihram. -
Ihram, as the first
basic rite of the pilgrimage to Mecca, is entered upon at a certain
time or place known as Migat by the pilgrims who upon reaching
the final stage of the pilgrimage near Mecca, bathes themselves
and performs
two rak'at prayers and then divest themselves
their clothes and wears the pilgrim's robe which is called ihram
34Gibbs-Kramers,
Shorter Encyclopedia of Islam, p. 13.
36Buat, Survey of Filipino Muslim Law Adat.
3Supra, Buat M.
The Philosophy of Jurisprudence
in Islam S. Mahmassani, p. 130.
sGalwash, The Religion of Islam, Vol. II, pp. 41-47.
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Ttle II
in
BOOK ONE- GENERAL PROVISIONs
Constructionof the Code and Definitionsof Terms
269
completelyfrom obscenityand wranglingsand
proceeds
is of two
ht conduct. Migat
categories: (1) Chronical and (2)
chronical
migat
Taeal, The
begins on the first day of the month of
Shawwal and ends on the tenth daytollowingthereafter,on the Day
ofSacrifice (Yaw Mul-Nahr1) and celebrated throughout the Muslim
ld as Eid-el-Ad-Haor the great feast known in the western world
Kurba
Bairam. The local migat differs accordingto the countries
the pilgrims come from. The places appointed en route to Mecca for
Ihram are:
Juhfa for those coming from Egypt, Syria, Lebanon and
Morocco;
Dhat Irg for those coming from Iraq and the East;
Dhul Hulaifa for those coming from the direction of
Yemen,
Qarn Al-Managil for those coming from Najd.
The Ihram for the people of Mecca and for the people from
other countries staying in Mecca begins when they see the moon
of Al-Hijjah." It ends once the pilgrims enters the state of haram;1
or when the pilgrims divest himself of the pilgrims robe (Thram)
completed the
after
having
activities.
pilgrimage and
resume
ordinary life's
Acts Prohibited While Under the State of Ihram.
The
Holy Quran states: "The pilgrimage is (in) the well-known months
and whoever is minded to perform the pilgrimage therein (let him
remember that) that there is (to be) no lewdness nor abuse nor
angry conversation on the pilgrimage. And whatsoever good ye do
Allah knoweth it. So make provision for yourselves (hereafter); for
the best provision is to ward off evil. Therefore, keep your duty unto
Me, O men of
understanding.
A pilgrim therefore,
upon
entering the state of Ihram, is
required to change from his ordinary clothes and put on the pilgrim
robe called Ihram. He is not allowed to use scent on his garment or
0ay, nor to clip his nails, anoint his head, shave any part of his body
Or use any shoes
although
sandals
are allowed,
AffifA. Tabbarani,The Spirit of Islam,
40Al-Muwatta,Maliki, p. 115.
or make
p. 174.
41Tbid., p. 157.
2Quran, II:197.
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COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS
OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE
270
relations
to his wife through
kissing or sexual intercourse.
He is
not permitted to disobey God by committing prohibited acts, or to
with his mate or servant, and he should not pursue the land
dispute
Thus, contracting marriage
game.
disallowed and one contracted by a
while in the state of
Ihram is
person while in state of Ihram
is under the Code, considered an irregular marriage." Therefore,
if marriage which is an act encourage in Islam, is not allowed of
Muslim while in a state of Ihram, more so of acts which though
allowed but is regarded with disfavor like for example divorce
It is submitted that divorce pronounced by or upon
while in a state of Ihram is not valid.
(talaq).
Madhab. - (See part I, on Jurisprudence
Months; Rules Involving
a
person
regarding madhab).
Computation.
-
It must be borne
in mind that the Gregorian calendar differs in some aspects from the
Hijra calendar of the Muslims. However, inasmuch as Art. 7f) of the
Code was taken from Art. 13 of the Civil Code of the Philippines, as
a general rule, the construction therefore of the term month under
that law must be followed.
The provision of Art. 13 of the Civil Code of the Philippines
provides:
"When the law speaks of years, months and nights,
it shall be understood that years are of three hundred
sixty five days; and months of thirty days; days of twenty-
four hours; and nights from sunset to sunrise.
If months
are designated
by their name, they
shall be computed by their number of days which they
respectively have.
In computing the period, the first
excluded and the last day included."
day shall be
Code and Art. 7(f)
The term month under Art. 13 of the Civil
of thirty
of the Muslim Code which these laws fixes as consisting month.
referred to as a legal
if not designated by its name is
days
It is to be distinguished
December
from the calendar months of January to
or
in the Gregorian calendar which are of unequal portion
A.A. Tabbarani,
The Spirit of Islam, p. 174; Galwash,
p. 41.
Art. 33(e), P.D. 1083.
45Abu Dawud 13:3.
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The Religion ot 131