Special Lecture in Shariah Court

Procedure
NORHASSAN S. CURO

Institute of Islamic Studies

University of the Philippines – Diliman
28 December 2015
Outline of Discussion
I. Philippine Shariah Bar Exams
II. Shariah Exam in Court Procedure
III. How to Answer in the Bar Exam
IV. Basic Principles in the Study of Law
V. Basic Terminologies
VI. The Shariah Courts
VII. The Ijra Al-Mahakim
VIII.Bar Exam Practice
I. The Philippine Shariah Bar Exam
Question: Why “bar” exam?
12 Bar Exams from 1983 - 2014
Covered Subjects:
Persons and Family Relations – 35 %
Jurisprudence – 15%
Succession – 35 %
Court Procedure – 15%
The ‘Pareto Principle’ or the ‘80/20 Rule’
II. Bar Exam in Court Procedure
The ‘Pareto Principle’ or the 80/20 Rule, applied
147 questions since 1983 – 2014 (2 questions were asked at least 6
times; 3 for 5 times; 3 for 4 times; 5 asked thrice; 19 asked twice;
the rest were asked only once)
Materials to Study:
Ijra Al-Mahakim Al-Shariah
PD 1083 Articles 137 – 190
Previous Shariah Bar Exams
References:
P.D. 1083 by Arabani
Muslim Code of the Philippines by Justice Rasul
Court Procedure by Gubat
Previous Bar Questions (out of 147) :
Questions: Frequency Percentage
1. Action, how commenced 6 8%
2. Mudda’I vs. Mudda’alaih 6
3. Is oral complaint allowed? 5 10 %
4. Jurisdiction over person of defendant 5
5. Jurisdiction vs. Venue 5
6. Procedure vs. Venue 4 5%
7. Prohibited Pleadings 4
8. Procedure vs. Evidence 3 10 %
9. Complaint 3
10. Subject matters of Pre-trial 3
11. Judgment without hearing 3
12. Ijra Al Mahakim, how construed 3
13. 18 questions 2 25 %
14. 61 questions 1 42 %
TOTAL: 147 100 %
III. How to Answer in the Bar
4 L’s (Law, Language, Logic and a Legible
Penmanship)
Proper Formatting (Margin, No Marking, etc.)
Give responsive answers
In answering case problems, observe the CLAC format
(Conclusion-Legal basis-Application-Conclusion)
Follow the numbering used by the examiner
IV. Basic Principles
The Three (3) Branches of the Government and their
Functions
Exclusive Power of the Judiciary “to promulgate rules
concerning pleading, practice and procedure.” (Art
VIII, Sec. 5[5], 1987 Philippine Constitution)
General Structure of the Judicial Department and the
concept of ‘hierarchy of courts’
Creation of Shariah Courts under P.D. 1083
Promulgation of the Ijra Al-Mahakim Al- Shariah on
20 September 1983 pursuant to Art. 158 of P.D. 1083
V. Basic Concepts & Terminologies
Substantive Law vs. Remedial Law (or Procedure) –
Substantive law is that part of the law which creates, defines
and regulates rights; Procedural law is that part of the law
which prescribes the method of enforcing rights or obtaining
redress for their invasion.
Evidence – is the means sanctioned by the Rules of Court, of
ascertaining in a judicial proceeding, the truth respecting a
matter of fact. It is the comprehensive term which includes
testimonial and documentary evidences.
Testimony – that kind of evidence which, in a trial is presented
by witnesses orally.
Proof – is the result or effect of evidence.
BAR EXAM PROBLEMS:
Q: Define ‘procedure’ and distinguish it from ‘evidence.’
(1991, 2001,2014)

Q: How should rules of procedure like Ijra Al-Mahakim

Al-Shariah be construed and why? (1991, 2001, 2014)

Q: Distinguish ‘evidence’ from ‘testimony.’ (1995,2003)

Q: Distinguish ‘evidence’ from ‘proof.’ (1987,2003)

Basic concepts…
Jurisdiction vs. Venue – Jurisdiction is the power or
authority to try, hear and decide a case; while venue is the
place where the case is commenced and tried. Jurisdiction
is a matter of substantive law; while venue is a matter of
procedural law. Jurisdiction is fixed and conferred by
substantive law; while venue may be conferred by parties’
agreement. (see Art. 155 and 143 of PD 1083)
Jurisdiction over person of the defendant, how
acquired – acquired either by a valid service of summons
upon him or by his voluntary submission to the court’s
authority.
BAR:
Q: Distinguish ‘jurisdiction’ from ‘venue.’ (1987, 2001,
2006, 2014)

Q: How does the Shariah court acquire jurisdiction over

the person of the defendant? (1991, 1999, 2003, 2008)
VI. The Shariah Courts
Article 137. Creation – There are hereby created, as part of
the judicial system, courts of limited jurisdiction, to be
known as Shari’a District Courts and Shari’ah Circuit
Courts, which shall exercise powers and functions in
accordance with this Title.
Shariah courts and the personnel thereof shall be subject to
the administrative supervision of the Supreme Court.
Shariah District Courts (138) vs. Circuit Courts (150)
Exclusive Original vs. Concurrent Original
Jurisdiction (Art 155 vs. 143 [1] v. 143 [2])
Art 138 – 190, PD 1083
Article 143. Shariah District Court
(1) The Shari'a District Court shall have (2) Concurrently with existing civil courts, the
exclusive original jurisdiction over: Shari'a District Court shall have original
 (a) All cases involving custody, guardianship, jurisdiction over:
legitimacy, paternity and filiation arising (a) Petitions by Muslims for the constitution of
under this Code; a family home, change of name and
 (c) Petitions for the declaration of absence commitment of an insane person to an asylum;
and death and for the cancellation or (b) All other personal and real actions not
correction of entries in the Muslim Registries mentioned in paragraph 1 (d) wherein the
mentioned in Title VI of Book Two of this parties involved are Muslims except those for
Code; forcible entry and unlawful detainer, which
 (d) All actions arising from customary shall fall under the exclusive original
contracts in which the parties are Muslims, if jurisdiction of the Municipal Circuit Court; and
they have not specified which law shall govern (c) All special civil actions for interpleader or
their relations; and declaratory relief wherein the parties are
 (e) All petitions for mandamus, prohibition, Muslims or the property involved belongs
injunction, certiorari, habeas corpus, and all exclusively to Muslims.
other auxiliary writs and processes in aid of its
appellate jurisdiction.
Article 155. Shariah Circuit Court
–The Shariah Circuit Courts shall have exclusive original jurisdiction over:
(1) All cases involving offenses defined and punished under this Code.
(2) All civil actions and proceedings between parties who are Muslims or
have been married in accordance with Article 13 involving disputes relating
to:
(a) Marriage;
(b) Divorce recognized under this Code;
(c) Betrothal or breach of contract to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon divorce;
(f) Maintenance and support, and consolatory gifts, (mut'a); and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal properties.
BAR:
Q: Differentiate ‘exclusive original jurisdiction’ from
‘concurrent original jurisdiction’ of the Shariah
District Court. Give example each. (1983, 1987, 1993,
1995)
VII. Ijra Al-Mahakim Al-Shariah
I. General Procedure (Sec. 1 - 13)
II. Oath (Yamin) (Sec. 13-A - 15)
III. Supplemental Proceedings (Sec. 16 -17)
IV. Arbitration Proceedings (Sec 18 - 19)
Flow Chart of Shariah Court Procedure:
I. General Procedure
Section 1. Commencement of actions (da’wa). - All
actions and proceedings in the Shariah Courts shall be
commenced by the plaintiff (mudda’i) or his counsel
(wakil) or by the clerk of court.
BAR:
Q: How do you commence an action or proceeding in
the Shariah court? Explain. (1983, 1987, 1991, 1995,
1999, 2013)

Q: Distinguish between a ‘Muddai’ and ‘Muddaalaih’ as

understood in Islamic Rules on Procedure and
Evidence. (1983, 1987, 1993, 2001, 2006, 2013)
Section 2. Complaint. – The complaint shall contain:
(1) The title of the case, the case number assigned to it,
and the date of filing;
(2) The name and address of the plaintiff and/or his
counsel, and the name and address of the defendant
(Mudda’alai); and
A concise statement of the cause of action and relief
prayed for.
BAR:
Q: Define ‘complaint.’ (1991, 2003, 2013).

Q: May a complaint lodged before the Shariah court be

made orally? (1991, 1995, 1999, 2003, 2014)

Q: What should the complaint contain? (1991, 1993,

1995, 2003)

Q: Prepare a complaint for support. (1993, 2013)

Section 3. Service of summons – Summons together
with the copy of the complaint shall be served upon
the defendant.
BAR:
Q: What is a ‘summons,’ what are its contents and how
may it be served? (1999, 2003, 2008)
Section 4. Answer. – The defendant shall file an answer
within ten (10) days from receipt of the summons
either personally or by counsel or with the assistance
of the Clerk of Court.
BAR:
Q: What is the last pleading that may be filed before the
Shariah courts? (2011)

Q: When may a defendant file his answer or appear

personally or by counsel from receipt of summons?
(1987, 1991)
Section 5. Failure to answer. – Should the defendant
fail to answer the complaint within ten (10) days from
service, the court shall proceed to receive the evidence
ex-parte upon which judgment shall be rendered.
BAR:
Q: If the defendant fails to answer or appear personally
or by counsel within the reglementary period, is it
necessary for the plaintiff or counsel to file a motion to
declare the defendant in default? (1987, 1991, 2011)

Q: What is the effect of the defendant’s failure to file his

answer within the reglementary period fixed by the
Special Rules? (1983, 1987)
Section 6. Pre-trial. –
Not later than thirty (30) days after the answer is filed, the case shall be
calendared for pre-trial. Should the parties fail to arrive at an amicable
settlement (Sulh), the court shall clarify and define the issues of the case
which shall be set forth in a pre-trial order.
Within ten (10) days from receipt of such order, the parties or counsels shall
forthwith submit to the court the statement of witnesses (shuhud) and
other evidence (bayyina) pertinent to the issues so clarified and defined,
together with the memoranda setting forth the law and the facts relied
upon by them.
Should the court find, upon consideration of the pleadings, evidence and
memoranda that a judgment may be rendered without need of a formal
hearing, the court may do so within fifteen (15) days from submission of
the case for decision.
BAR:
Q: What is ‘pre-trial?’ Is it mandatory or merely directory?
When is it held? (1991, 1999, 2006, 2008, 2011)

Q: What are the subject matters considered in the Pre-trial

hearing? (1991, 1999, 2008)

Q: May the Shariah court immediately decide the case and

render judgment without a formal hearing on the basis
of the pleadings, evidence and memoranda submitted in
the Pre-trial? (1991, 2008, 2013)
Section 7. Trial. –
The plaintiff (muddai) has the burden of proof and the taking of an oath
(yamin) rests upon the defendant (mudda alai). If the plaintiff has no
evidence to prove his claim, the defendant shall take an oath and judgment
shall be rendered in his favor by the court. Should the defendant refuse to
take an oath, the plaintiff shall affirm his claim under oath, in which case
judgment shall be rendered in his favor. Should the plaintiff refuse to affirm
his claim under oath, the case shall be dismissed.
If the defendant admits the claim of the plalintiff, judgment shall be rendered
in his favor by the court without further receiving evidence.
If the defendant desires to offer defense, the party against whom judgment
would be given on the pleadings and admission made, if no evidence was
submitted, shall have the burden to prove his case. The statement submitted
by the parties at the pre-trial shall constitute the direct testimonies of the
witnesses as basis for cross-examination
BAR:
Q: During the trial of the case, who has the burden of
proof to establish the merit of the case? Please explain.
(2006, 2008)

Q: Explain the meaning of “the burden is on the plaintiff

and oath is incumbent on him who denies.” (1993,
2013)

Q: Define ‘trial’ and explain its order. (1993, 2013)

Section 8. Judgment. –
The judgment shall be rendered within fifteen (15) days
from the termination of the trial, or disposition of the
case, should there be no formal trial or hearing.
The judgment shall become final and executory upon
the expiration of the period to appeal. Once the
judgment becomes final and executory, the court motu
proprio shall immediately issue the writ of execution
for the satisfaction of the judgment.
BAR:
Q: When may the court render judgment from
termination of submission of the case? (1999)

Q: When does a judgment become final and executory?

(1987, 1999)
Section 9. Appeal. – An appeal shall be made by filing a notice of
appeal addressed to the court and by paying the docket fee within
(15) days from receipt of judgment.

Section 10. Appeal to the Shariah District Court. – Within five

(5) days from the perfection of the appeal, the Clerk of Court
shall transmit the records to the appropriate appellate court.
(Note: RA 9054, the Organic Act for the Autonomous Region in
Muslim Mindanao of March 31, 2001 Article VIII Sec. 7 thereof
created the Shariah Appellate Court. However, up to this time, it
has not been implemented.)
 
BAR:
Q: How is an appeal taken from the Shariah Circuit
Court to the Shariah District Court? Explain. (1987,
2008)
Section 11. Appeal to the Supreme Court. - Upon
receipt of the original records, transcripts and exhibits,
the Clerk of Court of the Shariah District Court shall
notify the parties of such fact.
BAR:
Q: How is an appeal taken from Shariah district court to
the Supreme Court and what is the duty of the Clerk in
such a case? (1987, 2008)
Section 12. Legal Opinion (Fatwa). - Before judgment is rendered, any court may
seek the opinion (fatwa) of the Jurisconsult of Islamic Law created under the
Code of Muslim Personal Laws on the matters concerning difficult questions of
Muslim law and jurisprudence (fiqh).
 
Section 13. Pleadings and motions disallowed. – The court shall not allow the
filing of the following pleadings, petitions or motions, to wit:
Motion to dismiss or to quash;
Motion for a bill of particulars;
Motion for extension of time to file pleadings or any other paper;
Motion to declare defendant in default;
Reply, third party-complaint, or intervention;
Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
Petition for relief from judgment;
Motion for new trial or reopening of trial; and
Any dilatory motion for postponement.
BAR:
Q: What are the pleadings, motions and petitions
disallowed by the Special Rules of Procedure in the
Shariah courts? (1987, 1991, 2008, 2011)
II. Yamin
Section 13a. Administration of Oath. –
An oath (yamin) legally binding in a manner and form observed under Muslim
laws may, by order of the court, be administered upon any of the parties who
are Muslim to establish a fact, or to affirm any evidence presented. Such oath
may constitute as proof in the absence of any other evidence.
No person shall be allowed to take an oath unless he is qualified under Muslim
law and is fully aware of the solemnity of the oath or the import of the solemn
affirmation. Any person who is to take an oath or solemn affirmation in
accordance with Muslim law shall be given reasonable time to think it over.
The court shall set an appropriate time, date and place of oath taking or of solemn
affirmation by such person. If at any time before such appointed date, the party
who is required to take an oath or solemn affirmation refuses to do so (nukul),
the court may, in its discretion, direct the person if he is the plaintiff, to
withdraw his claim, or in case of the defendant, to admit the claim of the
plaintiff.
Section 14. Mutual Oath (Tahalif). – In cases of claims
and counter claims where neither of the parties would
give way at the pretrial, the court may in its discretion
require both parties mutual oath (tahalif) on any
particular fact or facts upon which the court may
render judgment.
BAR:
Q: Explain what is Yamin, Nukul and Tahalif in Islamic
Shariah Procedure. (1983)

Q: What is Yamin and how is the Yamin administered?

(1983, 2003, 2006)

Q: When may an administration of Yamin legally bind a

party litigation? (1999, 2003)
Section 15. Mutual Imprecation (Li’an). – If a Muslim
husband accuses his wife of adultery and fails to prove
the same in accordance with the Muslim law, the court
may require the husband and wife, if she is a Muslim
to perform the prescribed acts of imprecation (li’an)
and thereafter, the court shall dissolve the marriage by
issuing the appropriate divorce decree in accordance
with the provisions of the Code of Muslim Personal
Laws.
BAR:
Q: What is the special procedure for mutual imprecation
(Li’an)? (1993, 1995, 2006)

Q: What is the wisdom in the Quran for the requirement

of four witnesses to prove a charge of adultery? Explain
briefly. (1983)
III. Supplemental Pleadings
Section 16. Suppletory rule in civil cases. – the Court shall
adhere to the sources of Muslim law relating to number, status
or quality of witnesses (‘adala) and evidence required to prove
any fact. Except as herein provided, the Rules of Court shall
apply in a suppletory manner.
 
Section 17. Suppletory rule in special offenses. – Subject to
the next preceding section, all special cases or offenses
cognizable by the court may be filed in such form and heard in
such manner as prescribed by the applicable laws and the Rules
of Court. However, the Court may apply in a suppletory
manner, the principles of Muslim law. 
BAR:
No questions yet.
IV. Arbitration Proceedings
Section 18. Arbitration; how conducted. – The Agama
Arbitration Council, after its constitution pursuant to
the provisions of the Code of Muslim Personal Laws,
shall conduct the arbitration proceedings in accordance
with the method it deems appropriate, taking into
consideration the circumstances of the dispute, the
conciliation of the parties, the interests of the children,
if any, and other third parties involved, and the need for
a speedy settlement of the dispute. However, no
arbitration proceedings take place ex parte.
BAR:
Q: What is/are the appropriate case/s falling within the
competence of the Agama Arbitration Council (AAC)?
Explain each briefly. (2014)

Q: How will the AAC conduct its proceedings under the

Special Rules of Procedure in the Shariah Courts?
(2014)
VIII. Bar Exam Practice
Prepare template answers to the frequently asked bar
questions in Shariah court procedure.
Thank you…

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