Download ISLAMIC JUSTICE: A BASIS FOR ENDURING PEACE IN MUSLIM

ISLAMIC JUSTICE: A BASIS FOR
ENDURING PEACE IN MUSLIM
MINDANAO, PHILIPPINES with reference
to Said Nursi approach on justice for better
society
By:
Dec 28, 2010
I. Introduction
In the Philippines, Filipino citizens, including the Muslim Filipinos, have to observe the Philippine
laws which is “secular in nature.” The idea of secularism in Islam means favoring a modern secular
democracy with separation of church and state, as opposed to Islam as a political movement.
The Muslim Filipinos are granted political autonomy, the Autonomous Region in Muslim
Mindanao, with very limited Islamic justice system as also defined in the Presidential Decree 1083,
otherwise known as the Code of Muslim Personal Laws of the Philippines. This Code applies only
to Muslims in matters relating to their persons, family relations, succession and inheritance. And
the large area of the legal system they can enjoy is enshrined in the national laws or laws of general
applications.
Muslim society must benefit from the values of justice and peace. This has been the concern and
topic of discussion among the ulama (learned Muslims), Muslim professionals and the propagators
of Islam. Thus, peace building initiatives and efforts through seminars, conferences and fura and
similar activities have been undertaken. It is very unfortunate that unstable peace and order
continue to persist in Muslim Mindanao
This paper, entitled: “Islamic justice as a basis for enduring peace in Muslim Mindanao,”
discusses: 1) The interplayed judicial systems/institutions, and 2) The meaning and nature of
Islamic justice, specifically its concept, as reflection of Taqwa, and as significant values for
enduring peace in Muslim Mindanao.
This paper is expected to contribute to the understanding of the role of justice in building a better
society using the Qur’an and the Sunnah as well as the Said Nursi’s writings and approaches on
justice as a frame of references.
II. Judicial Systems
The presence of a judicial system is necessity for the prosperity and development of nations. It is
needed to secure human happiness, protect the rights of the oppressed, and contain the oppressor.
It is the way to resolve disputes and ensure human rights. It facilitates in enjoining what is right
and , forbidding what is wrong.
In Muslim Mindanao, there are judicial systems. These are the Agama (traditional), Islamic and
Philippine judicial systems.
A. Meaning and Nature
1. Agama Judicial System
Agama is a judicial traditional system of the Muslims in the Philippines. It administers justice
according to the Traditional Laws (i.e., Taritib and Igma of the four principalities of Ranaw,
Luwaran of the Sultanate of Maguindanao and Sira or Diwan of the Sultanate of Sulu). These laws
are acculturated and influenced with some tenets of Islamic laws and culture.
Atty. Musib Buat said that: " The word Agama has come to be known as practice or system. among
the Muslims. It is synonymous with the word "ideology. It is a Sanskrit word for Religion.”
The sources of customary or adat law are basically three-fold: (1) Ancient Malay adat law; (2)
Indian-Hindu law and (3) Shari'a or Islamic Law. The natives embraced Islam, mixed Adat law
with Shari'a or at least Shari'a blended with pre-Islamic practices or Hukum Shari'a. The sanction
of customary law is in the Aqama Court. Sometimes the Muslim Ecclesiastical Authority or Agama
leaders like the Sultan, datus and panglimas enforced customary law, Buat added.
Thus, centuries before the establishment of the Philippine government, the Muslims were already
governed by Shari'a and/or Adat law with their own agama courts and judges called Qadis.
2. Islamic Judicial System
Shariah court is the judicial system or institution of Islam. Although it does not exist as a whole in
the country but theoretically, some ulama and leaders used to settle cases according to Shariah
(Islamic Laws), the totality of the commandments of Allah as enshrined in the Qur’an (words of
Allah) and Sunnah (tradition of the Pprophet) and with further explanation by the Ijma (consensus
of the Muslim jurists) and Qiyas (analogical deduction). Some people have to submit their cases
to this system.
This Islamic system is for deciding between people in litigation with the aim of settling their
disputes in accordance with the injunctions of the Shariah). Its development varied from place to
place.
The Qur’an and the Sunnah are the primordial sources of legislation and judicial decisions in Islam.
This is related when Allah says:
Oh ye who believe,obey Allah, obey the apostle and Those charge with authority among
yourselves. If any differ among yourselves refer it to Allah and His Apostle if you believe in Allah
and the last day. (4:59)
Prophet Muhammad (peace be upon him), who came with the final and eternal message, was
ordered by Allah to pass judgment in disputes just as he ordered to spread the word of Allah and
call people to Islam.
The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by Amr
bin al-As (may Allah be pleased with him) that the Prophet said: “If a judge gives a judgment using
his best judgment and is correct, then he receives a double reward (from Allah). If he uses his best
judgment but makes a mistake, then he receives a single reward.” Said Nursi revealed: if a judge
sentences persons who indeed innocents, the judge acted Unjustly.
3. Philippine Judicial System
The Constitution of the Philippines ordains that judicial power shall be vested in the Supreme
Court and such lower courts as may be established by law. (Section 1, Art. VIII, 1987
Constitution).
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
The Philippine courts administer justice based on its laws, both the special laws and the laws of
general applications.
B. Interaction
The three (3) above mentioned systems and their mode of settlements interact and interplay in
Muslim Mindanao. The Philippine court and its mode make show the dominant one for two
reasons: 1) It is the legal system of the government, and 2) It has the regular budget provided by
the
government.
Fig.
1Showing
the
Agama and the Phil. Judicial Systems.
interaction
of
the
Islamic,
Such systems have commonalities and differences. The intersection shows their differences and
the non-intersection shows their commonalities in the above mentioned paradigm. It is obvious
that when commonalities prevail there is peace and tranquility but when differences comes,
conflict and instability has taken place.
The presence of these systems provides the three (3) modes of settlement in Muslim Mindanao.
When conflict or problem occurs, question always ask where to submit the case. Is it in the regular
court based on Philippine laws or in the Islamic system based on the Qur’an and the Sunnah or in
the Agama based on the traditional laws?
Shifting from one settlement to the other makes the conflict or problem more serious and critical.
Even if the case is settled in a particular mode of settlement either of the parties involved is
expected to appeal to another mode. Obviously, the accused or the accuser is trying to find ways
and means in order to win the case. Hence, unresolved cases are rampant and some are still in the
courts and others are in the hands of the leaders.
People are perceived to have different views on justice system. As for the people who cling to the
tradition, they wish their conflict and grievance be settled in Agama legal system which is based
on traditional laws. As religious Muslims, they preferred their cases to be addressed by Islamic
legal system which is based on Shariah. As Filipino citizens, some preferred to be governed by the
laws of the land.
C . Government’s Integration Policy
The Philippine government has instituted the policy of national integration. This is mainly to
integrate the Muslims and other cultural communities into the national body politic by way of
accommodating relevant elements of their socio-economic, legal and political culture and system.
Such policyis pursuant to Section II of Article XV of the then 1973 Constitution, which provides
that: “The State shall consider the customs, traditions, beliefs and interests of national cultural
communities in the formulation of state policies.”
The code of the Muslim Personal Laws in particular was prepared, signed and approved into law
on February 4, 1977, as Presidential Decree No. 1083. The present 1987 constitution, section 22,
Art. II, on Declaration of Principles and State policies also provides that: “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.
The opening preamble of P.D. 1083 substantially states the general objectives of 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 participation of 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 implementation
of the state policies:
2. To make Islamic law and its principles of equity and justice, 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;
3. To attain a more ordered life among them (Filipino Muslim); and
4. To strengthen all the ethno-linguistic communities in the Philippines (particularly the Filipino
Muslim) within the context of their respective ways of life in order to bring about a cumulative
result satisfying the requirements of national solidarity and social justice.
In order to achieve those objectives, the State has in this Muslim Code (P.D. 1083) recognized the
legal system of the Muslims in the Philippines as part of the law of the land and thereby made
Islamic institution in the Muslim communities more effective; codified the 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.
Therefore, the government has maintained and continues to introduce its policy of national
integration in order to imbibe upon the Filipino people the sense of nationhood. It is believed that
no country or place may achieve sustainable development if people are disintegrated.