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BRIEF LITERATURE REVIEW

Formal Legal System




Law, in general, is a systems of rules which are enforced through social
institutions to govern behavior.
1
Formal legal system is defined as a procedure or process
for interpreting and enforcing the law.
2
A legal system is the most explicit,
institutionalized, and complex mode of regulating human conduct.
3


The Philippine legal system is aptly described as a blend of customary usage, and
Roman (civil law) and Anglo-American (common law) systems. The civil law operates in
areas such as family relations, property, succession, contract and criminal law while
statutes and principles of common law origin are evident in such areas as constitutional
law, procedure, corporation law, negotiable instruments, taxation, insurance, labor
relations, banking and currency. In some Southern parts of the islands, Islamic law is
observed. This particular legal system is the result of the immigration of Muslim Malays
in the fourteenth century and the subsequent colonization of the islands by Spain and the
United States.
4


Branches of the Philippine Government

Under the Constitution, governmental powers in the Philippines is divided among
three institutions: Executive, Legislative and Judicial. The executive branch, headed by
the president, enforces the laws
8
; the legislative branch - made up of the House of
Representatives and Senate - makes the laws
9
; and the judicial branch (through the
Supreme Court and lower courts established by Congress), also called the judiciary,
interprets the laws
10
.

Sources of Law

The main sources of Philippine law are the Constitution, statutes, treaties and
conventions, and judicial decisions. The Constitution is the fundamental law of the land
and as such, it is authority of the highest order against which no other authority can
prevail. On the other hand, statutes, enacted by Congress, are intended to supply the
details which the Constitution, because of its nature, must leave unprovided for. Having
the same force of authority as legislative enactments are the treaties which the Philippines
enters into with other states.
11
Philippine law is also derived from cases as the Civil Code
provides that judicial decisions applying to or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines.
12
Only decisions of its Supreme
Court establish jurisprudence and are binding on all other courts.
13
To a certain extent,
customary law forms part of the Filipino legal heritage because the 1987 Constitution
provides that the State shall recognise, respect, and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions and institutions.
14
The Civil Code also provides that customs which are contrary to law, public order or
public policy shall not be countenanced, and a custom must be proved as a fact
according to the rules of evidence.
15
Thus, Philippine law takes cognizance of customs
which may be considered as supplementary sources of the law.

The National Court System

The 1987 constitution provides that, the Supreme Court, composed of a chief
justice and 14 associate justices, was the highest judicial body of the state, with
supervisory authority over the lower courts.
10


Currently, the national court system consists of four levels: local and regional trial
courts
16
; a national Court of Appeals divided into 17 divisions
17
; the 15-member Supreme
Court
10
; and an informal local system for arbitrating or mediating certain disputes outside
the formal court system. A Shari'ah (Islamic law) court system, with jurisdiction over
domestic and contractual relations among Muslim citizens, operates in some Mindanao
provinces.
18

There is no trial by jury in the Philippines. The judge determines all questions of
law and fact in a case brought before him. The Rules of Court govern the pleadings,
practice and procedure before all courts in the Philippines. These rules consist of four
major parts dealing with civil actions, special proceedings, criminal procedure and
evidence.
19



Traditional and Customary Laws


Customary law is generally defined as an established system of immemorial rules
which had evolved from the way of life and natural wants of the people, the general
context of which was a matter of common knowledge, coupled with precedents applying
to special cases, which were retained in their collective memories (Roy, March 2005).
Customary Laws are central to the very identity of indigenous peoples and local
communities, defining rights, obligations and responsibilities of members relating to
important aspects of their lives, cultures and world views ( [ELECTRONIC
PAMPHLET] Customary Law and Traditional Knowledge, www.wipo.int). They are
internal to a particular community, oral, and for the most part, dynamic and not static in
nature. A study on an Ibaloi community in the Cordillera region of the Philippines saw
customary law as something that is evolved, defined, transformed or innovated by the
people/community over time (Roy, March 2005).

What characterizes customary law is precisely that it consists of a group of
customs that are recognized and shared collectively by a community, people, tribe, ethnic
or religious group. This contrasts with written law emanating from a constituted political
authority, the application of which is in the hands of that authority, generally the State (
[ELECTRONIC PAMPHLET] Customary Law and Traditional Knowledge,
www.wipo.int).

They govern acceptable standards of behavior and values and are actively
enforced by members of the community
(http://www.wipo.int/wipo_magazine/en/2010/04/article_0007.html). Thus, customary
systems were seen as important mechanisms for resolving serious disputes and, in
particular, disputes that threatened to spill over into broader social unrest (Zurstrassen,
March 2012). Further, indigenous communities trust, use and support their customary
laws and conflict resolution processes within their communities. (A case study of
indigenous traditional legal systems and conflict resolution in Rattanakiri and
Mondulkiri Provinces, Cambodia, 2007).

The Maranao, Rido and Traditional Conflict Resolution

The Maranaos is the second most numerous of the 13 Islamized Indigenous tribes
in Mindanao, with a population of close to a million based on the 2000 census (Rodil,
2006). The name Maranao translates to mean People of the Lake, after their traditional
territory in the area surrounding Lake Lanao in the Bukidnon-Lanao Plateau. Presently
dispersed all over the country, the bulk of the Maranaos are concentrated in Lanao del
Sur and Lanao del Norte (http://www.ethnicgroupsphilippines.com/people/ethnic-groups-
in-the-philippines/maranao/). The relative isolation of the Maranao has preserved
indigenous social structures, traditional customs and laws, myths and folk narratives.
Together, these continue to influence the psyche, attitudes and values that promote the
centrality of royal descent and status honor or Maratabat, and justify violent retribution
(Gonzales, 1997).

The Maranao society were organized on the bases of kinship or blood ties.The
traditional title holders in the community of Maranaos are the sultan or the senior datu
and the other datus who comprise the governing class. These title holders assume position
of prestige and influence and as such are regarded as the peg awid or super ordinate by
virtue of their high ascribed status. The one considered as the overall chief of the
traditional community is the sultan whose traditional authority comes into play
particularly in relation to his role on keeping the peacefulness in his respective
community. The sultan commonly act as a leader in settling disputes among the people,
function by consulting with other datus and elders of the community which is called
uluan or pulok lokusan, and intercedes on personal and family disputes brought to him.
A sultan may also initiate the renegotiation between parties in order to end disputes
(Benitez-Barcenas, 1984).

In performing their respective rules, the Title Holders of the Maranao Society are
guided by its own indigenous laws and these are popularly called adat laws in Philippine
scholarship, which existed in the two forms: the kokoman a kambhataa (law of
kinsmen), and the taritib ago igma (Abdullah, 1996). The kokoman a kambhataa
regulates social relation primarily between and among relatives. This form of indigenous
law is at the same time a mode of conflict settlement which is concerned with the re-
establishing order in the society. The taritib a go igma, on the other hand, structures the
traditional socio-political and territorial organization. The adat law also serves as a mode
of dispute settlement which is concerned with the peace and order in the society
(Embornas et al, 2014). However, with no specialized agencies such as police, court and
prison systems, families bore the responsibility for self defense and survival. This gave
rise to the code an eye for an eye, a tooth for a tooth, and a life for a life. This may be
the socio-cultural explanation for the incessant feuds and clan conflicts, otherwise known
as Rido (Gonzales, 1997).

Abdullah (1996) defined Rido as any disagreement that arise between persons of
subgroups in which the allege rights of one party are claimed to be infringed, interfered
with and denied by the other party. Doro (1999), studying the resolved cases in Pantao
Ragat, Lanao Del Norte, characterized Rido as system of exacting and obtaining justice
in Maranao society and it is a form of blood feud. It is a conflict that escalates from
individual to kin members through retaliation or blood vengeance and affecting non allies
or friends. Accordingly, rido has three characteristics: long duration, repetitive killings
and large scale family involvement (Embornas et al, 2014).

Further, rido can occur even among the closest of kin and blood relations.
However, there are also called inactive Rido which happens when the casualties on both
parties are of equal number or social standing, when the aggrieved party is economically
unable to retaliate, or when the family delegates to the mercy of Allah the appropriate
judgment on condition that the assailant is banished from the community (Embornas et al,
2014).

To end Rido, which could last for generations, indigenous conflict resolution
comes into play (Gonzales, 1997). It is important to note that most incidents of Rido are
settled by amicable settlement and mediation (Bacaron, 2010).

For the Maranao Society, conflict management involves two phases or stages. The
first stage relates to the choice in the mode of conflict resolution in which the disputants
and other parties involved in conflict settlement are faced with available modes of
settlement. The second stage refers to the application of the selected mode of conflict
resolution. In appreciating what has become of the indigenous modes of conflict
resolution in the entire picture of conflict settlement, the conformation of factors like
relationship is viewed in relation to types of disputes and nature of offense committed
(Abdullah, 1996).

In the second stage of conflict resolution, the Maranao must be understood that
although taritib a go igma requires the giving fine or payment for dispute settlement, the
specific amount of fine varies based on the degree of offense done by the opposing party.
Usually, the amount of fine for conflict resolution is always subject to bargaining
(Abdullah, 1996).

In a study on Indigenous Conflict Resolution Mechanisms in Mindanao, Bacaron
(2010) outlined the following contemporary tools, processes and requisites in Rido
settlement:

In Mediation, importance is given to the inclusion of the family in the
process, the choice of the mediators and the process itself. Mediators need
to have the required credentials in order to facilitate communication and
negotiations, to appear credible and non-partisan to both parties, as well
as assume responsibility for raising the required blood money. These
mediators may be members of the council of elders, the ummah or religious
leader, the local chief executive, a member of the militaty or influencial
females.

Mediators work at reaching an amiclable settlement, which is a win-win
solution, by invoking or highlighting the relations between the feuding
families to include: being members of the same nuclear family, blood
relatives, descended from the same ancestor, members of the same clan,
community, ethnic group or brothers in faith.

The settlement involves not only the payment for the original conflict but
the results of the retaliatory act. The amount of the settlement would also
be dependent on the status of the people involved which then becomes
complicated if the amount agreed upon cannot be produced.

The resolution process entails the following steps: declaration of ceasefire,
dialogue with both parties, an agreement on settlement, and finally a
religious or community celebration or Kanduli. The settlement agreement
may entail payment of blood money, which is compensation paid to the
family of the murdered person, followed by the signing of an agreement
and an oath taken on the Holy Quran.


Interfacing of Judiciary with Customary Systems


Foreign Experiences

The interaction between judiciaries and customs is complex and constantly
evolving. Engagement occurs across a broad range of issues and in both instances it
changes both custom and the processes of the formal system. [1] The recognition of
informal justice system can be categorized in two different models: 1) full incorporation
and 2) limited incorporation or co-existence. [2]

In full incorporation, the informal justice system is given a formal role within the
formal justice system. The formal state system may codify or incorporate as common law
the informal or customary rules or norms of decisions into its decision making process.
The informal structures may also comprise one section of the lowest tier of courts within
the entire formal state structure. Specialized formal courts may be established to hear
only disputes arising under customary law.

Shalish in Bangladesh: there are 3 distinct versions of Shalish: traditional shalish,
government-administered village courts and NGO modified shalish. It is the
government administered shalish which falls clearly into this full incorporation model.
Government officials apply traditional norms, thus fully incorporating the informal
justice system and the state.

Ugandas Local Council Courts (LCCs), initially set up where official judicial
institutions were absent, are now officially incorporated into the lower court system
with a right to appeal to a Magistrates Court. They also carry out local government
functions. The Ministry of Justice and the Ministry of Local Government jointly
supervise the LCCs.

In Sierra Leone the Local Court Act gives a dominant role to the ministers of
justice, local government and chiefs in the appointment and dismissal of Local Court
officials. The tenure of customary law officers in Sierra Leone depends on the executive
branch. The Local Court Act makes provision for customary law officers (lawyers) to
supervise and advise local courts in matters of law; train local court personnel and
exercise the right of judicial review over decisions of local courts.

The government of Rwanda has adapted the Gacaca, a traditional dispute
resolution mechanism, to process the backlog of genocide related cases.

On the other hand, limited incorporation or co-existence model allows the
informal mechanisms independently of the formal state structures while embedding
them in low-level surveillance and accountability mechanisms; allowing for cross-
referrals. Here the two (or more) systems may retain their distinct jurisdictions (most
commonly with the formal state courts retaining general jurisdiction while the informal
justice system retain limited jurisdiction over cases arising in specified areas).

East Timors Commission for Reception, Truth and Reconciliation drew heavily
on informal dispute resolution structures.

The customary court system in Botswana is significantly more independent from
the state than many incorporated informal justice systems in other states, however,
chiefs courts must be granted official warrants by the local government, and appeals
may ultimately be taken to the formal state courts. As a result, the state retains
substantial control over the customary courts.

The constitutions of Ghana, South Africa and Uganda include broad statements
to the effect that cultural practices that injure mental and physical well-being and dignity
will be judged unconstitutional. In contrast, the constitutions of Kenya, Zimbabwe and
Zambia exempt certain areas of customary and religious law (family and personal law)
from the non-discrimination provision.

The Rondas Campesinas in Peru have become an effective crime control measure
and the state has attempted to regulate their powers and to co-opt them. Various laws
subordinate them to police and judicial authorities. The 1993 constitution did not allow
Rondas that were not linked to an indigenous community to administer justice, and
members have been imprisoned for usurping the power of the police and judiciary. At the
same time, in areas such as Cajamarca, the Rondas have formed a federation with a set of
regulations governing their own operations, and have set up committees to deal with
specific cases.

In Tanzanias Serengeti region, representatives of sungusungu groups (local
neighbourhood watches) collaborate with the state, and are permitted to monitor the
work of the police, prosecution and courts, to ensure that suspects handed over are not
subsequently released through corruption.

The government in Mozambique withdrew the formal judicial system from the
local level by abolishing the locality level of Tribunais Populares or Popular Tribunals
(TPs). While these local level tribunals had only lay non-law professionals as judges,
they were still administratively and financially part of the formal judicial system. The
Tribunais Populares were replaced with Tribunais Comunitarios or Community
Tribunals (TCs) which are not part of the hierarchy of the formal judicial system in
either administrative or financial budgetary terms. In practical terms (membership for
example) these TCs are simply the old community level TPs. They have continued to
operate in a context characterized by resurgent Traditional Authority (TA) power and
involvement in local conflict resolution, even as the former TPs have lost the funding,
technical support, and the place in the formal legal system that they enjoyed prior to
1992. [3]

Local Experiences

Muslims in the Philippines specifically in the southern part according to Rey
1
use
different words to refer to conflict: (1) Rido for Maguindanaons and Maranaos and (2)
banta for Tausugs. According to Nelson Dino Sulu
2
, Banta refers to feuds, which could
be interpersonal, family, or clan feuds. Using pagdangaw (literally meaning "measuring
using fingers") as a guideline, Tausugs enemies and their close and distant relatives are
killed. Nelson Dino Sulu said that pagdangaw connotes everyone or distant relatives or
close cousins would be killed. The same applies to the rido of the Maranaos and Iranuns.
According to Datumanong
3
, conflict is referred to as lido in Maguindanao. Atar
4

indicated that conflicts can come in the form of political conflicts, land disputes, debt,
illegal drugs and cases related to women. Atar added that unequal distribution of
resources, poor governance, values distortion, poor education, and poverty incidence are
the major causes of violence. According to Mangahas
5
, the experience of violence of
rido is twice as common in ARMM as in the country as a whole, and is mostly due to
family or clan conflict, and hardly due to Muslim-Christian conflict. He said that
conflicts between families or between clans are the most common source of violence
throughout the country, has been experienced by 28 percent of ARMM families,
compared to only 16 percent of families in the Philippines as a whole. Mangahas further
claimed that rido is normal for people in ARMM. An SWS survey of ARMM residents
found that 72 percent approve of taking personal retribution in case a family member is
murdered, raped or physically hurt. This is in contrast to a SWS national survey finding
that 59 percent of Filipinos in general disapprove of such retribution. Mangahas further
adds that there were about 1,266 cases of rido in Mindanao occurring from the 1930s up
to 2005, killing more than 5,500 people. Of these cases, 40 percent were resolved, 3
percent recurred, and 57 percent remain unresolved. Land disputes and political rivalries
were the most commonly cited causes of rido.

In another related research, nine provinces were studied by Jamail A. Kamlian, of
the MSU-Iligan Institute of Technology, who interviewed congressmen, provincial
governors, municipal mayors and council members, members of provincial, city, and
municipal peace and order councils, military and police officials, and community leaders.
He accounted for 671 rido cases that left 3,895 people dead, 3,637 wounded, 59
imprisoned and 62 missing. Almost half of the cases began no earlier than the year 2000.
Of the informants, 35 percent cited property disputes, and 21 percent cited political
rivalry, as initial cause of the conflict. In Tawi-Tawi, North Cotabato, Sultan Kudarat,
Zamboanga Sibugay, and Zamboanga del Sur, most informants felt that the judicial
system is not capable of settling family/clan conflicts. Only in Basilan, Sulu, Zamboanga
del Norte and Lanao del Norte did most feel that the system is capable of settling such
conflicts. In eight of the provinces, the great majority of Kamlians informants denied
that the conflicts were influenced by the Islamic religion. The one exception was Sultan
Kudarat, where 69 percent said Islam had an influence.

An inventory of Lanao del Sur rido over 1994-2004 was made by Moctar I.
Matuan of Mindanao State University-Marawi City, who looked for informants among
traditional/religious leaders and past candidates for elective office, choosing to interview
those who were knowledgeable but not closely related to the rido. He found 337 cases of
rido, from which 798 people died and 104 were injured. The cause of rido was politics in
52 cases and land disputes in 45 cases. Although 82 cases were filed in court, only eight
assailants were imprisoned. The abovementioned researcher noted that not a single rido
was settled by the Philippine justice system.

According to Dean Carmen Abubakar of the UP Institute of Islamic Studies, it is
not because Muslims are more violent by nature, but because the faulty formal justice
system in ARMM leaves its people with hardly any option but to settle serious grievances
themselves.







Rik Torress References:

1. Robertson, Geoffrey (2006). Crimes Against Humanity.
2. http://definitions.uslegal.com/l/legal-system/
3. Charles Scribner's Sons (1973). Dictionary of the History of Ideas.
4. 1. http://www.aseanlawassociation.org/papers/phil_chp1.pdf
5. Cruz, Isagani (2002). Philippine Political Law.
6. Cruz, Isagani (1972). A Quintessential Constitution, San Beda Law Journal
7. Constitution, Art. II, Sec. 1
8. Constitution, Art. VII, Sec. 1
9. Constitution, Art. VI, Sec. 1
10. Constitution, Art. VIII, Sec. 1
11. Adolfo v Court of First Instance, GR No 30650, July 1970, 34 SCRA 169 (1970).
12. Civil Code, Art. 8
13. Miranda v Imperial, 77 Phil 1066 (1947).
14. Constitution, Article XIV, Sec. 17
15. Civil Code, Articles 11 & 12
16. BP Blg. 129, Sec. 13
17. BP Blg. 129. Sec. 3
18. PD No. 1083, Article 2
19. http://www.aseanlawassociation.org/papers/phil_chp4.pdf
20. Revised Rules of Criminal Procedure, Rule 110, Sec. 5
21. Revised Rules of Criminal Procedure, Rule 110, Sec. 3
22. Revised Rules of Criminal Procedure, Rule 110, Sec. 3
23. Revised Rules of Criminal Procedure, Rule 110, Sec. 5, Par. 1
24. Revised Rules of Criminal Procedure, Rule 110, Sec. 8 & 9
25. Revised Rules of Criminal Procedure, Rule 112, Sec. 4
26. Revised Rules of Criminal Procedure, Rule 112, Sec. 1
27. Constitution, Art III, Sec. 14(2); Revised Rules of Criminal Procedure, Rule 115

Bay Laras References:

Zurstrassen, Matthew (March 2012). Customary Dispute Resolution Research Project.
Pacific Judicial Development Programme.

http://www.wipo.int/wipo_magazine/en/2010/04/article_0007.html

www.wipo.int

A case study of indigenous traditional legal systems and conflict resolution in Rattanakiri
and Mondulkiri Provinces, Cambodia, 2007. Ministry of Justice, Ministry of Interior and
UNDP, Cambodia.

Roy , Raja Devasish, 2005. Traditional Customary Laws and Indigenous Peoples in Asia.
Minority Rights Group International.

Rodil, Rudy, December 9, 2006. Sharing/Analysis on the Bangsamoro Issue. Southern
Christian College, Midsayap, Cotabato.

Gonzales, Francisco L., 1997. Sultans of a Violent Land. Rebels, Warriors and Ulama.
Institute for Popular Democracy. Quezon City, Philippines.

Intuas, Abdullah M. Indigenous Methodology of Conflict Resolution Among Maranao: A
Theoretical Consideration. Proceesings Symposium on Peace and Development in
Mindanao, December 5-7, 1996.

Benitez Barcenas, Teresita. 1984. Meranao Traditional Political System: Structure and
Roles.Mindanao Journal.Vol. XI July 1984 June 1985, University Research
Center, Mindanao State University, Marawi City.

Bacaron, Marly Anne, 2010. INDIGENOUS CONFLICT RESOLUTION
MECHANISMS IN MINDANAO: IS THEIR INSTITUTIONALISATION THE
ANSWER?. Asian Journal of Public Affairs. Volume 3, Number 1.

Incios References:

[1] CDR-Final-Regional-Strategy-and-Recommended-Report-2012.pdf
[2] EwaWojkowska.pdf
[3] Lubkemann and Garvey (2005), Rule of Law in Mozambique, USIP.

Podongs References:

1 Rey Ty. (2012). Muslim Perspectives on Peacebuilding in Mindanao, Philippines:
Community Conflict Resolution and Interfaith Peacebuilding Implications for
Muslims in the United States. Claremont, CA: Claremont Lincoln University
Center for Global Peacebuilding.
2 Sulu, N. D. (2011). Maas Nur Misuari . Jolo, Sulu Darul Islam: Tausug Global
Media.
3 Datumanong, A. M. (2005). The Maguindanaon datus: Their role in
resolving conflict.(Unpublished doctoral dissertation). Notre Dame University
4 Atar, A. H. T. (Ed.). (2009 October). Kalilintad., Iligan City, Philippines: Rido,
Inc.
5 The scale of rido in Mindanao. Mahar Mangahas, Philippine Daily Inquirer
posted 21:56:00 11/27/2009