September 5, 2018

LEGAL HISTORY
ISLAM

I. ISLAM
● Arabic word which means “submission to God”
● Muslim: followers of Islam
● 2nd biggest religion in the world (in terms of followers)
● Monotheistic religion (deity: Allah)
● Faithfuls follow the word of Allah as revealed to the prophet Muhammad
● Qur’an: major holy text

Islam as a political system

● Caliphate (khilafa) - “the office or dominion of the Caliph”

● Caliph - shortened from Khalifat Rasul Allah, which translates to “Successor to the Messenger of
God”
● After Muhammad’s death, his companions held a meeting to designate a successor for the
Prophet, who would lead the new Muslim community in Medina
● The first four Caliphs, Abu Bakr, Abu Uthman, Abu Umar, and Abu Ali, were acclaimed by the
leadership, pledged for by the community, and referred to as the Rightly Guided Caliphs
● During the reign of the first four Caliphs, Islam spread rapidly throughout Middle East, Europe,
Africa, and Asia
● Though to have arrived in the Philippines around mid 1300’s

Islam as a legal system

● Sharia
○ “path” in Arabic
○ a guide to the Muslim way of life, derived from the Qur’an and the Sunna
○ marriage and criminal laws are the two most significant, and controversial, aspects of
sharia law
● there is no one form of Sharia
○ localities converted to Islam tried to reconcile their local customs with the teachings of
the Qur’an and the hadith, giving rise to various Islamic school of thoughts
○ The Sharia in Saudi Arabia is very different from the Sharia in Pakistan, and both are
vastly different still from the Sharia in Yemen
● many of the criticisms surrounding sharia law centers on its ability to coexist with democracy
○ some faithfuls hold that “democracy” is a purely Western construct that the imposed
upon Islamic countries
○ some groups hold that democracy is supported by the Qur’an, as it commends mutual
consultation among people
● some scholars believe that secularism is the best way to observe sharia, as imposition of Islam
upon the populace runs counter to the nature of Islam
 ○ in such a scenario, the people then would be observing the law of the state rather than
freely performing their religious duties
● Some countries under Sharia:
○ Saudi Arabia
○ Yemen
○ Brunei
○ Qatar
○ Pakistan
○ United Arab Emirates
○ Iraq
○ etc.

From Barangay to Centralized Government

II. ISLAM DURING PRE-COLONIAL PHILIPPINES

● Date when Islam was first introduced in the Philippines is unknown

● Mid-13th century and onward - seats of Muslim regimes: Malaya, Sumatra, Java, Mindanao
● By the time the Spaniards came to the Philippines, some coastal regions were already under a
central gov’t modeled on Muslim states
● Sultanate of Sulu - first Muslim community to establish centralized gov’t
○ Founded in 1450 by Abu Bakr
○ Multi-ethnic
○ Foreign relations involved trade, mutual friendship, military alliance
■ Traded in brazilwood, black pepper, tin, pearls
● Sultanate of Maguindanao - founded in 1516 by Sharif Kabungsuwan
○ Important figures:
■ Rajah Buisan - leading commander during third stage of Moro wars
■ Sultan Kudarat - united people in Mindanao under his strong leadership
○ Diplomatic and trade relations with China
● Other trading centers in Mindanao
○ Caraga - slave trading wars
○ Butuan - first Philippine state to establish diplomatic relations with China
○ Dapitan - settled by refugees from Bohol
○ Saranggani Island - forest products, wax, rice, coconuts, fruits, domestic animals

Manifestations of Islam and Muslim Culture

1. Language
● Malay - language of royalty and commerce
○ Tagalog words hukum, asal, agimat are Malay-Arabic
○ Some honorifics (po, kayo, sila) are of Islamic origin
2. Centralized form of government
 ●Sultanates and chiefdoms
●Primus inter pares - paramount chief
○ Prominent or wealthy family
○ Victories in warfare
○ Marriage
3. Raids against other tribes
● Purpose: avenge death of chief, seize slaves to sell, enforce alliances for trading networks
● Sea raiding in Visayas and Mindanao
○ Warship: karakoa
○ To capture slaves or valuable tradeware
4. Islam in Luzon
● Hold on the people was light
● Influence limited to proscription against eating pork
5. Sharia became a source of law

Setbacks to Implementation of Sharia

Spanish colonization
● Objective: spread Christianity
● Muslims relegated to parts of southern Mindanao
American colonization
● Policy of religious freedom reversed in favor of integration
● 1914 - law imposed that disregarded Muslim customary law
● Separate department for Mindanao and Sulu
● US ceased recognizing indigenous legal systems of the Moros

III. ISLAM DURING COLONIAL PHILIPPINES

A. Spanish Period

Arrival of Spaniards (1565)

●
Accomplished Christianization and Imperialist Aims in Luzon, Visayas and parts of Mindanao
●
Resistance in Western Mindanao and the Sulu Archipelago
●
Three Well-Established Sultanates:
1. Sulu
2. Maguindanao
3. Buayan
The Moro Wars

● More than 300 years

● Slow but progressive movement of Islam; Confinement to the South
● Depopulation, disruption of commercial activities, economic decline
● Morality plays: mistrust, suspicion and fear
End of the Spanish Period

● Sultanates never successfully incorporated into Spanish Colony

● The Paris Treaty

B. American Period

Bureau of Non-Christian Tribes (BNCT)

● Created on October 2, 1901 by virtue of Act No. 253, under the Department of Interior
● Purpose:
1. Conduct ethnographic research among un-Hispanized peoples, including those in Muslim
Mindanao
2. Determine practicable means to bring about advancement in civilization; to ascertain
name and territorial limits
● Objected to by Ilustrados
● Only four employees; No real power; Short-lived

The Ethnological Survey of the Philippine Islands

● Reconstituted the BNCT on August 24, 1903

● Duties expanded by Act No. 841 to include anthropological and ethnological research among all
inhabitants of the Philippine Islands
● Got passed along the different departments and bureaus

The 1904 Louisiana Purchase Centennial Exposition

● A 7-month long exhibit held in St. Louis, Missouri to show US citizens and capitalist the
conditions of the PI
● Had 15 full-size replicas of PH village centers (7 for Non-Christian Tribes) with LIVE PEOPLE
to make them seem real
● 1,000 Filipinos were shipped to St. Louis, Missouri, at least one Negrito died
● BNCT was reestablished by the Philippine Autonomy Act (August 29, 1916)

Mindanao after the Paris Treaty

● Dean Worcester: BNCT was the original control mechanism but its demise led to an alternative
strategy
● A written agreement between the Sultan of Sulu and US Brigadeer General John C. Bates
(August 20, 1899)
● Military District of Mindanao and Jolo (October 30, 1899)
● Two sub-districts:
1. Northern Coast (migrant Christian population) Cagayan de Oro (headquarters until May
15, 1901)
2. Zamboanga (headquarters)- regional capital
● Department of Mindanao (October 1, 1902)
The Moro Province

● Established by the Commission (June 15, 1903)

● Under the direct supervision of the Civil Governor
● Governors (1903-1913: Leonard Woood, Tasker Bliss, John Pershing
● Divided into five districts and their capitals:
1. Sulu, Jolo
2. Cotabato, Cotabato
3. Davao, Davao
4. Lanao, Iligan
5. Zamboanga, Zamboanga
● Cultural sub-nationalism

The Legislative Council

● Made up of six people authorized by the Commission for the:

1. Enactment of tax laws
2. Building of schools and public works
3. Creation of municipal governments and tribal courts
4. Collection and codification of customary laws
5. Modification of such customary laws to be consistent with the Organic Act
● Civil and criminal actions between Moros
● Had no anthropological training; unimpressed with their own collection
● General Wood: “There is nothing to codify”

Tribal Ward Courts

● Established by the Legislative Council (October 6, 1905)

● Equivalent to Justice of the Peace Courts
● Same procedural and substantive laws
● Serious constitutional shortcomings

Department of Mindanao and Sulu

● Created under Act No. 2408

● One year after the Moro Province was passed to civilian hands (December 15, 1913)

IV. NATURE OF SHARIA OR ISLAMIC LAW

● “Code of Life”; Divine Law

● Law that binds all Muslims into one community
● Church and State are one; law and religion are indivisible
● Purpose of the state: enforce and spread Sharia
 ● “A person cannot really be a good Muslim and cannot truly understand Islam unless he knows
Sharia.”
● Man had to accept Sharia Islam entirely or reject it utterly

Sharia and Customary Law

● 4 foundations of Islamic Law

1. Koran: Holy Scripture of the Muslims

2. Sunnah: Actual practices of the Prophet Muhammad

3. Ijma: Consensus of scholars; gave rise to systematic original reasoning which stimulated
creative thought in Islamic jurisprudence

4. Qiyas: Analogical Reasoning

● Adat: custom law of Muslims on persons and family relations

-interfaced with Sharia as where Koratic verses are invoked in adat judgments
-focused on communitarian values

● Agama: religious tribunal presided in theory by the sultan but in practice, convoked by a deputy,
the kazi
-applies customary law that governs Muslims

● Some codes attributed to Muslims

o Luwaran
o Code of Sultan Kudarat
o Code of Shariful Hashim
o Code of kalantiaw
o Maragtas Code
o Other codes reflect Islamic influence derived from Koran emphasizing crimes against
chastity such as abduction, seduction, acts of lasciviousness, elopement, fornication,
adultery, and incest.

*The Code of Muslim Personal Laws was enacted through PD 1083 which became effective
on February 4, 1977.

● Marriage in Islam
o Contract between families
o Religious institution imbued with high degree of sanctity and with strict pre-conditions
and celebrated with elaborate rituals
o “Living-in” without benefit of clergy was punishable as a crime
o Polygamy is tolerated; allowed only under certain conditions:
▪ Equal companionship and treatment must be given to each wife, which must not
be more than 4
▪ Only in exceptional circumstances, as when the wife is barren or when she is
incapable of copulation or if she commits adultery
 “If you feel that you shall be able to deal justly with orphans, marry women of your
choice two, three or four, but if you fear that you shall not be able to deal justly with
them then only one,” enjoins the Koran

o Divorce may be granted if both husband and wife find it impossible to live together in
harmony due to cruelty or infidelity; grounds:
▪ incompatibility
▪ infidelity
▪ impotence
▪ forcing the wife into prostitution
▪ habitual drunkenness, inflicting physical injury on the wife, abandonment

o Maguindanao Code of Laws, is particularly strict with respect to sexual behavior of

married couples. Art. 43 of the Code provides that if a married man commits adultery
with a free woman, both shall be stoned to death. On the other hand, if a married woman
commits adultery, both adulterer and adulteress shall suffer 8 lashes.

o If a bachelor or widower commits adultery and is killed by a non-Mohammedan, the

latter shall be put to death; but a Mohammedan who may kill such an adulterer shall
not be put to death.
o If a man seduces a maiden, both shall suffer 100 lashes, and the man shall marry the
woman and live with her even though he is married.
o If slaves commit adultery, both man and woman shall suffer 50 lashes.
o Luwaran is not so hard on bachelors engaging in sexual peccadilloes. If a person
seduces or cohabits with a female slave held by him as security for debt, with the
knowledge or consent of the debtor, he shall not be held guilty, but he shall give her a
dowry.
o If the seduction or cohabitation occurs without the consent of the debtor, the creditor
shall be liable to a fine, or shall give the woman a dowry to be paid to the debtor.
o If a man enters the house of another with the intention of holding private intercourse
with a woman therein with whom it is unlawful for him to associate privately, and the
woman objects, he shall be fined four cuspidors or 4 pesos, or shall suffer 20 to 39
lashes, or shall be slapped in the face, at the discretion of the judge.
o If a woman comes into the house of a man with the intention of marrying him and of
living with him, and the man refuses to marry her, and she is later taken away by her
people, the man shall not be liable for punishment.
o In the Luwaran, if a man divorces his wife three times, or a slave divorces his wife
twice, it shall not be for him, the man, to marry again before the divorced woman is
married to another person.
If a man divorces his wife after the conclusion of the marriage act o ceremonies, and
before any sexual intercourse has taken place, the woman shall have half of the dowry
only
 o If the divorce occurs after sexual intercourse has taken place, the woman shall have
all the dowry.
o If a man refuses to marry a woman after having been engaged to her, the whole
dowry shall be returned to him, excepting the expenses for the feast incurred by the
father of the woman.
● Property Law
o penalty imposed on perpetrator is based on the social status of the complainant
o Principal Sulu Code: if the property of any kind of the sultan is stolen, the thief shall
be fined 70 pieces of calico; if the property of datus with official titles is stolen, the
thief shall be fined 35 pieces of calico; if datus without official title are robbed, the
thief shall be fined 30 pieces of calico; if ministers of state are robbed, the thief shall
be fined 25 pieces of calico; if subordinate officers below the panglima or inland
country pandita or the agents of the sultan or panglima are robbed, the thief shall be
fined 20 pieces of calico; if children of subordinate rulers or chiefs are robbed, the
thief shall be fined 10 pieces of calico.
o Luwaran of Maguindanao imposes a more severe penalty reminiscent of Islam: theft
of property amounting to the value of one malong shall have his hand cut off and shall
return the stolen property; if the stolen property does not amount to the value of one
malong, the thief shall suffer 39 lashes or pay a fine of four cuspidors.
● Justice
o social and collective life of the members of the community
o mutual respect of individuals for each other, even for non-Muslims
● Protection of Human Rights
o individual duty geared to the welfare of a member of the community and enrichment
of communal life
o individual as bearer of responsibilities
● On the right to life and to due process:
o “Whatsoever kills a human being without (any reason like) man slaughter, or
corruption on earth, it is as though he had killed all mankind…”
o “Do not kill a soul which Allah has made sacred except through due process”
o Anyone who kills a believer deliberately will receive as his reward (a sentence) to live
I Hell for ever. God will be angry with him and curse him and prepare dreadful
torment for him.”
● On the right to liberty
o “There are 3 categories of people against whom I shall myself be plaintiff on the Day
of judgment. Of these 3, one is he who enslaves a free man, then sells him and eats his
money.
● On the duty to preserve human life:
o “And whosever saves a life it is as though he had saved the lives of all mankind.”
● On security of property:
o “Do not devour one another’s wealth by false and illegal means.”
● On the duty to help the poor
o “And in their wealth, there is acknowledged right for the needy and destitute.”
● On the right to reputation and honor:
 o “You who believe, do not let one (set of) people make fun of another set. do not
defame one another. do not insult by using nicknames. and do not backbite or speak
ill of one another.”

V. BANGSAMORO ORGANIC LAW (RA 11054)

● establishment of an autonomous political entity known as the Bangsamoro Autonomy Region in

Muslim Mindanao (BARMM)
● replacing the Autonomous Region in Muslim Mindanao
● product of decades-long peace negotiations between rebel groups in Mindanao
● heart of the peace talks: Moro’s right to self-determination
● Treaty of Paris (1898)
o Spain relinquished its claim over its colonies including the Philippine islands
o Contested by Sulu leaders
o Jabidah Massacre
o Men from Sulu and Samar tribes were recruited for a secret operation to destabilized
Sabah
o Led to creation of secessionist groups
● 1976 Tripoli Agreement
o Led to the creation of the ARMM
● Implications of the BOL
o Political structure
▪ from unitary to parliamentary-democratic
o Justice system
▪ Shari’ah courts jurisdiction
o Fiscal autonomy
▪ automatic allocation of the annual block grant
▪ P5 billion fund for rehabilitation of conflict affected areas
o Territory
▪ ARMM provinces + plebiscite for North Cotabato, Lanao del Norte, Isabela
o Bangsamoro identity
▪ Stricter definition of the Bangsamoro people
● Constitutionality of the BOL
o Memorandum of Agreement on Ancestral Domains (MOA-AD)
▪ Associative relationship with the central government
▪ Failure to consult with affected communities
▪ Desire for own police, military, and judicial systems

Section 1-B. Group 4 members: Codamon, Nobee | Concha, Angelica | Medina, Regina Victoria |
Nicolas, Jayne Mellany | Senadoza, Eunice Alexcy| Valencia, Isis Kyle

References:
Agabin, MESTIZO
Lynch, COLONIAL LEGACIES
CODE OF MUSLIM PERSONAL LAWS
BANGSAMORO ORGANIC LAW