Procedure and Evidence

Sittie Noronnisa Mambuay Sumpingan-Lomangcolob, LPT, Sh.L.

Court Attorney
Court of Appeals
 1. COURSE INTRODUCTION
2
1. Brief background of Rules on Procedure and Evidence in Islamic Law
a. Practice of the Prophet- During the time of Prophet
Mohammad SAW, he would apply the law by interpreting and applying
Qur’anic verses. When controversy arose among his people, he acted as
a judge or qadi and he would resolve the controversy based on Qur’anic
verses that would be revealed to him in relation to such controversy.
Qur’anic verses pertaining to law, procedure and methods of proving a
fact which requires evidence were also revealed to him. For instance, it
was revealed to Prophet Muhammad SAW the crimes that were
punishable by Hadd, the method of imposing the punishment of Hadd;
and in case of adultery, four (4) male witnesses must witness the
commission of adultery.
3
b. Practice during the Khulafa Arashidun- After the death of
Prophet Muhammad SAW, he was succeeded by the Khulafa Arashidun
(Caliphates). During the time of the Khulafa Arashidun, they followed
the practices and teachings of Prophet Muhammad SAW by applying the
provisions of the Holy Qur’an to any legal controversies brought before
them. Aside from Qur’anic injunctions, they also applied the Sunnah or
traditions of Prophet Muhammad SAW. Thus, the sources of law or
during those times were the Qur’an and the Sunnah of Prophet
Muhammad SAW.
4
c. Practice during modern times- In modern times or after the
reign of the 4 caliphates, courts were established and litigants learned
how to come to courts and brought their legal controversies thereto for
judicial resolution. At this time, the sources of Muslim law have evolved
in that aside from the primary sources, i.e., the Qur’an and Sunnah,
additional secondary sources were also adopted, such as the Ijma, Qiyas,
Istislah, etc., as bases in resolving legal controversies. Also, rules were
promulgated for the proper introduction and appreciation of testimonial
and other evidence as well as proper and orderly disposition of cases.
 Adoption of Presidential Decree No. 1083, the Special Rules
Governing Shariah Courts, and other Muslims Laws
5 August 1973 – Then Pres. Ferdinand E. Marcos issued Memorandum
Order No. 370 creating a Research Staff to draft the Proposed Code of
Philippine Muslim Laws.
May 1, 1974 - Executive Order No. 442 was issued creating a
Presidential Commission to Review the Proposed Code of Filipino
Muslim Laws drafted by the Research Staff.
August 29, 1975 - the Presidential Commission submitted the final
version of the proposed Code to the President.
February 4, 1977 – Presidential Decree No. 1083, or the “Code of
Muslim Personal Laws,” (Muslim Code) was promulgated.
 Adoption of Presidential Decree No. 1083, the Special Rules Governing
Shariah Courts, and other Muslims Laws
6 PD 1083 or the Muslim Code aims to:
1. Recognize the legal system of the Muslims in the Philippines as
part of the law of the land;
2. Make Islamic institutions more effective;
3. Codify Muslim personal laws; and
4. Provide for an effective administration and enforcement of
Muslim personal laws among Muslim Filipinos.
-Also stipulated the institutionalization of a Shari’a Court System
and an Office of Jurisconsult in Islamic Law; and created Shari'a District
Courts and Shari'a Circuit Courts which are courts of limited jurisdiction,
exercising powers and functions in accordance with the Muslim Code, and are
subject to the administrative supervision of the Supreme Court.
 Adoption of Presidential Decree No. 1083, the Special Rules
Governing Shariah Courts, and other Muslims Laws
7 1987 Philippine Constitution - mandated the enactment of an
organic act for the creation of an Autonomous Region in Muslim
Mindanao which shall “provide for Special Courts, with Personal
Family and Property Law Jurisdiction consistent with the provisions of
the Constitution and national laws.” (Sec. 15 & 16, Art. X)
Republic Act No. 6734, or otherwise known as the “Organic
Act for the Autonomous Region in Muslim Mindanao” – mandated that
the Shari’a District Courts and Shari’a Circuit Courts created under the
Muslim Code are to continue to function. It also created a Shari’a
Appellate Court with limited jurisdiction. (Section 21)
 Adoption of Presidential Decree No. 1083, the Special Rules
Governing Shariah Courts, and other Muslims Laws
8 Republic Act No. 9054 – enacted on February 7, 2001 which
expanded the Organic Act of the ARMM and increased the jurisdiction
of Shari’a Courts.
Republic Act No. 11054 – enacted on July 27, 2018 which
provided for the Organic Law for the Bangsamoro Autonomous Region in
Muslim Mindanao (BARMM), replacing, for this purpose, the ARMM and
repealing its Organic Act. This law also created a Shariah High Court,
replacing the Shariah Appellate Court. b.) further increased the jurisdiction
of Shari’a Courts; c.) authorized the Supreme Court to adopt rules for the
integration of the Shari’a Bar and promulgate a new Shari’a Rules of Court;
d.) authorized Congress to create additional Shari’a Courts, upon the
recommendation of the Supreme Court, in and outside the Bangsamoro
Region where considerable number of Muslims reside; and
9
e.) authorized the Parliament to enact: 1.) laws on personal, family, and
property law jurisdiction; 2.) laws governing commercial and other civil
actions not provided for under the Muslim Code, and 3.) laws on criminal
jurisdiction on minor offenses punishable by arresto menor or ta'zir or fines
commensurate to the offense.

- Maintained the Office of the Jurisconsult in Islamic Law and

authorized the creation of 1.) a Shari’a public assistance office; 2.)
Shari’a special prosecution service, 3.) Shari’a academy; and 4.) an Office for
Traditional or Tribal System.
 Special Rules of Procedure Governing Shariah Courts
(Ijraat Al Mahakim Al Shariah)
10 Statutory Basis:
Articles 148 and 158 of the Code of Muslim Personal Laws
provides that the Shari'a district courts and Shari'a circuit courts "shall
be governed by such special rules of procedure as the Supreme Court
may promulgate."
Sec. 17, of RA 9054 Organic Act Expanding ARMM states
that “Proceedings in the Shari'a Appellate Court and in the Shari'a lower
courts in the Autonomous Region shall be governed by such special
rules as the Supreme Court may promulgate.”
On 20 September 1983, the Special Rules of Procedure
Governing Shariah Courts was promulgated by the Supreme Court.
 2. What is the Special Rules of Procedure Governing Shariah Courts
11 a. in relation to Islamic administration of justice
Considering that Shari’a courts, which were created
specifically for the effective administration and enforcement of the Code
of Muslim Personal Laws, are subject to the administrative supervision
of the Supreme Court, it can be said that the Special Rules of Procedure
Governing Shariah Courts is not entirely Islamic origin as it is also
based on Philippine procedural law.
Also, Article X, Section 1 of RA 11054 states that “the
dispensation of justice in the Bangsamoro Autonomous Region shall be
in consonance with the Constitution, Shari'a, traditional or tribal laws,
and other relevant laws.” (Article X, Section 1)
12 b. in relation to Islamic law on procedure and evidence
On matters of procedure, the Rules of Court of the Philippines
are applied in a suppletory character; however, in relation to the number,
status, or quality of witnesses (adala) and evidence required to prove any
fact, the Shari'a courts are required to adhere to the sources of Muslim
Law and the Rules of Court shall apply in a suppletory manner. (Sec. 17,
Special Rules)
13 c. in relation to the Rules of Court governing Philippines
courts
While under the Special Rules, Muslim Laws shall be
followed in relation to the number, status, or quality of witnesses (adala)
and evidence required to prove any fact, and the Rules of Court shall
apply in a suppletory manner, under Sec. 18. of the Special Rules, all
special cases or offenses cognizable by the court may be filed in such
form and head 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.
 II. GENERAL PROCEDURE
14
1. COMMENCEMENT OF ACTION (DA’WA)
Define Action- An action means an ordinary suit in a court of justice,
by which one party prosecutes another for the enforcement or
protection of a right or the prosecution or redress of a wrong.

How is an action commenced?

All actions and proceedings in the Shari’a court shall
commence by the filing of a complaint. This complaint shall be
prepared at least in triplicate by the plaintiff (muddai) or his/her
counsel (wakil) or by the Clerk of Court. (Sec. 1, Special Rules)
 II. GENERAL PROCEDURE
15 A. COMPLAINT Defined- Complaint is a pleading alleging
the plaintiff’s cause or causes of action. It contains statement of facts
constituting the cause of action in plain and concise language, in such a
manner as to enable a person of common understanding to know what
is intended.
Cause of action, defined- A cause of action is an act or
omission of one party in violation of the legal right or rights of the
other.
Elements of cause of action.
(1) the legal right of the plaintiff; (2) the correlative obligation of the
defendant to respect that right; and (3) an act or omission of the
defendant in violation of said legal right.
16 B. CONTENTS OF THE COMPLAINT:
A complaint contains the following:
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
3). A concise statement of the cause of action and the relief prayed for.
(Section 2 of the Special Rules)
17 Specifically, a complaint contains these five (5) things as follows:
1). Caption – which sets forth the following:
a). Name of the court
b). Title of the action-which indicates the names of the parties;
and c). Docket number
2). Body – which sets forth the following:
a). Designation of the complaint;
b). The allegations of the party’s claims or defenses;
c). Relief prayed for; and
d). Date of the pleading
18 3). Signature and address – every pleading including a complaint must
be signed by the party or counsel representing him, stating in either case
his address which should not be a post office box.

4). Verification –a pleading is verified by an affidavit that the affiants

has read the pleading and that the allegations therein are true and correct
of his personal knowledge or based on authentic records.
19 5). Certification of Non-forum Shopping –the plaintiff shall, under oath,
certifies that: a). He has not theretofore commenced any action or filed
any claim involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his knowledge, no such other action
or claim is pending therein; b). If there is such other pending action or
claim, a complete statement of the present status thereof; c). If he should
thereafter learn that the same or similar action or claim has been filed or
is pending, he shall report that fact within five (5 ) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been
filed.
20 C. SUMMONS - is a writ by which the defendant is notified
of the action brought against him. It is a notice to the defendant that a
particular person named therein has commenced an action against him
in a particular court. It is a process by which the court acquires
jurisdiction over the person of the defendant.

D. SERVICE OF SUMMONS
Summons together with the copy of the complaint shall be
served upon the defendant. (Sec. 3, Special Rules)
21 MODES OF SERVICE OF SUMMONS:
1). Personal Service or service in person –this is made by
handing personally a copy of the summons to the defendant in person,
or, if he refuses to receive and sign it, by tendering it to him.
2). By substituted service- a). by leaving copies of the
summons at the defendant’s residence with some person of suitable age
and discretion then residing therein, or b). by leaving copies of the
summons at the defendant’s office or regular place of business with
some competent person in charge thereof.
22 3). By publication – service of summons is made, with leave
of court, by publication in a newspaper of general circulation and in
such places and for such time as the court may order if the defendant is
a). designated as unknown owner, or
b). whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry.
4). By extraterritorial service – done, with leave of court, a).
by personal service out of the Philippines, or b). by publication in a
newspaper of general circulation in such places and for such time as the
court may order.
 E. PLEADING AND MOTIONS DISALLOWED
23 1. Motion to Dismiss or to Quash;
2. Motion for Bill of Particulars;
3. Motion for extension of time to file pleadings or other papers;
4. Motion to Declare defendant in Default;
5. Reply, Third party complaints, or Intervention;
6. Petition for Certiorari, Mandamus, or Prohibition against any
interlocutory order issued by the court;
7. Petition for Relief from judgement;
8. Motion for New Trial or Re-opening of trial;
9. Any dilatory motion for postponement. (Sec. 13, Special Rules)
24 2. ANSWER -is a pleading in which a defending party sets forth his
defenses. The purpose of the answer is to define the issues and to set
forth matters that would prevent recovery by the claiming party. 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. (Section 4, Special Rules)
25 EFFECT OF FAILURE TO FILE ANSWER
Should the defendant fail to answer the complaint within ten
(10) days from service the court shall proceed to receive the evidence ex
party upon which judgement shall be rendered. (Section 5, Special
Rules)
26 3. PRE-TRIAL CONFERENCE
PURPOSE
The purpose of the pre-trial conference is two-fold: (1) to
work out for an amicable settlement of the action; (2) if amicable
settlement cannot be arrived at, to define and clarify the issues in the
case by the court.
27 3. PRE-TRIAL CONFERENCE
STEPS
1. 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, the court shall clarify and define the issues of the
case which shall be set forth in a pre-trial order.
2. 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.
28 3. Should the court find, upon consideration of the pleadings, evidence
and memoranda, that a judgement may be rendered without need of a
formal hearing, the court may do so within fifteen (15) days from the
submission of the case for decision. (Judgment on the Pleadings)
(Section 6, Special Rules)
Judgment on the pleadings. — Where an answer fails to tender an issue,
or otherwise admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment on
such pleading.
29 Only witnesses whose statements were submitted at the pre-
trial may be allowed to testify in the formal trial or hearing. Their
statements shall constitute their direct testimony as basis for cross-
examination. (Sec. 7(3), Special Rules)
30 4. HEARING/ ORDER OF TRIAL
(1) The plaintiff (mudda’i) has the burden of proof, and the
taking of an oath (yamin) rests upon the defendant (mudda’alai). Thus,
the plaintiff (mudda’i) must produce evidence on his part.
(2) If the plaintiff has no evidence to prove his claim, the
defendant shall take an oath and judgement shall be rendered in his
favor by the court and the case shall be dismissed.
(3) Should the defendant refuse to take an oath, the plaintiff
shall affirm his claim under oath in which case judgement shall be
rendered in his favor. Should the plaintiff refuse to affirm his claim
under oath, the case shall be dismissed.
31 (4) If the defendant admits the claim of the plaintiff,
judgement shall be rendered in his favor by the court without further
receiving evidence.
(5) If the defendant desires to offer defense, the party against
whom judgement would be given on the pleadings and admission made,
if no evidence was submitted, shall have the burden to prove his case.
(6) When the defendant raises in the answer a counterclaim,
the burden of proof is on him with respect to such counterclaim and the
taking of an oath rests with the plaintiff. His counterclaim partakes of
the nature of a separate complaint or cause of action against the plaintiff.
As such, he has ordinarily the burden of proof or onus probandi.
32 ORDER OF EXAMINATION
When the action is put on trial on the merits because the party
litigants offer to prove their respective claims and defenses, the order of
examination comes in. Each witness of the parties shall be examined in
the following order:
(a) Direct examination by the proponent (the statement of the
witness submitted at the pre-trial shall serve as his direct testimony);
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
33 C. INTERLOCUTORY ORDER -is an Order that does not
constitute a final judgment on the merits. Whereas, a Final Judgment
constitutes a final resolution of the whole controversy.

5. SUPPLEMENTAL PROCEEDINGS
A. SUPPLETORY RULE IN CIVIL CASES
The court shall adhere to the sources of Muslim Laws relating
to the 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, Special Rules)
34 B. SUPPLETORY RULE IN SPECIAL OFFENSES
All special cases or offenses cognizable by the court may be
filed in such form and head 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. (Section 18,
Special Rules)
35 6. JUDGMENT OR DECISION
The judgement 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.
FORM OF A JUDGMENT
A judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is based, signed
by him, and filed with the clerk of court (Sec. l, Rule 36, Rules of
Court). No decision shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law on which it is based
(Sec. l4, Art. VIII, Constitution).
36 B. FINALITY OF DECISION
(1) The judgment becomes final and executory upon the expiration of
the fifteen-day period for appeal; (Sec. 8(2), Special Rules) Duch period
shall be counted from the date of receipt of the judgment.
(2) Once the judgement becomes final and executory, the court motu
propio shall immediately issue a writ of execution for the satisfaction of
the judgement. (Section 8, Special Rules)
37 C. WRIT OF EXECUTION - is a judicial process to enforce
payment, satisfaction or performance of a final judgment against the
defeated party in a case.
38 7. APPEAL -is a resort to a superior court to review the decision of an
inferior court or administrative agency. An appeal shall be made by
filing a notice of appeal addressed to the court and by paying the docket
fee within fifteen (15) days from receipt of the judgement. (Section 9,
Special Rules)
Within five (5) days from the perfection of the appeal, the
clerk of court shall transmit the original record to the appropriate
appellate court. (Section 10, Ibid.)
Upon receipt of the original records, transcripts and exhibits,
the clerk of court of the Shari'a District Court shall notify the parties of
such fact. (Section 11, Ibid.)
 MODES OF APPEAL
39

ORDINARY APPEAL – The appeal to the Shari’ah District Court in

cases decided by the Shari’ah Circuit Courts in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment. The same rule applies to cases
decided by the Shariah District Courts in the exercise of its original
jurisdiction. (Rule 41 of the Rules of Court)

PETITION FOR REVIEW – The appeal to the Shari’ah High Court in

cases decided by the Shari’ah District Court in the exercise of its
appellate jurisdiction shall be by petition for review. (Governed by Rule
42 of the Rules of Court)
 MODES OF APPEAL
40

PETITION FOR REVIEW ON CERTIORARI– The appeal to the

Supreme Court in cases decided by the Shari’ah High Court (or in the
meantime the Court of Appeals) in the exercise of its original and/or
appellate jurisdiction shall be by petition for review on certiorari, raising
only questions of law, governed by Rule 45 of the Rules of Court, or by
petition for certiorari, with regards to errors of jurisdiction and governed
by Rule 65 of the Rules of Court.
 III. RULES OF EVIDENCE
41 Evidence- is the means sanctioned by these rules of
ascertaining in a judicial proceeding the truth respecting matter of fact.
(Sec. 1, Rule 128, Rules of Court)
Evidence v. Proof.
Proof is that which convinces; evidence is that which tends to
convince; proof is the perfection of evidence, for without evidence there
is no proof, though there may be evidence which does not amount to
proof. Stated differently, proof is the result of evidence; evidence is the
means which leads to it. Proof is the effect of evidence – the
establishment of a fact by evidence. (Gubat)
 “Burden of proof” v. “burden of evidence”
42 Burden of proof or “onus probandi” is meant the obligation
imposed upon a party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action, to establish its
proof.
Burden of evidence, on the other hand, is defined as “that
logical necessity which rests on a party at any particular time during a
trial to create a prima facie case in his own favor, or to overthrow one
when created against him. The burden of evidence is determined by the
progress of the trial, and shifts to one party when the other party has
produced sufficient evidence to be entitled as a matter of law to a ruling
in his favor. (Gubat)
 Methods of Proving a Fact.
43 Under Islamic procedural law, there are four ways of proving an
allegation or establishing a fact namely:
(a) testimony of witnesses (shuhud);
(b) admission or confession (iqrar);
(c) oath (yamin); and
(d) other evidence (bayyina).
44 1. OATH (YAMIN) -is an invocation of the name of God or of some
person or object held sacred by the person using the invocation, to
witness the truth of a solemn affirmation.
FORM OF OATH
- when Oath is about to be administered to one of the litigants,
the oath is taken in the name of God the highest saying “wa ‘llahe” or
“bi llahi”. (Gubat)
What is the legal effect of an oath?
When an oath is administered upon a party by order of the
court, such oath constitutes as proof of fact in the absence of any other
evidence (Sec. l4, Special Rules).
 TO WHOM MAY BE ADMINISTERED:
45
(l) An oath (yamin) legally binding in a manner and form observed
under Muslim Law may, by order of the court, be administered upon any
of the parties who are Muslims to establish a fact, or to affirm any
evidence presented. Such oath may constitute as proof in the absence of
any other evidence.
(2) 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.
 Oath of Affirmation v. Oral/ Testimonial Evidence:
46 Testimonial evidence and oath of affirmation both constitute
modes of proof. Testimonial evidence, however, precedes oath of
affirmation. The plaintiff (mudda’i) has the burden of proving his claim
by testimonial evidence (shahada) and other evidence (bayyina). If he
has none, the taking of the oath of denial rests with the defendant
(mudda’alai). If the defendant (mudda’alai) refuses to take the oath, then
the plaintiff may take the oath of affirmation as a proof of fact upon
which judgment shall be rendered. (Sec. 7, Special Rules)
Testimonial evidence can be given only by a person not a
party to the action, i.e. a witness; while oath of affirmation can be taken
only by the plaintiff when he has no evidence and upon the refusal of the
defendant to take the oath of denial.
47 PROCEDURE, TIME AND PLACE OF TAKING AN OATH
The court shall set an appropriate time, date and place of oath-
taking or of solemn affirmation by a party. If, at any time before such
appointed date, the party who is required to take an oath or a 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, par. 3,
Special Rules)
48 KINDS OF OATH
1. Procedural Oath – is an oath administered upon an witness before the
reception of his testimony to tell the truth and nothing but the truth.
2. Substantive Oath – which is an oath over a thing, past or present, or
an intentional oath to do or not to do a thing in the future. (Gubat)
49 MUTUAL OATH (Tahaluf )
In case of claims and counter-claims where neither of the
parties would give way at the pre-trial, the court may in its discretion
require both parties mutual oath (tahaluf) on any particular fact or facts
upon which the court may render judgement. (Section 15, Special Rules)
50 MUTUAL ACT OF IMPRECATION (Li’an)
If a Muslim husband accuses his wife of adultery and fails to prove the
same in accordance with Muslim Law, the court may require the
husband and the 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. (Section 16,
Special Rules)
51 Acts of imprecation mean mutual cursing. It is performed by
the husband’s accusation of the wife of adultery four successive times
and the wife’s denial of the same each time it is uttered. At the fifth
time, the husband solemnly invokes the curse of God upon himself if he
tells a lie, and the wife upon her if her accuser is telling the truth. (Holy
Qur’an, Surah Nur, verses 6-9)
52 ADMISSION/CONFESSION (Iqrar) - is a voluntary
acknowledgment, confession or assent of the existence of the truth of
certain facts by a party to the action. Under Islamic Law, admission
(Iqrar) is when a man testifies against himself in support of a claim
made against him.
53 The kind of admission contemplated in Section 7 (2) of the
Special Rules that would enable the court to render judgment without
further receiving evidence is judicial admission. A judicial admission by
a party forecloses the matter admitted from further debate, and
concludes it against the party as though there has been a per-emptory
judicial ruling to that effect. It is in this wise that makes admission or
confession the strongest evidence to prove a cause.
However, an extrajudicial admission, whether express or
implied, made by a party does not conclude the matter as against such
party, but is merely evidence which has to be introduced in the trial by
testimony.
54 EFFECT OF JUDICIAL ADMISSION
The Court generally accepts an admission without requiring
any further proof from the claimant. If the defendant admits the claim of
the plaintiff, judgment shall be rendered in his (plaintiff) favor by the
court without further receiving evidence (Sec. 7(2), Special Rules). An
admission must, however, be unconditional, and it must be voluntary, so
that if obtained by coercion it is not binding nor if made in jest.
Similarly, if the fact admitted is contradicted by apparent and obvious
circumstances of the person making the admission, it will not be
accepted.
55 Requisites for the admissibility of an admission:
(1) The admitter must be sane;
(2) He must be of age;
(3) His admission must be voluntary;
(4) He can lawfully transact business; and
(5) He must not be known or popularly identified in telling lies.
(Alauya)
56 Concept of ESTOPPEL

The law sometimes does not allow evidence being given of a

certain fact having regard to the conduct of the party desiring to adduce
such evidence. This is called bayanu'd darurat which corresponds to
estoppel to the English law. For instance, if the owner of a certain
property sees another person selling it and keeps quiet, he will not be
allowed to prove that the man who purported to sell was not authorized
by him to do so.
 TESTIMONIAL EVIDENCE (SHUHUD)
57
Kinds
(1) Tawatur or universal testimony- such proof consists of information
given by a large body of men that reason cannot conceive that they
would combine in a falsehood or agree in an error.
(2) When testimony is not of this notorious and universal character, it is
called isolated or single testimony.
58 Only witnesses whose statements were submitted at the pre-
trial may be allowed to testify in the formal trial or hearing. Their
statements shall constitute their direct testimony as basis for cross-
examination (Sec. 7(3), Special Rules). Where a witness whose
statement was submitted at the pre-trial can not be presented in court for
cross-examination, his statement shall be inadmissible. A sworn
statement is not admissible in evidence where witness was not presented
in court and there was absence of opportunity by the adverse party to
cross-examine the witnesss.
 PARTY CANNOT BE A WITNESS
59
Under Islamic law, a person cannot be both a party and a
witness. One of the conditions relating to the capacity of a witness
which the law insists upon in order to prevent men from telling
falsehood is freedom from bias and prejudice; hence, the testimony of
the father is not admitted in favor of the son and vice versa; of a slave in
favour of his master; or parties in support of their own case; of a person
who bears a grudge against the opposite party; of a non-Muslim against
a Muslim and so on.
60 IMPUGNING A WITNESS
- A person must possess the qualifications of a witness before
he is allowed to testify on certain facts. Whoever alleges disqualification
of a witness must prove it.
 TA’ADIL v. TARJIH
61 Ta’dil is to declare the witness ‘adil (a competent witness) that
is, one fulfilling all the requirements of Islamic law. As a competent
witness, he must be a major, sane, free Muslim who faithfully performs
his religious duties, leads a moral life, and has no personal interest in the
case.
Tarjih is the discrediting of a witness by an attack on his
‘adala. There must normally be two competent witnesses to the
disqualification which if shown, the testimony of the witness concerned
must be excluded, no matter how convincing it may be.
62 CONFLICT OF EQUIVALENT TESTIMONIES
The rule is, the burden of proof primarily lies to the party who
claims an existence of fact or thing in his favour and thus he has the
burden to prove it with sufficient evidence. If his evidences, including
testimonies are equal to that of the evidences of defending party, the
court shall rule in favor of the defending party.

EQUIPOISE RULE -is the rule which states that where the
evidence in a criminal case is evenly balanced, the constitutional
presumption of innocence tilts in the favor of the accused.
63 Rules in Islamic Evidence as to the number of witnesses
required to establish a fact.
(1) To render admissible written evidence respecting proof of
authenticity; and in questions relating to property, two (2) male
witnesses or one (1) male witness and two (2) female witnesses.
(2) Certain matters which women alone are likely to know such as
menstruation or pregnancy can be established by 2 female witnesses.
(3) Matters which are of the category of a public right and require
absolute certainty of proof, such as offenses entailing the punishment of
had, testimony of two male witnesses; and
(4) In adultery, four (4) male witnesses.
 OTHER EVIDENCE (BAYYINA)
64
DOCUMENTARY EVIDENCE - is such an evidence as is furnished by
written instrument, inscriptions and documents of al kinds, and also any
inanimate objects admissible for the purpose, as distinguished from oral
evidence that is delivered by a person, i.e., oral testimony.
Under the Best Evidence Rule, which is now known as the
Original Document Rule, the original of a document is the best evidence
of its contents. Documentary Evidence is admissible in evidence when
its genuineness and due execution were proven by the offeror who has
personal knowledge of its execution.
 Testimonial evidence v. Documentary Evidence
65
The personal word of an upright Muslim is deemed worthier
than an abstract piece of paper, susceptible to alteration and falsification.
Furthermore, the witnesses can be challenged to take an oath (yamin)
which is withheld from documentary evidence (Rasul). Moreover,
documentary evidence, as a general rule, does not by itself establish any
fact. The document must still be identified and its genuineness and due
execution established by testimonial evidence. It is in this wise that
testimonial evidence is regarded of a higher character than documentary
evidence.
 CIRCUMSTANTIAL EVIDENCE
66 Besides human testimony, facts and circumstances (qarina) may also be
relied upon as proof. But circumstantial evidence will only be acted
upon if it is of a conclusive nature (qatia'tun).

For instance, if a person is seen coming out from an unoccupied house

in fear and anxiety with a knife covered with blood in his hand and in
the house a dead body is found with its throat cut, these facts will be
regarded as a proof that the person who was seen coming out murdered
him.
 IV. ARBITRATION PROCEEDINGS AND THE AGAMA
ARBITRATION COUNCIL
67 1. Constitution of Agama Arbitration Council
Article 160. The Shari'a District Court or the Shari'a Circuit Court may,
in appropriate cases, constitute an Agama Arbitration Council in the
manner specified in this Title. (PD 1083)
Article 161. Divorce by talag and tafwid.
(1) Any Muslim male who has pronounced a talag shall,
without delay, file with the Clerk of Court of the Shari'a Circuit Court of
the place where his family resides a written notice of such fact and the
circumstances attended thereto, after having served a copy thereof to the
wife concerned. The talag pronounced shall not become irrevocable
until after the expiration of the prescribed 'idda. The notice filed shall be
conclusive evidence that talag has been pronounced.
68 (2) Within seven days from receipt of notice, the Clerk of
Court shall require each of the parties to nominate a representative. The
representatives shall be appointed by the Court to constitute, together
with the Clerk of Court as Chairman, an Agama Arbitration Council.
The Agama Arbitration Council shall submit to the Court a report on the
result of the arbitration, on the basis of which and such other evidence
as may be allowed, the Court shall issue the corresponding order.
(3) The provisions of this article shall be observed should the
wife exercise tafwid.
69 Article 162. Subsequent marriages. Any Muslim husband
desiring to contract a subsequent marriage shall, before so doing, file a
written notice thereof with the Clerk of Court of the Shari'a Circuit
Court of the place where his family resides. Upon receipt of said notice,
the Clerk shall serve a copy thereof to the wife or wives. Should any of
them object, an Agama Arbitration Council shall be constituted in
accordance with the provisions of paragraph (2) of the preceding article.
If the Agama Arbitration Council fails to obtain the wife's consent to the
proposed marriage, the Court shall, subject to Article 27, decided
whether or not to sustain her objection.
70 Article 163. Offenses against customary law. The Shari'a Circuit Court,
in cases involving offenses against customary law which can be settled
without formal trial, may, at its discretion, direct the Shari'a Clerk of
Court to constitute a council of not less than two nor more than four
members, with him as chairman, to settle the case amicably.

2.A. Jurisdiction of the AAC:

Under PD 1083, the Court may order the constitution of the
Agama Arbitration Council in cases of (1) divorce by talaq or tafwid, (2)
subsequent marriages, and (3) in cases involving offenses against
customary law.
71 2.B Function of the AAC:
(1) It is more in the nature of giving advice to the parties and
recommendation
to the court;
(2) To bring about a conciliation between the parties; and
(3) To effect amicable settlement of the parties involved in the
case. (Section 18 in relation to art. 160, PD 1083)
72 3. The Proceedings of the AAC:
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 shall take place ex parte.
(Section 19, Special Rules)
73 4. Submission of findings of the Agama Arbitration Council
and Court Actions:
1. In cases of divorce, the Agama Arbitration Council shall submit to the
Court a report on the result of the arbitration, on the basis of which and
such other evidence as may be allowed, the Court shall issue the
corresponding order.
2. In cases of subsequent marriages, if the Agama Arbitration Council
fails to obtain the wife's consent to the proposed marriage, the Court
shall decide whether or not to sustain her objection.
3. In offenses against customary law and the AAC failed to settle the
case amicably, this author believes that trial may follow.
74 V. SHARIAH COURTS
Under Article 137 of the Muslim Code, there are hereby
created, as part of the judicial system, courts of limited jurisdiction to be
known respectively as Shari’a District Courts and Shari’a Circuit
Courts, which shall exercise powers and functions in accordance with
the Code.
Under the BOL, judges of the Shari’ah Circuit Courts shall
have the same rank, prerogatives, salaries, allowances, benefits, tenure,
and privileges as judges of the Municipal Trial Court. Judges of
the Shari’ah District Courts shall have the same rank, prerogatives,
salaries, allowances, benefits, tenure, and privileges as judges of the
Regional Trial Court.
 1. SHARI’AH CIRCUIT COURTS
75 QUALIFICATIONS OF A SHARI’AH CIRCUIT COURT JUDGE
Under Section 8, Article X of R.A. 11054 or the Bangsamoro
Organic Law, No person shall be appointed judge of the Shari’ah
District Court unless, citizen of the Philippines, who is a Muslim, a
regular member of the Philippine Bar, at least thirty (30) years of age,
must have been engaged in practice of law for five (5) years or more,
and has completed at least two (2) years of Shari’ah or Islamic
Jurisprudence.
The Supreme Court may grant the incumbent Shari’ah Circuit
Court judges who are not regular members of the Philippine Bar a
reasonable period within which to qualify, pending which they shall
allowed to continue discharging their duties.
76 BEFORE UNDER PD 1083:
Article 152. Qualifications. No person shall be appointed judge of the
Shari'a Circuit Court unless he is a natural-born citizen of the
Philippines, at least twenty-five years of age, and has passed an
examination in the Shari'a and Islamic jurisprudence (fiqh) to be given
by the Supreme Court for admission to special membership in the
Philippine Bar to practice in the Shari'a Courts.
 JURISDICTION OF SHARI’AH CIRCUIT COURTS
77
-EXCLUSIVE ORIGINAL JURISDICTION over the following cases
where either or both parties are Muslims: Provided, That the non-
Muslim party voluntarily submits to its jurisdiction:
(a) All cases involving offenses defined and punishable under
Presidential Decree No. 1083, where the act or omission has been
committed in the Bangsamoro Autonomous Region;
78 Under P.D. 1083, the ff. offenses are cognizable by the
Shari’ah Circuit Courts:
(1) Illegal solemnization of marriage; (Art. 181, P.D. 1083)
(2) Marriage before expiration of ‘idda; (Art. 182, lbid.)
(3) Offenses relative to subsequent marriage, divorce, and revocation of
divorce; (Art. 183, lbid.)
(4) Failure to report for registration; (Art. 184, lbid.) and
(5) Neglect of duty by registrars. (Art. 185, lbid.)
79 (b) All civil actions and proceedings between parties residing in the
Bangsamoro Autonomous Region who are Muslims or have been
married in accordance with Article 13 of Presidential Decree No. 1083,
involving disputes relating to:
(1) Marriage;
(2) Divorce;
(3) Betrothal or breach of contract to marry;
(4) Customary dower or mahr;
(5) Disposition and distribution of property upon divorce;
80 (6) Maintenance and support, and consolatory gifts; and
(7) Restitution of marital rights;
(c) All case involving disputes relative to communal properties;
(d) All cases involving ta’zir offenses defined and punishable
under Shari’ah law enacted by the Parliament punishable by arresto
menor or corresponding fine, or both;
(e) All civil actions under Shari’ah law enacted by the Parliament
involving real property in the Bangsamoro Autonomous Region where
assessed value of the property does not exceed ₱400,000.00);
81 (f) All civil actions, if they have not specified in an agreement which
law shall govern their relations, where the demand or claim does not
exceed Two hundred thousand pesos (₱200,000.00).
82 Fifty-one (51) Shari'a Circuit Courts are created and distributed as
follows:
(a) Six such courts in the Province of Sulu;
(b) Eight in the Province of Tawi-Tawi;
(c) Ten in and for the Provinces of Basilan, Zamboanga del
Norte and Zamboanga del Sur, and the Cities of Dipolog, Pagadian, and
Zamboanga;
(d) Twelve in and for the Provinces of Lanao del Norte and
Lanao del Sur and the Cities of Iligan and Marawi; and
(e) Fifteen in and for the Province of Maguindanao, North
Cotabato and Sultan Kudarat and the City of Cotabato.
83 2. SHARI’AH DISTRICT COURTS

QUALIFICATIONS OF SHARI’AH DISTRICT COURT JUDGE

Under Section 8, Article X of R.A. 11054 or the Bangsamoro
Organic Law, No person shall be appointed judge of the Shari’ah
District Court unless he is a citizen of the Philippines, who is a Muslim,
a regular member of the Philippine Bar, at least thirty five (35) years of
age, must have been engaged in practice of law for ten (10) years or
more, and has completed at least two (2) years of Shari’ah or Islamic
Jurisprudence.
 B. JURISDICTION OF THE SHARIAH DISTRICT COURT
84 Section 6. Jurisdiction of the Shari’ah District Courts. –
The Shari’ah District Courts in the Bangsamoro Autonomous Region
shall exercise exclusive original jurisdiction over the following cases
where either or both are Muslims: Provided, That the non-Muslim party
voluntarily submits to its jurisdiction:
(a) All cases involving custody, guardianship, legitimacy, and paternity
and filiation arising under Presidential Decree No. 1083;
(b) All cases involving disposition, distribution, and settlement of the
estate of deceased Muslims, probate of wills issuance of letters of
administrators or executors regardless of the nature or the aggregate
value of the property;
85 (c) Petitions for the declaration of absence and death, and for the
cancellation or correction of entries in the Muslim Registries mentioned
in Title VI of Book Two of Presidential Decree No. 1083;
(d) All actions arising from customary and Shari’ah-compliant contracts
in which the parties are Muslims, if they failed to specify the law
governing their relations;
(e) All petitions for mandamus, prohibition, injunction, certiorari,
habeas corpus, and all other auxiliary writs and processes, in aid of its
appellate jurisdiction;
86 Petition for certiorari, defined. — When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board
or officer, and granting such incidental reliefs as law and justice may
require.
87 Petition for mandamus, defined. — When any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent, immediately or at
some other time to be specified by the court, to do the act required to be
done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the
respondent.
88 Petition for prohibition, defined. —When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess
of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal or
any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may require.
89 Petition for injunction, defined. —Injunction is a judicial writ, process
or proceeding whereby a party is directed either to do a particular act, in
which case it is called a mandatory injunction or to refrain from doing a
particular act, in which case it is called a prohibitory injunction. As a
main action, injunction seeks to permanently enjoin the defendant
through a final injunction issued by the court and contained in the
judgment.
Petition/writ of habeas corpus- shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty,
or by which the rightful custody of any person is withheld from the
person entitled thereto.
90 (f) Petition for the constitution of a family home, change of name, and
commitment of an insane person to an asylum;
(g) All other personal and real actions not falling under the jurisdiction
of the Shari’ah Circuit Courts wherein the parties involved are Muslims,
except those for forcible entry and unlawful detainer, which shall fall
under the exclusive original jurisdiction of the Municipal Trial Court;
(h) All special civil actions for interpleader or declaratory relief wherein
the parties are Muslims residing in the Bangsamoro Autonomous Region
or the property involved belongs exclusively to Muslim and is located in
the Bangsamoro Autonomous Region;
91 (i) All civil actions under Shari’ah law enacted by the Parliament
involving real property in the Bangsamoro Autonomous Region where
the assessed value of the property exceeds Four hundred thousand pesos
(₱400,000.00); and
(j) All civil actions, if they have not specified in the agreement which
law shall govern their relations where the demand or claim exceeds Two
hundred thousand pesos (₱200,000.00).
92 B. FINALITY OF DECISION OF THE SHARIAH DISTRICT COURT
-Decisions of the Shari’ah District Courts are final and
executory, but now under the Bangsamoro Organic Law, decisions of the
SDC may now be annulled or appealed before the Shari’ah High Court.

-Under BAR MATTER NO. 702 May 12, 1994- Shariah

District Courts are not authorized to appoint notaries public in their
respective jurisdictions.
93 Five (5) Shari’a judicial districts, each with one Shari'a District Court, are
constituted as follows:
(a) One in the Province of Sulu, with permanent station in Jolo,
Sulu;
(b) One in the Province of Tawi-Tawi with permanent station in
Bongao, Tawi-Tawi;
(c) One in the Provinces of Basilan, Zamboanga del Norte and
Zamboanga del Sur and Cities of Dipolog, Pagadian and Zamboanga, with
permanent station in Zamboanga City;
(d) One in the Provinces of Lanao del Norte and Lanao del Sur
and Cities of Iligan and Marawi, with permanent station in Marawi City;
and
(e) One in the Provinces of Maguindanao, North Cotabato and
Sultan Kudarat, and City of Cotabato, with permanent station in Cotabato
City.
 SHARIAH HIGH COURT
94
Shari’ah High Court – created within the Bangsamoro territorial
jurisdiction as part of the Philippine judicial system. This replaces the Shari’a
Appellate Court created under the Organic Act of the now-defunct ARMM.
The Shari’ah High Court shall be composed of five (5) Justices, including the
Presiding Justice.
No person shall be appointed as justice of the Shari’ah High Court
unless a natural-born citizen of the Philippines who is a Muslim, a regular
member of the Philippine Bar, at least forty (40) years of age, must have been
engaged in the practice of law for fifteen (15) years or more, and has
completed at least two years of Shari’ah or Islamic Jurisprudence.
A Shari’ah Justice must be a person of competence, integrity,
probity, and independence.
95
Shari’ah High Court –

- Has exclusive original jurisdiction over:

(a) all petitions for mandamus, prohibition, injunction, certiorari,
habeas corpus, and all other auxiliary writs and processes, in aid of its
appellate jurisdiction; and
(b) all actions for annulment of judgements of Shari’a District
Courts within and outside the Bangsamoro Autonomous Region.
96
Shari’ah High Court – Its decisions shall be final and executory
except on questions of law which may be raised before the Supreme Court
following the procedure for appeals from the Court of Appeals to the Supreme
Court; and without prejudice to the original and appellate jurisdiction of the
Supreme Court as provided in the Constitution.

-Pending the complete organization of the Shari’a High Court, the

decisions of the Shari’a District Courts shall be appealable to the Court of
Appeals. (Article X, Section 7, Republic Act No. 11054)
97
Until such time that the said appellate court shall have been
organized, appeals or petitions from final orders or decisions of the Shari’a
District Court may be filed with the Court of Appeals (CA) and referred to a
Special Division to be organized in any of the CA stations preferably
composed of Muslim CA justices. For cases where only errors or questions of
law are raised or involved, the appeal shall be to the Supreme Court by way of
a petition for review on certiorari under Rule 45 of the Rules of Court.
(Tomawis vs. Balindong, G.R. No. 182434, March 5, 2010)
 CONCILIATION AND MEDIATION
98
- RA No. 11054 further mandates that the Bangsamoro Government
shall adopt the principles of conciliation and mediation in settling disputes,
with the Parliament enacting the necessary legislation to institute the
mechanism for alternative dispute resolution; and the Shari’a courts and
traditional or tribal tribunals may utilize this mode of settlement and
resolution of cases.
99 VI. OFFICE OF THE JURISCONSULT

Article 164 of the PD 1083 provides for the creation of an office and
appointment of a Jurisconsult.
1. There shall be a Jurisconsult in Islamic Law, who shall be appointed
by the President of the Phillipines and hold office for a term of seven
years, without prejudice to reappointment, unless sooner removed for
cause or incapacitated to discharge the duties of his office.
100 2. The Office of the Jurisconsult shall be under the administrative
supervision of the Supreme Court of the Philippines which shall also fix
its permanent station, preferably in the City of Zamboanga.

Article 165 of the Muslim Code provides that no person shall

be appointed Jurisconsult in Islamic Law unless he is a citizen of the
Philippines, forty years of age, of good moral character and proven
integrity, and an eminent scholar in the Qur’an and Hadith and in
Islamic jurisprudence as well as proficient in Arabic.
101 FUNCTIONS OF JURISCONSULT
1. The Jurisconsult shall, on the written request of any interested party,
have the authority to render legal opinions, based on recognized
authorities, regarding any question relating to Muslim Law. For this
purpose, he may, if he deems it necessary, consult or ask for a
consensus of the Ulama.
2. The Jurisconsult shall consider and act on every such request unless,
in his opinion and for good reason, the question need not be
answered.
3. The Office of the Jurisconsult shall keep a compilation and cause the
publication of all his legal opinions.
102 LEGAL OPINION (FATWA)

Before judgement is rendered, any court may seek the opinion

(fatwa) of the Jurisconsult of Islamic Law created under the Code of
Muslim Personal Laws in matters concerning difficult questions of
Muslim Law and Jurisprudence (fiqh). (Section 12, Special Rules)

May a Jurisconsult refuse to render a fatwa?

Yes. The Jurisconsult may refuse to render a fatwa when, in
his opinion and for good reason, the question need not be answered.
(Art. 166, P.D. 1083)
103 Q: What is the legal effect of the opinion of the Jurisconsult? What is its
binding force in the Shari'ah courts?

The legal opinion of the Jurisconsult is not binding upon the

court. It is merely advisory or persuasive. Neither it is incumbent upon
the court to seek the opinion of the Jurisconsult. In fine, the court,
before rendering judgment, may or may not consult the Jurisconsult and
once opinion is rendered by the Jurisconsult, it may not follow such
opinion (Rasul).
 References:

104 Presidential Decree No. 1083, S. 1977. (n.d.). Official Gazette. Retrieved March 1, 2023,
from https://www.officialgazette.gov.ph/1977/02/04/presidential-decree-no-1083-s-
1977- 2/
Republic Act No. 11504. (n.d.). Official Gazette of the Philippines. Retrieved March 1, 2023,
from https://www.officialgazette.gov.ph/downloads/2018/07jul/20180727-RA-11054-
RRD.pdf
Special Rules of Procedure Governing Philippine Sharia Courts Annotated, Copyright 2012,
Mangontawar M. Gubat, Smashwords Edition.

◈
105

The End.
Thank you and God bless.