The Code of Muslim Personal Laws
In 1973, Marcos established the Research Staff for the Codification of Philippine Muslim Laws, headed by Michael Mastura, who would later be involved in drafting the post-Marcos 1987 Constitution and is currently a member of the negotiating panel for the MILF. In 1974, the Research Staff submitted a draft Code of Muslim Personal Laws that drew heavily on local adat (traditional customary law), reflecting practice in Muslim areas. However, the Code received ‘a chilly reception in Manila’. A Presidential Commission established to review the draft Code submitted a revised version in 1975 that reinforced Constitutional supremacy and was aligned more closely with practice in the middle-east.
On 4 February 1977, Presidential Decree 1083 was signed into law. Constitutionally, the Decree drew on Article XV, Section 11 of the 1973 Constitution – ‘the State shall consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of state policies.’ Per Article 2, the CMPL has three main functions – to recognize elements of Islamic law as part of the law of the Philippines, to codify Muslim personal law, and to provide a system for its administration and enforcement. As the title suggests, the Code does not cover the entirety of Shari’a, only elements of personal laws and does not recognize Shari’a as a separate, autonomous system of law. It is, rather, a part of the wider justice system of the state.
Comprised of 190 articles in five books, the Code covers personal status, marriage and divorce, matrimonial and family relations, succession and inheritance, and property relations between spouses. It is applicable only to Muslims. Rather than describe the Code in detail, the next section covers some of its more prominent features.
The Code establishes the supremacy of state over religious authority by stipulating that all marriages must be registered in the Shari’a Court. Controversially, the Code establishes a low minimum age for marriage. For non-Muslim Filipinos, the legal age for marriage is eighteen. However, under the CMPL, males may marry from the age of fifteen. Females who have reached puberty acquire the legal capacity to marry. Puberty is presumed to be fifteen but can be as low as twelve. While not common, court records from the Zamboanga Shari’a District Court show that the youngest male marrying was eleven years old, with the youngest female only seven. The issue of early marriage is regularly raised, particularly by women’s groups, as a potential area for reform.
Under Article 45 of the Code, there are seven ways in which a divorce can be effected, namely repudiation of the wife by the husband (talaq); vow of continence by the husband (ila); injurious assimilation of the wife by the husband, that is, an insult by a husband to his wife which likens her to a female relation of his who is sexually prohibited to him (zihar); acts of imprecation (li’an); redemption by the wife (khul’); exercise by the wife of the delegated right to repudiate (tafwid); or judicial decree (faskh).
The Code sets out the obligations of a husband to support his wife and children through marriage and in case of divorce. During marriage, he must provide for ‘everything that is indispensable for sustenance, dwelling, clothing and medical attendance according to the social standing of the person’. In case of divorce, these obligations extend only until the expiry of the waiting period or ‘idda (four months and ten days). If the wife is pregnant, then support is required until delivery. If she is nursing, the husband’s obligation extends until the time of weaning. As discussed below, however, execution of judicial orders to provide even this limited form of spousal and child maintenance is extremely problematic.
In case of divorce, the Code determines that custody of children under the age of seven years will always be awarded to the mother or, if she is dead, the maternal grandmother, paternal grandmother, sister or aunts. Unmarried girls who have reached puberty shall stay with the father, with sons in the same circumstances staying with the mother. Despite these provisions, a review of case law and interviews with experts suggest that custody is granted without exception to the mothers, so long as they are still alive.
Rights and Obligations of Husband and Wife
The respective rights and obligations of husbands and wives are defined largely along traditional lines of the husband as bread-winner and the wife as home-maker and care- giver. Women are entitled to purchase property and seek employment, but only with the consent of their husbands. A level of protection is provided for women’s property rights as both spouses are entitled to keep property they bring to the marital relationship. All income derived from employment during the marriage also remains the exclusive property of each spouse.
Standard Islamic law regulations on succession are reflected in the Code, including the right of a brother to inherit double the share of a sister: Article 122.
As in other Muslim jurisdictions, the right of a husband under Islamic Law to marry up to four wives is acknowledged in PD 1083. However, the Code restricts the right of polygyny to ‘exceptional circumstances’ and only if the husband can ensure ‘equal companionship and just treatment as enjoined by Islamic law.’
Unlike some Muslim codes elsewhere in the world, PD 1083 includes a set of criminal offences, albeit only those related to personal laws. Offences including illegal solemnization of marriage, marriage before expiration of the ‘idda and unauthorized subsequent marriage can be tried in the Shari’a Courts.
Sources for interpretation
Under Article 4, judges interpreting the Code may draw upon the ‘primary sources of Muslim law’, the Qur’an and the Sunna (practice of the Prophet). A review of case records secured from the 5th Shari’a Circuit Court in Maguindanao province demonstrated regular use of passages from the Qur’an in judgments on restitution of marital rights, petition for confirmation of divorce and spousal support, and petition to contract subsequent marriage. A more comprehensive review across multiple shari’a courts undertaken by a local non-governmental organisation came to the same conclusion, namely that ‘most judges in justifying their decisions never fail to invoke the Qur’an and the Hadith of Prophet Muhammad.’
In addition to the two main sources, the fiqh (jurisprudence) books of the Sunni school – the Hanafi, Hanbali, Maliki and Shafi’i – may also be used for legal construction. Interviews with shari’a court judges and experts suggested a strong preference for the Shafi’i books as ‘more appropriate’, given the beliefs of most Muslim Filipinos.
In addition to Islamic legal sources, judges may also draw on jurisprudence from the Supreme Court, the highest court in the land. Given that only around twenty shari’a cases have ever reached this court, there is, however, limited material on which to draw.