Special Rules of Procedure Governing Philippine Shari'a Courts Annotated

PREFACE TO THE THIRD EDITION

In the name of Allah, the Most Beneficent, the Most Compassionate. Praise be to Him, the Lord of the Universe and Who keeps on expanding it, in Whose Hands my life and soul. I thank Him once again for giving me the courage and strength to come up with this this edition.

This book, which is now on its third edition, was originally entitled "The Special Rules of Procedure Governing the Shari’a Courts (Ijra-at Al Mahakim Al Shariah) Annotated. The original title may suggest that the Special Rules, as it is called throughout the text for brevity, is universal in its application to Islamic courts. On the contrary, although it has the basic feature of Islamic procedure, the Special Rules is Philippine adjective law exclusively applicable to the Shari’a courts in the Philippines, which were created by local legislation for the enforcement of the legal system of the Filipino Muslims. For fear that the work may be entirely ascribed to, and render disservice to the Islamic faith, the work is renamed to underscore its limited territorial applicability. Thus, it is now called Special Rules of Procedure Governing Philippine Shari’a Courts Annotated."

This edition is updated with recent decisions of the Philippine Supreme Court involving or affecting the Shari’a courts as well as pertinent amendments to the Rules of Court of the Philippines.

The author takes this opportunity to fully acknowledge Abdul Rahim (may Allah bless him) whose treatise on the general features of Muslim law on evidence has been extensively quoted in this humble work. May he be infinitely rewarded by Allah (s.w.t.) for his efforts.

It is my sacrosanct prayer that this edition will be useful to e-readers who are interested in this special and unique field of Philippine procedural law.

Mangontawar M. Gubat

February 28, 2012

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PREFACE TO THE SECOND EDITION

In the name of Allah, the Most Beneficent, the Most Merciful. Praise be to Him, the Lord of the Universe, He who has control and dominion of the heavens and the earth. Thanks be to Him for giving me His favours for writing this book and now for coming out with a revised edition.

The principle that laws constantly change is generally repulsive to Islamic law. It has been said that the elements constituting the doctrines, principles, tenets and articles of faith as well as the ideology shaping the Islamic system and making it quite distinctive are not subject to change. 'That was the Way of Allah in the case of those who passed away of old; and you will not find any change in the Way of Allah.' (Holy Qur'an, 33:62)

The shari'a courts in the Philippines are creations of the Philippine legislature. The Special Rules of Procedure Governing the Shari'a Courts, though it has Islamic features, is Philippine adjective law. The basic Islamic procedural principles under which it was promulgated stand still; but civil procedure that applies in a suppletory character keeps on changing.

Thus, the advent of the 1997 Rules of Civil Procedure brought about changes that necessitate a revision of this humble work. The annotations are updated to reflect not only the amendments to the Rules of Court but also the innovations yet to be tried and tested in the arena of the Philippine judicial system.

As an added feature of this edition, Republic Act No. 9054 otherwise known as the Act To Strengthen and Expand the Organic Act of the Autonomous Region in Muslim Mindanao is appended hereto in tandem with the Pres. Decree No. 1083 else known as the Code of Muslim Personal Laws. These are the basic laws governing the Muslims of the Philippines.

Like the first edition, much of the annotations on the special rules are of civil law except when otherwise indicated either specifically or when the rule is peculiar to Islamic adjective law.

Finally, I wish to acknowledge my publisher Atty. Agaton R. Sibal who was the first to open to me the privileged, if not exclusive, field of publication; and to the courteous men and women of the Central Professional Books under his able stewardship, my heartfelt thanks.

May this work remain helpful to shari'a students, bar candidates and practitioners alike.

Mangontawar M. Gubat

April 3, 2003

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PREFACE TO THE FIRST EDITION

Laws need courts to apply and interpret them. Courts, in turn, must be guided by rules in the application and interpretation of the laws. Without rules, the courts are but useless instruments that only embellish and impress.

The recognition of the Muslim legal system as part of the laws of the Philippines and the creation of the Shari'a courts as part of its judicial system necessitate the promulgation of rules that would govern the proceedings of these courts. On 20 September 1983, the Supreme Court promulgated the "Special Rules of Procedure Governing the Shari'a Courts (Ijra-at al-Mahakim al-Shari'a)" hereinafter referred to, for brevity, as Special Rules. The Special Rules which is almost summary in nature provides for an expeditious and inexpensive determination of the cases brought before the Shari'a courts.

The brevity of the Special Rules creates the first impression that it needs no commentary at all. Yet, the suppletory application of the Rules of Court and the requirement that these courts should adhere to the sources of Muslim law relating to the number, quality and credibility of witnesses combined detract from such an impression.

Indeed, such suppletory application necessitates an examination of the pertinent provisions of the Rules of Court as well as jurisprudence not to mention the few decisions of the Supreme Court directly involving the Special Rules. Their integration into the Special Rules by way of a single commentary is well nigh indispensable.

It is in this wise that the author takes the painstaking efforts to write this humble work with the hope that it will cater to the need of shari'a students and prospective candidates to the Special Shari'a Bar examinations alike. If this humble work proves useful in the smallest degree, then somehow the author's efforts in its preparation are not in vain.

For the probable future improvement of this work, the author welcomes criticisms, suggestions, and recommendations.

These prefatory observations would be rendered incomplete without acknowledging those whose works have greatly contributed in the preparation of this simple commentary, namely: Dr. Abdul Rahim, Manuel V. Moran, Florenz Regalado, and Jainal Rasul. Special acknowledgment goes to Mr. Boniero J. Lumasag, Sr. for his painstaking efforts in retyping the original manuscript.

Mangontawar M. Gubat

January 1, 1995

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INTRODUCTORY CHAPTER

PART A

GENERAL CONSIDERATIONS

The Courts

Court, defined.

A court is an organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice (Black's Law Dictionary).

The words 'courts' and 'judges' are used synonymously and interchangeably, generally speaking.

In ordinary parlance, 'judges' are spoken of as 'courts' and 'courts' are referred to when the person means the 'judge' only. It is common for laymen, lawyers and judges, as well as the law, to use these terms interchangeably. But there is an important distinction between the court as an entity, and the person who occupies the position of judge. Courts may exist without a judge. There may be a judge without a court (Pamintuan vs. Lorente, 29 Phil 346).

In Islamic law, the person who performs the onerous task of deciding the disputes and awarding or sentencing a binding order is called 'qadi'. He is also called hakam or hakim, but the latter two words are seldom used for this purpose in the works of fiqh since hakam is generally used for an arbiter and hakim for a ruler or an executive authority (Azad, M., Judicial System of Islam, Islamic Research Institute, Pakistan, 1987, p. 7).

Classification of courts.

The classification of courts in the Philippines are:

A. According to their nature and extent of jurisdiction:

(1) Court of general jurisdiction, one which has the power to adjudicate all controversies which may be brought before it within the legal bounds of rights and remedies except those expressly withheld from its plenary powers. Example: Regional Trial Courts.

(2) Court of limited or special jurisdiction, one whose power to adjudicate is confined to particular causes or can only be exercised under the limitations and circumstances prescribed by statute. Example: Shari'a Circuit Courts.

(3) Court of original jurisdiction, one which has the power to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Example: Shari'a District Courts.

(4) Court of appellate jurisdiction, one which has the authority to review the final order or judgment of a lower court with the power to modify, reverse, sustain or remand, or affirm the same. Example: Shari'a Appellate Court.

B. According to the principles on which they administer justice:

(1) Civil court, one which determines controversies between private persons.

(2) Criminal court, one which is charged with the administration of criminal laws, and the punishment of wrongs to the public (Black's Law Dictionary).

(3) Court-martial, a military court pertaining to the executive department of the government for trying and punishing offenses committed by members of the armed forces.

(4) Admiralty court, one which has jurisdiction over admiralty and maritime matters.

(5) Juvenile court, one which has special jurisdiction, of a paternal nature, over delinquent and neglected children.

(6) Court of equity, one which has jurisdiction in equity, which administers justice and decides controversies in accordance with the rules, principles, and precedents of equity, and which follows the forms and procedures of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law (Ibid.). Simply stated, it is one which follows a more flexible and discretionary rules.

(7) Court of law, in a wide sense, any duly constituted tribunal administering the laws of the state or nation; in a narrower sense, a court proceeding according to the course of common law and governed by its rules and principles, as contrasted with a 'court of equity' (Ibid). It is one governed by highly formal set of rules.

(8) Ecclesiastical court, one which has jurisdiction over matters pertaining to the religion and ritual of the established church, and the rights, duties, and discipline of ecclesiastical persons as such (Ibid.).

(9) Shari'a court, one which is charged with the administration of shari'ah laws over Muslims.

C. According to the law creating them:

(1) Constitutional court, one which owes its creation and existence from the Constitution. Example: Supreme Court

(2) Constitutionally-mandated court, one whose existence is provided for in the Constitution but its creation by statutory enactment. Example: Sandiganbayan

(3) Statutory court, one which is created and organized and with jurisdiction determined by law. All courts in the Philippines except the Supreme Court and Sandiganbayan are statutory courts.

D. According to their relation with other courts:

(1) Superior court, one which has the power to review, reverse, modify or affirm the order or judgment of a lower court.

(2) Inferior court, one whose order or judgment may be reviewed by a higher court.

E. According to whether they keep a record of their proceedings:

(1) Court of record, one which is bound to keep a record of its proceedings for a perpetual memorial and testimony thereof (Melgar v. Delgado, 53 Phil. 225).

(2) Court of not record, one which is not required by law to keep a record of its proceedings.

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Jurisdiction

Jurisdiction, defined.

Jurisdiction is the power and authority of a court to hear, try and decide a case (Herrera vs. Barretto, 25 Phil. 245). It is the power and authority to hear and determine a cause or the right to act in a case (Sogod vs. Rosal, G.R. 38204--5, Sept. 21, 1991).

Classification of jurisdiction.

Jurisdiction is classified as follows:

(1) Original jurisdiction, the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law (Garcia vs. De Jesus, 206 SCRA 779, 786 [1992]). It means jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts (Ong, Sr. vs. Parel, 156 SCRA 768, 776 [1987]).

(2) Appellate jurisdiction, the power of a court higher in rank to review the final order or judgment of a lower court and modify, reverse, sustain or remand the same (Garcia vs. De Jesus, supra).

(3) General jurisdiction, the power to adjudicate all controversies which may be brought before a court within the legal bounds of rights and remedies except those expressly withheld from its plenary powers.

(4) Limited jurisdiction, the power confined to particular causes, or which can only be exercised under the limitations and circumstances prescribed by statute. This is also known as special jurisdiction.

(5) Exclusive jurisdiction, the power to adjudicate a controversy to the exclusion of all other courts at that stage and precludes the idea of co-existence (Ong, Sr. vs. Parel, supra, pp. 776-777 citing Black's Law Dictionary, p. 1251).

(6) Concurrent jurisdiction, the power conferred upon different courts, whether of the same or different ranks, to take judicial cognizance at the same stage of the same case in the same or different judicial territories. But once the court assumed jurisdiction of a case, its jurisdiction shall continue until the case is finished (Rulonah Al-Awadhi vs. Astih, G.R. 81969, Sept. 26, 1988; People vs. Layno, 111 SCRA 20 [1982]; Denila vs. Bellosillo, 64 SCRA 63 [1975]; Lat vs. PLDT, 67 SCRA 425 [1975]).

(7) Delegated jurisdiction, the power conferred upon a court to hear and determine certain cases such as cadastral and land registration under certain conditions (see I Regalado, Remedial Law Compendium, 1997 ed., pp. 3-4).

Distinguished from venue.

Jurisdiction is distinguished from venue as follows:

(1) Jurisdiction is the authority of a court to hear, try and decide a case (Herrera vs. Barreto, supra); venue is the place where the action must be instituted and tried (Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, 558).

(2) Jurisdiction is a matter of substantive law; venue is a procedural or adjective law (Dacoycoy vs. IAC, G.R. 74854, Apr. 2, 1991 citing Manila Railroad Co. vs. Attorney General, 20 Phil. 523; Consolidated Bank and Trust Corp. vs. IAC, 198 SCRA 34, 42 [1991]).

(3) Jurisdiction is conferred by law or the Constitution (Andaya vs. Abadia, 228 SCRA 705, 717 [1993]; Garcia vs. De Jesus, supra; Orosa, Jr. vs. CA, G.R. Nos. 76828-32, 28 January 1991; Bacalso vs. Ramolete, 21 SCRA 519 [1967]) and cannot be conferred by the consent of the parties or by their failure to object to the lack of it (Lee vs. Presiding Judge, G.R. 60789, Nov. 10, 1986; Santos III vs. Northwest Orient Airlines, G.R. 101538, June 22, 1992); venue may be conferred by the act or agreement of the parties (Sec. 3, Rule 4, Rules of Court).

(4) Jurisdiction creates a relation between the court and the subject matter; venue creates a relation between the parties to the action (Dacoycoy vs. IAC, supra; Consolidated Bank and Trust Corp. vs. IAC, supra).

Distinguished from procedure.

Procedure, as distinguished from jurisdiction, is the means by which the power or authority of a court to hear and decide a class of cases is put to action (Garcia vs. De Jesus, supra, p. 788; Manila Railroad Co. vs. Attorney-General, 20 Phil. 523). Rules of procedure are remedial in nature and not substantive. They cover only rules on pleading and practice (Garcia vs. De Jesus, Ibid.).

Jurisdiction, how acquired.

Jurisdiction over the following which are necessary for the exercise of jurisdiction are acquired as follows:

(1) Over the plaintiff or petitioner. -- Jurisdiction over the person of the plaintiff or petitioner is acquired by the filing of the complaint or other appropriate pleading before the court (Davao Light & Power Co., Inc. vs. CA., 204 SCRA 343, 348 [1991] citing Feria, Civil Procedure, 1969 ed., p. 19 in turn citing Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, King Mau Wu vs. Sycip, 94 Phil. 784 and 21 CJS 122 and other cases).

(2) Over the defendant or respondent. -- Jurisdiction over the person of the defendant or respondent is obtained by the service of summons or other coercive process upon him or by his voluntary appearance or submission to the authority of the court (Ibid. citing Feria, op cit. p. 20 in turn citing 21 CJS 123; Pennoyer vs. Neff, 95 U.S. 714 and other cases; see also Sec. 4, Rule 47, Rules of Court; Paramount InSurance Corp. vs. Luna, G.R. 61404, Mar. 16, 1987).

(3) Over the subject matter of the claim. -- Jurisdiction over the subject matter of the claim is conferred by law (La Naval Drug Corp vs. CA, G.R. 103200, Aug. 31, 1994). By the filing of the complaint or other initiatory pleading, the jurisdiction of the court thereof is invoked or called into activity, and it is this that the court acquires jurisdiction over said subject matter or nature of the action (Davao Light & Power, Co. Inc. vs. CA, supra, pp. 347-348).

(4) Over the issues of the case. -- Jurisdiction over the issues of the case is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at times, by their implied consent, as the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Section 5, Rule 10 of the Rules of Court (I Regalado, (1988 ed.), p. 7).

(5) Over the res (or the property or thing which is the subject of the litigation). -- This is acquired by the actual or constructive seizure by the court of the thing in question, thus putting it in custodia legis, as in attachment or garnishment, or by provision of law which recognizes in the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suits involving civil status or real property in the Philippines of a non-resident defendant (I Regalado, p. 7; see Sec. 15, Rule 14, Sec. 9 (c), Rule 39; Sec. 1, Rule 57, Rules of Court).

Jurisdiction, how determined.

It is axiomatic that what determines the nature of the action and the jurisdiction of the court are the allegations of the complaint and the character of the relief sought (Allgemeine-Bau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., G.R. 159296, Feb. 10, 2006; Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA 485, 500 [2000]; Notre Dame de Lourdes Hospital vs. Mallare-Phillipps, 197 SCRA 187, 190 [1991]; Ching vs. Malaya, 153 SCRA 412 [1987]; Varona vs. CA, G.R. 124148, May 20, 2004). To resolve the issue of jurisdiction, the court must interpret and apply the law on jurisdiction vis-a-vis the averments of the complaint. The defenses asserted in the answer or motion to dismiss are not to be considered in resolving the issue of jurisdiction, otherwise the question of jurisdiction could depend entirely upon the defendant (BPI Credit Corp. vs. CA, G.R. 96755, Dec. 4, 1991; Magay vs. Estiandan, 69 SCRA 456, 458 [1976]; Serrano vs. Muñoz (Hi) Motors, Inc., 27 SCRA 1085 [1969]; Abrin vs. Campos, 203 SCRA 420, 423 [1991]).

In Montaner vs. Shari’a District Court, G.R. 174975, Jan. 20, 2009, where the complaint, which was treated as a petition for the issuance of letters of administration, settlement, and distribution of the estate of the decedent, alleged that the decedent was a Muslim while defendant alleged in his answer with motion to dismiss that the decedent is not a Muslim, the Supreme Court held that the Shari’a District Court has jurisdiction over the case.

Effect of lack of jurisdiction.

It is a fundamental procedural doctrine that the jurisdiction of a court may be challenged at anytime at any stage of the action (Rulona Al-Awadhi vs. Astih, supra; Tijam vs. Sibonghanoy, 23 SCRA 29, 35-36 [1968]; Crisostomo vs. CA, 32 SCRA 54 [1970]; Zulueta vs. Pan American World Airways, Inc., 49 SCRA 1, 6 [11973]; Nueva Vizcaya Chamber of Commerce vs. CA, 97 SCRA 856 [1980]; Martinez vs. De la Merced, 174 SCRA 182, 189 [1989]; Tajonera vs. Lamoroza, 110 SCRA 438 [1981]; Nieta vs. Manila Banking Corp., 124 SCRA 455 [1983]). When the court proceeded in the action without jurisdiction, all the proceedings thereon are futile and invalid exercise (Rulona Al-Awadhi vs. Astih, supra).

Jurisdiction by estoppel.

The doctrine of estoppel enunciates that "after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (People vs. Munar, 53 SCRA 278, 282 [1973] citing Esperat vs. Avila, 20 SCRA 596 [1967]).

While the jurisdiction of a tribunal may be challenged at any time, sound public policy bars the litigants from so doing after having procured that jurisdiction themselves, speculating on the fortunes of litigation (People vs. Munar, Ibid. citing Calderon vs. Public Service Commission, 38 SCRA 624, 633 [1971] in turn citing Tijam vs. Sibonghanoy, 33 SCRA 29 [1968]; Crisostomo vs. Reyes, 32 SCRA 54 [1970]). A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Filipinas Shell Petroleum Corp. vs. Dumlao, G.R. 44888, Feb. 7, 1992; Tijam vs. Sibonghanoy, 23 SCRA 29 citing Dean vs. Dean, 136 Or. 694, 86, A.L.R. 79; Royales vs. IAC, 127 SCRA 470, 474 [1984]). A party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing such lack of jurisdiction (Martinez vs. De la Merced, 174 SCRA 182, 189 [1989]; Tajonera vs. Lamoroza, 110 SCRA 438 [1981]; Nieta vs. Manila Banking Corp., 124 SCRA 455 [1983]; Garcia vs. CA, 202 SCRA 228, 240 [1991]; Echaus vs. Blanco, 179 SCRA 704, 705 [1989]).

Thus, where the adverse party failed at several stages of the proceedings to raise lack of jurisdiction based on said fact and it was only after an adverse decision was rendered by the Court of Appeals that the party finally woke up to raise the question of jurisdiction, such conduct would cause injustice if the proceedings had were to be set aside (Vera vs. People, 31 SCRA 711 [1970]).

Error of jurisdiction and error

of judgment, distinguished.

A line must be drawn between errors of judgment and errors of jurisdiction. An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an order or judgment void or voidable. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal (Cochingyan, Jr. vs. Cloribel, 76 SCRA 361, 386 [1977] citing Fernando vs. Vasquez, 31 SCRA 288 [1970]).

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A c t i o n

Action, defined.

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 (De Guzman, Jr. vs. CA, G.R. 92029-30, Dec. 20, 1990).

Classification of actions.

Actions are classified as follows:

A. According to cause or foundation:

(1) Personal action, one which is brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for the commission of an injury to the person or property (Dial Corp. vs. Judge Soriano, G.R. 82330, May 31, 1988). Example: Action for damages.

(2) Real action, one which is affecting title to real property or for the recovery of its possession, or for partition or condemnation of, or foreclosure of mortgage on real property (Hernandez vs. Rural Bank of Lucena, 81 SCRA 84 [1978]) or one founded on privity of real estate only (Paper Industries Corp. vs. Samson, L-30l73, Nov. 28, l975). Example: