The constitutionality of Shari’ah

RETIRED chief justice Hilario Davide has declared that the formation of Shari’ah courts is within the bounds of the Constitution, and that the decisions of these courts can be reviewed by the Supreme Court. This is a variation of the Shari’ah provisions contained in the proposed Bangsamoro Basic Law, which envision a separate judicial system with Shari’ah courts whose decisions may only be reviewed and/or reversed by a Shari’ah high court.

I am not a lawyer, but doesn’t either scenario violate the constitutional mandate on the inviolable separation of church and state? Shari’ah is divine law; the BBL itself acknowledges Shari’ah’s sacred origins in the Koran and the Sunnah.

The Koran is more than a divinely-inspired holy book like the Bible. For Muslims the Koran is itself divine, directly equivalent to Jesus Christ of Christianity. It is Allah’s Word, revealed directly to Muhammad, dictated word for word by the Angel Gabriel from tablets stored in Heaven. The Sunnah, which recounts the acts and teachings of the Prophet Muhammad, is almost as sacred as the Koran.

Given the Koran’s divine nature, how can the Supreme Court possibly review and/or reverse decisions of Shari’ah courts? Under Shari’ah the ultimate authority is the Koran, NOT the Constitution.

If Shari’ah is divine law, then by extension Shari’ah courts are religious courts even if they resolve secular issues. (Shari’ah governs all aspects of Muslim life, making no distinction between religious and secular.) The BBL is explicit insofar as the secular jurisdiction of the Shari’ah courts is concerned, but is silent on the religious nature of the courts. However, Section 6 Subsection g under Article X, which gives the Shari’ah District Court jurisdiction over “all other personal and real actions” of Muslims, seems to hold the door open to the intermingling of religious and secular functions.

Filipinos are owed an explanation of why Shari’ah courts are not a violation of the separation of church and state, since the secular government will create, fund and maintain the Shari’ah infrastructure.

Shari’ah is the religious and moral code of the ummah, the supranational community of all Muslims that transcends nationality, ethnicity and gender. The Constitution adopts generally accepted principles of international law, but doesn’t the operation of Shari’ah courts go a step further than this, in effect incorporating Islamic jurisprudence into Philippine law?

And what about the manner in which trials are conducted? What about the rules of evidence in Shari’ah courts, particularly with respect to women and non-Muslims? Under Shari’ah, the testimony of a woman witness has only half the weight of a man’s and the testimony of a non-Muslim has no weight at all. If Filipino Islamic jurists align their rules of evidence along internationally accepted principles, they are in effect disobeying Allah.

How can Shari-ah be folded into the Philippine judicial system when the philosophical foundations are so different?

Filipinos should be informed as to which non-Muslim countries have incorporated Shari’ah into their systems, and how Muslim countries that have adopted Shari’ah reconcile religious and secular law.

Also, think of the practical difficulties. A candidate for a Shari-ah judge must pass a four-year course on Islamic jurisprudence. How is the Supreme Court to evaluate him, if the Supreme Court justices themselves have little or no knowledge of Islamic jurisprudence?

Does this mean that an entire division will have to be set up in the Supreme Court, specializing in Islamic jurisprudence? Note that Islamic jurists are required to study the Koran and the Sunnah as well as the body of interpretation (fiqh) of these sources in the original Arabic. So we will have a division of the Supreme Court with esoteric knowledge that the other justices will not have. Would this be a healthy situation in the Supreme Court? And in both the Sunni and Shia sects there are several schools of interpretation. Which shall be adopted?

We are wading, thoughtlessly and carelessly, into deep waters of which we know very little. A great deal more study—in-depth study!—is required before the Shari’ah law and Shari’ah courts are incorporated into the secular judicial system.

Araceli Z. Lorayes ([email protected]) is a retired life insurance executive who started her career as a journalist. She is now a freelance writer.