Di Filipina kini tuntutan mut’ah [disebut mut’a] ada
diperuntukan dibawah suatu Und ang-Undang yang dinamai Presidential Decree No.
1083 [dirujuk didalam rencana ini sebagai Dikri sahaja].
Dikri tersebut menetapkan bahawa sekiranya terdapat
apa-apa percanggahan undang-undang am atau undang-undang tempatan maka
peruntukan yang terdapat didalam dikri tersebut adalah mengatasi dan terpakai.
Begitu juga jika terdapat adat tempatan yang
bercanggah atau bertentangan dengan Perlembagaan Filipina, Dikri ini atau
undang-undang Islam maka adat itu tiada mempunyai kesan kuatkuasa undang-undang
yakni tidak terpakai adat itu. Lihat Perkara 5 Dikri.
Menurut Dikri tersebut mazhab-mazhab yang diktiraf
dibawah Dikri tersebut adalah hanya terdiri dari 4 mazhab iaitu Mazhab Hanafi,
Hanbali, Maliki dan Shafi’i sahaja. Lihat Perkara 6 dan Perkara 7 (e) Dikri.
Hukum Syarak (yang dirujuk sebagai Muslim Law /
Shari’a dalam Dikri ini) adalah hukum yang berpandukan Quran dan Hadis (Perkara
7 (h)).
Menurut Perkara 155 (2)(f) Dikri Mahkamah Litar
Syariah mempunyai bidangkuasa asal yang eksklusif (yakni sepenuhnya) untuk
mendengar dan memutuskan kes tuntutan mut’ah.
Namun begitu perkataan/istilah Mut’ah tidak diberikan
tafsiran secara umum mahupun khusus didalam dikri ini.
Maka dengan itu Hukum Syara’ dan pandangan-pandangan
mazhab yang empat dari ahlul Sunnah adalah menjadi panduan mutlak dalam menafsirkan
serta merungkaikan permasalahan tuntutan mut’ah dibawah Dikri tersebut.
Berikut ialah beberapa peruntukan Dikri tersebut berkenaan
dengan isu tajuk Mut’ah untuk maklumat asas serta ringkas.
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Presidential Decree No.
1083
"Code of
Muslim Personal Laws of the Philippines"
A DECREE TO ORDAIN AND
PROMULGATE A CODE RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS, CODIFYING
MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS ADMINISTRATION AND FOR OTHER
PURPOSES.
WHEREAS, pursuant to the spirit of the provision of
the Constitution of the Philippines that, in order to promote the advancement
and effective participation of the National Cultural Communities in the
building of the New Society, the State shall consider their customs,
traditions, beliefs and interests in the formulation and implementation of its
policies;
WHEREAS, Islamic law and its principles of equity and
justice, to which the Filipino Muslim communities adhere, provide an essential
basis for the fuller development of said communities in relation to the search
for harmonious relations of all segments of the Filipino nation to enhance
national unity;
WHEREAS, the enforcement, with the full sanction of
the State, of the legal system of the Filipino Muslims shall redound to the
attainment of a more ordered life amongst them;
WHEREAS, it is the intense desire of the New Society
to strengthen all the ethno-linguistic communities in the Philippines within
the context of their respective ways of life in order to bring about a
cumulative result satisfying the requirements of national solidarity and social
justice;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Republic of the Philippines, by virtue of the powers vested in me by the
Constitution of the Philippines, do hereby ordain and promulgate the "Code
of Muslim Personal Laws of the Philippines" as part of the law of the land
hereby decree:
BOOK ONE
General Provisions
TITLE I
Title and Purposes of Code
Article 1. Title. —
This decree shall be known as the "Code
of Muslim Personal Laws of the Philippines."
Article 2. Purpose of Code. —
Pursuant to Section 11 of Article XV of the Constitution
of the Philippines, which provides that "The State shall consider the
customs, traditions, beliefs and interests of national cultural communities in
the formulation and implementation of state policies," this Code:
(a) Recognizes
the legal system of the Muslims in the Philippines as part of the law of the
land and seeks to make Islamic institutions more effective;
(b) Codifies
Muslim personal laws; and
(c) Provides
for an effective administration and enforcement of Muslim personal laws among
Muslims.
TITLE II
Construction of Code and
Definition of Terms
Article 3. Conflict of provisions. —
(1) In case of
conflict between any provision of this Code and laws of general application,
the former shall prevail.
(2) Should
the conflict be between any provision of this Code and special laws or laws of
local application, the latter shall be liberally construed in order to carry
out the former.
(3) The
provisions of this Code shall be applicable only to Muslims and nothing herein
shall be construed to operate to the prejudice of a non-Muslim.
Article 4. Construction and
interpretation. —
(1) In the
construction and interpretation of this Code and other Muslim laws, the court
shall take into consideration the primary sources of Muslim law.
(2) Standard
treatises and works on Muslim law and jurisprudence shall be given persuasive
weight in the interpretation of Muslim law.
Article 5. Proof of Muslim law and 'ada. —
Muslim law and 'ada not embodied in this Code shall be
proven in evidence as a fact. No 'ada which is contrary to the Constitution of
the Philippines, this Code, Muslim law, public order, public policy or public
interest shall be given any legal effect.
Article 6. Conflict in Islamic
schools of law. —
(1) Should there be any conflict among the orthodox
(Sunni) Muslim schools of law (Madhahib), that which is in consonance with the
Constitution of the Philippines, this Code, public order, public policy and
public interest shall be given effect.
(2) The Muslim schools of law shall, for
purposes of this Code, be the Hanfi, the Hanbali, the Maliki and the Shafi'i.
Article 7. Definition of terms. —
Unless the context otherwise provides:
(a) "Agama Arbitration Council"
means a body composed of the Chairman and a representative of each of the
parties to constitute a council to take all necessary steps for resolving
conflicts between them.
(b) "Ada" means customary law.
(c) "General Register" means the
General Register of marriages, divorces, revocation of divorces, conversion and
such other deeds or instruments kept by the Registrar under this Code.
(d) "Ihram" signifies the state
of ritual consecration of a person while on pilgrimage to Mecca.
(e) "Madhhab" (plural, Madhahib)
means any of the four orthodox (Sunni) schools of Muslim law.
(f) "Month" means a period of
thirty days.
(g) "Muslim" is a person who
testifies to the oneness of God and the Prophethood of Muhammad and professes
Islam.
(h) "Muslim
Law" (Shari'a) refers to all the ordinances and regulations governing
Muslims as found principally in the Qur'an and the Hadith.
(i) "Muslim Personal Law"
includes all laws relating to personal status, marriage and divorce,
matrimonial and family relations, succession and inheritance, and property
relations between spouses as provided for in this Code.
…
Shari'a District Courts
Article 138. Shari'a judicial districts. —
Five special judicial districts, each to have one
Shari'a District Court presided over by one judge, are constituted as follows:
(a) The
First Shari'a District shall comprise the Province of Sulu;
(b) The
Second Shari'a District, the Province of Tawi-Tawi;
(c) The
Third Shari'a District, the Province of Basilan, Zamboanga del Norte and
Zamboanga del Sur, and the Cities of Dipolog, Pagadian and Zamboanga;
(d) The
Fourth Shari'a District, the provinces of Lanao del Norte and Lanao del Sur,
and the Cities of Iligan and Marawi; and
(e) The
Fifth Shari'a District, the Provinces of Maguindanao, North Cotabato and Sultan
Kudarat, and the City of Cotabato;
Article 139. Appointment of judges. —
The judicial function in the Shari'a District Courts
shall be vested in Shari'a District judges to be appointed by the President of
the Philippines.
Article 140. Qualifications. —
No person shall be appointed Shari'a District judge
unless, in addition to the qualifications for judges of Courts of First
Instance fixed in the Judiciary Law, he is learned in Islamic law and
jurisprudence.
Article 141. Tenure. —
Shari'a District judges shall be appointed to serve
during good behavior until they reach the age of sixty-five years, or become
incapacitated to discharge the duties of their office, unless sooner removed
for the same causes and in the same manner provided by law for judges of Courts
of First Instance.
Article 142. Compensation. —
Shari'a District judges shall receive the same
compensation and enjoy the same privileges as the judges of Courts of First
Instance.
Article 143. Original jurisdiction. —
(1) The Shari'a
District Court shall have exclusive original jurisdiction over:
(a) All
cases involving custody, guardianship, legitimacy, paternity and filiation
arising under this Code;
(b) All
cases involving disposition, distribution and settlement of the estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators or executors regardless of the nature or the
aggregate value of the property;
(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 this
Code;
(d) All
actions arising from customary contracts in which the parties are Muslims, if
they have not specified which law shall govern their relations; and
(e) All
petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and
all other auxiliary writs and processes in aid of its appellate
jurisdiction.
(2) Concurrently
with existing civil courts, the Shari'a District Court shall have original
jurisdiction over:
(a) Petitions
by Muslims for the constitution of a family home, change of name and commitment
of an insane person to an asylum;
(b) All
other personal and real actions not mentioned in paragraph 1 (d) 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 Circuit Court; and
(c) All
special civil actions for interpleader or declaratory relief wherein the
parties are Muslims or the property involved belongs exclusively to
Muslims.
Article 144. Appellate jurisdiction.
—
(1) Shari'a
District Courts shall have appellate jurisdiction over all cases tried in the
Shari'a Circuit Courts within their territorial jurisdiction.
(2) The
Shari'a District Court shall decide every case appealed to it on the basis of
the evidence and records transmitted as well as such memoranda, briefs or oral
arguments as the parties may submit.
Article 145. Finality of decision. —
The decisions of the Shari'a District Courts whether
on appeal from the Shari'a Circuit Court or not shall be final. Nothing herein
contained shall affect the original and appellate jurisdiction of the Supreme
Court as provided in the Constitution.
Article 146. Clerks and other subordinate
employees. —
Shari'a District Courts shall have the same officers
and other personnel as those provided by law for Courts of First Instance.
The pertinent provisions of the Judiciary Law
regarding the number, qualifications, appointment, compensation, functions,
duties and other matters relative to the personnel of the Courts of First
Instance shall apply to those of the Shari'a District Courts.
Article 147. Permanent stations; offices. —
(1) The Shari'a
District Courts shall have their respective permanent stations in the following
places:
(a) First
Shari'a District, Jolo, Sulu;
(b) Second
Shari'a District, Bongao, Tawi-Tawi;
(c) Third
Shari'a District, Zamboanga City;
(d) Fourth
Shari'a District, Marawi City;
(e) Fifth
Shari'a District, Cotabato City;
(2) The
Shari'a District Courts may hold sessions anywhere within their respective
districts.
(3) The
provinces, cities or municipalities concerned shall provide such courts with
adequate court office, supplies and equipment in accordance with the provisions
of the Judiciary Law.
Article 148. Special procedure. —
The Shari'a District Courts shall be governed by such
special rules of procedure as the Supreme Court may promulgate.
Article 149. Applicability of other laws. —
The provisions of all laws relative to the Courts of
First Instance shall, insofar as they are not inconsistent with this Code, be
applicable to Shari'a District Courts.
CHAPTER II
Shari'a Circuit Courts
Article 150. Where established. —
(1) Shari'a
Circuit Courts shall be established 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;
(e) Fifteen
in and for the Province of Maguindanao, North Cotabato and Sultan Kudarat and
the City of Cotabato.
(2) The
territorial jurisdiction of each of the 'Shari'a Circuit Courts shall be fixed
by the Supreme Court on the basis of geographical contiguity of the
municipalities and cities concerned and their Muslim population.
Article 151. Appointment of judges. —
Each Shari'a Circuit Court shall be presided over by a
Shari'a Circuit Judge to be appointed by the President of the
Philippines.
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.
Article 153. Tenure. —
Shari'a Circuit judges shall be appointed to serve
during good behavior until they reach the age of sixty-five years or become
incapacitated to discharge the duties of their office, unless sooner removed
for the same causes and in the same manner provided by law for judges of Municipal
Circuit Courts.
Article 154. Compensation. —
Shari'a Circuit judges shall receive the same
compensation and enjoy the same privileges as judges of Municipal Circuit
Courts.
Article 155. Jurisdiction. —
The Shari'a Circuit Courts shall have exclusive
original jurisdiction over;
(1) All cases involving
offenses defined and punished under this Code.
(2) All
civil actions and proceedings between parties who are Muslims or have been
married in accordance with Article 13 involving disputes relating
to:
(a) Marriage;
(b) Divorce recognized under this Code;
(c) Betrothal or breach of contract to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon divorce;
(f) Maintenance and support, and consolatory gifts, (mut'a);
and
(g) Restitution of marital rights.
(3) All cases involving
disputes relative to communal properties.
Article 190. Effectivity. —
This Code shall take effect immediately.
DONE in the City of Manila this 4th day of February in
the year of Our Lord nineteen hundred and seventy-seven [04.02.1977).
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