LEGAL PLURALISM IN THE PHILIPPINES

Ijtihad

By Mehol K. Sadain

Few people realize that the Philippines has institutionalized a pluralistic approach in enacting and implementing laws in the country. It may not yet be extensive, but the influence of Islamic and customary laws has gained significant inroad in our legal system.

This is to be expected following the mandates of the 1987 Constitution to recognize and promote “the rights of indigenous cultural communities within the framework of national unity and development” [Art. II, Sec. 22] as well as to recognize, respect and protect “the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions” [Art. XIV, Sec. 17].

        Legal pluralism is not a legal system by itself; it is rather an attribute of a social field where more than one source of law and more than one legal order is observable. According to social scientist John Griffiths, it is the result of social pluralism, the heterogeneity of which results in overlapping semi-autonomous social fields, and hence, a comingling of laws when they are enacted by the legislature.

In the Philippines, two of the primary examples of legally pluralistic laws are the Code of Muslim Personal Laws enacted in 1977 and the Indigenous Peoples’ Rights Act passed in 1997. The first recognizes the personal laws of the Muslims in the Philippines, and the second protects the rights of indigenous peoples to their ancestral domain and other existential concerns. The overall effect of these laws is to give the Filipino Muslims and the IPs a feeling of belongingness by rendering their legal institutions and practices operative.

According to scholar Michael Mastura, who advocated and pioneered several laws related to Islamic Muamalah, the institution of legal pluralism is also evident in Southeast Asia, where western and Islamic laws co-exist with customary laws. In the Philippines, the phenomenon is the result of reforms initiated within the Philippine legal system by allowing the Muslims and the IPs institutional and legal rooms to interact with each other, and with the majority population. It is noteworthy that in the case of the Muslims, these legal reforms where the result of their extra-legal struggle for self-determination.

Which brings us to the role of legal pluralism in resolving conflicts in a majority-minority situation, as well as disputes within the minority groups themselves. To paraphrase Saaduddin Sardar in his article on Shari’ah as a problem-solving methodology, contemporary law (Shari’ah in the case of the Muslims) must be able to respond adequately to conflict situations and solve problems as they arise. Absent this function of the law, its doctrines and provisions are rendered useless.

In the years that I have been teaching the Code of Muslim Personal Laws of the Philippines and Islamic Law in general, I have observed that the concept of legal pluralism in our country is now pregnant with beneficial possibilities. The gradual introduction of Islamic-based laws in banking, insurance, financial transactions and the halal industry will not only bring the Muslims within the ambit of Philippine law; it will also enrich the effectiveness, and expand the reach, of Philippine law. This is especially so if we consider that the Philippines exists within the milieu of the Shari’ah-driven economies of Indonesia, Malaysia and Brunei.   (MKS)

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