Holbrook (2009)

Thursday, 22 August 2019 13:32

Legal Hybridity on the PH: Lessons in Legal Pluralism from Mindanao and the
Sulu Archipelago

• Explore potential of legal pluralism to manage and resolve legal conflict

inherent in overlapping normative obligations
• Address mechanisms employed by Spanish and American colonizers in
responding to normative conflict in Mindanao and Sulu Archipelago
• Discuss steps taken by PH govt to formally recognize Muslim normative
obligations
○ Constitutional protection of cultural heritage
○ Adoption of Muslim Code of Personal Laws
• Review PH govt's approach to legal hybridity in the context of 4 practices
identified by Berman in Global Legal Pluralism
○ Dialectical discourse
○ Margins of appreciation
○ Jurisdictional redundancy
○ Limited autonomy regimes

PH govt's approach models the possible benefits of pluralism in a normatively

complex and contentious hybrid society

• Case study of the Philippines

○ Muslims of Mindanao and Sulu Archipelago have steadily confronted
overlapping normative obligations based on a historical narrative that
significantly differs from the one played out further north

• Muslim Code of Personal Laws (PD 1083; 1977)

○ PH govt's pluralist approach to addressing subnational conflict
○ Create hybrid legal system (sovereigntist requirements + normative
needs of Muslim citizens)
 • Muslim Code of Personal Laws (PD 1083; 1977)
○ PH govt's pluralist approach to addressing subnational conflict
○ Create hybrid legal system (sovereigntist requirements + normative
needs of Muslim citizens)

Legal Pluralism
• Balance bet territorial sovereignty, liberal rights, and community self-
determination
• People belong willingly or unwillingly to coexist associations with
overlapping norms that both accord and discord with sovereign territorial
power
• Norm-generating communities
○ Formal and informal associations based on politics, ethnicity, religion,
geography, business, trade, and common interest
○ Instill behavioral allegiances within and across state boundaries
○ Generate practices and procedures that seek to advance common
goals and provide proprietary legal remedies unavailable through
positivist legal channels

Central question
• Whether the rejection of hybridity for either sovereigntist or universalist
reasons is always preferable OR
• Whether the management of hybridity through legal pluralism is a more
beneficial alternative

Pluralism allows competing norms to share the same social space through
structured elements
• External benefits outweigh internal costs of compromise
○ Benefits - preservation of peace and cultural integrity
○ Costs - loss of efficiency and systemic predictability
• Value of social space may be enhanced by the diversity

Beginnings of Hybridity

Arrival of Islam in PH
• Muslim struggle: regain political and religious independence
• 14th C first Muslim traders in Tawi-Tawi, Sulu
• 15th C Muslim missionaries in Sulu
• 1475 Islam reached Mindanao
○ Spread through trade and marriage
 • Muslim struggle: regain political and religious independence
• 14th C first Muslim traders in Tawi-Tawi, Sulu
• 15th C Muslim missionaries in Sulu
• 1475 Islam reached Mindanao
○ Spread through trade and marriage
○ Merged organically with existing customary law

• Bangsa (barangay) pre-islam

• autonomous or semi-autonomous
• No written law
• Datus held land rights on basis of ancestral association; local and
provincial authority
□ Authority --> aristocratic privilege upon Islam arrival
[Sultanates]
• Sultanates
• Functioned like mini states
• Govts have administrative and judicial powers
• Agama courts applied to adat (Moro customary law) and shari'a law --
HYBRID MODEL

Every community can adopt its own personal law

• Distinguishes law of the land from personal law
• In a multi-national state, personal affairs of man should be settled according
to his personal law
• Right to divorce, remarry, share conjugal earnings and child custody when
separated

Islam reached Manila in 1565, halted bc of Spanish

--> religious segmentation

Colonialism, Conflict, and Customary Law

Process by which a common Moro identity emerged during Spanish colonization

is up to debate
• PH Muslim scholars:
• Spanish colonization created fire from which common identity was
forged
• Unified Muslim resistance to Spanish subjugation
• McKenna (anthropologist)
• Spanish colonialism was a cold war; mostly peaceful coexistence with
 • Spanish colonization created fire from which common identity was
forged
• Unified Muslim resistance to Spanish subjugation
• McKenna (anthropologist)
• Spanish colonialism was a cold war; mostly peaceful coexistence with
Spanish
US
• US initially: legal hybridity in south
• Entered into formal treaty with Sultan of Sulu in 1899
• US promised not to interfere in Sulu religion, law, and commerce
• Sultan must acknowledge US sovereignty
• Later, legal pluralism --> integration
• 1905 abrogated treaty with Sulu
• 1914 imposed uniform law, disregarded adat
• Stopped recognizing sultanates
• Civil courts retained authority to reference local laws and customs
§ 1915 Act No. 2520 Mohammedan Laws and Customs
□ Judges deciding civil cases may modify application of PH
law, consider local laws and customs if parties are
Mohammedans or Pagans; provided that not conflicting
with basic US laws
□ Tolerance, not recognition
□ Adong v. Gee (1922)
® PH SC: marriage in Muslim customs are valid
® Religious freedom in Treaty of Paris; Act 2520

1935 Commonwealth
• Consti recognized religious freedom but no formal recognition of Moro
cultural identity or shari'a law

PH colonial era
• Attempted to resolve conflict through one-size-fits-all sovereigntist
approach
• Widened divide bet Christians and Muslims

Hybridity in the Early State

• 1946-1968 legal relationship bet ph govt and muslims: tolerant indifference
• 20 year window
• 1949 RA 241 formally exempted Mohammedans and pagans from
Hybridity in the Early State
• 1946-1968 legal relationship bet ph govt and muslims: tolerant indifference
• 20 year window
• 1949 RA 241 formally exempted Mohammedans and pagans from
formal civil marriage reqs
• Recognize divorce
• Focused on eventually integrating muslims into christian society
rather than recognizing their normative differences

• 1968 Jabidah Massacre

• 14 muslim military service members executed by christian filipino
officers for allegedly "protesting the conditions of their training"
• Coalesced muslims into a separatist movement --> MNLF
• 172 Martial Law partly bc of Muslim secessionist movement in PH south

Tripoli Agreement
• 1976 PH govt and MNLF negotiations
• Cease fire agreement
• Provided the general principles for muslim autonomy in PH south
• Establish islamic courts
• Conciliatory reforms
§ Recognize muslim marriages
§ Southern Philippines Development Authority
§ Islamic studies Center at UP
§ Construction of a mosque in Manila
• 1973 Consti
• Published in Arabic
• Required state to consider customs, traditions, beliefs, and interests of
national cultural communities in the formulation and implementation
of State policies
• Marcos created Presidential Task Force for the Reconstruction and
Development of Mindanao
• Draft code of Muslim Filipino Law -- PD 1083 Muslim Code of
Personal Laws
• Promise of legal autonomy failed to materialize
• MNLF realized Marcos had no real intention
• Two autonomous regions in south are essentially hallow
 Personal Laws
• Promise of legal autonomy failed to materialize
• MNLF realized Marcos had no real intention
• Two autonomous regions in south are essentially hallow

PD 1083 and the Muslim Code of Personal Laws

PD 1083 (1977)
• Provide muslim law that acknowledged personal normative obligations
without serious undermining ph civil law
• 5 books, 6 legal areas
• Marriage, divorce, and parental authority
• Wills and estates
• Establishment of shari'a courts
• Muslim holidays
• Transfer of real and personal property
• Conversion to islan
• Establish shari'a courts
• Establish Office of Juriconsult in Islamic Law

Objectives of PD 1083
• Sec 2
• Recognize legal system of the Muslims in PH as part of law of the land
and seeks to make islamic institutions more effective
• Codify muslim personal laws
• Provide for effective administration and enforcement of muslim
personal laws among muslims
• Art 4
• Extends legal reach of PD (text + Qu'ran + Hadith + historic
interpretive texts)

Jurisdiction and PD 1083

• Art 3
• Applicable only to muslims, nothing shall be construed to operate to
the prejudice of a non-muslim
Jurisdiction and PD 1083
• Art 3
• Applicable only to muslims, nothing shall be construed to operate to
the prejudice of a non-muslim
• Authorizes areas of exclusive and concurrent subject matter jurisdiction
• Mandatory jurisdiction to prevent forum-shopping (ex. consent in
shari'a court jurisdiction only when it favors them)

Conflict of Laws and PD 1083 -- recognize not tolerate

• Polygamy and divorce
• 2 ways of addressing conflict
• Establish preferential scheme that distinguishes bet muslim laws,
general laws, and special and local laws
§ Art 3 - if there is conflict bet this Code and laws of general
application, the Code shall prevail
§ Art 187 - Civil Code, Rules of Court, etc., shall be applied
suppletorily if there is conflict
• Art 180 - RPC provisions re crime of bigamy shall not apply

Shari'a Court System

• 51 circuit (lower) courts and 5 (upper) district courts
• Circuit - confined to marriage, divorce, disposition of communal
property
• District - all other cases, appeals
• Geographically sa south lang
• Under administrative supervision of Supreme Court
• Effectiveness and legitimacy are in question
• "fake islamic court"; little used by muslims

Autonomous Region in Muslim Mindanao

• Art X 1987 Consti
• created ARMM
• Required congress to enact an organic act
§ Define structure of region's exec and legis branches
§ Provided for special courts
• 1989 RA 6734 - Organic Act for the ARMM
 • created ARMM
• Required congress to enact an organic act
§ Define structure of region's exec and legis branches
§ Provided for special courts
• 1989 RA 6734 - Organic Act for the ARMM
• 13 provinces and 9 cities in south to hold plebiscite to determine
whether they wanted to be part of ARMM
• Exec and legis autonomy
• ARMM shall remain an integral and inseparable part of the national
territory of the PH
• Shari'a Appellate Court, tribal courts
• ARMM fell short of its potential
• 1989 plebiscite: 4 provinces joined (Sulu, Tawi-Tawi, Maguindanao,
Lanao del Sur)
• 2001 + Basilan and Marawi
• Struggles economically (remits 60% of revenue to govt, gets 10%
back)

Toward a Pluralist Resolution of Conflict

Dialectical Discourse
• Continuing conversation bet normative communities
• Neither the direct hierarchical review traditionally undertaken by appellate
courts nor dialogue under doctrine of comity
• Communities allow norms of the other to influence own normative
interpretations
• Supranational level
§ Ex. State courts may choose not to follow European Court of
Human Rights, citing constitutional independence, but they still
consider ECHR rulings in relevant decisions
• Subnational level
§ Ex. Canadian Consti: dialectical interaction bet national courts
and provincial legislatures concerning constitutional
interpretation
• PH context
§ Sec 17 Art XIV of 1987 Consti and PD 1083
□ State shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and develop
their cultures, traditions, and institutions.
 • PH context
§ Sec 17 Art XIV of 1987 Consti and PD 1083
□ State shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and develop
their cultures, traditions, and institutions.
□ State shall consider there rights in formulation of national
plans and policies
§ Bondagjy v. Bondagjy
□ Civil court and Supreme Court considered general
principles of Muslim law
□ Christian wife married a muslim, got divorced, converted
back to christianity
□ Challenged wife's parental fitness; child custody (wife won)
® Standards from Muslim law and Family Code were
applied

Margins of Appreciation
• Acknowledges need for a hierarchal legal supervisor to retain oversight
authority while providing "space for local variation" in implementing
supervisory norms
• Encourages legal hybridity by
• Allowing subordinate jurists to adapt governing norrms to local
custom
• Allowing legal supervisors to give deference to local adaptations not
fundamentally incompatible with the overarching scheme
• Legal supervisors waits for consensus to build before issuing definitive
normative prescriptions
• 1987 Consti and PD 1083
• Encourage SC to give latitude to shari'a courts in adapting national
norms to local customs
• Bondagjy II (sequel sa first case haha)
• Wife filed complaint for diverse in shari'a court in 2005
• Husband argued res judicata, same case filed in 1996. court said OK
youre right, 2005 case dismissed
• Wife appealed to 4th shari'a district court; decision reversed; husband
appealed to SC
• SC said di yan res judicata; acknowledged distinctiveness of Shari'a
court procedures; remanded case to shari'a circuit court
• Tampar v. Usman
• Usman forged signatures on deed of sale. He took a holy oath (yamin)
 appealed to SC
• SC said di yan res judicata; acknowledged distinctiveness of Shari'a
court procedures; remanded case to shari'a circuit court
• Tampar v. Usman
• Usman forged signatures on deed of sale. He took a holy oath (yamin)
saying di siya nag forge. Shari'a court dismissed the case.
• Supreme Court said luh walang evidence
§ Deprives litigant of his consti right ti due process
§ Also suggested deletion of provision in shari'a court rules
• While SC acknowledged distinctiveness of shari'a court's procedures in
the bondagjy case, it affirmed in usman that they are still bounded by
the overarching right to due process

Jurisdictional Redundancy
• Arises when multiple communities possess jurisdictional authority over same
actors
• Result to conflicting normative obligations, choice of forum,
uncertainty as to final resolution of the ultimate issue
• Adaptive feature of pluralism
• Leads to nuanced negotiation
• Greater possibility for error correction
• More robust field for norm articulation
• Larger space for creative innovation

Limited Autonomy Regimes

• Seen in states with diverse religious or ethnic populations
• Purpose: mediate conflict by endowing minority populations with some
measure of shared state power
• Inherently embrace margins of appreciation
• Three types
• Territorially-concentrated ethnic, religious or linguistic minority
groups
§ Retain provisional exec legic and judic autonomy
• Power-sharing regimes
§ Minority normative communities are assured representation in
exec legis or judic councils OR
§ Endowed with powers in decision-making process
• Recognize the personal law of members of minority normative
communities regardless of territorial location
§ State law may seek to create margins of appreciation to
 exec legis or judic councils OR
§ Endowed with powers in decision-making process
• Recognize the personal law of members of minority normative
communities regardless of territorial location
§ State law may seek to create margins of appreciation to
recognize forms of autonomy for these identities
• ARMM
• Administrative organization
• Revenue generation
• Management of ancestral domains
• Use and preservation of natural resources
• Oversight of personal, family, and property relations
• Urban and rural planning and development
• Economic development
• Tourism
• Education
• Preservation of cultural heritage
• Other powers exercised by national govt

Progress Through Pluralism

• Other efforts
• Office of muslim affairs
• Halal development program
• Legal and community services support
• Muslim child advocacy
• Muslim cooperative development program
• Pilgrimage and endowment development program
• Successful?
• yes
§ Secessionists efforts in 1960s-70s are now abated. MNLF now
functions as legit organization, engages in peaceful debate
§ Mindanao and sulu archipelago still under ph territorial
sovereignty; no widespread clamor for independence
• No
§ Violent conflict in south continues, even increased
§ MILF, abu sayyaf still in armed resistance, seeking an
independent moro islamic state
§ MOA-AD unconstitutional
§ Massive poverty in south, perception of injustice vs muslims
made it easy for au sayyaf to recruit ("to the young muslim, they
are not terrorists, but a resistance force against any form of
 § MILF, abu sayyaf still in armed resistance, seeking an
independent moro islamic state
§ MOA-AD unconstitutional
§ Massive poverty in south, perception of injustice vs muslims
made it easy for au sayyaf to recruit ("to the young muslim, they
are not terrorists, but a resistance force against any form of
subjugation)
§ Economic discrimination

Lessons in managing legal hybridity through pluralist methodology

• Conflict unlikely solved by sovereigntism or universalism
• Pluralism's structured framework no messier than when overlapping norms
are expressed informally
• May lead to a normative cross-flow, communities are mutually enriched
• Can effectively manage competing normative obligations

Conclusion
• Pluralistic methodologies are not a panacea for fundamental normative
conflict
• Total resolution of normative conflict is not pluralism's goal
• Only seek to bring order to shared social spaces, manage conflict