16TH SHARI’AH TRAINING SEMINAR

MSU Graduate School, Tamontaka, Datu Odin Sinsuat, Maguindanao

March 14, 2019 - May 3, 2019
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SHARI’A PROCEDURAL LAW (ADAB AL-QADI)

ATTY. GAPOR G. QUITUAR, JD

1999 Shari’ah Bar (1st Placer)
2003 Philippine Bar

LECTURE OUTLINE

A. PRELIMINARY CONSIDERATION
a. Shari’a Courts
b. Judges
c. Jurisdiction

B. SPECIAL PROCEDURE IN THE SHARI’A COURTS (IJRA’AT AL MAHAKIM AL SHARI’A)

I. GENERAL PROCEDURE
a. Actions
b. Complaint
c. Parties
d. Place of action
e. Cause of Action
f. Service of Summons
g. Answer
h. Failure to answer
i. Pre-trial
j. Judgment on the Pleading
k. Submission of memorandum
l. Trial
m. Judgment
n. Execution of judgment
o. Appeal
p. Legal opinion
q. Prohibited pleadings and motions

II. OATH
a. Administration of oath
b. Mutual oath
c. Mutual Imprecation (li’an)

III. SUPPLEMENTAL PROCEEDINGS

a. Suppletory rule in civil cases
b. Suppletory rule in specific offenses (criminal procedure)

IV. ARBITRATION PROCEEDINGS

C. SPECIAL PROCEEDINGS COGNIZABLE BY THE SHARI’A COURTS

D. RULES ON EVIDENCE (BAYYINA)
E. LEGAL FORMS
F. CASES

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 SPECIAL PROCEDURE IN THE SHARI’A COURTS
(Ijraat Al-Makim Al-Shari’a)

I. GENERAL PROCEDURE

Actions

Sec. 1. Commencement of Actions (Da’wa). - All actions and proceedings in

the Shari’a court shall be commenced by complaint which shall be prepared at
least in triplicate by the plaintiff (mudda’i) or his counsel (wakil), or by the clerk
of court.

Suppletory Rule 1, Sec. 5, 1997 Rule of Civil Procedure

Complaint, Parties, Venue and Cause of Action

Sec. 2. Complaint. - The complaint shall contain:

(1) The title of the case, the case number assigned to it, and the date of filing;

(2) The name and address of the plaintiff and/or his counsel; the name and
address of the defendant (mudda’aalaih); and

(3) A concise statement of the cause of action and the relief prayed for.

Suppletory Rule 6, Sec. 3, 1997 Rules of Civil Procedure

Suppletory Rule 7 on parts of the pleadings
Suppletory Rule 8 on manner of making allegations
Suppletory Rule 9 on Effect of failure to plead
Suppletory Rule 10 on Amendment and supplemental pleadings
SuppletoryRule 13 on filing and service of pleadings, judgments and other `
parties
(Parties)

Suppletory Rule 3, 1997 Rules of Civil Procedure

Sec. 1. Who may be parties; plaintiff and defendant

Sec. 2. Parties in interest
Sec. 3. Representatives as parties
Sec. 4. Spouses as parties
Sec. 5. Minor or incompetent persons
Sec. 6. Permissive joinder of indispensable parties
Sec. 7. Compulsory joinder of parties
Sec. 8. Necessary parties
Sec. 9. Non-joinder of necessary parties to be pleaded
Sec. 10. Unwillingco-parties

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 Sec. 11. Misjoinder and non-joinder of parties
Sec. 12. Class suit
Sec. 13. Alternative defendants
Sec. 14. Unknown identity or name of defendant
Sec. 15. Entity without juridical personality as defendant
Sec. 16. Death of party; duty of counsel
Sec. 17. Death or separation of a party who is a public officer
Sec. 18. Incompetency or incapacity
Sec. 19. Transfer of interest
Sec. 20. Action on contractual money claims
Sec. 21. Indigent party
Sec. 22. Notice to the Solicitor General

(Venue)

Suppletory Rule 4, 1997 Rules of Civil Procedure

Sec. 1. Venue of real actions

Sec. 2. Venue of personal actions
Sec. 3. Venue of actions against non-residents
Sec. 4. When rule not applicable

(Cause of Action)

Suppletory Rule 2, 1997 Rules of Civil Procedure

Sec. 1. Ordinary civil actions; basis of

Sec. 2. Cause of action, defined
Sec. 3. One suit for a single cause of action
Sec. 4. Splitting a single cause of action
Sec. 5. Joinder of causes of action
Sec. 6. Misjoinder of causes of action

Service of Summons

Sec. 3. Service of Summons (Al-adwa wa’l I’ada’). - Summons together with

the copy of the complaint shall be served upon the defendant

Suppletory Rule 14 on the service of summons

Sec. 1. Clerk to issue summons

Sec. 2. Contents
Sec. 3. By whom served
Sec. 4. Return
Sec. 5. Issuance of alias summons
Sec. 6. Service in person on defendant

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 Sec. 7. Substituted service
Sec. 8. Service upon entity without juridical personality
Sec. 9. Service upon prisoners
Sec. 10. Service upon minors and incompetents
Sec. 11. Service upon domestic private juridical entity
Sec. 12. Service upon foreign private juridical entity
Sec. 13. Service upon public corporation
Sec. 14. Service upon defendant whose identity or whereabouts are
unknown
Sec. 15. Extraterritorial service
Sec. 16. Residents temporarily outside of the Philippines
Sec. 17. Leave of court
Sec. 18. Proof of service
Sec. 19. Proof of service by publication
Sec. 20. Voluntary appearance

Answer

Sec. 4. Answer (Dafa). - The defendant shall file an answer within ten (10)
days from receipt of summons either personally or by counsel, or with the
assistance of the clerk of court.

Suppletory Rule 6, 1997 Rules of Civil Procedure

Sec. 4. Answer
Sec. 5. Defenses
Sec. 6. Counterclaim
Sec. 7. Compulsory counterclaim
Sec. 8. Cross-claim
Sec. 10. Reply

Sec. 4. Answer to counterclaim and counter cross-claim

Failure to Answer

Sec. 5. Failure to Answer. - Should the defendant fail to answer the

complaint within the ten (10) days from service, the court shall proceed to
receive the evidence ex parte upon which judgment shall be rendered.

Suppletory Rule 7, 1997 Rules of Civil Procedure

Sec. 1. Dismissal upon notice by plaintiff

Sec. 2. Dismissal upon motion of plaintiff
Sec. 3. Dismissal due to fault of plaintiff
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint

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 Pre-trial, Submission of Memoranda
and Judgment on the Pleadings

Sec. 6. (1) Pre-Trial. - (1) Not later than thirty (30) days after the answer is
filed, the case shall be calendared for Pre-trial. Should the parties fail to arrive at
an amicable settlement (sulkh), the court should clarify and define the issues of
the case which shall be set forth in a pre-trial order;

(2) Within ten (10) days from receipt of such order, the parties or the counsel
shall forthwith submit to the court the statement of the witnesses (shuhud) and
other evidence (bayyina) pertinent to the issues so clarifies and defined,
together with the memoranda setting forth the law and the facts relied upon by
them;

(3) Should the court find, upon consideration of the pleadings, evidence and
memoranda, that a judgment may be rendered without need of a formal
hearing, the court may do so within fifteen (15) days from the submission of the
case for decision.

Supplementary Rule 18, 1997 Rules of Civil Procedure

Sec. 1. When conducted

Sec. 2. Nature and purpose
Sec. 3. Notice of pre-trial
Sec. 4. Appearance of parties
Sec. 5. Effect of failure to appear
Sec. 6. Pre-trial brief
Sec. 7. Record of pre-trial

Suppletory Rule 34 on the Judgment on the Pleading

Suppletory Rule 35 on Summary Judgment
Suppletory Rule 20 on Calendar of Cases
Suppletory Rule 21 on Subpoena
Suppletory Rule 22 on Computation of Time
Suppletory Rule 23 on Modes of Discovery
Suppletory Rule 24 on Deposition before action or pending appeal
Suppletory Rule 25 on Interrogatories to Parties
Suppletory Rule 26 on Admission by Adverse Party
Suppletory Rule 27 on Production or Inspection of Documents or Things
Suppletory Rule 28 on Physical and Mental Examination of Persons
Suppletory Rule 29 on Refusal to Comply with Modes of Discovery

Trial

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 Sec. 7. Hearing or Trial (Khusama). - (1) The plaintiff (mudda’i) has the
burden of proof, and the taking of an oath (yamin) rests upon the defendant
(mudda-a-allai’h). If the plaintiff has no evidence to prove his claim, the
defendant shall take an oath and judgment shall be rendered in his favour by the
court. Should the defendant refuse to take an oath, the plaintiff shall affirm his
claim under oath in which case judgment shall be rendered in his favour. Should
the plaintiff refuse to affirm his claim under oath, the case shall be dismissed;

(2) If the defendant admits the claim of the defendant, judgment shall be
rendered in his favor by the court without further receiving evidence;

(3) If the defendant desires to offer defense, the party against whom
judgment would be given on the pleading and admissions made, if no evidence
was submitted, shall have the burden to prove his case. The statements
submitted by the parties at the pre-trial shall constitute the direct testimonies of
the witnesses as basis for cross-examination.

Suppletory Rule 30 on Trial

Suppletory Rule 31 on Consolidation or Severance of Trial
Suppletory Rule 33 on Demurrer to Evidence

Judgment (Huk’m)

Sec. 8. Judgment. - (1) The judgment shall be rendered within fifteen (15)
days from the termination of the trial or disposition of the case, should there be
no formal trial or hearing;

(2) The judgment shall become final and executory upon the expiration of
the period to appeal. Once the judgment becomes final and executory, the court
motupropio shall immediately issue the writ of execution for the satisfaction of
the judgment.

Suppletory Rule 36 on Final Orders and Entry Thereof

Suppletory Rule 37 on Motion for Reconsideration
Suppletory Rule 39 on Execution, Satisfaction and Effects of Judgment

Appeal

Sec. 9. Appeal. - An appeal shall be made by filing an notice of appeal

addressed to the court and by paying the docket fee within fifteen (15) days
from receipt of judgment.

Sec. 10. Appeal to the Shari’a District Court. - Within fifteen (15) days from
the perfection of an appeal, the clerk of court shall transmit the original record
to the appropriate appellate court.

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 Sec. 11. Appeal to the Supreme Court. - Upon receipt of the original records,
transcript and exhibits, the clerk of court of the Shari’a District court shall notify
the parties for such fact.

Suppletory Rules, 1997 Rules on Civil Procedure

Rule 40. Appeal from Municipal Trial Courts to Regional Trial Courts
Rule 41. Appeal from the Regional Trial Courts
Rule 45. Appeal to the Supreme Court

Auxiliary Writs or Provisional Remedies

Suppletory Rules of Court:

Rule 57. Preliminary attachment

Rule 58. Preliminary injunction
Rule 59. Receivership
Rule 60. Delivery of personal property (replevin)
Rule 61. Support Pendente Lite

Special Civil Actions (Art. 143, PD 1083 - Original Jurisdiction)

Suppletory Rules of Court:

Rule 62. Interpleader

Rule 63. Declaratory Relief and Similar Reliefs
Rule 65. Certiorari, Prohibition and Mandamus
Rule 68. Foreclosure of Real Estate Mortgage
Rule 69. Partition
Rule 71. Contempt

Special Proceedings (Art. 143 (b), PD 1083-Original Jurisdiction)

Suppletory Rules:

Rule 72, Sec. 2

Rule 73. Settlement of Estate of Deceased Persons
Rule 74. Summary Settlement of Estate
Rule 75. Probate of Will; Production and Allowance of Will
Rule 77. Allowance of Will Prove Outside of the Philippines and
Administration of Estate thereunder
Rule 78. Letters Testamentary and of Administration, when and to who
issued
Rule 79. Opposing Issuance of Letters Testamentary, Petition and Contest for
Letters of Administration
Rule 80. Special Administrator

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 Rule 81. Bond of Executors and Administrators
Rule 82. Revocation of Administration, Death, Resignation, and Removal of
Executors of Administrators
Rule 83. Inventory and Appraisal, Provision for Support of Family
Rule 84. General Powers and Duties of Executors and Administrators
Rule 85. Accountability and Compensation of Administrators
Rule 86. Claims against Estate
Rule 87. Actions by and against Executors and Administrators
Rule 88. Payment of the Debts of the Estate
Rule 89. Sales, Mortgages, and other Encumbrances of Property of Decedent
Rule 90. Distribution and Partition of the Estate
Rule 91. Escheats
Rule 92. Guardianship
Rule 93. Appointment of Guardians
Rule 94. Bonds of Guardians
Rule 95. Selling and Encumbering Property of Ward
Rule 96. General Powers and Duties of Guardians
Rule 97. Termination of Guardians
Rule 98. Trustees
Rule 99. Custody
Rule 100. Habeas Corpus
Rule 101. Commitment of an Insane Person to an Asylum
Rule 103. Change of Name
Rule 105. Petition for Legitimacy, paternity and Filiation
Rule 106. Constitution of Family Home
Rule 107. Declaration of Absence of Death
Rule 108. Cancellation or Correction of Entries in the Civil Registry
Rule 109. Appeals in Special Proceedings.

Legal Opinion

Sec. 12. Legal Opinion (Fatwa). - Before judgment is rendered, any court
may seek the opinion (fatwa) of the jurisconsult of Islamic law created under the
code of Muslim laws on matters concerning difficult questions of law and
jurisprudence (fiqh).

Prohibited Pleadings and Motions

Sec. 13. Pleadings and Motions Disallowed. - The court shall not allow the
filing of the following, pleadings, petitions or motions, to wit:

(a) Motion to dismiss or to quash;

(b) Motion for a bill of particulars;
(c) Motion for extension of time to file pleadings or any other papers;
(d) Motion to declare defendant in default;
(e) Reply, third-party complainants, or intervention;

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 (f) Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
(g) Petition for relief from judgment;
(h) Motion for new trial reopening of trial; and
(i) Any dilatory motion for postponement.

Suppletory Rule 15, 1997 Rules of Civil Procedure

II. OATH

Administration of Oath

Sec. 14. Administration of Oath. - (1) An oath (yamin) legally binding in a

manner and form observed under Muslim law may, by order of the court, be
administered upon any of the parties who are Muslim to establish a fact, or to
affirm any evidence presented. Such oath may constitute as proof in the absence
of any other evidence.

(2) No person shall be allowed to take an oath unless he is qualified under

Muslim law and is fully aware of the solemnity of the oath or the import of the
solemn affirmation. Any person who is to take an oath or solemn affirmation in
accordance with Muslim law shall be given reasonable time to think it over.

(3) The court shall set an appropriate an, date and place of oath taking or of
solemn affirmation by such person. If, at any time before such appointment
date, the party who is required to take an oath or of solemn affirmation refuse
to do so (nukul), the court may, in its discretion direct the person, if he is the
plaintiff, to withdraw his claim, or in case of the defendant, to admit the claim of
the plaintiff.

Mutual Oath

Sec. 15. Mutual Oath (Tahalif). - In cases of claims and counterclaims where
neither of the parties would give way at the pre-trial, the court may in its
discretion require both parties mutual oath on any particular fact or facts upon
which the court may render judgment.

Sec. 16. Mutual Imprecation (Li’an). - If a Muslim husband accuses his wife
of adultery and fails to prove the same in accordance with Muslim law, the court
may require the husband and the wife, if she is a Muslim to perform the
prescribed acts of imprecation (lia’an) and, thereafter, the court shall dissolve
the marriage by issuing the appropriate divorce decree in accordance with the
provisions of the Code on Muslim Personal Laws.

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 III. SUPPLEMENTAL PROCEEDINGS

Civil Cases

Sec. 17. Suppletory rules in civil cases. - The court shall adhere to sources of
Muslim law relating to number, status, or quality of witnesses (adala) and
evidence required to prove any fact. Except as herein provided, the rules of
court shall apply in a suppletory manner.

Criminal Procedure

Sec. 18. Suppletory rule in specific offenses. - Subject to the next preceding
section, all special cases and offenses cognizable by the court may be filed in
such form and heard in such manner as prescribed by applicable laws and the
rules of court. However, the court may apply in a suppletory manner, the
principles of Muslim law.

Art. 155 (1) [specific offenses: Arts 181, 182, 183, 184 and 185, PD 1083)

1991 Revised Rule on Summary Procedure, Sec. 1 (B) 4

Complaint
Arraignment
Preliminary conference
Trial
Arrest
Recognizance
Judgment
Appeal

Revised Rules on Criminal Procedure (Rules 110-127, Rules of Court)

Complaint
Arrest
Bail
Arraignment
Motion to quash
Pre-Trial
Trial
Judgment
New trial
Appeal

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Sec. 408, RA 7160, Local Government Code

Referral to the Lupon, exceptions:

a) Imprisonment of one (1) year or fine exceeding Php5,000.00

b) Accused is arrested without warrant

IV. ARBITRATION PROCEEDINGS

Sec. 19. Agama arbitration; how conducted. - The Agama Arbitration

Council, after its constitution pursuant to the provisions of the Code of Muslim
Personal Laws, shall conduct the arbitration proceedings in accordance with the
method it deems appropriate, taking into consideration the circumstances of the
dispute, the conciliation of the parties, the interests of the children, if any, and
other third parties involved, and the need for a speedy settlement of the
disputes. However, no arbitration proceedings shall take place ex parte.

Sec. 20.Effectivity. - These special rules of procedure shall take effect

immediately. (September 20, 1983)

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