SPECIAL RULES OF PROCEDUREGOVERNING PHILIPPINE

SHARI'A COURTSANNOTATED

MANGONTAWAR M. GUBAT

Associate Professor of LawProvincial Prosecutor II

Copyright 2012, Mangontawar M. Gubat

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TABLE OF CONTENTS

Preface to the Third EditionPreface to the Second EditionPreface to the First EditionIntroductory ChapterGeneral ConsiderationsThe courtsJurisdictionActionVenueThe Shari'a CourtsShari'a Appellate CourtShari'a District CourtsShari'a Circuit CourtsComments on the Special Rules of ProcedurePART I - GENERAL PROCEDURESSec. 1. Commencement of Actions.Sec. 2. Complaint.Sec. 3. Service of Summons.Sec. 4. Answer.Sec. 5. Failure to Answer.Sec. 6. Pre-Trial.Sec. 6, Subsection 2.Sec. 6, Subsection 3Sec. 7. Hearing or Trial .Sec. 7, Subsection 2.Sec. 7, Subsection 3Sec. 8. Judgment.Sec. 8, Subsection 2Sec. 9. Appeal.Sec. 10. Appeal to the Shari'a District Court.Sec. 11. Appeal to the Supreme Court.Sec. 12. Legal Opinion ( Fatwa ) .Sec. 13. Pleadings and Motions Disallowed.PART II - OATH ( YAMIN )

Sec. 14. Administration of Oath.Sec. 14, Subsection 2Sec. 14, Subsection 3.Sec. 15. Mutual Oath (Tahaluf).Sec. 16. Mutual Imprecation ( Li'an ) .PART III - SUPPLEMENTAL PROCEEDINGS.Sec. 17. Supplemental Rule in Civil Cases.Muslim Law On EvidenceSec. 18. Suppletory Rule in Special Offenses.PART IV-ARBITRATION PROCEEDINGS.Sec. 19. Argama Arbitration, How Conducted.Sec. 20. Effectivity.Appendix A.-- Code Of Muslim Personal Laws of the Philippines.Appendix B.-- Organic Act For The Autonomous Region In Muslim MindanaoAppendix C.-- Shari'a Bar Questions in Procedure and Evidence.About the AuthorOther Books by the Author at Smashwords

PREFACE TO THE THIRD EDITION

In the name of Allah, the Most Beneficent, the Most Compassionate. Praise be to Him, the Lord of the Universe and Who keeps on expanding it, in Whose Hands my life and soul. I thank Him once again for giving me the courage and strength to come up with this this edition.

This book, which is now on its third edition, was originally entitled The Special Rules of Procedure Governing the Sharia Courts (Ijra-at Al Mahakim Al Shariah) Annotated. The original title may suggest that the Special Rules, as it is called throughout the text for brevity, is universal in its application to Islamic courts. On the contrary, although it has the basic feature of Islamic procedure, the Special Rules is Philippine adjective law exclusively applicable to the Sharia courts in the Philippines, which were created by local legislation for the enforcement of the legal system of the Filipino Muslims. For fear that the work may be entirely ascribed to, and render disservice to the Islamic faith, the work is renamed to underscore its limited territorial applicability. Thus, it is now called Special Rules of Procedure Governing Philippine Sharia Courts Annotated.

This edition is updated with recent decisions of the Philippine Supreme Court involving or affecting the Sharia courts as well as pertinent amendments to the Rules of Court of the Philippines.

The author takes this opportunity to fully acknowledge Abdul Rahim (may Allah bless him) whose treatise on the general features of Muslim law on evidence has been extensively quoted in this humble work. May he be infinitely rewarded by Allah (s.w.t.) for his efforts.

It is my sacrosanct prayer that this edition will be useful to e-readers who are interested in this special and unique field of Philippine procedural law.

Mangontawar M. Gubat

February 28, 2012

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PREFACE TO THE SECOND EDITION

In the name of Allah, the Most Beneficent, the Most Merciful. Praise be to Him, the Lord of the Universe, He who has control and dominion of the heavens and the earth. Thanks be to Him for giving me His favours for writing this book and now for coming out with a revised edition.

The principle that laws constantly change is generally repulsive to Islamic law. It has been said that the elements constituting the doctrines, principles, tenets and articles of faith as well as the ideology shaping the Islamic system and making it quite distinctive are not subject to change. 'That was the Way of Allah in the case of those who passed away of old; and you will not find any change in the Way of Allah.' (Holy Qur'an, 33:62)

The shari'a courts in the Philippines are creations of the Philippine legislature. The Special Rules of Procedure Governing the Shari'a Courts, though it has Islamic features, is Philippine adjective law. The basic Islamic procedural principles under which it was promulgated stand still; but civil procedure that applies in a suppletory character keeps on changing.

Thus, the advent of the 1997 Rules of Civil Procedure brought about changes that necessitate a revision of this humble work. The annotations are updated to reflect not only the amendments to the Rules of Court but also the innovations yet to be tried and tested in the arena of the Philippine judicial system.

As an added feature of this edition, Republic Act No. 9054 otherwise known as the "Act To Strengthen and Expand the Organic Act of the Autonomous Region in Muslim Mindanao" is appended hereto in tandem with the Pres. Decree No. 1083 else known as the "Code of Muslim

Personal Laws". These are the basic laws governing the Muslims of the Philippines.

Like the first edition, much of the annotations on the special rules are of civil law except when otherwise indicated either specifically or when the rule is peculiar to Islamic adjective law.

Finally, I wish to acknowledge my publisher Atty. Agaton R. Sibal who was the first to open to me the privileged, if not exclusive, field of publication; and to the courteous men and women of the Central Professional Books under his able stewardship, my heartfelt thanks.

May this work remain helpful to shari'a students, bar candidates and practitioners alike.

Mangontawar M. Gubat

April 3, 2003

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PREFACE TO THE FIRST EDITION

Laws need courts to apply and interpret them. Courts, in turn, must be guided by rules in the application and interpretation of the laws. Without rules, the courts are but useless instruments that only embellish and impress.

The recognition of the Muslim legal system as part of the laws of the Philippines and the creation of the Shari'a courts as part of its judicial system necessitate the promulgation of rules that would govern the proceedings of these courts. On 20 September 1983, the Supreme Court promulgated the "Special Rules of Procedure Governing the Shari'a Courts (Ijra-at al-Mahakim al-Shari'a)" hereinafter referred to, for brevity, as Special Rules. The Special Rules which is almost summary in nature provides for an expeditious and inexpensive determination of the cases brought before the Shari'a courts.

The brevity of the Special Rules creates the first impression that it needs no commentary at all. Yet, the suppletory application of the Rules of Court and the requirement that these courts should adhere to the sources of Muslim law relating to the number, quality and credibility of witnesses combined detract from such an impression.

Indeed, such suppletory application necessitates an examination of the pertinent provisions of the Rules of Court as well as jurisprudence not to mention the few decisions of the Supreme Court directly involving the Special Rules. Their integration into the Special Rules by way of a single commentary is well nigh indispensable.

It is in this wise that the author takes the painstaking efforts to write this humble work with the hope that it will cater to the need of shari'a students and prospective candidates to the Special Shari'a Bar examinations alike. If this humble

work proves useful in the smallest degree, then somehow the author's efforts in its preparation are not in vain.

For the probable future improvement of this work, the author welcomes criticisms, suggestions, and recommendations.

These prefatory observations would be rendered incomplete without acknowledging those whose works have greatly contributed in the preparation of this simple commentary, namely: Dr. Abdul Rahim, Manuel V. Moran, Florenz Regalado, and Jainal Rasul. Special acknowledgment goes to Mr. Boniero J. Lumasag, Sr. for his painstaking efforts in retyping the original manuscript.

Mangontawar M. Gubat

January 1, 1995

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INTRODUCTORY CHAPTER

PART A

GENERAL CONSIDERATIONS

The Courts

Court, defined.A court is an organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice (Black's Law Dictionary).

The words 'courts' and 'judges' are used synonymously and interchangeably, generally speaking.

In ordinary parlance, 'judges' are spoken of as 'courts' and 'courts' are referred to when the person means the 'judge' only. It is common for laymen, lawyers and judges, as well as the law, to use these terms interchangeably. But there is an important distinction between the court as an entity, and the person who occupies the position of judge. Courts may exist without a judge. There may be a judge without a court (Pamintuan vs. Lorente, 29 Phil 346).

In Islamic law, the person who performs the onerous task of deciding the disputes and awarding or sentencing a binding order is called 'qadi'. He is also called hakam or hakim, but the latter two words are seldom used for this purpose in the works of fiqh since hakam is generally used for an arbiter and hakim for a ruler or an executive authority (Azad, M., Judicial System of Islam, Islamic Research Institute, Pakistan, 1987, p. 7).

Classification of courts.The classification of courts in the Philippines are:

A. According to their nature and extent of jurisdiction:

(1) Court of general jurisdiction, one which has the power to adjudicate all controversies which may be brought before it within the legal bounds of rights and remedies except those expressly withheld from its plenary powers. Example: Regional Trial Courts.

(2) Court of limited or special jurisdiction, one whose power to adjudicate is confined to particular causes or can only be exercised under the limitations and circumstances prescribed by statute. Example: Shari'a Circuit Courts.

(3) Court of original jurisdiction, one which has the power to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Example: Shari'a District Courts.

(4) Court of appellate jurisdiction, one which has the authority to review the final order or judgment of a lower court with the power to modify, reverse, sustain or remand, or affirm the same. Example: Shari'a Appellate Court.

B. According to the principles on which they administer justice:(1) Civil court, one which determines controversies between private persons.

(2) Criminal court, one which is charged with the administration of criminal laws, and the punishment of wrongs to the public (Black's Law Dictionary).

(3) Court-martial, a military court pertaining to the executive department of the government for trying and punishing offenses committed by members of the armed forces.

(4) Admiralty court, one which has jurisdiction over admiralty and maritime matters.

(5) Juvenile court, one which has special jurisdiction, of a paternal nature, over delinquent and neglected children.

(6) Court of equity, one which has jurisdiction in equity, which administers justice and decides controversies in accordance with the rules, principles, and precedents of equity, and which follows the forms and procedures of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law (Ibid.). Simply stated, it is one which follows a more flexible and discretionary rules.

(7) Court of law, in a wide sense, any duly constituted tribunal administering the laws of the state or nation; in a narrower sense, a court proceeding according to the course of common law and governed by its rules and principles, as contrasted with a 'court of equity' (Ibid). It is one governed by highly formal set of rules.

(8) Ecclesiastical court, one which has jurisdiction over matters pertaining to the religion and ritual of the established church, and the rights, duties, and discipline of ecclesiastical persons as such (Ibid.).(9) Shari'a court, one which is charged with the administration of shari'ah laws over Muslims.

C. According to the law creating them:(1) Constitutional court, one which owes its creation and existence from the Constitution. Example: Supreme Court

(2) Constitutionally-mandated court, one whose existence is provided for in the Constitution but its creation by statutory enactment. Example: Sandiganbayan

(3) Statutory court, one which is created and organized and with jurisdiction determined by law. All courts in the Philippines except the Supreme Court and Sandiganbayan are statutory courts.

D. According to their relation with other courts:

(1) Superior court, one which has the power to review, reverse, modify or affirm the order or judgment of a lower court.

(2) Inferior court, one whose order or judgment may be reviewed by a higher court.

E. According to whether they keep a record of their proceedings:(1) Court of record, one which is bound to keep a record of its proceedings for a perpetual memorial and testimony thereof (Melgar v. Delgado, 53 Phil. 225).

(2) Court of not record, one which is not required by law to keep a record of its proceedings.

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Jurisdiction

Jurisdiction, defined.Jurisdiction is the power and authority of a court to hear, try and decide a case (Herrera vs. Barretto, 25 Phil. 245). It is the power and authority to hear and determine a cause or the right to act in a case (Sogod vs. Rosal, G.R. 38204--5, Sept. 21, 1991).

Classification of jurisdiction.Jurisdiction is classified as follows:

(1) Original jurisdiction, the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law (Garcia vs. De Jesus, 206 SCRA 779, 786 [1992]). It means jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts (Ong, Sr. vs. Parel, 156 SCRA 768, 776 [1987]).

(2) Appellate jurisdiction, the power of a court higher in rank to review the final order or judgment of a lower court

and modify, reverse, sustain or remand the same (Garcia vs. De Jesus, supra).(3) General jurisdiction, the power to adjudicate all controversies which may be brought before a court within the legal bounds of rights and remedies except those expressly withheld from its plenary powers.

(4) Limited jurisdiction, the power confined to particular causes, or which can only be exercised under the limitations and circumstances prescribed by statute. This is also known as special jurisdiction.(5) Exclusive jurisdiction, the power to adjudicate a controversy to the exclusion of all other courts at that stage and precludes the idea of co-existence (Ong, Sr. vs. Parel, supra, pp. 776-777 citing Black's Law Dictionary, p. 1251).(6) Concurrent jurisdiction, the power conferred upon different courts, whether of the same or different ranks, to take judicial cognizance at the same stage of the same case in the same or different judicial territories. But once the court assumed jurisdiction of a case, its jurisdiction shall continue until the case is finished (Rulonah Al-Awadhi vs. Astih, G.R. 81969, Sept. 26, 1988; People vs. Layno, 111 SCRA 20 [1982]; Denila vs. Bellosillo, 64 SCRA 63 [1975]; Lat vs. PLDT, 67 SCRA 425 [1975]).

(7) Delegated jurisdiction, the power conferred upon a court to hear and determine certain cases such as cadastral and land registration under certain conditions (see I Regalado, Remedial Law Compendium, 1997 ed., pp. 3-4).

Distinguished from venue.Jurisdiction is distinguished from venue as follows:

(1) Jurisdiction is the authority of a court to hear, try and decide a case (Herrera vs. Barreto, supra); venue is the place where the action must be instituted and tried (Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, 558).

(2) Jurisdiction is a matter of substantive law; venue is a procedural or adjective law (Dacoycoy vs. IAC, G.R. 74854, Apr. 2, 1991 citing Manila Railroad Co. vs. Attorney General, 20 Phil. 523; Consolidated Bank and Trust Corp. vs. IAC, 198 SCRA 34, 42 [1991]).

(3) Jurisdiction is conferred by law or the Constitution (Andaya vs. Abadia, 228 SCRA 705, 717 [1993]; Garcia vs. De Jesus, supra; Orosa, Jr. vs. CA, G.R. Nos. 76828-32, 28 January 1991; Bacalso vs. Ramolete, 21 SCRA 519 [1967]) and cannot be conferred by the consent of the parties or by their failure to object to the lack of it (Lee vs. Presiding Judge, G.R. 60789, Nov. 10, 1986; Santos III vs. Northwest Orient Airlines, G.R. 101538, June 22, 1992); venue may be conferred by the act or agreement of the parties (Sec. 3, Rule 4, Rules of Court).

(4) Jurisdiction creates a relation between the court and the subject matter; venue creates a relation between the parties to the action (Dacoycoy vs. IAC, supra; Consolidated Bank and Trust Corp. vs. IAC, supra).Distinguished from procedure.Procedure, as distinguished from jurisdiction, is the means by which the power or authority of a court to hear and decide a class of cases is put to action (Garcia vs. De Jesus, supra, p. 788; Manila Railroad Co. vs. Attorney-General, 20 Phil. 523). Rules of procedure are remedial in nature and not substantive. They cover only rules on pleading and practice (Garcia vs. De Jesus, Ibid.).Jurisdiction, how acquired.Jurisdiction over the following which are necessary for the exercise of jurisdiction are acquired as follows:

(1) Over the plaintiff or petitioner. -- Jurisdiction over the person of the plaintiff or petitioner is acquired by the filing of the complaint or other appropriate pleading before the

court (Davao Light & Power Co., Inc. vs. CA., 204 SCRA 343, 348 [1991] citing Feria, Civil Procedure, 1969 ed., p. 19 in turn citing Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, King Mau Wu vs. Sycip, 94 Phil. 784 and 21 CJS 122 and other cases).

(2) Over the defendant or respondent. -- Jurisdiction over the person of the defendant or respondent is obtained by the service of summons or other coercive process upon him or by his voluntary appearance or submission to the authority of the court (Ibid. citing Feria, op cit. p. 20 in turn citing 21 CJS 123; Pennoyer vs. Neff, 95 U.S. 714 and other cases; see also Sec. 4, Rule 47, Rules of Court; Paramount InSurance Corp. vs. Luna, G.R. 61404, Mar. 16, 1987).(3) Over the subject matter of the claim. -- Jurisdiction over the subject matter of the claim is conferred by law (La Naval Drug Corp vs. CA, G.R. 103200, Aug. 31, 1994). By the filing of the complaint or other initiatory pleading, the jurisdiction of the court thereof is invoked or called into activity, and it is this that the court acquires jurisdiction over said subject matter or nature of the action (Davao Light & Power, Co. Inc. vs. CA, supra, pp. 347-348).(4) Over the issues of the case. -- Jurisdiction over the issues of the case is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at times, by their implied consent, as the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Section 5, Rule 10 of the Rules of Court (I Regalado, (1988 ed.), p. 7).

(5) Over the res (or the property or thing which is the subject of the litigation). -- This is acquired by the actual or constructive seizure by the court of the thing in question, thus putting it in custodia legis, as in attachment or garnishment, or by provision of law which recognizes in

the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suits involving civil status or real property in the Philippines of a non-resident defendant (I Regalado, p. 7; see Sec. 15, Rule 14, Sec. 9 (c), Rule 39; Sec. 1, Rule 57, Rules of Court).

Jurisdiction, how determined.It is axiomatic that what determines the nature of the action and the jurisdiction of the court are the allegations of the complaint and the character of the relief sought (Allgemeine-Bau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., G.R. 159296, Feb. 10, 2006; Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA 485, 500 [2000]; Notre Dame de Lourdes Hospital vs. Mallare-Phillipps, 197 SCRA 187, 190 [1991]; Ching vs. Malaya, 153 SCRA 412 [1987]; Varona vs. CA, G.R. 124148, May 20, 2004). To resolve the issue of jurisdiction, the court must interpret and apply the law on jurisdiction vis-a-vis the averments of the complaint. The defenses asserted in the answer or motion to dismiss are not to be considered in resolving the issue of jurisdiction, otherwise the question of jurisdiction could depend entirely upon the defendant (BPI Credit Corp. vs. CA, G.R. 96755, Dec. 4, 1991; Magay vs. Estiandan, 69 SCRA 456, 458 [1976]; Serrano vs. Muoz (Hi) Motors, Inc., 27 SCRA 1085 [1969]; Abrin vs. Campos, 203 SCRA 420, 423 [1991]).

In Montaner vs. Sharia District Court, G.R. 174975, Jan. 20, 2009, where the complaint, which was treated as a petition for the issuance of letters of administration, settlement, and distribution of the estate of the decedent, alleged that the decedent was a Muslim while defendant alleged in his answer with motion to dismiss that the decedent is not a Muslim, the Supreme Court held that the Sharia District Court has jurisdiction over the case.

Effect of lack of jurisdiction.It is a fundamental procedural doctrine that the jurisdiction of a court may be challenged at anytime at any stage of the action (Rulona Al-Awadhi vs. Astih, supra; Tijam vs. Sibonghanoy, 23 SCRA 29, 35-36 [1968]; Crisostomo vs. CA, 32 SCRA 54 [1970]; Zulueta vs. Pan American World Airways, Inc., 49 SCRA 1, 6 [11973]; Nueva Vizcaya Chamber of Commerce vs. CA, 97 SCRA 856 [1980]; Martinez vs. De la Merced, 174 SCRA 182, 189 [1989]; Tajonera vs. Lamoroza, 110 SCRA 438 [1981]; Nieta vs. Manila Banking Corp., 124 SCRA 455 [1983]). When the court proceeded in the action without jurisdiction, all the proceedings thereon are futile and invalid exercise (Rulona Al-Awadhi vs. Astih, supra).Jurisdiction by estoppel.The doctrine of estoppel enunciates that "after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (People vs. Munar, 53 SCRA 278, 282 [1973] citing Esperat vs. Avila, 20 SCRA 596 [1967]).

While the jurisdiction of a tribunal may be challenged at any time, sound public policy bars the litigants from so doing after having procured that jurisdiction themselves, speculating on the fortunes of litigation (People vs. Munar, Ibid. citing Calderon vs. Public Service Commission, 38 SCRA 624, 633 [1971] in turn citing Tijam vs. Sibonghanoy, 33 SCRA 29 [1968]; Crisostomo vs. Reyes, 32 SCRA 54 [1970]). A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Filipinas Shell Petroleum Corp. vs. Dumlao, G.R. 44888, Feb. 7, 1992; Tijam vs. Sibonghanoy, 23 SCRA 29 citing Dean vs.

Dean, 136 Or. 694, 86, A.L.R. 79; Royales vs. IAC, 127 SCRA 470, 474 [1984]). A party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing such lack of jurisdiction (Martinez vs. De la Merced, 174 SCRA 182, 189 [1989]; Tajonera vs. Lamoroza, 110 SCRA 438 [1981]; Nieta vs. Manila Banking Corp., 124 SCRA 455 [1983]; Garcia vs. CA, 202 SCRA 228, 240 [1991]; Echaus vs. Blanco, 179 SCRA 704, 705 [1989]).

Thus, where the adverse party failed at several stages of the proceedings to raise lack of jurisdiction based on said fact and it was only after an adverse decision was rendered by the Court of Appeals that the party finally woke up to raise the question of jurisdiction, such conduct would cause injustice if the proceedings had were to be set aside (Vera vs. People, 31 SCRA 711 [1970]).

Error of jurisdiction and error of judgment, distinguished.A line must be drawn between errors of judgment and errors of jurisdiction. An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an order or judgment void or voidable. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal (Cochingyan, Jr. vs. Cloribel, 76 SCRA 361, 386 [1977] citing Fernando vs. Vasquez, 31 SCRA 288 [1970]).

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A c t i o n

Action, defined.An action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right or the prosecution or redress of a

wrong (De Guzman, Jr. vs. CA, G.R. 92029-30, Dec. 20, 1990).

Classification of actions.Actions are classified as follows:

A. According to cause or foundation:(1) Personal action, one which is brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for the commission of an injury to the person or property (Dial Corp. vs. Judge Soriano, G.R. 82330, May 31, 1988). Example: Action for damages.

(2) Real action, one which is affecting title to real property or for the recovery of its possession, or for partition or condemnation of, or foreclosure of mortgage on real property (Hernandez vs. Rural Bank of Lucena, 81 SCRA 84 [1978]) or one founded on privity of real estate only (Paper Industries Corp. vs. Samson, L-30l73, Nov. 28, l975). Example: Accion interdictal (or ejectment)(3) Mixed action, one brought for protection or recovery of real property and also for an award for damages sustained (I Regalado, p. 21). Example: Accion publiciana (recovery of possession of real property) with damages.

B. According to the place where instituted:(1) Transitory action, one in which the facts in issue between the parties have no necessary connection with a particular locality (Manila Railroad Co. vs. Attorney-General, 20 Phil. 553). It is one which may be brought in the place of residence of the plaintiff or any of the plaintiffs, or the place of residence of the defendant or any of the defendants. Example: Breach of contract.

(2) Local action, one which has to be instituted in a particular place independently of the places of residence of the parties (Moran, Comments on the Rules of Court, Vol.

1, (1981 ed.), p. 123 citing CJS 946-949). Example: Accion publiciana (or recovery of possession of real property).C. According to its object:(1) Action in rem, one directed against the thing or property or status of a person and seek judgment with respect thereto as against the whole world (Ching vs. CA, G.R. 5973l, Jan. 11, l989).

An action in rem requires publication of the notice of the petition to bring in the whole world as party to the case and to vest the court with jurisdiction to hear and decide it (Calalang vs. Register of Deeds, G.R. 76265; De Leon vs. CA, G.R. 83280, Mar. 11, 1994).

(2) Action in personam, one brought against a specific person on the basis of his personal liability (Dial Corp. vs. Judge Soriano, supra). An action in personam requires personal service of summons within the forum to acquire jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court (Consolidated Plywood Ind., Inc. vs. Breva, 166 SCRA 589, 594 [1988] citing Pantaleon vs. Asuncion, 105 Phil. 765).

(3) Action quasi in rem, one intended to exclude a non-resident defendant from any right or interest in property located in the Philippines (I Moran, p. 123 citing Perkins vs. Dizon, 69 Phil 186).

A real action should not be confused with an action in rem. An action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing (Ching vs. CA, supra).D. According to its purpose:

(1) Civil action, one which is brought for protection or enforcement of a private right violated (see Sec. 3(a), Rule 1, Rules of Court). A civil action may either be ordinary or special.

(2) Criminal action, one brought by the State to prosecute a person for an act or omission punishable by law (Sec. 3(b), Ibid.).What determines nature of action?The nature of the action filed in court is determined by the facts alleged in the complaint as constituting the cause of action and the character of the relief sought. The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not even an indispensable part of the complaint (I Moran 126; Republic vs. Estenzo, G.R. 35512, Feb, 29, 1988; Sumulong vs. CA, 232 SCRA 372 [1994]). Moreover, the purpose of an action or suit and the law to govern it, including the period of prescription, is not to be determined by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and the prayer thereof (Vda. de Vega vs. CA, 199 SCRA 168, 176 [1991]; Rone vs. Claro, 91 Phil. 250).

Cause of action, defined.A cause of action is an act or omission of one party in violation of the legal right or rights of the other (Sec. 2, Rule 3, Rules of Court; Rebolido vs. CA, G.R. 81123, Feb. 28, 1989). It is the fact or combination of facts which affords a party a right to judicial interference in his behalf (De Guzman vs CA, G.R. 92029, Dec. 20, 1990).

Elements of cause of action.The essential elements of a cause of action are: (1) the legal right of the plaintiff; (2) the correlative obligation of the defendant to respect that right; and (3) an act or omission of

the defendant in violation of said legal right (DBP vs. Pundogar, 218 SCRA 118, 143 [1993]; Tantuico, Jr. vs. Republic, 204 SCRA 428 [1991]; Far East Marble (Phils.), Inc. vs. CA, 225 SCRA 249 [1993]; Madrona vs. Rosal, G.R. 39120, Nov. 21, 1991; Virata vs. Sandiganbayan, G.R. 86926; Mapa vs. Sandiganbayan, G.R. 86949, Oct. l5, l99l; Rebolido vs. CA, supra; De Guzman vs. CA, supra; Casenas vs. Rosales, l9 SCRA 462 [1967]; Remitere vs. Vda de Yulo, l6 SCRA 25l [1966]).

Right of action, defined.A right of action is the remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him (I Regalado, p. 19).

Right of action, distinguished from cause of action.The term 'right of action' is the right to commence and maintain an action. In the law on pleadings, right of action is distinguished from cause of action in that the former is a remedial right belonging to some persons to presently enforce a cause of action, while the latter is a formal statement of the operative facts that give rise to such remedial right. The former is a matter of right and depends on substantive law, while the latter is a matter of statement and is governed by the law of procedure (De Guzman vs. CA, supra; Phil-Am Gen. Ins. Co., Inc. Sweet Lines, 212 SCRA 194 [1992]).

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V e n u e

Venue, defined.Venue has been defined as the place of trial or geographical location on which an action or proceeding should be

brought and not to the jurisdiction of the court (Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, 558). It is the territorial limits within which judicial power is exercised over an action or special proceedings.

Venue of real actions.Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4, Rules of Court).

Venue of personal actions.All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff (Sec. 2, Ibid).Choice of venue.The choice of venue for personal actions is given to the plaintiff but not to the plaintiff's caprice because the matter is regulated by the Rules of Court (Clavecilla Radio System vs. Antillon, 19 SCRA 379 [1967]; Sulo ng Bayan vs. Gregorio Araneta, Inc., 72 SCRA 348 [1976]). The choice should be that place of residence of a principal party, not a mere nominal party.

Venue of actions against non-residents.If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found (Sec. 3, Rule 4, Rules of Court).

When Rule not applicable.The Rules on venue shall not apply (a) in those cases where a specific rule or law provides otherwise; or (b) where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4, Ibid). (Back to top)

PART B

THE SHARI'A COURTS

Origin of the Shari'a Courtsin the Philippines.The establishment of the Shari'a courts in the Philippines has been originally conceived in the 1976 Tripoli Agreement entered into by and between the Philippine Government and the Moro National Liberation Front under the auspices of the Organization of Islamic Conference. It has been agreed, among other things, that "(I)n the areas of autonomy, the Muslims shall have the right to set up their own Courts which implement the Islamic shari'ah laws x x x" (par. 3, 3rd Agreement, Tripoli Agreement).

The Tripoli Agreement was not implemented. Nevertheless, then President Marcos, in the exercise of legislative power, promulgated in l977 PD 1083 otherwise known as the "Code of Muslim Personal Laws" which provided, inter alia, for the creation of courts of limited jurisdiction known as the Shari'a District Courts and the Shari'a Circuit Courts under the administrative supervision of the Supreme Court of the Philippines.

The 1987 Constitution mandated the creation of an autonomous region in Muslim Mindanao and called for the enactment of an organic act for the autonomous region which shall "provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws". (Sec. l5 & l6, Art. X).

Pursuant to this constitutional mandate, Repubic Act No. 6734 otherwise known as the "Organic Act for the Autonomous Region in Muslim Mindanao (ARMM)" was enacted into law. Under this Act, the Shari'a District Courts and Shari'a Circuit Courts created under PD 1083 are

mandated to continue to function as provided therein (Sec. 13, Art. IX, RA 6734). In addition, a Shari'a Appellate Court with limited jurisdiction was created by the Act. (Sec. 2, Ibid.).On February 7, 2001, the Congress of the Philippines passed Republic Act No. 9054 expanding the Organic Act of the ARMM, and purportedly increasing the jurisdiction of the Shari'a courts. The Act lapsed into law on March 31, 2001 without the signature of President Gloria Macapagal-Arroyo in accordance with Article VI, Section 27(1) of the Constitution.

Basic jurisdiction of the Shari'a Courts.The guiding principles and policies of RA 9054 provide:

"The Shari'ah courts shall have jurisdiction over cases involving personal, family and property relations, and commercial transactions, in addition to their jurisdiction over criminal cases involving Muslims.

"The Regional Assembly (of the ARMM) shall, in consultation with the Supreme Court, determine the number and specify the details of the jurisdiction of these courts." (Sec. 5, Art. III, RA 9054)

Priority in jurisdiction of regular courts.Except in cases of successional rights to property, the regular courts shall acquire jurisdiction over controversies involving real property located outside the area of autonomy. Muslims who sue other Muslims or members of indigenous cultural communities who sue other members of cultural communities over matters covered respectively by Shari'ah or by tribal laws may agree to litigate their grievances before the proper Shari'ah or tribal court in the autonomous region. The procedure for this recourse to the

Shari'ah or tribal court shall be prescribed by the Supreme Court (Sec. 22, Art. VIII, Ibid.).Nature of the Shari'a Courts.Strictly speaking, Shari'a District Courts do not form part of the integrated judicial system of the Philippines. Section 2 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) enumerates the courts covered by the Act, comprising the integrated judicial system. Shari'a Courts are not included in the enumeration notwithstanding that, when said B.P. Blg. 129 took effect on August 14, 1981, P.D. No. 1083 (otherwise known as "Code of Muslim Personal Laws of the Philippines") was already in force. The Shari'a Courts are mentioned in Section 45 of the Act only for the purpose of including them "in the funding appropriations" (Bar Matter No. 702, In the Matter of the Petition to Authorize Shari'a District Judges to Appoint Shari'a Lawyers as Notaries Public, En Banc, 12 May 1994). The fact that judges thereof are required by law to possess the same qualifications as those of Regional Trial Courts does not signify that the Shari'a Court is a regular court like the Regional Trial Court. The latter is a court of general jurisdiction, i.e., competent to decide all cases, civil and criminal, within its jurisdiction. A Shari'a District Court, created pursuant to Article 137 of Presidential Decree No. 1083, is a court of limited jurisdiction, exercising original jurisdiction only over cases specifically enumerated in Article 143 thereof. In other words, a Shari'a District Court is not a regular court exercising general jurisdiction within the meaning of Section 232 of the Notarial Law (Ibid.).(Back to top)

Shari'a Appellate Court

Creation.

Section 7, Article VIII of RA 9054 created the Shari'a Appellate Court which shall exercise jurisdiction over cases enumerated in Section 9 of the same Article.

Composition.The Shari'a Appellate Court shall be composed of one (1) Presiding Justice and two (2) Associate Justices. Any vacancy shall be filled within ninety (90) days from the occurence thereof (Sec. 8, Art. VIII, RA 9054).Official Seat.The official seat of the Shari'ah Appellate Court shall, unless the Supreme Court decides otherwise, be in the province or city where the seat of the Regional Government is located (Sec. 1, Ibid.).Qualification of Members.The Justices of the Shari'a Appellate Court shall possess the same qualifications as those of the Justices of the Court of Appeals and, in addition, shall also be learned in Islamic law and jurisprudence (Sec. 11, Ibid.).Under the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), the Presiding Justices and Associate Justices of the Court of Appeals have the same qualifications as those provided in the Constitution for Justices of the Supreme Court (Section 7, B.P. 129). Section 7, Article VIII of the 1987 Constitution provides that:

"No person shall be appointed member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A member of the Supreme Court must be at least forty years of age, and must have for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines.

"A Member of the Judiciary must be a person of proven competence, integrity, probity and independence."

In sum, the qualifications of a Shari'a Appellate Justice are:

(1) He must be a natural-born citizen of the Philippines;

(2) He must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines;

(3) He must be at least forty years of age;

(4) He must be learned in Islamic law and jurisprudence; and

(5) He must be a person of proven competence, integrity, probity and independence.

Appointment.The Members of the Shari'a Appellate Court shall be appointed by the President from a list of at least three (3) nominees prepared by the Judicial and Bar Council. The nominees shall be chosen from a list of recommendees submitted by the Regional Assembly of the Autonomous Region in Muslim Mindanao. Such appointments need no confirmation (Sec. 11, Art. VIII, RA 9054).

Tenure.The Presiding and Associate Justices of the Shari'a Appellate Court shall serve until they reach the age of seventy (70) years, unless sooner removed for cause in the same manner as Justice of the Court of Appeals or become incapacitated to discharge the duties of their office (Sec. 12, Ibid.).Compensation.The Presiding Justice and Associate Justices of the Shari'a Appellate Court shall receive the same compensation and

enjoy the same privileges as the Presiding Justice and Associate Justices of the Court of Appeals, respectively (Sec. 13, Ibid.).Rules of proceedings.Proceedings in the Shari'a Appellate Court and in the Shari'a lower courts in the Autonomous Region shall be governed by such special rules as the Supreme Court may promulgate (Sec. 17, Ibid.).Jurisdiction.The Shari'ah Appellate Court shall have the following powers:

(1) Exercise original jurisdiction over petitions for certiorari, prohibition, mandamus, habeas corpus, and other auxiliary writs and processes only in aid of its appellate jurisdiction; and

(2) Exercise exclusive appellate jurisdiction over all cases tried in the Shari'a District Courts as established by law (Sec. 9, Ibid.).In the case of Macawiag vs. Balindong, G.R. 159210, Sept. 20, 2006, the Supreme Court said:

While the Supreme Court En Banc authorized the creation of the Sharia Appellate Court, it has not yet been organized. Consequently, aggrieved parties can come up only to the Supreme Court in view of the rule set forth in Article 145 of Presidential Decree No. 1083, viz:Article 145. Finality of decisions. The decisions of the Sharia District Courts whether on appeal from the Sharia 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.

The original and appellate jurisdiction of the Supreme Court as provided in the Constitution is not altered. Specifically, this refers to the original jurisdiction of the Supreme Court over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. It likewise refers to the power of the Supreme Court to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in which the jurisdiction of any lower court is in issue and all cases in which only an error or question of law is involved .

In fine, the decisions of the Sharia District Courts may reach the Supreme Court by way of special civil action under Rule 65 of the Rules of Court if there is a question of jurisdiction, or petition for review on certiorari as a mode of appeal under Rule 45 (Macawiag vs. Balindong, Ibid.).However, in the case of Tomawis vs. Balindong, G.R. No. 182434, Mar. 5, 2010, the Supreme Court acknowledged the non-organization of the Sharia Appellate Court and declared that until such time that the Sharia Appellate Court shall have been organized, appeals or petitions from final orders or decisions of the Sharia District Court filed with the Court of Appeals (CA) shall be referred to a Special Division to be organized in any of the CA stations preferably composed of Muslim CA justices. But for cases where only errors or questions of law are raised or involved, the appeal shall be to the Supreme Court by a petition for review on certiorari under Rule 45 of the Rules of Court.

Nature of decisions.The decisions of the Shari'ah Appellate Court shall be final and executory. Nothing herein contained shall, however,

affect the original and appellate jurisdiction of the Supreme Court, as provided in the Constitution (Sec. 10, Ibid.).(Back to top)

Shari'a District Courts

Creation.Article 137 of PD 1083 provides for the creation of the Shari'a District Courts and Shari'a Circuit Courts as follows:

"There are hereby created, as part of the judicial system, courts of limited jurisdiction, to be known respectively as Shari'a District Courts and Shari'a Circuit Courts, which shall exercise powers and functions in accordance with this Title."

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 comprises the Province of Sulu;

(b) The Second Shari'a District, the Province of Tawi-Tawi;

(c) The Third Shari'a District, the Provinces 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. (Art. 138, PD 1083).

Qualifications of judges.

Article 140 of PD 1083 provides that:

"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."

Section 15 of the Judiciary Reorganization Act of 1980 provides that:

"No person shall be appointed Regional Trial Judge unless he is a natural-born citizen of the Philippines, at least thirty-five years of age, and for at least ten years, has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite."

In a nutshell, a judge of the Shari'a District Court must be: (1) a natural-born citizen of the Philippines; (2) at least thirty-five years of age; (3) for at least ten years, has been engaged in the practice of law in the Philippines or has held a public office requiring admission to the practice of law as an indispensable requisite; (4) learned in Islamic law and jurisprudence; and (5) of proven competence, integrity, probity and independence.

Appointment.Judges of the Shari'a District Courts shall be appointed by the President of the Philippines from a list of at least three (3) nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation by the Commission on Appointments (Sec. 9, Art. VIII, Const.). Unlike those of the Shari'a Appellate Court, the nominees need not be recommended by the Regional Assembly of the Autonomous Government.

Like the other lower courts, the President shall issue the appointments within ninety days from the submission of the list (Ibid.).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 (now RTC) (Art. 141, PD 1083).

The retirement age of judges, however, including judges of Shari'a courts has been raised to seventy years by the New Constitution (Sec. 11, Art. VIII, Const.).

Compensation.Shari'a District judges shall receive the same compensation and enjoy the same privileges as the judges of Courts of First Instance (now Regional Trial Courts) (Art. 142, PD 1083).

Rules of proceedings.According to Article 148 of the Code of Muslim Personal Laws, the Shari'a District Courts shall be governed by such special rules of procedure as the Supreme Court may promulgate.

Pursuant to this and the provision of Article 158 of the same Code, the Supreme Court promulgated on September 20, 1983 the Special Rules of Procedure Governing the Shari'a Courts (Ijra-at al-Mahakim al-Shari-ah) which also applies to the Shari'a Circuit Courts.

Jurisdiction.The Shari'a District Courts have three (3) classes of jurisdiction, i.e., exclusive original, concurrent original, and appellate jurisdiction.

Exclusive original jurisdiction. -- The Shari'a District Court shall have exclusive original jurisdiction over:

(a) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws (PD 1083);

(b) All cases involving disposition, distribution and settlement of 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 the 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 (Art. 143, PD 1083). In aid of its appellate jurisdiction is meant only in those cases where the parties have a right to appeal to that court (J.M. Tuazon & Co., Inc. vs. de la Cruz, 9 SCRA 189 [1963]).

In Montaner vs. Sharia District Court, G.R. 174975, Jan. 20, 2009, where the action which was designated as a complaint for judicial partition of properties contains sufficient jurisdictional facts required for the settlement of the estate of a deceased Muslim, the Supreme Court treated it as a petition for the issuance of letters of administration, settlement, and distribution of the estate of the decedent.

Concurrent original jurisdiction. -- 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) of Article 143 of the Code wherein the parties involved are Muslims except those of forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Trial Courts, Municipal Trial Courts, or Metropolitan Trial Courts; and

(c) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims (Ibid.).In the recent case of Tomawis vs. Balindong, G.R. No. 182434, Mar. 5, 2010, petitioner contended that Art. 143 of PD 1083, insofar as it granted the Sharia District Court concurrent jurisdiction over certain real actions, was repealed by Sec. 19(2), in relation to Sec. 33(3) of BP 129, as amendedby vesting original exclusive jurisdiction to the RTCs and MTCs, as the case may be, over civil actions that involve the title to, or possession of, real property. The Supreme Court held:

A reading of the pertinent provisions of BP 129 and PD 1083 shows that the former, a law of general application to civil courts, has no application to, and does not repeal, the provisions found in PD 1083, a special law, which only refers to Sharia Courts.

Appellate jurisdiction. -- The Shari'a District Courts shall have appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. They shall decide every case appealed to them on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit (Art. 144, Ibid.).

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Shari'a Circuit Courts

Creation.The Shari'a Circuit Courts are established by Article 137 of the Code of Muslim Personal Laws. They are established as follows:

(a) Six 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, 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 Provinces of Maguindanao, North Cotabato, and Sultan Kudarat and the City of Cotabato (Art. 150, Ibid.).The territorial jurisdiction of each of the Shari'a Circuit Court shall be fixed by the Supreme Court on the basis of geographical contiguity of the municipalities and cities concerned and their Muslim population (Ibid.).Qualification of judges.Article 152 of PD 1083 provides that:

"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.

Section 18 of Article IX of RA 9054 provides:

"The Shari'a District Courts and the Shari'a Circuit Courts created under existing laws shall continue to function as provided therein. The judges of the Shari'a courts shall have the same qualifications as the judges of the Regional Trial Courts, the Metropolitan Trial Courts or the Municipal Circuit Trial Courts as the case may be. In addition, they must be learned in Islamic law and jurisprudence."

and Section 26 of the Judiciary Reorganization Act prescribes the qualifications of judges of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts as follows:

"No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of age, and for at least five years, has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite."

Being of later legislation, RA 9054 has impliedly modified the Code of Muslim Personal Laws. Consequently, the qualifications of a judge of the Shari'a Circuit Court may be summed up as follows: (1) he must be a natural-born citizen of the Philippines; (2) at least 30 years of age; (3) for at least five years, has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite; (4) has passed an examination in the Shari'a and Islamic jurisprudence given by the Supreme Court; and (5) must be of proven competence, integrity, probity and independence.

Appointment and tenure.

Judges of the Shari'a Circuit Courts shall be appointed in the same manner as, and shall serve for a term as those of, judges of the Shari'a District Courts (Arts. 152 and 153, PD 1083).

Compensation.Shari'a Circuit judges shall receive the same compensation and enjoy the same privileges as judges of the Municipal Circuit Courts (now Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court) (Art. 154, Ibid.).Rules of proceedings.The Shari'a Circuit Courts shall be governed by such special rules of procedure as the Supreme Court may promulgate (Art. 158, Ibid.).The Special Rules of Procedure Governing the Shari'a Courts promulgated by the Supreme Court apply in the Shari'a Circuit Courts.

Jurisdiction.The Shari'a Circuit Courts shall have exclusive original jurisdiction over:

(1) All cases involving offenses defined and punished under the Code of Muslim Personal Laws;

The offenses cognizable by the court are quite few, namely:

(1) Illegal solemnization of marriage (Art. l8l, PD l083);

(2) Marriage before expiration of 'idda (Art.l82, Ibid.);(3) Offenses relative to subsequent marriage, divorce, and revocation of divorce (Art. l83, Ibid.);

(4) Failure to report for registration (Art. l84, Ibid);(5) Neglect of duty by registrars (Art. l85, Ibid.).

(2) All civil actions and proceedings between parties who are Muslims or have been married in accordance with Article 13 of the Code involving disputes relating to: (a) marriage; (b) divorce recognized under the 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 (Art. 155, Ibid.). In a case, it was held that the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws (Tamano vs. Ortiz, G.R. 126603, June 29, 1998).

Qualifications of a Judge (Qadi)under Islamic Law.According to some fuqaha (scholars of fiqh), there are as many as about thirty conditions of eligibility for the office of qadi, whereas some fuqaha have reduced them to three. The requisite qualifications of a qadi are not specified in a single Qur'anic verse or hadith but are derived from inferences and deductions from such sources (Azad, Ghulam, Judicial System of Islam, (Pakistan), 1987, p. 9).The conditions for the office of the qadi may be summed up into the following:

(1) The qadi must be eligible for performing general religious duties (kamal al-ahkam) such that he must be adult, sane and free;

(2) He must not be suffering from any physical deficiency (kamal al-khilqah), that is, the appointee should be of sound organs of speech, hearing and sight;

(3) He must possess probity (adalah), hence a fasiq (profligate) is not competent for the office of qadi; and(4) He must be fully conversant with the Qur'an, the Sunna, Ijma, the different opinions of jurists, qiyas (juristic analogy) and the Arabic language. (Azad, Ibid., pp. 10-11 citing Ibn Qudamah. For a detailed discussion of the subject see Azad, Ibid., pp. 9-26). He who possesses this knowledge is considered learned in Islamic law and jurisprudence.

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-oOo-

COMMENTS ON THE SPECIAL RULES OF PROCEDURE GOVERNING THE SHARI'A COURTS

Pursuant to the Constitution of the Philippines and Article 148 and 158 of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, and to achieve an expeditious and inexpensive determination of the cases referred to herein, the Court resolved to promulgate the following Rules of Procedure on the Shari'a Courts:

Rule-making power of the Supreme Court. The 1987 Constitution of the Philippines provides, among other things, that the Supreme Court shall have the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court (Sec. 5, Art. VIII, Const.).

Limitations of the rule-making power.The rules that the Supreme Court may promulgate pursuant to such constitutional provision are subject to the following constitutional limitations: (1) that said rules must concern the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged; (2) that said rules

must be uniform for all courts of the same grade; and (3) that they must not diminish, increase, or modify substantive rights.

It is worthy to note that a fourth limitation appearing in both the 1935 and 1973 Constitutions, i.e., the power of the legislature to repeal, alter, or supplement the rules promulgated by the Supreme Court, has been deleted in the new Constitution.

Statutory basis of the special rules.Articles 148 and 158 of the Code of Muslim Personal Laws provides that the Shari'a district courts and Shari'a circuit courts "shall be governed by such special rules of procedure as the Supreme Court may promulgate."

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PART I

GENERAL PROCEDURES

Section 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.

COMMENTS:

Concept of civil action.A civil action is one by which one party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3(a), Rule 1, Rules of Court). It is distinguished from a special proceeding which refers to a remedy by which a party seeks to establish a status, a right, or a particular fact (Sec. 3 (c), Ibid.).Parties to an action.The parties to a civil action are the plaintiff and the defendant. The term "plaintiff" may refer to the claiming party, the counterclaimant, the cross-claimant, or the third (fourth, etc.) -party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) -party defendant (Sec. 1, Rule 3, Rules of Court).

In the Shari'a courts, the parties to an action are the mudda'i and the mudda'alai which the Special Rules translates to plaintiff and defendant, respectively. In Islamic procedural law, the terms "plaintiff" and "defendant" by which mudda'i and mudda'alai have been translated are misleading because the real mudda'i is not necessarily the party who first brings the action before the court (Alauya, Saaduddin, Islamic Procedure and Evidence, Mindanao Law Journal, Vol. 1, No. 1 (1986), pp. 39-40).

The mudda'i or plaintiff, is a person, who if he should voluntarily relinquish his claim, cannot be compelled to prosecute it; and the mudda'alai or defendant, is a person who, if he should wish to avoid the litigation is compelled to sustain it (Ibid, citing Hedaya).Parties in interest.Unless otherwise authorized by law or the Rules of Court, an action must be prosecuted and defended in the name of the real party in interest (Sec. 2, Rule 3, Rules of Court). A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit (Ibid.; Rebollido vs. CA, G.R. 81123, Feb. 28, 1989; Tanpingco vs. IAC, G.R. 76225, March 31, 1992). "Interest" within the meaning of the rule means material interest, an interest in issue to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest (Rebollido vs. CA, Ibid.).Classification of parties.Parties in interest are classified and defined as follows:

a. Indispensable parties -- are those without whom no final determination can be had of an action (Sec. 7, Rule 3, Rules of Court; Bacar vs. Del Rosario, G.R. 51208, March 29, 1989).

b. Necessary parties -- also known as "proper parties" are those who are not indispensable but who ought to be joined as parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (Sec. 8, Ibid.; see also Quiombing vs. CA, G.R. 93010, Aug. 30, 1990).

c. Representative parties -- are those acting in a fiduciary capacity, or allowed to sue or be sued in behalf of other persons such as the trustee of an express trust, a guardian,

executor, or administrator, or a party authorized by statute (Sec. 3, Rule 3, Rules of Court).

d. Pro forma parties -- are those required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule (I Regalado, (1997 ed.), p. 78 citing Sec. 4, Rule 3, Rules of Court).

e. Quasi parties -- are those who are already represented in the suit, or who comes within the compass of the proceedings pendente lite (Menzi and Co. vs. Bastida, 63 Phil 30) or those in whose behalf a class or representative suit is brought (Sec. 12, Rule 3, Rules of Court).

Who may be parties?Only natural or juridical persons or entities authorized by law may be parties to a civil action (Sec. 1, Ibid.). It is believed, however, that juridical persons may not be parties to an ordinary civil action before the Shari'a courts because their jurisdiction is limited to Muslims in the Philippines. A juridical person created under the laws of the Philippines cannot be classified as a Muslim within the context of PD 1083 even if the members thereof are all Muslims.

The wife as a party.The wife may, independently of the husband, sue or be sued in the following cases: (a) when the litigation is between husband and wife; (b) if the suit concerns her exclusive property; (c) if the litigation is incidental to her profession, occupation or business; (d) if the litigation concerns the exclusive property of the husband, the administration of which has been transferred to her; or (e) such other appropriate cases as may be allowed by the general principles of Islamic law and other laws (Art. 44, PD 1083).

Minors and incompetents

as parties.A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem (Sec. 5, Rule 3, Rules of Court).

Class suit.When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest (Sec. 12, Ibid.).Unknown defendant.Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly (Sec. 14, Ibid.) in order to reflect his true name or identity.

Indigent party.A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family (Sec. 21, Rule 3, Rules of Court).

Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be

a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides (Ibid.).Association as party defendants.When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec. 15, Ibid.).This rule applies when the plaintiff has no means of ascertaining the names and addresses of the individuals composing the entity without juridical personality. If the plaintiff knows the names and addresses of such persons, he may sue them in their individual names.

Unwilling co-plaintiff.If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason thereof shall be stated in the complaint (Sec. 10, Rule 3, Rules of Court).

Permissive joinder of parties.All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in the Rules of Court, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest (Sec. 6, Ibid.).

Compulsory joinder ofindispensable parties.Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants (Sec. 7, Ibid.). In other words, indispensable parties must perforce be joined as parties; otherwise the court cannot proceed with the action.

Non-joinder of necessary parties.Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, Ibid.). Effect of misjoinder andnon-joinder of parties.Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately (Sec. 11, Ibid.). Alternative defendants.Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right to relief

against the other (Sec. 13, Ibid.). Thus, it has been held that three corporations may be joined alternatively as defendants in an action for wrongfully occupying plaintiff's waterfront of the property, where plaintiff is uncertain which defendant corporation owned the vessels kept in the premises (I Moran p. 209 citing Zenith Bathini Pavillion vs. Fair Oaks S.S. Corp, 211 App. Div. 492, 207, N.Y.S. 306).

Copies of the complaint.The rules require that the complaint be prepared in at least three (3) copies. The original is intended for the records of the court, the second copy for the defendant, and the third for the file of the plaintiff. Where there is more than one defendant, the complaint should be prepared in as many copies as there are defendants plus two (2) copies.

Commencement of an action.A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court (Sec. 5, Rule 1, Rules of Court). It is the delivery of the complaint to an officer of the court authorized to receive it which constitutes filing of the complaint. Where the complaint is filed by registered mail, it is the actual date of mailing that is considered as the date of filing. However, where the docket fee is subsequently paid, the date of such payment or the mailing of said amount thereof shall be considered as the date of filing of the complaint (Ago Timber Corp. vs. Ruiz, L-23887, Dec. 26, l987).

In Sun InSurance office, Ltd. vs. Asuncion, 170 SCRA 274, 279 (1989), the Supreme Court laid down the following rules, to wit:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period;2. The same rule applies to permissive counter-claims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period;

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee (Cf. Manchester Dev't Corp. vs. CA, 149 SCRA 562 [1987]).

In Montaner vs. Sharia District Court, G.R. 174975, Jan. 20, 2009, the Supreme Court clarified that:

x x x If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment

lies with the same clerk of court. In such a case, the lower court concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts insufficient assessment of the docket fees. As every citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law, the party filing the case cannot be penalized with the clerk of courts insufficient assessment. However, the party concerned will be required to pay the deficiency.

Complaint, by whom prepared.The complaint shall be prepared by the plaintiff (mudda'i) or his counsel (wakil) or by the clerk of court (Sec. 1, Special Rules). When the plaintiff is represented by an attorney of record, the complaint shall be signed by such attorney in his individual name, whose address shall be stated. Otherwise, the plaintiff shall sign his complaint even if the same has been prepared for him by the clerk of court. The latter can not sign the complaint because if he does so, he will then be acting as counsel (wakil) which the law prohibits.

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Section 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, and the name and address of the defendant (mudda'alai); and 3. A concise statement of the cause of action and the relief prayed for.

COMMENTS:

Complaint, defined. The complaint is a pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint (Sec. 3, Rule 6, Rules of Court). It is a kind of pleading which contains a written statement of the claims of the plaintiff submitted to the court for trial and judgment (see Sec. 1, Ibid.).Requisites of Complaintunder Islamic Law.A complaint should contain all particulars and full description of the subject of the suit along with the cause of action and relief prayed for (Azad, op. cit., p. 76).A Muslim jurist laid down five conditions of a complaint namely: (1) The thing sued for be known; (2) If the defendant acknowledges the truthfulness of the plaint, a relief may be granted; (3) The plaint should not be vexatious; (4) The plaint must be brought with certainty of cause of action; and (5) The plaint should be such sort that good reason does not deny its truthfulness (Ibn Farhun, i-126-130 cited in Azad, Ibid., p. 77).Ultimate facts and evidentiary facts, distinguished.The term "ultimate facts" are the important and substantial facts which either directly form the basis of the plaintiff's primary right and duty or directly make up the wrongful acts or omissions of the defendant (Alzua vs. Johnson, 21 Phil 309; E. Ganzon, Inc. vs. CA, G.R. 93696, June 17, 1992 [minute res.]). It means the essential facts constituting the plaintiff's cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient (I Moran p. 258).

On the other hand, evidentiary facts are those which go to prove the case. They may be essential at the trial, but not in

the pleading of a cause of action (Ibid. citing Corp. de PP. Augustinos Recoletos vs. Crisostomo, 32 Phil 427; Alzua vs. Johnson, 21 Phil 308).

Cause of action, defined.A cause of action is the act or omission by which a party violates a right of another (Sec. 2, Rule 2, Rules of Court). Its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and an act or omission of the defendant in violation of said legal rights (I Moran p. 125 citing Ma-ao Sugar Central Corp vs. Barrios, 79 Phil 666 and other cases. Mapa vs. Sandiganbayan, G.R. 86949, Oct. 15, 1991; Rebolido vs. CA, supra).Non-splitting of a single cause of action.A party may not institute more than one suit for a single cause of action (Sec. 3, Rule 2, Rules of Court). If two or more suits are brought for different parts of a single cause of action, the filing of the first may be pleaded in abatement of the other or others, in accordance with section 1(e) of Rule 16 of the Rules of Court, and a judgment upon the merits in any one is available as a bar in the others (Sec. 4, Ibid.). Considering that a motion to dismiss is disallowed under the Special Rules, the splitting of a single cause of action may be raised in the answer as an affirmative defense.

Thus, if A obtained a loan from B secured by a mortgage on the former's building, the non-payment by A of the loan constitutes single cause of action, and B cannot split it up into two separate complaints, one for the payment of the loan and another for the foreclosure of the mortgage. If B does so, the filing of the first complaint for payment of the loan will bar the subsequent complaint for foreclosure (Bachrach Motor Corp. vs. Icarangal, 68 Phil. 287).

Joinder of causes of action.In the regular courts, the rule is that a party may, in one pleading assert, in the alternative or otherwise, as many cause of action as he may have against an opposing party subject to the following conditions:

(a) The party joining the causes of action shall comply with the rules on joinder of parties;

(b) The joinder shall not include special civil actions or actions governed by special rules;

(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Sec. 5, Rule 2, Rules of Court).

The foregoing rules may, to a certain extent, be applied in the Shari'a courts. For this purpose, the term Regional Trial Court should be understood as the Shari'a District Court.

Thus, if W, a divorced woman, has claims for support before the expiration of the prescribed 'idda and unpaid customary dower (mahr) against her divorced husband, she may, in one complaint, plead both claims for support and unpaid dower against the husband. But if the causes of action are for support and custody over a minor child, the action should be filed with the Shari'a District Court which has jurisdiction over an action for custody arising under the Muslim Code (Art. 143(a), PD l083).

Parts of a complaint.

The parts of a complaint filed in the Shari'a courts, are laid down under Rule 7 of the Rules of Court. Accordingly, it must contain a caption, body, signature and address, verification, and certification.

A. Caption. -- The caption sets forth the name of the court, the title of the action, and the docket number if assigned (Sec. 1, Rule 7, Rules of Court). The date of filing as required by Section 2 of the Special Rules of Procedure is shown by the date as appearing in the complaint when received by the court officer authorized to receive it for filing.

The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. The respective participation of the parties in the case shall be indicated (Sec. 1, Ibid.).B. The body. -- The body of the complaint or pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading (Sec. 2, Ibid.).

(1) Paragraphs. The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings.

(2) Headings. When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action", of the second by "second cause of action", and so on for the others (Sec. 2, Ibid.).

(3) Relief. The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable (Ibid.).(4) Date. Every pleading shall be dated (Ibid.)

C. Signature and address.-- Every pleading including a complaint must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box (Sec. 3, Ibid.).The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay (Ibid.).An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplimary action (Ibid.).D. Verification. -- A pleading is verified by an affidavit that the affiants has read the pleading and that the allegations therein are true and correct of his personal kno