FATWA IN THE PHILIPPINES: A RETROSPECTIVE ANALYSIS OF ITS ISSUES AND CHALLENGES

Abstract

The aimed of the study is to identify the issues and challenges of fatwa in the Philippines through retrospective review of the 13 Shari’ah landmark cases that reached the Supreme Court of the Philippines from year 1988 to 2016. The research design was retrospective analysis of Islamic law applications utilizing the data on these litigations which were obtained from the ChanRoblesTM Virtual Law Library databases. Three main topics emanating from such Shari’ah Court decided cases which include Custody and Guardianship Proceeding (n=1; 8%); Nullity of Marriage and Divorce Proceeding (n=7; 54%); and Settlement of Estate Proceeding (n=5; 38%). Most of the petitioners and respondents were male (n=7; 54%). The religion of these petitioners is 54% Islam, 23% Roman Catholic and 23% Islam by Conversion. On the other hand, respondents were 92% Muslim and 8% Muslim by Convert. It has been observed in the aforecited Shari’ah Court Proceedings that before judgment were rendered, the Shari’ah Court did not seek the opinion (fatwa) of the Jurisconsult despite the emergence of indicative difficult questions of Muslim Law and Jurisprudence. The special rules of procedure governing the Shari’ah Court, however, manifest that such legal opinion of the Jurisconsult is not binding upon the court as it is merely advisory or persuasive in force. Neither it is incumbent upon the court to seek such opinion of the Jurisconsult. The significance of fatwa, on the other hand, is observed in its relevance to court decision making function. Only it has not been fully explored due to factors that are inherently embedded in the Islamic Legal System of the Philippines. Fatwa that is part of the court decision making process has never been seriously taken. The condition upon which may be sought has likewise been limited. Therefore, the fatwa in the Philippines lacks consideration by the court.