Barangay Agama Arbitration and Conciliation Council (BAACC) - Resource Kit

Barangay Agama Arbitration and Conciliation Council (BAACC)

Resource Kit

By:

Atty. Haidit A. Astarani I. Julio Cesar L. Benitez

Hanie A. Bud

In consultation with

Simunul Barangay Justice Advocates Sitangkai Association for Islamic Development, Inc.

Majlis-Tawi-tawi

The printing of this resource material was undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA). LGSPA was implemented by Agriteam Canada. www.agriteam.ca.

Foreword

In the name of Allah, the Most Beneficent, the Most Merciful.

All praises be to Allah, the Lord of the universes. May peace and blessings be upon the Prophet Muhammad (PBUH) and his family, companions and those who follow him until the Day of Resurrection.

In line with the Philippine Government policy to promote peace and order, community conflict resolution through Shari’ah approach is a Divine mandate to the Muslims. For every Muslim community, it is very necessary to establish peace making council to be merged into the Barangay Justice System. To enhance its capacity in peace building, training on conflict resolution mechanism plays high significance.

This Resource Kit has been written as useful reference for the Barangay Agama Arbitration and Conciliation Council (BAACC) Peace Advisors in conflict resolution in their respective locality. It aims to provide the BAACC Peace Advisors with material information that would help them learn and understand how to resolve conflict according to Shari’ah approach. It further calls for peace advisors to settle the case amicably so as to prevent aggravation of conflict and reduce the negative impact of bringing the dispute to a regular court.

This is a living document that will cater the needs of the ARMM populace for self-determination, preservation of cultural identity and freedom of religion as enshrined in the Constitution. We are fully aware of the felt-need of introducing Shari’ah as mode of conflict resolution among Muslims and, therefore, with the establishment of the BAACC, it will serve as basic guidance and means of attaining peace and order in the Muslim community which has undergone challenges facing the justice system issue.

We would like to thank the Local Government Support Program in ARMM (LGSPA) for providing strategic and financial support for this handbook.

May Allah bestow upon us the ultimate peace!

Aleem Abdulwahid A. Inju Mufti, Tawi-Tawi

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Introduction Islam is a religion of peace. It is a universal religion followed by more than one million Muslims all over the world. Islam is a derived from the Arabic word “SALAM” which means peace. The literal meaning of Islam is the submission to the will of God (Allah). It is through Islam, one can ultimately achieve peace in this world and in the Hereafter. Islamic teachings and principles are mainly based on Shari’ah which is the Divine Law revealed by Allah through the Prophets to the humankind as a code of life and guidance to the right path. The Shari’ah applies to all human conduct and beliefs. The objective of Shari’ah is to protect people from harm and mischief and to promote peace and development in the community. To maintain universal peace, mutual understanding, love, kindness, justice and reconciliation are preferred and encouraged by the teaching of Islam. Keeping the above-said perspective in reality, the community based conflict resolution mechanism needs the legal institutionalization of council of Muslim elders known as Barangay Agama Arbitration and Conciliation Council as part of the mainstream barangay justice system. Agama is an Indo-Malay term which means religion. The word “Agama” has been adopted commonly as part of local dialects by Muslim Moros like Tausug, Yakan, Sama, Maranao and Maguindanaoan referring to religion of Islam. Thus, Barangay Agama Arbitration and Conciliation Council (BAACC) is a special council of Muslims elders duly instituted by the barangay government under justice system designed to settle conflict among Muslims at barangay level through Shari’ah approach consistent with Philippine state policies and principles. BAACC has been provided with a manual known as the Handbook on the Community Conflict Resolution and Transformation through Shari’ah Approach. It contains concepts of Shari’ah and its objectives, BAACC legal mandates, organization and functions, basic procedure in conflict resolution and some community offenses resolvable within Shari’ah context. The contexts of the handbook are mainly based on basic sources of Shari’ah which are the Holy Qur’an and the Sunnah of the Prophet Muhammad (pbuh) according to the views of Ahlus Sunnah wal Jama’ah (Muslims following the tradition of the Prophet Muhammad and consensus opinion of Muslim Scholars). Only consensus (Ijma) and majority (Jumhur) of the Muslim jurist (Fuqaha) are utilized to enhance and clarify the texts of the Qur’an and the Sunnah with a view to avoid controversial discussion and to unify the gap of understanding. This Handbook has been properly reviewed by a group of Ulama’ under the Chairmanship of Mufti of Tawi-tawi, Aleem Abdulwahid A. Inju and some members of the Supreme Council for Islamic Preaching and Guidance, Inc. in Bongao, Tawi-tawi. On balance this handbook is worthwhile, which brings harmonious approach of Shari’ah and the Constitution in the community-based conflict resolution for Muslims of barangay justice system.

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Table of Contents

CHAPTER I: .......................................................................... 6 ADOPTING SHARI’AHIN COMMUNITY CONFLICT TRANSFORMATION............................................... 6

A. Concept of Shari’ah ................................................................................................ 6 B. Objectives of Shari’ah: ........................................................................................... 7 C. The Basic Sources of Shari’ah................................................................................ 9 D. Rules of Shari’ah (Ahkamus Shar-iyyah) ............................................................... 9 E. The Importance of Shari’ah in the Life of the Muslims ....................................... 11 F. Shari’ah in Conflict Resolution & Transformation .............................................. 13 G. Practices of Shari’ah in the Philippines ................................................................ 15 H. Limitations on the application of Shari’ah by the BAACC.................................. 16 I. Divine Warnings Against Unjust Judgment ......................................................... 17

CHAPTER II: DERIVATIONS OF BAACC LEGAL MANDATES........................ 18

A. The 1987 Constitution........................................................................................... 18 B. 1991 Local Government Code .............................................................................. 19 C. IPRA ..................................................................................................................... 20 D. Court Annexed Mediation..................................................................................... 20 E. Philippine Laws on Shari’ah................................................................................. 21

CHAPTER III: THE BAACC ORGANIZATIONS AND FUNCTIONS.................. 22

A. Nature:................................................................................................................... 22 B. Functions............................................................................................................... 22 C. Composition.......................................................................................................... 23 D. Organizational Structure ....................................................................................... 23 E. Duties and Responsibilities................................................................................... 24 F. Qualifications........................................................................................................ 24 G. Support Staff ......................................................................................................... 25 H. Disqualifications and Termination from Office.................................................... 25

CHAPTER IV: BAACC Basic Procedure in Conflict Resolution.............................. 26

A. Initiating Conflict Resolution ............................................................................... 26 B. Case Assignment................................................................................................... 27 C. Case Verification and Report of the Verified Case .............................................. 27 D. Case Settlement..................................................................................................... 28 E. Case Closure ......................................................................................................... 32

CHAPTER V: SHARI’AH IN RESOLVING COMMUNITY OFFENSES ............. 34

A. FITNA................................................................................................................... 35 B. THEFT .................................................................................................................. 39 C. ROBBERY............................................................................................................ 41 D. Land Conflict ........................................................................................................ 43 E. CONFLICT IN THE UTILIZATION OF COMMUNITY RESOURCES .......... 45 F. PHYSICAL INJURIES......................................................................................... 47

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G. LOSS OF LIFE ..................................................................................................... 50 H. GENDER ISSUES AND WOMEN CONCERNS ............................................... 54 I. ELOPEMENT....................................................................................................... 56 J. MARRIAGE ......................................................................................................... 58 K. DIVORCE............................................................................................................. 62 L. ELECTION-RELATED CONFLICT................................................................... 64

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CHAPTER I

ADOPTING SHARI’AH IN COMMUNITY CONFLICT TRANSFORMATION

Nu’man Ibni Bashir (RA) narrates that Prophet Muhammad (PBUH) said:

“The Example of the person abiding by Allah’s orders and restrictions

and the one who is not, is like those who drew lots for their position in a ship. Some of them settled in the upper part and others in the lower. When those who were in the lower part needed water, they had to pass by those (with water) who were on the upper part. So they said: Let us make a hole in our part of the ship and save troubling those who are above us. So, if the people in the upper part let them do what they intended, they would all perish. And if they stopped them with their hands, they would be saved and all would be saved. (Bukhari)

This chapter serves as an introductory part which focuses on the general overview of Shari’ah; particularly it provides information on the concept of Shari’ah, the importance of Shari’ah in the daily life of the Muslims, Shari’ah in conflict resolution & transformation, Practices of Shari’ah in the Philippines and the Limitations on the application of Shari’ah.

A. Concept of Shari’ah

What is Shari’ah?

Shari’ah literally means the road to a watering place, a clear path to be followed.

Shari’ah means the commands given by Allah to His servants, which had been brought by any of the prophets. It covers both matters of human conduct and belief.

The Qur’an says:

نا منكم جعل أنزل الله وال تتبع أهواءهم عما جاءك من الحق لكل عليه فاحكم بينهم بماواحدة ولـكن ليبلوآم في ما آتاآم فاستبقوا شرعة ومنهاجا ولو شاء الله لجعلكم أمة

تختلفون إلى اهللا مرجعكم جميعا فينبئكم بما آنتم فيه الخيرات

“To each among you have We prescribed a law and an open way. If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He hath given you: so strive as in a race in all virtues. The

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goal of you all is to Allah. it is He that will show you the truth of the matters in which ye dispute; “(Qur’an, 5:48)

What is Fiqh?

Fiqh is the science of the rules of the Shari’a relating to man’s act and derived from specific sources. It also means an independent exercise of the intelligence, the decision of legal points by one’s own judgment

Differences Between Shari’ah and Fiqh

1) Shari’ah is a body of laws prescribed by Allah to His servants, while fiqh is the knowledge of the rules of the Divine Law;

2) Sharia’h is broader in scope, while Fiqh is narrow in scope and deals only with legal acts;

3) Shari’ah is a textual law, whereas Fiqh is a derivative law; 4) Shari’ah is fixed and unchangeable, while Fiqh changes according to the

circumstances to which it is applied; and 5) There is always agreement in Shari’ah since it comes from Allah Alone, whereas

there is sometimes disagreement in Fiqh since it is derived by the jurists.

B. Objectives of Shari’ah:

Shari’ah was prescribed by Allah to the people for the following purposes:

1) Protection of Faith Allah the Most High says:

الغي ال إآراه في الدين قد تبين الرشد من“There is no compulsion in religion. Verily, the Right Path has

become distinct from the wrong path.” (Qur’an, 2:256)

2) Protection of Life Allah the Most High says:

.حرم الله إال بالحق نفس التيوال تقتلوا ال

“And kill not anyone whom Allah has forbidden except for a just

cause.” (Qur’an, 6:151)

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3) Protection of the Sanctity of Family

Allah the Most High says:

بالمعروف محصنات غير مسافحات وال متخذات أجورهنفانكحوهن بإذن أهلهن وآتوهن .أخدان

“Wed them (women) with the permission of their own folk (guardian) and

give them their Mahr according to what is reasonable; they should be chaste, not adulterous, nor taking boy-friends.” (Qur’an, 4:25)

ويحفظوا فروجهم ذلك أزآى لهم إن الله خبير قل للمؤمنين يغضوا من أبصارهم

.يصنعون بما “Tell the believing men to lower their gaze (from looking at forbidden

things), and protect their private parts (from illegal sexual acts, etc). That is purer for them. Verily, Allah is All-Aware of what they do.” (Qur’an, 24:30)

ينتهن إلا ما ويحفظن فروجهن ولا يبدين ز وقل للمؤمنات يغضضن من أبصارهن ظهر منها

“And tell the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts, etc).And not to show off their adornment except only that which is apparent (like palms of hands or one eye or both eyes for necessity to see the way, or outer dress).” (Qur’an, 24:31)

4) Protection of Property and Community; and Allah the Most High says:

م بالباطل إال أن تكون تجارة عن تراض منكمبينك يا أيها الذين آمنوا ال تأآلوا أموالكم

“And eat up not one another’s property unjustly except it be a trade

amongst you by mutual consent.” (Qur’an, 2:188)

.وال تفسدوا في األرض بعد إصالحها“And do not do mischief on the earth after it has been set in order.” (Qur’an, 4:29).

5) Protection of Human Sense Allah the Most High says:

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المحسنين إلى التهلكة وأحسنوا إن الله يحب وال تلقوا بأيديكم

“And do not throw yourselves into destruction and do good. Truly, Allah loves the good-doers. (Qur’an, 2:195) Prophet Muhammad (PBUH) says: “Do not harm yourself or others.” (Reported by Ahmad and Ibnu Majah)

C. The Basic Sources of Shari’ah

1) The Qur’an

Qur’an is derived from the Arabic word Qaraa, which means to read, recite or discourse. It is a Holy Book (kitab) containing the infallible Words of Allah revealed to His Messenger, Muhammad (PBUH) in Arabic through Angel Jibriel (AS).

2) The Sunnah

Sunnah literally means customary practice. It refers to the word, deed,

conduct, tacit approval and disapproval of Prophet Muhammad (PBUH) on the practice of his companions.

The Qur’an says:

فيظافما أرسلناك عليهم ح من يطع الرسول فقد أطاع الله ومن تولى

“He who obeys the Messenger (Muhammad, PBUH) has indeed obeyed

Allah, but he who turns away, then we have not sent you (O Muhammad, PBUH) as a watcher over them.” (Qur’an, 4:80)

.الله شديد العقاب وا واتقوا الله إنالرسول فخذوه وما نهاآم عنه فانته وما آتاآم

“And whatsoever the Messenger (Muhammad, PBUH) gives you, take it,

and whatsoever the Messenger (Muhammad, PBUH) he forbids you, abstain (from it), and fear Allah. Verily, Allah is Severe in punishment.” (Qur’an, 59:7)

D. Rules of Shari’ah (Ahkamus Shar-iyyah) Hukm in its simple meaning is judgment, decision, resolution or rule. Therefore, Hukm Shar,i (the Rule of Shari’ah) is the Word of Allah relating to the acts of person who are subjects of Islamic law. It has two basic categories: 1) Taklifi, and 2) Wad-‘i. 1) Taklifi (Prescriptive) – The Divine Law which defines rights and definite obligations. It has five (5) kinds as follows:

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a. Wajib/Fard (Obligatory) – is an act whose performer is rewarded for its

performance and its neglecter is punished for its omission. Examples:

to have faith, to observe the five daily prayers, to pay Zakat, to fast during Ramadhan, and others

b. Mandub/Sunnah (Recommended) - is an act for the performance of which a man is praised and rewarded, and for the negligence of which he is neither blamed nor punished. Examples:

Tarawi prayer, Almsgiving and other charities, Voluntary social and community service, and others

c. Haram (Forbidden) - is an act whose performer is punished for its performance and its neglecter is rewarded for its omission. Examples:

Intentional killing, Intentional physical abuse of men, women and children, Adultery, Theft, Fitna, Bribery, Consuming Haram foods like pigs, liquor and animals slaughtered un-

Islamically, Entering the other’s house without saying, Assalamu Alaykum, and others.

d. Makruh (Disapproved) – is an act whose neglecter is praised and whose performer is not blamed nor punished. Examples:

Talking while performing ablution (it diverts the concentration towards

the remembrance of Allah, Eating the meat of donkey and horse (both are useful in the economic life

of the people), Eating while standing,

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Urinating while standing, and others

e. Mubah/Ja-iz (Permissible) – is an act about which the Lawgiver has given an option between performing and omitting without any demand or forcible prevention. Examples:

Using beautiful garments, Paying the sickness visit to a Jew or a Christian, Holding competition of archery and race of horses, donkeys, camels and

pedestrians provided no betting is involved, And others.

2) Declaratory (Wad-‘i) – The Words of Allah which declares a thing to be the

cause or condition of a rule or an impediment to it. In Conduct of Prayer

Example of condition: The condition for valid prayer is purity.

Example of impediment: Impurity invalidates prayer. Example of cause: The cause of physical impurity is urination and others.

E. The Importance of Shari’ah in the Life of the Muslims

Shariàh, conceptually, refers to a set of rules, regulations, teachings, and values governing the lives of Muslims. These rules and regulations cover every aspect of life. Shariàh embraces worship, morals and conduct, as well as it embraces the political, social and economic, as well as other spheres.

The Qur’an says:

ليعبدون وما خلقت الجن والإنس إلا

“Verily, Allah has not created Jinns and mankind except to worship Him Alone”

(Qur’an, 51:56). Without the guidance of Allah no one will meet this purpose. Therefore Allah sent

messengers and prophets with teachings, values, rules and regulations to guide mankind to His way, the right way.

The first step in the fulfillment of the servitude mission is the complete submission to Allah. The second step is following the guidance of Allah, which is the Shariàh. In other words, accepting Islam as a religion and the adherence to the Shariàh

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as the guidance is the main purpose of life.

Thus, the importance of the Shariàh is its central role in guiding Man to the right way, whereby the mission of creation can be fulfilled. The Shariàh, therefore, is a path - set by Allah for those who accept Him - to follow in order to attain success both in the worldly life and in the hereafter.

Thus, to live in Islam is to live according to the Shariàh, and ignoring the Shariàh or even any part of it deliberately is ignoring Islam itself. Muslims have to adhere to the Shariàh and observe its teachings throughout their lives. Relevant Qur’anic Verses Regarding the Significance of Shari’ah to the Life of the Muslims:

1) Shari’ah as a Guidance, Blessings and Mercy

Allah the Most High Says:

للمتقين ذلك الكتاب ال ريب فيه هدى

“That is the Book (the Qur’an), whereof there is no doubt, a guidance to those who are Al-Muttaqun (the pious and righteous persons who fear Allah much)” (Qur’an, 2:2)

يؤمنون لهم الذي اختلفوا فيه وهدى ورحمة لقوم وما أنزلنا عليك الكتاب إال لتبين

“And We have not sent down the Book (the Qur’an) to you O Muhammad

(PBUH), except that you may explain clearly unto them those things in which they differ, and (as) a guidance and mercy for a folk who believe.” (Qur’an, 16:64)

يحآجوآم تى أحد مثل ما أوتيتم أوالهدى هدى الله أن يؤ وال تؤمنوا إال لمن تبع دينكم قل إن يشاء والله واسع عليم عند ربكم قل إن الفضل بيد الله يؤتيه من

“And believe no one except the one who follows your religion. Say [O

Muhammad (PBUH)]: ‘Verily, right guidance is the Guidance of Allah” and do not believe that any one can receive (of Revelation) except when he follows your religion, otherwise they would engage you in argument before your Lord. Say [O Muhammad (PBUH)]: ‘All the bounties is in the Hand of Allah; He grants to whom He wills. And Allah is All-Sufficient for His Creatures’ needs, the All-knower.”(Qur’an, 3:73)

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2) Shari’ah Promotes Peace and Order and Community Development Allah the Most High Says:

أشياءهم وال تفسدوا ربكم فأوفوا الكيل والميزان وال تبخسوا الناس قد جاءتكم بينة من لكم إن آنتم مؤمنين في األرض بعد إصالحها ذلكم خير

“Verily, a clear proof (signs) from your Lord has come unto you; so give full

measure and full weight and wrong not men in their things, and do not do mischief on the earth after it has been set in order, that will be better for you, if you are believers.” (Qur’an, 7:85) 2) Shari’ah Provides Solutions to Different Problems Allah the Most High Says:

للمؤمنين وال يزيد الظالمين إال خسارا وننزل من القرآن ما هو شفاء ورحمة

“And We send down of the Qur’an that which is a healing and a mercy to

those who believe, and it increases the wrongdoers nothing but loss.” (Qur’an, 17:82)

وأطيعوا الرسول وأولي األمر منكم فإن تنازعتم في يا أيها الذين آمنوا أطيعوا الله

.وأحسن تأويالواليوم اآلخر ذلك خير شيء فردوه إلى الله والرسول إن آنتم تؤمنون بالله

“O you who believe! Obey Allah and obey Messenger (Muhammad, PBUH) and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger (Muhammad, PBUH), if you believe in Allah and in the Last Day. That is better and more suitable for final determination.)” (Qur’an, 4:59).

F. Shari’ah in Conflict Resolution & Transformation 1) Settling Conflicts (إصالح ذات البين)

It is incumbent (wajib) upon the disputants to settle their differences in a brotherly fashion as well as the Muslim community also has a responsibility in conflict resolution.

As the Muslim society is based upon mutual caring and cooperation, it cannot stand possibly by watching its members disputing and quarreling, permitting the conflict to grow larger.

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It is the responsibility of those who command respect and authority in the community to come forward in order to set things right, with absolute impartiality and without allowing themselves to become emotionally involved with one side or the other.


)الحجرات (أخويكم واتقوا الله لعلكم ترحمون إنما المؤمنون إخوة فأصلحوا بين

“The believers are nothing else than brothers. So make RECONCILIATION between your brothers and fear Allah, that you may receive mercy.” (49:10)

a) The Merit of Mediation and the Danger of Conflict and Hostility. The Prophet (PBUH) said:

.بلى يا رسول اهللا: واأال أدلكم على أفضل من درجة الصالة و الصيام والصدقة؟ قال): ص(فال النبي . الأقول إنها تحلق الشعر و لكن تحلق الدين: إ صالح ذات البين فإن فساد ذات البين هي الحالقة: قال

} رواه الترمذي{

“Shall I not inform you of something more excellent in degree than prayer, fasting and charity? They said: “Certainly O Messenger of Allah! He said: "It is putting things right between people, for to incite people to dispute is like a razor. And I don’t mean that it shaves off the hair but it shears the religion.” (reported by Al-Tirmidhi and others).

من أصلح بين الناس أصلح اهللا أمره و أعطاه بكل : ((قال) ص(النبي من ) ر(عن أنس بن مالك

}أخرجه اإلصبها نى{. )) آلمة تكلمها عتق رقبة ورجع مغفورا له ما تقدم من ذنبه

On the authority of Anas ibn Malik (RA), Prophet Muhammad (PBUH) said:

“Whoever reconciles between conflicting people, Allah will set his affair aright, and give him a reward of emancipating a slave for every word he uttered and he returns home while his previous sins will be forgiven of him.” (narrated by Al-Isbahaniy)

b) Virtues of Conflict Resolution Allah the Most High says:

ابتغاء مرضات الله بصدقة أو معروف أو إصالح بين الناس ومن يفعل ذلك ال خير في آثير من نجواهم إال من أمر )114:النساء ( فسوف نؤتيه أجرا عظيما

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“There is no good in most of their secret talks save (in) him who orders sadaqah or Ma’ruf (all the good and righteous deeds) or CONCILIATION between mankind, and he does this, seeking the good pleasure of Allah, We shall give him s great reward.” (Qur’an, 4:114)

2) Conflict Transformation

Conflict Transformation rests on two premises that conflict changes everything (selves, feelings, relationships, ideas, etc.) and seeks to know and identify patterns produced by conflict. It asks why conflict happens, why it appears unavoidable in daily life, and what structures in ourselves, families and the prevailing society makes conflict inevitable. It includes both resolution and management.

However, it is focused not only on resolving issues but also in seeking changes in four levels where conflict happens: personal, relational (you and others), structural (family, schools, organization, etc.) and cultural (beliefs, traditions, technology, etc.)

It rests in the assumption that conflict cannot be entirely eradicated until existing policies, conditions, traditions and practices which are exploitative, oppressive and repressive are not in place.

Allah the Most High said:

يغيروا ما بأنفسهم إن الله ال يغير ما بقوم حتى

“Verily, Allah will not change the condition of a people until they first

change what is within themselves.” (Qur’an, 13:11)

G. Practices of Shari’ah in the Philippines

Formal practice of Shari’ah in the Philippines is still at its infant stage. There are two manifestations of this: 1) The P.D No. 1083, & 2) Customay Laws

1) The CMPL (PD 1083)

P.D No. 1083 (Code of Muslim Personal Laws in the Philippines) only applies to civil aspect of Muslim personal relations such as marriage, divorce, revocation of divorce, family relations, succession and inheritance, and property relations between spouses. 2) Issues on the Filipino Muslims’ Customary Laws

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Filipino Muslims have different cultural distinctions manifested in their various local dialects, social norms and behaviors. They belong to different tribes with geographical demarcation such as Maranao of Lanao del Sur, Maguindanaon of Maguindanao and Cotabato, Yakan of Basilan, Tausog of Sulu, and Sama of Tawi-Tawi. Each tribe has its own unique customs and traditions following a certain customary law different from the other. While some of these customary laws are Islamic, many have no relevant basis from the Qur’an and Sunnah.

H. Limitations on the Application of Shari’ah by the BAACC

As it is in its inception and exploratory stage, the application of the Shari’ah by the BAACC should strictly be governed by the two types of limitations: 1) Prescriptive Limitations provided by the Qur’an and Sunnah, and 2) Structural Limitations under Philippines Laws and Governance. Two Inherent Limitations of BAACC:

a. Prescriptive Limitations provided by the Qur’an and Sunnah i. Insane persons ii. Minors/Children (below the age of puberty) iii. Non-Muslims

b. Structural Limitations in the Philippines

i. BAACC operates within the structure of Katarungang Pambarangay and is

therefore subject to the limitation set forth by the Local Government Code of the Philippines;

ii. BAACC is only constituted with authority to mediate, settle and conciliate Muslim parties who are in controversy over a certain matter that may be the subject of mutual reconciliation according to Shari’ah without resort to judicial process;

iii. BAACC only exercises their functions within the Barangay or cluster of Barangays where it is constituted;

iv. BAACC cannot pass judgment on criminal and civil cases that are within the exclusive jurisdiction of the regular courts and Shari’ah courts;

v. BAACC cannot impose punishments which are within the judicial power of the court;

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I. Divine Warnings Against Unjust Judgment

Finally, members of the BAACC, the peace advisers, should take full heed of warnings against judges or those who are in charge with authority to pass judgments or decisions:


فأولـئك هم الكافرون ومن لم يحكم بما أنزل الله

“And whoever does not judge by what Allah has revealed, such are Kafirun (disbelievers)” (Qur’an, 5:44).

الظالمون ومن لم يحكم بما أنزل الله فأولـئك هم

“And whoever does not judge by what Allah has revealed, such are

Zalimun (wrongdoers)” (Qur’an, 5:45).

الفاسقون ومن لم يحكم بما أنزل الله فأولـئك هم

“And whoever does not judge by what Allah has revealed, such are

Fasiqun (Rebellious)” (Qur’an, 5:47).

CHAPTER II

DERIVATIONS OF BAACC LEGAL MANDATES Conflict resolution through amicable settlement and customary laws in resolving disputes are recognized and encouraged under the Philippine Constitution and Laws. Hence, the formation and operations of the BAACC is simply an effort to mainstream and institutionalize the Filipino Muslim’s religious practice of conflict resolution and transformation. Five legal documents may serve to strengthen the formation, mainstreaming in the Katarungang Pambarangay and operations of the BAACC. These are:

1. 1987 Constitution 2. Local Government Code 3. RA 9054 creating the ARMM 4. IPRA (RA 8371) 5. Rules of Court, Court Annexed Mediation

A. The 1987 Constitution There are two relevant provisions in the 1987 Philippine Constitution that supports the formation and operationalization of BAACC. These are:

Article ___Section 22 (State Policies). The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Section 20 (Creation of ARMM). Within its territorial jurisdiction

and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

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B. 1991 Local Government Code The 1991 Local Government Code of the Philippines enacted details for the establishment and operationalization of barangay-based justice system that recognizes customary laws and traditions. The relevant provisions are as follows:

Section 16: General Welfare Clause The General Welfare Clause of the LGC recognizes:

1. preservation and enrichment of culture; 2. promotion of health and safety; 3. enhancement of the right of the people to a balanced ecology; 4. encouragement of, and support to, the development of appropriate

and self-reliant technological capabilities; 5. improvement of public morals; 6. enhancement of economic prosperity and social justice; 7. promotion of full employment among the residents; and 8. maintenance of peace and order as well as the preservation of the

comfort and convenience of the inhabitants.

Book III, Title I, Chapter 7, Sections 399-422

This Sections details the formation and operationalization of the Katarungang Pambarangay. It provides the following:

SECTION. 399. Lupong Tagapamayapa SECTION. 400. Oath and Term of Office SECTION. 401. Vacancies. SECTION. 402. Functions of the Lupon SECTION. 403. Secretary of the Lupon SECTION. 404. Pangkat ng Tagapagkasundo SECTION. 405. Vacancies in the Pangkat SECTION. 406. Character of Office and Service of Lupon Members. SECTION. 407. Legal Advice on Matters Involving Questions of Law SECTION. 408. Subject Matter for Amicable Settlement; Exception

Thereto SECTION. 409. Venue SECTION. 410. Procedure for Amicable Settlement SECTION. 411. Form of Settlement SECTION. 412. Conciliation SECTION. 413. Arbitration SECTION. 414. Proceedings Open to the Public; Exception. SECTION. 415. Appearance of Parties in Person.

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SECTION. 416. Effect of Amicable Settlement and Arbitration Award. SECTION. 417. Execution.

SECTION. 418. Repudiation. SECTION. 419. Transmittal of Settlement and Arbitration Award to the

Court. SECTION. 420. Power to Administer Oaths. SECTION. 421. Administration; Rules and Regulations. – SECTION. 422. Appropriations.

C. IPRA Sec. 14. Support for Autonomous Regions.- The State shall continue to

strengthen and support the autonomous regions created under the Constitution as they may require or need. The State shall likewise encourage other ICCs/IPs not included or outside Muslim Mindanao and the Cordillera to use the form and content of their ways of life as may be compatible with the fundamental rights defined in the Constitution of the Republic of the Philippines and other internationally recognized human rights.

Sec. 15. Justice System, Conflict Resolution Institutions and Peace Building Processes.- The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.

D. Court Annexed Mediation

In line with Section 421 of the LGC, the DOJ promulgated on 1 June 1992 the “Katarungang Pambarangay Rules,” which will guide the implementation of the foregoing provisions of the LGC.

On 15 July 1993 the Supreme Court issued Administrative Order No. 14-93

directed at the courts and mandating compliance with the requirement of prior recourse to the KP as a pre-condition for filing a complaint in court or any government office, except in cases outside the jurisdiction of the KP.

Court-annexed mediation actually complements the Barangay Justice System (Katarungang Pambarangay), probably the most familiar mode of mediation in the country, in bringing a speedy and fair resolution to disputes. In this system, the barangay leaders act as mediators between disputing parties within their constituency. The Barangay Justice System attempts to prevent the case

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from even going to court. Court-annexed mediation begins when there is a failure to mediate in the barangay level resulting in the filing of the dispute in court. Mediation attempts to resolve the dispute without going into adversarial proceedings. Courts will actually dismiss certain cases which have not passed through the Katarungang Pambarangay.

E. Philippine Laws on Shari’ah

PD 1083 enacted the Code of Muslim Personal Laws and established the Shari’ah Courts. Book IV, Title II, Art 60 of the CMPL provided for the establishment of agama arbitration council to mediate, conciliate and arbitrate matters covering marriage and divorce between Muslim couples.

Civil Code of the Philippines recognizes customary law as articulated in Articles 11 and 12.

CHAPTER III

THE BAACC ORGANIZATION AND FUNCTIONS What is the BAACC? How is it legally formed? What and how does it function? How does it interface with the Katarungang Pambarangay? These are among the questions that this chapter answers.

A. Nature: What is the BAACC? The BAACC has the following characteristics: BAACC is a local special body duly constituted by the barangay government for

amicable settlement through Shari’ah at the barangay level. As such, it is part of the Katarungang Pambarangay system.

While its’ establishment is formalized through a Barangay Resolution, the

organization of the BAACC may be initiated by concerned members of the civil society. In like manner, while the appointment of the BAACC members is duly approved by the Barangay Captain, the selection of candidates is undertaken with the participation of community residents..

BAACC members while in the performance of their official duties or on the

occasion thereof shall be deemed as persons in authority duly designated by the barangay chairman.

BAACC members shall serve for a period of three (3) years, or within the term of

office of the Barangay Captain, subject for re-appointment by the newly elected barangay chairman.

BAACC members shall be called as the “peace advisors or counsel”.

B. Functions What are the functions of the BAACC? The BAACC shall have the following functions:

Exercise administrative supervision over mediation, conciliation, and arbitration

undertaken within the Shari’ah principles and processes;

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Meet regularly once a month to provide forum for exchange of ideas among its members and the public on matter relevant to amicable settlement of disputes through Shari’ah;

Evaluate the conduct and results of the case settled; Train future members of the BAACC through the Madrasah and other alternative

learning systems; Appeal cases, which are lodged at the judicial courts, on behalf of the community

residents involved; Initiate peace building programs that will build harmonious community

relationship; Exercise such other powers and performs such other duties and functions as may

be prescribed by law or ordinance.

C. Composition

Who comprises the BAACC? The following is the basic composition of the BAACC: 1 Chairman 4-6 Peace Advisors

How is the BAACC formed? The BAACC is formed following the mandated procedure in forming the Lupong

Tagapamayapa as provided for in the Local Government Code, which was fully adopted by the regional government of the ARMM.

However, the members of the community may initiate its’ formation in coordination with the local government. Community mebers shall participate in the selection of potential members of the BAACC, strictly following the qualification standards indicated in item “f”.

D. Organizational Structure Katarungang Pambarangay

Chairperson BAACC Lupong Tagapamayapa 4 to 6 Peace Advisors 10 to 20 Lupon

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E. Duties and Responsibilities The duties and responsibilities of the peace advisors and BAACC Chairperson are as follows: Peace Advisors: Actively participate in the settlement of disputes; Handle cases assigned to him with objectivity and compassion; Conduct one self according to Islamic values;

Chairperson

Provides leadership to the BAACC Calls and preside the monthly BAACC meeting Conducts consultation to the BAACC members Represents the BAACC in various meeting and affairs Assigns cases to mediators, conciliators and arbitrators. Designates officer-in-charge in case of absence and temporary incapacity Coordinates with the Barangay Chairman Administers yamin (oaths)

F. Qualifications Nominated individuals for membership in the BAACC should meet the following qualifications:

Peace Advisors: Must be a practicing Muslim of legal age, male or female ; Resident of the local community ; Knowledge in the basic teaching of Qur’an and Hadith; Well respected by the community; Person of high integrity and good moral character; Respects the rights and integrity of every member of the community; and Have undergone training in Shari’ah in community conflict resolution and

transformation. Acceptance to perform the duties and responsibilities of a member.

Nominated individuals for chairmanship in the BAACC should meet the following qualifications:

BAACC Chairperson: Must be a practicing Muslim of legal age, preferably male; Long time resident of the local community;

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Must be well versed in the teaching of Qur’an and Hadith, if not an ‘Aleem or Ustadz;

Highly regarded by the community; Person of impeccable integrity and good moral character; Respects the rights and integrity of every member of the community; and Have undergone training in Shari’ah in community conflict resolution and

transformation. Acceptance to perform the duties and responsibilities of a chairperson. Duly chosen as such by the majority of the BAACC members.

G. Support Staff

Secretary of the Lupon. - The Barangay secretary shall concurrently serve as the secretary of the lupon. He shall record the results of mediation proceedings before the Punong Barangay and shall submit a report thereon to the proper city or municipal courts. He shall also receive and keep the records of proceedings submitted to him by the various conciliation panels. (RA 7160 Book III, Chapter 7, SECTION. 403. Local Government Code)

H. Disqualifications and Termination from Office

Any BAACC members proven guilty of an offence punishable by law shall be disqualified from holding office as member of the BAACC

CHAPTER IV

BAACC Basic Procedure in Conflict Resolution

This basic procedure in conflict resolution applies to case settlement proceedings

conducted by Barangay Arbitration and Conciliation Council (BAACC) in the barangay or cluster barangays where it is constituted.

It has three basic modes: 1) Mediation, 2) Conciliation and 3) Arbitration. For each proceeding it has specific procedures to be observed to ensure proper and smooth operation in handling case settlements.

The basic operating procedure has five stages, as follows:

1. Initiating Conflict Resolution 2. Case Assignment 3. Case Verification 4. Case Settlement 5. Case Closure

A. Initiating Conflict Resolution a. Receiving the Complaint

A written or oral complaint involving any case against an offender filed by any

offended party or concerned constituent with the office of the barangay chairman or BAACC shall be received by the barangay secretary.

In case of oral complaint, the barangay secretary shall take note of the

complainant’s allegation of the case.

After receiving, the concerned secretary shall submit the copy of the complaint to the barangay chairman if the case filed with his office or to the BAACC Chairman if the same filed with his/her office.

b. Pro-active Action

As soon as any BAACC member will get aware of any incidence of conflict

between or among Muslims within the area of concern, he shall take initiative and necessary steps to verify the case in dispute even if the same case shall have not been instituted.

After verification, such BAACC member shall inform the BAACC Chairman of

the existence or non-existence of alleged conflict.

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c. Referral to BAACC or Coordination with Katarungan Pambarangay Chairman

After submission of the case, a barangay chairman shall refer the case to the BAACC duly constituted by him for case settlement of the matter.

If the case has been filed with the BAACC, its chairman shall coordinate and

inform the barangay chairman of the same to avoid overlapping of case settlement.

d. Case Docketing Complaint shall be in simple form stating therein the following: i) Complainant’s full name, address, age and civil status; ii) Respondent’s full name, address, age and civil status; iii) Substantial description of an offense committed; iv) Place and date of the commission of a crime; v) Complainant’s statement in a complaint must be signed by him; and vi) A complaint must be numbered.

B. Case Assignment

As soon as the case has been referred or submitted to the BAACC, the chairman of the BAACC shall notify orally or in writing all peace advisors for a session to adopt necessary steps for the verification and resolution of the case referred to them. During the session, the chairman of BAACC may designate orally or in writing one or more members to conduct verification of the case.

C. Case Verification and Report of the Verified Case

To ensure the truth of the matter, any member or members of the BAACC duly designated by BAACC chairman shall immediately conduct verification of the case complained or heard of.

There are two ways of verifying the case:

a. Any BAACC member or members duly assigned to conduct verification shall inquire the respondent whether or not he committed an alleged offense.

b. If the respondent denies the commission of an offense or violation of any right against the complainant, BAACC shall require the complainant to produce at least

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two credible male witnesses or one male and 2 female witnesses to substantiate his/her case.

BAACC member or members assigned to conduct verification shall thereafter

report the matter to the BAACC chairman. He/she shall report whether the case is acknowledged by the offender himself. Without the acknowledgement of the offender, the report should include testimonies from credible witnesses.

D. Case Settlement

When the case has been verified and it is existing, BAACC Chairman shall assign the same to one of the peace advisors to conduct mediation to both parties and negotiate them separately for amicable settlement. a. Mediation

Mediation is a process wherein the mediator assists the disputing parties to reach a settlement by consensus that jointly satisfies their needs.

BAACC shall not settle the case unless it has been properly verified by at least one of its members and acknowledged by the offender himself or substantiated by the testimonies of credible witnesses.

After submission of the report on the case and there is a proof to its fact, the

BAACC shall immediately settle the case by following the necessary steps in resolving the same.

BAACC chairman shall designate one or more BAACC members to conduct mediation in the following procedures:

1. BAACC representative shall review the relevant Qur’anic verses and

Hadith texts. 2. BAACC representative shall go to and meet the offended party so as to

hear his/her statement about the matter in dispute. 3. BAACC representative shall conduct amicable settlement or reconciliation

between the conflicting parties. 4. BAACC representative assigned to conduct amicable settlement shall first

give religious counseling to the concerned parties, emphasizing the importance of reconciliation, the merit of Islamic brotherhood, the virtues of pardon and forgiveness, love and mercy and kindness and patience.

5. If the complainant prefers amicable settlement, BAACC representative/s shall inquire into his/her specific terms and conditions of agreement which shall be noted and recorded.

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6. After taking note of the complainant’s agreement terms and conditions, BAACC representative shall thereafter go to and meet the respondent at the designated place.

7. BAACC representative shall also give religious counseling to the respondent in a friendly and compassionate manner.

8. BAACC representative/s shall convince the respondent to come into amicable settlement with the offended party.

9. If the respondent wants to accept amicable settlement, reconciliation between the two parties shall be properly arranged and the respondent’s terms and conditions of agreement shall be also put into writing.

10. Thereafter representative shall submit to BAACC a report in writing stating therein the statements of the two conflicting parties.

11. A submitted report shall be analyzed by BAACC chairman whether there is common agreement or disagreements of both parties for reconciliation or amicable settlements.

12. If both parties have mutually agreed for reconciliation or amicable settlement, face-to-face meeting shall be arranged.

13. If both parties don’t want to have amicable settlement, constant negotiation by BAACC representative/s shall be made so as to convince them for mutual reconciliation or amicable settlement.

14. In the course of negotiation, both parties shall be asked whether or not they want to have a face-to-face meeting.

15. If both parties agree for face-to-face confrontation, a conciliation process shall be adopted.

b. Conciliation

Conciliation is a process wherein the council forgoes the power to decide or recommend but assist the parties to isolate issues and options to reach a settlement by consensus that jointly satisfies their needs.

BAACC shall not conduct conciliation process in settling a case unless

there is a mutual agreement or willingness of both conflicting parties for a face-to-face confrontation.

In conducting conciliation process, the following steps shall be observed

in settling a dispute.

1. Schedule of Conciliation Proceeding.

Upon submission of reports by BAACC representative/s showing the mutual agreement of both conflicting parties for a face-to-face communication and meeting, BAACC chairman shall calendar the conciliation proceeding to be held at the barangay peace center.

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2. Notice of Conciliation Proceeding

BAACC chairman shall notify in writing both parties and their respective representatives to appear at the barangay peace center at an appointed time for conciliation proceeding. The purpose of the conciliation proceeding is to ensure reconciliation or amicable settlement of all parties involved in the case in controversy.

The following procedures shall be adopted to ensure mutual agreement and

settlement:

1. BAACC chairman shall first give religious counseling on the importance of Islamic brotherhood, virtues of forgiveness and pardons, kindness, love, mercy and piety;

2. Thereafter BAACC chairman shall ask the complainant to express his/her sentiment and to state his/her allegation and terms and conditions of agreement;

3. After the complainant having been given the opportunity to be heard and express his/her position, BAACC chairman shall then require the respondent to speak of his position and to comment on the complainant’s statements.

4. After hearing the position of both sides, BAACC chairman shall consider the mutual agreements of both parties if any and set aside their disagreement which should be taken as subject for conciliation;

5. In case there is unresolved disagreement of both parties, BAACC Chairman may adjourn the session and schedule the next conciliation proceeding at the designated time and place as agreed upon by both parties;

6. At the interval period, subsequent negotiation shall be made by BAACC representative to convince the concerned parties for amicable settlement and reconciliation;

7. BAACC chairman shall conduct only 2 separate sessions for conciliation proceeding if there is no mutual reconciliation or amicable settlement between the two parties.

8. Both parties may have reconciliation or amicable settlement of their case in any of the 2 sessions;

9. If there is reconciliation or amicable settlement of both parties at any of the 2 sessions, the same shall be put in writing duly signed by both parties and their witnesses and subscribed and sworn to by them before the chairman of the barangay where the case was filed.

10. In case there is still unresolved disagreement of both parties after having conducted 2 separate sessions for conciliation proceeding, BAACC chairman shall forthwith proceed to the arbitration process.

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c. Arbitration

Arbitration is a process wherein the third party from outside the judicial system is chosen by parties to hear and decide their dispute.

BAACC shall conduct arbitration proceeding after 2 separate sessions for

conciliation shall have been properly taken and exhausted.

In arbitration, the following steps shall be observed. 1. Notice of the Arbitration Proceeding

BAACC chairman shall issue a memorandum order notifying and

requiring both parties and their respective representatives and witnesses to appear before the BAACC at the barangay peace center at a designated time.

The purpose of the arbitration proceedings is to solicit the willingness of

both parties to come to mutual reconciliation or amicable settlement for the last time and incase of failure to the same, to apply the disciplinary measures on the offending party in the context of Shari’ah after both parties have mutually agreed to accept arbitration award of the BAACC Chairman.

2. Session of the Arbitration Proceeding

BAACC shall hold session for the arbitration proceeding if both parties shall have been notified and both shall have appeared before the BAACC.

In arbitration, the following procedures shall be observed:

1. BAACC chairman shall give religious counseling to both parties

encouraging them to come into amicable settlement and to abide by the Shari’ah.

2. During arbitration session, each party shall be required to do yamin (oath) before giving his/her statement of facts before the BAACC peace advisors.

3. BAACC chairman shall first give the complainant the opportunities and privileges to speak of his position and including his witness if there would be.

4. BAACC chairman shall then next allow the respondent to state his/her defensive standpoint and his/her witness to substantiate his/her allegation.

5. After the both parties shall have presented their statements, BAACC chairman shall consult each of the BAACC members to comment and suggest positive approaches as to the best remedy of the disputes that are favorable and acceptable to both parties.

6. Before rendering decision, BAACC chairman shall present to both parties different alternative agreements for them to choose as to which one of the

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alternative agreements that will be favorable and commonly acceptable to both parties.

7. If after presenting all the alternative agreements and both parties still have not accepted none of them, BAACC chairman shall render his own independent decision according to Shari’ah context.

8. Thereafter, BAACC chairman shall render decision according to Shari’ah context on the case presented observing the Islamic principle of equity and justice, impartiality and credibility.

9. Before rendering decision, BAACC chairman shall require both parties to manifest their acceptance and obedience to his arbitration award.

10. If both parties voluntarily accept the BAACC chairman’s decision, the same shall become binding upon them and should be put into writing in simple form duly signed by BAAC chairman, the complainant, the respondent and their respective witnesses duly subscribed and sworn to before the chairman of the barangay where the case has been filed.

11. In case one of the parties refuses to obey or accept the decision of the BAAC chairman, the same case shall be referred to the barangay chairman for certification on non-resolution of the case.

E. Case Closure a. Resolution of the Case

When both parties have come into mutual agreement for reconciliation at any stage of the case settlement proceeding either in mediation, conciliation or arbitration, the following procedure shall be observed:

1. Signing of Amicable Settlement Agreement.

Amicable settlement agreement shall be put in writing duly signed by both parties in the presence of at least two adult male Muslim witnesses or 1 adult male Muslim and 2 adult female Muslim witnesses and subscribed and sworn to before the BAACC Chairman and attested by the Barangay Chairman. The amicable settlement agreement shall contain the terms and conditions of each party that are acceptable to each other.

2. Expressing Tawbat (repentance) by the offender and a word of forgiveness by the offended party and du’a tawbat shall be subsequently invoked by the BAACC Chairman seeking the divine forgiveness of Allah to the Muslim believers especially the parties concerned.

3. Simple festivity with food preparation may be served as thanksgiving to

Allah.

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4. Both parties who have just reconciled shall be advised to have handshaking and embracing to one another. Male and female parties are not allowed to do mutual handshaking and embracing.

b. BAACC Self Evaluation

BAACC shall observe the behavior and conduct of both parties who shall have

just reconciled and assess their situation for point of conflict transformation and improvement of BAACC procedures.

c. Docket Closure

1. A case finally resolved by BAACC Chairman on the basis of mutual

agreement by both parties or their acceptance to the alternative agreement or decision presented by the former shall be recorded and docketed with number and date by the Barangay Secretary in a logbook solely devoted for cases handled by BAACC.

2. Thereafter, the Barangay Secretary shall submit and forward the report on

the resolution of the case to the office of the Barangay Chairman and the latter shall forthwith issue certification of amicable settlement mutually entered into and agreed upon by both parties.

d. Non-resolution of the Case

If the case handled by BAACC has not been resolved due to absence of amicable settlement by and between the conflicting parties, BAACC Chairman shall inform the Barangay Chairman of its non-resolution and recommend to him for issuance of certification of failure of amicable settlement between the concerned parties.

BAACC Peace Advisors shall then conduct duwa-a for the speedy and just

resolution of the case and ask forgiveness from Allah.

CHAPTER V

SHARI’AH IN RESOLVING COMMUNITY OFFENSES

This chapter presents different community offenses that can be the subject of community conflict resolution on the basis of Shari’ah. It endeavors to define the offense, guide the peace advisors on how to prove the existence of an offense and suggests manner of resolving the case according to Shari’ah.

Divine Commandments on Pardon and Reconciliation The Holy Qur’an says,

والله غفور رحيم وليعفوا وليصفحوا ألا تحبون أن يغفر الله لكم

“Let them pardon and forgive. Do you not love that Allah should forgive

you? And Allah is Oft-Forgiving, Most Merciful.” (Qur’an, 24:22)

روالصلح خي

“And making peace is better.” (Qur’an 4:128)

.الله ورسوله إن آنتم مؤمنين فاتقوا الله وأصلحوا ذات بينكم وأطيعوا

“And so fear Allah and adjust all matters of difference among you, and obey Allah and His Messenger (Muhammad) if you are believers.” (Qur’an, 8:1)

.أخويكم واتقوا الله لعلكم ترحمون إنما المؤمنون إخوة فأصلحوا بين

“The believers are nothing else than brothers (in Islamic Religion). So

make reconciliation between your brothers and fear Allah, that you may receive mercy.” (Qur’an, 49:10)

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A. FITNA What is Fitna?

Fitna is an Arabic term which literally means seduction, wrong, trial, affliction, torture. It refers to any statement uttered which actually destroys a bond of good relationship, degrades moral integrity and gives public humiliation to an innocent person. Fitna includes slander, mockery, insult, oral defamation, backbiting and evil gossip. Brief Discussion Almighty Allah says:

عسى أن يكونوا خيرا منهم ولا نساء من نساء يا أيها الذين آمنوا لا يسخر قوم من قوم د الإيمان بالألقاب بئس االسم الفسوق بع يكن خيرا منهن ولا تلمزوا أنفسكم ولا تنابزوا عسى أن

.فأولئك هم الظالمون ومن لم يتب

“O you who believe! Let not a group scoff at another group it may be that

the latter are better than the former, nor let (some) women scoff at other women, it may be that the latter are better than the former, nor defame one another, nor insult one another by nicknames. How bad it is, to insult one’s brother after having faith (i.e. to call your Muslim brother as: “O sinner,” or “O wicked,” etc.) and whoever does not repent, then such are indeed Zalimin (wrong-doers). (Qur’an, 49:11)

الظن إن بعض الظن إثم ولا تجسسوا ولا يغتب بعضكم يا أيها الذين آمنوا اجتنبوا آثيرا من اب رحيمواتقوا الله إن الله تو بعضا أيحب أحدآم أن يأآل لحم أخيه ميتا فكرهتموه

“O you who believe! Avoid much suspicion; indeed some suspicions are

sins. And spy not, neither backbite one another. Would one of you like to eat the flesh of his dead brother? You would hate it (so hate backbiting). And fear Allah. Verily, Allah is the one who accepts repentance, Most Merciful.” (Qur’an, 49:12)

a. Slander simply refers to verbal insults or oral defamation. In Arabic slander is lamz which literally means “piercing and stabbing.” Here it is used to mean finding faults, as the person who finds faults in others is doing something similar to piercing them with a sword or stabbing them with a dagger and perhaps the wound inflicted by the tongue is more lasting.

The form of prohibition expressed in this verse saying. “do not slander yourselves,” is very subtle. For the Qur’an regards the community of Muslims as one body in its mutual concerns and responsibilities, so that whoever slanders his brother in effect slanders himself.

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.بريئا فقد احتمل بهتانا وإثما مبينا أو إثما ثم يرم بهومن يكسب خطيئة

“And whoever earns a fault or a sin and then throws it on to someone innocent, he has indeed burdened himself with falsehood and manifest sin.” (Qur’an, 4:112)

One form of slandering is calling others by derogatory nicknames of the sort which highlights some defect and are used to mock and deride a person. A Muslim should not call his brother by a name which is offensive to him. Thereby causing him pain and thus trampling on the feelings of Islamic brotherliness.

b. Mockery refers to scornful contempt, derision or ridicule. In Arabic it is sukhriy. Allah has prescribed a number of things related to the preservation of brotherhood and what this implies with regard to what is to be held sacred among human beings. The first among these is the prohibition of mocking, deriding, and scoffing at others. The believer who fears Allah and hopes to attain the Garden in the Hereafter will not scoff at any individual nor make people the object of his jokes, scorn, sarcasm or mockery, because this is nothing but pride, arrogance and contempt for others, as well as ignorance of the scale by which Allah measures goodness.

c. Backbiting refers to speaking any bad word against a person who is absent. Backbiting is nothing but a desire to belittle people, to slander their honor, and to deride their accomplishments in their absence. Since this is stabbing in the back, it is an expression of narrow-mindedness and cowardice. Backbiting is a negative trait, and only those engage in it who themselves are not achievers. It is a tool of destruction, for one who is addicted to it leaves no one without throwing a dart at him and wounding him.

The Prophet (peace be on him) wanted to clarify the meaning of backbiting to his companions through questions and answers. He asked them, ‘Do you know what backbiting is? They replied, “Allah and His Messenger know best. He said, ‘It is saying something about your brother which he would dislike; someone asked ‘What if I say something about my brother which is true? The Prophet (peace be on him) replied, ‘If what you say of him is true, it is backbiting and if it is not true you have slandered him.

d. Spreading Evil Gossip Gossip is an idle unfriendly talk about people and their affairs. Gossiping is another bad habit which usually accompanies backbiting and is strictly prohibited in Islam. This means passing on to others what you hear from someone in such a manner that

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will cause dissension among people, sour their relationships or increase already existing bitterness between them.

From the very early Makkan period of revelation, the Qur’an condemned this trait saying.

. هماز مشاء بنميم.ولا تطع آل حلاف مهين

“And obey not everyone who swears much - and is considered worthless, a slanderer, going about with calumnies. (Qur’an, 68:10-11)

And the Prophet (peace be on him) said,

“The one who spreads gossip which he has overheard will not enter the Garden.” (reported by Al-Bukhari and Muslim)

And the Prophet (peace be on him) also said,

“The most evil among Allah’s slaves are those who go about spreading gossip dividing those who love each other and desiring to defame those who are innocent (reported by Ahmad)

Proof of Fitna

Any offense of Fitna can be proved either by a confession of an offender or by the credible testimony of one or more witnesses Amicable Settlement (Al-sulh) is highly recommended for conflict resolution in every matter.


.صلح فأجره على اللهوأ وجزاء سيئة سيئة مثلها فمن عفا

“And the recompense for an evil is an evil like thereof, but whoever

forgives and makes reconciliation his reward is due from Allah.” (Qur’an, 42:40)

Amicable settlement is a contract or agreement to terminate or to avert a dispute or lawsuit between two litigants. It can be achieved by way of the following:

a. Forgiveness with waiver which means to pardon the offender without demanding anything.

b. Forgiveness with compromise which means to pardon the offender but a certain demand of something that is made permissible by the Shari’ah.

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c. Forgiveness with light punishment which means that the victim pardons the offender but he demands only light punishment for the latter’s moral reformation.

d. Compromise agreement which means an agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the same manner which they agree on, and which everyone of them prefers in the hope of gaining, balanced by the danger of losing.

e. Light punishment which refers disciplinary action which is deem fit and appropriate in the interest of the public.

Example of light punishment within the scope of Ta’zir (disciplinary punishment):

1) To let the offender clean the mosques and its surrounding for a certain period of time.

2) To cause the offender to clean the garbage in the street and throw it to the garbage disposal area.

3) To construct a public rest house at his own expense. 4) To pay a reasonable amount of fine as demanded by the offended party or in a

discretion of a decision maker, 5) Or to impose banishment on the offender for a period of one month to avoid

hostility between the parties. The Punishment of Fitna is Ta’zir according to Shari’ah

Ta’zir signifies punishment for a crime for which punishment has not been fixed by the Qur’an and the Sunnah of the Prophet Muhammad (s.a.w.) and has been left to the discretion of the ruler or the judge to fix it in accordance with prevailing circumstances so as to reform the offender and refrain him from recommitting the crime and to refrain others from committing the crime. Allah the Most High says:

.من يعمل سوءا يجز به

“Whoever works evil, will have the recompense thereof. “(Qur’an, 4:123):

Examples of different kinds of Ta’zir:

1) Whipping stripes of not more than 10 times 2) Imprisonment 3) Banishment 4) Fine. 5) Social boycott or 6) Other form of appropriate disciplinary actions that may be deemed fit in the

interest of the public.

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B. THEFT What is Theft?

Theft (Sariqah) means to take away the property of another person surreptitiously without the knowledge and consent of that person. Brief Discussion

The Muslim is permitted to acquire wealth, as much as he desires as long as he requires it through lawful means and increases it through lawful investments.

Since the Islamic Shari’ah sanctions the right to personal property, it protects it, both by means of moral exhortation and legislation from robbery, theft and fraud.

Theft has been prohibited in Islam and has been declared punishable crime for which punishment has been fixed. Proof of Theft

The offence of theft liable to hadd is either proved by the testimony of two male, sane and Muslim witnesses or by the confession of the accused.

If the number of the witnesses is less than two or there is one male and one female witness or there is circumstantial evidence against the accused, he shall be liable for the restoration of the stolen property to the victim and shall also be liable for ta’zir (disciplinary punishment).

If the confessor in an offence of theft liable to hadd retracts his confession, his hand shall not be cut, but he may be liable for the compensation of the stolen property.

If the matter of huhud is not reported to the court, the ruler or the victim may grant pardon. It has been related in the authority of Abdullah Ibn Umar that Holy Prophet said,

“Forgive hudud among yourselves but when a matter of had comes before me, it becomes compulsory.” (Sunan Abu Dawud, vol. IV, p. 362) Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:

a. Forgiveness with waiver b. Forgiveness with compromise

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c. Forgiveness with light punishment d. Compromise agreement or e. Light punishment

Example of light punishment within the scope of Ta’zir:



3) To construct a public rest house at his own expense. 4) To pay a reasonable amount of fine as demanded by the offended party 5) To impose banishment on the offender for a period of one month to avoid hostility

between the parties. 6) To cause the offender compensate the offended party for latter’s property

damaged by the former or 7) To cause the offender to restore the stolen property or to pay the amount of

money equivalent to the stolen property to the owner. Punishments of theft according to Shari’ah

There are two types of punishment for theft depending upon the circumstances: 1) Hadd and 2) Ta’zir

Hadd means an unalterable punishment fixed by the Qur’an or the Sunnah of the Prophet (s.a.w.) as a right of Allah for a crime.

It is necessary for the offence of theft liable to hadd (cutting off the hand) that the offender must be adult and sane at the time of the commission of the offence and that he must have committed theft intentionally. Moreover, the stolen property must be movable property and is of the nisab or more i.e. 10 dirhams or more. Hadd punishment can be excused only after final conviction by a judge of Islamic court. The Holy Qur’an says,

وا أيديهما جزاء بما آسبا نكاال من الله والله عزيزحكيموالسارق والسارقة فاقطع

“Cut off (from the wrist joint) the (right) hand of the theft, male or female,

as a recompense for that which they committed, a punishment by way of example from Allah. And is All-Powerful, All-Wise.” (Qur’an 5:38)

Theft shall be punishable with ta’zir in the following cases: 1) When the offender and the victim of the theft are related to each other; 2) When a guest has committed theft form the house of his host;

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3) When a servant or employee has committed theft from the custody of his master or employer to which he is allowed access;

4) When the stolen property is wild grass, fish, bird, dog, pig, intoxicant, perishable foodstuffs for the preservation of which provision does not exist like fruits, vegetables, meat, milk, etc.

5) When the offender has a share in the stolen property the value of which, after deduction of his share, is less than NISAB;

6) When the offender has stolen public property; 7) When a creditor steals his debtor’s property the value of which, after deduction of the

amount due to him, is less than the NISAB; 8) When the offender has committed theft under compulsion or dire necessity; 9) When the offender, before his apprehension (arrest), has, on account of repentance,

returned the stolen property to the victim and surrender himself to the authority concerned; and

10) If the evidence or proof is lacking or weak or the witnesses are not credible.

C. ROBBERY What is Robbery?

Robbery (harabah) means to take away the property of another person by using force publicly.

Nisab is the prescribed value of the property i.e. at least 10 dirhams. Brief Discussion

In robbery, the property of another person is taken away by the offender by using force publicly. The property must be in custody, the property must be of the value of nisab and each offender has to get share in such property equal to nisab. The property must be valuable in the sight of Shari’ah, the property must be owned by individual and the offender has no right of ownership or share in it at all. Proof of Robbery

The offence of robbery liable to hadd is proved either by the confession of the accused or the testimony of two adult, sane and credible witnesses other than the victims. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:


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damaged by the former or 7) To cause the offender to restore the stolen property or to pay the amount of

money equivalent to the stolen property to the owner. The Punishment of Robbery according to Shari’ah

Robbery has been prohibited in Islam and has been declared punishable crime for which punishment has been fixed by the Qur’an. The Holy Qur’an says,

ويسعون في األرض فسادا أن يقتلوا أو إنما جزاء الذين يحاربون الله ورسولهذلك لهم خزي في الدنيا أو ينفوا من األرضتقطع أيديهم وأرجلهم من خالف يصلبوا أو

عليهم فاعلموا أن الله إال الذين تابوا من قبل أن تقدروا.عظيم ولهم في اآلخرة عذاب غفور رحيم

“The recompense of those who wage war against Allah and His

Messenger and do mischief in the land is only that they be killed or crucified or their hands and their feet be cut off on the opposite side or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter. Except for those who (having fled away and then) came back with repentance before they fall into your power; in that case, know that Allah is Oft-Forgiving, Most Merciful. (Qur’an 5:33-34)

If the offender does not commit murder but takes away the property of the victim

of more than nisab, he shall be punishable with amputation of his right hand from the wrist and his left foot from the ankle. But this hadd punishment is only implemented after final conviction by a judge of Islamic court Robbery shall be punishable with ta’zir in the following cases:

1. If the evidence or proof is not sufficient to prove a fact or the witness are not credible;

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2. The offender repents before his arrest by the authority; and 3. When the case has not been filed with the proper court.

If the offence of robbery is not sufficiently proven or the offender repented before

arrest, the offender shall be liable for the restoration of the stolen property to the victim and shall also be liable to ta’zir.

D. Land Conflict What is Land Conflict?

Land refers ground of the earth held as property. It includes every estate and interest therein, tide-water land and reclaimed land. Therefore, land conflict is a dispute between or among persons over the ownership, occupancy, possession or utilization of the land and the resources found therein. Brief Discussion The Use of Cultivable Land

If the Muslim owns a piece of cultivable land, he must make use of it by planting crops or trees. It is not consonant with Islam that such lands not be used for cultivation; as this is tantamount to rejecting the bounty of Allah and wasting wealth, which the Prophet (peace be on him) prohibited. In this regard a number of options are available to the land owner: 1. Cultivating the Land Himself

The first option available to the landowner is that he himself cultivates the land. This is commendable, and the owner will be rewarded by Allah for whatever men, beast, and birds eat of the produce of his farm or garden.

2. Lending the Land to Others for Cultivation If the land owner if unable to cultivate the land himself, he may lend it to another person who is able to cultivate it by employing the latter’s own equipment, helpers, seeds and animals. In such case the land owner is very much desirable in Islam. Abu Hurairah narrated that the Prophet (peace be on him) said,

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“If anyone has land, he should cultivate it or lend it to his brother.” (Reported by Al-Bukhari and Muslim)

Some early scholars held the opinion that cultivable land can be used in one of two ways: either the owner cultivates it himself or lends it to someone else for cultivation, with no return for himself. In the latter case, the piece of land remains the property of the owner but the produce belongs to the one who cultivates it.

In the opinion of Ibnu Abbas, the Prophet’s order to lend the cultivable land to others if one does not farm it himself was not intended as command which must be obeyed but only as the recommendation of a laudable act.

3. Taking a Proportion of the Crop

The third alternative for landowner is to let out his land to a person who will cultivate it, using the cultivator’s own equipment, seeds and animals on the condition that he is to get a specified percentage such as half, a third, or whatever is agreed upon, of the total produce of the land; the owner may also make available to the cultivator his own seeds, equipment, animals, or other help, such an arrangement is termed SHARE-CROPPING.

Al-Bukhari and Muslim report on the authority of Ibn Umar, Ibn Abbas and Jarir bin Abdullah that the Prophet (peace be on him) gave the people of Khaybar the land to work and cultivate, in return for which they were to get half of what it produced.

In support of their position, scholars who consider share-cropping permissible

say, it is established and well-known that the Prophet (peace be on him) practiced it until his death and that after him the rightly-guided Caliphs practiced it until their death.

Mode of Acquisition of Land Ownership

A person acquires ownership over a parcel of land by way of purchase, donation from other person or original possession and occupancy of a land for a very long period of time. Proof of Land Grabbing

Land grabbing is proved either by the confession of the offender or by at least one credible witness. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:

a. Forgiveness with waiver

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b. Forgiveness with compromise c. Forgiveness with light punishment d. Compromise agreement or e. Light punishment





between the parties. 6) The land grabber shall return the parcel of land in dispute to its original owner. 7) If the land owner demands its compensation at the amount fixed instead of

recovering the same land grabber shall pay the compensation and forfeit the land in his favor or

8) The land grabber shall be evicted from the land and shall not be allowed to occupy the same.

Punishments of Land Grabbing according to Shari’ah is Ta’zir

E. CONFLICT IN THE UTILIZATION OF COMMUNITY RESOURCES

What Is Community Resources?

Community Resources means natural resources, property, wealth, or facilities owned by and belong to the public in general which are made accessible equally to all its people for their and benefits without prejudice to the welfare of the community and the environment. Brief Discussion

The fundamental attitude of Islam toward man’s position in the world is that Allah has made the earth for the benefit of man, to whom He has given control over it. It is the duty of man to prosper from this favor and to exert himself to seek Allah’s bounties throughout the earth. Allah the Most High says:

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وجعلنا لكم فيها .وأنبتنا فيها من آل شيء موزون واألرض مددناها وألقينا فيها رواسي

.علومننزله إال بقدر م وإن من شيء إال عندنا خزائنه وما.برازقين معايش ومن لستم له

“And the earth We spread out, and placed therein firm mountain, and caused to grow therein all kinds of things in due proposition. And We have provided therein means of living-for you and for those whom you provide not (moving living creatures, cattle, beasts and other animals.) (Qur’an, 15:19-21)

Community natural resources are for the common use and utilization of the public

without discrimination and access to its benefits is available to all with equity.

However, by traditional practice whoever first utilizes such resources with permit or grant from the authority shall be given priority and preference over the other in terms of possession, cultivation, development or production. Proof of Preferential Rights

Preferential right to utilize community resources is proved by the existence of government permit, certificate of real estate tax, circumstantial evidence or by the testimony of credible witness. Amicable Settlement (Al-sulh) is highly recommended for unlawful utilization of community resources

a. Forgiveness with waiver b. Forgiveness with compromise c. Forgiveness with light punishment d. Compromise agreement or e. Light punishment




3) To construct a public rest house at his own expense. 4) To pay a reasonable amount of fine as demanded by the offended party. 5) To impose banishment on the offender for a period of one month to avoid hostility


damaged by the former. 7) Both parties shall be allowed to have equal access to avail of the community

resources without prejudice to other constituents if both have no evidence to produce.

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8) For equality, both parties shall be privileged or deprived of utilizing the community resources or

9) The one who first develop, utilizes, occupies or possesses the community resources shall be given due preference over the other.

Punishments of Unlawful Utilization of Community Resources is Ta’zir

F. PHYSICAL INJURIES What is Physical Injury?

Physical injury or hurt means to cause bodily pain, harm, disease, infirmity or injury to any person or impairs, disables, dismembers any limb or organ of his body without causing his death. Brief Discussion Hurts are of two classifications, namely: 1) Intentional Hurt and 2) Hurt by Mistake Intentional Hurt

There is an intentional hurt when it is caused intentionally by the adult, sane offender to the protected person.

QISAS (قصاص ) is the punishment of intentional hurt.

The term QISAS means punishment by causing similar hurt at the same part of the body of the offender as he has caused to the victim. Pardoning or Compounding in Matters of Intentional Hurts

An adult and sane victim in case of intentional hurt is authorized to PARDON QISAS (retaliation) WITH or WITHOUT COMPENSATION, or COMPOUND it by anything agreed upon by the parties. The offender shall, after pardoning or compounding, not be punished with qisas (retaliation) and shall be liable for the payment of compensation (diyat) whether fixed (أرش ) or unfixed ( mutually agreed upon in ( ضمانcompounding of QISAS (retaliation).

If the victim is minor or insane, then his guardian (wali) shall have the right of QISAS (retaliation) and its pardoning or compounding. Proof of Intentional hurt

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Intentional hurt is proven either by the confession of the offender or by testimonies of at least two adult, male, sane, credible witnesses. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:

a. Forgiveness with waiver b. Forgiveness with compromise c. Forgiveness with light punishment d. Compromise agreement e. Light punishment





between the parties. 6) The offender shall pay the DIYAT prescribed by Shari’ah or anything whether in

kind or cash as demanded by the offended party or 7) To cause the offender compensate the offended party for latter’s property

damaged by the former. Punishment of Intentional Hurt according to Shari’ah

The punishment of hurt, when it is caused intentionally is Qisas (retaliation) if the victim is a protected person and causing similar hurt to the same part of the body of the convict is possible. The Qur’an says,

بالسن والجروح قصاص فمن تصدق به فهو والعين بالعين واألنف باألنف واألذن باألذن والسن .آفارة له

“Eye for an eye, nose for nose, ear for ear, tooth for tooth and wounds equal for

equal. But if anyone remits the retaliation by way of charity, it shall be for him an expiation” (Qur’an 5:45)

The term qisas means punishment by causing similar hurt at the same part of the body of the offender as he has caused to the victim. Hurt by Mistake

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If a person, without intention of causing hurt, causes hurt to another person, he shall not be punished with qisas (retaliation) but shall be punished with diyat (compensation) accordingly and may also be liable to ta’zir if the offence has been committed partly due to his negligence or it is required for public interest.

There are many hurts for which compensation have been fixed in the Sunnah of the Prophet (peace be on him) and the jurists have approved them. Fixed compensation is called ARSH, while unfixed compensation is called DAMAN. Proof of Hurt by Mistake

Hurt by mistake is prove either by the confession by the offender or by the testimony of an adult, sane, credible Muslim witness. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:


Pardoning or Compounding in Matters of Hurts An adult and sane victim in case of hurt is authorized to pardon qisas (retaliation) with or without compensation, or compound it by anything agreed upon by the parties. The offender shall after pardoning or compounding, not be punishable with qisas (retaliation) and shall be liable for the payment of compensation mutually agreed upon in compounding of qisas (retaliation). If the victim is minor or insane, then his guardian shall have the right of qisas (retaliation) and its pardoning or compounding.


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Punishments of Hurt by Mistake according to Shari’ah is Diyat.

Diyat means compensating of blood money by the offender to the victim. The value of full diyat is one hundred (100) camels

S. No. KINDS OF HURT/INJURY COMPENSATION(DIYAT)

1 Permanent impairing/loss of two eyes Full diyat 2 Permanent impairing/loss of 1eye ½ Diyat 3 Permanent impairing/loss of 2 ears Full diyat 4 Permanent impairing/loss of 1 ear ½ Diyat 5 Permanent impairing/loss of 2 lips Full diyat 6 Permanent impairing/loss of 1 lip ½ Diyat 7 Permanent impairing/loss of 2 hands Full diyat 8 Permanent impairing/loss of 1 hand ½ Diyat 9 Permanent impairing/loss of 2 feet Full diyat 10 Permanent impairing/loss of 1 foot ½ Diyat 11 Permanent impairing/loss of 20 fingers of the hands and

feet Full Diyat

12 Permanent impairing/loss of 1 finger of the hand/1 toe of the feet 5% Diyat

13 Permanent impairing/loss of all teeth Full Diyat 14 Permanent impairing/loss of 1 tooth 1/20 Diyat 15 Impairing/loss of 2 breast Full Diyat 16 Impairing/loss of 1breast ½ Diyat 17 Cutting of nose-part or whole nose Full Diyat 18 Hurt on head or face in which bone is exposed 5% Diyat 19 Hurt on face or head with fracture of the bone without

dislocation 10% Diyat

20 Hurt on face or head with dislocation of bone 15% Diyat 21 Hurt other than on head or face which enters the boy of

the trunk 1/3 Diyat

22 Privation of complete sight or hearing Full Diyat 23 Loss of sexual power. Full Diyat

G. LOSS OF LIFE What is Loss of Life? Loss of life refers to death of a person whether it is caused intentionally, unintentionally or by mistake.

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Murder (Qatl) means the act of a person which causes the death of another person. Intentional murder (Qatl amd) is a murder when a person willfully and with the intention of causing death makes another person the direct object of his action which in general is fatal and that person dies as a result of that action. Quasi-intentional murder (Qatl Shibhu amd) means that someone intentionally make another person the direct object of some action, not usually fatal, and he dies as a result of that action. Murder by mistake means that someone, without intention to cause death of, or cause harm to a person, causes death of such person either by mistake of intention or by mistake of act. Brief Discussion

Islam has made human life sacred and has safeguarded its preservation. According to its teachings, aggression against human life is the second greatest sin in the sight of Allah, second only to denial of Him. The Qur’an declares,

الناس جميعا ومن أحياها فكأنما من قتل نفسا بغير نفس أو فساد في األرض فكأنما قتل .أحيا الناس جميعا

“If anyone killed a person, not in retaliation of murder or (and) to spread mischief in the land – it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved the life of all mankind.” (Qur’an 5:32)

Classification of Murder

According to the majority of the jurists murder in Islamic criminal law is of three kinds, namely:

1) Intentional murder (Qat’ amd); 2) Quasi-intentional murder (Qatl Shibhu amd); and 3) Murder by mistake (Qatl Khata’).

Condition for Intentional Murder There area three (3) basic conditions for intentional murder:

1) The victim must be a living human being; 2) The victim must have died as a result of the action of the accused; and 3) The offender has willful intention of causing death of the victim.

Condition for Quasi-intentional Murder

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1) The offender must have the intention of causing bodily harm to the victim and has no intention of causing him death;

2) The weapon or the act of the offender is not likely to cause death in ordinary cause of nature; and

3) The victim dies as a result of the act of the offender. Condition of Murder by Mistake Murder by mistake contains three elements:

1) The offender must have no intention to cause death or harm to the victim; 2) The offender must have committed some fatal act; and 3) The victim must have died as a result of the act of the offender.

Proof of Intentional Murder

The jurists concur that the offence of intentional murder is proved either by the confession of the offender or by the testimony of two adult, sane, male and reliable eye witnesses. Proof of Quasi-intentional Murder

Quasi-intentional murder is proved either by the confession of the accused without coercion or by the evidence of two adult, sane and reliable witnesses or any other authentic evidence which, is sufficient to prove his guilt. Proof of Murder by Mistake

Murder by mistake is proved either by the confession of the accused with his free will without many coercion or by the evidence of two witnesses or by any other authentic evidence which is sufficient to prove the guilt. Amicable settlement (Al-sulh) is highly recommended for all kinds of murder.

It can be achieved by way of the following:


Compounding of Qisas

The jurists concur that intentional murder is a compounding offence and the heir or heirs of the victims are authorized to compound qisas against any valuable thing agreed upon between the parties whether the thing agreed upon is more in value or less, or whether it is paid at the spot or on deferred basis. The difference between waiver and compromise is that waiver is usually made without taking anything against that while

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compromise is made against any valuable thing. Compromise has been encouraged in Islam in all matters. The Holy Qur’an says,

والصلح خير

“And compromise is better.” (Qur’an, 4:128)

c. Forgiveness with light punishment d. Compromise agreement e. Light punishment





between the parties or 6) If the heir of the victim of murder demands DIYAT as prescribed by Shari’ah or

at the amount asked for by the relative of the victim, the offender shall pay the demanded DIYAT.

Punishment of Intentional Murder according to Shari’ah Qisas (retaliation) is the basic punishment in the case of intentional Murder. Compensation (diyat) and other punishment are not basic punishment but are secondary punishments. Allah the Most High says:

بالحق ومن قتل مظلوما فقد جعلنا لوليه سلطانا فال ال تقتلوا النفس التي حرم الله إال .يسرف في القتل إنه آان منصورا

“and whoever is killed (intentionally with hostility and oppression and not by mistake).we have given his heir the authority [(to demand Qisas or to forgive, or to take Diyat (blood money)]. But let him not exceed limits in the manner of taking life (i.e. he should not kill except the killer only). Verily, he is helped (by the Islamic law).” (Qur’an 17:33)

The Holy Prophet said, “The heir of the victim in a murder case or the victim in case of hurt has three choices, namely:

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1) To take qisas from the convict, 2) To pardon him, or 3) To take diyat (compensation).” (Sunan Abu Dawud)

Punishment of Quasi-intentional Murder according to Shari’ah

The punishment of quasi-intentional murder is diyat and ta’zir. The diyat payable in quasi-intentional murder is heavy (i.e. the amount of which is 100 camels) and will be paid either in lump sum or in installments to the heirs of the victim within a period of three years. Punishment of Murder by Mistake according to Shari’ah

The punishment of murder by mistake is diyat (blood money) Allah the Most High says:

ومن قتل مؤمنا خطئا فتحرير رقبة مؤمنة ودية وما آان لمؤمن أن يقتل مؤمنا إال خطئا مسلمة إلى أهله إال أن يصدقوا

“And whoever kills a believer by mistake (it is ordained that) he must set free a believing slave and a compensation (diyat) be given to the deceased’s family, unless they remit it.” (Qur’an, 4:92)

The diyat in murder by mistake will be paid to the heirs of the victim either in

lump sum or in equal installments within a period of three years. The value of diyat is one hundred camels. The heirs of the victim in murder by mistake can remit the whole or a portion of diyat.

H. GENDER ISSUES AND WOMEN CONCERNS What is Gender Issue? Gender Issue refers to a problem arising from the deprivation of personal rights of a man or woman as guaranteed and protected by law under the general principle of equity, equality and justice. Brief Discussion

Islam has laid down the rights and duties of women that are to be observed and fulfilled to ensure tranquility, peace and harmony among members of the Muslim community.

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Women were created in equal footing with men with a view to preserve the existence of humankind, to promote goodness and prevent evil, to follow and obey the Islamic laws and to recognize and respect one another without any discrimination. Allah the Most High says:

آثيرا من نفس واحدة وخلق منها زوجها وبث منهما رجاال يا أيها الناس اتقوا ربكم الذي خلقكم .ونساء

“O mankind! Be dutiful to your Lord, Who created you from a single person (Adam), and from him (Adam) He created his wife (Eve), and from them both He created many men and women.” (Qur’an, 4:1)

يأمرون بالمعروف وينهون عن بعض والمؤمنون والمؤمنات بعضهم أولياءسيرحمهم الله إن الصالة ويؤتون الزآاة ويطيعون الله ورسوله أولـئك المنكر ويقيمون .الله عزيز حكيم

“The believers, men and women, are awliya’ (helpers, supporters, friends, protectors) of one another, they enjoin (on the people) Al-Ma’ruf (Islamic Monotheism and all that Islam orders one to do), and forbid (people) from Al-Munkar (polytheism, disbelief of all kinds and all that Islam has forbidden), they offer their prayers perfectly and give the Zakat and obey Allah and His Messenger. Allah will have His Mercy on them. Surely Allah is All-Mighty, All-Wise.” (Qur’an, 9:71)

عند وأنثى وجعلناآم شعوبا وقبائل لتعارفوا إن أآرمكم يا أيها الناس إنا خلقناآم من ذآر

.الله أتقاآم إن الله عليم خبير

“O mankind! We have created you from a male and female, and made you into nations and tribes, that you may know one another. Verily, the most honorable of you in the Sight of Allah is that (believer) who has At-Taqwa (i.e. pious and righteous person who fears Allah much).” (Qur’an, 49:13) On the basis of the preceding ayat, all human beings, men and women, are equal

in the Sight of Allah and the only criterion to determine and distinguish the position of the individuals which makes them higher in status is the act of piety (At-Taqwa) which is spiritual in nature. Social, economic, political and worldly status of merit has no significance to raise the rank of a person. Proof of Violation Against Women’s Rights

It is proved by the testimony of at least one credible witness or other circumstantial evidence. Amicable Settlement (Al-sulh) is highly recommended

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3) To construct a public rest house at his own expense. 4) To pay a reasonable amount of fine as demanded by the offended party or 5) To impose banishment on the offender for a period of one month to avoid hostility

between the parties. I – Lack of Nafaqah to a Wife

An offending husband shall be required to give Nafaqah to the wife as demanded and to pay a debt if any incurred by a wife.

II – Abuse of a Wife by the Husband Separation of the couple from conjugal dwelling shall be necessary and proper to avoid repetition of maltreatment until the husband shall reform himself. Punishments of Intentional Abuse Against Women’s Rights is Ta’zir

I. ELOPEMENT What is elopement? Elopement means an act of going or running away by both male and female Muslims with the purpose of getting married to each other usually secretly and without the consent and knowledge of their relatives. Brief Discussion

Elopement is prohibited in Islam because it is a severe form of Khalwah (secret solitude of man and woman) and usually brings disgrace and dishonor to their families. Islam prohibits Khalwah between a man and a woman who are not related to one another

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to the degree of Mahram relationship. Khalwah literally means proximity which denotes a man and a woman who are neither married to each other nor Mahram to each other being alone together in a place in which there is no fear of intrusion by anyone else, so that an opportunity exists for sexual intimacy such as touching, kissing and embracing or even for intercourse (zina). Mahram relationship means a relationship either by marriage or by close blood ties of such degree that marriage is permanently prohibited. Proof of Elopement

Elopement is proved by the confession of the both parties or by at least one Muslim credible witness or by circumstantial evidence. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:


Example of light punishment with the scope of Ta’zir:




between the parties. 6) A man and a woman who are eloping shall be immediately separated and shall not

be allowed to keep in touch with each other and live together in one and the same house.

7) The guardians (wali) of a woman shall be informed of the case of elopement and shall be requested to give his parental consent and offer of marriage.

8) Marriage between the two elopers shall not be solemnized until and unless the following conditions shall have been complied with:

a) Consent and offer of marriage by the woman’s guardian (wali); b) Demanded dowry shall have been paid by the male eloper. c) Presence of two credible male witnesses during marriage solemnization. d) Mutual consent of both parties to marry each other.

Punishment of Khalwah including Elopement is Ta’zir

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If a man who is also found in retirement with and in suspicious proximity to a

woman who is neither married to him nor is related to him at the degree of Mahram, both the man and the woman shall be liable for ta’zir (disciplinary punishment). In the same way if a man lives with a woman who is not married to him or related to him at the degree of Mahram in a place like spouses, both shall be liable for ta’zir. Similarly if a man takes a woman out of her natural or lawful guardian (wali), without the consent of such guardian, both shall be liable for ta’zir.

Islam has not only prohibited zina but it closes all avenues of approach to it and thus prohibited every step and every means leading to it. Allah the Most High says:

.سبيال وال تقربوا الزنى إنه آان فاحشة وساء

“And come not near to the unlawful sexual intercourse. Verily, it is a Fahishah (i.e. anything that transgress its limits (a great sin), and an evil way (that leads one to Hell unless Allah forgives him). (Qur’an, 17:32)

The Holy Prophet said,

“Whoever believes in Allah and the Last Day must never be in proximity with a woman without there being a Mahram with her, for otherwise satan will be the third person with them.” (Ahmad Ibn Hambal, Al-Musnad, Vol. II p. 286).

J. MARRIAGE What is Marriage?

Marriage in Islam is a strong bond, a binding contract, based on the intention of both partners to live together permanently in order to attain, as individual, the benefit of the repose, affection, and mercy as well as to attain the social goal of the reproduction and perpetration of the human species. Brief Discussion

Marriage in Islam is considered not only a civil contract but also as an inviolable social institution, ordained for the protection of society, so that human beings may guard themselves against foulness and unchastity.

Islam prohibit fornication and adultery and blocks all ways leading to them as it is against suppressing the sexual urge; accordingly it calls people toward marriage, prohibiting renunciation and castration. Allah the Most High says:

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عبادآم وإمائكم إن يكونوا فقراء يغنهم الله من فضله لصالحين منوأنكحوا الأيامى منكم وا والله واسع عليم

“And marry those among you who are single (i.e. a man who has no wife

and the woman who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your (male) slaves and maid-servants (female slaves). If they be poor, Allah will enrich them out of His Bounty. And Allah is All-Sufficient for His creatures’ needs, All-Knowing (about the state of the people). (Qur’an, 24:32)

a) Muslim marriage shall not be solemnized unless the following requisites shall be

met: 1) Marriage shall be solemnized by the proper wali of the woman to be wedded

or upon authority of the proper wali, by any person who is competent under Shari’ah to solemnize marriage.

2) Legal capacity if the contracting parties that is at least 15 years of age. 3) Mutual consent of the parties freely given. 4) Offer (ijab) of marriage by wali and acceptance (qabul) by a male party duly

witnessed by at least two competent persons after the proper guardian (wali) in marriage has given his consent; and

5) Stipulation of customary dower (mahr) duly witnessed by two competent male persons.

b) Mahr (Dower)

Mahr (dower) has been mentioned in the Holy Qur’an as an essential part o of a Muslim marriage. It is given by the bridegroom to his bride in accordance with their mutual agreement. It is a marriage gift from the bridegroom to his bride and becomes her exclusive property. Islam has elevated the status of women as Mahr is given as a mark of respect for her. Even if marriage ends in divorce (al-talaq) the dowry remains the wife’s property and the husband has no right to take it back, except in the case of Khul where the divorce takes place at the request of the wife in consideration of the return or part of the mahr paid to her. In other words, Mahr is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage. Allah said in the Holy Qur’an: “And give to the women (whom you marry) their mahr (obligatory bridal-money given by the husband to his wife at the time of marriage) with a good heart, but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm (as Allah had made it lawful).” (Qur’an, 4:4) When is Mahr to be paid?

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The payment of Mahr is necessary even though it might be a very small sum. The dowry must be paid, either at the time of the consummation of marriage or afterwards. The amount of dowry in this case would depend upon the circumstances of the husband and the position of the wife. Allah the Most High said in the Holy Qur’an: “But bestow on them (suitable gift), the rich according to his means, and the poor according to his means, a gift of reasonable amount is a duty on the doers of good.” (Qur’an, 2:236). No Fixed Amount for Mahr governing rules about Mahr, no definite amount or a thing of a definite value if fixed as Mahr. Breach of Contract to Marry

Any person who has entered into a contract to marry but subsequently refuses

without reasonable ground to marry the other party who is willing to perform the same shall pay the latter the expenses incurred for the preparation of the marriage and such damages as may be demanded by the offended party. Prohibited Marriage Proposal

It is forbidden to the Muslim to propose to a woman who is already betrothed to a brother Muslim; the one whose proposal has already been accepted has acquired a right which must b safeguarded in consideration of good will and affection among people, specially among his brother Muslims. However, if the first suitor terminates his betrothal or gives the second suitor his permission, there is no harm in proceeding. Al-Bukhari reported that the Prophet (peace be on him) said,

“A man must not propose to another man’s betrothed unless he withdraws or gives him permission.”

The Consent of the Girl

It is the girl’s right to make a decision concerning her marriage and her father or guardian is not permitted to override her objections or ignore her wishes. The Prophet (peace be on him) said,

“A woman who has been previously married has more right concerning her person that her guardian, and a virgin’s consent must be asked about herself, her consent being her silence.”

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Women to Whom Marriage is Prohibited

It is haram for a Muslim to marry a woman who belongs to one of the following categories:

1) the father’s wife, whether divorced or widowed, 2) The mother, 3) the daughter, 4) the sister, 5) the paternal or maternal aunt, 6) the brother’s daughter, 7) the sister’s daughter, 8) the foster mother, 9) the foster sister, 10) the mother-in-law, 11) the step daughter, 12) daughter-in-law, 13) the sisters as co-wives, and 14) the mushrik women (polytheist) except women of Ahlul Kitab (Jewish or

Christian). The Prohibition of a Muslim Woman’s Marrying a Polytheist Man

It is haram for Muslim woman to marry a polytheist man, regardless of whether he be of the People of the Book or not. Allah the Most High says:

يؤمنوال تنكحوا المشرآات حتى

“And give not (your daughters) in marriage to Al-Mushrikun (polytheists) till they believe (in Allah Alone). “ (Qur’an, 2:221)

Proof of Unlawful Marriage

It is proved either by the confession of one of the couple or at least one credible Muslim witness. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:



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3) To construct a public rest house at his own expense. 4) To pay a reasonable amount of fine as demanded by the offended party or 5) To impose banishment on the offender for a period of one month to avoid hostility

between the parties. 6) The couple having unlawful marriage shall be immediately separated from the

same conjugal dwelling through out their life. Punishment of Unlawful Marriage

Punishment of unlawful marriage is ta’zir except if it is incestuous marriage which is punishable by hadd.

K. DIVORCE What is Divorce?

Divorce is the formal dissolution of the marriage bond in accordance with Islamic law to be granted only after the exhaustion of all possible means of reconciliation between the spouses. Brief Discussion The Islamic Limits for the Repudiation of Divorce

The Islamic Shari’ah has placed a number of obstacles in the way of divorce in order to confine it within the narrowest possible compass. Divorce without lawful necessity and without first exhausting all other means of resolving the conflict is unlawful and prohibited in Islam. It is maintained that it is injurious to both husband and wife; unnecessary damaging the interest of the two, which, like the wasting of property, is haram. The Holy Prophet said,

“Do not harm yourself or others.” (Ibn Majah and al-Darqutni) When Divorce Becomes Permissible

If all the efforts fail and every course tried proves to be of no avail, the husband may resort to the final solution permitted by the Shari’ah of Islam. In response to the bitter realities of life, when difficulties cannot be resolved except through the separation of the two parties in an honorable fashion, Islam has made the provision of divorce. Islam

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has permitted divorce reluctantly, neither liking nor commending it. Said the Prophet (peace be on him),

“Among lawful things, divorce is most hated by Allah.” (Reported by Abu Dawud). Manner of Divorce


أرحامهن إن آن قروء وال يحل لهن أن يكتمن ما خلق الله في والمطلقات يتربصن بأنفسهن ثالثةالذي عليهن صالحا ولهن مثلأحق بردهن في ذلك إن أرادوا إ يؤمن بالله واليوم اآلخر وبعولتهن .عزيز حكيم بالمعروف وللرجال عليهن درجة والله

“And divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And they (women) have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them as regards obedience and respect) to what is reasonable, but men have a degree (of responsibility) over them. And Allah is All-Mighty, All-Wise. (Qur’an, 2:228)

The Muslim is allowed three chances (of divorce), that is to say, three pronouncements or acts of divorce on three different occasions, provided that such divorce is pronounced during the time when the wife is in the period of purity and he has no intercourse with her. A husband may divorce his wife once and let the iddah pass. During the period of iddah, the two have the option of being reconciled without the necessity of remarriage. If however, this waiting period expires without reconciliation, they are now fully divorced. Should they want to remarry each other, a new marriage contract is required. However, the two can not be remarried after the expiration of 3 periods of iddah.

BAACC chairman has no authority to grant dissolution of marriage by way of divorce by faskh wherein a wife is a complainant seeking for a divorce on any ground because this is within the exclusive jurisdiction of the Shari’ah Court.

In case a husband seeking for a divorce, BAACC chairman has the power to reconcile the couple in a reasonable and equitable manner and in case of failure elevate the same case to the barangay Chairman for amicable settlement. Proof of Unlawful Divorce

Unlawful divorce is proved either by the confession of the husband and wife or by the testimonies of two adult, male Muslim witnesses. Amicable Settlement (Al-sulh) is highly recommended


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between the parties. Punishment of Unlawful Divorce is Ta’zir

L. ELECTION-RELATED CONFLICT A Bribe refers to any kind of property which is offered to a judge or public servant in order to obtain a decision in favor of oneself or against a rival, to expedite one’s own affair, or to delay that of one’s competition and so on. Brief Discussion Leadership is necessary for the success of any collective work as evident in the saying of the Prophet (peace be upon him): “If there where three in a trip, they shall appoint a leader from among them.” (Abu Dawud) Further, leadership should be understood more as a service to the community and its people. The Holy Prophet Muhammad (PBUH) said, “The leader of a people is their servant.” (Tabarani) Leadership is a trust and a person seeking for leadership should get the trust of the people in an honest and just manner. The people have the right to choose their own leader whom they trust and love. Any fraudulent act employed by a person so as to attain leadership is mistrust and breach of the people’s right of suffrage. Hence, leadership acquired by way of cheating or bribery is forbidden in Islam.

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Islam has prohibited bribery and that it is severe against all those who participate in it. The proliferation of bribery in a society leads to corruption and oppression; unjust decision are made and just one are blocked, undeserving persons are given chances an deserving ones are passed over, and the spirit of greed permeates the society in place of the spirit of dutifulness. Allah the Most High says:

الناس باإلثم وتدلوا بها إلى الحكام لتأآلوا فريقا من أموال وال تأآلوا أموالكم بينكم بالباطل وأنتم تعلمون

“And eat up not one another’s property unjustly (in any illegal way), nor give bribery to the rulers (judges before presenting your case) that you may knowingly eat up a part of the property of others sinfully.” (Qur’an, 4:29) Thawban said,

The Prophet Muhammad (peace be upon him) cursed one who offers the bribe, the one who receives it, and the one who arranges it.” (reported by Ahmad and Al-Hakim)

BAACC chairman has no authority to determine and decide on election – related

conflicts as to who is the winner or loser in the election. However, BAACC chairman may intervene by way of mediation or conciliation with a view to arrive at friendly amicable settlement or mutual reconciliation. Among the suggested terms and conditions of the amicable settlement is that winning candidate may employ a loser with reasonable compensation as public servant of his/her barangay. Amicable Settlement (Al-sulh) is highly recommended It can be achieved by way of the following:

a. Forgiveness with waiver b. Forgiveness with compromise c. Forgiveness with light punishment d. Compromise agreement or e. grave punishment




3) To construct a public rest house at his own expense.

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4) To pay a reasonable amount of fine as demanded by the offended party or 5) To impose banishment on the offender for a period of one month to avoid hostility

between the parties. Punishment of Cheating and Bribery is Ta’zir which is grave such as:

1) Whipping stripes of not more than 10 times 2) Imprisonment for a longer period of time 3) Banishment for a longer period of time 4) Heavy fine 5) Social boycott or 6) Other form of appropriate disciplinary actions that may be deemed fit in the

interest of the public.

References:

1. Naceur Jabnoun: Islam and Management, 2005, Riyadh, Saudi Arabia. 2. Dr. Hussain Hamid Hassan: An Introduction to the Study of Islamic Law, 1997,

Islamabad, Pakistan.

3. Ahmad Hasan: The Principles of Islam Jurisprudence, Vol. 1, 1993, Islamabad Pakistan.

4. A.S. Noordeen : The Criminal Law of Islam, 1997, Kuala Lumpur, Malaysia

5. Dr. Muhammad Taqi-ud din Al-Hilali and Dr. Muhammad Muhsin Khan:

Interpretation of the Meanings of the Noble Qur’an in the English Language, 1994, Riyadh, Saudi Arabia.

6. Abdur Rahman I. Doi: Sharia’ah: The Islamic Law, 1999, Kuala Lumpur.

7. Dr. Yusuf Al-Qardawi: The Lawful and the Prohibited in Islam, 1995, Lahore,

Pakistan.

8. Aquilino Q. Pimentel, Jr: The Local Government Code of the Philippines of 1991: Key to National Development, 1993, Cacho Publishing House, Mandaluyong, Metro Manila.

9. Maricel Vigo and Marlon Manuel: Barangay Justice Handbook, 2004, Philippine-

Canada Local Government Support Programme (LGSP), Manila, Philippines.

10. Philippine Code of Muslim Personal Laws

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Documents

Barangay Agama Arbitration and Conciliation Council (BAACC) - Resource Kit