SSRN Id1486169

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HOLBROOK 10/9/2009 11:18 PM
LEGAL HYBRIDITY IN THE PHILIPPINES:

LESSONS IN LEGAL PLURALISM FROM MINDANAO AND
THE SULU ARCHIPELAGO
by Justin Holbrook *
I. INTRODUCTION ..................................................................................... 2
II. THE BEGINNINGS OF LEGAL HYBRIDITY............................................. 6

A. The Arrival of Islam in the Philippines........................................ 6
B. Colonialism, Conflict, and Customary Law .............................. 10
C. Hybridity in the Early State ....................................................... 15
D. The Tripoli Agreement .............................................................. 17
III. PRESIDENTIAL DECREE 1083 AND THE MUSLIM

CODE OF PERSONAL LAWS .............................................................. 18
A. Presidential Decree 1083 .......................................................... 19
i. Objectives of Presidential Decree 1083 ................................. 20
ii. Jurisdiction and Presidential Decree 1083 ............................ 22
iii. Conflict of Laws and Presidential Decree 1083 .................. 23
B. The Sharia Court System .......................................................... 24
C. The Autonomous Region in Muslim Mindanao ......................... 27
IV. PLURALIST MECHANISMS FOR RESOLVING CONFLICT .................... 30

A. Dialectical Discourse ................................................................ 31
B. Margins of Appreciation ............................................................ 36
C. Jurisdictional Redundancy ........................................................ 39
D. Limited Autonomy Regimes ....................................................... 41
E. Progress Through Pluralism ..................................................... 43
V. CONCLUSION ..................................................................................... 47
*
. Judge Advocate, U.S. Air Force. J.D. Harvard Law School; B.A.L.S. Georgetown
University. The views expressed in this Article are those of the author and do not purport
to reflect the official policy or position of the U.S. Air Force, the Department of Defense
or the U.S. Government.
Electronic copy available at: http://ssrn.com/abstract=1486169

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I. INTRODUCTION
A tandem of legal co-existence is the very essence

of a pluralistic society . . . . 1
We live in a world in which normative obligations do not always

follow political boundaries. For a variety of political, economic, and
social reasons, people sometimes find themselves residents of a state
they neither helped create nor voluntarily joined. In such situations,
social contract theory seems to provide little guidance in answering
difficult questions about the imposition of legal liabilities as a cost of
citizenship. What allegiance do such people owe to the legal systems of
the states to which they belong? Should they be permitted to adopt and
follow proprietary legal codes that conform to cultural norms but exist
distinct from national jurisprudential schemes? If so, should these
proprietary codes be consent-based, or should they be permitted to
impose demands as a cost of cultural or ethnic association in the same
way that national schemes impose legal demands as a cost of political
association?
For proponents of legal pluralism, such questions are not new. Under
the headings of multiculturalism and cosmopolitanism, scholars of legal
pluralism have grappled for some time with the nature of ethnic and
cultural associations at the subnational and supranational levels to find a
normative balance between territorial sovereignty, liberal rights, and
community self-determination. 2 Implicit in legal pluralism is a
descriptive acknowledgment that people belongboth willingly and
unwillinglyto coexistent associations with overlapping norms that both
accord and discord with sovereign territorial power. 3 Formal and
1
AMER M. BARA-ACAL AND ABDULMAJID J. ASTIH, MUSLIM LAW ON PERSONAL STATUS
IN THE PHILIPPINES v (1998).
2
See, generally Paul Schiff Berman, Global Legal Pluralism, 80 STANFORD L. REV. 1155
(2007) (exploring pluralistic approach to resolving hybridity of overlapping normative
communities); Noah Feldman, Review, Cosmopolitan Law?, 116 YALE L.J. 1022, 1028
(2007) (reviewing potential of cosmopolitanism to bridge normative obligations between
distant communities). See also Vernon Valentine Palmer, Mixed Legal Systems . . . and
the Myth of Pure Law, 67 LA. L. REV. 1205, 121217 (2007) (discussing mixed legal
systems in Roman, Ottoman, and European empires).
3
See Robert M. Cover, The Supreme Court, 1982 Term: Foreword: Nomos and
Narrative, 97 HARV. L. REV. 4, 7 (The normative universe is held together by the force
of interpretive commitmentssome small and private, others immense and public. These
commitmentsof officials and of othersdo determine what law means and what law
shall be.). In this Article, I use the term law broadly to describe plural normative
commitments, rather than the positive articulation of rule by a state-sanctioned entity.
Electronic copy available at: http://ssrn.com/abstract=1486169

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informal associations based on politics, ethnicity, religion, geography,

business, trade, and common interest all constitute norm-generating
communities which may instill behavioral allegiances that exist within
and across state boundaries, 4 and these communities, in turn, generate
practices and procedures that seek to advance common goals and provide
proprietary legal remedies unavailable through positivist legal channels.
The social space shared by these overlapping obligations is necessarily
filled with conflict, as competing imperatives among different
communities strive for priority. 5 Though initially metaphysical, the
battle sometimes turns physical. As Robert Cover has observed, our
apprehension of the structure of the normative world is no less
fundamental than our appreciation of the structure of the physical
world. 6
As a general matter, legal pluralism seeks to provide a framework for
managing the hybridity of competing and overlapping norms. 7 Inherent
in the pluralist approach is the liberal conception that it is neither
possible nor, in many situations, even desirable to solve legal hybridity
by the hostile occupation of one normative scheme over another. 8
For a definitional discussion of law in the context of pluralism, see Berman, supra note
2, at 117778 (suggesting that pluralism frees scholars from debating what law is by
allowing them to treat[ ] as law that which people view as law).
4
See Feldman, supra note 2, at 104952 (discussing social contract theory of state
political authority); Berman, supra note 2, at 116970 (noting normative associations
include familiar political affiliations, such as nation-states, counties, towns as well as
ethnic groups, religious institutions, trade organizations, unions, Internet chat groups,
and a myriad of other nor-generating communities).
5
See Berman, supra note 2, at 1162 (characterizing spheres of overlapping authority as
sites of conflict and confusion).
6
Cover, supra note 3, at 6.
7
See Berman, supra note 2, at 1192 (arguing legal pluralism recognizes that normative
conflict is unavoidable and so, instead of trying to erase conflict, seeks to manage it
through procedural mechanisms, institutions, and practices that might at least draw the
participants to the conflict into a shared social space); Palmer, supra note 2, at 1206
(discussing M.B. Hookers definition that legal pluralism refers to the situation in which
two or more laws interact and describing mixed system as one in which two or legal
traditions, or parts thereof, are operating simultaneously within a single system).
8
See Berman, supra note 2, at 1177 (arguing legal pluralism encourages international
law scholars to treat the multiple sites of normative authority in the global legal system as
a set of inevitable interactions to be managed, not as a problem to be solved). In this
Article, I employ the term legal hybridity to describe normative obligations generally,
including those outside the bounds of what we normally consider law. See id. ([T]he
whole debate about law versus non-law is largely irrelevant in a pluralism context
because the key questions involve the normative commitments of a community and the
interactions among normative orders that give rise to such commitments, not their formal
status.); Feldman, supra note 2, at 102530 (contrasting legal obligations arising from
state and those arising from being citizen of the world).
3
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Rather, pluralism seeks to encourage the creation of mechanisms that

manage normative conflict through provisional compromise whenever
possible. As a conceptual approach, pluralism focuses more on
refereeing rather than winning, 9 bringing order to shared social space by
acknowledging the inevitability of disorder. 10
Of course, the success with which pluralist methodology is able to
manage normative conflict remains very much in question, as does its
applicability in multivariant situations. Occasions may exist in which
national norms prevent countenancing subnational or supranational
norms which are fundamentally in conflict, as in the use of peyote in
religious ceremonies, 11 the right to develop and maintain nuclear
arsenals, 12 the tolerance of racially-motivated hate speech, 13 or the
subjection of national citizenry to international criminal jurisdiction. 14 In
these cases, territorial sovereigntists may reject hybridity because the
firm and coercive assertion of state power is seen as the only means of
securing essential state interests. 15 Conversely, situations also may exist
9
See Berman, supra note 2, at 1165 ([O]ne thing that a pluralist approach will not do is
provide an authoritative metric for determining which norms should prevail in this messy
hybrid world. Nor does it answer the question of who gets to decide.).
10
While it may seem pessimistic, the inevitability of disorder represents a predictive
approach to historic developments. Quoting Hector MacQueen, Vernon Palmer has
observed, It is contrary to the spirit of mixed legal systems [to analyze their past] on the
basis that one part of the mix is good and the other bad. Instead the mixed systems need
to be evaluated on their own termsthat is as neither civil law nor common lawand
analysis must accept that a mixed past means a mixed future. Palmer, supra note 8, at
1211 (alteration in original) (citation omitted).
11
See Employment Div. Dept of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990) (upholding application of Oregon drug law to religious use of peyote); see also
Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 106770 (9th Cir. 2008)
(discussing Smith, the Religious Freedom Restoration Act, and pre-Smith case law
addressing government limitations on First Amendment rights).
12
See Michael Duffy, What Does North Korea Want?, TIME (Feb. 13, 2005), available at
http://www.time.com/ time/magazine/article/0,9171,1027498,00.html (last accessed Sep.
22, 2009) (discussing U.S. policy against North Koreas development of nuclear
technology); CarrieLyn Donigan Guymon, The Best Tool for the Job: The U.S. Campaign
to Freeze Assets of Proliferators and Their Supporters, 49 VA. J. INTL L. 849 (2009)
(reviewing authority of United States to freeze assets of nuclear proliferators).
13
See Virginia v. Black, 538 U.S. 343 (2003) (upholding Virginia law banning cross-
burning with intent to intimidate); Onder Bakircioglu, Freedom of Expression and Hate
Speech, 16 TULSA J. COMP. & INT'L L. 1, 1314 (contrasting hate speech laws in United
States with those in Europe).
14
See Megan E. Lantto, Note, The United States and the International Criminal Court:
A Permanent Divide?, 31 SUFFOLK TRANSNAT'L L. REV. 619 (2008) (reviewing United
States objection to jurisdiction of International Criminal Court).
15
See Berman, supra note 2, at 1180 (For example, substate communitieswhether
separatist ethnic groups or local warlordsmay so threaten the authority of the state that
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in which national norms are inadequate in safeguarding individual norms

which are seen as universal, as in the practice of childhood marriage 16 or
the denial of basic due process, democratic participation, or free
speech. 17 In these cases, proponents of universalism may reject hybridity
in an effort to achieve a harmonious global system that acknowledges
fundamental rights, encourages cosmopolitanism, and seeks to erase
normative differences altogether. 18
The central question is whether the rejection of hybridity for either
sovereigntist or universalist reasons is always preferable, or whether in
someif not mostcases the management of hybridity through legal
pluralism is a more beneficial alternative. As Paul Schiff Berman writes
in his involved article, Global Legal Pluralism, instead of clinging to
the vain hope that unitary claims to authoritative law can ever be
definitive, pluralism recognizes the inevitability (if not always the
desirability) of hybridity. 19 In recognizing this inevitability, pluralism
offers a pragmatic framework for resolving legal conflicts which cannot
be resolved through sovereigntist suppression or universalist
emancipation. 20 What at first seems a concessionary effort to develop
necessary but nevertheless regrettable solutions to the messiness of
overlapping norms becomes instead a best practices approach with
organic normative value. 21 While refraining from dictating normative
outcomes, pluralism allows competing norms to share the same social
space through structured settlements. The external benefits of such
hybrid settlements, such as the preservation of peace and cultural
integrity, may very well outweigh the internal costs of compromise, such
as the loss of efficiency and systemic predictability. Further, the value of
the social space itself may be enhanced by the normative diversity of
both individual and communal actors. Normative schemes are, after all,
permeable, both giving and borrowing across competing centers of
no viable legal order is possible without attempting to eliminate the alternative norm
altogether).
16
See Lynne Marie Kohm, Suffer the Little Children: How the United Nations
Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. INT'L L. REV.
57, 7078 (2009) (applying Convention on the Rights of the Child to childhood
marriages).
17
See, e.g., Seth Mydans, Burmese Activist Receives New Term of House Arrest, N.Y.
Times, Aug. 12, 2009, at A10 (reporting that President Obama said the sentence of
[Burmese pro-democracy leader Aung San Suu Kyi] violated universal principles of
human rights).
18
Berman, supra note 2, at 1189.
19
Id. at 1166.
20
See id. at 119296 (contrasting pluralism with sovereigntist territorialism and
universalism).
21
See id. at 123435.
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gravity. The management of hybridity thus may invite competitors to

critically examine both the source of and the expression of their own
normative obligations.
In this Article, my aim is to explore the potential of legal pluralism
to manage and, perhaps somewhat optimistically, even resolve the legal
conflict inherent in overlapping normative obligations. I do so by
engaging in a case study of the Philippines, a country which has been a
hotbed of conflict for more than 400 years. Since the Spanish first
arrived with colonial intentions in the 16th century, the predominantly
Muslim inhabitants of the southern islands of Mindanao and the Sulu
Archipelago have steadily confronted overlapping normative obligations
based on a historical narrative that significantly differs from the one
played out further north. With the formal adoption in 1977 of the
Muslim Code of Personal Laws, the Philippine government has taken a
pluralist approach to addressing subnational conflict, striving to create a
hybrid legal system that fulfills sovereigntist requirements while meeting
the normative needs of its Muslim citizens.
In Part II, drawing on the Philippines rich religious and cultural
heritage, I address the mechanisms employed by Spanish and American
colonizers in responding to normative conflict in Mindanao and the Sulu
Archipelago. In Part III, I proceed to a discussion of the steps taken by
the Philippine government to formally recognize Muslim normative
obligations, including constitutional protection of cultural heritage and
the adoption of Presidential Decree 1083, the Muslim Code of Personal
Laws. Finally, in Part IV, I review the Philippine governments
approach to legal hybridity in the context of four practices identified by
Berman in Global Legal Pluralism: dialectical discourse, margins of
appreciation, jurisdictional redundancy, and limited autonomy regimes. I
conclude by suggesting that the Philippine governments approach,
though less than fully realized, models the possible benefits of pluralism
in a normatively complex and contentious hybrid society.
II. THE BEGINNINGS OF HYBRIDITY
A. The Arrival of Islam in the Philippines
As with other post-colonial states, the history of the Philippines is

marked by political, religious, and cultural conflict, largely tied to the
struggle of Muslims in the southern Philippines to regain the political
and religious independence they enjoyed prior to the arrival of the
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Spanish in 1521. 22 Historically, it is this struggle which has driven

efforts toward structured hybridity in the Philippines, and which
continues to compel the Philippine government toward a pluralist
resolution of normative legal conflict today.
As a nation state, the Philippines is a loose collection of 7100 islands
cradled by Indonesia to the southwest, Malaysia to the west, the
Southeast Asia mainland to the northwest, and Japan to the north. 23
Long before colonialism reached its shores, the Philippines central
location enabled its inhabitants to enjoy a vibrant sea trade with
neighboring countries, 24 which, in turn, opened the door for an inflow
and outflow of ideas and traditions. 25 As early as the 14th century, the
first Muslim traders arrived in the Tawi-Tawi region of the Sulu
Archipelago, and by the 15th century Muslim missionaries had arrived in
Sulu. 26 Islam reached the shores of Mindanao, the largest island of the
Sulu Sea, in 1475, eventually penetrating into the interior of Mindanao to
the shores of Lake Lanao. 27 Unlike other areas, Islam spread through the
southern Philippines through trade and marriage rather than conquest,
merging almost organically with existing customary law. 28 Later to be
known as Moros, Philippine Muslims celebrated thenand continue to
do so todaya hereditary line extending back to the Prophet Mohammed
himself. 29 In Mindanao, this hereditary line was established through
22
For a thorough treatment of conflict in the Philippines, see THOMAS M. MCKENNA,
MUSLIM RULERS AND REBELS (1998). See also BARA-ACAL, supra note 1, at 9, 1314;
Michael O. Mastura, Legal Pluralism in the Philippines, 28 L. & SOCY REV. 461, 461
75 (1994); ZACHARY ABUZA, MILITANT ISLAM IN SOUTHEAST ASIA 3348 (2003); MARIA
A. RESSA, SEEDS OF TERROR 11 (2003); GREG WILLIAMS, 13 DAYS OF TERROR 920
(2003); John Enriquez Andres, Note, The Raiding of the Pearl: The Effects of Trade
Liberalization on Philippine Labor Migration, and the Filipino Migrant Workers
Experience, 10 RUTGERS RACE & L. REV. 523, 525 (2009); Lowell B. Bautista, The
Historical Context and Legal Basis of the Philippine Treaty Limits, 10 ASIAN-PACIFIC L.
& POLY J. 1, 6 (2008).
23
See Andres, supra note 22, at 525.
24
See Bautista, supra note 22, at 6; David G. Scalise and Patricia J. de Guzman,
Foreign Investment in the Philippines, 29 GW J. INTL L. & ECON. 145, 145 (1995).
25
See WILLIAMS, supra note 22, at 9.
26
See BARA-ACAL, supra note 1, at 13. Others place the arrival of Islam in the
Philippines as early as the 13th century. See ABUZA, supra note 22, at 34.
27
See BARA-ACAL, supra note 1, at 13.
28
See RESSA, supra note 22, at 11; BARA-ACAL, supra note 1, at 14. See also Vincent J.
H. Houben, Islam: Enduring Myths and Changing Realities: Southeast Asia and Islam,
588 ANNALS 149, 153 (2003) (The expansion of Islam [in Southeast Asia] was largely a
peaceful process, and conversion was no great obstacle to the ordinary people. The
continuation of pre-Islamic ritual practices was accepted . . . .).
29
See MCKENNA, supra note 22, at 49. See also Houben, supra note 28, at 153
(observing that Southeast Asian rulers produced genealogies in which they claimed to be
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Sarip (sharif in its original Arabic form) Kabungsuway, son of a Malacca

princess and a direct descendent of the Prophet. 30
Prior to the coming of Islam, localities throughout the southern
Philippines were organized into communities known as bangsa (or
barangay), each operating autonomously or semi-autonomously.31
Although they had no written law, 32 the bangsa chieftains (datus) held
certain rights in land on the basis of ancestral association and exercised
local and provincial authority. 33 Their authority evolved into general
aristocratic privilege with the arrival of Islam, whose proponents ushered
in an era of sultanates throughout Mindanao and the Sulu Archipelago. 34
The principle sultanates in Maguindanao and Sulu functioned like mini-
states, with governments possessing both administrative and judicial
powers. 35 Agama courts applied Moro customary law, or adat, as well as
sharia law, 36 adopting a hybrid model similar to that later used by some
colonial powers in superimposing civil legal regimes over local
custom. 37 Indeed, one Muslim scholar has noted it was Islam which led
the way in utilizing legal pluralism to forge a relationship with those of
different beliefs.
direct descendants of the Prophet through Saiyid or Sharif (descendants of Mohammads

grandsons)).
30
See MCKENNA, supra note 22, at 49; BARA-ACAL, supra note 1, at 13. In approaching
legal hybridity from a standpoint of legal pluralism, present mechanisms must account
for past perspectives. In the Philippines, this means that structured legal settlements must
consider the views and presence of those with historic ties to nobility. As McKenna
notes, Both proponents and opponents of Muslim separatism tend to assume that
ordinary Muslims reverence their highborn leaders (or datus) for their sacred ancestry and
could not imagine politics without them. In this view, any political arrangement to
enhance Muslim self-determination in Cotabato [on the island of Mindanao] must include
prominent consideration of the role of the traditional nobility. MCKENNA, supra note
22, at 46.
31
See MCKENNA, supra note 22, at 4748; Brynna Connolly, Non-State Justice Systems
and the State: Proposals for a Recognition Typology, 38 CONN. L. REV. 239, 265 (2005);
COUNTRY PROFILE: PHILIPPINES, LIBRARY OF CONGRESSFEDERAL RESEARCH DIVISION
(Mar. 2006) (on file with author) [hereinafter PHILIPPINES COUNTRY PROFILE].
32
33
See MCKENNA, supra note 22, at 48.
34
See MCKENNA, supra note 22, at 48; Houben, supra note 24, at 161.
35
BARA-ACAL, supra note 1, at 2. Three sultanates in the Mindanao area united into the
Sultinate of Maguindanao in 1619. See ABUZA, supra note 22, at 34.
36
See BARA-ACAL, supra note 1, at 67 (Nonetheless it was theorized that as early as
the middle of the 15th century, elements of Shariah were continually introduced and
implemented side by side with the customary laws by the Moros.); TRUDY RING, ET AL.,
INTERNATIONAL DICTIONARY OF HISTORIC PLACES: ASIA AND OCEANA 403 (1996).
37
For a discussion of colonial legal hybridity, see infra Part II.B.
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In personal matters, every community is welcome to

adopt its own personal law. Indeed, it is only Islam
which guarantees this right in the most liberal manner to
all minorities living in an Islamic state. It is Islam which
has taught the modern world the real difference between
the law of the land and the personal law and which
enunciated the principle that in a multi-national state, the
personal affairs of a man should be settled according to
his own personal law. 38
In the realm of personal law, precolonial Muslims in the Philippines

possessed the right to divorce, remarry, and share conjugal earnings and
child custody when separated. 39
Further north, in Manila on the island of Luzon, emigrants from
Indonesia and the Malay Peninsula had similarly settled into barangays
headed by local datus, who over time consolidated power and governed
as rajas. 40 Unlike the southern Philippines, Islam did not reach Manila
until 1565, well after the Spanish first arrived with colonial intentions. 41
As a result, the northward march of Islam through the Philippine islands
was largely halted by the late 16th century, 42 creating a religiously
segmented society with a predominantly Christian population in the
North and a predominantly Muslim population in the South. 43 This
religious segmentation, later fueled by colonial discrimination and
Christian migration, would become the main driver for pluralistic
recognition of legal hybridity in the Philippines.
38
BARA-ACAL, supra note 1, at 11. Bara-Acal reports the Prophet Mohammed once
resolved a case involving two Jews who committed adultery by prescribing a punishment
from the Torah, underscoring the principle that associative communities should be
entitled to apply their own personal law. Id. Scholars elsewhere have observed that
mixed legal systems, particularly those based on empire, have existed since antiquity.
See Palmer, supra note 2, at 121316.
39
See Aurelia Miller, Note & Comment, Until Death Do Us Part?: A Proposal for the
Philippines to Legalize Marriage, 24 CONN. J. INTL L. 181, 184 (2008).
40
See RING, supra note 36, at 565; WILLIAMS, supra note 22, at 9.
41
See RING, supra note 36, at 565; PHILIPPINES COUNTRY PROFILE, supra note 27, at 2.
42
See RING, supra note 36, at 565; ABUZA, supra note 22, at 34.
43
See BARA-ACAL, supra note 1, at 9. Although Islam is the predominant religion in the
Southern Philippines, Muslims only account for five percent of the total population. See
PHILIPPINES COUNTRY PROFILE, supra note 31, at 9. The remainder of the population is
83% Roman Catholic, 9% Protestant, and 3% Buddhist and other. See id.
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B. Colonialism, Conflict, and Customary Law
In 1521, Ferdinand Magellan landed in the Philippines while

circumnavigating the globe, claiming the island chain for Spain based on
the then-valid, though nevertheless inchoate, doctrine of discovery. 44 As
part of a broader wave of European colonization of Africa and Asia,
participated in by the Spanish, the British, the Dutch, the French, the
Germans, the Belgians, the Portuguese, and the Italians, 45 the Spanish
began to colonize the Philippines in 1565, naming the islands Filipinas
in 1571 in recognition of King Philip II of Spain. 46 Christianization
accompanied colonization, 47 although neither missionaries nor early
colonizers had much success in gaining a lasting foothold in the
predominantly Muslim areas in the South. 48 Some of the southern
coastal areas were eventually colonized, including for a time Zamboanga
on Mindanao and the island of Sulu itself, but the predominance of Islam
prevented serious inroads and enabled the sultanates to retain a measure
of power well into the 20th century. 49 In fact, while Spain sparred with
other colonial powers in the centuries following initial colonization, the
sultanates in Sulu and Mindanao periodically flourished as trading
centers, drawing ships from throughout the world. 50
The process by which a common Moro identity emerged during the
period of Spanish colonization remains a matter of debate. Given that
the southern Philippine islands are composed of ethnically diverse
populations, 51 Philippine Muslim scholars have contended that three
hundred years of Spanish colonization created the fire from which a
44
See Bautista, supra note 22, at 12, n. 68 (discussing doctrine of discovery as an
inchoate enunciation of then-existing international law).
45
See Palmer, supra note 2, at 1216.
46
See Bautista, supra note 22, at 12.
47
See WILLIAMS, supra note 22, at 11; MCKENNA, supra note 22, at 82.
48
See RING, supra note 36, at 403; BARA-ACAL, supra note 1, at 9; Houben, supra note
28, at 16162.
49
See RING, supra note 36, at 40304; MCKENNA, supra note 22, at 7879.
50
See RING, supra note 36, at 404; MCKENNA, supra note 22, at 77. Though the Spanish
occasionally blockaded the Southern Philippines, sporadic trade continued. In the
1840s, Englishman Spencer St. John remarked that Jolo (Sulu) was by far the most
beautiful island I have ever seen, but the people, though manly, were not too
cunning. RING, supra note 31, at 404. Interestingly, in Joseph Conrads novel Lord
Jim, the character named Brown is taken by the Spanish to a settlement off the coast of
Mindanao which never came to anything in the end . . . . JOSEPH CONRAD, LORD JIM
(1900). Zamboanga is mentioned twice in Lord Jim. Id.
51
See MCKENNA, supra note 22, at 104 (discussing application of term Moro to
thirteen ethnolinguistic groups of the Philippines); Houben, supra note 28, at 161
(Moros is the name for a dozen different ethnic groups of Muslims, currently numbering
around 4 million people, who live in the southern Philippines.).
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common Moro identity was forged. 52 For example, jurist Amer Bara-
Acal observes, Centuries of Spanish intrusion into the local
shores . . . dismally failed to subjugate the Moros who fought fiercely
against the invading force. . . . The so-called Muslim Problem is the
result of centuries-old iniquities and misunderstanding caused by
Western colonization. 53 While it is true that Muslims resisted Spanish
encroachment, even mounting armed attacks against Manila at times, 54
anthropologist Thomas McKenna refutes the notion of a unified Muslim
resistance to Spanish subjugation, countering that the three hundred-
year conflict was primarily a cold war consisting of extended periods of
mostly peaceful coexistence with the Spanish colonial intruders in the
North coinciding with intersultanate rivalry in the South. 55 According
to McKenna, the term Moro was initially a pejorative label applied by
the Spanish to indigenous Muslims as a carryover from the Spanish
Reconquista of Muslim Spain, and was only appropriated by Filipino
Muslim nationalists in the 20th century as a symbol of collective
identity. 56
For our purposes, it is unnecessary to resolve this debate. The
important point is that the Moros in the South were able to resist
significant Spanish encroachments even as their non-Muslim neighbors
to the north were Christianized and assimilated into Spanish colonial
life. 57 Thus, when Spain ceded the Philippines to the United States in
1898 following conclusion of the Spanish-American War, 58 the Muslims
of the southern Philippines still retained considerable religious and
political independence. 59 Busy with quelling the revolutionaries in the
North who had declared independence from Spain just before the
Spanish-American War ended, the United States initially adopted a
policy of legal hybridity in the southern Philippines, similar to that of
British Malaya and the Dutch East Indies, even entering into a formal
treaty in 1899 with the Sultan of Sulu in which the Americans promised
not to interfere in Sulu religion, law, and commerce . . . in exchange for
52
53
BARA-ACAL, supra note 1, at 5, 8. Agreeing with this view, others have observed that
Spanish oppression caused the people to identify more close with Islam and undoubtedly
helped to ensure their survival through the centuries as a virtually independent people.
RING, supra note 36, at 403.
54
See RING, supra note 36, at 568.
55
MCKENNA, supra note 22, at 83.
56
See id. at 81.
57
See id. at 88 (observing in Mindanao city of Cotobato that Spanish colonial control
consisted almost exclusively of the establishment and maintenance of military garrisons,
with little attempt made to administer the native population).
58
See Bautista, supra note 22, at 6.
59
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the sultans acknowledgment of United States sovereignty. 60 Elsewhere

in Moroland, as the United States termed the Muslim South, the United
States and local leaders entered into similar, though less formal,
agreements. 61
Within a few years, however, the United State abandoned its policy
of legal pluralism in favor of integration. In 1905, it abrogated its treaty
with the Sultan of Sulu and, in 1914, imposed a uniform law that
disregarded Muslim customary law (adat). 62 The American justification
for doing so stands in stark contrast to the pluralist ideals which later
would gain constitutional protection in the Philippines. Writing to an
English friend in 1904 while serving as the first governor of the Moro
Province, General Leonard Wood noted,
You [the English] are quite content to maintain rajahs

and sultans and other species of royalty, but we, with our
plain ideas of doing things, find these gentlemen outside
of our scheme of government . . . . Our policy is to
develop individualism among these people and, little by
little, to teach them to stand on their own two feet
independent of petty chieftains. 63
To Hadji Butu of Sulu, General Wood commented, We realize that the

Moros have laws and customs very different from ours. We want new
laws to be such that the Moro people can live under them and so [can]
the American people. 64 Focused on integration, the United States
ceased recognizing the sultanates or their indigenous legal systems, 65
promoting instead the development of Western institutions intended to
prepare the Philippines for eventual independence. 66
60
Id. at 90. The treaty is generally known as the Bates Agreement of 1899. See id.;
Houben, supra note 24, at 162. Among other things, it provided for the acceptance of
local customary law. See ABUZA, supra note 22, at 35.
61
See MCKENNA, supra note 22, at 90; see also BARA-ACAL, supra note 1, at 5 (In the
early part of American rule, an attempt was made to recognize Moro customary laws. A
law was passed which ordained to enact laws which shall collect and codify the
customary laws of the Moros.).
62
See MCKENNA, supra note 22, at 91; BARA-ACAL, supra note 1, at 2, 56; ABUZA,
supra note 22, at 35..
63
64
BARA-ACAL, supra note 1, at 56.
65
66
PHILIPPINES COUNTRY PROFILE, supra note 31, at 34. Like the Spanish, the United
States occasionally clashed with Philippine Muslims. Between 1903 and 1906, American
forces killed more 3,000 Philippine Muslims, including 600 men, women, and children
in the battle of Bud Dajo in Sulu in 1906. See MCKENNA, supra note 22, at 8889. In
12
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Although systemically uniform, civil courts during this period

retained the authority to reference local laws and customs in resolving
disputes. In 1915, the Philippine Commission enacted Act No. 2520,
which provided:
Mohammedan Laws and CustomsJudges of the Court

of First Instance and Justice of the Peace deciding civil
cases in which the parties are Mohammedans or pagans,
when such action is deemed wise, may modify the
application of the law of the Philippine Islands, taking
into account local laws and customs, provided that such
modification shall not be in conflict with the basic
principles of the laws of the United States of America. 67
The willingness of early courts to embrace customary law is seen in a

1922 case issued by the Supreme Court of the Philippines, Adong v.
Gee. 68 In Adong, the Philippine Supreme Court considered the validity
of Philippine marriages performed in accordance with Muslim customs.
Drawing on principles of religious freedom embodied in both the Treaty
of Paris, in which Spain had ceded the Philippines to the United States, 69
and the colonial policies of Spain and the United States, including Act
No. 2520, the Supreme Court observed:
The purpose of the government toward the

Mohammedan population of the Philippines has, time
and again, been announced by treaty, organic law,
statutory law, and executive proclamation. . . . Various
responsible officials have so oft announced the purpose
of the Government not to interfere with the customs of
the Moros, especially their religious customs, as to make
quotations of the same superfluous. 70
1913, when Muslim rebels who kidnapped Christians were refusing to disarm,
American forces led by General John J. Pershing fought with Philippine Muslims at
Mount Bagsak in Jolo, killing 1,000 Muslim men, women, and children. James Brooke,
A Nation Challenged: The Philippines; Echoes of an Era: Pershing Was Here, N.Y.
TIMES, Jan. 27, 2002, at 114. See also RING, supra note 36, at 405.
67
68
Adong v. Gee (In re Estate of Boo) [1922] G.R. No. 18081 (Phil.), available at
http://www.lawphil.net/judjuris/juri1922/mar1922/gr_1-18081_1922.html (last accessed
Sep. 23, 2009).
69
See Bautista, supra note 22, at 8, 1619. As a condition of transfer, the United States
paid Spain twenty million dollars, creating the view among some that the United States
purchased the Philippines from Spain. Id. at 17.
70
Adong, G.R. No. 18081.
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The Supreme Court accordingly held that marriages performed

according to the rites of the Mohammedan religion were valid under
civil law. 71
Critics of the American integrationist policy have commented that it
was one of tolerance, not recognition. 72 While the Supreme Courts
holding in Adong v. Gee partially refutes this claim, it nevertheless
remains that legal hybridity existed only in the scope of law the courts
were willing to apply, not in the structure of the courts or the law itself.
In this sense, Muslims in the Philippines enjoyed less legal independence
than Muslims in nearby Indonesia, where the colonial Dutch employed
the doctrine of receptio in comlexu to develop a hybrid system in which
Islamic courts applied sharia in adjudging issues of marriage,
inheritance, and wakaf (religious endowment). 73
As part of its transition to full independence, the Philippines became
a commonwealth in 1935, 74 adopting a constitution which recognized
religious freedom but did not provide for formal recognition of Moro
cultural identity or sharia law. 75 World War II then swept the
Philippines into its wake, with the Japanese bombing the Philippines
only ten hours after attacking Pearl Harbor on December 8, 1941. 76 War
torn, the Philippines finally achieved complete independence from the
United States on July 4, 1946, 77 although its continuing reliance on the
United States meant that [i]ndependence did not significantly alter the
structure of local and provincial politics in the Philippines. 78
71
Id.
72
73
See id. at 23; Hikmahanto Juwana et al., Sharia Law as a System of Governance in
Indonesia: The Development of Islamic Financial Law, 25 WIS. INTL L. J. 773, 792, at n.
74 (2008). Interestingly, McKenna notes that the Dutch purpose in maintaining local
customs was to de-emphasize Islam by constituting local particularisms in customary
law [and] favoring the traditional authority structures linked to them. MCKENNA, supra
note 22, at 112 (citation omitted). American administrators, conversely, encouraged
sometimes activelyadherence to Islam by its Muslim allies in the Southern Philippines
to enhance their abilities as Mohammedan leaders. Id.
74
See MCKENNA, supra note 22, at 114; RING, supra note 36, at 569; PHILIPPINES
COUNTRY PROFILE, supra note 31, at 34.
75
See PHIL. CONST. art. XVIII (1935), available at http://www.chanrobles.com/
1935constitutionofthephilippines.htm (last accessed Sep. 24, 2009). See also Estrada v.
Escritor [2003] A.M. No. P-02-1651, Part IX (Phil.) (engaging in wide-ranging
discussion of religious freedom in United States and Philippines, including 1935
Philippine Constitution).
76
WILLIAMS, supra note 22, at 14; RING, supra note 36, at 569.
77
WILLIAMS, supra note 22, at 14; MCKENNA, supra note 22, at 113.
78
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From the perspective of legal pluralism, the main lesson drawn from
the Philippine colonial era is the challenge of attempting to resolve
normative conflict through a one-size-fits-all sovereigntist approach.
When normative values are culturally and religiously fundamental,
systemic subjugation threatens to widen the divide sovereigntism hopes
to close. As the president of Ateneo ze Zamboanga, a Catholic
University in Mindanao, observed when American forces arrived in
Mindanao in 2002, The big, old communal memories have come
surging back. . . . You are hearing again that these Muslims are low
class, violent and treacherous. You are hearing that all these Christians
are an oppressive group who tried to take our lands. 79 The divide
between the two, deepened over the course of nearly four hundred years
of colonial rule, would prove a significant obstacle for the new
Philippine government as it struggled for national unity.
C. Hybridity in the Early State
From 1946 to 1968, the legal relationship between the Philippine

government and its minority Muslims citizens was generally one of
tolerant indifference, with Christian politicians in Manila paying scant
attention to the need for legal hybridity in the southern Philippines, even
as Muslim Filipinos gained a growing self-consciousness of their own
religious affiliation and identity. 80 Economically, the central government
in Manila expanded its policy of Christian migration and multinational
corporate presence in the South, resettling hundreds of thousands of
Christians into Mindanao, dislocating Muslim farmers, and generally
marginalizing the voice of Muslim Filipinos. 81 For example, during the
period of American colonization, U.S. administrators had established a
Bureau of Non-Christian and Tribal Groups composed of elected leaders
from Philippine minority communities as a voice for their needs and
grievances. 82 Following establishment of the commonwealth in 1935,
the Philippine government disbanded the Bureau altogether. 83
Despite the governments integrationist policies, Muslim marital
rights continued to be honored. Among the laws passed following
independence was Republic Act No. 241, which extended an earlier
79
Brooke, supra note 66, at 114.
80
See MCKENNA, supra note 22, at 13237; ABUZA, supra note 22, at 33, 36.
81
See RING, supra note 36, at 406; MCKENNA, supra note 22, at 13637. The policy of
resettling Christians into the Muslim South began during the American colonial period.
See ABUZA, supra note 22, at 3536.
82
RING, supra note 36, at 406.
83
See id. at 406.
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marriage law formally exempting Mohammedans and pagans from

formal civil marriage requirements. 84 The 1949 law provided a twenty
year window in which marriages could be performed in accordance with
Muslim (or, for those without a religion, tribal) rites. 85 It also authorized
the President of the Philippines to require Muslims to conform to civil
marriage requirements before the expiration of the twenty year window
when the state of culture and civilization of the Mohammedan or pagan
inhabitants of said provinces shall warrant it. 86 A similar law provided
a twenty year window in which Muslim divorces (which otherwise were
prohibited under Philippine law) would be recognized. 87 Both measures
were patently paternalistic, focused on eventually integrating Muslim
Filipinos into the mainstream of Christian Filipino society rather than
recognizing their normative differences. 88
Eventually, the mounting tension between the two sides became
physical. A smattering of violent skirmishes in the 1960s between
Muslims and the Philippine military culminated in the 1968 Jabidah
Massacre, a watershed event in which 14 Muslim military service
members were summarily executed by Christian Filipino officers for
allegedly protesting the conditions of their training. 89 While the
details surrounding the event remain unclear, it coalesced Muslim
Filipinos into a separatist movement that eventually led to the formation
of the militant Moro National Liberation Front (MNLF), 90 an armed
guerilla group organized to liberate the Moro homeland. 91 In 1972,
President Ferdinand Marcos declared martial law, partly because of the
Muslim secessionist movement in the Philippine South. 92 Martial
84
Republic Act No. 241 (1949) (Phil.), available at http://www.chanrobles.com/
republicacts/republicactno241.html (last accessed Sep. 24, 2009).
85
Id. at 1.
86
Id. at 2.
87
See Republic Act No. 394 (1949) (Phil.), available at http://www.chanrobles.com/
republicacts/republicactno394.html (last accessed Sep. 25, 2009); Malang v. Modson
[2000] G.R. No. 119064 (Phil.), available at http://sc.judiciary.gov.ph/jurisprudence/
2000/aug2000/119064.htm (last accessed Sep. 19, 2009).
88
See MCKENNA, supra note 22, at 139, 142 (discussing anti-Muslim sentiment in
Philippine government post-independence policy). Some efforts were made to address
the growing grievances of the Muslim minority community, such as the creation of the
Commission on National Integration in 1957. See ABUZA, supra note 22, at 36.
89
See RING, supra note 36, at 406; MCKENNA, supra note 22, at 14041, ABUZA, supra
note 22, at 37.
90
See RING, supra note 36, at 406.
91
See MCKENNA, supra note 22, at 155; ABUZA, supra note 22, at 38.
92
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law only heightened the conflict, however, and by 1977 fighting in the
Southern Philippines had displaced as many as one million civilians. 93
D. The Tripoli Agreement
By 1976, the high number of civilian casualties, the aggregate

financial cost of the conflict to the Philippine government, and increasing
international pressure combined to bring the Philippine government and
the MNLF to the negotiating table. 94 In December 1976, members of
the government and the MNLF met in Libya (which had been supplying
weapons to the MNLF) to reach a cease fire agreement. 95 Among other
things, the Tripoli Agreement provided the general principles for
Muslim autonomy in the Philippine South 96 and authorized the
establishment of Islamic courts in Mindanao. 97 It also crystallized
Marcos earlier efforts to address the Moro problem by implementing
certain conciliatory reforms.
Among these reforms were an extension of the law recognizing
marriages performed in accordance with Muslim rites, 98 implementation
of the Southern Philippines Development Authority, establishment of the
Islamic Studies Center at the University of the Philippines, and
construction of a mosque in Manila. 99 Although the revised constitution
of 1973 did not contain any provisions specifically for the Muslim
minority, it was officially published in Arabic. 100 It also required the
state to consider the customs, traditions, beliefs, and interests of
national cultural communities in the formulation and implementation of
State policies. 101 Additionally, President Marcos created a Presidential
Task Force for the Reconstruction and Development of Mindanao, which
was tasked with drafting a code of Muslim Filipino law. 102 It was this
93
See id.
94
95
See MCKENNA, supra note 22, at 157, 167; RING, supra note 36, at 406.
96
MCKENNA, supra note 22, at 167 (internal quotation marks omitted) (internal citation
omitted).
97
98
See Malang v. Modson [2000] G.R. No. 119064 (Phil.), available at
http://sc.judiciary.gov.ph/jurisprudence/2000/aug2000/119064.htm (last accessed Sep.
19, 2009). Philippine civil law did not, however, sanction multiple marriages, even
among Muslims. Id.
99
100
PHIL. CONST. art. XV 3 (1973), available at http://www.chanrobles.com/
1973constitutionofthephilippines.htm (last accessed Sep. 25, 2009).
101
See id. at 1. See also BARA-ACAL, supra note 1, at 15.
102
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Muslim code, which would later become Presidential Decree 1083, the
Muslim Code of Personal Laws. 103
Unfortunately, the promise of political and legal autonomy in the
Tripoli Agreement failed to materialize, as discussions over
implementation broke down and the MNLF realized that Marcos had no
real intention of granting the Regional Autonomous Government the
autonomy promised in the accord. 104 Marcos did establish two
autonomous regions in the southern Philippines, but these were
essentially hollow, and productive of cynicism, frustration, and
resentment. 105 Thomas Mckenna has observed:
The governing bodies off the nominally autonomous

regions were cosmetic creations with no real legislative
authority and no independent operating budget. They
were headed by martial law collaborators and rebel
defectors, many of whom were datus and all of whom
were absent from the province more often than not,
usually in Manila pursuing separate careers or looking
after business interests. 106
As a result, sporadic fighting continued. The revolutionary movement,

however, had lost much of its momentum, and the MNLF soon splintered
into another, more fundamentalist separatist organization, the Moro
Islamic Liberation Front (MILF). 107 Throughout the remainder Marcos
tenure, the Muslim South looked very much the same after the Tripoli
Agreement as it had before the fighting began. 108 Still, the move toward
an official hybrid system had begun.
III. PRESIDENTIAL DECREE 1083 AND THE

MUSLIM CODE OF PERSONAL LAWS
In the preceding Part, I provided a historical perspective from which

to view President Marcos decision in 1977 to establish a separate code
of personal law for Muslim Filipinos. Because normative obligations
flow from personal and communal narratives, they are fundamentally
103
See id.
104
ABUZA, supra note 22, at 39.
105
MCKENNA, supra note 22, at 168 (internal quotation marks omitted) (internal citation
omitted).
106
Id.
107
See ABUZA, supra note 22, at 39; MCKENNA, supra note 22, at 170.
108
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historical, tethering present-day action to historical antecedent to create

legal hybridity. In the Philippines, it was the tendency of colonial and
early government policies to marginalize and devalue Muslim normative
obligations that led to four hundred years of armed conflict. Only when
this conflict threatened to destabilize the majority regime did Muslim
normative obligations garner formal expression in a hybrid legal system.
In this Part, I consider that hybrid legal system, beginning with
Presidential Decree 1083, the Muslim Code of Personal Laws. I then
review the structure of sharia courts in the Philippines. I also briefly
discuss the establishment in 1990 of the Autonomous Region in Muslim
Mindanao (ARMM) and its impact on legal hybridity in the Philippines.
A. Presidential Decree 1083
Presidential Decree 1083 (P.D. 1083) grew out of an effort by

President Marcos to conciliate Muslim Filipinos by providing a body of
Muslim law that acknowledged personal normative obligations without
seriously undermining Philippine civil law. 109 The foundation for P.D.
1083 had been laid during the Constitutional Convention of 1971, when
Muslim delegates were successful in inserting language requiring the
government to consider the customs and beliefs of national cultural
communities in implementing government policies. 110 That effort was
followed by a February 17, 1973 memorandum by Philippine Senator
Mamintal Tamno urging President Marcos to issue a decree recognizing
Muslim personal laws. 111 As previously noted, President Marcos
submitted the matter to a special task force, which, in 1974, produced a
draft Muslim code for the consideration of a Presidential Commission. 112
Although the Commission submitted a final draft of the proposed code to
President Marcos on August 29, 1975, it was not until February 4, 1977,
two months after signing the Tripoli Agreement, that President Marcos
finally signed P.D. 1083 into law. 113 For Philippine Muslims, the event
was one of profound significance. As one Muslim Filipino commentator
stated, The concern for the implementation of the Islamic way of
life . . . under the modern state apparatus has been, and will always be, a
109
Pres. Decree 1083 [1977] (Phil.), available at http://www.chanrobles.com/
PRESIDENTIAL%20DECREE%20NO.%201083.pdf (last accessed Oct. 9, 2009).
110
PHIL. CONST. art. XV 11 (1973), available at http://www.chanrobles.com/
1973constitutionofthephilippines.htm (last accessed Sep. 25, 2009).
111
112
See id. at 8.
113
See id.
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resuscitation of our status as Muslims; that is to say, in the state of

submission (Islam) to God Al Malik ul-Mulk. 114
P.D. 1083 is divided into five Books and generally covers six
substantive legal areas: (1) marriage, divorce, and parental authority;
(2) wills and estates; (3) establishment and structure of sharia courts;
(4) Muslim holidays; (5) transfer of real and personal property; and
(6) conversion to Islam. 115 P.D. 1083 also provides for the establishment
of a system of sharia courts 116 and an Office of Juriconsult in Islamic
Law. 117 While a full discussion of P.D. 1083 is beyond the scope of this
Article, three areasobjectives, jurisdiction, and conflict of lawsmerit
immediate attention because of their value in understanding P.D. 1083s
pluralist bent.
i. Objectives of Presidential Decree 1083
Section 2 of P.D. 1083 sets forth three general objectives: [T]his

Code: (a) Recognizes the legal system of the Muslims in the Philippines
as part of the law of the land and seeks to make Islamic institutions more
effective; (b) Codifies Muslim personal laws; and (c) Provides for an
effective administration and enforcement of Muslim personal laws
among Muslims. 118 The important point about these objectives is that
Muslim jurists have read them broadly to support a general regard for
Islamic tradition beyond mere personal law. Amer Bara-Acal observes:
[P.D. 1083] therefore actually does more than what its

name indicates, a point raised during the Code
Commissions deliberations but which failed to carry the
day. As a result of its recognition as part of the law of
the land, the Filipino Muslims entire legal system, not
just what are known as personal laws, must be observed,
114
Id.
115
Pres. Decree 1083 [1977] (Phil.). That P.D. 1083 limits the jurisdiction of sharia
courts to areas of personal law continues to disappoint some Muslim Filipino jurisists.
For example, Bara-Acal observes, Sadly to state, the administration and enforcement of
the entire Muslim legal system is lacking the needed administrative machineries to
perform justiciable functions. Only part of the Muslim legal systemwhat is known as
Muslim personal laws, has been given sustainable machinery to run itself . . . . BARA-
ACAL, supra note 1, at 17. P.D. 1083 does not include criminal laws, an omission
criticized by some Muslim leaders. See 2008 REPORT ON INTERNATIONAL RELIGIOUS
FREEDOMPHILIPPINES, U.S. DEPT OF STATE (2008), available at http://www.state.gov/
g/drl/rls/irf/2008/108421.htm (last accessed Oct. 2, 2009).
116
Pres. Decree 1083 art. 137.
117
Id., art. 164.
118
Id., art 2.
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whenever and wherever it may apply, throughout the

country and may now be enforced, like other Philippine
laws, with the full sanction of the State. 119
This argument is additionally supported by P.D. 1083s incorporation of

Muslim law generally. For example, Article 4 requires sharia courts
construing P.D. 1083 and other Muslim law to take into consideration
the primary sources of Muslim law. 120 Two points are immediately
obvious. First, that sharia courts may consider other Muslim law
(principally found in the Quran and Hadith) not embodied in P.D.
1083. 121 Second, that in construing such law, sharia courts will draw
from the standard works of Islamic jurisprudence, which are to be be
given persuasive weight in the interpretation of Muslim law. 122 From a
practical standpoint, Article 4 thus extends the legal reach of P.D. 1083
far beyond its textual prescriptions, incorporating the teachings of the
Quran, the Hadith, and their historic interpretive texts. If accurate, this
means that Muslim law in the Philippines is bounded not by the positive
rules articulated in P.D. 1083, but only by the points at which it conflicts
with the Philippine civil legal regime. 123 As discussed in Part IV below,
Philippine courts have generally concurred with this broad reading, an
indication of the Philippine judiciarys willingness to apply pluralist
principles to the mechanisms of hybridity adopted in P.D. 1083. 124
119
120
Pres. Decree 1083 art. 4(1). Additionally, Article 5 of P.D.. 1083 provides that
Muslim law and ada [customary law] not embodied in this Code shall be proven in
evidence as fact, thus making it clear that sharia courts may apply Muslim law beyond
that expressly captured in P.D. 1083. Pres. Decree 1083 art. 5. In this sense, Muslim law
and customary law function in ways not wholly dissimilar to English common law.
Moreover, [i]f the law is silent, obscure or insufficient, the judge is free to apply any
rule which is in harmony with the Philippine Constitution, the Code, public order, public
policy, public interest and morals, to include customs, decisions of foreign courts on
similar issues, opinions of persons of high authority, and rules of statutory construction.
121
Pres. Decree 1083 art. 7(h) [1977] (Phil.).
122
Id., art. 4(2). Bara-Acal observes that Muslim Filipino jurists apply the Sunni school
of law, which principally is composed of four sub-schools: Hanafi, Maliki, Shafii, and
Habali. The presumption is in favor of the Shafii school. BARA-ACAL, supra note 1, at
22.
123
Even then, Muslim law may prevail. Article 5 of P.D. 1083, Proof of Muslim Law
and Ada, states, Muslim law and ada not embodied in this Code shall be proven in
evidence as a fact. No ada which is contrary to the Constitution of the Philippines, this
Code, Muslim law, public order, public policy or public interest shall be given any legal
effect. Pres. Decree 1083 art. 5. The absence of Muslim law from the second sentence
indicates it may be given effect even when in conflict with the civil legal regime.
124
See infra Part IV.
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ii. Jurisdiction and Presidential Decree 1083
In addition to its far-reaching objectives, P.D. 1083 establishes

personal jurisdiction boundaries that include Muslims and, in some
cases, non-Muslims as well. Article 3 of P.D. 1083 states: The
provisions of this Code shall be applicable only to Muslims and nothing
herein shall be construed to operate to the prejudice of a non-Muslim. 125
At first blush, this language seems to provide a blanket exclusion for
non-Muslims. However, P.D. 1083 authorizes sharia courts to exercise
subject matter jurisdiction over Muslim marriages in which only the male
is Muslim, so long as the marriage is solemnized in accordance with
Muslim law or this Code in any part of the Philippines. 126 Two things
are particularly interesting about this language. First, a non-Muslim
woman may be subject to personal jurisdiction in sharia court if she has
married a Muslim man in the Philippines in accordance with Muslim
rites. Presumably, the authority for exercising jurisdiction over the
marriage is grounded in the womans decision to marry according to
Muslim law, thereby submitting herself to the subsequent jurisdiction of
sharia courts on issues regarding marriage, divorce, and children.
Second, the language requires that the marriage be solemnized in
accordance with either Muslim law or this Code, thus recognizing, as
noted above, that Muslim law exists wholly independent from P.D.
1083. 127 P.D. 1083 operates as a codex of certain personal laws within
the Philippine civil legal regime, but does not appear to preempt Muslim
law in other or overlapping areas.
P.D. 1083 also authorizes areas of both exclusive and concurrent
subject matter jurisdiction. 128 Within sharia courts exclusive
jurisdiction are cases involving Muslim marriage, divorce, child custody,
guardianship, legitimacy, distribution of communal property, probate of
wills, and actions arising from customary contracts between Muslims
which otherwise do not contain a choice of law provision. 129 Sharia
courts share concurrent original jurisdiction with civil courts in cases
125
Pres. Decree 1083 art. 3(3).
126
Pres. Decree 1083 art. 13(1) [1977] (Phil.). See also BARA-ACAL, supra note 1, at
1718 (Nevertheless, whenever appropriate, the provisions of the Muslim Code shall
apply to even non-Muslims. For example, a non-Muslim married to a Muslim male has
to be governed by the Muslim law.).
127
Section 13 of Article 13 similarly states the requirements of marriage and divorce
shall be governed by this Code and other applicable Muslim laws. Pres. Decree 1083
art. 13(e) (emphasis added).
128
Id., art. 134.
129
Id., art. 134(1).
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involving petitions by Muslims for the constitution of a family home,

change of name and commitment of an insane person to an asylum[,]
personal and real customary contracts wherein the parties involved are
Muslims except those for forcible entry and unlawful detainer, and
[a]ll special civil actions for interpleader or declaratory relief wherein
the parties are Muslims or the property involved belongs exclusively to
Muslims. 130
By virtue of these jurisdictional provisions, litigants may find
themselves in sharia court even when they would prefer to be in civil
court. The purpose of mandatory jurisdiction is relatively
straightforward: if jurisdiction were based solely on consent, Muslim
litigants invariably would engage in forum-shopping, only consenting in
sharia court jurisdiction when it favored them. For this reason, even
Muslims who are married in accordance with civil rather than religious
rites may be hailed into sharia court. To provide otherwise would, in
the words of one commentator, allow Muslims to make a mockery of
the law by avoiding its application to them on simple expedient of having
their marriage solemnized not in accordance with Muslim rites . . . . 131
From a pluralist perspective, sharia law in the Philippines is not merely
an optional forum in which disputes can be resolved. It is a separate law
that, when applicable, carries the full force of the state.
iii. Conflict of Laws and Presidential Decree 1083
The drafters of P.D. 1083 understood its provisions would invariably

conflict with those of the civil legal regime. 132 Two clear examples are
polygamy and divorce, which Muslim law allows but the civil and
criminal codes of the Philippines prevent. 133 P.D. 1083 addresses this
conflict in two ways. First, it establishes a preferential scheme that
distinguishes between Muslim laws, general laws, and special and local
laws. Article 3 states: In case of conflict between any provision of this
Code and laws of general application, the former shall
130
Id., art. 134(2). In the case of concurrent jurisdiction, the proper court is where [the
action] was first filed to the exclusion of others. BARA-ACAL, supra note 1, at 26.
131
BARA-ACAL, supra note 1, at 27. For additional discussion of personal jurisdiction,
See infra text accompanying notes 20316 (discussing whether someone who has
renounced Islam may still subject to Muslim law).
132
See BARA-ACAL, supra note 1, at 17 (discussing conflict of laws under P.D. 1083);
see also infra text accompanying note 177 (discussing the Organic Act of 1989 which
also addressed conflict between national law and Muslim law).
133
See Miller, supra note 22, at 18687 (comparing Family Code prohibition on divorce
with Muslim law); BARA-ACAL, supra note 1, at 68 (comparing criminal law prohibition
of bigamy with Muslim law).
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prevail. . . . Should the conflict be between any provision of this Code

and special laws or laws of local application, the latter shall be liberally
construed in order to carry out the former. Article 187 provides
additional clarification: The Civil Code of the Philippines, the Rules of
Court and other existing laws, insofar as they are not inconsistent with
the provisions of this Code, shall be applied suppletorily. 134 Second, at
least with respect to polygamy, P.D. 1083 specifically provides a
religious-based exemption to prosecution under the criminal code.
Under Article 180, the provisions of the Revised Penal Code relative to
the crime of bigamy shall not apply to a person married under Muslim
law. 135
The significance of the conflict of law provisions in P.D. 1083 is the
commitment they reflect by the drafters to not merely toleratebut to
actually recognizethe competing normative values held by Muslim
Filipinos. As discussed in Part IV.A. below, the Philippine government
conceded a portion of its normative territory through a dialectical
discourse that distinguished sovereigntist normative imperatives from
soverightist normative interests. In doing so, the government created
room within its shared social space for competing normative expressions,
managing rather than unilaterally extinguishing normative conflict.
C. The Sharia Court System
In addition to codifying certain Muslim laws, P.D. 1083 establishes a

sharia court system of 51 circuit (lower) courts and five district (upper)
courts under the administrative supervision of the Philippine Supreme
Court. 136 The circuit courts have limited subject matter jurisdiction,
134
Pres. Decree 1083 art. 187 [1977] (Phil.).
135
Id., art. 180.
136
Id., art. 137. Since P.D. 1083 took effect, provisions have also been made for a
sharia appellate court, although they are functionally nonexistent. See infra text
accompanying notes 175, 186 (discussing creation of appellate courts in 1989); see also
BARA-ACAL, supra note 1, at 8 (discussion provision for sharia appellate courts in
Organic Act of 1989 but noting this appellate court is up to now not yet organized, nay,
not even any positive attempt was made to do so). As a result, appeals from the sharia
district court are taken directly to the Supreme Court through a special civil action or
petition for certiorari. See 2008 ANNUAL REPORT, SUPREME COURT OF THE PHILIPPINES, at
73 (2008), available at http://sc.judiciary.gov.ph/publications/reports/SC_Annual_08.pdf
(last accessed Sep. 26, 2009) [hereinafter 2008 SUPREME COURT REPORT]; In the Matter
of Petition to Authorize Sharia'h District Court Judges to Appoint Shari'a Lawyers as
Notaries Public, Atty. Royo M. Gampong, Petitioner, Bar Matter No. 702 [1994] (Phil).
available at http://www.lawphil.net/courts/bm/bm_702_1994.html (last accessed Oct. 2,
2009) (discussing distinction between civil and sharia courts and process for review by
Supreme Court).
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mostly confined to marriage, divorce, and disposition of communal

property. 137 The district courts hear all other cases, including appeals
from the circuit courts. 138 Although the circuit and district courts are
geographically configured in the southern Philippines, [a]ll actions
involving Filipino Muslims under the Muslim Code are triable before the
Sharia District/Circuit Courts, regardless of the place of abode or
location of the subject of litigation anywhere in the Philippines. 139 All
sharia court judges must be appointed by the President of the
Philippines. 140 District court judges must also be a member of the
Integrated Bar of the Philippines and learned in Islamic law and
jurisprudence. 141 Circuit court judges need not be a member of the
Integrated Bar, but must be a natural-born citizen of the Philippines, at
least twenty-five years of age, and [have] passed an examination in the
Shari'a and Islamic jurisprudence (fiqh) to be given by the Supreme
Court for admission to special membership in the Philippine Bar to
practice in the Sharia Courts. 142
Although sharia courts were provided for in P.D. 1083, they were
not officially established until near the end of the Marcos administration.
In accordance with Article 140 of P.D. 1083, the Philippine Supreme
Court organized the first Sharia Bar Examination in 1983, which
initially only 14 out of more than one hundred applicants successfully
passed. 143 Two years later, the sharia courts were officially organized
and the first sharia judges were appointed. 144
Unfortunately, both the effectiveness and legitimacy of the sharia
courts remain in question. Nearly 100 million people live in the
Philippines, of which five million are Muslim. 145 Yet, like civil
Philippine courts generally, the sharia court system faces shortfalls in
both staffing and funding. Of the 2,290 judicial positions authorized in
the Philippines, only 56 (or 2.5%) are slotted for positions in sharia
courts. 146 All five of the district court judgeships are currently vacant,
137
Pres. Decree 1083 art. 155.
138
Id., art. 13444.
139
140
Pres. Decree 1083 art. 139, 151 [1977] (Phil.).
141
Id., art. 140.
142
Id., art. 152.
143
See BARA-ACAL, supra note 1, at iii.
144
See BARA-ACAL, supra note 1, at iii; PHILIPPINES COUNTRY PROFILE, supra note 31,
at 20.
145
CIA WORLD FACTBOOKPHILIPPINES (2009), available at https://www.cia.gov/
library/publications/the-world-factbook/geos/countrytemplate_rp.html (last accessed Sep.
19, 2009).
146
2008 SUPREME COURT REPORT, supra note 136, at 61.
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and 18 of the circuit court judgeships are vacant. 147 Part of the problem
may lie in the low pass rate for the sharia bar. During the 11th Special
Bar Examination for the Sharia Courts held on November 9 and 16,
2008, 133 candidates sat for the examination but only 35 passed. 148
Although these figures are a slight improvement over the initial pass rate
in 1983, they indicate the Supreme Court still has much work to do in
training Islamic jurists who are learned in Islamic law and
jurisprudence. 149 Additionally, the caseflow in the sharia courts is a
trickle to that of the civil courts. In 2008, 333,597 new cases were filed
in the lower Philippine courts (which includes sharia district and circuit
courts). 150 Of these, only 263 originated in the sharia courts. 151 At the
end of 2008, the docket of current and prior year active cases in the
sharia system was 404 cases, a fragment of the 642,649 pending cases
for all lower courts combined. 152
Moreover, not all Muslims accept the legitimacy of the sharia
courts. McKenna notes that the MILF, which splintered off the MNLF
and continues to actively oppose the Philippine governments assertion
of authority, labeled one of the sharia courts on Mindanao a fake
Islamic court . . . . 153 McKenna found in his research that this
particular sharia court, located in Cotabato, was little used by the
Cotabato Muslims . . . . 154 Of course, it is the MILF which has been
accused of bypassing the sharia courts altogether and applying their own
version of Islamic law, including capital punishment. 155 This points to
another problem for both civil and sharia judges: safety. In its 2008
Annual Report, the Supreme Court of the Philippines highlighted the fact
that its capital outlays had increased 239.85% over the prior year. 156
The increase is attributed to provision of guns and ammunition in
support of the Judiciary Protection Program and as part of security
measures to counter threats on the lives of justices, judges and other
personnel . . . . 157 Sadly, the threat to judges is real. Since 1999, 17
147
Id. at 35.
148
See James C. Bitanga, Successful Sharia Bar Candidates Take Their Oath,
BENCHMARK ONLINE (2009), available at http://sc.judiciary.gov.ph/publications/
benchmark/2009/06/060917.php (last accessed Sep. 19, 2009).
149
150
See 2008 SUPREME COURT REPORT, supra note 136, at 35.
151
Id.
152
Id.
153
154
Id.
155
Id. at 22530.
156
2008 SUPREME COURT REPORT, supra note 136, at 31.
157
Id.
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judges have been killed in the Philippines, 158 including a sharia court
judge who was shot dead by unidentified gunmen in Sulu in September
2009. 159
In an effort to strengthen the sharia court system, Senator Loren
Legarda introduced a bill in November 2008 to amend P.D 1083 to
increase the number of sharia district courts from five to 11 and the
number of sharia circuit courts from 51 to 88. 160 Importantly the bill
recognized that while sharia courts are statutorily located in the southern
Philippines, significant populations of Muslims live elsewhere, including
the Visayas, Luzon, and Metro Manila. 161 The bill therefore provided for
the establishment of sharia courts in these areas as well. 162 As of the
time of this writing, final action had not yet been taken on the bill.
D. The Autonomous Region in Muslim Mindanao
In 1983, Senator Benigno Aquino was assassinated. 163 Aquino, a

popular Christian senator who had been strongly supportive of Muslim
aspirations for self-determination, 164 was the first to inform the
Philippine Senate in 1968 about the Jabidah Massacre. 165 He also met
with MNLF leadership in Damascus in 1981 for a series of peace talks
following the Marcos administrations failure to fully implement the
Tripoli Agreement. 166 Aquinos assassination proved a destabilizing
force for the Marcos administration and, in 1986, Marcos fled the
country after trying to steal the presidential election from Aquinos
widow, Corazon Aquino. 167 The so-called People Power Coup not
only ushered Corazon Aquino into the presidency, it also kindled the
hopes of Filipino Muslims waiting for the Tripoli Agreement to be fully
implemented. 168
158
See Jay B. Rempillo, PhP1Million Reward for Informants, Witnesses in Judges
Killings; Security Training for Judges Continues, COURT NEWS FLASH, PHIL. S. CT. (Dec.
2008), available at http://sc.judiciary.gov.ph/news/courtnews%20flash/2008/12/
12110801.php (last accessed Sep. 26, 2009).
159
See Abigail Kwok, Shariah Court Judge in Sulu Shot Dead, INQUIRER.NET (Sep. 17,
2009), available at http://newsinfo.inquirer.net/breakingnews/regions/view/20090917-
225655/Shariah-court-judge-in-Sulu-shot-dead (last accessed Sep. 25, 2009).
160
S. Bill No. 2863 [2008] (Phil) (on file with author).
161
Id., Explanatory Note.
162
Id. at 13.
163
164
Id. at 235.
165
See id. at 140.
166
See id. at 242.
167
See id. at 236.
168
See id. at 235.
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Among the Aquino administrations first initiatives was a revised

constitution, one which, among other things, provided for the creation of
an autonomous Muslim region. 169 Article X of the 1987 Constitution
states:
There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage,
economic and social structures, and other relevant
characteristics within the framework of this Constitution
and the national sovereignty as well as territorial
integrity of the Republic of the Philippines. 170
For each autonomous region, the new Constitution also required the
Philippine Congress to enact an organic act that (a) defined the structure
of the autonomous regions executive and legislative branches, and (b)
provided for special courts with personal, family, and property law
jurisdiction consistent with the provisions of this Constitution and
national laws. 171
Accordingly, on August 1, 1989, the Congress passed Republic Act
No. 6734, the Organic Act for the Autonomous Region in Muslim
Mindanao (Organic Act). 172 The Organic Act authorized 13 provinces
and nine cities in the southern Philippines to hold a special plebiscite to
determine whether they wanted to be part of the ARMM. 173 The Act
also provided for significant executive and legislative autonomy,
although it clearly stated the ARMM shall remain an integral and
inseparable part of the national territory of the Republic of the
Philippines as defined by the Constitution and existing laws. 174 Further,
the Organic Act created a Sharia Appellate Court, 175 established a
system of tribal (non-religious) courts, 176 and clarified that [i]n case of
169
See id. at 14546.
170
PHIL. CONST. art. X 15 (1987), available at http://www.chanrobles.com/
philsupremelaw2.html (last accessed Sep. 28, 2009).
171
Id. at 18. See also BARA-ACAL, supra note 1, at 8.
172
Republic Act No. 6734 [1989] (Phil.), available at http://www.chanrobles.com/
republicactno6734.html (last accessed Sep. 28, 2009).
173
Id., art. II 1(2).
174
Id., art III 1.
175
Id., art. IX 312.
176
Id., art. IX 14.
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conflict between the Muslim Code and the Tribal Code, the national law
shall apply. 177
Most commentators concede that, for various reasons, the ARMM
has fallen short of its full potential. During the plebiscite in November
1989, only four provincesSulu, Tawi-Tawi, Maguindanao, and Lanao
del Survoted to join the ARMM. 178 In 2001, Republic Act No. 9054
authorized another plebiscite, 179 but only the island of Basilan (with the
exception of Isabela City) and Marawi City on Mindanao reversed their
earlier decision and joined the ARMM. 180 Despite receiving some 27
billion pesos from the Philippine government and millions of dollars
from foreign sources, the ARMM continues to struggle economically.
One commentator observed in 2003 that [t]he region is as impoverished
and strife-torn as it was in 1996, and remains the poorest in the
region. 181 Part of the blame arguably lies with Muslim leaders, who
have squandered ARMM monies, failed to attract foreign investment,
and engaged in internal disagreement and rivalries. 182 Additionally,
active fighting in the region has continued, with the MILF, communist
rebels, and other separatist groups attacking both civilian and military
targets. 183 Critics note, however, that the national government also shares
part of the blame. ARMM leaders criticize the government for failing,
yet again, to grant the full autonomy promised. 184 Further, [d]espite
autonomy, the ARMM still remits 60 percent of its revenue to the
central government and in turn gets only 10 percent back. 185 Also, as
previously discussed, the sharia courts face significant challenges. The
Sharia Appellate Court provided for in the Organic Act has yet to be
established, 186 numerous judicial vacancies exist in the district and
177
Republic Act No. 6734, art. IX 17(2) [1989] (Phil.).
178
See ABUZA, supra note 22, at 41; MCKENNA, supra note 22, at 334 n. 24. As a result,
the ARMM includes 12,000 square kilometers, roughly 4 percent of Philippine
territory. ABUZA, supra note 22, at 41.
179
Republic Act No. 9054, art. 1 [2001] (Phil.), available at http://www.chanrobles.
com/republicactno9054.html (last accessed Sep. 28, 2009).
180
ARMM History and Organization, GMANEWS.TV, available at http://www.
gmanews.tv/story/112847/ARMM-history-and-organization (last accessed Sep. 28,
20009).
181
182
See id. at 42.
183
See id.
184
See id. at 43.
185
See id.
186
2008 SUPREME COURT REPORT, supra note 136, at 73. In its 2008 Annual Report, the
Supreme Court noted, in discussing the sharia circuit courts, [t]heir decisions are
appealable to the Sharia Appellate Court, which . . . is yet to be organized. Id.
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circuit courts, 187 the docket indicates the courts are less than fully
utilized, 188 and even some Muslims question the sharia courts
legitimacy. 189
IV. TOWARD A PLURALIST RESOLUTION OF CONFLICT
In 1973, Justice J.B.L. Reyes, the first president of the Integrated

Bar of the Philippines and retired Associate Justice of the Philippine
Supreme Court, commented on the need for a pluralistic approach to
legal hybridity in the Philippines. Speaking of the legal problems then
confronting the country, he noted:
One of them, apparently neglected up to, is the need for

a thorough study of the legal rules of Islamic law, as
applied and observed by their own judges and jurists. A
thoughtful contrast thereof with our own basic tenets
could delineate the areas where Islamic law may be left
to govern those professing Muslim faith without
endangering national unity, thus effectively answering
the claim of our brothers from the South that they are a
[sic] discriminated against by a general application of
jural rules of Christian origin. The experience of
countries with large Moslem minorities, like the
Lebanese Republic, deserves careful observation, for we
may derive from them lessons in legal co-existence that
may contribute to the pacification of certain regions in
Mindanao. 190
Similarly, in 2008, Senator Loren Legarda commented, in his

Explanatory Note to Senate Bill No. 2863, that the Muslim Code of
Personal Laws demonstrated an inkling toward a pluralistic approach to
laws of personal application. 191 It may be tempting to superimpose a
normative notion of fundamental fairness on the Philippine governments
embrace of pluralism, and, indeed, a sense of normative equivalency may
have motivated some actors, but as the preceding history indicates,
pragmatism appears to have been the central driving force. In referring
187
Id. at 61.
188
Id. at 35-36.
189
See supra text accompanying note 153.
190
BARA-ACAL, supra note 1, at 11 (quoting J.B.L. Reyes, INTEGRATED BAR JOURNAL,
Vol. I., No. 1 (1973)).
191
S. Bill No. 2863, Explanatory Note [2008] (Phil) (on file with author).
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to the pacification of certain regions in Mindanao, Justice Reyes

underscored the Philippine governments overarching motivation in
striving for structured legal hybridity: a resolution of the ongoing
conflict in the southern Philippines. 192
In this Part, I review the Philippine governments approach to
pluralism in light of four mechanisms for managing legal hybridity
identified by Paul Schiff Berman in Global Legal Pluralism: dialectical
discourse, margins of appreciation, jurisdictional redundancy, and
limited autonomy regimes. Using the 1987 Constitution, P.D. 1083, and
the case of Bondagjy v. Bondagy 193 as backdrops, I discuss how the
Philippine government has employed a range of pluralistic mechanisms
in an effort to reduce normative conflict and recognize the normative
needs of Muslim Filipinos. I conclude by suggesting that the Philippine
governments approach ambulates toward the possible benefits of
pluralism, but a good deal of work remains.
A. Dialectical Discourse
From a pluralist perspective, dialectical discourse involves a

continuing conversation between normative communities which is
neither the direct hierarchical review traditionally undertaken by
appellate courts, nor simply the dialogue that often occurs under the
doctrine of comity. 194 Rather, competing communities, despite
retaining normative independence, practice mutual accommodation by
allowing the norms of the other to influence their own normative
interpretations. Two examples put forward by Berman in Global Legal
Pluralism illustrate the point. First, at the supranational level, the
European Court of Human Rights (ECHR) serves in principle as the
arbiter of European human rights for European constitutional courts. 195
Although state courts may decline to follow the ECHR, citing
constitutional independence, they nevertheless account for and integrate
ECHR rulings in relevant domestic decisions. The picture that emerges
is one in which domestic courts and the ECHR engage in a series of both
formal and interpretive mutual accommodation strategies to maintain a
balance between uniformity and dissension. 196 At the subnational level,
192
BARA-ACAL, supra note 1, at 11 (quoting J.B.L. Reyes, INTEGRATED BAR JOURNAL,
Vol. I., No. 1 (1973)).
193
G.R. No. 140817 [2001] (Phil.), available at http://sc.judiciary.gov.ph/jurisprudence/
2001/dec2001/140817.htm (last accessed Oct. 9, 2009).
194
195
Id. at 1198.
196
Id. at 1199.
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Berman considers the approach of Canada, where the Canadian

Constitution explicitly contemplates a dialectical interaction between
national courts and provincial legislatures concerning constitutional
interpretation. 197 Section 33 of the Canadian Charter of Rights and
Freedoms contains a clause permitting the legislature to authorize a laws
continuing operation for a limited period after the law has been struck
down by a court. 198 Though rarely invoked, Berman theorizes Section 33
may nevertheless have a disciplining effect on the court and may
encourage[ ] a more nuanced iterative process in working out
constitutional norms. 199
Similarly, both the Philippine Constitution and P.D. 1083 require
policy makers to engage in a dialectical discourse that considers the
normative needs of Muslim Filipinos. Section 17 of Article XIV of the
Constitution provides: The State shall recognize, respect, and protect
the rights of indigenous cultural communities to preserve and develop
their cultures, traditions, and institutions. It shall consider these rights in
the formulation of national plans and policies. 200 Referring to National
Cultural Communities, P.D. 1083 dictates that the State shall consider
their customs, traditions, beliefs and interests in the formulation and
implementation of its policies. 201 While not mandating specific
policies, these documents establish a dialectical structure which
reinforces pluralist principles, encouraging both lawmakers and courts to
incorporate pluralistic considerations into the decision-making
process. 202
The Philippine Supreme Court is also a participant in this dialectical
process. For example, in Bondagjy v. Bondagjy the Philippine Supreme
Court considered whether a woman who had converted from Catholicism
to Islam, married a Muslim man, and then converted back to Catholicism
after having children was subject to Muslim law regarding parental
fitness. 203 In late 1997, Sabrina Artadi converted from Catholicism to
Islam. Four months later she married Fouzi Bondagjy in Muslim rites in
Manila. The couple soon moved to Saudi Arabia, had two children, and
eventually moved back to Manila. In 1995 they separated, and, in 1996,
197
Id.
198
See id.
199
Id.
200
PHIL. CONST. art. XIV 17 (1987), available at http://www.chanrobles.com/
philsupremelaw2.html (last accessed Oct. 1, 2009).
201
Pres. Decree 1083, Preamble [1977] (Phil.).
202
Sections 15 and 16 of Article XIII similarly establish mechanisms for dialectical
interaction with informal subnational peoples organizations. See PHIL. CONST. art. XIII
1516 (1987).
203
G.R. No. 140817 [2001] (Phil.).
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Ms. Artadi had the children baptized as Christians. Prior to their

baptism, Mr. Bondagjy filed an action in the sharia district court in
Marawi City, Mindanao seeking custody of his children. 204 Ms. Artadi
filed a motion to dismiss for lack of jurisdiction, arguing both she and
her estranged husband were residents of Manila. In the alternative, she
requested a change of venue to the sharia court in Zamboanga City,
which also is on the island of Mindanao but was more accessible by
plane. 205 The Marawi City sharia court retained jurisdiction but
approved the transfer of venue. The Zamboanga City sharia court then
entertained a number of procedural motions over the next several months
while Ms. Artadi filed a parallel action in civil court in Metro Manila
seeking nullity of marriage, custody, and support . . . . 206 The civil
court eventually issued an order to maintain the status quo until further
orders from [the civil] court. 207 Meanwhile, the sharia court also
issued an order to allow [Mr. Bondagjy] to exercise his right of parental
authority over [the] minor children . . . in accordance with article 71, of
P.D. 1083, the Code of Muslim Personal Laws. 208
Three years later in 1999, with the children still in Ms. Artadis
custody, Ms. Artadi filed another motion with the sharia court to dismiss
for lack of jurisdiction, arguing that P.D. 1083 applied only to Muslims
and she now was a Christian. 209 Mr. Bondagjy opposed the motion,
presented ex parte evidence of his wifes unfitness as a parent, and
eventually was awarded custody of his children by the sharia court.210
The evidence against Ms. Artadi included allegations that she was seen
with different men at odd hours in Manila, would wear short skirts,
sleeveless blouses, and bathing suits, and would let their children
sweep the neighbors house for a fee of P40.00 after the children come
home from school. 211 Mr. Bondagjy also claimed she made it difficult
for him to see his children. In awarding Mr. Bondagjy custody of the
children, the sharia court stated:
204
Mr. Bondagjy, who was a resident of Manila on the island of Luzon, appears to have
filed in Marawi City on the island of Mindanao because of the lack of sharia courts on
Luzon. See G.R. No. 140817. For a discussion of Senator Loren Legardas effort to
serve the Muslim population in Metro Manila by establishing sharia courts there, see
supra text accompanying notes 16062.
205
G.R. No. 140817.
206
Id.
207
Id.
208
Bondagjy v. Bondagjy, G.R. No. 140817 [2001] (Phil.).
209
Id.
210
Id.
211
Id.
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A married woman, and a mother to growing children,

should live a life that the community in which she lives
considers morally upright, and in a manner that her
growing minor children will not be socially and morally
affected and prejudiced. It is sad to note that respondent
[Ms. Artadi] has failed to observe that which is expected
of a married woman and a mother by the society in
which she lives. The evidence of this case shows the
extent of the moral depravity of the respondent, and the
kind of concern for the welfare of her minor children
which on the basis thereof this Court finds respondent
unfit with the custody of her minor children. . . . Under
the general principles of Muslim law, the Muslim
mother may be legally disentitled to the custody of her
minor children by reason of wickedness when such
wickedness is injurious to the mind of the child, such as
when she engages in zina (illicit sexual relations); or
when she is unworthy as a mother; and, a woman is not
worthy to be trusted with the custody of the child who is
continually going out and leaving the child hungry. 212
Following the sharia courts decision, Ms. Artadi filed an appeal with
the Philippine Supreme Court. 213
The line of reasoning adopted by the Supreme Court in settling the
matter is instructive on the issue of dialectical discourse. Although the
Court could have simply overturned the sharia courts holding on the
jurisdictional basis that Ms. Artadi was no longer a Muslim, it instead
adopted a deferential approach that attempted to accommodate both
Christian and Muslim normative interests. With respect to Ms. Artadis
parental fitness, the Court found that the evidence presented by [Mr.
Bondagjy] was not sufficient to establish [Ms. Artadis] unfitness
according to Muslim law or the Family [Civil] Code. 214 Although the
Court then applied the Family Codes standard for parental fitness
because Ms. Artadi was no longer a Muslim, it softened its reasoning by
stating: Indeed, what determines the fitness of any parent is the ability
to see to the physical, educational, social and moral welfare of the
children . . . . 215 Importantly, the Court refrained from commenting,
212
Id.
213
214
Id. (emphasis added).
215
Id. (emphasis added).
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either negatively or positively, on the sharia judges finding of Ms.

Artadis moral depravity under Muslim law.
Similarly, the Court adopted a hybrid approach in dividing custody
between the parents, drawing on both the Family Code and P.D. 1083 as
it applied a variation of the best interests of the child test:
The welfare of the minors is the controlling

consideration in this case. . . . Article 211 of the Family
Code provides that the father and mother shall jointly
exercise parental authority over the persons of their
common children. Similarly, P.D. 1083 is clear that
where the parents are not divorced or legally separated,
the father and mother shall jointly exercise just and
reasonable parental authority and fulfill their
responsibility over their legitimate children.
Noting that it did not doubt the capacity and love of both parties for
their children, such that they both want to have them in their custody,
the Supreme Court awarded primary physical custody to Ms. Artadi with
weekly visitation by Mr. Bondagjy. 216
Of course, its consideration of P.D. 1083 notwithstanding, it could be
argued that the Court actually disregarded the normative values
expressed by the sharia judge regarding what is and is not appropriate
moral conduct for a Muslim mother, cloaking a sovereigntist outcome in
pluralistic language. Two counterbalancing points merit consideration.
First, by at least discussing P.D. 1083, the Court rejected normative
hegemony in favor of a dialectical methodology which, in and of itself,
presupposes acceptance of certain values. 217 If the Courts only
concern were in reaching a certain normative outcome, it could have
chosen to disregard the dialectic altogether. Instead, it conducted an
overlapping discussion of both the Family Code and P.D. 1083, thereby
indicating its acceptance of the principles underlying the values of
pluralism itself. 218 Second, it should be remembered that a pluralist
approach to legal hybridity does not mandate a particular normative
outcome, or require participants to suppress their own normative beliefs.
As Berman states, the claim is only that the independent values of
pluralism should always be factored into the analysis, not that they
216
Id.
217
Berman, supra note 2, at 1193 (quoting Chantal Mouffe, THE DEMOCRATIC PARADOX
168 (2000)) (internal quotation marks omitted).
218
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should never be trumped by other considerations. 219 In Bondagjy, the

Supreme Court acknowledged that Christians and Muslims share the
same social space, engaged in equivalent discussions of both the Family
Code and the Muslim Code (even though it ultimately found the Family
Code more applicable because Ms. Artadi was no longer a Muslim), and
sought to reach a normative outcome that embraced the values (if not the
desired ends) of both normative communities.
B. Margins of Appreciation
The margins of appreciation doctrine acknowledges the need for a

hierarchal legal supervisor (such as an appellate court or supranational
judicial panel) to retain oversight authority while providing space for
local variation in implementing supervisory norms. 220 Within the
context of pluralism, it encourages legal hybridity by allowing
subordinate jurists to adapt governing norms to local custom, and
allowing legal supervisors to give deference to local adaptations which
are not fundamentally incompatible with the overarching scheme. 221 As
an example, the ECHR employs the margins of appreciation doctrine to
strike a balance between deference to national courts and legislators on
the one hand, and maintaining European supervision that empower[s
the ECHR] to give the final ruling on whether a challenged practice is
compatible with the Convention, on the other. 222 The width of the
margin depends on multivalent factors, such as the degree of local
consensus over the contested norm. 223 Among other things, the doctrine
encourages legal supervisors to move forward incrementally, waiting for
consensus to build before issuing definitive normative prescriptions. 224
It thus encourages legal subordinates to function as a kind of normative
laboratory, creating novel local approaches to legal hybridity during
periods of transition.
In the Philippines, elements of the margins of appreciation doctrine
are embodied in both the 1987 Constitution and P.D. 1083 which, as
previously discussed, require the government to consider the rights of
indigenous communities in formulating and implementing national
219
220
See Berman, supra note 2, at 1201; see also Laurence R. Helfer & Anne-Marie
Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273,
31617 (1997) (discussing margins of appreciation in context of supranational hybridity).
221
See Helfer, supra note 220, at 316.
222
Berman, supra note 2, at 1201 (quoting Sunday Times v. United Kingdom, 30 Eur.
Ct. H.R. (ser. A) at 36 (1979)).
223
See Berman, supra note 2, at 1201.
224
See id.
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policies. 225 Within the judicial branch, these mechanisms arguably

encourage the Supreme Court to give latitude to sharia courts in
adapting national norms to local custom and practice. Though less
visible than dialectical discourse, the decisions of the Philippine Supreme
Court appear to provide sharia courts with a recognizable margin of
appreciation in rendering judicial decisions.
For example, in the successor case to Bondagjy, the Supreme Court
again considered the continuing marital dispute between Mr. Bondagjy
and Ms. Artadi. 226 Bondagjy II concerned a complaint for divorce by
faskh filed by Ms. Artadi in shara circuit court in 2005. Ms. Artadi
claimed Mr. Bondagjy had failed to provide for his dependents or
perform his marital obligations for 10 years. As an affirmative defense,
Mr. Bondagjy argued the action was barred by the doctrine of res
judicata because a similar sharia action filed in 1996 by Ms. Artadi had
been dismissed. In fact, it was the dismissal of this action by the sharia
circuit court in 1996 which caused the civil court in 1998 to also dismiss,
under the doctrine of res judicata, Ms. Artadis civil complaint for
nullity of marriage. 227 Agreeing with Mr. Bondagjys argument, the
sharia circuit court considering the 2005 action dismissed Ms. Artadis
complaint. Ms. Aratadi then appealed to the Fourth Sharia District
Court, which reversed by finding res judicata inapplicable for lack of
identity between the 1996 and 2005 causes of action. Mr. Bondagjy then
appealed to the Supreme Court. 228 After reviewing the prior courts
decisions, the Supreme Court observed that the sharia circuit court had
dismissed Ms. Artadis complaint without a hearing on the merits.
Though perhaps procedurally permissible, the Supreme Court found that
the circuit courts findings were at best superficial . . . given the
distinctiveness of Sharia Court procedures. The Supreme Court then
embarked on a discussion of testimonial evidence as a form of proof
under Muslim law, agreed with the Fourth Sharia District Court that the
case was not res judicata, and also upheld the Fourth Sharia District
Courts conclusion regarding application of the procedural rules. 229 The
Supreme Court remanded the case back to the sharia circuit court for
consideration.
225
See PHIL. CONST. art. XIV 17 (1987); Pres. Decree 1083, Preamble [1977] (Phil.).
226
Bondagjy v. Artadi, G.R. No. 170406 [2008] (Phil.), available at http://sc.judiciary.
gov.ph/jurisprudence/2008/august2008/170406.htm (last accessed Oct. 1, 2009).
227
Id. In addition to modeling the benefits of legal hybridity, this case also models the
complexities introduced by a hybrid system.
228
Id.
229
Id.
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Two elements of Bondagjy II reflect application of the margins of

appreciation doctrine. First, the Supreme Court willingly considered
Muslim law and the distinctiveness of Sharia Court procedures in
reaching its final decision. In doing so, the Court implicitly
acknowledged sharia courts need to customize evidentiary hearings to
Muslim normative requirements. Second, the Supreme Court observed
that in 1998 the civil court had applied res judicata to the civil action on
the basis of the earlier sharia action. Although a margin of appreciation
of a different sort, the civil courts willingness to bar a civil action
(nullity of marriage) on the basis of an adjudicated sharia action
(divorce by faskh) arguably demonstrates an appreciation of local
variation in resolving marital disputes.
Before moving on, I note that the margins of appreciation doctrine
does not give sharia courts unbounded discretion. In the case of Tampar
v. Usman, the Supreme Court considered whether a sharia circuit courts
dismissal of a case on the basis of yamin, or holy oath, taken by the
defendant violated general principles of due process. 230 The plaintiffs
claimed the defendant, Mr. Usman, had forged their signatures on a deed
of sale for a parcel of real property. Because they had no witnesses,
they demanded (in accordance with the sharia courts rules of
procedure) that Mr. Usman take an oath that he had not forged the deed.
The defendant eventually agreed, stating, I, Esmael Usman, swear in the
name of Allah Most Gracious, most Merciful and upon the Holy Quran
that I bought the land in question from the plaintiffs; that I have not
forged or falsified the signatures of the plaintiffs; and that God will curse
me if I am not telling the truth. 231 On the basis of Mr. Usmans oath,
the sharia court dismissed the case. 232 The plaintiffs then appealed the
Supreme Court, arguing the procedural rule allowing the sharia court to
decide cases on the basis of yamin violated their due process right to be
heard (even though, ironically, they had demanded Mr. Usman take the
oath). The Supreme Court concurred:
The Court shares the concern of petitioners in the use of

the yamin in this proceeding, and for that matter, before
Philippine Shari'a courts. Section 7 of the Special Rules
of Procedure prescribed for Shari'a courts aforecited
provides that if the plaintiff has no evidence to prove his
claim, the defendant shall take an oath and judgment
230
G.R. No. 82077 [1991] (Phil.), available at http://www.lawphil.net/judjuris/juri1991/
aug1991/gr_82077_1991.html (last accessed Oct. 2, 2009).
231
Id.
232
Id.
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shall be rendered in his favor by the Court. On the other

hand, should defendant refuse to take an oath, plaintiff
may affirm his claim under oath, in which case judgment
shall be rendered in his favor. Said provision effectively
deprives a litigant of his constitutional right to due
process. It denies a party his right to confront the
witnesses against him and to cross-examine them. It
should have no place even in the Special Rules of
Procedure of the Shari'a courts of the country. 233
The Court went on to state that [t]he possible deletion of this provision
from the [sharia court] rules should be considered. 234 Thus, while the
Court acknowledged the distinctiveness of the sharia courts rules of
procedure, it nevertheless affirmed they were bounded by the
overarching right to due process, drawing a clear outer limit on the
margin of appreciation.
C. Jurisdictional Redundancy
Jurisdictional redundancy arises when multiple communities possess

jurisdictional authority over the same actors. 235 Because of this overlap,
system actors face a number of legal conundrums, including conflicting
normative obligations, choice of forum, and uncertainty as to final
resolution of the ultimate issue. 236 Rather than viewing such redundancy
as a weakness of legal hybridity, Berman invites us in Global Legal
Pluralism to view it as a strength, arguing jurisdictional redundancy is an
adaptive feature of pluralism that leads to a nuanced negotiation
either explicit or implicitbetween or among the various communities
making those claims. Berman then echoes the reasoning adopted by
Robert Cover in the context of U.S. federalism, who identified among the
benefits of jurisdictional redundancy a greater possibility for error
correction, a more robust field for norm articulation, and a larger space
for creative innovation. 237
Applied to the Philippines, Bondagjy and Bondagjy II seem to
exemplify the problems created by jurisdictional redundancy.
Competing normative claims, overlapping jurisdictional schemes,
233
Id.
234
Id.
235
236
See id.
237
Id. (citing Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest,
Ideology, and Innovation, 22 WM. & MARY L. REV. 639 (1981).
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repeated forum shopping, and opposing judicial orders are all present at
one point or another. Between 1996 and 2008, the case involved no less
than two sharia circuit courts, one sharia district court, one civil
regional trial court, and (on two separate occasions) the Philippine
Supreme Court. If anything, Bondagjy and Bondagjy II appear to model
the inherent problems of hybridity.
But it is equally worthwhile to ask whether they also they display the
benefits of jurisdictional redundancy discussed by Berman in Global
Legal Pluralism. In Bondagjy, Mr. Bondagjy was awarded custody of
his children by the sharia court even though he travelled often and had
not seen them regularly (apparently because of Ms. Artadi) for several
years. The basis of the sharia courts decision was Ms. Artadis moral
depravity. Ms. Artadi then successfully appealed to the Supreme Court
to remain the childrens primary physical custodian. From her
perspective, and perhaps the perspective of the children who had
primarily lived with her, jurisdictional redundancy certainly allowed for
a greater possibility for error correction . . . . 238 Similarly, in both
Bondagjy and Bondagjy II, the courts found that Ms. Artadi was a
properly named party in the sharia court actions, even though she had
re-converted from Islam to Christianity. In Bondagjy, Mr. Bondagjy
chose the forum. In Bondadgjy II, Ms. Artadi initiated the complaint. In
both cases, however, Mr. Bondagjy might concede that the overlapping
system provided a more robust field for norm articulation in which his
normative valuesthough perhaps not victoriouswere at least heard
and considered along the way. Finally, on a more theoretical level, one
can imagine the judges sitting in both the civil and sharia courts, faced
with litigants who chose to proceed in one forum but also had actions
pending in the other, at least implicitly considered the normative scheme
of the competing jurisdiction in rendering decisions they intended to be
binding.
Of course, the conflict of law provisions in P.D. 1083 aim to
eliminate many of the conundrums created by jurisdictional redundancy
by designating priority among competing authorities as well as exclusive
and concurrent zones of original jurisdiction. 239 Additionally, Article
145 of P.D. 1083 contains a finality provision, which states: The
decisions of the Sharia District Courts whether on appeal from the
Sharia Circuit Court or not shall be final. Nothing herein contained
shall affect the original and appellate jurisdiction of the Supreme Court
238
Id. Whether the Supreme Courts decision was an error correction, of course,
depends on ones normative persuasion.
239
For a discussion of the conflict of law provisions in P.D. 1083, see supra text
accompanying notes 13235.
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as provided in the Constitution. 240 Unfortunately, as evidenced by

Bondagjy and Bondagjy II, the second provision of Article 145
sometimes swallows the first, allowing litigants to appeal from the
sharia district court. In other instances, however, the Supreme Court has
invoked the finality of rulings by the sharia district court in refusing to
hear an appealed case. 241
D. Limited Autonomy Regimes
A fourth, and, for our discussion, final mechanism for addressing

different normative orders that can neither ignore nor eliminate the
other are regimes of limited autonomy, which are classically seen in
states with diverse religious or ethnic populations. 242 The purpose of
such regimes is to mediate conflict by endowing minority populations
with some measure of shared state power. In Global Legal Pluralism,
Berman draws upon Henry Steiner to identify three types of limited
autonomous regimes: (1) regimes of territorially-concentrated ethnic,
religious, or linguistic minority group[s] who retain provisional
executive, legislative, and judicial autonomy; (2) power-sharing regimes
in which minority normative communities are assured representation in
executive, legislative, or judicial councils, or endowed with certain
powers and prerogatives in the decision-making process; and (3) regimes
that recognize the personal law of members of minority normative
communities regardless of their territorial location. 243 Berman notes
that with this third type of limited autonomy region, state law may seek
to create what are essentially margins of appreciation to recognize forms
of autonomy for these identities. 244 He then ties margins of
appreciation to limited autonomy regimes, writing:
Today, particularly in countries with a large minority

Muslim population, many states maintain space for
personal law within a nominally Westphalian legal
structure. These nation-statesranging from Canada to
240
241
See In the Matter of Petition to Authorize Sharia'h District Court Judges to Appoint
Shari'a Lawyers as Notaries Public, Atty. Royo M. Gampong, Petitioner, Bar Matter No.
702 [1994] (Phil.), available at http://www.lawphil.net/courts/bm/bm_702_1994.html
(last accessed Oct. 2, 2009) (discussing distinction between civil and sharia courts and
process for review by Supreme Court).
242
243
Id. at 120304.
244
Id. at 1204.
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Egypt to India to Singaporerecognize parallel civil

and religious legal systems, often with their own
separate courts. And civil legal authorities are
frequently called on to determine the margin of
appreciation to be given to such personal law. 245
The essential point is that limited autonomy regimes which recognize the
personal laws of certain citizens inherently embrace margins of
appreciation. By design, they allow local variation of overarching
norms, making explicit that which is inherent by recognizing competing
normative schemes.
Of course, this is precisely the framework established by the
Philippine government in enacting P.D. 1083, which formally established
sharia courts as an instrument of the judiciary and provided for Muslim
personal law in areas of marriage, divorce, child custody, property, and
estate. Though conceived territorially, the efforts of Senator Legarda to
broaden the reach of sharia courts to Luzon and the Visayas
acknowledges that Muslims are now located throughout the Philippines,
remain governed by P.D. 1083 wherever they are located, and should
have access to local sharia courts in areas outside of the southern
Philippines. Bondagjy is a clear example of the reach of normative
autonomy granted to Muslim Filipinos. Both Mr. Bondagjy and Ms.
Artadi lived in Metro Manila but were subject to the jurisdiction of
sharia courts in Mindanao. In fact, it was because Zamboanga City was
more accessible by plane from Manila that Ms. Artadi initially moved
for a change of venue from the sharia court in Marawi City. 246
The ARMM is an obvious example of the Philippine governments
efforts to employ limited autonomy as a mechanism for resolving the
conflict in legal hybridity. As previously discussed, the ARMM
functions as a semi-autonomous regional body with executive and
legislative authority. The autonomy granted by the Philippine
government in the Organic Act includes (1) administrative organization,
(2) revenue generation, (3) management of ancestral domains, (4) use
and preservation of natural resources, (5) oversight of personal, family,
and property relations, (6) urban and rural planning and development, (7)
economic development, (8) tourism, (9) education, (10) preservation of
cultural heritage, and (11) other all [p]owers, functions and
responsibilities now being exercised by the department of the National
Government except those specifically retained (i.e., foreign affairs,
national defense, coinage, postal service, customs and tariffs, and the
245
Id. at 1206.
246
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like). 247 Although the Organic Act expressly requires the ARMM to
function within the framework of the Constitution and national
sovereignty, 248 the breadth of power delegated to the ARMM stands as
an official recognition of essential hybridity that the state cannot wish
away. 249
E. Progress Through Pluralism
My intent in the preceding sections of this Part was to explore the

various mechanisms of hybridity utilized by the Philippine government
in managing a conflict which is more than 400 years old. From colonial
suppression and recognition to national marginalization and integration,
sovereign entities in the Philippines have taken a number of approaches
to Muslim normative obligations. For the past 30 years, the Philippine
government has embarked on a path of pluralism, hoping to preserve
national unity by acknowledging normative disunity. The challenge, as
Justice Reyes noted, lies in drawing lines between what is and is not
normatively fundamental to the preservation of state integrity: A
thoughtful contrast thereof with our own basic tenets could delineate the
areas where Islamic law may be left to govern those professing the
Muslim faith without endangering national unity. . . . 250
Today, the governments pluralist approach is apparent at all levels
of government. The 1987 Constitution explicitly endorses pluralist
considerations in the development and implementation of state policies.
P.D. 1083 implements Muslim personal law and establishes a system of
sharia courts with areas of exclusive jurisdiction. And the Organic Act
authorized the creation of a territorially-based autonomous region for
those who chose by plebiscite to join. Other efforts toward pluralism
include the establishment of an Office of Muslim Affairs and its
subsidiary programs, including the Halal Development Program, Legal
and Community Services Support, Muslim Child Advocacy, Muslim
Cooperative Development Program, and the Pilgrimage and Endowment
Development Program. 251
What is less apparent is whether 30 years of pluralist effort has been
successful in managing the conflict created by competing normative
obligations that share the same social space. On the one hand, the
247
Republic Act No. 6734, art. V [1989] (Phil.).
248
Id., Preamble.
249
250
251
OMA Programs, OFFICE OF MUSLIM AFFAIRS, OFFICE OF THE PRESIDENT, REPUBLIC OF
THE PHILIPPINES, available at http://www.oma.gov.ph/site/ (last accessed Oct. 2, 2009).
43
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secessionist efforts that generated widespread conflict in the 1960s and

1970s have, for the moment, abated. To a great extent, the MNLF now
functions as a legitimate organization, controlling executive and
legislative positions within the ARMM and engaging in peaceful debate
at the national level. 252 Also, Mindanao and the Sulu Archipelago
remain under Philippine territorial sovereignty, and there are no
widespread clamors for outright independence. In this sense, the
Philippine governments pluralist mechanisms have been a success.
Overlapping normative obligations, though still present, are being
managed.
On the other hand, violent conflict remains a fact of life in the
southern Philippines, and has even increased in recent years. The Moro
Islamic Liberation Front (MILF) has continued to engage in armed
resistance, seeking no less than an independent (sovereign) Moro
Islamic state . . . . 253 In August 2008, peace talks between the MILF
and the Philippine government in Kuala Lumpur led to a tentative
agreement on new territorial boundaries for an autonomous Moro
homeland, 254 but before the agreement could be signed, the Philippine
Supreme Court issued a temporary restraining order, ultimately finding
the proposed Memorandum of Agreement on Ancestral Domain
unconstitutional. 255 As a result of the breakdown in negotiations, MILF
insurgents launched a wide scale attack in Mindanao, displacing some
130,000 people. 256 In addition, another splinter group, the Abu Sayyaf,
has continued to engage in separatist violence, including kidnappings
and bombings. 257 As recently as August 2009, a clash between Abu
Sayyaf rebels and the Philippine military resulted in the deaths of 20 Abu
252
See Abuza, supra note 22, at 3941.
253
Id. at 44 (quoting Salamat Hashim, NIDAUL ISLAM MAGAZINE (April-May 1998)).
254
See JOINT STATEMENT ISSUED BY GRP AND MILF (Jul. 27, 2008), available at
http://news.abs-cbn.com/research/08/27/08/grp-milf-moa-ancestral-domain (last accessed
Oct. 3, 2009). For a helpful timeline of the Philippine government and MILF
negotiations, see Lei Chavez, Timeline: GRP-MILF Peace Process, ABS-CBN NEWS
(Aug. 15, 2008), available at http://news.abs-cbn.com/nation/08/15/08/timeline-grp-milf-
peace-process (last accessed Oct. 3, 2009).
255
Province of North Cotabato v. Government of Republic of the Philippines Peace
Panel on Ancestral Domain, G.R. No. 183591 [2009] (Phil.).
256
Peter Ritter, Philippines Uneasy Peace Broken, TIME (Aug. 21, 2008), available at
http://www.time.com/time/world/article/0,8599,1834473,00.html (last accessed Oct. 3,
2009).
257
See, e.g., Abuza, supra note 22, at 48; Christopher Shay, A Brief History of Abu
Sayyaf, TIME (Oct. 1, 2009), available at http://www.time.com/time/world/
article/0,8599,1927124,00.html (last accessed Oct. 3, 2009).
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Sayyaf members and 23 Philippine soldiers in the South. 258 And there is
no promise the fighting will end anytime soon. According to Julkipli
Wadi, who teaches Islamic studies at the University of the Philippines,
massive poverty in the south, and perception of injustice against the
minority Muslims [have] made it easy for the Abu Sayyaf to continue
with its recruitment efforts. . . . To the young Muslim, they are not
terrorists, but a resistance force against any form of subjugation. 259
For some, the solution to the conflict may be economic. For
example, some Muslim Filipinos complain that the Government has not
made sufficient efforts to promote their economic development and they
suffered from economic discrimination. 260 Others note the ARMM
continues to send the lions share of its revenues to the national
government and the southern Philippines itself remains impoverished
and strife-torn . . . 261 Yet perhaps it is overlapping normative
commitmentsnot economicswhich continues to cause conflict. As a
MILF spokesman, referring to the differences in perception between the
MILF and the Philippine government over the meaning of the conflict,
stated several years ago, The government views the Moro problem in an
economic light. . . . But Islam has a spiritual view. The governments
way of looking into the problem is fixedbut it is wrong. 262 Keeping
with this line of reasoning, Muslims engaged in conflict for spiritual
reasons may find anything less than normative autonomy simply
unacceptable.
Nevertheless, drawing on the experience of the Philippines, several
lessons in managing legal hybridity through a pluralist methodology
emerge. First, conflict arising from entrenched legal hybridity is unlikely
to be solved through either sovereigntism or universalism. In trying to
extinguish normative conflict by imposing alien norms, non-
accommodating approaches may actually serve as incendiary agents for
additional conflict. Second, pluralisms structured framework for
resolving hybridity, though messy, at least appears no messier than an
unstructured framework in which overlapping norms are expressed
informally. In the case of Bondagjy and Bondagjy II, for example, we
might reasonably conclude it is better to have the overlapping conflict
out in the open where it can be managed, than effectively marginalized
258
See Agence France-Presse, Abu Sayyaf Still RPs Most Brutal Terror Group, ABS-
CBN NEWS (Aug. 14, 2009), available at http://news.abs-cbn.com/nation/08/13/09/abu-
sayyaf-still-rps-most-brutal-terror-group (last accessed Oct. 3, 2009).
259
Id.
260
See 2008 REPORT ON INTERNATIONAL RELIGIOUS FREEDOMPHILIPPINES, U.S. DEPT
OF STATE supra note 115.
261
262
Id. at 46.
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and tucked away in an informal proceeding which applies its own, non-
reviewable version of law. Third, a pluralist approach may lead to a
normative cross-flow in which competing communities are mutually
enriched, enhancing the value of the social space they share. In the
southern Philippines, participants in ecumenical interfaith councils, for
example, may find not only a forum for discussing differences, but also,
by thoughtfully engaging their normative competitors, an appreciable
enrichment of their own normative commitments. Fourth, well-
constructed frameworks for engaging in dialectical discourse and
applying margins of appreciation can effectively manage competing
normative obligations. In Bondagjy and Bondagjy II, as well as other
Supreme Court cases I reviewed, the Philippine Supreme Court displayed
a willingness to engage and occasionally defer to Muslim norms,
analyzing Muslim law in general and P.D. 1083 in particular with due
regard and obvious respect. Fifth, pluralist mechanisms provide a means
of managing legal hybridity for those willing to ascribe to pluralist
values, but are less useful elsewhere. MILF leaders who reached a
cease-fire with the Philippine government in the 1990s and, in turn,
received significant development assistance in Mindanao were, in their
own view, simply using the government to fund development projects
and . . . had no intention of being seduced into a quid pro quo. 263 As a
result, despite development assistance and repeated negotiations, conflict
in the South continued. Sixth, the effectiveness of pluralist mechanisms
is diminished greatly when they are employed insincerely or deployed
inadequately. Despite the Constitution, P.D. 1083, and the Organic Act,
the southern Philippines remains impoverished and embattled, the
ARMM is seen as under-resourced and ineffective, and sharia courts are
challenged by manpower and resource shortfalls. The continuing
conflict in the South could be ascribed to pluralisms shortcomings, or
could simply be the result of a less than full-hearted attempt by both the
national government and Muslim Filipinos to pluralistically share the
same social space.
No doubt other lessons exist from the Philippine experience in
pluralism which would assist policymakers and community leaders in the
Philippines and elsewhere in structuring shared social spaces. Also, it
may be that I have approached the issue of conflict too narrowly,
focusing only on legal hybridity as an expression of normative obligation
when a dozen other hurdles to conflict resolution in the Philippines exist.
My intent, however, has been to explore whether and to what extent legal
hybridity may be beneficially managed through pluralist mechanisms
263
Id. at 46.
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that are adopted to resolve subnational conflict. Certainly, as the

continuing conflict in the southern Philippines demonstrates, the
experience of the Philippines is by no means a perfect pattern of
pluralism. However, it does model a number of pluralistic mechanisms
which, to one extent or another, have fruitfully moderated overlapping
normative obligations between Muslim Filipinos and the national
government. To ask more is, perhaps, asking too much of any
methodology, especially when the conflict as old and deep as the one in
the Philippines.
V. CONCLUSION
As the approach to pluralism in the Philippines teaches, pluralistic

methodologies are not a panacea for fundamental normative conflict.
While pluralism refrains from dictating normative outcomes, it
nevertheless requires normative competitors to ascribe to the principles
underlying the values of procedural pluralism itself. 264 As a result, its
usefulness is necessarily limited. For those insistent on expressing their
normative aspirations to the exclusion of others sharing the same social
space, pluralism may hold marginal value. For those willing to engage in
provisional compromise by ascribing to a mutually accommodating,
give-and-take framework, pluralism holds real promise for successfully
managing overlapping normative obligations.
In the Philippines, glimmers of this promise may be seen. Thirty
years ago, Muslim Filipinos lacked constitutional recognition of their
normative values, had no state-sanctioned method of resolving personal
matters according to Muslim law, and retained little of the autonomy
they had once enjoyed as independent sultanates. With the 1987
Constitution, P.D. 1083, and the establishment of the ARMM, they now
have multiple points of entry to ensure their normative obligations are at
least consideredeven if not always accommodatedat the national
level. Admittedly, the task is far from over. As the failed peace talks
between the government and the MILF in 2008 demonstrate, much
remains to be done to bridge the normative gap that currently exists
between Muslim Filipinos and the national government. Total resolution
of normative conflict, however, is not pluralisms goal. Rather,
pluralistic mechanisms seek to bring order to shared social spaces,
managingrather than suppressingnormative conflict. The Philippine
experience demonstrates that these mechanisms, while far from perfect,
at least provide a more beneficial alternative than the forceful imposition
264
47
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HOLBROOK 10/9/2009 11:18 PM
of normative hegemony, benefiting both Muslim and non-Muslim

Filipinos as they resolve past differences by managing their overlapping
normative futures.
48

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HOLBROOK 10/9/2009 11:18 PM

LEGAL HYBRIDITY IN THE PHILIPPINES:

II. THE BEGINNINGS OF LEGAL HYBRIDITY............................................. 6

III. PRESIDENTIAL DECREE 1083 AND THE MUSLIM

IV. PLURALIST MECHANISMS FOR RESOLVING CONFLICT .................... 30

Electronic copy available at: http://ssrn.com/abstract=1486169

A tandem of legal co-existence is the very essence

We live in a world in which normative obligations do not always

Electronic copy available at: http://ssrn.com/abstract=1486169

informal associations based on politics, ethnicity, religion, geography,

Rather, pluralism seeks to encourage the creation of mechanisms that

in which national norms are inadequate in safeguarding individual norms

gravity. The management of hybridity thus may invite competitors to

II. THE BEGINNINGS OF HYBRIDITY

A. The Arrival of Islam in the Philippines

As with other post-colonial states, the history of the Philippines is

Spanish in 1521. 22 Historically, it is this struggle which has driven

Sarip (sharif in its original Arabic form) Kabungsuway, son of a Malacca

direct descendants of the Prophet through Saiyid or Sharif (descendants of Mohammads

In personal matters, every community is welcome to

In the realm of personal law, precolonial Muslims in the Philippines

B. Colonialism, Conflict, and Customary Law

In 1521, Ferdinand Magellan landed in the Philippines while

the sultans acknowledgment of United States sovereignty. 60 Elsewhere

You [the English] are quite content to maintain rajahs

To Hadji Butu of Sulu, General Wood commented, We realize that the

Although systemically uniform, civil courts during this period

Mohammedan Laws and CustomsJudges of the Court

The willingness of early courts to embrace customary law is seen in a

The purpose of the government toward the

The Supreme Court accordingly held that marriages performed

C. Hybridity in the Early State

From 1946 to 1968, the legal relationship between the Philippine

marriage law formally exempting Mohammedans and pagans from

D. The Tripoli Agreement

By 1976, the high number of civilian casualties, the aggregate

The governing bodies off the nominally autonomous

As a result, sporadic fighting continued. The revolutionary movement,

III. PRESIDENTIAL DECREE 1083 AND THE

In the preceding Part, I provided a historical perspective from which

historical, tethering present-day action to historical antecedent to create

A. Presidential Decree 1083

Presidential Decree 1083 (P.D. 1083) grew out of an effort by

resuscitation of our status as Muslims; that is to say, in the state of

i. Objectives of Presidential Decree 1083

Section 2 of P.D. 1083 sets forth three general objectives: [T]his

[P.D. 1083] therefore actually does more than what its

whenever and wherever it may apply, throughout the

This argument is additionally supported by P.D. 1083s incorporation of

ii. Jurisdiction and Presidential Decree 1083

In addition to its far-reaching objectives, P.D. 1083 establishes

involving petitions by Muslims for the constitution of a family home,

iii. Conflict of Laws and Presidential Decree 1083

The drafters of P.D. 1083 understood its provisions would invariably

prevail. . . . Should the conflict be between any provision of this Code

C. The Sharia Court System