Oath (Yamin) as a Method of Proof and the Right to Due Process in the Philippines

A Response to Tampar v Usman

Authors

  • Norhabib Suod S. Barodi Mindanao State University College of Law, Main Campus, Marawi City, Philippines

Keywords:

Oaths, right to due process, Shari’ah law, Shariah Law

Abstract

This article seeks to respond constructively to the obiter dictum in the Philippine case of Tampar v Usman declaring that oath (yamin) under the Special Rules of Procedure in the Shari’ah Courts (Ijra-at al Mahakim al Shari’a) of the Philippines is unconstitutional, as it deprives a Muslim litigant’s right to due process which includes the right to confront witnesses and to cross-examine them. The author argues that oath, under the tightly compartmentalised and specific parameters of s 7(1) of the said rules, is harmonious with the constitutional right to due process vis-à-vis litigations between Muslim parties in the Philippine Shari’ah Courts. It is argued further that oath, in the specific context of s 7(1) of the Special Rules, places Muslim litigants in the Philippine Shari’ah Courts in a better position to enjoy due process contrary to what the obiter dictum suggests. This article also brings to the fore the far-reaching implications of the obiter dictum and the constructive responses thereto based on the parameters of s 7(1) of the Special Rules and relevant experiences in foreign jurisdictions like Malaysia.

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Author Biography

Norhabib Suod S. Barodi, Mindanao State University College of Law, Main Campus, Marawi City, Philippines

Associate Professor of Law, Lawyer and Counselor-at-Law (Shari’ah), Assistant Dean, Mindanao State University College of Law, Main Campus, Marawi City, Philippines, Juris Doctor, MSU College of Law, LL.M (candidate), San Beda University Graduate School of Law, Philippines.

Oath (Yamin) as a Method of Proof and the Right to Due Process in the Philippines: A Response to Tampar v Usman

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Published

2021-06-29

How to Cite

Suod S. Barodi, N. (2021). Oath (Yamin) as a Method of Proof and the Right to Due Process in the Philippines: A Response to Tampar v Usman. Journal of Malaysian and Comparative Law, 47(1. Jun), 71–96. Retrieved from https://fiqh.um.edu.my/index.php/JMCL/article/view/30841