Legal Hybridity, Trust, and the Legitimacy of the Shari'ah in the Bangsamoro

• Author: Imelda Deinla
• Published date: 01 April 2019
• DOI: http://doi.org/10.1111/lapo.12123
• Date: 01 April 2019

Legal Hybridity, Trust, and the Legitimacy

of the Shari’ah in the Bangsamoro

IMELDA DEINLA

Legal hybrids have the potential to address justice and development issues in both conflict and

postconflict settings. Using the Philippine Shari’ah court system as a case study, this study

demonstrates that state hybrids suffer from legitimacy and capacity issues that also constrain

their ability to deliver effective justice services and respond to conflict challenges. Forging

cooperative networks between secular courts and Shari’ah courts and between local justice per-

sonnel and central justice authorities can enhance the effectiveness and legitimacy of a formal-

ized legal hybrid. This can assist in addressing the justice deficit that fuels the cycle of conflict

and sustain peacebuilding efforts postconflict.

I. INTRODUCTION

Democracy and multiculturalism have an uneasy relationship, and their coexistence

becomes even more complex when overlaid with persistent local conflicts. In Southeast

Asia, the adoption of the liberal democratic model of the state and its institutions—or,

at least, the idea of liberal peace—by some countries has often clashed with the norma-

tive values of both majority and minority groups. This conflict of norms is particularly

evident in the Autonomous Region of Muslim Mindanao (ARMM) in the Philippines,

which has endured a decades-long Muslim secessionist insurgency and subnational con-

flict. In highly plural societies, normative conceptions of law and justice vary among eth-

nic and religious groups, and these competing conceptions continue to flourish even with

the strong centralizing force of the state. Cultural and religious practices by minority

groups are not only expressions of their identities but are also a form of resistance against

the monopolizing power of the state (Mac Ginty 2011; Richmond and Mitchell 2011;

Richmond 2010, 2012). Studies have revealed that the perception among the local popula-

tion of an illegitimate central state is very common in fragile states or in states with weak

institutions of security and governance (Rotberg 2003; Goldstone 2008). To forge peace

I wish to acknowledge the Philippine National Commission for Muslim Filipinos for partnering with me in the

implementation of the survey in a difficult environment like Mindanao. Special thanks are due to the following

persons who have assisted me in realizing this project, made suggestions in improving the article, and helped

with data collection: Professor Veronica Taylor, Professor John Braithwaite, Dr Acram Latiph, Araceli

Habaradas, Amanah Busran-Lao, and Minnie Alonto. I would also like to thank Australian Aid for the

funding support. The analysis and opinion expressed here are all mine.

Address correspondence to: Imelda Deinla, College of Asia and the Pacific, Australian National University,

Rm 3.35 Coombs Ext Building (#8), Canberra Australia 0200. Phone: +61 2 6125 1503; Email: imelda.

deinla@anu.edu.au.

LAW & POLICY, Vol. 41, No. 2, April 2019

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12123

ISSN 0265-8240

and strengthen the viability of the state system in a postconflict environment, it is neces-

sary to grapple with the enormous challenge of restoring trust and confidence among local

stakeholders in the state. In this setting, the state and its institutions are historically reg-

arded by local stakeholders for their predatory, oppressive, and unaccountable nature

(Mac Ginty 2011; Richmond 2011).

Accommodation between the modern state and traditional legal systems has

become a strategy in negotiating peace with secessionist movements and in fostering

harmonious relationships between central powers and local authorities (Benton

2002; Choudhry 2008). This results in a constructed—or reconstructed—legal

hybridity that aims to build mutual trust with insurgents and harmonize different

systems in order to promote the complementarity of normative ideas and avoid con-

flict. Only a few studies exist on negotiated legal hybrids between governments and

armed groups or on state-initiated legal hybridity. These studies have shown mixed

results with respect to the viability of this type of legal hybrid, often noting the per-

ceived failure of such hybrids (Bertrand 2008; Choudhry 2008; Freedman and

Lottholz 2017). Negative, and even antagonistic, views about formalized hybrids can

be expected, particularly when political settlement has not delivered peace dividends

and competing powers contend for influence and legitimacy.

The main question this article seeks to answer, therefore, is this: How do states

increase their legitimacy in postconflict reconstruction through legal accommodation or

through the construction of hybrid legal systems? And, further, how is legal hybridity

constructed so that the state can generate trust from its constituencies and potentially

translate this trust into increased state legitimacy and sustained peacebuilding efforts?

Increasingly, there is a growing recognition that the Western liberal model of state-

hood has not been successful in creating legitimate state institutions that promote peace

and justice in highly diverse multicultural settings (see, e.g., Boege et al. 2007; Richmond

2011; Wiuff Moe 2011; Meagher, De Herdt, and Titeca 2014). There have been studies

that show the promise of local agencies, customs, and practices that interact or relate to

formal state practices in advancing peacebuilding and statehood (e.g., Richmond 2010,

2011; Mac Ginty 2011). Little is known, however, about the potential of top-down and

state-led approaches to hybridization and their impact on local peace and justice. This

article finds that hybridization can be successful not only through bottom-up and local

innovation but also through top-down hybrid initiatives.

In this article, I analyze the establishment of the Shari’ah court system in the

ARMM in Southern Philippines to show the prospects as well as the constraints of

building the legitimacy of a top-down and formalized state hybrid institution as part

of a political settlement with the Muslim insurgent group. I argue that legitimacy is a

function of constituents’ trust that government personnel and institutions will deliver

effective outcomes as well as the actual capacity of these institutions to deliver those

outcomes. Through its transformation as a “women’s court,” the state Shari’ah has

provided Filipino Muslim women with an option to resolve problems or issues

involving members of their families; this in turn assists in building trust in the state

institution, increasing its legitimacy. Providing effective justice to one of the margin-

alized sectors of Philippine society likewise assists in empowering women’s participa-

tion in building the peace in their communities. Generating trust and capacity in the

state Shari’ah courts is a function of both local stakeholders and central state

authorities. In this study, I show that forging cooperative and supportive networks

between the secular and Shari’ah court systems and between local justice personnel

and central justice authorities can enhance the effectiveness and legitimacy of a for-

malized legal hybrid.

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

Deinla LEGAL HYBRIDITY AND SHARI’AH 199