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THE FRATERNAL ORDER OF UTOPIA
Introduction to Law Primer
2013 Edition
SERVICE. SACRIFICE. EXCELLENCE.
“For tomorrow shall cast a myriad of mighty storm that only
those with firm determination and Utopian vision do survive.”
www.utopia.com.ph
FOR SHARING.
TABLE OF CONTENTS
How to Read a Case - 1
Recitation Tips - 2
Dworkin’s Interpretative Theory – 2
Austin’s Theory of Law – 5
Hart: Law as Primary and Secondary Rules – 6
Hart: International Law - 7
Parts of a Case - 10
Philippine Legal History
Colonial Setting: Rubi v. Provincial Board of Mindoro
Comprehensive Digest – 12
Case Primer – 13
Recitation Ready Digest – 14
War Period: Co Kim Cham v. Valdez Tan Keh
Comprehensive Digest – 14
Case Primer – 19
Recitation Ready Digest – 20
2013 INTRODUCTION TO LAW PRIMER
THE FRATERNAL ORDER OF UTOPIA
People Power Revolution: Republic v. Sandiganbayan
Comprehensive Digest – 20
Case Primer – 24
Recitation Ready Digest – 24
Law in Context
Indigenous Peoples, Ancestral Domain, and the Environment: Cruz v. Secretary of DENR
Comprehensive Digest – 25
Case Primer – 26
Recitation Ready Digest – 27
Bangsamoro People: Province of North Cotabato v. GRP Panel
Comprehensive Digest – 28
Case Primer – 32
Recitation Ready Digest – 33
Definition of Law Terms - 34
ACKNOWLEDGEMENT
The Utopia Academics Team would like to thank Senior Brod Daniel Darvin for the
guidance and motivation without which this primer would not have materialized. We
consider his works as cornerstones for this reviewer now in your hands.
WARNING
Do not rely solely on the recitation-ready digests of this reviewer.
This type of digest merely aims to give an overview and
background of the cases for easy understanding and reference
during recitation. This digest is not comprehensive. It is advised to
read the full text of the cases and the comprehensive digests in case
the professor asks additional questions
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1
HOW TO READ A CASE
What are the 3 main parts of a case?
The (1) facts, (2) issues, and (3) held/ratio
What are facts?
Facts are events or circumstances that transpired. They are
usually narrated at the beginning of the case.
What is an issue?
It is the matter in dispute in the case. It is usually in question
form and begins with the phrase “whether or not.”
Give an example of an issue.
The prosecution argues that the accused is liable for murder
while the defense contends that the accused is only liable
for homicide. The issue is whether or not the accused is
liable for murder or homicide.
What are the two types of issues?
(1) Substantive issues and (2) Procedural issues
What are substantive issues?
Issues which pertain to the rights of the parties.
Give an example of a substantive issue.
Whether or not the accused is liable for murder or
homicide.
What are procedural issues?
Issues which pertain to the method or manner of carrying
out a legal dispute.
Give an example of a procedural issue.
Whether or not the case is ripe for adjudication.
How many issues are usually given in a case?
There is usually more than one issue.
Do we have to read all of the issues?
No. Read only the issue relevant to the subject matter.
A police officer, upon mere suspicion that Juan’s house is a
drug den, entered Juan’s house without a warrant and in the
course of the search, inflicted physical injuries upon Juan
and destroyed his personal belongings. The issues
presented in the case are whether or not the police officer
(1) conducted a valid search, (2) is liable for physical
injuries, (3) is liable for damages for destroying Juan’s
property. Which issue should be studied?
If the subject is Constitutional Law, study only the first issue
since it deals with the Bill of Rights. If the subject is Criminal
law, study only the second issue. And if the subject is Civil
Law, study only the third issue.
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2
What if the subject matter is unknown? Which issue will we
study?
In subjects such as introduction to law, where the subject
matter is general and unknown, it is advised to focus on the
substantive issues.
What is the held/ratio of the case?
The court’s decision on a particular issue. It includes the
legal basis of the decision, analysis of facts, and conclusion
of the case.
RECITATION TIPS
1) Hold your ground and be polite. Remember, each
recitation is a test not only of your knowledge, but of your
composure and how well you keep your cool despite the
stress. Never attempt to make jokes while reciting. There is
always a chance that the professor might take this as a form
of disrespect. Law school has a serious atmosphere.
2) Nothing beats preparation. So make sure you read all the
cases and can provide a summary of the readings from the
top of your head. Try to dramatize the facts in your head to
easily recall the flow.
3) When you are inevitably called, observe good posture
and be confident. Do not “dance” around your spot. Make
an impression on the professor, and build on the fact that
you have prepared beforehand. Look at the professor
straight in the eye. Failure to observe this might give the
professor an impression that you came unprepared for
class.
4) It is best to frame your answers this way:
a) Be responsive first, meaning answer yes or no, or
true or false, etc., when it is called for.
b) Then provide the source for your answer—whether
it’s a law or a case. Discuss the case or the law briefly,
then apply to the situation at hand.
c) Provide a short conclusion.
DWORKIN’S INTERPRETATIVE THEORY
In Dworkin’s Interpretive Theory, what role will morality
play if legal interpretation play if properly carried out?
Morality will exercise some significant influence over the
way rules are to be understood.
According to Dworkin, what does the law consist of?
The law consists of the 1) explicitly adopted rules plus 2) the
best moral principles that can be understood to lie behind
those rules. These principles serve as a legitimate basis of
legal decisions, as well as help guide the interpretation of
legal rules in hard cases in which the right legal answer is
unclear.
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What are the two degrees of “fit” between some proposed
principle and the rules?
Fit as a matter of logical consistency and Fit as a matter of
helping one justify or provide a rational for the rules.
What does “fit as a matter of logical consistency” mean?
Any viable candidate for an underlying principle must be
logically consistent with most of the rules. Total consistency
is not required, only a high degree.
I. Fitting the Fourth Amendment: Privacy
Can the government search your house without a warrant or
probable cause?
The fourth amendment states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” so, no, the
government cannot search it without a warrant or probable
cause.
II. Olmstead and beyond.
Should laws be interpreted while keeping in mind modern
technology even though these said technologies did not
exist during the time of those who wrote and ratified the
laws?
Yes, modern technology should be considered while
interpreting laws.
What happened in the Olmstead case?
The Supreme Court decided that because wiretapping was
not an act of physical intrusion and confiscation, the fourth
amendment rule did not apply to it.
What was Dworkin’s approach to a case like Olmstead?
He would look at the moral principle that fits the Fourth
Amendment rule against unreasonable searches and
seizures.
Using Dworkin’s framework, would wiretapping be covered
by the fourth amendment?
Yes, because according to Dworkin, privacy has two
aspects: 1) physical space and 2) informational aspect. The
Olmstead case ignores the informational aspect.
III. The Role of Morality
What happens when in using Dworkin’s method, there
happens to be several competing privacy principles that fit
the fourth amendment rule?
Then one must decide which of them can be a legitimate
basis for legal decision making.
What is the right way of understanding the law in order for
us to find the right legal answers to cases in which the
explicit rules do not provide a single clear answer?
Dworkin’s solution is to look to morality. The law consists of
the rules explicitly adopted by the political community plus
the best principles that fit those rules.
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How does one reconcile the fact that each person may have
a different opinion on what is morally best?
People will, of course, disagree over what is morally best,
but each person decides for him or herself what is morally
best. According to Dworkin, a judge who will make a good-
faith effort to determine what is morally best is fully
authorized to make her legal decisions.
IV. The Challenge of Skepticism
What is External Skepticism?
These are the questions about moral obligations which have
no right answer because there is nothing objective in the
world that can make a statement about our moral obligations
true or false.
How does Dworkin counter external skepticism?
Dworkin claims that external skepticism rests on the false
premise that moral judgment must correspond to
perceivable facts in order for us to reasonably assert that
some such judgments are right and others are wrong.
However, he fails to come to grip with the fact that there are
many different, conflicting ways of conducting moral
arguments.
What is Internal Skepticism?
This theory views our legal system as fundamentally unjust
and oppressive. It states that the system promotes the
interests of the wealthy and privileged at the expense of the
rest of society. It holds that there is no consistent set of
moral principles that underlies our laws.
V. Assessing Dworkin
What is a problem of Dworkin’s interpretive version of
natural law?
His theory posits an important and necessary connection
between law and morality, but avoids the problems
afflicting the approaches of Aquinas and Fuller.
What is the difference between Dworkin’s theory and
Aquinas’ theory?
Unlike Aquinas’ theory, Dworkin’s theory does not hold that
unjust rules are invalid laws.
What is the difference between Dworkin’s theory and
fuller’s theory?
Unlike Fuller’s theory, it does not hold that the principles of
legality are by themselves sufficient to create a prima facie
moral obligation to obey the rules of any system of positive
law.
Is Dworkin right in saying that judges can decide based on
their own moral judgments?
No, because judges should refer to widely accepted
judgments in society as well.
Legal Positivism: Overview
What is Legal Positivism?
This theory rejects the natural law idea that genuine law is
necessarily just law and also rejects the links between
positive law and morality posited by Fuller and Dworkin.
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Austin’s Theory of Law (Legal Positivism)
According to Austin, what are Rules?
Rules are a species of command. Laws are rules laid down
by superiors to guide the actions of those under them.
What is Positive Morality?
Positive morality is a set of moral values and rules informally
accepted by a given society. (no punishment/enforced by
general opinion)
What is Positive Law?
It consists of general commands laid down and enforced by
the sovereign.
How does Austin view the sovereign?
In his view, the sovereign is defined solely in terms of
power, not in terms of justice or any other moral concept.
The power that makes some person or group of persons
sovereign has no moral qualifications whatsoever attached
to it.
What are some of the key differences in Positive Law vs.
Positive Morality?
1.) It is “What is the law?” vs. “What ought to be the law.”
and 2.) There is no necessary connection between legal and
moral obligation.
So does Austin mean that there is no connection between
positive law and morality?
No, in fact, Austin believes that positive morality is an
important source of positive law: the general commands of
the sovereign often reflect the rules of positive morality.
Are moral obligations imposed by God’s commands the
same as legal obligations imposed by the commands of a
political sovereign?
No, the two must never be confused.
What is Austin’s stand regarding “international law”?
Austin rejects the idea that international law is a properly
understood law because there is an absence of a global
sovereign to issue and enforce commands
According to Hermann Jahrreis (lawyer for Nuremberg
defendants); what is the legal obligation of the individual?
It is to obey the dictates of the sovereign, notwithstanding
international or natural law.
II. Assessing Austin
What is Austin’s approach to the law?
Austin’s approach presents a clear and systematic
alternative to the natural law approach.
What are some problems with Austin’s approach?
1.) He avoids the question, “Is a rule enforced as a law by
the courts a valid law if it is contrary to natural law or
2013 INTRODUCTION TO LAW PRIMER
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morality?” and 2.) Austin’s argument that traditional natural
law theory invites anarchy is questionable.
What are some of the criticisms of Austin’s version of
positivism?
Some say that Austin’s account of law in terms of the general
commands of the sovereign is fundamentally mistaken.
Hart: Law as Primary and Secondary Rules
I. Types of Legal Rules
Why does Hart say that Austin’s command theory of law fails
to account for important aspects of a legal system?
Certain types of legal rules cannot be adequately
understood as commands. Thus, some legal rules do not
prohibit or require but rather empower individuals to do
things that would otherwise be impossible for them to do.
(not all laws are prohibitions or mandatory rules).
What are power-conferring rules?
Legal rules that empower individuals, e.g. contract law
empowering individuals to enter legally binding
agreements.
What is a command?
A command seeks to alter the world by getting someone to
do something. A power-conferring rule seeks to alter it by
empowering persons to do things that they would otherwise
be unable to do.
II. Legal Obligation: Government and Gunman
Why does Hart say that Austin’s analysis that an individual
risks having some sanction inflicted on him should he fail to
comply to some general command of the sovereign is
defective?
Hart argues that this analysis makes it impossible to
correctly distinguish a government from a gunman. The
gunman’s threat “Your money or your life” forces an
individual to obey with the use of undesirable
consequences should he fail to comply. Hart points out that
being obliged to do something is not the same as being
obligated to do it.
How are governments different from gunmen?
Governments can create obligations by enacting laws.
gunmen, through threats and orders, cannot create any
obligation – moral, legal, or any other kind.
If all societies have rules that impose obligations, why is it
that not all societies have rules that impose legal
obligations?
Not all societies have legal systems. In order to have a legal
system, a society must have certain special kinds of rules
over and above the rules that impose obligations.
III. Primary and Secondary Rules
What are Primary Rules?
These are rules which impose obligations.
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7
What are Secondary Rules?
Rule of Recognition (A rule that singles out the rules that
actually do impose obligations in that society-Basically a
rule for recognizing which rules are valid);
Rules that specify how the legally valid rules can be
changed; and Rules that empower specific individuals to
enforce and apply society’s legally valid rules.
What is a legal system according to Hart?
A legal system is a system that brings together both primary
and secondary rules.
IV. Assessing Hart
How is Hart different from Austin?
Hart can argue that his government of laws is unlike a
gunman in that its exercise of power is regulated and
controlled by secondary rules, while Austin says that the
source of positive law is a sovereign power standing above
and all rules of positive laws
Hart’s International Law
I. Sources of Doubt
What characterizes the rules for states in international law?
The rules for states in international law resemble a simple
form of social structure, consisting only of primary rules of
obligation – rules of prime necessity in a society
What components of municipal law are not present in
international law?
International law lacks secondary rules of change and
adjudication which provide for legislature and courts. Rule
of recognition is also not present. Such provides for general
criteria for identification of rules, giving its binding force.
What are the two principal sources of doubt concerning the
legal character of international law?
In international law, law is considered as a matter of orders
backed by threats. This contrasts the character of rules
between international and municipal law.
Also, international law believes that states are
fundamentally incapable of being subjects of legal
obligation. This contrasts the character of subjects
II. Obligations and Sanctions
What makes a system of law binding?
(1) Validity (2) Imposes an obligation or duty
What is the difference between an external predictive
statement and an internal normative statement?
An external predictive statement connotes suffering for
disobedience while an internal normative statement
connotes a pure obligation to act
What is the concept of sanctions in municipal and
international law?
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In municipal law, physical sanctions are both necessary and
possible. It is also believed that there are no natural
deterrents in breaking the law
In international law, violence between states must be public.
In this regard, organized sanctions involve risks, as there is
no assurance that the side of international order could
prevail over state powers tempted to aggression. No simple
deduction can thus be made upon the necessity of
organized sanctions in international law for it to impose
obligations, and therefore, binding.
III. Obligations and the Sovereignty of States
What is the concept of sovereignty of states?
There is difficulty in accepting or explaining that a state
could at once be both sovereign and also a legal subject.
In most cases, the dependence of one unit, such as that of a
colony, on another (sovereign state) is expressed in legal
forms. In some cases, the legal system of the dependent unit
may not reflect its dependence (e.g. puppet governments,
internally autonomous states)
We can only know which states are sovereign, and its
extent, when we know what the rules are and what they
allow.
What is the Voluntarist Theory or Auto-limitation theory?
The voluntarist/auto-limitation theory treats all international
obligations as self-imposed, like the obligation which arises
from a promise. It is similar to social contract theories which
sought to explain how free and independent individuals, in
their natural state, were bound by law, by treating the
obligation to obey as that of a contract.
What are the arguments against voluntarist theories?
First, it is contended that voluntarist theories fail to explain
how it is known that states can only be bound by self-
imposed obligations.
Second, for a state to impose obligations on itself by
promise, agreement, or treaty, rules must already exist to
bind the state to undertake that promise. Such rules bind
independently of the choice of the bound party, thus it is
inconsistent with the supposition that their sovereignty
demands freedom from such rules.
Third, factual bases are incompatible with voluntaries
theories since they still require the consent of the state to
self-impose. For example, new states are bound by general
obligations of international law, including those that give
binding force to treaties, right when they emerge into
existence. Also, a state undergoing changes or acquiring
territory is subject to rules it formerly had no opportunity to
observe or break, or to give or withhold consent.
IV. International Law and Morality
Can international law be recognized as morality?
Not necessarily. There are several reasons why
international law is not classified as morality. Some of which
are as follows:
Appraisal of states’ conduct in terms of morality is
different from the formulation of claims, demands,
2013 INTRODUCTION TO LAW PRIMER
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and the acknowledgment of rights and obligations
under rules of international law
Claims under international law are not couched in
terms that appeal to conscience, though like in
municipal law, may be joined with a moral appeal
Rules of international law are morally indifferent
The very idea of change by human legislative fiat is
repugnant to the idea of morality, as we conceive it
as the ultimate standard
Moral obligation in the course of conduct in
international law is neither apparent nor necessary.
Compare and contrast the form and content of international
and municipal law.
International law resembles in form, but not in content, a
simple regime of primary and customary law.
Municipal law does not recognize the validity of agreements
extorted by violence while International law does not.
In international tribunals, no state can be brought before it
without its consent, unlike municipal courts.
According to Kelsen and other modern theorists,
international, like municipal law, possess a rule of
recognition, and the other rules constitute a single system.
On the other hand, an opposed view states that international
law consists of sets of separate primary rules of obligation,
and of which the rule giving binding force to treaties is such.
Is a basic rule of recognition a necessary condition of the
existence of rules of obligation or binding rules?
No
Describe a system with a rule of recognition. Does
international law accept the rule of recognition?
In such a system, a rule will be valid if it conforms to the
requirements of the rule of recognition.
International law is in a stage of transition towards
acceptance of a rule of recognition, which would bring it
nearer in structure to a municipal system.
V. Analogies of Form and Content
What analogies can be made between international and
municipal law?
Analogies of function and content can be made but not of
form. Analogies of function reflect on ways on how
international law differs from morality. Analogies of content
are in the range of principles, concepts, and methods
common to both municipal and international law.
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Philippine Legal History:
Relevant Jurisprudence I. Colonial Setting: Rubi v. Provincial Board of Mindoro
A. Comprehensive Digest
FACTS:
Section 2145 of the Administrative Code of 1917 provided:
SEC. 2145. Establishment of non-Christian upon sites selected by provincial governor. — With the prior
approval of the Department Head, the provincial
governor of any province in which non-Christian
inhabitants are found is authorized, when such a
course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their
habitation on sites on unoccupied public lands to be
selected by him and approved by the provincial
board.
Pursuant to the above law, the provincial board of Mindoro
adopted Resolution No. 25 allocating 800 hectares of public
land in the sitio of Tigbao on Naujan Lake as a site for the
permanent settlement of Mangyanes in Mindoro. Moreover,
the provincial governor issued Executive Order No. 2
directing all the Mangyans in the towns of Naujan and Pola
and the Mangyans east of the Baco River including those in
the districts of Dulangan and Calapan, to take up their
habitation on the site of Tigbao, Naujan Lake.
The Order stated further that any Mangyan who shall refuse
to comply shall upon conviction be imprisoned for a period
not exceeding in sixty days, in accordance with Section
2759 of the Revised Administrative Code.
A petition for habeas corpus in favor of Rubi and other
Manguianes of the Province of Mindoro was filed. It was
alleged that the Manguianes were being illegally deprived
of their liberty by the provincial officials.
ISSUE/S:
Whether or not the petition should be granted;
a) W/N (whether or not) Section 2145 of the Administrative
Code of 1919 was unconstitutional on the ground of invalid
delegation of legislative power.
b) W/N Section 2145 of the Administrative Code of 1919 was
unconstitutional on the ground of religious discrimination.
c) W/N Section 2145 of the Administrative Code of 1919 was
unconstitutional on the ground that it denied liberty without
due process of law and violated equal protection.
d) W/N Section 2145 of the Administrative Code of 1919 was
unconstitutional on the ground that it constituted slavery and
involuntary servitude.
e) W/N Section 2145 of the Administrative Code of 1919 was
a valid exercise of police power.
RATIO:
a) Section 2145 of the Administrative Code of 1919 was a
valid delegation oflegislative power by the Legislature. The
Legislature merely conferred, uponthe provincial governor
with the approval of the provincial board and the
2013 INTRODUCTION TO LAW PRIMER
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13
department head, discretionary authority as to its execution,
to be exercised under and in pursuance of the law.
b) Since the term "non-Christian" was construed to refer to
the natives with a low grade of civilization, Section 2145 of
the Administrative Code of 1919 does not discriminate
between individuals on account of religious differences.
c) Section 2145 of the Administrative Code of 1919 did not
unduly interfere with the liberty of the petitioners.
Considering the degree of civilization of the Manguianes,
the restraint was for their own good and the general good
the Philippines. Neither did the law violate due process and
equal protection since (a) the law was reasonable, (b) it was
enforced according to the regular methods of procedure
and (c) it applied to equally to all in the same class.
d) Confinement in reservations in accordance with the said
law did not constitute slavery and involuntary servitude.
The purpose of the Government was evident. The
Mangyans, led a nomadic life and made depredations on
their more fortunate neighbors, were uneducated in the
ways of civilization, and did nothing for the advancement of
the Philippine Islands. What the Government wished to do
by bringing than into a reservation was to gather together
the children for educational purposes, and to improve the
health and morals. The process of civilizing the Mangyans
required that they be gathered together. “Segregation”
really constituted “protection” for the Mangyans.
e) It was a valid exercise of police power. The Government
of the Philippine Islands has both on reason and authority
the right to exercise the sovereign police power in the
promotion of the general welfare and the public interest.
The fundamental objective of the law was to establish
friendly relations with the so-called non-Christians, and to
promote their educational, agricultural, industrial, and
economic development and advancement in civilization.
RULING:
Petitioners are not unlawfully imprisoned or restrained of
their liberty. Habeas corpus cannot issue.
B. Case Primer
What is the rule of "postestas delegata"?
The complete phrase is "Delegata potestas non potest
delagari" which means that, "no delagated power cannot be
further delegated."
What is legislative power?
It is the power to make laws.
Can legislative power be delegated?
Point to Ponder: Under current
socio-cultural norms, would the case be decided in the same way?
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As a general rule, legislative power is vested in the
Congress and cannot be delegated. The Rubi case admits
an exception to this rule. The power can be delegated to
local government units.
What is the term for laws made by the Congress?
Statues.
What is the term for the legislation made by LGUs?
Ordinances.
Distinguish laws from ordinances.
Laws are more authoritative than ordinances. The rule is that
for an ordinance to be valid, it should not contravene with a
statue or the Constitution.
B. Recitation-Ready Digest:
Rubi and other Manguianes were detained in a reservation
for non-Christian tribes in Mindoro as ordered by the
governor and the provincial board in accordance with the
Administrative Code (authorizing them to do so when
necessitated by law and order). Said Code is allegedly an
undue delegation upon the governor and the provincial
board. The court found the allegation untenable. The rule of
potestas delagata is not absolute. However, delegation of
legislative powers to LGUs is sanctioned by immemorial
practice (as in this case). Local officials are in the best
position to know when what actions are in the interest of law
and order. Discretion as to what the law shall be constitutes
undue delegation. However, discretion as to how to execute
it is allowed.1
II. War Period: Co Kim Cham v. Valdez Tan Keh
A. Comprehensive Digest
FACTS:
On January 2, 1942 Japanese Forces occupied the city of
Manila. On the next day, the Commander in Chief of the
Japanese forces declared that so far as the military
administration permits all the laws established in the
Commonwealth as well, executive and judicial institutions
shall continue to be effective as in the past. All public
officials shall also remain in their posts.
On January 23, 1942 a civil government under the name
Philippine Executive Commission was organized by the
Japanese with Jorge B. Vargas as Chairman.
On October 14, 1943 the so-called Republic of the
Philippines was inaugurated by the Japanese but no
substantial change was effected in the organization and
jurisdiction of the different courts and in the laws they
administered and enforced.
On October 23, 1944, a few days after he landed in Leyte
(Philippines not yet liberated), General Douglas Macarthur
issued a proclamation to the People of the Philippines:
1. That the Government of the Commonwealth of the
Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only
government having legal and valid jurisdiction over
1 Daniel Darvin, Darvin’s Digest of Political Law Cases.
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15
the people in areas of the Philippines free of enemy
occupation and control;
2. That the laws now existing on the statute books of
the Commonwealth of the Philippines and the
regulations promulgated pursuant thereto are in full
force and effect and legally binding upon the people
in areas of the Philippines free of enemy occupation
and control; and
3. That all laws, regulations and processes of any other
government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy
occupation and control.
On February 3, 1945 the city of Manila was partially
liberated. General Douglas MacArthur restored the full
powers and responsibilities under the Constitution to the
Commonwealth.
In the light of these facts, Respondent Judge Dizon refused
to recognize and continue the civil case filed by the
petitioner during the Japanese occupation stating that the
1944 declaration of Gen. MacArthur had the effect of
nullifying and invalidating all the proceedings and
judgments of the court of the Philippines under the Japanese
Military Occupation.
Thus the petition for mandamus (to compel) Judge Dizon to
continue the civil case (no.3012) that was filed by the
petitioner during the regime of the so-called Republic of the
Philippines.
ISSUE/S:
a) W/N the judicial acts and proceedings of the court under
the Philippine Executive Commission and Republic of the
Philippines (both under Japanese control) remained good
and valid even after the liberation of the Philippines.
b) W/N proclamation no.3 on 1944 by Gen. MacArthur (see
above) has invalidated all judicial acts and proceedings of
the said courts.
c) If the said acts and proceedings were not invalidated by
the proclamation (see no. 2 issue), may the present
Commonwealth (after liberation) courts continue those
proceedings?
RATIO:
a) Yes, because the Philippine Executive Commission and
theRepublic of the Philippines as established by the
Japanese are considered as de facto governments. It is a
legal truism in political and international law that all acts and
proceedings of the judicial, executive and legislative
department of a de facto government are good and valid.
The 3 Types of De Facto Government:
1. That government that gets possession and control
of, or usurps, byforce or by the voice of the majority,
the rightful legal governments and maintains itself
against the will of the latter
2. That which is established and maintained by
military forces who invade and occupy a territory of
the enemy in the course of war, and which is
denominated a government of paramount force
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3. That established as an independent government by
the inhabitants of a country who rise in insurrection
against the parent state of such.
Distinguishing characteristics of the second type of de facto
government:2
1. That its existence is maintained by active military
power with the territories, and against the rightful
authority of an established and lawful government;
and
2. That while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government.
Powers and duties of the second type of de facto government are regulated in Section III of The Hague
Conventions of 1907:
Belligerent occupant has the right and duty to insure
public duty and public safety during military
occupation.
He may suspend the old laws and promulgate new
ones
He is enjoined to respect (unless absolutely prevented
by the circumstance) the municipal laws (laws which
enforce public order and regulate social and
commercial life)
2 Thorington v. Smith.
On the other hand, political laws or those of political
nature (e.g. right to travel, right to bear arms, right of
assembly, freedom of the press) are considered as
suspended.
Although local and civil administration of justice are
suspended as a country is militarily occupied, in actual
practice local tribunals and judges are authorized to
continue administering justice.
The third type of de facto government: Doctrine in Baldy v.
Hunter on the de facto government established by the
Confederate States that were in a state of war with the
United States—“Judicial and legislative acts in the
respective states composing the so—called Confederate
states should be respected by the courts if they were not
hostile in their purpose and mode of enforcement to the
authority of the National Government, and did not impair the
rights of the citizens under the Constitution.”
The Philippine Executive Commission and the
Republic of the Philippines are both de facto
governments of the second type because the source of
their authority is the Japanese authority and
Government. They were a government established by
the belligerent occupant.
The governments by the Philippine Executive
Commission and the Republic of the Philippines
during the Japanese military occupation being de facto governments, it necessarily follows that the
judicial acts and proceedings of the courts of justice of
those governments, which are not of a political
complexion, were good and valid, and, by virtue of
the well-known principle of postliminy (postliminium)
in international law, remained good and valid after the
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liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of
General Douglas MacArthur.
b) No, the phrase, “processes of any other government”
could not be construed to include judicial processes
because it would violate international laws as discussed
above and it will result to great inconvenience and public
hardship and great public interest would be sacrificed if
ALL processes were invalidated. The proclamation of
General MacArthur has not invalidated the judicial acts and
proceedings that are not of political complexion.
Commonwealth Executive Order No.37, which was issued
after the restoration of the Commonwealth Government,
states that (1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended,
be abolished, as it is hereby abolished,” and “(2) that all
cases which have heretofore been duly appealed to the
Court of Appeals shall be transmitted to the Supreme Court
for final decision. EO No.37 thus recognizes that the Court of
Appeals that was abolished is the same Court of Appeals
before the Japanese occupation and during the Japanese
Occupation. All cases pending in the CA are then to be
forwarded to the Supreme Court regardless of whether they
were initiated prior to or during the Japanese occupation.
c) Yes, the courts have the jurisdiction to continue the
proceedings.
1. Theoretically, Japan has the authority to change the
preexisting executive, legislative and judicial forms of
government of the occupied country. In actual
practice, the substitution or change is often restrained
by the laws of nations and in order to unnecessarily
disrupt the ordinary pursuits and business of society.
2. The courts during the Philippine Executive
Commission and the so-called Republic of the
Philippines are the same courts after the liberation.
Thus, they have been in continued existence and by
virtue of the principle of postliminy may continue the
proceedings in cases pending on the same courts.
3. Commonwealth Executive Order No.37 (See Issue
No.2)
RULING:
In view of all the foregoing it is adjudged and decreed that a
writ of mandamus issue, directed to the respondent judge of
the Court of First Instance of Manila, ordering him to take
cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
DISSENTS:
J. Perfecto, dissenting
In times of war the Commander in Chief of an army is vested
with extraordinary inherent powers, as a natural result of the
nature of the military operations aimed to achieve the
purposes of his country in the war, victory being paramount
among them.
1. “PROCESS” IN THE OCTOBER PROCLAMATION
A “process” is an instrument in an epistolary from running
in the name of the sovereign of a state and issued out of a
court of justice, or by a judge thereof, at the commencement
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of an action or at any time during its progress or incident
thereto, usually under seal of the court, duly attested and
directed to some municipal officer or to the party to be
bound by it, commanding the commission of some act at or
within a specified time, or prohibiting the doing of some act.
The cardinal requisites are that the instrument issue from a
court of justice, or a judge thereof; that it run in the name of
the sovereign of the state; that it be duly attested, but not
necessarily by the judge, though usually, but not always,
under seal; and that it be directed to someone commanding
or prohibiting the commission of an act.
There is no question that the word process, as used in the
October Proclamation, includes all judicial processes or
proceedings.
The intention of the author of the proclamation of including
judicial processes appears clearly in the preamble of the
document.
It is evident from the above-mentioned words that it was the
purpose of General MacArthur to declare null and void all
acts of government under the Japanese regime, and he
used, in section 3 of the dispositive part, the word laws, as
pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word
processes, as pertaining to the judicial branch of the
government which functioned under the Japanese regime.
2. THE WORDS OF PROCLAMATION EXPRESS
UNMISTAKABLYTHE INTENTION OF THE AUTHOR
Justice Holmes: “When the words in their literal sense have
a plain meaning, courts must be very cautious in allowing
their imagination to give them a different one.”
That our laws are in full force and effect and legally binding;
that “all laws, regulations and processes of any other
government are null and void and without legal effect”, are
provisions clearly, distinctly, unmistakably expressed in the
October Proclamation, as to which there is no possibility of
error, and there is absolutely no reason in trying to find
different meanings of the plain words employed in the
document.
3. THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR
POLICY
General MacArthur sought to annul completely the officials
acts of the governments under the Japanese occupation,
because they were done at the shadow of the Japanese
dictatorship. All traces of Japanese influence were sought to
be eradicated.
4. INTERNATIONAL LAW IS NOT FIXED; IT IS CONSTANTLY
CHANGING
An author said that the law of nations, the "jus gentiun", is
not a fixed nor immutable science. On the country, it is
developing incessantly, it is perpetually changing in forms.
Our Constitution provides: The Philippines renounces war
as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of
the Nation. (Sec. 3, Art. II.)
Due to that characteristic pliability and imprecision of
international law, the drafters of our Constitution had to
content themselves with "generally accepted principles."
We must insist, therefore, that the principles should be
specific and unmistakably defined and that there is definite
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and conclusive evidence to the effect that they generally
accepted among the civilized nations of the world and that
they belong to the current era and no other epochs of
history.
Is there any principle of international law that may effe ct
the October Proclamation? We tried in vain to find out in the
majority opinion anything as to the existence of any
principle of international law under which the authority of
General MacArthur to issue the proclamation can effectively
be challenged.
No principle of international law has been, or could be
invoked as a basis for denying the author of the document
legal authority to issue the same or any part thereof.
That General MacArthur had full legal authority to issue the
October Proclamation, and that no principle of the
international law is violated by said proclamation, no
international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.
That said proclamation was issued in full conformity with the
official policies to which the United States and Philippine
Governments were committed, and the annulment of all the
facts of the governments under the Japanese regime,
legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.
J. Hilado, dissenting
1. The proceedings in said civil case No. 3012 are null and
void under General of the Army MacArthur's proclamation
of October 23, 1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine
Executive Commission "and later as the Republic of the
Philippines", established here by the Commander in Chief
of the Imperial Japanese Forces or by his order was not a
de-facto government — the so-called Court of First Instance
of Manila was not a de facto court, and the judge who
presided it was not a de facto judge; (b) the rules of
International Law regarding the establishment of a de facto
Government in territory belonging to a belligerent but
occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by
Japan;
3. The courts of those governments were entirely different
from our Commonwealth courts before and after the
Japanese occupation;
4. The question boils down to whether the Commonwealth
Government, as now restored, is to be bound by the acts of
either or both of those Japanese-sponsored governments;
5. Even consideration of policy of practical convenience
militates against petitioner's contention.
B. Case Primer3
How are the governments classified according to their
legitimacy?
Governments are either de jure or de facto.
3 JOAQUIN G. BERNAS, S.J., 1987 PHILIPPINE CONSTITUTION: A
COMPREHENSIVE REVIEWER 10-11 (2011 ed. 2011).
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What is a de jure government?
It is established by authority of the legitimate sovereign or
the will of the people as expressed in the fundamental law.
What is a de facto government?
It is established in defiance of the legitimate sovereign.
What are the 3 types of de facto governments?
1) The government that gets possession and control of,
or usurps, by force or by the voice of the majority.
2) That which is established and maintained by
invading military forces.
3) Established as an independent government by the
inhabitants of a country who rise in insurrection
against the parent state. Co Kim Cham v. Valdez Tan Keh, 75 Phil. 113 (1945)
What was the type of government under Cory Aquino and
the Freedom Constitution?
De jure. It was established by authority of the legitimate
sovereign, the people. It was a revolutionary government
established in defiance of the 1973 Constitution. In re Letter
of Associate Justice Puno, 210 SCRA 589, 598 (1992)
What was the type of gov't under Gloria Arroyo after the
ouster of Estrada?
De jure. She assumed office in accordance with the rule of
succession under the Constitution.
C. Recitation-Ready Digest:
A belligerent (Japan) has authority (under the laws of war –
Hague Conv.) to occupy the territory of the enemy
(Philippines) and establish therein a de facto government
(Philippine Executive Commission). Co Kim Chan had a
pending civil case, initiated during the Japanese
occupation, with the Court of First Instance of Manila. After
the Liberation of the Manila and the American occupation,
Judge Arsenio Dizon refused to continue hearings on the
case, saying that a proclamation issued by General Douglas
MacArthur had invalidated and nullified all judicial
proceedings and judgments of the courts of the Philippines
and, without an enabling law, lower courts have no
jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic
of the Philippines (the Philippine government under the
Japanese). The political laws of the legal government are
suspended, but not the civil laws (unless superseded by
occupying power – as in this case). The bonds of society are
not severed. Similarly, acts done by the occupying power
(Executive Commission) such as laws, regulation, decisions,
w/c are not political in nature also subsist even after the
liberation (doctrine of postliminy). Otherwise, social life will
be paralyzed.4
III. People Power Revolution: Republic v. Sandiganbayan
A. Comprehensive Digest
FACTS:
The AFP Anti-Graft Board (AFP Board, Petitioner) under the
Presidential Commission on Good Government (PCGG,
4 Daniel Darvin, Darvin’s Digest of Political Law Cases.
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Petitioner) investigated reports of alleged unexplained
wealth of Major General Josephus Q. Ramas (Ramas,
Respondent).
Police officers, acting under the authority of the PCGG,
conducted a raid on the house of Elizabeth Dimaano
(Dimaano, Respondent), a confidential agent of the Military
Security Unit and alleged of mistress of Ramas. On 3 March
1986, the raiding team served at Dimaano’s residence a
search warrant captioned “Illegal Possession of Firearms
and Ammunition.” Dimaano was not present during the raid
but Dimaano’s cousins witnessed the raid. The raiding team
seized the items detailed in the seizure receipt together with
other items not included in the search warrant.
The raiding team seized the following items: one baby
armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications
equipment, cash consisting of Php2,870,000 and US$50,000,
jewelry, and land titles. Of these items, the money,
communications equipment, jewelry and land titles were not
included in the warrant.
The AFP Board then filed complaints against Ramas and
Dimaano for alleged violations of RA 3019 (Anti-Graft and
Corrupt Practices Act) and RA 1379 (The Act for the
Forfeiture of Unlawfully Acquired Property). Respondents
Ramas and Dimaano filed a motion to dismiss the complaint.
Citing Republic vs Migrino5, the respondents argued that
the PCGG did not have jurisdiction to investigate and
prosecute military officers by reason of mere position held
without showing that such officers were “subordinates” of
former President Marcos.
5 Republic v. Migrino, G.R. No. 89483, 30 August 1990, 189 SCRA
289.
The Sandiganbayan granted respondents’ motion and
dismissed the complaint on the following grounds:
1) The actions taken by the PCGG are not in
accordance with the rulings of the Supreme Court in
Cruz, Jr. v. Sandiganbayan6 and Republic v. Migrino which involve the same issues.
2) No previous inquiry similar to preliminary
investigations in criminal cases was conducted against
Ramas and Dimaano.
3) The evidence adduced against Ramas does not
constitute a prima facie case against him.
4) There was an illegal search and seizure of the items
confiscated. Subsequently, Petitioner filed a petition
for review on certiorari asking the high court to set
aside the resolution of the Sandiganbayan dismissing
the complaint.
ISSUES:
a) W/N the PCGG had jurisdiction to investigate the
respondents.
b) W/N the Sandiganbayan’s dismissal of the case prior to
the completion of the presentation of evidence was proper.
6 Cruz v. Sandiganbayan, G.R. No. 94595, 26 February 1991, 194
SCRA 474.
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c1) W/N the revolutionary government organized after the
EDSA Revolution was bound by the Bill of Rights of the 1973
Constitution during the interregnum.7
c2) W/N the protection accorded to individuals under the
International Covenant on Civil and Political Rights (ICCPR)
and the Universal Declaration on Human Rights (UDHR)
remained in effect during the interregnum.
c3) W/N the search and seizure conducted by police
officers on Dimaano’s residence was legal.
RATIO:
a) The PCGG, through the AFP Board, could only investigate
the unexplained wealth and corrupt practices of AFP
personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are: (1) AFP
personnel who have accumulated ill-gotten wealth during
the administration of former President Marcos by being the
latter’s immediate family, relative, subordinate or close
associate, taking undue advantage of their public office or
using their powers, influence x x x; or (2) AFP personnel
involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.
Ramas did not fall under either category.
7 Following the EDSA Revolution and the departure of Marcos, a
revolutionary government was established. The interregnum was
the period from the take-over by the revolutionary government in
defiance of the 1973 Constitution to the promulgation of the
Freedom Constitution. In other words, the interregnum was the
period when no Constitution was in effect. Note: The Freedom
Constitution is NOT the 1987 Constitution which is currently in
effect. The Freedom Constitution came before the 1987
Constitution and was provisional.
First, Ramas was not a “subordinate” of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments. Republic vs. Migrino held that mere position
held by a military officer does not automatically make him a
“subordinate” as this term is used in EO Nos. 1, 2, 14 and
14-A absent a showing that he enjoyed close association
with former President Marcos.
Second, Petitioner did not claim that the President assigned
Ramas’ case to the PCGG.
In sum, the PCGG had no jurisdiction over the Respondents.
b) The failure to complete the presentation of evidence was
due to Petitioner’s own fault. The case had been pending for
four years before the Sandiganbayan dismissed it. Petitioner
filed its amended complaint on 11 August 1987, and only
began to present its evidence on 17 April 1989.
Petitioner had almost two years to prepare its evidence.
However, despite this sufficient time, petitioner still delayed
the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions.
Furthermore, the rulings in Migrino5 and Cruz6 are
sufficient bases for the dismissal of the complaint.
In sum, the Sandiganbayan did not err in dismissing the
complaint.
c1) The EDSA Revolution took place on 23-25 February
1986. As succinctly stated in President Aquino’s
Proclamation No. 3 dated 25 March 1986, the EDSA
Revolution was “done in defiance of the provisions of the 1973 Constitution.” The resulting government was
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indisputably a revolutionary government bound by no
constitution or legal limitations.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because
no constitution limited the extent and scope of such
directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the
revolutionary government. Thus, during the interregnum, a
person could not invoke any exclusionary right under a Bill
of Rights because there was neither a constitution nor a Bill
of Rights during the interregnum.
c2) The revolutionary government, after installing itself as
the de jure government, assumed responsibility for the
State’s good faith compliance with the Covenant to which
the Philippines is a signatory. Article 2(1) of the Covenant
requires each signatory State “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant.” Under
Article 17(1) of the Covenant, the revolutionary government
had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence.”
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that “[n]o one shall be
arbitrarily deprived of his property.”
The revolutionary government did not repudiate the
Covenant or the Declaration in the same way it repudiated
the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility
for the State’s good faith compliance with its treaty
obligations under international law.
In sum, the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, the protection
accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
c3) The warrant for the search and seizure was issued by
the authority of the Revolutionary government and was
therefore valid. Consequently, the seizure of items specified
in the warrant was also valid.
However, the search and seizure of items not specified in
the warrant was unlawful.
While the Bill of Rights which protected citizens from
unlawful seizures could not be invoked, similar rights
guaranteed under the Covenant and Declaration remained
in effect.
Thus, the items illegally seized must be returned to the
person from whom the raiding team seized them.
RULING:
a) The PCGG had no jurisdiction to investigate and cause
the filing of a forfeiture petition against Ramas and Dimaano.
b) The Sandiganbayan did not err in dismissing the case
before the completion of the presentation of petitioner’s
evidence.
c1) The revolutionary government was established in
defiance of the provisions of the 1973 Constitution. It was a
de jure government4 and was not bound by a constitution or
the Bill of Rights.
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c2) The revolutionary government was bound by the treaty
obligations of the Philippines. Thus, the protection under the
ICCPR and the UDHR remained in effect.
c3) The search and seizure was legal with regard to the
items specified in the warrant. On the other hand, the search
of seizure of items not included in the warrant was illegal.
B. Case Primer
Why was the PCGG established?
The PCGG’s task is to recover the alleged ill-gotten wealth
of the Marcoses.
What is an interregnum?
It is the period where no Constitution or fundamental law
existed. As such, the Bill of Rights was not operative during
the interregnum.
When was the interregnum?
February 26, 1986 - March 24, 1986
When was the effectivity of the Freedom Constitution?
March 25, 1986 - February 10, 1987
When was the 1987 Constitution ratified?
February 11, 1987
What was the relevant provision in the Bill of Rights which
the petitioner argued was inoperative?
The Bill of Rights of the 1973 Constitution requires the
government to procure a search warrant before searching
any property of an individual. Although the Constabulary
secured a warrant, they seized items not included in
the warrant and hence, petitioner argued that the search
was nevertheless valid since the Bill of Rights was non-
existent during that time.
Despite the non-existence of the Bill of Rights, why did the
court rule that the search was illegal?
Although there was no fundamental law, the State still has to
comply with its treaty obligations under the international
law. The Philippines is a signatory of the Universal
Declaration of Human Rights and the International Covenant
on Civil and Political Rights, both of which guaranty the life,
liberty, and property of an individual.
C. Recitation-Ready Digest
Dimaano’s house was searched by PCGG, yielding firearms
(sequestration order) and money, and titles, jewelry (not
covered). Allegedly illegal search.
Republic contends that the Bill of Rights was not operative
during interregnum (between overthrow of Marcos and
enactment of 1987 Constitution). True, the 1973 Bill of Rights
was inoperative (abrogated by the revolution, the whole
legal order nullified) during the interregnum; no municipal
law to govern revolutionary government. But the ICCPR and
UDHR were effective. (1987 Constitution was prospective).
The revolutionary succeeding government (Aquino)
inherited the international obligations of the last regime.
Interpreted as covered by incorporation clause.
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Items not covered by order must be returned. But
sequestration was valid. Puno Dissent: the right against search and seizure existed during that time, based on natural law.8
LAW IN CONTEXT SELF-DETERMINATION: CHALLENGES TO EXISTING LEGAL
REGIMES
I. Indigenous Peoples, Ancestral Domain, and the
Environment: Cruz v. Secretary of DENR
A. Comprehensive Digest
Isagani Cruz and Cesar Europa filed a suit assailing the
constitutionality of certain provisions of RA 8371 (Indigenous
Peoples Rights of 1997).
a) Petitioners assail the constitutionality of the following
provisions of the IPRA and its Implementing Rules on the
ground that they amount to an unlawful deprivation of the
State’s ownership over lands of the public domain in
violation of the regalian doctrine (all public lands belongs to
the state) embodied in Section 2, Article XII of the
Constitution:
“(1) Section 3(a) which defines the extent and
coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;
“(2) Section 5, in relation to section 3(a), which
provides that ancestral domains including inalienable
8 Daniel Darvin, Darvin’s Digest of Political Law Cases.
public lands, bodies of water, mineral and other
resources found within ancestral domains are private
but community property of the indigenous peoples;
“(3) Section 6 in relation to section 3(a) and 3(b) which
defines the composition of ancestral domains and
ancestral lands;
“(4) Section 7 which recognizes and enumerates the
rights of the indigenous peoples over the ancestral
domains;
“(5) Section 8 which recognizes and enumerates the
rights of the indigenous peoples over the ancestral
lands;
“(6) Section 57 which provides for priority rights of the
indigenous peoples in the harvesting, extraction,
development or exploration of minerals and other
natural resources within the areas claimed to be their
ancestral domains, and the right to enter into
agreements with nonindigenous peoples for the
development and utilization of natural resources
therein for a period not exceeding 25 years,
renewable for not more than 25 years; and
“(7) Section 58 which gives the indigenous peoples
the responsibility to maintain, develop, protect and
conserve the ancestral domains and portions thereof
which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries,
wilderness, protected areas, forest cover or
reforestation.
b) Petitioners also contend that, by providing for an all-
encompassing definition of “ancestral domains” and
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“ancestral lands” which might even include private lands
found within said areas, Sections 3(a) and 3(b) violate the
rights of private landowners.
c) In addition, petitioners question the provisions of the
IPRA defining the powers and jurisdiction of the NCIP and
making customary law applicable to the settlement of
disputes involving ancestral domains and ancestral lands on
the ground that these provisions violate the due process clause of the Constitution.
These provisions are:
“(1) sections 51 to 53 and 59 which detail the process
of delineation and recognition of ancestral domains
and which vest on the NCIP the sole authority to
delineate ancestral domains and ancestral lands;
“(2) Section 52[i] which provides that upon
certification by the NCIP that a particular area is an
ancestral domain and upon notification to the following
officials, namely, the Secretary of Environment and
Natural Resources, Secretary of Interior and Local
Governments, Secretary of Justice and Commissioner
of the National Development Corporation, the
jurisdiction of said officials over said area terminates;
“(3) Section 63 which provides the customary law,
traditions and practices of indigenous peoples shall be
applied first with respect to property rights, claims of
ownership, hereditary succession and settlement of
land disputes, and that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor of the
indigenous peoples;
“(4) Section 65 which states that customary laws and
practices shall be used to resolve disputes involving
indigenous peoples; and
“(5) Section 66 which vests on the NCIP the jurisdiction
over all claims and disputes involving rights of the
indigenous peoples.”
d) Finally, petitioners assail the validity of Rule VII, Part II,
Section 1 of the NCIP Administrative Order No. 1, series of
1998, which provides that “the administrative relationship of
the NCIP to the Office of the President is characterized as a
lateral but autonomous relationship for purposes of policy
and program coordination.” They contend that said Rule
infringes upon the President’s power of control over
executive departments under Section 17, Article VII of the
Constitution. 7 members of the court voted to dismiss the
petition and 7 others voted to the grant the petition. The
necessary majority was not obtained and the case was again
deliberated upon.
However, the voting remained the same. Pursuant to Rule
56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
B. Case Primer
What is the regalian doctrine?
In public law, a distinction is made between imperium and
dominium. Imperium is the government authority possessed
by the state expressed in the concept of sovereignty.
Dominium is the capacity of the state to own or acquire
property.Section 2 Article XII of the 1987 constitution
expressly provides that all lands of the public domain and
other natural resources are owned by the State.
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Define ancestral domain.
According to the IPRA, it consists of all areas generally
belonging to the IP's comprising lands, inland waters,
coastal areas, and natural resources therein possessed by
them since time immemorial.
Define ancestral land.
It refers to land possessed, occupied, and utilized by IP's
since time immemorial.
Distinguish ancestral domain from ancestral land.
Ancestral domain is broader since it covers more than land
and includes, inland waters, coastal areas, and natural
resources.
Why was the case dismissed?
Seven members of the court voted to grant the petition and
7 others voted to dismiss the petition. The majority vote was
not obtained. The case was again deliberated upon but the
result remained the same. Pursuant to the Rules of Civil
Procedure, the petition will be dismissed if the majority was
not obtained, even if the votes ended up in a tie.
C. Recitation-Ready Digest
Constitutionality of provisions of Indigenous Peoples’ Rights
Act (IPRA) challenged – as violative of regalian doctrine, &
due process. Provides that ancestral domains form
communal property of IPs, granting them rights to
harvest/exploit nat. resources, enter into agreements
concerning the same, application of customary law &
traditions/practices in resolving disputes, all doubts
resolved in favor of IPs. SC Voting: 7-7 (tie). Thus, still
constitutional.
Pro Opinions: Ancestral lands are not public domain – they
are private, belong to IPs. Butthe ownership over ancestral
domains does not include the natural resources. The right to
negotiate & enter into agreements cover only exploration but not exploitation of nat. resources & for the purpose of
protecting the same only. Also, though the IPs have priority
of rights to explore/exploit the resources, it is not an
exclusive right. State does not lose control over such
resources (may still enter into co-production, etc. w/ private
entities to exploit them). (Justices Davide, Kapunan,
Bellosillo, Quisumbing, Santiago, Puno and Mendoza)
Anti-Opinions: Amounts to abdication of state’s rights over
vast patrimony, including relinquishment of control over
nat. resources vested by Consti. upon state in favor of IPs.
This was provided by the law itself. This violates Consti.
provision that the State owns all natural resources. (Justices
Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon,
Panganiban and Vitug)9
9 Daniel Darvin, Darvin’s Digest of Political Law Cases.
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II. Bangsamoro People: Province of North Cotabato v. GRP
Panel
A. Comprehensive Digest
Consolidation of 5 cases, namely:
GR No. 183591 Petitioners – Province of North Cotabato (represented
by Gov. Jesus Sacdalan and Vice Gov. Emmanuel
Pinol)
Respondents – Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP)
Note: Atty. Sedfrey Candelaria represents GRP, as
well as Secretary Rodolfo Garcia, Atty. Leah
Armamento, and Gen. Hermogenes Esperon
(Presidential Adviser on Peace Process)
GR No. 183752 Petitioners – City Government of Zamboanga,
represented by Mayor Celso Lobregat
Respondents – same
GR No. 183893 Petitioners – City of Iligan, represented by Mayor
Lawrence Lluch Cruz Respondents – same, with Executive Secretary
Eduardo Ermita
GR No. 183951 Petitioners – Provincial Government of Zamboanga del
Norte, represented by Gov. Rolando Yebes, etc. Respondents – GRP
GR No. 183962
Petitioners – Ernesto Maceda, Jejomar Binay, Aquilino
Pimentel III Respondents – GRP, MILF Negotiating Panel
represented by Chairman Mohagher Iqbal
Petitioners-in-intervention – Franklin Drilon, Adel
Tamano, Senator Manuel Roxas, City of Isabela,
Province of Sultan Kudarat, peoples in Mindanao not
belonging to MILF, etc.
GENERAL OVERVIEW:
Center of Controversy: MOA-AD, or the Memorandum of
Agreement on the Ancestral Domain, Aspect of the Tripoli
Agreement on Peace of 2001 between GRP and MILF. It is
scheduled to be signed on August 5, 2008 at Kuala Lumpur.
The petitioners contended that GRP and Presidential
Adviser on Peace Process drafted the terms of the MOA-AD
even without consultation with the local government units
affected (see petitioners). They are invoking their right to
information on matters of public concern (Article 3, Section
7 of the 1987 Constitution), seeking the disclosure of the
complete contents of the MOA-AD. In addition, the
petitioners pray that the City of Zamboanga be excluded
from the Bangsamoro Juridical Entity, or the BJE (to be discussed later).
FACTS:
MILF, or the Moro Islamic Liberation Front was established
in March 1984 under the leadership of Salamat Hashim. It
splintered from the Moro National Liberation Front (headed
by Nur Misuari), because Salamat perceived that the MNLF
is shifting away from Islamic ideologies to Marxist-Maoist
orientations.
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Since 1996, there was already a long process of peace
negotiations between the government and the MILF such as
the Agreement on Cessation of Hostilities (1997), and
General Framework of Agreement of Intent (1998), but still it
was not successful.
1999-2000: President Estrada declared an all-out war when
the MNLF took control of Kauswagan, Lanao del Norte. It
lasted until PGMA assumed office (2001): peace negotiation
resumes, with the help of the Malaysian Government
through Prime Minister Mahathir Mohammad. The GRP and
the MILF finally negotiated.
The two panels had a meeting in Tripoli and came out with
the GRPMILF Tripoli Agreement on Peace. Some basic
aspects are:
Security – Ceasefire Status between partie.
Rehabilitation – Implementing guidelines on the
Humanitarian Rehabilitation
Ancestral Domain – parties simply agreed that it will be discussed in their next meetings
Despite the efforts, there were still incidents of violence. In
2003, Hashim passed away and replaced by Al-Haj Murad.
The chief peace negotiator was taken over by Mohagher
Iqbal.
In 2005 several talks were held in Kuala Lumpur between
the GRP and the MILF, until they drafted the MOA-AD in its
final form, ready to be signed on August 5, 2008.
The Memorandum of Agreement on the Ancestral Domain
The terms of the MOA-AD were divided into 4: Concepts and Principles, Territory, Resources, and Governance (Sidenote: There are too many terms in the MOA-AD. What you are about to read are the most important parts of the memorandum)
Concepts and Principles
Bangsamoro People – referred to as the natives or
original inhabitants of Mindanao and its adjacent
islands, including Palawan and the Sulu archipelago at
the time of conquest or colonization, including their
descendants and spouses.
Bangsamoro Homeland – ownership is vested in the
Bangsamoro People
Bangsamoro Juridical Entity (BJE) – granted the
authority and jurisdiction over the Ancestral Domain
and Ancestral Lands of Bangsamoro (Sidenote: Think of it as a substate.)
Territory
Core: Present geographic area of ARMM which
includes Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City, and some
municipalities of Lanao del Norte, and other provinces
which will vote on a plebiscite as to whether or not
they want to be included in the BJE.
BJE and the RP shall exercise joint jurisdiction,
management, and authority over all natural resources.
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Resources
BJE is free to enter into trade relations with other
countries.
External defense is the responsibility of RP.
Natural resources production: 75-25 in favor of BJE
Governance
There will be a multinational third party who will
implement the Comprehensive Compact, to ensure
that the terms in MOA-AD are followed.
Relationship between RP and BJE is described as:
associative, characterized by shared authority and
responsibility.
Any provisions that will amend the existing legal
framework shall take effect upon the signing of the
Comprehensive Compact.(Sidenote: Is this legal or not? It will be discussed later that this implies an amendment to the Constitution)
BJE can also establish own institutions such as the civil
service, electoral, financial, banking, education,
legislation, legal, economic, etc.
PROCEDURAL ISSUES:
a) W/N the constitutionality and legality of MOA is ripe for
adjudication – YES.
b) W/N petitions are moot and academic – NO, as the issue
is of paramount interest to the public.
SUBSTANTIVE ISSUES:
c) W/N the GRP violated the Constitutional and Statutory
provisions on public consultation and the right to
information when the negotiated the MOA-AD by not
disclosing to the public each stage of the negotiation
process – YES.
d) W?N the contents of the MOA-AD violate the Constitution
and the laws – YES.
RATIO of Issue letter c:
Right of access to public documents is a self-executory
provision. A law need not be enacted for the provision
to be enforceable. MOA-AD is a public document
because it involves the sovereignty and territorial
integrity of the state, which directly affects the lives of
the public at large.
Since it is a public document, MOA-AD must be
disclosed because the public has a legitimate interest
in matters of social and political significance. It aids
the people in decision making by giving them a better
perspective in the vital issues confronting the nation.
Matters to information of public concern covers every
step and negotiation leading to the consummation of
the contract. Otherwise, this right cannot be exercised
if no contract is consummated.
Article II, Section 28 of the Constitution also provides
that it is the duty of public officials to give information
even if nobody demands.
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An essential element of these freedoms is to keep
open a continuing dialogue or process of
communication between the government and the
people. Free political discussion should be
maintained. GRP failed in this aspect.
Three laws animate these imperatives, which was
neglected by the Presidential Adviser on Peace
Process:
Executive Order No. 3 – governs the GRP. It
states that peace process shall be defined not
by the government alone, but by all the
Filipinos as one community.
Local Government Code of 1991 – all national
offices should conduct consultations before
any project or program critical to
environment and human ecology including
those that may call for the eviction of a
particular group of people residing in such
locality.
Indigenous Peoples Rights Act of 1997 –
indigenous people have the right to fully
participate at all levels of decision making in
matters which may affect their rights, lives,
and destinies.
RATIO of Issue letter d:
The MOA-AD is unconstitutional because it has
provisions which are inconsistent with the
international legal concept of association, specifically
the provisions pertaining to the BJE’s capacity to enter
into economic and trade relations with foreign
countries, commitment of RP to ensure the BJE’s
participation in meetings and events in the ASEAN and
specialized UN agencies, and the responsibility of RP
over BJE’s external defense.
These provisions indicate that the parties aimed to
transform ARMM into a juridical entity which has a
status of an associated state, or a close approximation
of it. It is NOT RECOGNIZED in the 1987 Constitution.
It is a threat to the sovereignty of the Republic of the
Philippines.
Examples of Constitutional conflicts if the MOA-AD is
implemented:
Article 1 on the National Territory. During the
oral arguments, Atty. Sedfrey Candelaria
stated that this provision would have to be
amended to conform to the MOA-AD.
Section 3, Article II on the role of the Armed
Forces of the Philippines as "protector of the
people and the State. Under the MOA-AD, the
AFP's role is only to defend the BJE against
external aggression.
Article III on the Bill of Rights. The MOA-AD
does not state that the Bill of Rights will apply
to the BJE. The MOA-AD refers only to
"internationally recognized human rights
instruments" such as the United Nations
Universal Declaration on Human Rights,
International Humanitarian Law, and the
United Nations Declaration on the Rights of
Indigenous Peoples. No reference is made to
the Bill of Rights or even to the Constitution.
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Section 1, Article VI on the Legislative
Department. Legislative power shall no
longer be vested solely in the Congress of the
Philippines. Under the MOAAD, the BJE shall
"build, develop and maintain its own institutions" like a legislature whose laws are
not subordinate to laws passed by Congress.
Section 1, Article VII on executive power.[23]
Executive power shall no longer be vested
exclusively in the President of the Philippines.
The BJE shall have its own Chief Executive
who will not be under the supervision of the
President.
Section 16, Article VII on the President's
power to appoint certain officials, including
military officers from the rank of colonel or
naval captain, with the consent of the
Commission on Appointments. All public
officials in the BJE, including military officers
of any rank in the BJE internal security force,
will be appointed in accordance with the BJE's
own basic law or constitution.
Section 17, Article VII on the President's
control over all executive departments.[26]
The President will not control executive
bureaus or offices in the BJE, like foreign
trade missions of the BJE.
Section 18, Article VII on the President as
"Commander-in-Chief of all armed forces of
the Philippines." Under the MOA-AD, the
President will not be the Commander-in-Chief
of the BJE's internal security force. The BJE's
internal security force will not be part of the
AFP chain of command.
Section 21, Article VII on the ratification of
treaties and international agreements by the
Senate.] This will not apply to the BJE which,
under the MOA-AD, has the power to enter
into economic and trade treaties with other
countries.
Section 1, Article VIII on judicial power being
vested in one Supreme Court. Since the BJE
will have "its own x x x judicial system," the
BJE will also have its own Supreme Court.
Atty. Sedfrey Candelaria’s “Other side of the story”
During your discussion with Dean Candelaria, he might
appear to disagree with the ruling in the case. His primary
contention is that negotiating with the MILF is a very
sensitive process. One cannot just disclose each and every
step of the negotiation, because it involves matters that
needs finalization. If the government really wants peace
with the MILF, then it should let the GRP do its job. The
constitution might have to be amended at this point.
Moreover, theories cannot exceed reality. Is the right to
public information still holds even if there are lots of people
dying each day because of the unresolved conflict between
the MILF and the government?
B. Case Primer
Why did the court reject the creation of the BJE?
Simply put, the court is under the opinion that the BJE is not
a Local Government Unit since it enjoys benefits other LGUs
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don't possess. The BJE has certain characteristics that only
an independent state would have, such as having its own
judicial system. The court fears that the BJE will eventually
completely be independent from the Philippines due to the
provisions of the Memorandum of Agreement.
C. Recitation-Ready Digest
The RP Negotiating Panel entered into a Memorandum of
Agreement (Ancestral Domain) w/ the MILF for creation of
“Bangsamoro Juridical Entity” (BJE):
1) recognizing the Bangsamoro peoples’ right to self-
governance
2) empowering it to enter into trade relations w/
foreign states
3) ensuring its participation in international meetings
(ASEAN, UN, etc) on border agreements and other
related matters
4) granting it rights to internal waters and territorial
waters and sharing of minerals/economic resources
w/ national government over the latter (3:1 in favor of
BJE)
5) joint jurisdiction over territorial waters, but
exclusive jurisdiction over internal waters, w/ full right
to exploit resources therein
6) guaranteeing that it will secure its territory against
foreign invasion
7) stating that Bangsamoro ancestral domain not part
of the public domain (treated as Bangsamoro
homeland)
8) practically treats BJE as an “associated state” in
international law (a transitional device leading to full
independence as exemplified by Micronesia &
Mashall Islands w/ respect to US)
The court ruled that it is UNCONSTITUTIONAL!!
UNCONSTITUTIONAL!! UNCONSTITUTIONAL!!
The concept of “associated state” is not recognized by the
Constitution. It implies powers that go beyond anything that
may be validly granted to LGUs under the Constitution.10
10 Daniel Darvin, Darvin’s Digest of Political Law Cases.
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DEFINITION OF LAW TERMS11
Opinions. A “judicial opinion” is a court’s reasoned
explanation of its decision. It is merely an explanation of
reasons for judgment
En Banc Opinions. A case decided by an entire court. It is
the most persuasive opinion in our judicial system, right
below a Supreme Court opinion.
Concurring Opinion. Agrees with the result, but for different
reasons.
Dissenting Opinion. Objects to the result of the majority
opinion.
Majority Opinion. A “majority opinion” is one in which more
than half the court agrees with the result and the reasoning.
Plurality Opinions. A “plurality opinion” resolves an appeal
in which a majority agrees with the result but not with the
reasoning.
Decree. A “decree” decides a motion or matter that sounds
in equity.
Orders. An “order” is an oral or written court directive on a
question of law, as opposed to equity, punishable by
contempt if disobeyed.
Rulings. A “ruling” is a court order made during lititgation,
and necessarily before judgment.
11 Gerald Lebovits, Technique: A Legal Method to the Madnes, 75
New York Bar Association Journal 64, 64 (2003).
Judgments. A “judgments” is the final resolution of an action
or proceeding.
Decisions. A “decision” resolves a motion, application,
write, or appeal.
Reversed, Affirmed, Reversed or Affirmed in Part, Remanded. Rulings and judgments, not rules or reasoning,
are affirmed or reversed. Rules and reasoning are followed
or not followed.
Affirmed. The decision of a lower court is met with approval
by a higher court. If a case has more than one decision, one
can be affirmed and another reversed.
Reversed. The decision of a lower court is reversed.
Remanded. A case “remanded” is returned to a lower court
with directions to redo or reconsider some aspect of the
case.
Disapproved. A lower court’s opinion is “disapproved”, not
overturned or overruled, by a later case, not reversed or
modified directly.
Upheld / Overturned. A case or issue is “upheld” or
“overturned” by another, later case
Sustain / Overrule. Courts “sustain” (allow) or “overrule”
(disallow) objections
Granted / Denied. Motions are “granted” or “denied”
Modified. Decisions can be “modified”, meaning the
modifications can cover one or more aspect of a
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determination, but does not reverse the judgment of the
court.
Questions of Fact. Inquiries regarding facts. (i.e. murder
weapon used, date of violation, license plate of car) Must be
answered by reference to facts.
Questions of Law. Must be answered by applying relevant
legal principles, or by an interpretation of the law.
Question of Fact vs. Question of Law: Question of Fact: Did Mrs. Ronhilda ask Mr. Tan to
stop singing?
Question of Law: Is Mrs. Ronhilda’s action of asking
Mr. Tan to stop singing a violation of
the latter’s right of freedom of
expression?
GOOD LUCK, FRESHMEN!
“For tomorrow shall cast a myriad of mighty storms that
only those with firm determination and Utopian vision
do survive.”
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