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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.

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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

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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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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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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

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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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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,

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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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PARTS OF A CASE

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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

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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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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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