LAW 115: LEGAL HISTORY
INTRODUCTION TO THE COURSE
IN LEGAL HISTORY
+IN RE SHOOP
MALCOLM; November 29, 1920
Points to consider:
1. Difference between Civil Law and Common Law
2. Distinguish strains of common law: What are the
bases?
3. How did the Court arrive at the conclusion that there is
Anglo-American tradition?
4. What system is in place?
5. References to American jurisprudence
6. Laws superseded or modified
7. Identify what is that important question the Court
needed to resolve and how it helped solve the Shoop case.
FACTS
- Max Shoop is applying for admission to practice law in the
Philippines under Par. 4 of the Rules for the Examination of
Candidates for Admission to the Practice of Law. It was shown in
his application that he was practicing for more than 5 years in
the highest court of the State of New York.
- The said rule requires that:
New York State by comity confers the privilege of admission
without examination under similar circumstances to attorneys
admitted to practice in the Philippine Islands. (Aside from
comity, the satisfactory affidavits of applicants must show they
have practiced at least 5 years in any (district or circuit or
highest) court of the US or territory of it. But admission is still in
the discretion of the court.)
- The rule of New York court, on the other hand, permits
admission without examination in the discretion of the Appellate
Division in several cases:
1. Provided that the applicant also practiced 5 years as a
member of the bar in the highest law court in any other
state or territory of the American Union or in the
District of Columbia
2. The applicant practiced 5 years in another country
whose jurisprudence is based on the principles of the
English Common Law (ECL).
ISSUE
WON under the New York rule as it exists the principle of comity
is established
HELD
- The Philippines is an UNORGANIZED TERRITORY of the US,
under a civil gov't. established by the Congress.
- In interpreting and applying the bulk of the written laws of this
jurisdiction, and in rendering its decisions in cases NOT covered
by the letter of the written law, this court relies upon the
theories and precedents of Anglo-American cases, subject to the
limited exception of those instances where the remnants of the
Spanish written law present well-defined civil law theories and of
the few cases where such precedents are inconsistent with local
customs and institutions.
- The jurisprudence of this jurisdiction is based upon the ECL in
its present day form of Anglo-American Common Law to an
almost exclusive extent.
- New York permits conferring privileges on attorneys admitted
to practice in the Phils. similar to those privileges accorded by
the rule of this court.
- Petition granted. Decision is based on the interpretation of the
NY rule; doesn’t establish a precedent with respect to future
applications.
Reasoning
On TERRITORY:
A2010
a. Comity would exist if we are a territory of the US
b. We are NOT an organized territory incorporated into the
United States but
c. We are NOT a "foreign country" or "another country" either
d. Like Puerto Rico, we may not be incorporated but we are a
territory since the US Congress legislates for us and we have
been granted a form of territorial government, so to that
extent we are a territory according to the US Atty. Gen.
e. It is not believed that the New York court intended the word
"territory" to be limited to the technical meaning of organized
territory or it would have used the more accurate expression.
f. Therefore, We have a basis of comity to satisfy the
first requirement since the full phraseology indicates a
SWEEPING INTENTION to include ALL of the territory of
the US.
On COMMON LAW jurisdiction:
(On what principle/s is the present day jurisprudence based?)
g. In most of the States, including New York, codification and
statute law have come to be a very large proportion of the law
of the jurisdiction, the remaining proportion being a system of
case law which has its roots, to a large but not exclusive
degree, in the old English cases.
h. In speaking of a jurisprudence "based on the English Common
Law" it would seem proper to say that the jurisprudence of a
particular jurisdiction Is based upon the principles of that
Common Law if its statute law and its case law to a very large
extent includes the science and application of law as laid
down by the old English cases, as perpetuated and modified
by the American cases.
i. Common Law adopted by decision:
i. In the US, the ECL is blended with
American codification and remnants of the Spanish and
French Civil Codes. There a legal metamorphosis has
occurred similar to that which is transpiring in this
jurisdiction today.
ii. New York uses the phrase "based on
the English Common Law" in a general sense
iii. And that such Common Law may
become the basis of the jurisprudence of the courts
where practical considerations and the effect of
sovereignty gives round for such a decision.
iv. If in the Philippines, ECL principles as
embodied in Anglo-American jurisprudence are used
and applied by the courts to the extent that Common
Law principles are NOT in conflict with the LOCAL
WRITTEN laws, customs, and institutions as modified by
the change of sovereignty and subsequent legislation,
and there is NO OTHER FOREIGN case law system used
to any substantial extent, THEN it is proper to say in
the sense of the New York rule that the "jurisprudence"
of the Philippines is based on the ECL.
j. IN THE PHILIPPINE ISLANDS:
i. The extent of the English or Anglo-Am
Common Law here has not been definitely decided by
the SC. But there is a similarity to the quotations from
the American decisions cited with reference to the ECL.
ii. Alzua & Arnalot vs. Johnson: we apply
Anglo-Am jurisprudence only in "xxx…so far as they are
founded on sound principles applicable to local
conditions, and are not in conflict with existing law;
nevertheless, many of the rules, principles, and
doctrines of the Common Law have, to all intents and
purposes, been IMPORTED into this jurisdiction, a
RESULT of the enactment of new laws and the
organization of new institutions by the Congress of the
US…xxx"
iii. The Spanish judicial system was
abrogated replaced with a new one modeled after the
judicial systems of the US. Therefore, those Spanish
doctrines and principles in conflict with the new one
were abrogated.
LAW 115: LEGAL HISTORY
2
iv. US. v. De Guzman: For proper
construction and application of the terms and
provisions we borrowed from or modeled upon Anglo-
Am precedents, we review the legislative history of
such enactments.
v. US. v. Abiog and Abiog: The courts
are constantly guided by the doctrines of Common Law.
Neither ECL or American Common Law is in force in this
Islands…save only in so far as they are founded on
sound principles applicable to local conditions and
aren't in conflict with existing law."
vi. What we have is a PHILIPPINE
COMMON LAW influenced by the ECL or American
Common Law.
vii. A great preponderance of the
jurisprudence of our jurisdiction is based upon Anglo-
American case law precedents-exclusively in applying
those statutory laws which have been enacted since
the change of sovereignty and which conform more or
less to the American statutes, and-to a large extent in
applying and expanding the remnants of the Spanish
codes and written laws.
k. PHILIPPINE STATUTE LAW
i. The chief codes of Spain that were
extended to us were as follows: Penal Code, Code of
Commerce, Ley Provisional, Code of Criminal
Procedure, and Code of Civil Procedure, Civil Code,
Marriage Law, Mortgage Law, Railway laws, Law of
Waters.
ii. There were also special laws having
limited application.
iii. The foregoing written laws had
acquired the force of statute law by change of
sovereignty.
iv. There was no properly called Case
Law of Spain since Spanish jurisprudence does not
recognize the principle of Stare Decisis.
1. Manresa' s discussion of Art. 6 of the Civil shows how
far from a case law system is jurisprudence. Spanish
courts are governed by:
a. first, by written law
b. 2nd, by the customs
of the place (derives its force because it is the
acknowledged manner on how things are done
and not jurisprudence)
c. 3rd
,by judicial decision (when in practice, these
were considered last; the development of case
law was impeded because the courts were free
to disregard any information or decisions of
other courts.)
d. 4th, by general
principles of law
l. SPANISH STATUTE LAW
i. All portions of political law were
abrogated immediately with the change of sovereignty
ii. All Spanish laws, customs, and rights
of property inconsistent with the Constitution and
American principles and institutions were superseded.
iii. It was as if Congress had enacted
new laws for the Philippines modeled upon those same
Spanish statutes.
m. CASES UNDER AMERICAN DERIVED STATUTES
i. It appears that the bulk of present
day Statute Law is derivative from Anglo-American
sources; derivative in a sense of having been COPIED,
and in the sense of having been enacted by Congress
or by virtue of its authority.
A2010
ii. In all of the cases, Anglo-American
decisions and authorities are used and relied upon to a
greater or less degree. Although in many cases, the
use is by way of dictum, nevertheless, the net result is
the building up of a very substantial elaboration of
Anglo-American case law.
n. CASES UNDER SPANISH STATUTES
i. We use Anglo-Am cases in
interpreting and applying the remnants of the Spanish
statutes thus showing how permanent the hold of the
Anglo-Am Common Law has on our jurisprudence.
ii. Anglo-Am case law plays a very great
part in amplifying the law on those subjects, which are
still governed by the remaining portions of the Spanish
statutes, as exhibited in the groups of cases cited in
the footnotes.
iii. Anglo-Am case law has entered
practically every field of law and in the large majority of
such subjects has formed the sole basis for the
guidance of the Court in developing jurisprudence.
iv. The result is that we've developed a
Phil. Common Law which is based almost exclusively,
except in cases where conflicting with local customs
and institutions, upon Anglo-Am Common Law.
o. COLLATERAL INFLUENCES
i. There are no digests of Spanish
decisions to aid the study of Bench and Bar vs. the
abundance of digests/reports/textbooks on English/Am.
courts.
ii. There is a prolific use of Anglo-Am
authorities in the decisions of the court, plus, the
available sources for study and reference on legal
theories are mostly Anglo-Am
iii. Therefore, there has been developed
and will continue a common law in our jurisprudence
(i.e. Phil Common Law) based upon the ECL in its
present day form of an Anglo-Am CL, which is effective
in all of the subjects of law in this jurisdiction, in so far
as it does not conflict with the express language of the
written law (where the remnants of the Spanish written
law present well-defined civil law theories) or with the
local customs and institutions.
+SANTOS V COURT OF APPEALS
VITUG; January 4, 1995
FACTS
- Leouel Santos, then a First Lieutenant of the Philippine Army,
got married with Julia Bedia on Sept. 20, 1986. They lived with
Julia’s parents in La Paz, Iloilo. Their son, Leouel Santos, Jr. was
born on July 18, 1987.
- They started to have problems: (1) frequent interference of
Julia’s parents (2) when & where they’d start living
independently (3) Leouel’s spending a few days with his
parents.
- Julia left for the US to work as a nurse on May 18, 1988. She
only called up Leouel, for the first time, seven months after she
left with promise to return after her contract expires on July
1989. She didn’t come back.
- Leouel had training in the US and looked for Julia but never
found her.
- He filed a case for voiding their marriage under Art 36 of the
FC. Leouel claims that Julia’s failure to communicate with him &
inform him of her whereabouts are proof that she’s
psychologically incapacitated to comply with the essential
obligations of marriage.
- Julia denied her husband’s allegations saying it was her
husband who was irresponsible & incompetent. She filed a
manifestation stating that she would neither appear nor submit
evidence. Trial court & CA dismissed the complaint.
LAW 115: LEGAL HISTORY
3
ISSUE
Was Julie Santos psychologically incapacitated, thus rendering
the marriage void?
HELD
No, thus marriage still valid. Article 36 of the Family Code
cannot be taken independently of but must stand in conjunction
with, existing precepts and laws on marriage. “Psychological
incapacity” refers to the mental incapacity of a party to the
marriage to be truly incognitive of the basic marital covenants.
The facts were not enough to show psychological incapacity.
What was shown was lack of willingness to comply with marital
obligations. (Note: In psychological incapacity these 3 must be
present and proved: a. gravity that would really render one
incapable of carrying out the ordinary duties in marriage b.
juridical antecedence means it should be rooted in history,
existing prior to the marriage c. incurability including cure that
is beyond the party’s means.)
Obiter
- Leouel asserts: “There is no love, there is no affection for
him because respondent Julia Bedia-Santps failed all these years
to communicate with the petitioner. A wife who does not care to
inform her husband about her whereabouts for a period of 5
years, more or less, is psychologically incapacitated to comply
with the essential marital obligations of marriage. Respondent is
one such wife.”
- Deliberations during the sessions of the Family Code
Revision Committee:
- lifted from Canon Law:
Canon 1095. They are incapable of contracting marriage:
3. who for causes of psychological nature are unable
to assume the essential obligations of marriage.
- original version: (7) “those marriages contracted by any
party who, at the time of the celebration, was wanting in
the sufficient use of reason or judgment to understand
the essential nature of marriage or was psychologically or
mentally incapacitated to discharge the essential marital
obligations, even if such lack of incapacity is made
manifest after the celebration.”
- Comments/remarks of drafters:
 J. Reyes: proposed using “wanting in sufficient
reason”
 J. Caguioa: pointed out that the idea is that
one is not lacking in judgment but that he is
lacking in the exercise of judgment; lack of
judgment would make the marriage voidable
 Sempio-Dy: lack of judgment is more serious than
insufficient use of judgment and yet the latter would
make the marriage null and void and the former only
voidable
 J. Caguioa: explained that the phrase “was
wanting in sufficient use of reason or judgment to
understand the essential nature of marriage” refers
to defects in the mental faculties vitiating consent,
and the idea is lack of appreciation of one’s
marital obligations
 Sempio-Dy: raised the question, “since insanity is
also a psychological or mental incapacity, why is
insanity only a ground for annulment and not for the
declaration of nullity?
 J. Caguioa: (in reply) in insanity, there is
the appearance of consent, which is the reason
why it is a ground for the voidable marriages, while
subparagraph (7) does not refer to consent but to the
very essence of marital obligations
A2010
 Prof. Baviera: suggested that word “mentally” be
deleted
 J. Caguioa: (7) refers to psychological
impotence—J.Puno: sometimes a person may be
psychologically impotent with one but not with
another.--- J.Luciano: it is called selective impotency
 Dean Gupit: confusion lies in the fact that in inserting
the Canon Law annulment in the Family Code, the
committee used a language which describes a
ground for voidable marriages under the Civil Code.
 J.Puno: in Canon Law, the defects in marriage cannot
be cured
 J. Caguioa: insanity is curable and there are lucid
intervals (thus only ground for voidable marriage)
 J.caguioa: there is vitiation of consent because
one does not know all the consequences of
marriages; in the case of incapacity by reason of
defects in the mental faculties, which is less than
insanity, there is a defect in consent and therefore it
is clear that it should be a ground fore voidable
marriage because there is appearance of consent—PI
does not refer to mental faculties and has nothing to
do with consent; it refers to obligations attendant to
marriage; ultimately, consent in general is
affected but he stressed that his point is that it
is not principally a vitiation of consent since
there is a valid consent
 J.Puno: even the bearing of children and
cohabitation should not be a sign that PI has been
cured
 J. Caguioa: (on the suggestion that a psychiatrist be
invited) PI is not a defect in the mind but in the
understanding of the consequences of marriage
 The idea in the provision is that at the time of the
celebration of marriage, one is PI to comply with the
essential marital obligations, which continues and
later becomes manifest
 Judge Diy suggested mental and physical
incapacities, which are lesser in degree than PI, be
included—Caguioa said that mental and physical
incapacities are vices of consent while PI is not a
species of vice of consent
 Bishop Cruz: psychological/mental impotence is an
invention of some churchmen who are moralists but
not canonists, that is why it is considered a weak
phrase.—J.Caguioa: remarked that they deleted the
word “mental” precisely to distinguish it from vice of
consent; that PI refers to lakc of understanding of the
essential obligations of marriage
 With this common provision in Civil Law and in Canon
Law, are they going to have a provision in the Family
Code to the effect that marriages annulled or
declared void by the church on the ground of PI is
automatically annulled in Civil Law?—NO
 Prospective/Retroactive application?—Diy:
retroactive (to answer the problem of church-
annulled marriages)
Reyes and Puno: concerned about the avalanche of
cases; votation: 3- prospectivity, 5- retroactivity, 1-
abstained
 Prescriptive period of 10 years within which
the action for declaration of nullity of the marriage
should be filed in court
- IN SUM:
 Family Code Revision Committee in ultimately
deciding to adopt the provision with less
specificity than expected, has so designed the
LAW 115: LEGAL HISTORY
4
law as to allow some resiliency in its
application.
 Sempio-Diy: committee did not give any
examples of PI for fear that the giving of examples
would limit the applicability of the provision under
the principle ejusdem generis; judge to interpret it
on a case-to-case basis, guided by experts and
researchers, and decisions of church tribunal (not
binding but may be given persuasive effect)
 Fr: Orsy: (on the framing of the canon) from
psycho-sexual to psychological anomaly was
eliminated; the cause of the incapacity need not
be some kind of psychological disorder; PI
defies any precise definition since psychological
causes can be of an infinitive variety
 In a book by Gramunt, Hervada & Wauck: the
incapacity consists of (a) a true inability to commit
oneself to the essentials of marriage, (b) inability to
commit must refer to the essential obligations of
marriage, (c) inability must be tantamount to
psychological abnormality (not merely difficulty of
assuming the obligations)
 Sempio-Diy: approved of Dr.Velolo’s work who
opines that PI must be characterized by gravity
(that the party would be incapable of carrying out
ordinary duties required in marriage), juridical
antecedence (rooted in the history of the party)
and incurability (even if it were, cure would be
beyond the means of the party)
 The use of the phrase PI has not been meant to
comprehend all such possible cases of psychoses as
extremely low intelligence, immaturity, and like
circumstances
 Art.36 can’t be taken and construed
independently of, but must stand in conjunction with,
existing precepts in our law on marriage. PI should
refer to no less than a mental (not physical)
incapacity that causes a party to be truly
incognitive of the basic marital covenants...to
live together, observe love, respect and fidelity and
render help and support... To confine it to the most
serious cases of personality disorders clearly
demonstrative of an utter insensitivity or
inability to give meaning and significance of
marriage... must exist at the time of the
celebration of marriage... does not envision an
inability to have sexual relations
 Until further statutory and jurisprudential parameters
are established, every circumstance must be
carefully examined and evaluated. Well-considered
opinions of psychiatrists, psychologists, and other
experts in psych disciplines might be
helpful/desirable.
+SCOTY’S DEPARTMENT STORE V MICALLER
BAUTISTA; August 25, 1956
FACTS
- Nena Micaller was a salesgirl in the Scoty's Department Store,
which was owned by Yu Ki Lam, Richard Yang, Yu Si Kiao and
Helen Yang. Micaller filed charges of unfair labor practice
against her above employers as she was dismissed because of
her membership in the National Labor Union. The employers
denied the charge, saying that they dismissed Micaller because
of her misconduct and serious disrespect to the management
and her co-employees.
A2010
- Prior to November 1953, Nena Micaller was earning P4.80 a
day. After every New Year, she was given from P180 to P200 as
bonus whereas the other employees were only given P60. For
three consecutive years, she was the best seller, the most
cooperative and most honest employee. One week before
October 12, 1953, she organized a union among the employees
of the store, which was later affiliated with the National Labor
Union. The Court of Industrial Relations (CIR) found petitioners,
guilty of unfair labor practice and ordered them to pay a fine of
P100.
- Petitioners contend CIRs findings:
(1)that Nena Micaller was dismissed because of her
membership in the National Labor Union and her union
activities;
(2) that petitioners have committed unfair labor practice; and
(3) that petitioners can be legally punished by a fine of P100.
Points 1 and 2 involve questions of fact. The Industrial Court has
made a careful analysis of the evidence and has found that
petitioners have really subjected complainant and her co-
employees to a series of questioning regarding their
membership in the union or their union activities which in
contemplation of law are deemed acts constituting unfair labor
practice [Section 4, (a) (4), Republic Act No. 875].
- Whether CFI is justified in imposing a fine not only upon Yu Ki
Lam, who was the manager of the store, but also upon Richard
Yang, Yu Si Kiao and Helen Yang, who were mere owners.
- Petitioners contend that section 25 of Republic Act No. 875
being penal in character should be strictly construed in
favor of the accused and in that sense their guilt can only
be established by clear and positive evidence and not
merely be presumptions or inferences as was done by the
Industrial Court.
- The evidence as regards unfair labor practice with reference
to the three above-named petitioners is not clear enough to
serve as basis of their conviction for unfair labor practice
and the fine imposed upon them is unjustified.
ISSUE
WON the Court of Industrial Relations has jurisdiction to impose
the penalties prescribed in section 25 of Republic Act No. 875.
HELD
"SEC. 25. Penalties. - Any person who violates the
provisions of section three of this Act shall be punished by a
fine of not less than one hundred pesos nor more than one
thousand pesos, or by imprisonment of riot less than one
month nor more than one year, or by both such fine and
imprisonment, in the discretion of the Court.
"Any other violation of this Act which is declared
unlawful shall be punished by a fine of not less than
fifty pesos nor more than five hundred pesos for each
offense."
- The provision does not specify the court that may act
when the violation charged calls for the imposition of
the penalties
- According to the SC, the said provision
notwithstanding, that word cannot refer to the CIR for
to give that meaning would be violative of the
safeguards guaranteed to every accused by our
Constitution.
"No person shall be held to answer for a criminal offense
without due process of law" [Article III, section 1, (15),
Philippine Constitution], and that "In all criminal
prosecutions the accused * * * shall enjoy the right to be
heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of
witnesses in his behalf" [Article III, section 1, (17)].
LAW 115: LEGAL HISTORY
5
- A comparison of the jurisdiction of the CIR and of that of the
Court of Agrarian Relations (CAR) created by Republic Act No.
1267
- Similar provisions on the penalty to be imposed
- When Congress intends to confer criminal jurisdiction
upon an administrative court, it expressly says so in an
unmistakable language. Congress has made its
intention clear when it amended the law by eliminating
entirely criminal jurisdiction originally conferred upon
the CAR. 'This was made manifest when Congress
enacted Republic Act No. 1409 repealing those
provisions affecting the criminal Act No. 1409 repealing
those provisions affecting the criminal jurisdiction
aforementioned (sections 7 and 10).
- Using the deliberations made on the bill eliminating the
criminal jurisdiction of the CAR, which showed the same intent
of Congress to place the court on the same footing as the Public
Service Commission and CAR.
- In the deliberations of Congress the sponsor of the bill of the
for the amendments of the Committee to the Court of Agrarian
Law Mr. Francisco was asked on the reason for striking out the
phrase “not criminal in nature” in referring to kinds of questions
and controversies the court has jurisdiction over as well as the
sentence “Criminal proceedings should be prosecuted as in
ordinary cases.” He said that the purpose of those amendments
is to remove completely from the Agrarian Court any jurisdiction
over criminal matters. In the deliberations, it was further
clarified that the CAR will retain civil jurisdiction only.
- It is also clarified that the court will exercise quasi-judicial
functions and it will be similar in nature to the Public Service
Commission and the CIR. Mr. Cuenco said that this meant that it
is unnecessary to put the proviso the Agrarian Court has no
jurisdiction over proceedings criminal in nature. Mr. Francisco
maintained that such amendment has to be made as RA 1267,
previously gave the CAR criminal jurisdiction.
Ratio The power to impose the penalties provided for in
section 25 of Republic Act No. 875 is lodged in ordinary courts,
and not in the Court of Industrial Relations, notwithstanding the
definition of the word "Court" contained in section 2 (a) of said
Act. The decision of the industrial court in so far as it imposes a
fine of P100 upon petitioners is illegal and should be nullified.
+CASCO CHEMICAL CO V GIMENEZ
CONCEPCION; February 28, 1963
FACTS
- CPCC is engaged in the manufacture of synthetic resin glues.
It bought foreign exchange two times for the importation of urea
and formaldehyde – which are the main raw materials in the
production of said glues. It paid the total of P40,111.14 for
margin fee.
- The petitioner sought the refund of the said amount relying
upon the Resolution No. 1529 of the Monetary Board of Central
Bank of the Philippine, declaring that the separate importation
of urea and formaldehyde is exempt from said fee.
- However, the Auditor General of the Bank denied the claim for
refund of the petitioner upon the ground that it is not in accord
with the provisions of section 2, paragraph XVIII of RA 2609
(Foreign Exhange Margin Fee Law), which exempts urea
formaldehyde.
ISSUE
WON “urea” and “formaldehyde” are exempt by law from the
payment of margin fee.
HELD
NO.
Reasoning
1. Statutory construction/Enrolled Bill doctrine
A2010
- RA 2609 uses the term urea formaldehyde (finished product)
and NOT “urea” and “formaldehyde” (raw materials). It is
well settled that the enrolled bill is conclusive upon the courts
as regards the tenor of the measure passed by Congress and
approved by the President.
2. legislative intent
- The petitioner contends that the bill approved in Congress
contained the copulative conjunction “and” between the
terms “urea” and “formaldehyde”, referring to raw materials
and cites in support of this view the individual statements
of its members made on the floor of the Senate, during the
consideration of the bill before said House. But said individual
statements do not necessarily reflect the view of the Senate.
Much less do they indicate the intent of the House of
Representatives.
Disposition Decision appealed from is affirmed.
OVERVIEW OF HISTORY AND
DEVELOPMENT OF SELECTED LAWS/LEGAL
INSTITUTIONS
*CONSTITUTIONAL LAW*
+CUSTOM LAW IN PRE-CONQUEST
PHILIPPINES (P. FERNANDEZ)
CH.4 “MINIMUM GOVERNMENT”
1. BARANGAY AS POLITICAL COMMUNITY
- POPULATION
- consisting of more or less autonomous households
- usually bound by ties of kinship
- dominated by datu’s household
- TERRITORY
- covers all land and water under the control of the
households
- non-arable lands (i.e. hills or forest) adjacent to above are
considered communal property and available or use by all
the households in the barangay
- in sparsely populated areas, disputes about boundaries
often arose but controversy settled through arbitration by
neutral and impartial mediators from neighboring barangay
- POLITICAL CHARACTER
- this is derived from the recognition of the authority of the
datu by every household.
- authority is the acknowledgement of datu’s power and his
legitimate exercise of this power according to established
custom.
- reinforced by datu’s physical strength, prowess in arms,
and other personal endowments
- Actual authority is dependent on possession of essential
leadership qualities ( character, strength, sagacity)
- if weak, datu enjoys nominal power and effective authority
will pass on to more capable hands
- POLITICAL COMMUNITY
- each barangay enjoyed relative independence from
external control
- barangay had the ability and willingness to resist
encroachment from its neighbors
- tradition and blood ties created constraints against
intrusions (conquest and aggrandizement vs. demands
of custom, friendship and kinship)
- even with an extraordinary datu, opportunity for
expansion of barangay authority is checked by inherent
limitations
- barrier of distance
- natural obstacles (e.g. mountains, forests, lakes)
LAW 115: LEGAL HISTORY
6
- lack of effective governmental machinery to
administer the affairs of the territorially extensive
community (no bureaucracy)
- basis of barangay, at the time of conquest, evolved from
kinship-based to territorial as evidence by the fact that
freemen can transfer families from one barangay to any
without serious hindrance and , upon transfer become
subjects to authority of the datu at their new place
2. MINIMAL GOVERNMENT
- due to self sufficiency and autonomy of the individual
household
- no bureaucracy to run government. Basically one man rule
- only two functions discharged as political organization
- maintain its existence by resisting and repelling outsiders
- preservation of peace and order within the territory
through methods
- reconciliation and mediation
- prevention or redress of wrongs thru public authority
of datu
3. NO MONOPOLY OF FORCE
- Because of primitive organization and resources, pre-
conquest could not enforce or maintain a monopoly of force
- No datu or central authority ever acquired preponderance
of physical power to place every one in his jurisdiction in
total subjection while safeguarding them from outside
enemies
- This is contrasted to modern state whose efficacy rest
on monopoly of force. Hence in modern states only the
government can use force to compel obedience or
exact compliance. As a rule in modern states, result to
violence is a crime and mere possession of weapons is
punished.
4. PRINCIPLE OF SELF-HELP
- self-help predominated in the pre-conquest
- freemen carried weapons and used them for self-
protection or for advancement of their own interest.
- against other neighboring households
- against pirates
- against other barangays
- valor and skill in arms were highly prized and acts of
bravery were much admired
- readiness of each household for combat helped
maintained uneasy peace
- realization of each household that other households were
entitled to resist or revenge any provocation or invasion of
their rights
- retaliation as effective deterrent to unlawful aggression
5. SYSTEM OF OBLIGATIONS IN THE BARANGAY
- power structure is pyramid with datu’s household at the
apex, next the households of the petty chiefs, and below
those of the freemen
- special leaders called mandadores
- freeborn called maharlicas (did not pay tax or tribute
to datu but are expected to accompany him in war at
their own expense or to row for him, or to help him
build a house.
- Datu’s primary duty to provide protection, security, and
assistance to households attached to his.
- Subordinate households’ duty to render customary
services to the dominant household whenever the need
arose (called timaguas)
- Owing to the self sufficiency at that time, the occasion was
rare that the reciprocal obligations had to be fulfilled by the
households
6. STATUS OF DATU
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- more akin to chieftain than king; hereditary with son
succeeding the father
- real basis of power is merit instead of heredity
- authority is charisma rather than tradition
- ability to provide protection or compel obedience
- Status as leader is more or less voluntary.
- freemen can severe attachment and move to other
chiefs
- checks on datu’s authority were reinforced by the
autonomy of the households
7. PREROGATIVES OF THE DATU
- Veneration and respect
- offenses against him were punished with greater severity
- Customary services
- those required in the interest of the community
- in cases of war
- in enforcement of claims against others
- in case of attack from pirates
- those required as personal service to datu
- when going on a voyage
- when tilling, harvesting, etc.
- building, repairing house
- when the datu calls for any reason
8. DATU AS CAPTAIN IN WAR
- When the barangay engage in war, datu acts as captain
and hence has to
- plan, direct, and lead the course of battle
- exercise emergency powers over the manpower and
resources of the barangay
- conscription
- summary execution for desertion/betrayal
- commandeering of property
9. DATU AS JUDGE, ARBITRATOR, AND MEDIATOR
- As preserver of the peace, he adjudicates disputes
- petition of aggrieved party for
- protection from violence
- redress of injury
- enforcement of claims
- motu propio take up initiative on
- breaches of peace
- man hunt launched by household for revenge
- datu endeavors to have parties agree on settlement
- if no settlement then hear case and based on evidence
render judgment
- in criminal cases, impose fine
- in civil cases, payment of obligation
- if there is non compliance on judgment, then datu
- assist in execution by seizure of property or make
embers of debtor household slave
- if problem is with other barangays, datu as mediator
endeavored to amicably settle claim or wrong
- datus of the barangays involved acted as mediators to
prevent violence or bloodshed which could lead to war.
If no settlement at that level, matter was submitted o
persons with reputation for fairness and just dealings
for adjudication in accordance with their customs.
10. DATU AS LEGISLATOR
- Custom law was referred to as ugali
- Changes that affected the custom laws are
- organized religion in the form of Islam which provided
for a more extensive political community
- development of trade which reoriented production
from just household consumption to market driven (i.e.
displacement of subsistence economy with exchange
economy)
- Changes in law were either avowed or unacknowledged
LAW 115: LEGAL HISTORY
7
- changes done thru interpretation of custom law (legal
fiction)
- Where datu is undisputed, datu freely legislated changes
without result to legal fiction
- Big chief called the others to his house to discuss
changes in view of the changes in the situation
prevailing
- others agree and allow big chief to do as he wants
- chief makes changes and others approve
- public crier, called umalahocan, went around the
village to announce the new regulation
+IDEAS OF THE PHILIPPINE REVOLUTION (C.
MAJUL)
CH.8 ”A LEGISLATURE OR A DICTATORSHIP”
The Revolutionary Congress was inaugurated in Malolos,
Bulacan on Sept. 15, 1898. After ratifying Philippine
independence, they immediately decided to draft a constitution
for a future republican system of government.
According to absolutists (Mabini, Aguinaldo’s chief adviser,
and supporters):
- Congress had no power to draft a constitution –consultative
body, not a constituting assembly.
- Strong executive (in the meantime)
- Rationale: Greater powers vested in Aguinaldo, as
supreme military chief, would allow him to curb the abuses of
his subordinates and followers; Ilustrados can guide and
advise Aguinaldo; In anticipation of hostilities with Americans,
the powers must remain concentrated in the executive; In
times of war, fast and efficient promulgation of laws is needed;
Aguinaldo’s actions could still be limited by the strength of
public opinion.
- Two parts of a constitution: statement of fundamental
principles and administrative technique.
- Revolutionary people must not adopt a “static” or
permanent constitution and must focus on the fundamental
principles.
According to constitutionalists (Calderon and majority of
Congress):
- Congress had power to draft constitution.
- Strong legislature –reduced President to a mere figurehead,
also had strong hold on judiciary; watched the action of high
officials; elected and can impeach the President; appointed the
Chief Justice.
- Rationale: This serves as counter force against the
growing strength of the military element whose bulk,
Calderon was convinced, was composed of ignorant people; The
ilustrados are the ones who must lead the people –intellectual
oligarchy.
More Notes:
- In case of death or resignation of the President, the Chief
Justice will assume presidency until Congress elects a new
President.
- Choice of unicameral legislature –there weren’t enough
intelligent people to fill two Houses.
- Mabini believed in a constitutional government as evidenced
by his framing of Provisional Constitution for the Philippine
Republic.
- Filipinos really placed a high premium on education. The
ilustrados were so respected that even the dictator Aguinaldo
realized he cannot do without their support.
Separation of Powers:
Calderon and Mabini had same belief – Society’s will (executive)
and conscience (judiciary) had to be subordinate to its intellect
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(legislature); Division of powers doesn’t arise from checks and
balances but rather from origin and electoral responsibility
Bill of Rights (nearly 30% of the Constitution):
Articles 7,8,9 –no arbitrary arrest and detention
Article 14 –execution or sentence of a Filipino by a judge or
tribunal only and in accordance with law
Article 15 –anyone detained or imprisoned without judicial
procedure should be discharged on his or any Filipino’s petition
Article 10 –right of domicile
Article 13 –in case of forcible entry, aggrieved party had right to
demand responsibilities that may ensue
Article 11 –no person may be compelled to change residence
except by virtue of law
Article 25 –any person may change residence provided that he
was in full enjoyment of his civil rights
Article 30 –government is prohibited from banishing Filipinos
away from the country
Article 12 – freedom of correspondence
Article 13 –any detention of search of correspondence must be
in accordance with law
Articles 16, 17 –no person could be deprived of his property
except by virtue of judicial sentence
Article 18 –no taxes shall be imposed unless decided upon by
Congress or other legally authorized popular corporations
Article 19 –no Filipino in the full enjoyment of his civil and
political rights may be hindered from free exercise of the same
Article 20 –no Filipino could be deprived of freedom of speech,
communication and association
Article 28 –the enumeration of rights did not imply the
prohibition of any other not expressly delegated
Article 30 –articles 7-11 and 20 could be suspended provided
that the suspension had to be in accordance with law, had to be
temporary, and had to be for a reason of state security
+FROM MCKINLEY’S INSTRUCTIONS TO THE
NEW CONSTITUTION (V. MENDOZA)
PART 1 “THE ORIGIN AND THE DEVELOPMENT
OF THE PHILIPPINE CONSTITUTIONAL
SYSTEM”
- Concept of central gov’t: Before the Spanish era, Filipinos
did not have a national gov’t because of the country’s
archipelagic makeup.
- Concept of constitutionalism: It was introduced only in
1869, as a result of the opening of Suez Canal (entry of
Libertarian ideas from Europe)
I. Early American Government
STATUS OF PHILIPPINES
• Doctrine of Insular cases:
1. The Phils. is different from other US territories.
2. The US Consti was not extended by the terms set out in
Treaty of Paris, and it is the US Congress who shall determine
the status of the Phils.
3. The following are extended:
- General principles of fundamental limitations in favor of
personal rights formulated in the Consti and in its
amendments
- Express provisions of the Consti which prohibit Congress
from passing laws in violation of such personal rights
4. There is no law in the Phils. entitling natives to trial by
jury.
• Unincorporated territory:
1. Powers of administration were vested in the US Pres, but
these were then transferred to the US Congress in 1902.
2. Organic laws were promulgated by the Pres and by
Congress.
 LAW 115: LEGAL HISTORY
8
3. Office of Vice-Gov and four executive departments were
created. This served as the prototype of the parliamentary gov’t
established under the 1973 Consti.
SPOONER AMENDMENT
• Purpose: It transformed the military gov’t into a civil gov’t
to forestall questions regarding the legality of acts of the US
Pres. (4 July 1901)
• Who was in control? The US Pres. would still have powers
of administration until it is otherwise provided by the
Congress.
• Parts of gov’t: Philippine Commission and Judiciary (1901-
1907)
• Court system: As created by the PC, it consisted of a
Supreme Court, CFI, and justice of peace courts.
PHILIPPINE BILL OF 1902 (PB)
• US Congress assumed administration- There were no
substantial changes in gov’t, and the Phils would continue
to be governed by McKinley’s Instructions, as adopted by PB
1902.
• Law-making body: Structure was changed in Oct 1907, as
provided for in PB
1. Philippine Commission- Five American members (though
Filipinos were later allowed to be included)
2. Philippine Assembly- Lower chamber composed of 80
Filipino members
• PB of 1902 Section 6: Two years after completion of
Census  In case there is a condition of general peace 
With recognition by the authority of the US  Which has
been certified by the Phil Commission  The President shall
direct PC to call a general election for the delegates of
Philippine Assembly
• Filipino participation: Ilustrado class dominated Phil.
Assembly (1907 elections)
• US Control of gov’t: All laws passed were subject to
approval of US Congress; certain Phil. SC decisions are
subject to review by the US SC.
• Definition of Citizens: these citizens were entitled to US
protection; Filipinos were referred to as “natives” or
“inhabitants”.
• Other provisions:
1. Slightly expanded Bill of Rights
2. Limitations on legislative power
3. Sale and lease of public lands
4. Utilization of forest
5. Grant of mineral lands (same rights for US citizens)
• Effectivity of PB 1902: It served as the ORGANIC ACT of
the Phils. until Aug 1916.
PHILIPPINE AUTONOMY ACT
• Also known as Jones Law: US announced intention to
withdraw from Phils. as soon as a stable gov’t could be
established.
• Philippine Legislature: Set up by the Act, this is
composed of the Senate (24 members with term of 6yrs)
and of the HR (89 members with term of 3yrs)
• Powers of Governor-General: “Supreme executive
power”
1. Authority to appoint executive officials
2. Supervision and control of all exec depts.
3. Commander-in-Chief of all armed forces
4. Suspension of habeas corpus, even without concurrence
of Congress (Unlike PB 1902)
5. Grant pardons and reprieves
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6. Veto power
- Unlike PB 1902 wherein he only had one vote
- Legislature can override such veto by 2/3 vote  Bill is
returned to Gov-Gen  If Gov-Gen still disapproves, it is
transmitted to US Pres
• Office of Vice-Gov: He is to replace the Gov-Gen in case
of removal, resignation, or inability.
• Judiciary: Same structure as that established in PB 1902
• Checks and Balances:
1. Legislative over Executive- they can withhold consent to
executive appointments; power to create or abolish exec
departments.
2. Executive over Legislative- veto power
3. Executive over Judiciary- power to remit fines and grant
pardons
4. Judiciary over E & L- power of review
• Gov’t of Phil Islands v. Springer (1927): SC had to
decide on the validity of a statute enacted by the Phil
Legislature, which placed control of gov’t stocks in the
National Coal Company in a voting committee composed of
Gov-Gen, Senate President and Speaker of HR. Wood said it
was an encroachment of his appointing powers. Majority of
SC invalidated the statute.
• US Control Measures:
1. Presence of Gov-General
2. Reporting to US Congress of all laws passed by PL
3. Review by US SC of certain decisions of Phil SC
• Independent Commissions: These were sent to the US
Congress to convince them that the Phils. is now capable of
running its own gov’t.
• Hare-Hawes Cutting Act v. Tydings-McDuffie Act:
Issue of independence became political- HHCA was headed
by Osmeña-Roxas mission (1931) but this was rejected by
PL under Quezon’s leadership. Quezon then headed another
mission which resulted to TMA (1934).
• New Constitution: Tydings-McDuffie Act prescribed for-
1. Calling of a Constitutional Convention (March 1934)
2. Submission of Consti to US Pres Roosevelt (March 1935)
3. Submission of Consti to people for ratification (May 1935)
• November 15, 1935: Date of effectivity of Constitution
II. Commonwealth Government
FORM OF GOV’T
• Presidential Type of Gov’t: Executive powers in
President; Legislative powers in unicameral NA; Judicial
powers in SC.
• Separation of Powers: Each dept has exclusive
cognizance of matters within its jurisdiction and is supreme
within its own sphere.
• System of Checks and Balances: To secure coordination
in the workings of various depts. of government.
• Presence of Strong Executive: He is not merely the
supreme or chief executive but “the executive.”
Possible reasons for SE:
1. Fear based on the rise of totalitarianism in Europe
2. As a matter of practical politics- approval of Consti by US
Pres could be better assured if it was close to the existing
Organic Acts
3. Influence of Quezon in the drafting of Consti
1940 Amendments:
1. The President’s term of office was changed from 6 to 4
years, but he can be reelected for a second term.
2. Change from unicameral NA to bicameral Congress
 LAW 115: LEGAL HISTORY
9
3. Creation of Commission on Elections
BASIS & NATURE OF GOV’T
• 1935 Consti: This completed the Filipinization of gov’t. But
during the transition period, the Tydings-McDuffie Act
imposed certain conditions regarding trade relations,
financial operations and foreign relations.
• Judiciary: US SC’s power of review over cases decided by
Phil SC was continued.
• Uniqueness of 1935 Consti: It derives its binding force
not only from will of Filipino people, but also from US
Congress.
FEATURES OF CONSTI
• Republican State: Sovereignty resides in the people and
all gov’t authority emanates from them.
• Bill of Rights: Suffrage, freedom of speech/press, right to
assembly, petition for grievances
• Promotion of Social Justice: Duty to afford protection to
labor
• Conservation of Natural Resources: Patrimony of the
nation
• Nationalization of public utilities
• Civil Service Board: Appointments based on merit
GOVERNMENT IN EXILE
• Japanese period: There were three years of enemy
occupation- “Military Administration under Martial Law over
the districts occupied by the Army.”
• Philippine Executive Commission: A civil gov’t was
established (with Vargas as chairman), with the task of
coordinating the existing administrative organs as provided
by statutes and customs.
• Laurel gov’t: He was inaugurated as President in Oct
1943. Quezon and Osmeña were evacuated to the US. In
Feb 1945, McArthur announced complete restoration of the
Commonwealth gov’t.
III. Government of the Republic
PHILIPPINE INDEPENDENCE
• Proclaimed on July 4, 1946 in accordance with Tydings-
McDuffie Act
• It was the same government under the same constitution,
but the Philippines was now fully sovereign (at least
politically).
PARITY RIGHTS AMENDMENT
• Bell Trade Act (30 April 1946): It was passed by US
Congress, which proposed to allow entry of Philippine goods
into the US free of ordinary customs duties on the condition
that similar privileges be extended to US goods and that
they be allowed to exploit, develop and utilize our natural
resources.
• Vera v. Avelino: Three minority senators-elect (Vera,
Diokno, Romero) were prevented from taking their seats
due to protests against their elections. The court ruled that
under the principle of SOP, it could not order a branch of
the legislature to reinstate a member.
• Mabanag v. Lopez Vito: The 3 senators and 8
representatives did not take part in the resolution proposing
“Parity Rights” amendment, and they were not counted in
determining ¾ vote requirement. The court ruled that it was
a political question; if ratification is political, a proposal
which leads to ratification has to be political.
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• Plebiscite and Ratification: Plebiscite was held on 11
March 1947, wherein people ratified the proposed
amendment. It took the form of an ordinance to the Consti.
REVISION OF THE CONSTITUTION
• 1967 Resolutions by Congress: Increase membership of
HR from 120 to 180; Call a convention to propose
amendments to the Consti; Authorize members of Congress
to become delegates to con-con without forfeiting seats.
• Gonzales v. Comelec: (1) Congress was not de facto, the
constitutional provision for reapportionment was not
mandatory. (2) Proposing amendments and calling a
constitutional convention at the same time is not
unconstitutional. (3) On the special-general election issue,
no majority vote was reached. Validity of statute was then
upheld.
• Imbong v. Ferrer: SC upheld constitutionality of a law
passed by Congress banning political parties from
intervening in the election of con-con delegates.
• Issues/Problems of the Con-Con:
1. Language in which the Consti should be written
2. Form of government- presidential or parliamentary
3. Lack of funding- they transferred from the Manila Hotel to
QC Hall
• Plaza Miranda Bombing (21 Aug 1971): Because of this,
Marcos suspended privilege of writ of habeas corpus. SC
upheld the validity of suspension (Lansang v. Garcia).
• Declaration of Martial Law: Con-con still proceeded with
its tasks and the draft was signed on Nov.30.
• Planas v. Comelec: Because the Pres has already
proclaimed that the proposed Consti has been ratified, the
question of the validity of the decree calling for plebiscite is
moot and academic.
• Javellana v. Executive Secretary: “There is no further
judicial obstacle to the new Consti being considered in force
and effect..”
IV. Government under New Constitution
TRANSITION GOVERNMENT
• Art.17 Sec.3 1973 Consti: The Constitutional Convention
gave the martial law government a constitutional status.
• Aquino v. Enrile: The proclamation of martial law was
sustained.
• Aquino v. Military Commission: SC upheld the creation
of military tribunals and their jurisdiction to try civilians.
• Aquino v. Comelec: 1973 Consti confirmed the power of
the President, as Commander-in-Chief during martial law, to
make laws.
• Interim National Assembly: No date was fixed for the
convening of the Assembly, which was left to the judgment
of the President. In lieu of the INA, the President exercised
lawmaking powers with the aid of a legislative advisory
council (Batasang Bayan).
• Sanidad v. Comelec: Framers of Consti could not have
intended to prohibit its amendment before the INA was
convened. (recall: powers of Pres during times of crisis)
• Oct 1976 referendum-plebiscite: It was proposed that
the Interim National Assembly be replaced with the IBP.
Proposed amendments were ratified by people.
• Interim Batasang Pambansa: It is composed of
incumbent President (who will become PM), elected reps
 LAW 115: LEGAL HISTORY
10
from various regions and sector, members of Cabinet
chosen by President.
• Powers of IBP:
- It will have legislative powers but the President shall also
continue to exercise legislative powers until the lifting of
martial law (Amendment 5)
- In the event of grave emergency or the failure of BP to act
on any matter that in the judgment of President requires
immediate action, Pres may issue necessary decree which
shall have the force of law (Amendment 6)
REGULAR GOVERNMENT
• Parliamentary form: Legislative power is vested in
National Assembly; executive power is exercised by the
Prime Minister with the assistance of the Cabinet. PM and
Cabinet are agents of the NA.
• PM v. NA: What will keep the majority party together
is the thought that only through unity can they maintain
control of the government. Election is then resorted to only
where there is a genuine difference of opinion between
them.
• Powers of PM:
1. Power of appointment (members of Cabinet, heads of
bureaus and offices, officers of AFP, members of SC and other
judges, members of Civil Service Commission, Comelec, COA)
2. Control of all ministries
3. Power to contract and guarantee foreign and domestic
loans
4. Commander-in-Chief of AFP, with power to suspend
habeas corpus or to call martial law in times of emergency
5. Power to grant reprieves, commutations and pardons
• Judiciary: SC and lower courts existing at time of
effectivity of 1973 Consti were continued. Courts remained
independent of the political branches of gov’t, and SC
membership was increased to 15 Justices.
• President: Symbolic head of the state who is immune
from suits during his tenure. He is elected from among
members of NA by a majority vote; he ceases to be a
member of NA and of any political party.
• Special courts:
- Sandiganbayan has jurisdiction over cases involving graft
and corruption practices of public officers/employees.
- Tanodbayan is charged with investigation of complaints
regarding public office and prosecution of cases in court.
V. Philippine Government vs. American Government
• Myth: The governmental system established under 1935
Consti was adopted from that of US Consti (as evident in Bill
of Rights and functions of Congress).
• Truth: It was the Jones Law of 1916, and not the US
Constitution, that served as the model for the 1935
Consti.
1.Allocation of powers among our units of
government-
What was followed in the 1935 Consti was the colonial
arrangement established by the US in the Phils. Even with
structure of “executive-legislative-judicial” departments
under Jones law, there was still unequal distribution of
power (supreme executive).
2.Relation of the State and the individual-
The Consti makers were partly influenced by the success of
authoritarian governments in Europe in suppressing
domestic disorders and in giving economic security to the
individual.
3.Vertical divisions of power-
The 1934 Con-Con limited the power of central gov’t over
local governments from that of “control” to “mere
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supervision”. But the distinction was not really very clear,
and so the SC had to decide cases involving the
President’s power to suspend local officials. The
movement toward decentralization started in the 1950s.
4.General theme of the Constitution-
The US Consti was premised on a profound distrust of
power, but the Phil. Consti was founded on faith in
welfare state, administered by a just and responsible
gov’t.
+CONSTITUTIONALISM IN ASIA (E.
FERNANDO)
“THE AMERICAN CONSTITUTIONAL IMPACT ON
THE PHILIPPINE LEGAL SYSTEM”
Nationalism
• Embodies principle of self-determination—one nation.
• Concept that a state is nothing but the juridical personification
of the nation.
• In Asia, the blessings of nationalism were extended to them
only after World War II. A number of Asian peoples of diverse
cultures but with the common objective of freeing themselves
from the grip of alien rule assumed their independent status.
Indonesia: 1945
Philippines: July 4, 1946
India, Pakistan, Sri Lanka: dissolved ties with Britain.
Burma: 1948
Malaysia: 1957
Vietnam, Cambodia, Laos: 1945-1949
Singapore: 1965
Bangladesh: seceded from Pakistan 1971
• Asian peoples, “usually cool and unemotional about political
programs, become heated over nationalism.”
• Stevenson: “Nationalism is rampant. And the West, identified
with the hated colonialism, is suspect.”
• The policies adopted by the United States (upon the cession of
the Philippines) proved acceptable. Autonomy was promised,
ultimately to lead to independence. The promised
independence came in 1946.
• Education and health were prioritized; civil and political rights
were respected; civil service was efficient.
• As was expected, a constitution was required for such a
regime. The fundamental law to be drafted was not only for
the Commonwealth but for the future Republic.
• What may be impressed with significance is not so much the
absence of any absence of any evidence indicative of
displeasure with or resentment against the US as a major
Western power, but the relative freedom possessed by Asian
nations in the framing of their constitutions upon assuming
their independence. They could examine the contents of
existing charters and determine which were suitable.
The US Constitution of 1787 served as a fit model.
• Influence of the US could be shown by the incorporation of
selected provisions or doctrines traceable to her Constitution
(in express terms, or by implication) Holmes: “Constitutions
are intended to preserve practical and substantial rights, not
to maintain theories.” It would be an error if the presence in
the charters of the new Asian states of juridical formulations
traceable to the US Constitution were to be equated with
complete significance of what they signify for the American
legal system.
Supremacy of the Constitution
The fundamental postulate of a fundamental law
setting forth the criterion for the validity of any public act,
whether proceeding from the highest official or the lowest
functionary, is basic to the American system of a constitutional
democracy. The three departments of government in the
discharge of the functions with which they are entrusted have
LAW 115: LEGAL HISTORY
11
no choice but to yield obedience to constitutional commands.
Limits imposed must be observed
Function of Judicial Review
• Hughes: The Constitution “is what the judges say it is.”
• In discharging the task of inquiring whether a challenged
executive or legislative action is in conformity with, or
repugnant to, its Constitution, the meaning attached to its
provisions becomes authoritative when it is the United States
Supreme Court that speaks. This had its genesis in the
Marbury decision, where the doctrine was first enunciated and
applied by the Supreme Court.
Judicial Review in the Philippines
• The Philippine Supreme Court stated in Angara v. Electoral
Commission that the power of judicial review “is granted, if
not expressly, by clear implication from Section 2 of Article
VIII of our Constitution.”
• Judicial review is one of the principles of constitutional law
binding on the territorial government established by America
in the Philippines. Filipino justices and judges, who with their
American brethren administered justice, soon realized that
the power to pass on the constitutionality of statutes and
executive orders was part of their judicial function.
• The assumption was that whenever a constitutional question
was posed, the Court should act. It was expected that it would
discharge such a task without regard to political
considerations and with no thought except that of discharging
its trust. The judiciary is called upon to inquire into alleged
breaches of the fundamental law to avoid its being infringed.
Thereby no invasion of spheres appropriately belonging to the
political branches occurred.
Judicial Review in Other Asiatic Countries
• Judicial review as a mode of assuring the supremacy of the
Constitution is now an accepted legal institution in other
Asiatic countries. The American influence is marked, as could
be expected, in Japan and Korea. What is remarkable is that,
even in those nations with previous ties to Great Britain, it has
found acceptance. Burma, India, Malaysia, Sri Lanka are
included. (See article for actual manifestations, p 157-161).
Bill of Rights
• It was not until 1791 when the first Ten Amendments were
adopted, that the United States was thought to have a
comprehensive Bill of Rights; it was supplemented by the so-
called Civil War Amendments:
o Thirteenth: 1865, prohibited slavery and involuntary
servitude.
o Fourteenth: 1868, provided national citizenship and due
process and equal protection.
o Fifteenth: 1870, assured right to vote to any American
citizen.
• It is thus rendered that what is found in a constitution is a
recognition, not a grant, or rights—and not a comprehensive
one at that. (see p. 162-164 for the Amendments)
• What is embraced in the term “imperative law” is not limited
to the literal language of the provisions as found, which in
most cases are phrased in general terms allowing a great deal
of discretion and flexibility in the application. The main
reliance, though, in ascertaining the meaning rightfully
attached to the constitutional commands should be on US
Supreme Court decisions.
• For the US, Constitution is not merely law, it is the supreme
law. It is the judiciary then (ultimately SC) which “interpreted
and applied its terms as they did the language of statutes so
that matters of great political import were passed upon
apparently with the same ease, simplicity, and procedure as
the interpretation of a contract or the defining of the rights of
persons under a will.
• Fundamental rights that have found their way into Asiatic
constitutions may be categorized as:
A2010
o First amendment: freedom of belief and expression,
whether religious or secular.
o Fifth and Fourteenth: due process and equal protection
guarantees.
o Fourth, Sixth, Seventh, Eighth: rights of an accused
individual.
Philippine Bill of Rights
• The extent of the American influence in the Philippines so far
as liberties of the individual are concerned is easily
discernible. One need only to look at the Bill of Rights as
found in the 1935 Constitution. It is clear that the bill of rights
provision in the 1935 C was patterned after that of the United
States. (see p. 166-167 for listing of Bill of Rights)
• The practical reason was that the Convention refrained from a
radical departure from the US constitutional system inasmuch
as the Philippine Independence Act of 1934 contained a
provision that the American President had to certify that the
constitution drafted would provide for a republican form of
government and contain a bill of rights. Without such
certification, Commonwealth could not be established.
Unorthodoxy might have led to an indictment of the proposed
constitution.
• The Filipino people were familiar with such guarantees, and
the retention as worded would be most natural. Even the
Philippine SC had for over three decades been busy at
construing the fundamental rights provisions of previous
organic acts enacted by US for the Philippines.
• Draft was prepared by Jose P. Laurel, the leading Filipino
authority on the subject of constitutional law and a Doctor of
Civil Laws graduate of the Yale Law School.
Bill of Rights in other Asiatic Countries
• The influence of the United States Constitution in their
fundamental laws was not as considerable as in the case of
the Philippines. Of those nations, the constitutions of Japan
and Korea contain a number of provisions of American origin.
Burma, India, Malaysia, and Pakistan, to a lesser degree, bear
traces of American concepts. Indonesia appears to have the
least connection.
• There is no mention in those constitutions of the cognate right
of due process, probably due to the fears entertained that due
process could be availed of to press the right property to
unreasonable extremes.
• Equality is more or less valued the same as in America and
the Philippines (for a discussion of provisions, see p. 175-177)
Conclusion
• The United States Constitution has had an impact, both deep-
seated and profound, on the fundamental laws of practically
all the Asiatic countries that have recently attained their
statehood, as well as of Japan.
REASON: The US has the oldest living written Constitution. It
has stood the test of time and circumstance. Through its
judicious construction, it has been made adaptable to the
constant flux of events.
• Frankfurter: “It is not a printed finality, but a dynamic
process.”
• CAVEAT: In view of conditions in Asiatic countries, there
cannot be literal adherence in most cases to is leading
constitutional law doctrines, even on the assumption that they
are possessed of the highest merit. Environmental facts and
social milieu have to be considered.
• The Bill of Rights as a limitation on the powers of government
is appreciated and to a great extent followed notwithstanding
emergency or crisis conditions.
+”INTRODUCTION TO MARTIAL LAW CASES”
(E. MENDOZA)
LAW 115: LEGAL HISTORY
12
October 22, 1950 – Elpidio Quirino was compelled to suspend
the privilege of the writ of habeas corpus because of Communist
rebellion
ANTI-SUBVERSION CASES
- Anti-Subversion Act of 1957 – declared the Communist Party of
the Philippines an organized conspiracy to overthrow the
government
- People vs Ferrer – trial court declared the Act unconstitutional,
violates bill of attainder, due process, equal protection, right to
association.
- SC reversed and upheld the constitutionality.
On bill of attainder – does not specify the CPP and members
thereof. Rather it is just a prohibition against its
membership
On due process claim – justified by the congressional
finding of its subversive objectives
SC also laid guidelines for criminal prosecutions under the
Act
1. proof of organization’s purpose to
overthrow government
2. accused’s joining such organization
3. accused’s doing so knowingly, willfully
and by overt acts
- Early 1970’s was marked by the rise of student activism.
Riding on the crest of student unrest, the CPP rebellion gained
momentum. This necessitated the suspension, for the second
time, of the privilege of the writ of habeas corpus on August 21,
1971.
1971 HABEAS CORPUS CASES
- Lansang vs. Garcia – whether the judiciary can inquire into the
sufficiency of the factual bases for the suspension of the writ.
The SC held that they can. The power to suspend the writ is
limited and conditional and therefore, like any other
constitutional limitations, those imposed on the suspension of
the writ could be inquired into by the court. But the scope of
review is limited. The court, however, after looking into the
factual bases for the suspension, said that it was not prepared
to hold the Executive had acted arbitrarily.
- In 1905, when presented with the same question, the SC held
that the findings of the legislative and the executive were
conclusive upon the courts. (Barcelon vs Baker). In 1952, the
question again came up and the SC affirmed the Barcelon ruling.
- In Martial Law cases 3 years later, the court, while affirming its
competence to inquire into the factual bases for the
proclamation of martial law, did not inquire into the evidence
linking the lone detainee to the rebellion. Its decision could be
due to either or both these circumstances:
1. the petitioner, Benigno Aquino, Jr, had been
charged before the military commission with
subversion, murder and illegal possession of firearms
2. petitioner’s arrest had been specifically ordered by
the President and not only by a subordinate official
- The suspension of the writ continued until January 11, 1972.
Still, there were a lot of problems regarding internal security.
This prompted the President to declare Martial Law on
September 21, 1972. It also enabled the Constitutional
Convention to finish its work. Its draft was approved on
November 29, 1972 and was signed the following day. The
President then issued PD No. 73, submitting the proposed
Constitution to the people for ratification.
THE PLEBISCITE AND RATIFICATION CASES
- Planas vs Comelec – petitioners sought to prevent the
plebiscite from being held. They argued that the President has
no power to call a plebiscite. Furthermore, they said that under
the regime of Martial Law, the people would not be free to
express themselves.
- From January 10- 15, 1973, citizen assemblies were held. On
January 17, the President, thru Presidential Proclamation No.
A2010
1102, proclaimed the ratification of the proposed Constitution.
The issued in the Planas case were dismissed for being moot
and academic.
- Javellana vs. Executive Secretary – Petitioners sought to
prevent executive officials from implementing the provisions of
the new Constitution on the ground that it has not been validly
ratified. The court dismissed the petition and thus proclaiming
that there was no longer any judicial obstacle to the new
Constitution being considered in force and effect. (issues and
voting were discussed, see javellana digest)
THE MARTIAL LAW CASES
- With, the declaration of Martial Law, the President also
commanded the armed forces to arrest and detain those guilty
of rebellion. Petitions for writs of habeas corpus then were filed
on the behalf of those arrested.
- Aquino vs. Ponce Enrile – WON the court could pass on the
sufficiency of the factual bases for the proclamation of martial
law. Six justices voted against it, four for it. NO ruling was made
in the case (under new Consti, 8 votes are needed). However,
they held that Proclamation No. 1081 was valid and that the writ
of habeas corpus was impliedly suspended by it.
- Scope of martial law
1. arrest and detention of those involved in the
rebellion and the imposition of conditions on those
released
2. suspension of the writ of habeas corpus
3. trial of those charged with national security
offenses by military tribunals
4. power of the President, as commander-in-chief, to
make laws
THE MILITARY TRIBUNAL CASES
- Aquino vs. Military Commission No.2 – SC sustained the
jurisdiction of military tribunals on the ground that “prompt and
effective trial and punishment of offenders” were essential to
the exercise of martial law powers.
THE REFERNDUM CASES
-In December 1974, the President announced the holding of the
referendum on January 30, 1975. It was later postponed to
February 27.
- Aquino vs. Comelec – validity of decrees calling the
referendum. SC ruled:
1. according to the transitory provisions of the new
Constitution, the President was authorized to continue
office beyond his four-year term.
2. until NA is convened, the President exercises
lawmaking powers
3. calling a referendum was within his powers
4. martial law was not antithetical to the holding of a
free referendum.
RIGHT TO COUNSEL CASES
- The right to counsel cases are significant because a provision
of the new constitution was invoked by private individuals, thus,
it showed that the SC has accepted the new charter.
- The question in these cases was whether the right to counsel
(article 4, sec 20) could be invoked to bar confessions obtained
without the benefit of counsel, January 17, 1973, the date the
new Constitution took effect but presented as evidence in trials
occurring after that date.
- SC held that the new provision should only be given
prospective effect. The SC gave 2 reasons:
1. if the confession was made before the 1973
Constitution took effect, the person against whom the
confession is being given can claim no right to the
assistance of counsel and, therefore, his confession
cannot be deemed to have been obtained in violation
of section 20.
LAW 115: LEGAL HISTORY
13
2. to give retroactive effect to the new rule would
have great unsettling on the administration of justice
in this country.
THE REFERENDUM-PLEBISCITE CASES
- Sanidad vs. Comelec – petitioners questioned the validity of
the president’s exercise of constituent powers. The SC ruled that
it was valid. Since th NA has not yet convened, it is necessary
for the President to act as agent for and in behalf of the people
to propose amendments to the Constitution. For the President to
decline to undertake the amending process would leave the
governmental machinery at a stalemate. The court also noted
that the president’s action was not a unilateral move but was
rather the result of the prodding of the people’s authorized
instrumentalities. (see sanidad digest for more details)
+”SUMMARY REPORT OF THE PREPARATORY
COMMISSION ON CONSTITUTIONAL
REFORMS”
PCCR was created by the Estrada administration through EO.
No. 43 which was amended by EO. No. 70.
• Purpose: to facilitate the study of proposals on
economic reforms that can be accomplished through
constitutional amendments.
- Commission confined its review of constitutional
provisions only to those considered to be economic in
nature
- State was overly concerned with matters not directly
involving the economy such as politics etc. Discussion on
economic policies became secondary.
- For the first time, a deliberative non-partisan body, for the
sole purpose of evaluating and recommending proposals on
the economic provisions of the constitution was established
• Comparative East Asian Survey
- East Asian economies’ mode of regulation is by legislative
action rather than Constitutional mandate.
 No provisions in their constitution prescribing specific
citizenship or foreign investment equity ratios similar to
those in the Philippine Constitution (except Thailand
which has a restriction on foreign ownership of mass
media).
 Numerous laws and regulations in these countries exist
regulating or limiting foreign investment.
 Economic partners in cooperation with the legislature
are afforded the flexibility to modify economic policies
from time to time without contravening the
Constitution.
• The Origin and Impact of the Protectionist Tradition
- Some provisions in our Constitution are a continuing
reflection of a spirit in our fundamental laws since1935 and
were carried over into the succeeding Constitutions.
- That spirit or tradition is nationalistic protectionism as
embodied in
 Art. XIII of the 1935 Constitution (Conservation and
Utilization of Natural Resources)
 Art. XIV of 1973 Consti (National Economy and
Patrimony of the Nation)
 Art. XII of 1987 Consti (National Economy and
Patrimony)
- Philippine protectionism can be directly traced to US
colonial policy
 After US take over of the Philippines, US policy makers
through US Public Law 235 prohibited large American
corporate investment in agricultural and industrial
enterprises in the Philippines that would compete with
agricultural and industrial interests in the US.
A2010
- Part of this colonial tradition was that economic
development in the Philippines would have to be
supported by domestic capital resources.
♦ The natural consequence of such exclusionary
policies was the inability to undertake
important development projects and
enterprises due to lack of capital.
• Capital Resource Requirements
- The country requires an enormous amount of capital to
spur the development of public utilities and basic
infrastructure.
- Infrastructure enhances economic activity and helps make
our country globally competitive.
- At the GNP growth rate of 5.2-5.8% per year targeted in
the Medium term Development Plan, the Philippines has a
savings-investment gap of P158.4B ($4.1B) for the period of
2003-2004, or an average gap of P31.7B per year.
 If the country wishes to match the pre-crisis 8% growth
rate of our neighboring ASEAN countries, our savings-
investment gap will be P3.091 trillion ($76.7B) for the
same 5 yr duration or an average of P618.3B per year.
- Statistics lead to the conclusion that domestic capital
formation is grossly inadequate. Because of this, the
country has thus been unable to address basic social and
human needs.
• Restrictions on Land Ownership
- Allowing foreigners to own land is currently the subject o
much debate.
 Lands in the Phil are either private or public. And the
issue relates only to a small portion of the total
Philippine land area of 30M hectares
 Bulk of private lands are used for agricultural and
residential use. A small portion is classified as
commercial or industrial.
- It is this tumor estimated at less than 1% of the
total land area that the commission viewed as
having relevance to foreign investment.
- The Commission recommends the liberalization
amid foreign ownership relates only to that small
fraction.
• Plenary Legislative Power
- In some areas of investment such as advertising or
education, there did not appear any compelling reason to
preserve constitutional restrictions on foreign equity
participation.
- Any protection or regulation is better accomplished and
can be periodically adjusted through appropriate legislation.
- Economic policy-making should be the responsibility of the
country’s economic policy-planners.
- They recommend reposing the responsibility for economic
policy formulation in the Executive Department and
Congress.
 Policies on economic development re dynamic and
must not be carved in stone. These questions are
better addressed by the electorally-accountable bodies
of government.
- It is important that congress be given the flexibility to
adopt economic policies which suit certain economic
environments.
- Economic development requires addressing many other
problems aside from constitutional constraints
 PCCR proposed amending certain constitutional
provisions to address the problem areas of corruption,
government inefficiency, peace and order and local
government responsiveness. But the commission did
not have the power to propose amendments on those
areas for despite these areas being intended for
economic reform, they were also political in character.
 Commission also proposed a transitional provision for
amendments that were proposed.
LAW 115: LEGAL HISTORY
14
ANTECEDENTS AND OVERVIEW
• PCCR was created by Pres. Estrada through EO No. 43.
• It was no more than an collection of individuals under
contract with the President, hired as his personal
consultants, to carry out the specific function of rendering
advice on certain matters that were entrusted to them for
study.
• The Steering Committee identified 8 topics that were
assigned:
 Exploration, development and utilization of Natural
Resources
 Land ownership, Use and Disposition
 Public Utilities and Franchises
 Trade and Competition Policy
 Practice of Professions and Educational Institutions
 Mass Media and Advertising
 Bureaucracy, Decentralization and the Economy
 The Amendment Process
THE RELEVANT PROVISIONS
The committee focused its review on economic provisions, only
namely:
1. Art. XII on the National Economy and Patrimony
2. Sections 9 and 19, Article II, Declaration of Principles
and State Policies
3. Section II, Art. XVI on General Provisions (relating to
Mass Media and the Advertising Industry)
4. Sub-section (2), Section 4, Article XIV on Education,
Science, Technology, Art, Culture and Sports
In conducting deliberations and hearings, the various
committees narrowed the scope of inquiry to certain issues,
hereunder described, a number of which were recurring and
common to all topics:
Citizenship Requirements
- A relaxation of the citizenship requirements may be
conducive to an investment environment with greater
potential for attracting foreign direct investment (FDI).
- Of particular concern are strict citizenship restrictions on
the management of certain enterprises where equity
participation of non-citizens is permitted.
Equity Ratios for Foreign Investment
- The matter of attracting FDI is immediately affected by
provisions of the Constitutions prescribing limitations on
investment opportunities by requiring a minimum quantum
of Filipino ownership, educational institutions and the
ownership of land by corporations, participation of foreign
equity being invariably limited to no more than 40% of a
given enterprise.
Ambiguity in Language
- The 1987 Constitution may reasonably likened to an
extended list of entitlements, without, however, a sufficient
hierarchical guide to address competing claims.
 The phraseology of Section 19, Article II on the
Declaration of Principles and State Policies, aspiring for
an “independent” national economy “effectively
controlled” by Filipinos.
 Taken together with other provisions, on Patrimony of
the nation, has thus given rise to controversial policy
decisions affecting foreign investments.
 Attention was also given to the clarification of certain
provisions that may be interpreted as constitutional
restrictions, assuming the adoption of constitutional
amendments towards liberation.
Flexibility in Policy Formulation
- The Constitution ahs removed from the policy-making
institutions of government the prerogative to determine
and shape national economic policy in line with the
changing economic environment.
A2010
 Art. XII, Section 1 poses a problem, since it dictates
that the economic base shall be agricultural
development and agrarian reform, producing a shift to
other economic models of development.
- Other existing provisions contain inflexible rules
that prevent responsive government action to
address problems in the management of economic
affairs.
- State is in no position to alter policy formulations
in certain areas, because limitations or restrictions
are expressly stated in the Constitution.
- These issues cannot be addressed by ordinary
legislation, but require the more tedious process
of constitutional amendment.
- Congress and other institutions of government
should be able to craft and formulate policies
responsive to the changing economic
environment.
The Amendment Process
- Constituent assembly – perceived as having the advantages of
being swifter and less costly.
- Constitutional convention receives considerable support from
certain sectors because it is thought to be non-partisan and
independent
 Less susceptible to the “conflict of interest”
apprehension to the public.
- In either case, the political considerations must be carefully
weighed in deciding which of these permissible modes to adopt
Other Factors Affecting Foreign Direct Investment
- Common objection to Constitutional amendments is that they
have no bearing on FDI, since foreign investors are concerned
with non-constitutional matters such as graft and corruption etc.
- Advocating amendments though does not mean abandonment
of governmental efforts to address these problems
- Recommendations call for increased efforts to ensure optimum
conditions for successful liberalization
General Economic Data
- Poverty and infant mortality rate
 infant mortality rate as a key indicator of a nation’s
development. High infant mortality = poverty
/malnutrition of family = poor public health service
 In South East Asia, the Philippines ranks behind
Singapore, HK, Japan, Taiwan, Thailand among others
in terms of infant mortality.
 Infant mortality is due solely to poverty and
underdevelopment as theological and political dogmas
have little to do with the issue.
Population and Gross Domestic Product
- The lower per capita GDP in the Philippines and its high
population level indicate a strain on family incomes and
government budgets for social services
Bank Assets as Sources of Capital and Credit
- An nation’s capacity to attain development is largely defined
by it’s ability to pay for its “costs”
 “costs” include capital and credit resources to support
enterprises that provide employment, generate income
and savings, and produce commodities for
consumption and trade.
 Much of capital and credit resources are based on bank
assets
- Low amount of bank assets is reflective of a nation’s ability to
increase capital for local investment through domestic savings
of the population. As compared to other SEA countries, the
Philippines is low in ranking.
Gross Domestic Savings and Gross Domestic Investment
- GDP refers to all goods produced and services undertaken
locally.
- Rates of GDP growth reflect the rise or fall in the standard of
living.
LAW 115: LEGAL HISTORY
15
- GDP is affected by Gross Domestic Investment (GDI) which in
turn is in return related to the amount of capital available from
Gross Domestic Savings (GDS)
- The Philippines has limited capital resources compared to its
neighbors, and even more limited domestic savings and
investment figures.
Foreign Direct Investment
- Among the supplementary foreign sources of capital are
Official Development Assistance (ODA), loans, portfolio
investments and Foreign Direct Investments (FDI)
- There is not enough ODA available for the Philippines
- Foreign loans are also problematic because there are high cost
and “country limits” related to borrowing
- Portfolio investments are unreliable because of their
dependence on constantly fluctuating market forces, hence
subject to the whim of the portfolio manager, whose main
interest is obtaining the highest available rate of return in the
various world markets
- FDI is the preferred method of capital supplementation
- Philippines has lagged behind its neighbor countries in
attracting FDI
Indications of Economic Data
- General Economic data shows that the economy is
underperforming
- Constitutional traditions of nationalistic protectionism and
conservation of national patrimony now require review and re-
examination
- Economic protectionism must yield to growth policies aimed at
fostering prosperity and equity to uplift current poor conditions
Summary of Deliberations and Discussions
- The government’s economic managers believe that:
 Liberalizing some of the restrictive provisions of the
Constitution will promote the country’s competitiveness
in an integrating global economy
 Liberalization would also tap foreign capital as a means
of accelerating economic growth
 Long-term potential benefits that would be realized by
the introduction and transfer of new technologies,
expert organizational and management experience,
increased government revenues etc., far outweigh the
perceived disadvantages in amending the Constitution.
 Fundamental changes in the legal framework are
needed to respond to and take advantage of the
developments in international trade and competition.
 On the other hand, those opposed to liberalization
raised three points:
1. liberalization would lead to the loss of the Filipino
patrimony over national wealth and natural
resources, which are limited and exhaustible
2. there are already in place various schemes and
legal devices that allow foreign investment and
participation in these sectors and the additional costs
of amending the Constitution do not justify the
incremental benefits to be derived
3. the incremental benefits would be very little given
that other factors are more important in encouraging
foreign investments rather than amending the
Constitution
 if pursued at this time, liberalization would cause
adverse effects such as displacement of workers
 existing policies must be retained until our industries
are stable
Discussion on Trade and Competition Policy
- Criticism has been made that the basic legal framework of the
Constitution presents practical and philosophical difficulties in
approaches to economic, trade and investment policies.
 Inclusion in the Constitution of restrictive rules that
deprive policy makers of flexibility in policy
formulation.
A2010
 Necessary adjustments in the economic policy have
been rendered impossible by Constitutional provisions
ordaining an economy based on agricultural
development which results in confusion among policy-
makers
- Challenge was to restructure economic policy-making
framework of the Constitution with a view to achieving
reconciliation with pragmatic dilemmas presented by a complex
and competitive economic environment.
- To respond to this, attention was given to certain underlying
principles to ensure a more enduring yet flexible economic
policy.
 Two notions evolved
- Notion of minimalism which describes an approach
characterized by the minimal use and amplified
statement of principles in the Constitution in order to
avoid ambiguity in intent
- Notion of transference which leaves to legislation the
matter of economic, trade and investment policy of
adjustment.
Discussion on Public Utilities, Franchises and
Infrastructure
- Infrastructure enhances domestic and international trade and
enables a country to develop and become globally competitive.
 Transportation, communication, water and power are
the sectors that comprise the basic infrastructure of the
country.
- Prior to the Asian crisis, Malaysia and Thailand were spending
up to 3 times more than the Philippines in infrastructure
investments in infrastructure.
- Following the crisis, the lack of external and internal funding
forced many countries including the Philippines to drastically
reduce their infrastructure expenditures by as much as 50%.
- The arguments in favor of further liberalization of public
utilities emphasized the need for additional capital and financial
flows into the sector in order to achieve higher economic growth
targets.
 The lack of domestic capital renders foreign direct
investment the most likely source for development
projects.
- Position papers from various organizations regarding the issue
of allowing foreigners into the management of public utilities
supported a policy of non-discrimination and merit-based
selection.
- On the issue of granting franchises to foreigners, the
Commission noted the emergence of a global trend toward
preference for reposing the authority in specialized, regulatory
agencies, since this would result in greater efficiency and
expertise in the supervision of the industry.
Mass Media and Advertising
- Includes print and broadcast media, such as newspapers,
magazines, radio and television; advertising is the promotion via
these media of goods and services.
- Capital and/or technology intensive industries which must keep
pace with rapid changes.
 Large amounts of capital are required for the
acquisition of the latest equipment and technological
innovations.
- Arguments in favor of liberalizing mass media and advertising
stressed that the constitution might be too rigid and
unresponsive, thus denying Filipinos to access to these
technological innovations.
- Different nationality restrictions on mass media and
telecommunications impede the possibility of realizing
convergence – the blurring of the distinction between these
industries.
 Such restrictions give rise to lack of capital,
inaccessibility of management expertise and the
inability to forge strategic partnerships with
international media companies.
LAW 115: LEGAL HISTORY
16
 Fear of foreign influence through control of television is
unfounded since the deterritorialization of knowledge
and information dissemination has long since enabled
access to global audiences.
- Competition from foreign journalists and broadcasters
could possibly provide the necessary competition to
uplift the standard of reportage.
- Objectors argued that liberalizing ownership of media will allow
public opinion to be molded by foreigners who may be
motivated by profit and not national interest.
 However, it has been observed that Filipino owners of
mass media can equally be driven by profit and not by
national interest.
 It is also argued that Filipino culture is already under
attack from Western Values which are now freely and
widely available an the Philippines and may eventually
result in the loss of a national identity.
- Top 10 advertising firms in the country are partly
foreign-owned.
- Further increase in foreign participation would
adversely affect the viability of Filipino advertising
firms and stunt the development of local talent.
- No constitution except for the Philippine one which
includes advertising in its provisions.
♦ Commission believes that advertising should
be regulated by law, rather than by the
Constitution.
Educational Institutions
- Participation of an educated citizenry in governance is
essential to the vitality of a democratic state.
- Education is an end itself, as well as a means to an end in that
it empowers people to maximize their contribution to social,
political, and economic development.
- Statistics show that only 4 in every 10 secondary students
continue their education at the tertiary levels.
- Maintaining a virtually closed educational system makes the
financial cost of its upkeep almost exclusively a responsibility of
government.
 This could be shared with or alleviated by investments
in schools from foreign institutions and the like.
- Globalization has reinvented the concept of nationalism.
 Education today is a global concept, requiring that
Filipino graduates are able to compete with their
counterparts from other countries.
 No relationship between patriotism and nationalism
and the citizenship of owners and the citizenship of
owners and administrators of schools.
- Even under a colonial educational system, Filipinos
opted for independence.
 At present, the Constitution already allows foreigners,
through religious orders and mission boards to own and
operate schools.
 There appears to be no compelling reason to
distinguish between religious orders and mission
boards on the one hand, and private educational
institutions from other countries, for example, on the
other.
 Constitutional restrictions on foreign control of
educational institutions deter the entry of foreign
capital and modern facilities and equipment.
- Investors would prefer to have a say on how their
money would be utilized
 Foremost objection to liberalization is the fear that
foreign participation might influence the education of
our youth
 There are criticisms that the Philippine educational
system has been producing professionals and
consumers rather than citizens
A2010
Practice of Professions
- Current Constitutional provisions permit, in cases provided by
law, the practice of professions by foreigners in the Philippines
subject to reciprocity agreements, treaties and the like.
- However, the notion of reciprocity for the purpose of
evaluating conditions for the transnational practice of
professions is inadequate and needs improvement.
- Commission notes the global trend favoring the liberalization
of transnational practice of professions and urges the court to
take positive steps for the adoption of rules and other guidelines
for opening up the practice of law.
Land Ownership, Use and Disposition
- The responsibility for approving, monitoring and regulating
land conversion from agricultural use to industrial, commercial
and residential use is not well defined and lies with several
government bodies such as DAR, DOA, LGUs, Housing and Land
Use Regulatory Board
- Commission recommends to Congress that, as a condition sine
qua non to allowing foreigners to own commercial or industrial
land, it shall enact Land Use Law and designate the agency
which will have exclusive jurisdiction over matters of land use
and classification
- Liberalizing ownership of industrial and commercial land
emphasize the increase in investment opportunities
 Logical consequence of the desire of every
entrepreneur to control the factors of production.
- Those opposed to liberalization fear that the Filipinos might
lose control of their land and contend that there is a lack of
empirical evidence to show the claim of increased investments
die to liberalization
Natural Resources
- Liberalizing the energy and mining sectors stress that
liberalization would support and create jobs through the inflow
of capital, technology and expertise
- Removal of Constitutional limits will not result in total
liberalization, but merely transfer the regulation of these sectors
to Congress.
- The resulting flexibility will enable economic planners to
develop economic policies responsive to changing
circumstances.
- Opponents of liberalization maintain that the use of Philippine
resources should be reserved to Filipinos as liberalization would
legitimize exploitation of foreign nationals of our natural
resources
Survey of Asian Constitutions and Regulations
Constitutional Restrictions
- Survey revealed that no provisions in the constitutions of Asian
countries which contained specific restrictions or limitation in
foreign investment in the development of natural resources or
grant of public utilities or infrastructure franchises.
- No constitutional restriction affecting foreign investment in the
areas of advertising, education, the practice of professions and
land ownership. Except Thailand which has a restriction on mass
media.
Legislative and Regulatory Restrictions
- What are important are the legal approaches and formulations
of policy that have been adopted with respect to foreign
investment in the countries surveyed.
- There appears to be a consistent rule that governments and
their legislatures are allowed some degree of flexibility in
regulating economic matters and issues relating to foreign
investment.
- This is achieved by placing these matters at the legislative
level rather than at the constitutional level. Only in the
Philippines are regulations on foreign investment located in the
constitution
Conclusion and Recommendations
- Provisions relating to economic principles ought to be clarified
and reviewed with a view to avoiding ambiguity, moderating the
LAW 115: LEGAL HISTORY A2010
17
tradition of protectionism, and affording flexibility to future CH.5 “SERVITUDE AND DEPENDENCY”
policy-makers
- Endorses the advisability of revising the provisions pertaining
I. The Servile Class
to the economic and planning agency and the central monetary
- Society involves order of power and order of labor. Power to
authority
rule must take account of interests.
- Afford maximum flexibility to the Congress and the country’s
- Ruler and warriors who maintained authority could not
economic managers to determine from time to time, pursuant to
produce goods they needed; others had to produce for them
current economic needs and circumstances of the country and
- In pre-conquest society, prevalent economic org was
the particular industry sector, policy and regulation relating to
Household economy, production based on household
foreign investments
consumption.
- Endorses the concern for the issue on improving the
- Household needs expanded. More hands were needed.
government bureaucracy and promoting honesty and
Resources were abundant, production was limited. This gave
transparency in government as an essential component for
rise to Servile or dependent class (alipin).
providing an efficient and productive business and investment
- Trade with foreign lands expanded due to demand for jewel,
climate
metal, food. Production for barter had to accelerate.
- Foreign technology and expertise by way of international
- There are chiefs with hundreds of slaves, these were
assistance should be encouraged as well as the vital need for
emergent entrepreneurs heralding market economy.
the improvement of the Master Rehabilitation and Investment
Plan for the revitalization of the fisheries and timber industry.
II. Distinguished from Slavery
- The revision of the provision regarding the issue of exclusivity
- Spanish referred to servile class as slaves, this is misleading
of marine resources so as to allow a measure of flexibility to
but understandable.
support Filipino initiative and subsequent scientific or
- Alipin was under compulsory obligation to serve household
commercial cooperative ventures with foreign counterparts in
and was subject to transfer.
conformity with international treaty commitments and the
- Unlike classical slaves, who were chattels w/o personal rights,
pertinent growth and economic policies of the government.
alipin has rights. Marriage between alipins and between alipin
- Ownership of agricultural and residential land ought to remain
and freeman were recognized. Alipin could own/inherit
with Filipinos, but that, to further economic growth and
property, execute contracts, set himself free through
productivity in other sectors, the ownership of private lands
redemption of debt.
devoted to commercial or industrial uses be liberalized and
- Classical slave concept didn’t allow partial slave status. Alipin
made available to foreign investors in accordance with
allowed partial alipin status.
guidelines established by law.
- Role of foreign expertise and managers ought to be recognized
III. Servitude as Consequence of Surrender
and that these are matters better left to laws and regulations.
- Outsider alipin – from other places after plundering operation,
Grantees and franchises, if corporation, ought to be corporations
capture in war, etc.; more onerous burdens
incorporated under Philippine law
- Native alipin – not slaves in true sense; status akin to debt-
- Regalian doctrine coupled with the inherent authority of
peonage; debtor surrendered his body for rendition of services;
government to exercise regulatory powers over these sectors
alipin until payment of debt without losing personal rights
(natural resources development and public utilities), as well as
plenary power of Congress, provide ample safeguards for the
IV. Servitude as Off-shoot of Sangla
effective control and management of these sectors and the
- Legal concept of sangla was widespread but land had little or
protection of state interest in accordance with pragmatic
no value. Where debtor had exhausted property, his body
principles of stewardship.
becomes security for repayment.
- Nationality and capital ratio requirements for educational
- Because alipin was merely security, there’s no ownership over
institutions need not be addressed in the Constitution and are
the person; there were relatives being in servitude to one
better left to legislative or policy determination, consistent with
another.
the principle of academic freedom.
- Alipin can be compared to present day share tenants
- Nationality and capital ratio requirements for mass media and
(kasama).
the advertising industries need not be addressed in the
Constitution, given the large capital requirements and the rapid
V. Causes of Servitude
development of technology, permitting convergence of
- Two principal causes: capture in war/plundering and non-
broadcast media, computers, the internet and
payment of debt
telecommunications
- Debt as a cause of servitude had its origin in contract or in
 Maximum flexibility ought to be afforded congress and wrong. In contract, failure to pay on time. In wrong, penalty or
policy makers to enable formulation of policies fine. In case of crimes where death was prescribed, injured
responsive to technological advances. party could authorize commutation so instead of being put to
- Concludes that the most cost-effective option would be to death, offender becomes alipin to party.
convene Congress as a constituent assembly
- That a transitory provision that implements liberalization VI. Alipin Namamahay
pending action by Congress, would be useful and beneficial - Types or classes of servitude or dependency is based on
- Commission recognizes that the proposed amendments would extent to which they were under compulsory service.
not guarantee immediate inflow of increased foreign investment - Part time – alipin namamahay (Tagalog), tumuranpoc and
for coupled with these, other factors need be addressed such as tumataban (Visayas), resembled kasama/tenant, lived in own
political and regional stability, improved bureaucracy and the house, had ownership, can’t be sold, children inherited rank and
lke. property of parents, shared harvest with master, rendered
incidental services
*LABOR LAW* - male tumuranpoc – give 1 day of every 4
- male tumataban – gave 5 days of each month; rice if
service is not rendered
+CUSTOM LAW IN PRE-CONQUEST - female tumuranpoc – half of each month weaving cotton
PHILIPPINES (P. FERNANDEZ) - female tumataban – spin specified amount of cotton balls
LAW 115: LEGAL HISTORY
18
- Full time
VII. Alipin Saguigilir
- Ayuey (Visayas) – virtually all services to the master 3 days
out of 4, no own house
- entitled to hold and enjoy earnings, sometimes were able to
redeem debt and regain freedom
- unlike namamahay, could be transferred by one master to
another (outsiders); native saguiguilir were rarely sold
VIII. Mixed Marriages and Succession to Servitude
- Generally, alipin married alipin but no bar to marrying
freeman/woman. More frequently, freemen took female alipin
as concubine
- Both alipin parents:
- followed condition of parents if both namamahay or
saguiguilir
- if one was namamahay, other was saguiguilir, children
followed condition of parent to whom they were allotted.
Odd pertains to father. Even pertains to mom.
- if married alipin belonged to diff masters, children
pertained to master of parent to whom they were allocated.
- Freeman and alipin concubine
- children are free; also if children are by freewoman and
alipin outside wedlock
- if alipin belonged to another, child was half-free if
recognized by freeman; otherwise, child is alipin
- same allotment rules apply
- if half-alipin married free person, children were alipin only
in fourth part; if he married an alipin, children were free
only in fourth part
IX. Allocation of Services of Offspring
- There were cases of same person being alipin to two or more
households. Where duly wedded alipin belonged to diff masters,
children were shared between them equally.
X. Termination of Servitude
- Servitude generally lasts for lifetime. But unlike slaves, there
are methods for effectuating emancipation:
- redemption – alipin redeemed freedom by payment of
indebtedness or purchase price if he was sold. In partial
servitude, master must accept the amount. In full
servitude, redemption must be by agreement. Alipin
delivers half of his belongings to ex-master in ceremony.
- manumission – master set alipin free as gratuitous and
liberal act usually on deathbed
- when maharlika or freeman took his female alipin as
concubine unless she did not bear any children
+TRADE UNION BEHAVIOR IN THE
PHILIPPINES (L. DEJILLAS)
CH.2 “PHILIPPINE CONDITIONS AND THE
LABOR MOVEMENT, 1946-1990”
I. Introduction
- 1946-1950: Phils tried to restore economy through import-
substitution industrialization
- 1950-1960: highest per capita GDP growth rate among
SEAsian nations
- 1960-1980: lowest per capita GDP growth rate among
SEAsian nations
- Import-substitution failed because:
- labor surplus not eliminated
- failure to expand industrial growth
- failure to reduce dependence on imports
- 1960s: promotion of export and liberalizing foreign trade.
While exports improved, they performed poorly compared to
imports (Balance-of-trade deficit from 1946-1990)
A2010
- By 1972, foreign debt was $1.71B. 1990, $28.41B.
- massive unemployment, income disparity, declining standard
of living
II. Low Wages
- Minimum wage law was passed in 1936 (Commonwealth Act
103) but min wage was fixed only in 1951.
- 1970s: gov’t started to periodically adjust minimum wage
levels
- Min daily wage rates could not meet workers’ needs
- Low wages were result of gov’t cheap labor policy, dictated by
broader exigencies of export-oriented development, attracting
foreign investments, stabilizing international value of Philippine
currency.
III. Restrictive Labor Standards Laws
- Min wage laws apply only to wage and salary earners who are
less than half of total labor force. There are also many
exemptions.
- First min wage law, RA 602 in 1951 did not cover farm
tenants, domestic servants, workers in retail/svc with not more
than 5 employees, employees in agri enterprises of < 12 ha.
- More exemptions:
- homeworkers in manual needle work, RA 812
- mining employees, RA 4180
- those in cottage industry registered with National
Cottage Industries Development Authority (NACIDA)
- After Martial law, more exemptions:
- enterprises in welfare areas
- distressed employers
- househelp, fam drivers, persons in personal svc, those in
registered cooperatives
- workers in approved apprenticeship program
- After People Power, more exemptions:
- househelp, fam drivers, persons in personal svc
- retail sale/svc workers if not more than 10 workers
- workers in new enterprises outside NCR and Export
Processing Zone for not > 2-3 yrs
- workers with basic wage of > P100/day
IV. Repressive State Policies on Trade Unionism
- 1940s: trade unionism governed by CA 103, imposed
compulsory arbitration
- CA 213 required labor unions to register with Dept of Labor.
Government abused this requirement.
- 1953 Magna Carta of Labor/RA 875 emphasized collective
bargaining, grievance, voluntary arbitration; start of more
democratic climate
- Proclamation 1081: Martial law
- Labor Code of the Philippines/PD 442, required labor
federation to organize local unions only within industry,
empowered Labor Dept not to issue registration
- law prohibited security guards, managerial employees from
joining/forming unions
- banned unions from accepting persons from subversive orgs
or from engaging in subversion
- gov’t required submission of list of officers, minutes, members
list, signatures of half the employees
- Certification elections also restricted unionism. Unions must
be recognized by employers as exclusive bargaining agent of
employees. Under PD 442, question of representation is
resolved in certification election by Labor Department. Workers
select their union through secret ballot. However, filing petition
for certification election required written consent of at least
30%, later 50% of employees.
- government cancelled registration of supervisory unions and
those of security guards
- labor federations were told to stop organizing if there is
already an industry union
LAW 115: LEGAL HISTORY
19
- ban on organizing gov’t employees, incl GOCC employees,
employees of religious, charitable, medical and educational non-
profit institutions
- pre-martial law trade unions could be canceled. Union
organizing declined.
- Under martial law, strikes were banned. Labor Code
prohibited collection of strike contributions, ordered conversion
of strike funds to labor research and education funds.
- PD 849 partially lifted ban on strikes except in vital industries
(transpo, communication, fuel gas, gasoline, banking, hospital,
school, etc.)
- 1981: when martial law was lifted, strikes jumped. But later
that year, BP 130 made it almost impossible to strike.
- 1982: BP 227 guaranteed free ingress/egress from company
hit by strike, made unlawful to obstruct entry/exit
- 1985 LOI No. 1458
- allowed replacement of workers who defied return-to-
work order
- directed military/police to implement return-to-work
- empowered govt to elevate dispute to compulsory
arbitration
- From 1981 to 1985, strike average rose bec. Of:
- lifting of martial law
- worsening economy
- resurgence of revolutionary unionism
- assassination of Ninoy Aquino
- sprouting of revolutionary movements and political
parties
- dissatisfaction against Marcos admin
- people-based movements and radical Church
- economist unions and social reformers
- 1986: freer industrial relations; restoration of right to unionize
of security guards, GOCC employees and supervisory
employees; allowed automatic certification elections and
reduced signature requirement for petition for certification
election to 20%
- 1989: RA 6715 repealed repressive provisions of Labor Code
V. The Philippine Labor Movement
- Trade unionism grew under economic underdevelopment
- Types of unionism
- revolutionary
- economist
- moralist and ethical
- democratic and political
- protective/defensive
- Union tendencies urged by
- expansion of Communist Party of the Phils
- govt attempts to control labor movement
- arrival of US Mission by Daniel Bell, led to passage of
industrial relations law in 1953
- involvement of Society of Jesus and other Christian social
movements
- social-democratic and democratic-socialist reformers led
to Partido Demokratiko-Sosyalista ng Pilipinas (PDSP)
VI. Revolutionary Unionism
- surfaced with founding of Congress of Labor Organization
(CLO) organized by guerilla and labor leaders, affiliated with
World Federation of Trade Unions (WFTU), a Russian based
communist org
- CLO under Amado Hernandez
- Pambansang Kaisahan ng mga Magbubukid (PKM) became
strongest peasant org after war in Central Luzon
- Democratic Alliance (DA) presented govt with radical
demands: equitable share of harvest for tenants, recognition of
all trade unions and right to collective bargaining, outlawing of
company union, loan for tenants, end to usury, end to
landgrabbing and arbitrary eviction; DA was shortlived.
- Partido Komunista ng Pilipinas (PKP)/Communist Party of the
Philippines
A2010
- DoL invoked law to dissolve unions with communism and
arrest leaders. Labor Dept canceled registration of Federacion
Obrera de Filipinas (FOF)
- Labor Sec revoked CLO, claiming subversion
- Cipriano Cid organized Philippine Association of Free Labor
Unions (PAFLU), resembling CLO, attacked foreign interference
and promoted socialism
- National Association of Trade Unions (NATU) was organized,
long-range objective was emancipation of working class from
oppression
- Olalia organized National Federation of Labor Unions (NAFLU),
advocating against capitalist system
- Olalia organized Malayang Samahang Magsasaka (MASAKA),
promoting nationalist industrialization, became largest peasant
association until martial law. Later, MASAKA split but both
factions remained firm in fight.
- Pagkakaisa ng mga Magbubukid sa Pilipinas pressed for full
implementation of the Agricultural Land Reform Code and the
abolition of tenancy.
- Unions were strengthened by national democratic forces; first
was Socialist Party of the Philippines (SPP), the national-
democratic alternative to the anti-national and colonial-oriented
politics
- 1968: CPP-Guerrero wing emerged and organized New
People’s Army (NPA)
- Progressive Workers’ Council (PWC) brought together all
revolutionary labor leaders in the country. Basic program was a
militant struggle.
- Other national-democratic orgs:
- Kabataang Makabayan/KM
- Movement for Advancement of Nationalism/MAN
- Samahang Demokratiko ng Kabataan/SDK
- Malayang Pagkakaisa ng Kabataang Pilipino/MPKP
- National Democratic Front/NDF
- Other sectoral groups:
- Rebolusyonaryong Kilusan ng Magsasaka
- Katipunan ng mga Gurong Makabayan
- Malayang Kilusan ng Bagong Kababaihan
- Makabayang Samahang Pangkalusugan
- Martial law halted militant activities, after, they acted covertly
until formation of Kilusang Mayo Uno (KMU), concrete
expression of revolutionary unionism.
VII. Democratic and Political Unionism
- 1950: govt organized National Confederation of Trade
Unions/NACTU to counteract communism, led by Labor Sec Jose
Figueras. His campaign was effective and at one time, all
registered unions were under govt control.
- But NACTU was just for promotion of political ambition of
Figueras who ran for senator.
- Govt adopted highly selective policy of repressing activities of
communist-dominated unions while favoring conservative
unions willing to join NACTU.
- Federation of Free Workers/FFW after Society of Jesus became
most vocal critic of govt control over and company domination
of trade unions.
- After passage of 1953 Industrial Peace Act/RA 875, FFW’s
struggle subsided, rekindled in 1970s
- 1973: Nagkakaisang Partido Demokratiko Sosyalista ng
Pilipinas/NPDSP was born, later became Partido Demokratiko
Sosyalista ng Pilipinas/PDSP
- After EDSA, PDSP headed formation of Lakas ng Manggagawa
Labor Center/LMLC
- Other sectoral orgs: farmers, youth, students, etc.
VIII. Economist Unionism
LAW 115: LEGAL HISTORY
20
- 1950s: emergence of economic unionism when American
advisers studying labor conditions led to passage of Industrial
Peace Act.
- Trade unions that emerged after 1953 were largely business
and social welfare institutions.
- Most dominant and stable unions:
- National Labor Union/NLU
- Associated Labor Union/ALU
- Philippine Labor Alliance Council/PLAC
- Pambansang Kilusan ng Paggawa/PKP
- Unions along industry lines:
- Philippine Transport and General Workers
Organization/PTCWO
- Union de Obrero Estivadores de Filipinaas/UOEF
- Philippine Social Security Labor Union/PSSLU
- National Mines and Workers Union/NAMAWU
- Confederation of Unions in the Government Corporations
and Offices/CUGCO
- Union de Impresores de Filipinas/UIF
- Some unions by area: Mindanao, Southern Phils, Rizal, etc.
- Labor leaders formed trade union centers or alliances.
- Philippine Labor Unity Movement/PLUM
- Philippine Trade Union Center/PTUC
- Katipunan ng Manggagawang Pilipino/KMP
- Labor leaders formed political parties
- Lapiang Manggagawa/LM
- Consolidated Labor Party/CLP
- Philippine Labor Center/PLC brought together big unions
- National Labor Unity Council/NLUC was established to organize
Labor Day celebrations.
- Labor groups continued to unite with each other: PMP,
PHILCONTU, KAPP
- Labor alliances were only shortlived. Only in mid 1970s was
unity realized when govt formed Trade Union Congress of the
Phils in 1975.
IX. Moralist Unionism
- Jesuits formed Institute of Social Order/ISO for education of
labor leaders
- Federation of Free Workers/FFW and Federation of Free
Farmers/FFF were organized by Jesuits
- Other sectoral groups:
- Christian Social Movement
- Young Christian Workers
- National Union of Students in the Philippines
- Student Catholic Action
- Lakasdiwa
- Kapulungan ng mga Sandigang Pilipino
X. Conclusion
- Trade union tendencies:
- revolutionary – abhors capitalism; works for socialism
- democratic-political – advances trade union freedom and
workers participation
- economist and traditional – on factory focused/economic
issues
- moralist – religion gives reformist posture
- defensive/protective – protection of workers
+COLLECTIVE BARGAINING IN THE
PHILIPPINES (D. EDRALIN)
CH.2 “MORE THAN A CENTURY STRUGGLE OF
THE PHILIPPINE TRADE UNION MOVEMENT”
I. 1750-1898: Spanish Colonial Era/Seeds of a Movement
- Spain arrested economic development, brought exploitation
- Phils as military/missionary station administered through
Mexico
- End of isolation of country, opening to foreign goods and
liberal ideas
A2010
- Guilds planted the seeds of trade union movement.
- Workers constituted bulk of Katipunan
- beginnings of political unionism
- Developments:
- longest revolt by Dagohoy
- British invaded Manila as part of 7yr War between her and
France and Spain
- Phils returned to Spain. British proved Spain can be
defeated.
- Phils allowed reps in Spanish Cortes
- Abolition of galleon trade bet. Manila-Acapulco
- Manila opened to world trade; British and Americans
establish business
- Gremios existed: Gremios de Escultures del Barrio de
Sta. Cruz, Gremio de Obreros de Sampaloc, Gremio de
Litografos and Gremio de Carpenteros
- Mutiny in Cavite, later quelled. GOMBURZA arrested and
executed.
- Phils’ first proletarian strike in Cavite arsenal
- First printers’ strike in Pampanga, later established
Gremio de Impresores
- Propaganda movement launched
- Katipunan established
- Second strike in an Escolta printing press
- Philippine Revolution against Spain
- Cry of Balintawak
- Rizal is executed
- Battle of Manila Bay, Spain is defeated
- Phil Independence proclaimed
- GovGen Jaudenes said he’d surrender to Americans after
little fight to save Spain’s honor
- FilAm captures Manila but Filipinos denied entry to
Intramuros
- Last GovGen delos Rios leaves
II. 1899-1901: Filipino American War/Rise and Fall of the
First Philippine Republic
- FilAm War robbed Filipinos of victory against Spain
- America’s purposes: pursue manifest destiny of US as world
power, use Phils as source of raw mats and market, use Phils as
military/naval base, have refueling port for US ships servicing
interests in China
- Developments:
- Aguinaldo proclaims Malolos Consti
- First Phil and Asian Republic inaugurated
- Greyson shoots Filipino crossing San Juan bridge.
American advance on Fil troops
- third recorded strike launched for higher wage and
against abuses
- general amnesty issued by McArthur
- Aguinaldo captured in Palanan, Isabela
- Aguinaldo swears allegiance to US; end of Phil Republic
- Isabelo delos Reyes, father of Phil Trade Unionism arrives
fr Spain
- American Civil Govt replaced Military Govt in pacified
provinces. Taft headed Philippine Commission, the
legislative body.
III. 1901-1934: American Occupation/Registration of
Unions
- Americans’ economic policy is based on capitalism
- Political Unionism orientation of trade union movement
flourished
- Developments
- first formal trade union, Union de Impresores de Filipinas,
established
- first Congress of first labor federation of the country,
Union Obrera Democratica/UOD held
- UOD launches first general strike
LAW 115: LEGAL HISTORY
21
- Isabelo delos Reyes arrested; Dominador Gomez takes
over and changes name of UOD to Union Obrero
Democratica de Filipinas/UODF
- 1903: first May 1 celebration; Gomez was arrested,
Herminigildo Cruz takes over
- UOD publishes first workers’ newspaper, La Redencion del
Obrero, which later, folded up
- Elections for 80 seats in Phil Assembly
- Lope Santos organizes union among workers of
Katubusan Cigar and Cigarette Factory, the first workers’
cooperative; he establishes Union del Trabajo de
Filipinas/UTF
- Phil Assembly made May 1 or Labor Day a national
holiday
- Act No 1968 established Bureau of Labor under
Department of Commerce and Police
- Act No 1874/Philippine Employers’ Liability Act of 1908
was passed, first labor law passed by Phil Assembly and Phil
Commission, defining responsibility of employers for
injuries/deaths of workers.
- Bureau of Labor starts to function.
- Congreso Obrero de Filipinas/COF organized by Cruz and
Evangelista, struggling for 8hr workday
- Attorney position in Bureau of Labor created thru Act No
2385 to help indigent workers
- Act No 2486 sought to rationalize overseas recruitment
- BoL registers 31 unions, increased.
- Strikes became common
- Progressive Workers Party/PWP is initiated. COF became
member of Pacific Secretariat of Trade Unions.
- Evangelista elected Pres of COF
- COF divided into two factions. New federation, Katipunan
ng mga Anak Pawis ng Pilipinas/KAP was established from
one faction.
- More federations with launch of Quezon’s Social Justice
program
- The idea of establishing workers’ party is forged during
congress of KAP
- Evangelista founds Partido Komunista ng Pilipinas/ PKP.
Strikes became intense.
- Quezon tries to suppress PKP. Evangelista was arrested.
- Americans raid KAP congress.
- Department of Labor/DOL established by Act No 4121
IV. 1935-1946: Commonwealth/Regulation of Industrial
Relations
- Two major devts: (1) legislative, laws were enacted for labor
protection, creation of Court of Industrial Relations and (2)
dynamics of trade union movement, first strike in govt owned
hotel and splits in labor centers
- Japanese invasion
- Developments
- Workers’ Compensation and Minimum Wage Laws are
passed, 1935 Consti ratified, Commonwealth Administration
is inaugurated. Dept of Labor assumes direct supervision
over BOL.
- Commonwealth Act 103 created Court of Industrial
Relations as compulsory arbitrator of labor-management
issues.
- PKP and Socialist Party merge. Three national federations
emerge: NFL(National Federation of Labor),
CWA(Confederated Workers Alliance), and Collective Labor
Movement (CLM)
- Commonwealth Act No 444 or 8hr Workday Law enacted
- 1st strike in govt hotel (Manila Hotel) led to SC’s decision
for right of govt employees to organize unions and strike.
- Evangelista was arrested and executed by Japanese
- HUKBALAHAP was organized
- surrender of Corregidor and Bataan
A2010
- labor movement is reconstituted as Committee on Labor
Organizations and later as Congress of Labor Orgs (CLO),
first national labor center.
V. 1946-1952: Third Republic/Resurgence of Political
Unionism
- First national labor center suffers split.
- Developments
- Phil Independence/Third Phil Republic established
- HUKBALAHAP reorganized as People’s Liberation Army.
Leaders were capture, others surrendered.
- Amado Hernandez elected CLO Pres
- Manuel Joven, CLO national secretary, was kidnapped and
killed.
- NACTU formed by Sec Jose Figueras.
- CLO split, led to form Katipunan ng mga Kaisahan ng
Manggagawa/KKM
- FFW was organized
- Quirino bans CLO. Hernandez is arrested.
- Min Wage Law/RA No 602 takes effect
- Phil United Peasant and Labor Org/PUPLO is formed as
rival of NACTU
VI. 1953-1972: Industrial Peace Act/Collective
Bargaining
- With adoption of Industrial Peace Act, collective bargaining
became dominant feature of industrial relations.
- Developments
- RA 875/Industrial Peace Act/Magna Carta of labor was
enacted, reduced govt interference, promoted collective
bargaining, with mediation and conciliation as new modes
of dispute settlement.
- Phils ratifies ILO Convention No 87 on right to organize
and No 98 on right to collective bargaining
- Philippine Trade Union Council/PTUC is organized,
affiliated with International Confederation of Free Trade
Unions/ICFTU. 3 member-federations later bolted out.
- Employees fr govt corps establish federation. 12 unions
joined to form Confederation of Unions in Government
Corps/CUGCO.
- DoL undergoes revamp
- RA No 1700 or Anti Subversion Law bans PKP
- KMP was convened
- 1st attempt to engage in political action, founding
Convention of Lapiang Manggagawa at Lyceum
- MASAKA/Malayang Samahang Magsasaka is established
- PLC is established, pushed for one-union one-industry, its
split led to PMP and PHILCONTU
- Magna Carta for Public School Teachers was passed
- Socialist Party of Phils is founded
- School teachers wage a strike
- SMORP/Samahan ng manggagawa sa Otel at Restoran sa
Pilipinas was founded
- ILO Area Office in Manila is formally established.
VII. 1972-1986: Martial Law Period/1973 Constitution
and 1974 Labor Code
- total ban on mass action
- One union One Industry system
- CIR replaced by NLRC
- Development
- birth of Kapulungang Anak-Pawis ng Pilipinas/KAPP
- declaration of Martial law
- Labor groups were convened to discuss formation of
Philipine Labor Movement Consensus Committee/PLMCC, a
national labor center.
- Labor Code is enacted
- Gen Order No 5 and PD No 823 became criticized
- SMORP is reorganized NUWHRAIN/National Union of
Workers in Hotel, Restaurant and Allied Industries.
- Phil Labor Coordinating Center/PLCC is organized
LAW 115: LEGAL HISTORY
22
- 1st strike under Martial law: La Tondeña
- FFW withdrew from PLCC
- TUCP/Trade Union Congress of Phils is established.
- Kalayaan Labor Coalition forged to support LABAN
candidates in elections
- Kilusang Mayo Uno was established
- Martial law lifted; Pagkakaisa ng Manggagawang
Pilipino/PMP born
- BP 130 prohibited strikes in industries affecting national
interest, and required 2/3 vote before union may strike
- 1st general strike after martial law in Bataan Export
Processing Zone, forming AMBA-BALA
- BP227 Free Ingress-Egress Law
- LOI 1458 gave management authority to replace workers
who defy return to work order.
VIII. 1986-1987: Aquino Revolutionary Government/EO
111 and EO 180
- Freedom Consti and Revolutionary Govt
- Developments
- Marcos out, Cory in. Labor Minister Sanchez convenes
Labor Advisory and Consultative Council/LACC
- Proclamation No 3 promulgating 1986 Provisional Consti
- 1st Joint Labor Day celebration in Luneta.
- Memorandum Order 28 issued removing P1000 ceiling for
those entitled to 13th month pay.
- EO 111 restored right to unionize of employees and govt
corps, religious, medical, educ institutions, etc.
- 1987 Consti ratified
- TUCP SecGen wins Senate seat in elections
- EO 180: guidelines in restoring right of govt employees
to unionize, creating Public Sector Labor-Management
Council
IX. 1987-present: 1987 Constitution/Restoration of
Democracy, Continuing Martial Labor Laws and Neo-
Liberal Globalization
- Min wages brought about by regional wage boards created
under RA No 6727 authored by Ernesto Herrera
- RA 6715 amended Labor Code
- Development:
- LACC and TUCP call for gen strike
- RA 6640 granted increase in min wage
- govt unions form Independent Unions in the Public
Sector/CIU
- LACC and TUCP another wage increase campaign
- RA 6657: Comprehensive Agrarian Reform Law/CARP
- RA 6715: Herrera-Veloso law amending Labor Code
- RA 6725: Act Strengthening Prohibition on Discrimination
Against Women on Employment
- RA 6727: Wage Rationalization Act created Regional
Tripartite Wage and Productivity Boards
- founding Congress of CIU held to replace Caucus of
Independent Unions in the Public Sector
- Wage Order No 1 and 2 increased min wage.
- Memo of Understanding signed as 1st national collective
negotiation agreement in public sector, granting personnel
emergency relief allowance/PERA.
- ILO Convention No 144 on Tripartite Consultation
(International Labor Standards) is ratified
- AKBAYAN is launched to support Jovito Salonga-Nene
Pimentel as Pres and VP in 1992 elections
- RA 7277: Magna Carta for Disabled Persons
- RA 7610: Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act
- RA 7641: Retirement Pay Law provides for retirement
benefit of at least one half-month salary per year of service
- DO No. 19-93 provide guidelines for employment of
construction workers
- RA 7655 increased min wage for househelp
A2010
- Labor Alliance for Wage Increase of P35 or LAWIN35 is
formed
- NCR-Wage Order No 3 increased min wage.
- RA 7686: Dual Training System Act signed
- RA 7699 instituted limited portability scheme in social
security insurance systems.
- National Confederation of Labor/NCL is launched
- RA 7796: Technical Education and Skills Devt Act
- RA 7877: Anti Sexual Harassment Act
- RA 8042: Migrant Workers and Overseas Filipinos Act
- NCR Wage Order No 4 increased min wage
- RA 7686: Dual Training System
- RA 8187: Paternity Leave Act and RA 8188 imposing
double indemnity for violation of prescribed increases
- NCR Wage Order No 5 increased min wage
- DO No 9-97 amended Rules on Labor Relations issued by
Labor Sec Quisumbing
- RA 8282: Social Security Law of 1997
- RA 8291: Government Service Insurance System Act of
1997
- DO No 10-97 on labor contracting is also issued
- RA 8435: Agriculture and Fisheries Modernization Act
- AKBAYAN founding Congress held
- NCR Wage Order No 6 increased min wage
- ILO Convention 179 (Recruitment and Placement of
Seafarers) ratified by Senate
- Proclamation 1215 declaring May 1 to 7 as Linggo ng
Paggawa
- AKBAYAN wins one seat in first party list elections, Etta
Rosales sent to Congress
- RA 8425: institutionalized social reform and poverty
alleviation program creating National Anti-poverty
Commission
- ILO Convention 182 (Elimination of Worst Forms of Child
Labor) ratified by Senate
- NCR Wage Order No 7 increased min wage
- NCR Wage Order No 8 increased min wage
- Popoy Lagman shot dead
- 2nd party list elections, 12 groups sent 20 reps to
Congress
- NCR Wage Order No 9 increased min wage
- DO No 18-02 by Labor Sec Sto. Tomas implementing rules
on contracting and subcontracting.
- DO No 40-03 by Labor Sec Sto. Tomas amending rules
implementing Book V in Labor Relations of Labor Code.
*CIVIL LAW*
+CUSTOM LAW IN PRE-CONQUEST
PHILIPPINES (P. FERNANDEZ)
CH.6 “HOUSEHOLD AND DOMESTIC
RELATIONS”
1. Kinship in Pre-Conquest Society
• Kinship was the most important determinant
of status
- parentage determined a person’s position,
prerogatives and obligations
• Kinship was an important Nexus of Liability
- guilt for crime or tort of a member of the family
was imputable to the entire household
- imposed the obligation of vengeance; a mitigating
factor in the punishment of homicide
• Subordination of demands of kinship to the
interests of the household
- claims among relatives were enforced with the
same rigor as claims among strangers as long as
LAW 115: LEGAL HISTORY
23
they belong to different households stimulated
by need to provide in the other world
- delay of the recognition of patria potestas due to
multiple and bilateral kinship, wherein a child is
related to the relatives of both mother and father
- the household, rather than the family, was the
durable entity
• Bilateral kinship was of utmost importance to
the maintenance if peace and order within the
barangay
- most households within the barangay were related
by blood
- conflicts between households within the barangay
was localized and delimited, and under community
pressures, expeditiously settled
• Extensions of Kinship
- adoption: adopted became a member of adopting
household
- blood compact: blood brother became a member
of dominant household, hence the barangay
community
2. The Household in Custom Law
• Subject of custom law was not the individual
but the household
- household: any group of relatives, headed by a
free person, living together under one roof;
includes concubines and their children, and alipins
and their families, esp. the saguguilirs
- household had a general community of earnings
gained by members, under the administration of
the head
- members have a right to their own belongings or
properties
- effective decision in the administration of the
household and the governance of its affairs
pertained to the head
- cultural developments were shaped by household
and its major needs
3. Religion and the Household
• Existence of a body of widely-held community
beliefs
- dominant elements: nature, worship, animism, life
after death
- deities were in charge of the important needs of
the community (private idols)
- departed ancestors became subordinate deities
with the power and concern to protect the living
and ward off harm
• Organization of religion was a household
concern
- members of household: faithful, dwelling: temple,
ritual: sacrifices to ancestors and deities in times
of household crisis
- religion exerted a constant and pervasive influence
in their daily lives but the practices and rituals
were household concerns  no community
worship, only household worship
- The priestesses called babailanes or catalonas
attended to the sacrifices
• Anito worship shaped religious practices
accordingly
- ceremonies of mourning and burial eased the
transition from this life to the next, thus
celebration is elaborate and costly
- acquisitive element in pre-conquest society:
people were inclined to comfort and material ease,
A2010
display of wealth even in life beyond the grave 
imposing policy of accumulation and
aggrandizement on household
4. Marriage
• Marriage was essentially a private affair
- minimal regulation
- governed by custom law only up to the extent that
marriage affected the material interest of the
household concerned
- any detriment to one household would be
compensated  compulsory payment made by
groom was not bride-price but mere compensation
for the material loss suffered by her household, as
unmarried daughters were producers of articles for
household use or revenue
• Prohibitions
- marriage took place among persons belonging to
different households of generally equal rank but
marriage between persons belonging to different
classes was not prohibited
- kinship was not a barrier to marriage but incest
was feared and abhorred, and whenever it
occurred, it was rigorously punished
5. Betrothal
• Marriages were generally agreed upon by the
heads of the household, upon solicitation by the man’s
parents
- betrothed were usually children
- customary for the household of the man to give
earnest money usually in the form of an advance
on the agreed dowry
• Betrothal was a solemn undertaking
- in case of breach, the party unwilling to proceed
with the marriage subjected to a customary fine
6. Marriage Gifts
• Bridegroom’s household makes a marriage gift
to the household of the wife
- called bigay-caya
- amount varied with the rank and status of the
household involved
- parents receive dowry and converts it into their
own estate, which is distributed equally to their
children upon their death
- if bigay-caya exceeded customary amount, the
obligation devolved upon the bride’s household to
make a return gift, payable to the newly-wedded
couple, called pasonor
• Bigay-caya as compensation for loss of
services of the bride
- conditional character: once such services ceased
to be available to the husband’s household, then
the dowry had to be returned
- when wife leaves husband without his fault, the
entire dowry is returned; when husband leaves
wife, only half is returned; when couple have
children, dowry goes to the children
• Bridegroom required to make special
compensatory gifts
- panhimuyat: given to the mother of the bride in
consideration of her care, labor and watchfulness
in the rearing and training of her daughter
- pasoso: paid to the woman who nursed and tended
to the bride as a child
7. Marriage Ceremony
LAW 115: LEGAL HISTORY
24
• Marriage was deemed celebrated upon the
payment of the dowry and the delivery of the bride into
the husband’s household
• Marriages among those of noble rank
- preceded by a sacrifice and accompanied by
feasting
- couple performs acts symbolizing their union
- climax: announcement of marriage before the
crowd
8. Husband and Wife
• Keeping of more than one wife is not a general
custom
- concubinage widespread among well-to-do but
only the wedded wife was considered legitimate
and she took charge of the household and its
affairs
• Daughters of a Household
- unmarried daughters stay under parental
authority; she could not live elsewhere and her
earnings accrued to her parents; she could not
hold property unless she was the head of the
household
- upon marriage, she becomes a part of a husband’s
household and acquired the right to hold and enjoy
property in her own right, and had exclusive
administration and benefit of her properties
• The general regime governing property
relations during the marriage was conjugal partnership
of gains
- all properties acquired during the marriage
pertained equally to husband and wife and the
residue was divided equally between them upon
separation
- when an investment was made solely with the
property belonging to one spouse and solely at the
latter’s risk, the gains were the exclusive property
of the spouse concerned
• Double standard of chastity
- concubinage on the part of the husband was not
punished but adultery was subject to sanctions
- it was the right of the aggrieved husband to kill
both the wife and paramour in case he caught
them in the act of adultery
- adultery was subject to pecuniary fine to the
husband
9. Separation and Divorce
• Separation and divorce were allowed
particularly if there were valid reasons for terminating
the marital relationship
- the party giving cause for, or in the absence of
cause, the party taking initiative in securing the
divorce or separation, was subjected to economic
sanctions
- upon separation, the property acquired during the
marriage was divided between the spouses in
equal shares
10. Parent and Child
• Only legitimate children were entitled to
succeed
- adulterous and illegitimate children did not have a
right to inherit
- in case of separation and divorce undertaken after
the birth of children, the dowry and the fine, owing
from the guilty spouse, was held in trust for the
children by a close relative
- it was not the custom to disinherit anyone, as long
as he was of legitimate birth
A2010
• Parental authority
- children remained under parental authority until
they come of age
- emancipation: could come before marriage for
males but not for females
- where the children married at a tender age, they
remained with the household of the bride’s
parents, until they reach the age of discretion
- illegitimate children, specially adulterous children,
remained with the mother and were under her
authority
11. Succession and Inheritance
• Succession extended not only to material
estate but embraced as well status and political office
- for datu’s successor: first preference went to the
eldest son, followed by the next eldest son and so
on according to age; in case there were no male
children, the daughters succeeded in the same
order, the older being preferred
• Succession of illegitimate or adulterous
children
- illegitimates had lesser successional rights
- adulterous children had no inheritance, although
they were generally allotted property by the
legitimate ascendants or by will
- when the father of the adulterous child paid
customary fine, he was made legitimate and could
inherit up to the extent of the amount paid
- illegitimates born of concubines, who are
unmarried women, were entitled to share in the
estate of their father, at the rate of half of the
share of a legitimate child
• Order of succession
- order of succession gave preference to those in the
household, followed by kinsfolk in other
households
- first pertained to children; if there were none, to
the brothers and sisters; in their absence to other
relatives or kin
- kinship strictly observed: husband or wife did not
inherit from each other
- ascendants are not considered preferred heirs
- among legitimate heirs, the estate was inherited in
equal shares
12. Adoption
• Adoption did not achieve in custom law the
importance it had in the ancient law of Rome
- function: not for continuity of lineage but rather,
for the improving the social status and economic
situation of the child adopted  brought about
natural fecundity of women in the tropics
• Formalities:
- solemn declaration of adoption, made in the
presence of relatives
- something of value was turned over to the
adopter: either customary amount or all his actual
possessions
• Right is purely personal
- in case adopted died before adopter, the right was
extinguished
- in case adopted survived adopter, he can inherit
up to twice the amount that the adopter received
for his adoption
+CUSTOM LAW IN PRE-CONQUEST
PHILIPPINES (P. FERNANDEZ)
CH.7 “PROPERTY AND CONTRACTS”
LAW 115: LEGAL HISTORY
25
1. Underdevelopment of Property and Contract Rules
• Contributing circumstances to
underdevelopment of the law of property and the law
of contracts
- abundance of resources to meet the requirements
of the barangay life  little compulsion to produce
and store surpluses, hence little basis for growth of
commerce, which is the prime stimulus for
development of property and contract rules
- economic organization: the household operated on
the basis of self-sufficiency  primary mode of
acquisition is production, thus there is hardly a
need for rules on property and contract
- nature of exchanges: products mostly
consumables. Face-to-face transactions, barter
system  no likelihood of breach, protection that
laws provide was not needed
2. Scope of Property
• Property refers to rights over or in respect to
things; it is purely a creature of law
• Barangay society in the process of
transformation
- starting to assume the aspects of entrepreneurial
enterprise
- in certain places, production of goods was
specialized and was oriented to trade or exchange
- appreciable flow of commerce within the country
and between riparian communities and foreign
merchants
- gold and other valuable articles was gaining
acceptance as medium of exchange
• Time of Conquest
- conquest interrupted commercial evolution but laid
foundations of legal development
- clear recognition of property including lands and
fisheries
- classic modes of acquisition in consumables and in
production of goods was established: occupation,
inheritance, transfer inter vivos
- special contracts were recognized; rules on sale,
partnership, and loan were enforced
3. Lands as Property
• The chief objects of private ownership were
land, gold, slaves, and articles for personal use or
consumption
• Occupation of land
- the custom was to recognize his occupation as the
basis of his title to it; and the land could not be
cultivated or used by another, except on the basis
of lease, purchase or inheritance
• Each barangay had a definitive territory
belonging to it
- boundary disputes were arbitrated by the chiefs of
other barangays
- upon establishment of barangay, the chief
allocates the arable land among the various
households
- these lands were not sold but passed on to the
descendants of the household head through
succession; in cases of emergency, lands can be
seized by creditors
4. Commerce in Movables
• Factors that encouraged the growth of
commerce
A2010
- land was fertile and other resources are abundant
 natural for production to exceed the needs of
the more enterprising households, thereby making
surpluses in essential commodities available for
trade or exchange
- location of the barangays (on the coast, alongside
rivers) were generally favorable to trade 
accessible to traders
- certain articles which a locality, by reason of its
geographical situation, could not produce for itself
and which it must obtain from its neighbors
- in a particular island or region, most barangays
were related by blood  speaking the common
tongue and sharing the same traditions and
customs, traders generally found no barriers as
they moved from one barangay to another,
transacting business with all those who needed
their trade
5. Weights and Measures
• Availability and use of common weights and
measures in most regions of the country
- evidence of fairly intense commercial activity
- gold, silver and other precious metals were
reckoned by weight; pair of scales was in general
use
- for ordinary commodities, steelyards were used
- measures of quantity: caban, ganta and chupa
- linear measurement: arm’s length, the distance
between the tip of the thumb and the tip of middle
finger fully extended, the width of the hand
6. Barter and Sale
• Chief form of trade was barter
- subsistence economy: absence of a commonly
accepted medium of exchange
- exchanges took place either at established market
places, usually near the coast, or in isolated
transactions with itinerant tradesmen
• Market system was emerging
- in most transactions, a price intervened, usually at
a specified weight of gold of a certain fineness
- price was payable in gold or other precious articles
7. Loans
• Practice of lending was widespread and
attended with abuses, notably usury and enslavement
of the insolvent debtors
• Business loans
- repayment was fixed on a day certain
- in case venture was successful, it was the custom
to divide profits between lender and borrower, in
acknowledgment of the favor received
- in case of failure, obligation was limited to
repayment of loan plus the customary interest
• Existence of credit transactions in connection
with loans
- took the form of sangla: borrower pledged specific
items of property, turning them over to the
possession of the lender until the loan was repaid
- without satisfactory collateral, a relative or friend
stood as bondsman or surety for him; if borrower
can’t pay he offers his services to the bondsman or
surety  origin of most of the alipin
8. Usury
• Practice of usury was condemned
LAW 115: LEGAL HISTORY
26
- accounts were largely written by friars who
considered usury as a sin
- loans with interest were very common and the
interest occurred was excessive
9. Partnership
• The usual form of association was the
partnership
- contribution to a common fund by the parties and
sharing in the profits and losses in proportion to
their contributions
- liability of individual partners are governed by
substantially the same rules obtaining in civil law
• System of mandatory ransom
- sometimes the trader or his goods, or both, were
seized by residents of a barangay he happened to
be passing through
- the partner who remained behind must pay half of
the ransom price; the other half was paid out of
partnership funds
- the kidnapped partner is not obligated either to the
partnership or to his partner
+”A ROUGH SURVEY OF THE PRE-HISTORIC
LEGISLATION OF THE PHILIPPINES” (N.
ROMUALDEZ)
o A sparkle of what division into groups is due to the fact
that they came to the Philippines in small boats.
o Each group occupied a certain area of land and
cultivated it.
o Each group lived independently, each of them thus
forming a state.
o Their society was based on family; extended to distant
relatives.
o Three classes: nobles, freemen, slaves
o Nobles, chiefs, and principales were called DATU or
RAHA, title acquired by inheritance, but more
frequently by individual merit
o Plebians were TIMAWA or MAHARLIKA, descendants and
relatives of chiefs who did not inherit the rank
o Slaves were three kinds: Bisayan-AYUEY,
TUMARAMPUK, TUMATABAN. Tagalogs: ALIPING-
NAMAMAHAY and ALIPING SAGUIGUILIR
o AYUEY had to work three days for his master and one
day for himself, his wife also served the master, master
had to furnish him food and clothing
o TUMARAMPUK worked three days for himself and one
day for his master, wife and children also worked for
his master
o TUMATABAN served his master only when the latter
had a festival in his house, had to serve his master for
fifteen days every month or else give rice every year,
his wife weave cotton for the master
o ALIPING NAMAMAHAY lived in his own house, could
dispose own property and neither he nor his sons could
be sold
o ALIPING SAGUIGUILIR lived in the house of the master
and served him there and in his master’s land,
o POLITICAL STATUS: had their economic, military, and
political government, not monarchial nor democratic
but an aristocratic one for there were may magnates
among whom the entire government was divided
o Each dependent group was called BARAGAY
o CHIEF had in himself the three branches of
government, the principales and elders acted as his
delegates especially in the judiciary
o INTERSTATE RELATIONS: the territorial and maritime
jurisdiction reached where the activity, strength and
A2010
valor of their subjects could keep and defend against
the other groups
o Three causes for declaration of WAR: when a subject of
a state was killed in another jurisdiction without good
reasons, when a person belonging to one state
abducted a woman of another state, when a subject
was deceived or mistreated in another jurisdiction
CIVIL RIGHTS
o Laws consisted of the traditions and customs of their
ancestors
o Supreme Chief made the laws and UMALAHUKON went
from barrio to barrio and published the law and the
subjects offered obedience thereto
o PERSONS: foreigners were those who were the subjects
of another state or village either by birth, marriage or
capture
o It seems that the condition of the legitimacy and the
illegitimacy of the child was not taken into account at
all in determining his social and legal status
o Birth and liberation determine personality
o Civil personality was extinguished by death or by
slavery
o Three stages in matrimonial institutions: wife capture,
purchase, mutual assent. Pre-historic had arrived in
third stage
o DOWRY does not mean price.
o The bride was not purchased because there were cases
when she refused to accept the suitor; and she was not
forced to accept him, the only remedy of the suitor or
his family was against the parents of the bride; her
CONSENT to marriage was necessary
o Only one kind of marriage: religious
o Husband was supposed to be honest and upright to and
support his wife, and she was bound to be faithful to
her husband
o Wife was on the same level as husband, in person and
in regard to property, conjugal property
o Relation between parents and children was strong and
close, son even reaching legal age did nothing without
the consent of his parents
o Children born in lawful wedlock were legitimate
o Legitimation took place when in case of the birth a
bastard, the offended husband prosecuted the
adulterer. If offended husband does not prosecute, the
child was presumed to be his and it was born during
marriage
o The acknowledgment consisted in the act of the father
in supporting his child
o Husband supports wife, parents support children,
masters support slaves
o Parental authority only terminated upon death of the
parents; eldest son took charge of his sisters and
younger brothers and had over them the same
authority as their deceased parents
o Adoption was bought by the one adopted, who gave
the adopter a certain sum of gold and without legal
formality, the latter kept the one adopted although he
had his own father
PROPERTY
o Insolvent debtors reduced to servitude cannot be
classes as real slaves, they were not considered as
mere things
o No one belonging to another barangay would cultivate
the lands except by virtue of purchase or inheritance
o National, common, and individual domain
o Ownership was acquired and transmitted by law, by
gift, by succession, and by tradition
LAW 115: LEGAL HISTORY
27
o Heirs by force of law were: 1. legitimate and
legitimated children, 2. illegitimate acknowledged
children from a free woman, 3. certain kind of slaves, 4.
ascendants and brothers, 5. all the close relatives
OBLIGATIONS AND CONTRACTS
o Natives and traders having agreed upon the price, the
former was allowed to take away the goods and later
on, brought the amount of native products -> traders
trusted them for they never failed to live up to their
stipulated bargains
o Sale, exchange, partnership, loan
o Non-performance of contracts was in many cases
punished with temporal or perpetual servitude
according to nature of each; whipping, hands in boiling
water, death
o Medium of exchange was gold
o It was common for the debtor of a principal to retain for
an indefinite time the money borrowed; but then the
contract becomes sort of partnership in which the
creditor was the partner furnishing capital and the
debtor was the industrial partner because the profits
were to be divided between the debtor and the creditor
o The creditor could assign the debt to a third person for
a higher sum than the original debt; and the debtor had
to pay, not only the original sum he borrowed but also
the profit made by that first creditor in the transfer of
debt
LAW SUITS
o If the parties did not come to an agreement, each of
them was sworn, and promised to submit himself to the
decision that might be rendered in the case
o If evidence was in favor of a party, decision was
rendered accordingly.
o If this party refused to pay the sentence, the judge and
the elders who were members of the court as jury
proceeded to take away from him gold necessary to
pay the sentence
o Most of the gold was for the judge and the jury (as fees
and costs) and for the witnesses of the winning side
+”THE SPANISH ANTECEDENTS OF THE
PHILIPPINE CIVIL CODE” (R. BALANE)
INTRODUCTION
Marriage of Isabella of Castile (heir to throne) and Ferdinand of
Aragon (heir to throne) in 1469 brought:
(1) political unification of Spain after long, bitter, and sporadic
war against Muslim Moors which snatched Spain back from
Islam to Christianity but fragmented the land into numerous
petty kingdoms;
(2) Cristofloro Colombo to sail beyond the Azores in search of a
westward route to the spice treasures of the Indies, only to
stumble upon a new world instead, and Fernao de Magalhaes to
sail on yet another expedition and effect the first
circumnavigation of the globe. (Balane now says that there is a
need to start from the beginning as these events are actually “in
the future”)
EARLY IBERIAN DEVELOPMENT
First major settlers in Spain were the Iberians, who were
probably related to the ancient Assyrians and Chaldeans and
came to Spain from Asia through Northern Africa.
Celts- a people of Indo-European stock who occupied Galicia and
Portugal – intermarried with the Iberians and produced a mixed
race called Celtiberians.
A2010
Celtiberians’ basic social structure was the family, a collection of
which formed the gens, a group of which in turn formed the
tribe. There is sufficient evidence showing that these tribes had
a fairly well-defined concept of property (classified into private
and communal).
Rise of Phoenecian city of Carthage in North Africa brought the
Iberian Peninsula under Carthaginian influence, but not
domination. Original interests were silver and commerce, but
soon conquest of Iberia became essential to Carthage for its
rival city, Rome, was also expanding and expansionist ambitions
brought these two cities to engage in the three Punic Wars.
Carthage eventually lost, and Spain was passed on to Roman
sovereignty.
For the next 6 ½ centuries, Spain was Roman territory.
Administratively, Spain was divided into provinces, first into two,
then three, and finally, into five provinces in the peninsula and
others overseas (composing one diocese). Romans migrated to
Spain in great numbers, as laborers and soldiers. During Roman
rule, history of Hispanic law is the history of the Roman law.
Hold of Rome in Spain soon lost strength, and Germanic tribes
eventually were able to penetrate, settling in Galicia and the
southern regions. The arrival of the Huns (described by Balane
as “fierce barbarians”) caused displacement of many people,
resulting in Spain becoming a Visigothic Kingdom. Visigoths,
even before reaching Spain, already had exposure to Roman
ways and culture (and this was shown when they reduced their
laws to writing). However, preponderant characteristic of
Visigothic law was Germanic. Examples:
1. High regard for marriage and monogamy
2. adultery was dealt with severely
3. Wills were unknown to them. Succession: children, if
none, brothers. If none, uncles (not parents).
4. extraordinary hospitality.
5. interests on loans were unknown to them.
6. personal offense was also a family offense (due to
mutual aid and protection)
7. wife had right to share in property earned after
marriage, and use of deceased husband’s estate, as
long as she remained a widow.
8. parental authority did not include jus vitae ac necis
(making Visigothic law more humane than Roman law)
Putting into writing of customary laws of Visigoths became the
first stage of evolution of Civil Law in Spain.
THE CODE OF EURIC
Main documentary source: some chapters of Visigothic laws of
Euric on an ancient document
Code of Euric was divided into chapters and titles; obviously a
collection of laws. (It was in fact the code of Tolosa, but since it
was deemed to be promulgated by Euric, a Visigothic King, they
call it code of euric). Discovered chapters pertain to division of
lands between Visigoths and Romans.
Germanic element in the code is predominant, but not
exclusive. Roman element in the rules of purchase, sale, pledge,
donation, loan, deposit, and testamentary succession, some of
which are either completely unknown to the Visigoths or are
contrary to their custom
Code of Euric meant to apply to conquerors only, not to be the
general law of the inhabitants. Thus, it was a personal, and not
territorial, law. Those outside the scope of the Code of Euric
governed by whatever traces of Roman law that remained
among them, until Alaric II, Euric’s son, decided to do something
about it.
THE BREVIARY OF ALARIC
Alaric II formed a commission of Visigoth Scholars to formulate a
body of laws for the conquered subjects, on the basis of known
LAW 115: LEGAL HISTORY A2010
28
Roman law. He decreed the draft presented by such human beings are persons (due to slavery) and not all
commission. persons are human beings)
This code was based on ante-Justinian Roman Law, consisting of 3. natural person: must live at least ten days and be
Imperial edicts and writings of Roman Jurisconsults. The code baptized
contained much of what is found in the Theodosian Code (a 4. age of majority: 15 years
collection of imperial edicts from Constantine to Theodosius II in 5. impediments to valid marriage:
Rome), statutes after the Theodosian Code but before Justinian, a. difference in status (i.e. slave and freeman)
titles from the Gregorian Code and Hermogenian Code, and b. if woman is older
some other sources. The code has two parts: the text and the c. holy orders, from subdeacon up
interpretation. d. relationship to the seventh degree
Thus, the legal system in early Visigothic Spain was not e. prior existing marriage
territorial but personal, one law predominantly Germanic for the f. crimes vs. chastity, to the effect that it was
conqueror Goth, and another predominantly Roman, for the legally impossible for felon to marry the victim
conquered Romano-Iberian. Although the legal system was g. temporal impediment i.e. one year after
perhaps anti-juridical and can lead to confusion especially for issolution of woman’s previous marriage
disputes between a Goth and a Roman, it nonetheless paved the 6. no minimum age requirement to marriage, so long as
way for consolidation under later monarchs. one has reached puberty
7. prescribed ceremony for marriage
THE CODE OF JUSTINIAN 8. concept of conjugal property: everything earned by
While the Visigoths were consolidating their rule, Roman joint efforts is common property and divided according
emperor Justinian had two great accomplishments: the Hagia to proportion of contribution
Sophia (now the jewel of Istambul) and the great work of 9. patria potestas acquired solely by marriage
codification. The code composed of the Digest, the Institutes, (legitimation and adoption unknown or unacceptable to
the Codex, and the Novellae, collectively known as the Corpus the Goths). But extent of patria potestas not nearly as
Juris Civilis. absolute or fearsome as Roman law. Rights of children
Because Spain was no longer part of the Roman law at the time and unborn scrupulously protected. Infanticide and
the Code of Justinian was decreed, it naturally did not extend to abortion punished with death, gauging of the eyes, or
Spain until the rise of the Universities and the time of Napoleon. slavery.
But this code is of great significance to the subsequent Spanish 10. mother exercised substitute parental authority of father
codes, and to our own Civil Code. dies, but is lost when she remarries
11. recognition of a kind of adventitious property
FUERO JUZCO For Law on Property
One problem faced by the Visigoths was the harmonious 1. Modes of acquiring ownership: occupation (conquest,
resolution of their legal system. The obvious solution was the hunting, fishing); accession (building, planting, sowing);
adoption of a law that would be common to both the Visigoths prescription (ordinary for 30 years or extraordinary for
and Hispano-Romans. This task was undertaken by four 50 years); and succession.
monarchs: Chindaswinth, Recceswinth, Ervigius, and Egica. The 2. co-ownership recognized and regulated
result was the first, and in many respects the greatest, medieval 3. servitudes classified into personal and real
compilation of law: Fuero Juzgo. It consists of a preliminary title (pasturelands)
and 12 books containing 54 titles further subdivided into 578 For Law of Descent
laws. It was a law for all spain: for conqueror and conquered. 1. succession either testamentary (attested or
Some parts of the general structure: holographic will; only a freeman may be a witness) or
1. preliminary part concerns itself with monarchy intestate.
2. first book deals with lawmaking 2. minimum age for making wills: 14 years or 10 years for
3. 2nd book on general application of the law throughout in periculo mortis
the kingdom (shift from personal to territorial law) 3. reserved portion: 4/5 of father’s property and ¾ of
4. 3 book is on marriage
rd mother’s property, with a portion allowed as mejora
and a preferential order of heirs
5. 4 book on family relations and succession
th
4. disinheritance limited to certain specified grounds
6. 5 book on contract
th 5. order for intestate succession established

7. 6 , 7 , 8 books on criminal law

th th th
8. 9 book on military deserters and ecclesiastical asylum
th
9. 10 book on division of lands, leases, and prescription
th
10. 11 book on rules for physicians, the sick, cemetery
th
violators and maritime commerce
11. 12 th
book on a variety of public matters, including
administration of justice, and a number of harsh
provisions against the Jews.
Fuero Juzgo not a code as we understand it today, but rather a
loose compilation of rules relating to public law, criminal law,
ecclesiastical law, mercantile law, and civil law.
Prominent features with respect to civil law:
For law on persons and family
1. provision allowing intermarriages between Goths and
Hispano-Romans indicate movement towards unity
2. recognition of 2 kinds of persons: natural and the
juridical (following the Roman maxim that not all
6. beginnings of a reserva which later developed into
reserva troncal
For Law of Obligations and Contracts
1. contractual capacity at 14 years (inconsistent with age
of majority at 15)
2. minority, insanity, slaverym and force or fear vitiated a
contract
3. contracts regulated: sale, lease, mutuum,
commodatum, deposit, donation, mortgage, pledge
Fuero Juzgo considered as the most important, most regular,
and complete of all bodies of law formed after fall of Roman
empire. It combined systematically Roman and Teutonic Law,
contained not only gothic customs but also considerable Canon
law. Modern law of Spain (as also of the Philippines) rest on the
Fuero Juzgo. However, noontime for the Fuero was brief, 20-30
years or perhaps even less.
THE MOORS AND THE RECONQUEST
Muslims form North Africa attacked the Visigoths and in seven
years the Moors took over Spain, save for scattered pockets of
LAW 115: LEGAL HISTORY
29
resistance. For a time it seemed that all of Christendom would
fall, but in the Battle of Tours, the Muslim power was stopped
and hopes of reconquest were born. Reconquista was not a
sustained war but a sporadic drive, flaring up in periodic fits.
Upon conquest by the Moors, Spain was organized as an
emirate. The primary source of law in Moorish Spain was the
Koran, supplemented by the legislation of the caliphs (head of a
Muslim kingdom). No such thin as a formal code for them.
Muslims contributed largely to the Spanish arts, architecture,
literature, mathematics, and physical sciences among others.
However, development in the Spanish law happened in the
Christian kingdoms that gradually emerged from recovered
territories from the moors.
Kingdom of Asturias, formed by the remaining Visigoth nobility,
clergy, and army, became the cradle of the reconquista. Merger
with Galicia and Leon made it the Kingdom of Leon. Several
other kingdoms also emerged, namely Navarro, Aragon, and
Castile. These were momentarily united under Sancho the
Great, but he divided the kingdom among his children,
fragmenting the realm once again.
During this time, the Muslims were weakened by internal
dissensions. Their kingdom kept on breaking into several states
and reuniting under a ruler and breaking apart again, the total
kingdom shrinking each time. Soon the Muslims were confined
to just the area of Granada, while the Christian Kingdoms gained
strength and territory, resulting to the unification of the several
small kingdoms into just two: Aragon and Castile.
THE FUEROS
The piecemeal reconquest and resulting establishment of
numerous kingdoms, cities, and towns gave rise to a vast
diversity of laws and jurisdictions. Although there was the
subsequent political union of the small kingdoms, several
jurisdictions were allowed to retain their own laws and
privileges. The Fuero Juzgo continued to be in force, but in most
cases only suppletorily with the legislation of the king and
parliament, customs, charters, and privileges.
“Fuero” = no accurate definition. It can refer to great general
codes, like the Fuero Juzgo. It can refer to uses or customs, local
laws, privileges, exemptions, or franchises authorized by public
power to diverse classes or districts. In this sense it produced
much diversity and confusion.
MAYORAZGO
An institution that took root during this confusing period is the
primogeniture (mayorazgo). This refers to the practice of
vassalage, wherein men pledge military service to another for a
grant of land called the benefice (this came to be called fief or
feodum, where our word feudal comes from). This gave rise to
feudalism, as was generally considered as the only practical
means of mutual protection and welfare.
The fief was the land that was granted, but it was also
considered as an office because governmental jurisdiction came
with it (gov’t jurisdiction because the holder of the land had to
control the peasants working it if the land were to provide for
the economic support of the military service). Mayorazgo
frequently left the younger sons of families with nothing, for the
fiefs were handed to the eldest sons intact, for although the land
can be divided, the office that came with it cannot. This custom
remained in Europe long after it acquired political stability, and
became exclusively economic and proprietary in nature, bearing
no connection to the military service.
This custom was carried over to the Philippines and has arisen
as an issue in litigation. In Barretto vs. Tuason, it was said that
mayorazgo partakes two natures: a usufruct (since the first-born
acquires only a dominium utile, in which case the owner is
deemed to be the descendants of the founder or the family) and
a trust or fideicomiso (possessor is both a trustee and a
usufructuary heir).
In 1820 law was passed in Spain abolishing all mayorazgos,
which was extended to the overseas provinces in 1863.
A2010
THE UNIVERSITIES
Period of reconquista was a time of great legal diversity; law in
Spain was thus regional, provincial, municipal, and sectional.
While there were efforts at codification, sectionalism and
jealousy-held privileges prevented these codes from becoming
general.
Nevertheless, the period saw the rise of great Spanish
universities with faculties of law devoted to the study of
Justinian Roman law. One after the other, universities were
established: Palencia, Salamanca, Lerida, Villadolid (became the
center of Roman law studies), Zaragoza, Toledo, Sevilla, and
Granada. Great reception of Roman law was to assure the
predominance of Roman law tradition in the peninsula, by
influencing the codes that were enacted.
THE FUERO VIEJO
One code influenced by the Roman law subsequently enacted
was the Fuero Viejo, originally intended as a code of rights and
privileges of nobility. Although Alfonso VIII was unwilling to
promulgate it, his successor, Alfonso X promulgated it as the law
of nobility. Under Pedro I, amendments were introduced making
it of a more general character, like setting the age of 16 for will-
making.
THE FUERO REAL
There were more important codes promulgated in quick
succession. Presaging (foreshadowing) the promulgation of
codes was the publication of an encyclopedic treatise called the
Septenario. However, this was not intended to be a law (hence it
is not a code). Fuero Real was the first of the codes, and is
divided into 4 books, consisting of 72 titles and 545 laws. The
third book deals with civil law, some features of which are:
General Provisions:
1. ignorance of the law is not an excuse
2. custom is not recognized as a source of law
For law of persons and Family:
1. civil personality acquired by anyone who is baptized
irrespective of length of life
2. a woman over 30 did not need parental consent
anymore to get married ()
3. conjugal partnership of gains further regulated by
enumeration of kinds of property included
4. legitimation is provided for the first time – either by
subsequent marriage or grace of the king. Requisite for
legitimation was that child should be “natural”
For law on property
1. accession natural is recognized and regulated.
Instances of accession natural were: formation of
islands; change of river course (ownership of
abandoned bed to owners of adjacent lots
proportionately); fruits falling on adjacent estates could
be recovered by tree owner within one day, after which
the fruit becomes property of the adjacent lot owner.
2. elements of prescription were: continuous possession,
lapse of required time period, prescriptibility of the
thing. Period of prescription was 1year and 1day as
against someone present, and 30years against
someone absent
3. a provision on “party walls” where each owner was
obliged to pay ½ of the construction and maintenance
of the wall
For law of descent:
1. age for will-making remained at 14
2. portion reserved for descendants was fixed at 4/5 of
the estate, but 1/3 of estate was disposable as
betterment or mejora
3. illegitimate children other than natural received no
successional rights
LAW 115: LEGAL HISTORY A2010
30
4. some causes for unworthiness to succeed are given, 2. Roman laws on possession and servitudes (classified
e.g. killing the testator into real and personal) are reproduced
5. introduction of concept of administrator or executor For law of descent:
1. many Roman law features were borrowed (e.g.
For law of obligations and contracts: necessity of instituting an heir and legal impossibility of
1. contracts regulated: sale, barter, lease, loan (both dying partly intestate and partly testate)
mutuum and commodatum), deposit, pledge, 2. sacrilegious, adulterous, and incestuous children were
donations, guaranty, and negotiorum gestio. denied capacity to inherit from ascendants
2. either party may withdraw from the contract so long as 3. legitimes of descendants reduced (from 4/5 in Fuero
no part of the price has not yet been paid. Juzgo) to either ½ or 1/3, depending on # of children
3. individuals with descendants can donate only up to 1/5 4. mejoras (portion of property disposable for betterment)
of their estate. Only limitation on those without
not provided for
descendants is that they could not donate all their
5. legitimes granted to ascendants
property
6. substitution classified into vulgar, pupilar, ejemplar,
Fuero real was not a code of general application, and was made
fideicomisaria
a primary law in only some specified towns (those without
special fuero) and only suppletory law in those towns with a 7. representation made to operate ad infinitum in direct
special fuero. The Fuero Real was at one and the same time a descending line, and to 2nd degree in the collateral
step forward and a cause of greater diversity and confusion. 8. succession in the collateral line allowed to the 4th
degree; in default of relatives within these degrees, the
THE ESPECULO
surviving spouse; or in his or her default, the King.
The Espculo was a collection of provisions, but is covered with
For law on obligations and contracts
controversy as to whether or not it was ever promulgated into
1. changed the already simplified law on contract (ed’s
law. This served as basis for the Partidas.
note: to what, it wasn’t indicated, or was in spanish)
2. contracts either real (mutuum, commodatum, deposit,
THE PARTIDAS
and pledge) or consensual (sale, lease, agency)
The last, and if not most the greatest, but certainly the most
Intentions of Alfonso for coming out with the Partidas were
celebrated of Alfonso’s codes was the Partidas, prepared by a
unclear (whether he wanted this to be the general law in his
group of jurists under the personal supervision of Alfonso
kingdom, to supplant the Fuero Juzgo, or as an encyclopedic
himself. It had 7 books (each one bearing a letter of Alfonso’s
treatise), but the Partidas did not acquire force of law for more
name), containing 2,479 laws under 182 titles.
than 80 years. Even when it was promulgated, it was given only
The Partidas was influenced by local customs and laws of
a supplementary effect.
Castile, but the preponderant influence upon them comes from
Perhaps Partidas introduced too much Roman law too abruptly,
canon law and the Roman law of Justinian. The style and
or perhaps forces of decentralization were too strong, but
structure were in conscious imitation of the Pandects and
influence of Partidas was far greater than their binding force as
numerous sections contain literal translations of portions of
a law. Encyclopedic treatment assured their lasting influence.
Justinian codes.
The Partidas cover a vast variety of subjects.
LEYES DE ESTILO
1st book:natural law, positive law, custom, Catholic faith, the
A short compilation consisting of 252 sections called “leyes”
sacraments, and other religious matters regarding dogma and
Some of these sections deals with donations propter nuptias,
discipline.
conjugal property, and prescription
2nd book: public law.
Did not have the force of law but rather was a kind of
3rd book: sets forth organization of the judiciary and gives rues
explanatory notes and comments on the Fuero Real.
of procedure, but at least 5 titles govern ownership,
Some sections were incorporated into the Novisima Recopilacion
prescription, possession, and servitudes.
and hence acquired force of law
4th book: devoted to civil law proper, principally family law, with
7 titles on feudal relationships between lord and vassal, and
ORDENAMIENTO DE ALCALA
master and slave.
Was a collection of laws, some of which had reference to civil
5th book: on law of obligations and contracts.
law, like:
6th book: governs succession, custody of orphans, and minority.
1. emphasized spiritual aspect of contracts (i.e.
7th book: criminal law. More prominent features of books related
concurrence of wills), ignoring the element of form
to civil law are:
(which had been stressed by the partidas)
General Provisions:
2. provided for lesions (exists when inadequacy amounted
1. principle of territoriality is preserved – acts done within
to more than ½ of the price; right to rescind had to be
realm, regardless of who did it, are governed by the
exercised within 4 years) in sales
law of the land
3. taking interest was absolutely prohibited. Penalty was
2. ignorance of law permitted as excuse for peasants,
severe: forfeiture of ½ of creditor’s patrimony, or in
soldiers, and women
case of recidivism, total forfeiture
For law on persons and family
4. in successional law, a will could be executed by 3
1. minimum age for marriage is puberty
witnesses and 1 court clerk, or 5 witnesses with no
2. legitimation occurs by: subsequent marriage, will of the
court clerk; a will need not institute an heir in order to
king, or performance of some service to the king
be valid; mixed succession (part intestate and part
3. adoption (porfijamiento) is completely Roman in testate) was expressly allowed
derivation, as to kind, requisites, and effects
4. mother is given no share in patria potestas; rather it is ISABEL AND FERNANDO
granted to the ascendant of the highest degree Marriage of the two, though maintained separate kingdoms, for
For law on property: practical purposes Aragon and Castile were one. They were
1. ownership acquired by occupation, accession, Spain.
prescription, tradition, and hereditary succession The “Most Catholic Majesties” completed last stage of
reconquista, driving the last moors out of Granada.
LAW 115: LEGAL HISTORY
31
Internal consolidation and external expansion (overseas
expansion) were to have far-reaching effects on the
development of Spanish law
ORDENAMIENTO DE MONTALVO
Compilation by Dr. alfonso Diaz de Montalvo, it was really a
collection of various ordinances of the Catilian Cortes, and royal
decrees. Fifth book contained the civil law provisions:
For law on persons and family:
1. allowed a widow to marry during year following her
husband’s death
2. fruits of separate property was declared conjugal
3. authorized husband to dispose of conjugal property
without wife’s consent, provided that it was not
intended to prejudice her
For law on obligations and contracts
1. presumption of multiple or collective obligations rather
than solidary
This did not help in the bewildering legal situation with the
appearance of all sorts of codes, decrees, etc. It became clear
that a systematic revision of the law was badly needed
LEYES DE TORO
Consists of 83 unarranged laws issued by the Castilian Cortes
Salient features include:
For law on persons and family:
1. juridical capacity acquired if: child is born alive,
survived for at least 24 hours, and was baptized. If any
of the elements are absent, he is considered not
“naturalmente nacido” but “abortivo”
2. marriage recognized as cause of emancipation from
parental authority
3. “ley de osculo” – if marriage did not materialize,
woman had right to retain ½ of whatever the man had
given her, if he had already kissed her
4. wife can’t renounce any inheritance without husband’s
consent
5. wife could neither contract nor go to court without
husband’s consent
6. conjugal regime more minutely regulated
7. natural children: born or conceived of parents who
could have married lawfully and without dispensation
For law on property
1. provides for interruption of prescriptive periods
For law of descent
1. persons subject to death penalty allowed to make wills
(unlike in partidas)
2. will-making age: 14 for males, 12 for females
3. legitimate ascendants made compulsory heirs in
default of descendants
4. in default of descendants or ascendants, siblings
inherited by intestacy.
5. regulated mayorazgos
The Laws of Toro were enacted in an effort to clarify, explain,
and reconcile (at least in part) existing legislation. However, this
was a mere palliative remedy, inadequate for the legislative
chaos.
NUEVA RECOPILACIO
Philip (king of Spain) saw the urgent need for law reform. He
promulgated the Nueva Recopilacion de las Leyes de España,
which sought to incorporate and unify the diverse strands of the
earlier codes and laws. However, it did not achieve this. It was
sloppy, inadequate, and unclear. Because it did not abrogate
earlier collections of law, it became merely another
supplementary compilation to the anterior codes.
BOURBONS
The Crown of Span passed from the Hapsburg to Bourbon
(because Charles II died without heir). The absolutism of the
Bourbons had the effect of bringing about the centralization of
Spain. The special statutes and privileges of Aragon and
A2010
Valencia were abolished and their place was taken by the laws
and practices of Castile. But fragmentation in civil law continued
for there was no abolition of the previous laws.
NOVISIMA RECOPILACION
This is a revision of the Nueva Recopilacion to respond to the
legal situation. It failed.
Became yet another supplementary code all the other codes
already in force
IN THE PHILIPPINES
Spain and Portugal divided the world among them using the Line
of Demarcation. Philippines fell under Spanish Sovereignty.
Administratively, immense Spanish domains were divided into
jurisdictions of varying sizes, of which the two main ones were
the viceroyalty of Mexico (New Spain) and the viceroyalty of
Peru. The Philippines was under the vice-royalty of Mexico.
The consejo de las indias had supreme jurisdiction over al
colonies; all laws and ordinances of viceroys and governors were
subject to its approval, and it had power to frame the laws.
The government, as well as various affairs of the colonies, was
run by the viceroy or governor, but subject to a vast assortment
of decrees issued by the King.
These decrees, collected, abstracted, explained, and
coordinated were put together in what Horacio dela Costa calls
“the most impressive body of colonial legislation in history” –
the Recopilacion de Leyes de los Reinos de las Indias.
For the Philippines, as for the other colonies, the order of
application was roughly: the latest laws enacted for the colonies
and decreed, Recopilacion de las Indias, the Novisima, the
Nueva, the Leyes de Toro, the Royal ordinances of Castile,
Ordenamiento de Alcala, Fuero Juzgo, and the Partidas.
Supplementary laws were frequently applied since there was
minimal number of special decrees concerned with civil law, and
virtually no provisions of civil law nature were found in the
Recopilacion. Examples:
1. the Partidas have been cited in matters of bigamous
marriages and public dominion
2. successional rights were governed by the Laws of Toro
before the Civil Code of 1889
Thus, the legal situation was chaotic because:
1. there were numerous laws
2. very little of the laws were printed; advocates generally
knew of the law through tradition and hearsay
3. it was easy to be ignorant of the many laws in force
4. vast laws mix up matters and stultify (cloud) the course
of justice
THE FINAL STAGE
Civil Code of the French, promulgated at the time of Napoleon
Bonaparte, was the oldest in existence and set the example for
many countries, including Spain.
How did codification come about in Spain?
The Constitution of 1812 provided for the need of “one Civil
Code”
In the next decades, the passage of laws mellowed and made it
easier to focus efforts on codification
After several attempts, the Spanish Civil Code was promulgated
in 24 July 1889
THE CODIGO CIVIL
It is composed of a preliminary title with 16 articles, and four
books subdivided unto 41 titles and further subdivided into
chapters and sections and articles.
1st book: persons.
2nd book: Property, Ownership, and modifications.
3rd book: Different ways of acquiring ownership.
4th book: Obligations and Contracts.
It was clearly a product of the evolutionary process of Spanish
law over the centuries, with borrowings from the French Code
thrown in for good measure. It was a child of a living tradition.
 LAW 115: LEGAL HISTORY A2010
32
The Code was decreed to be extended over the Philippine, - philosophy of individualism – one common
Cuban, and Puerto Rican Islands. It took effect in the Philippines thread of Roman private law
in December 1889. ex. Marriage and divorce were accomplished without
In August 30, 1950, the Philippine Civil Code took effect, 57% of government intervention
which was derived from, either by verbatim translation or by - no restrictions placed on divorce
adaptation, of the Spanish Code. This shows the extent of - no community of property – each remained
Spanish influence on our code. sole owner of his or her property
It has been three decades (at the time Balane’s article was - Two principles of Roman Law to moderate
written obviously) since the Civil code was framed. Soon, a new excessive individualism and rigidity:
code commission may be called for a project of recodification, 1. aequitas – practical concession as the directive
which could be a wise and welcome thing. However, principle of a progressive legal development w/c
If we are to produce something worthwhile, a balance finds itself in opposition to strict civil law
has to be struck between contemporary relevance and a - represented by departure from the austere,
historical sense. rigid and unyielding nature of Roman law
Contemporary relevance is attained by an awareness of the 2. humanitas – contemplated not only moral and
complex needs and challenges of present-day Philippine Society, intellectual education, but also kindness,
as well as the social and cultural coordinates of the Filipino. goodness, sympathy & consideration for others
Historical sense is no less important. This can be gained only by - history of Roman law from ancient Romans
looking back, for wisdom and depth, to the experience and the (451 BC) to the Institutes of Justinian (533 AD) ended
tradition of a legal system that is already our heritage. almost the same way it began: entwined and warped in
religion and dogma
+”THE PHILOSOPHY OF THE CIVIL CODE” (P. - Corpus Juris Civilis – Code of Justinian
AGABIN) - differs from earlier codes by its rigid
orthodoxy, its deeper conservatism, and
vengeful severity.
I. OUR CIVIL CODE IS FOUNDED ON THE LAWS OF SPAIN
- laws of Spain were largely based on Roman
II. SPANISH PRECEDENTS
law
- Visigoths changed their faith to orthodox
- ancient Roman law was but a combination of
Christianity
tribal customs, royal edicts and priestly commands
- bishops & priests became chief power in State
- time when law could not be distinguished from
- they promulgated a system of laws
Roman religion
considered as the most competent but least
- philosophy of ancient Roman law was
tolerant of barbarian codes.
grounded on religion
- Two tribal customs from Visigoths:
- lex – command 1. system of community property in
- jus – justice marriage
2. advancement to heirs
- pax deorum – peace of the gods (these are still features of our Civil Code)
- priests were the dominant class; they shaped - Code of Alaric (506 AD) – introduced tribal customs of
the law to suit their religious ends barbarians to Roman law
- philosophy of the law – not a strong point with - Fuero Juzgo – first great Code of Spain
the Romans - contained three categories of law: Roman law,
- where law is based mainly on religious rituals, various German customs, and canons of
philosophy of the law stagnates ecclesiastical councils
- Roman model for philosophy of law may be • features of Fuero Juzgo:
represented by establishment of: A. Law of persons and family
a. bonus paterfamilias – “good father of the 1. allowed intermarriages between
family” Goths and Hispano-Romans
- standard relation for development of private 2. recognized two kinds of persons:
law during the first period a. natural or physical
b. jus aequum – corresponding to the principle of b. juridical
equity, during the second period 3. for natural person to be considered
- distinguishing marks of Roman law in early legally born: lived for at least 10 days and was
period: baptized
1. absence of ethical element 4. age of majority: 15 years old
ex. Concept of paterfamilias represented 5. impediments to a valid marriage:
absolutism. Paterfamilias were likened to absolute a. difference in status
monarch b. woman in older
2. simplicity c. holy orders (from sub deacon up)
ex. One type of communion
two forms of human association
d. relationship (to 7th degree)
one form of property e. Prior existing marriage
one form of security f. crimes against chastity
- When law replaced religion as main regulating g. temporal impediment
agency, the old religiously-sanctioned promise became 6. no minimum age requirement for
a formal legal contract which created a legal duty marriage – only puberty
enforced by the government 7. there is prescribed ceremony of
marriage
- causa debendi – reason for owing the 8. concept of conjugal property
promised performance 9. patria potestas – acquired solely by
reason of marriage; concept of legitimation
 LAW 115: LEGAL HISTORY A2010
33
and adoption unknown or unacceptable to A. General Provisions:
Goths 1. principle of territoriality
* Roman law: jus necis – available only 2. ignorance of law – admitted as an excuse for
when either parent caught daughter in peasants, soldiers and women
act of carnal indulgence B. Law of Persons and Family
10. mother as substitute parental 1. minimum age of marriage: puberty
authority upon husband’s death, but is lost 2. legitimation:
upon remarriage a. subsequent marriage
11. adventitious property b. will of the King
B. Law of Property c. performance of service to King
1. modes of acquiring ownership: 3. adoption – ‘porfijamiento’
a. occupation – conquest, hunting, fishing -- completely Roman in derivation
b. accession – building, planting, sowing 4. no share in patria potestas for mother;
c. prescription – ordinary (30yrs); granted to ascendant of highest degree
extraordinary (50yrs) C. Law of Property:
d. succession 1. ownership acquired by:
2. co-ownership a. occupation
3. servitudes b. succession
a. personal c. prescription
b. real – refers to pasture lands d. tradition
C. Laws of Descent e. hereditary succession
1. Succession 2. servitudes (real and personal)
a. testamentary – occurred by virtue of D. Law of Descent
attested or holographic will 1. features of Roman law of succession
b. intestate 2. no inheritance for “fornecinos” (sacrilegious,
2. minimum age for making wills: 14; incestuous, adulterous children)
in articulo mortis: 10 3. legitimary system drastically changed: ½ to
3. reserved portion: 4/5 of father’s, ¾ of 1/3 depending on number of children
mother’s, with portion allowed as mejora, and 4. mejoras not provided for
preferential order of heirs 5. legitimes granted to ascendants
4. disinheritance – limited to specific grounds 6. substitutions:
5. order of intestate succession a. vulgar
6. reserva – later developed into reserva troncal b. pupilar
D.Law of Obligation and Contracts: c. ejemplar
1. contractual capacity: 14 d. fideicomisaria
-- inconsistent with age of majority (15) 7. representation:
2. minority, insanity, slavery, force or fear vitiate a. ad infinitum in direct ascending line
a contract b. collateral in second degree
3. regulated contracts: 8. succession in collateral allowed to 4th
a. sale
degree
b. lease
E. Law of Obligations and Contracts
c. mutuum
1. changed already simplified law on contract
d. commodatum
2. contracts are either:
e. deposit
a. real
f. mortgage
- mutuum
g. pledge
- commodatum
- deposit
- Siete Partidas – begun by Fernando III,
- pledge
completed by Alfonso X.
b. consensual
- compilation of law and a treatise of
- sale
jurisprudence, based on the law of Spanish
- lease
Visigoths but patterned after Justinian’s Institues
- partnership
- of seven parts:
- agency
1. refers to natural law, usages and customs, &
to the Catholic Church and religious laws
III. PHILOSOPHY OF LAW (MEDIEVAL)
2. mainly administrative law, including rights of
- 3 basic orders divided according to function
the Crown, reciprocal duties of King & people,
a. Religious
military captives & public education
b. Military
3. deals with court organization and procedure,
c. Workers
and with land ownership, possession and
(*hierarchy implied inequality)
servitudes
- Hierarchical system revolved around
4. deals with family matters and personal
relationship between lord and vassal
relations arising under feudalism
- Philosophy of law during this period was a
5. (most important partida) deals with
philosophy of compromise
obligations and contracts, including bailments,
- Effects of rise of Christianity:
mortgages and pledges
a. drew the law closer to
6. deals with succession intestacy, heirship,
theology
guardianship
b. legal relationship between
7. penal code
church and state
• prominent features of 3rd, 4th, 5th and 6th Partidas: - St. Augustine – De Civitate Dei
LAW 115: LEGAL HISTORY
34
- concept of “pax” – not peace, but that which
brings peace
IV. PHILOSOPHY OF LAW (LATE MEDIEVAL)
- partial return of philosophy in scholasticism
- legal philosophy culminated in Summa
Theologiae of St. Thomas Aquinas
- Aquinas’ 3 orders of laws:
1. lex aeterna – divine reason
2. lex naturalis – natural law
3. lex humana – positive law
- Aquinas’ norm of system: average nature of
man as limitation of legal restraint
- Aquinas established a penal principle
- Aquinian definition of justice:
1. justitia generalis – comprising all
earthly virtues
2. justitia particularis
a. justitia commutative –
obligation of restitution to prevent unjust
enrichment
b. justitia distributive –
distributive justice; application of proceeds of
justice in geometrical proportions
- Spanish Cortes, in 1502, promulgated Leyes
de Toro, consisting of 83 laws.
V. PHILOSOPHY OF INNOVATIONS IN THE PRESENT CIVIL
CODE
- 53% of our present Civil Code provisions were
textually lifted from Spanish Civil Code of 1889
- Main philosophical strand of our civil law is
Romano-Germanic element, added with concepts and
principles of equity in England and of torts in America
- Our Civil Code enacted the morals of the
Catholic religion into law, perpetuated institutions of
Catholicism
- Overriding philosophy of our Code is natural
law
- Natural law – participation of mankind in lex
eternal derived from the divine reason
- Positive law – must follow dictates of natural
law; should be founded upon justice, in harmony with
morality, concordant with natural order, adapted to
what is feasible, considerate of local customs and
traditions
- Some of the new provisions in our Civil Code
were borrowed from individualism of American
Common Law, like:
1. independent civil actions
2. actions for damages for violation of
rights, or violation of privacy
- Family Code adopted medieval attitude on
marriage as contract between families instead of one
between individuals
- In property law and succession, present Civil
Code is cast in economic individualism
- basic tenets of our law on property:
a. sovereignty of property
owner
b. property rights of family
- Civil Code provisions on contracts and
obligations are grounded on the natural law philosophy
- basic core: individual will is the high point in
the philosophy of law.
+”THE NEW CIVIL CODE: HISTORY AND
GENERAL NATURE” (J. BOCOBO)
NEED OF JURISTIC PLANNING
A2010
Beginning of Present Century: American Law-Makers
introduced American Laws…
• Code of Civil Procedure
• General Orders No. 58 on Criminal Procedure
• Negotiable Instruments Law
• Corporation Law
• various administrative and criminal laws
1913: The Filipinos were given power to legislate
*Legis passed without any systematic orientation or integrated
development. ∴ Lawyers and judges don’t exactly know what
laws are in force on many subjects (so there should be FEWER
BUT BETTER LAWS!!!)
*Laws were passed without any definite fundamental principle
or any far-sighted planning based on scientific and
statesmanlike view of LEGAL GROWTH
-laws submitted piecemeal and disconnected
“Coruptissima Republica plurimae legis”- The more corrupt the
republic, the more laws
Issue: Is the spirit of the new Civil Code attuned to the genius
of modern judicial trends and to the soul of the people
(considering that the Spanish Civil Code – it was not political in
character so it was not abrogated – was imposed to the
Filipinos, therefore its provisions may not be applicable since it
was for the Spaniards)
HISTORY OF NEW CIVIL CODE
*3 decades effort (35 years to make)
*Dec. 15, 1947: complete draft submitted to the President
…indorsed to the Congress
…Congress studied draft Civil Code for 1 yr 2 months
…public hearings conducted = 2 committees on codes (House
Committee + Senate Committee w/ Code Commission)
…125 amendments on draft CC (ORIG: 2291 ARTICLES; NCC: 2270
ARTICLES)
1949: Enactment of NCC – “Solemn and Robust Assertion of
the Real Independence of RP” (Spanish Civil Code of 1889 was
used for the last half of the century even if there has been
changes of sovereignty, and even if RP had already been
granted legislative power in 1913)
*Code Commission completed NCC in LESS THAN 8 MONTHS!
(Before: other code commissions on the civil code failed to
create a draft CC)
PREPARATION OF THE NEW CIVIL CODE
1904-1907: Bocobo studied law in Law School of Indiana Univ.
1911: Started teaching Civil Law in UP, then his students
contributed to the development of the NCC
SOURCES OF NCC
Spanish Civil Code of 1889
+
43% Innovation (adopt from France, Argentina, Mexico,
Louisiana, Calif, Switzerland, etc.)
*France: 1400 out of 1976 Articles of Spanish Civil Code taken
literally or substantially from Civil Code of France
*Argentina: 1 of the best Civil Codes, comprehensive,
embodies splendid rules of civil law in ardent and modern
treaties
*Mexico: Spanish tradition, similar social make-up w/ RP
*Louisiana: exposed to Roman Law and English Common Law
*California: formerly part of Mexico, refer to Mexico
*Switzerland: modern, scientific Civil Code
*Germany: One of the best Civil Codes on Earth
BASIC REFORMS/INNOVATIONS
1. Justice over legalism
2. Creation of certain civil actions independent from
criminal prosecution (torts of US)
3. Democracy as a way of life
LAW 115: LEGAL HISTORY
35
4. Equity Jurisprudence (English and American Legal
Systems)
5. Women’s Rights
6. Consolidation of the Family
7. Social Justice
8. Filipino Customs elevated to law
9. Exaltation of Personality
STRUCTURE
*4 Books aside from the preliminary title
I. Persons
II. Property, Ownership and its Modifications
III. Different Modes of Acquiring Ownership
IV. Obligations and Contracts
*changes:
• prescription fr. Book IV to Book III (acquisitive aspect: 1
of the modes of acquiring property)
• classification: many ways of dividing Civil Code
(depends on angle or viewpoint from which subject
matter is considered)
***for the presentation of how various civil codes were
classified, just refer to the original article (almost all have the
same divisions + some additional portions)
EXPLANATION OF SALIENT REFORMS
I. Supremacy of Justice Over Legalism
Spanish Civil Code: too rigid adherence to LEGALISM and FORMALITY
(strict compliance with the law – highly textualist)
-attempted to change this through ORDAMIENTO DE ALCALA
…Law should be made for justice and not Justice for law
*Well-conceived civil code: contain Gen. Principles that would
uphold Supremacy of Justice
*General Principles (aside from Equity Jurisprudence)
a. Art. 21: Violation of Morals (“Any person who willfully
causes injury to a person, contrary to morals, good customs,
and public policy…”)
-no violation of positive law: sufficient that:
• act is willful
• injury to another is caused
• there’s a violation of morals, good customs or public
policy
e.g. A seduces 19-yr old daughter of X, daughter became
pregnant. A promises to marry X’s daughter but did not do so.
∴ Under Art 21 of NCC, X (or the daughter of X) can file
action for damages [although isn’t it that breach of contract
to marry is not an actionable wrong?]
*Art. 21 was taken from Art 826 of German CC:
-not much an issue on boundary line between MORALITY and
LAW (morality influences good law; safe to transmute Moral
Norms to Legal Rules)
b. Art. 19: Right Conduct
*basic rule of human conduct: Moral Precept
Justinian Code: “Juris Praecepta Sunt Haec: Honeste Vivere,
Alterim non Laedere, Suum Cique Tribuere” (the precepts of
law are To live honestly, to hurt no one and to give everyone
his due)
Fuero Juzgo & Partidas: tendency to lay down a moral
orientation
*trend: REVIVE THE ANCIENT METHOD OF STATING FUNDAMENTAL PRINCIPLES IN
LAWMAKING (guide courts in interpretation)
*Code=Building: rest on broad and deep foundations
*NCC must offer certain basic principles (provided below) to
provide coherence and vitality:
• reason
• natural justice
• forces of progress
• social betterment
• human destiny
c. Art. 10: Presumption of Right and Justice
A2010
Letter of the law should not prevail over the spirit because “the
letter killeth but the spirit giveth life”
*Foundation of Righteousness: provisions meant to suppress
and confute all attempts to distort justice by a subtle or
unprincipled construction/application of laws
- original draft of Art 10 (see p. 184 of the article): Judge has
to study trend of recent legislation in order that he may apply
rule which he believes should be adopted (to see the intent of
the authors of the law)
d. Art 22: Unjust Enrichment
-makes it easier for the courts to decide on cases since it
indicates what needs to be done to prevent unjust enrichment
e. Art 1423: Natural Obligations
civil obligations: give a right of action to compel their
performance
natural obligations: based on equity and natural law
***just read Arts 1424, 1428, 1429, NCC
II. Independent Civil Actions
*Civil Actions in US and English Law: based on:
1. Contracts
-no equivalent in Spanish Civil Code
-nearest: Art 1902 (culpa extra-contractual/ cuasi-delito) but
this excludes cases in which defendant acted with malice
2. US Torts
-acts of negligence + willful acts
-eg.
• noncontractual negligence
• assault and battery
• false imprisonment
• libel and slander
• deceit
*actions adopted in NCC
a. Art 33: Defamations, fraud, physical injuries
-independent fr. Criminal liability: even if criminal case
dismissed, civil liability would not be estinguished
-requires only preponderance of evidence
-no penalty as crimes
-injured party not the state: only a civil individual
-repairing of injury personally suffered by an individual should
not depend upon a public action designed for punishment
b. Art 32: Violation of Constitutional Rights
-regardless if act or omission constitutes a criminal offense,
Aggrieved party has a right to commence an entirely separate
and distinct civil action for damages
-may by proved by preponderance of evidence
-designed to protect the citizen from abuse of power by peace
and other public officer or from the negligence/ malfeasance
on part of prosecuting attorney
c. Art 29: Acquittal in the absence of Proof beyond
reasonable doubt
-civil actions for some criminal offense (which has been
dismissed) may still be instituted
-requires only preponderance of evidence
d. Art 27: Refusal/ Neglect of performance of official duty
-designed to put an end to the rotten government system
-without prejudice to any disciplinary action
e. Art 35: Refusal/ Failure to institute Criminal
Proceedings
-refers to cases in which NCC does not create a tort or an
independent civil action
-concerns all criminal cases, except those in which NCC gives an
independent civil action
-if justice of the peace/prosecuting attorney finds that no crime
can be proven, the case should be dismissed, BUT COULD STILL
BRING CIVIL ACTION TO ASK FOR REPARATION OF DAMAGES, NOT FOR THE IMPRISONMENT
OF ACCUSED
*Creation of Torts: Civic emancipation
*philosophy of Torts: Individual Independence
LAW 115: LEGAL HISTORY
36
NCC = R.A. No. 386
+”MAJOR CHANGES INTRODUCED BY THE
NEW FAMILY CODE” (A. SEMPIO-DIY)
Extrinsic Validity of Marriage
 Parties expressly require to be male & female
 Classification of requisites into essential & formal
 Marriage still valid if 1 or both parties believe in good
faith solemnizing officer has authority
 Age of consent raised to 18; below 18: void despite
parental consent
 Authority of mayors eliminated (but allowed by LGC)
 Priest, rabbi, imam, minister required to be authorized
by his church/sect and registered with the OCRG
 Age requirements (re: parental consent & advice) made
uniform for both male & female
 Required marriage counseling
 Removed prohibition of marriage license to a widow
w/in 300 days after husbands death (unless she gives
birth in the meantime)
 Allowed rule of lex loci celebrationis but w/ exceptions
 Recognized divorce of Filipino by foreigner spouse
Void Marriages
 Recognized psychological incapacity as ground
 Marriage bet. 4th deg relatives void not because
incestuous but by reason of public policy
 Marriage between stepbrothers & stepsisters allowed
 Required final judgment to invoke absolute nullity of
previous marriage
Voidable Marriages
 Added ground of serious & incurable STD
 Added grounds for fraud: concealment of STD, drug
addiction, habitual alcoholism, homosexuality &
lesbianism
 Period of spouse’s absence in order to remarry reduced
to 4 yrs for ordinary & 2 yrs for extraordinary absence
 But spouse present required to institute summary
proceeding for declaration of presumptive death
 Subsequent marriage automatically terminated by
recording of affidavit of reappearance in civil registry
 Effects of the subsequent marriage was expressly
provided (Arts. 43 & 44)
 Added protection to children of annulled marriages
such as delivery of presumptive legitimes without
which subsequent marriage is void
Legal Separation
 Substantially increased grounds (see Art. 55) from only
adultery & concubinage in the CC
 Changed adultery & concubinage to sexual infidelity to
satisfy demands of Filipino women for equal treatment
 Removed prescriptive period of 1 year after plaintiff
became cognizant of the cause
 Added articles on reconciliation of spouses requiring
filing of joint manifestation; under CC, the court & the
public wouldn’t know if the spouses already reconciled
Rights & Obligations between Husband & Wife
 Removed double standards under the CC:
 Both shall fix family domicile
 Both jointly responsible for family’s support
 Both may exercise legit profession without other’s
consent; objection could only be on valid, serious and
moral grounds
A2010
Property Relations of Husband & Wife
 Established regime of absolute community of property
as default regime instead of conjugal partnership of
gains under the CC
 Followed the nationality theory (see Art 80)
 Equality between the spouses in the administration &
disposition of the community or conjugal property
 Added protection to children of previous marriage by
requiring settlement within 1 year from death of
deceased spouse, otherwise, subsequent marriage will
be under complete separation of property
Property Regimes of Unions without Marriage
 Capacitated to marry each other:
 CC: co-ownership but failed to state shares of
parties & whether or not housewife is entitled to
share
 In the absence of proof, properties acquired are
presumed obtained by joint effort and owned
equally
 Housewife/househusband deemed to have
contributed jointly
 Neither can a party encumber or dispose of his or
her share during cohabitation without consent of
the other
 Relations amounting to state of concubinage/adultery:
 Properties acquired thru joint efforts owned in
proportion to respective contributions
 In absence of proof: contributions and shares are
presumed equal
 If 1 party is validly married to another, share would
accrue to such valid marriage
 If party in bad faith not validly married to another,
share forfeited in favor of the children and if none,
to innocent party
 If both in bad faith, same rule as above applies
The Family & the Family Home
 Expressly states the family, being the foundation of the
nation, is basic social institution which public policy
cherishes & protects (Art 149)
 Family home deemed (in CC, must be judicially/extra-
judicially) constituted on a house & lot from time it is
occupied as a family residence & for so long as
beneficiary/ies reside therein (Art 153)
 Beneficiaries include: their parents; ascendants,
descendants, brothers & sisters whether legitimate or
illegitimate, who are living in the family home &
depend upon head of the family for legal support
 Family home is exempt from execution, forced sale or
attachment, except for:
 nonpayment of taxes;
 debts incurred prior to constitution of family
home;
 debts secured by mortgages on the premises
before/after constitution;
 and for debts to laborers, builders, materials
men & others who constructed the building
 Actual value shall not exceed 300k for urban & 200k for
rural or such amounts fixed by law
 If creditor proves value of home exceeds said amounts
he may apply for its sale but excess shall be delivered
to judgment debtor
 Family home shall continue despite death of 1 or both
spouses or unmarried head of family for 10 years or for
as long as there is a minor beneficiary & heirs cannot
partition unless court finds compelling reason
LAW 115: LEGAL HISTORY
37
Paternity & Filiation
 No longer presumes legitimacy of children but declares
their status as fact
 Removed different categories of illegitimate children.
 Clearly defined legit & illegitimate children (Arts
163&165)
 If born outside of wedlock to parents not disqualified to
marry, may be legitimated by their subsequent
marriage
 Recognized legitimacy of children from artificial
insemination provided spouses give written consent
 Allowed legitimacy to be impugned for biological or
scientific reasons
 Also allows illegitimate children to establish their
filiation with the same evidence during their lifetimes &
not only during lifetime of alleged parent as in the CC
 Legitime of illegitimate child increased to ½ of
legitimate. Under CC: only 4/5 of acknowledged
natural child which is ½ of legitimate child
Adoption
 Only minors may be adopted except if child by nature
of adopter or his/her spouse or prior to adoption has
been continuously considered by adopter as his/her
own child during minority
 Aliens cannot adopt except:
 Former Filipino citizen seeking to adopt
relative by consanguinity
 Alien who seeks to adopt legitimate child of
his/her Filipino spouse
 Alien married to Filipino seeking to adopt
jointly relative of latter by consanguinity
 Aliens not included may adopt based on law on inter-
country adoption (No law yet prescribing rules)
 Required consent of adopted if ≥ 10 yrs old; consent of
legit/adopted child if ≥ 10 yrs old; and illegitimate
children ≥ 10 yrs old if living with adopter
 If adopted dies survived only by natural parents or
ascendants & the adopter, estate shall be divided
equally between the natural parents or ascendants &
the adopter
Support
 Transportation (school, work) was included as an item
of support
 Eliminated distinction between civil support (according
to social position) & natural support (necessities only);
support = financial capacity of the family
 CC: brothers& sisters required to give each other
natural support. FC: according to financial capacity but
if illegitimate, no support if due to fault/negligence of 1
seeking support
Parental Authority
 Child over seven years given right to choose parent in
case of legal separation unless parent chosen is unfit; if
below 7, will not be separated from mother unless
court finds compelling reasons to order otherwise
 Schools, administrators/teachers,
individuals/institutions engaged in childcare given
special parental authority and responsibility over minor
children in their custody
 Applicable only to authorized activities whether inside
or outside premises
 Those given authority deemed principally & solidarily
liable for damages caused by acts/omissions of minor
unless proven that proper diligence was exercised
A2010
 Parents shall jointly exercise guardianship over
property of child but if value is >50k, parent shall
furnish a bond not <10% of the value
 Court may suspend parental authority from culpable
negligence but in case of sexual abuse, such person
shall be permanently deprived of parental authority
 Prohibited those exercising special parental authority
from exercising corporal punishment upon the child
Emancipation & Age of Majority
 Emancipation shall take place by the:
 Attainment of the age of majority (21)
 Marriage of the minor
 Recording in the civil register of agreement
between parent & minor (at least 18);
irrevocable
 CC: emancipation (below 21) removes parental
authority over person but not over property of minor;
FC: emancipation terminates parental authority over
both
 Eliminated Art 403 of CC which provided that daughters
>21 but <23 cannot leave home without consent of
parent except to become a wife, exercise
profession/calling, or when a parent contracts
subsequent marriage
Summary Judicial Proceedings in the Family Code
 Formulated rules of procedure in the summary
proceedings established in some provisions to avoid
any delay in the promulgation of such rules.
*CRIMINAL LAW AND
PROCEDURE*
+CUSTOM LAW IN PRE-CONQUEST
PHILIPPINES (P. FERNANDEZ)
CH.8 “CRIME AND ITS PUNISHMENT”
1. Criminal Law in General
-in pre-conquest society, a distinction was made between
conduct: (1) harmful to the community (2) prejudiced a single
person or household
-the principal features of pre-conquest crim law:
a. principal prohibitions were concerned with values of personal
security and property—law was secular
b. graduated penalties based on rank of offender and victim
c. penalties mostly in the form of pecuniary fines
d. capital punishment was executed by self-help
2. Protection of Secular Values
-traditionally, penal law was, and still is, an instrument for the
punishment of sins as crimes
-in custom law, religion was not afforded recognition or
protection from pre-conquest criminal law as evidenced by the
principal subjects of penal rules:
a. security of the person, hence prohibition of murder
b. special protection given to the principalia (datu)
c. protection of property from theft
d. safeguards for personal reputation and honor
-crimes were punished upon the request of victims
3. Distinctions According to Rank
-custom law conferred privileges (reduced liability) on members
of the ruling elite
-a crime that deserved the death penalty had the offender been
a commoner, would be reduced to a moderate fine (or nothing)
if committed by a chief.
LAW 115: LEGAL HISTORY
38
4. Sanctions and Penalties
-criminal justice then was humane and reasonable
-capital punishment was imposed only for heinous crimes like
murder and in some cases, incest
-for everything else, penalties were mostly fines, graduated
according to the rank of the offender/victim
-servitude was imposed as an alternative penalty for culprits
unable to pay fines in promptness
-witches were killed and their children made slaves of the chief
until the victim was recompensed
-unlike medieval Europe, there was generally no resort to
torture, harsh labor, or incarceration
5. Execution of Sentence
-capital punishment was imposed in two ways:
a. self-help: victims relatives hunt and kill the culprit
b. when the culprit was caught by a 3rd party, he was killed by
the other chiefs who intervened in the case
*culprit was killed in various ways, like hanging, or spearing
after lashing him to a stake
-commutation was widely observed—culprit was let off if he paid
a heavy fine or offered himself as alipin
-in determining rate of fines, (1) the nature of the offense (2) the
gravity of the crime and (3) the ranks of both parties were
considered
-the fine was payable in gold or property—if not paid, the
culprit’s property was seized, the proceeds of which were
divided between the victim or his heirs, and those who captured
and punished the culprit
6. Murder or Homicide
General Rule: one who kills must suffer death
*applied strictly where the victim was a chief
-in some cases, the culprit’s family was killed as well
Factors affecting penalties for homicide:
a. a close relationship between the culprit and victim was a
mitigating circumstance (among Pampangos)
b. if both parties were of equal rank, death was imposed unless
the culprit offered himself as a slave
(fine was 10-20 TAES of gold. ayus)
c. if the victim was a chief, the whole village where he was slain
would be enslaved, the most guilty killed
d. killing through witchcraft was a heinous type of homicide and
subject to death
7. Offenses Against Chiefs
-datus enjoyed preferred treatment under penal law
-besides killing a chief, slander, the utterance of insolent
language, entering his home at night without consent, sleeping
w/ his concubine, were all capital offenses
-upon a chief’s death, an interdict was enforced wherein his
relatives would embark on plunder and the capture/kill strangers
until his spirit was avenged
8. Theft
-the punishment of theft in pre-conquest society proves the
recognition of private property
-victim could kill thief in flagrante delicto
-penalty was graduated according to the rank of the culprit and
the value of the stolen property
-recidivism in theft: 1st theft-a monetary fine; 2nd theft-
servitude; 3rd theft-death
9. Insult
-insults to chiefs merited enslavement or even death
-the rationale for heavily penalizing insult was for public order
(led to violence and disorder)
-insults between timaguas merited the usual fine, or slavery if
unable to pay
A2010
10. Other Offenses
-adultery was treated as a private wrong; penalties were
imposed only on the man, not the erring wife
-a man was privileged to kill his wife if he caught her committing
adultery in flagrante delicto
-among the Pampangos, arson was punished with death if the
culprit were a commoner (his goods seized and family
enslaved), and a heavy fine if it were a chief
-in the South, incest was considered heinous and rigorously
punished
+”A PHILOSOPHY OF A PENAL CODE” (A.
TADIAR)
Penal law – the law on hich men place their ultimate reliance for
protection against all the deepest injuries that human conduct
can inflict on individuals and institutions
• Penal Law’s promise as an instrument of safety is
matched only by its power to destroy
• Where man regarded as the end of and justification for
society  Law is a means of providing the legal framework
for the solution of the “basic problems of social living”
• Where society is the end  law is regarded as an
instrument of social control to further the ends of society
itself
• “Philosophy”- used to convey the enterprise of
subjecting to critical examination the various views and
concepts of criminal law to know whether they are based
upon adequate evidence and are worthwhile adhering to
• this article is intended to arouse a sharper interest in
and provoke discussion about various issues, matters, and
assumptions which may hopefully result in some
improvement of our criminal law.
Controlling human conduct
• law, religion and morality
 common/shared concern: the control and channeling
of human conduct and behavior away from destructive
expression and into desirable ends
 common technique to achieve this joint objective:
“human conditioning” by a system of rewards and punishments
• state pre-empts man’s natural instinct for revenge. It
took over the right to impose punishment for private injury
and prohibited resort to violent self-help by private
individuals
Sir James Fitzjames Stephen
“The criminal law bears to the instinct of revenge the same
relation that the institution of marriage bears to the sexual
instinct. Both regularize and control a deep impulse of human
nature that if not given legitimate expression is bound to find
disruptive outlets.”
• Legal system—unlike religion which offers a heavenly
reward for a virtuous life, it cannot offer material reward for
each compliance; reward can only be given indirectly;
punishment of the criminal is a reward to the law abiding;
traffic light example – motorist who stops on a red light
feels outraged at a driver ho disregards the light and
crosses the intersection, but would feel elated when that
motorist gets arrested
Legal Guides to Conduct
• analogy: in basketball, there are rules that prohibit the
commission of “fouls” and rules on how to “score
LAW 115: LEGAL HISTORY
39
• Subject of civil law – rules on how to score; provides
the framework or facility for creating binding legal relations;
ex. how to score = how to create a will  3 witnesses,
notarization, etc.
• Subject of criminal law – rules prohibiting “fouls”; the
objective of which is “to proscribe conduct which
unjustifiably and inexcusably causes or threatens
substantial harm to individual or public interests”; as well as
to “define the act or omission and the accompanying
mental state which constitute each offense.”
• Of all branches of law, the criminal law in most
obviously and directly concerned with shaping and
controlling human conduct.
• New York Penal Code says: a general purpose of
criminal codes is to give fair warning of the nature of the
conduct proscribed and of the sentences authorized upon
conviction.
• Legal fiction that “ignorance of the law excuses no
one” rests on the theory of representative democracy that
the elected representatives of the ppl. must report to the
people all the statutes enacted by them
• People can make their conduct conform more readily to
rules they actually know and not merely presumed to have
knowledge of.
• Laws cannot serve as guides to lawful conduct unless
they operate prospectively (upon acts still to be performed);
that’s why ex post facto laws and bills are constitionally
prohibited
• Punishment is a negative form of guiding conduct; it
teaches only after a violation has been committed
• Penal Code – this however can and should offer a more
positive direction to guide action rather than mere
indirection
THE BASIC AIM OF CRIMINAL LAW
• the primordial aim of criminal law is the
prevention and control of crime so that men may live
and feel secure “in the free enjoyment and
development of their capacities for happiness”
• it is a basic right of men in a free society to be secure
in their persons, houses, papers and effects not only against
unreasonable searches and seizures of governmental
authority but also against the ever real menace and threat
of crime
• it is the purpose of criminal law to ensure the public
safety by preventing the commission of offenses through
the deterrent influence of the sentences authorized. The
rehabilitation of those convicted, and their confinement
when required in the interest of public protection
• the penologic objectives are no more than instruments
or the means for the attainment of societal safety and
security
PENOLOGIC OBJECTIVES
Retributive Punishment
• the most widely known; it is a universal postulate that
revenge is a deep-seated human instinct
• even religion has instituted into the depths of the
subconscious the belief that punishment is the natural
consequence of wrongdoing
• however, in the interest of public safety and order,
violent expression of such instinct must be curbed
• the thought that the wronged person has the legal right
to seek the assistance of the gov’t in his object of punishing
A2010
the wrongdoer also curbs his destructive impulse to inflict
punishment himself
• just as it is instinctical to seek revenge, there seems
likewise a common sense measure of what constitutes an
appropriate punishment; a sense of “penalty-
appropriateness
• when this sense of penalty appropriateness is violated,
it may result in the perpetration of what is called “revenge-
crimes”
• only time will tell whether our people’s instinct for
revenge has sufficiently been curbed or their sense of
penalty appropriateness been sufficiently modified, to the
point that they no longer will take the law into their own
hands against a probationer
• the punishment theory of criminal law is justified as
taking the place of divine retribution and acting in place of
the crime victims thereby “putting under public control” the
vengeance they might otherwise seek outside the forms of
law
• the other justification attributes to the criminal law the
task of keeping alive a sense of guilt
Preventive or Restrictive Theory
• prevention or restriction; by confining the convicted
offender in a penal institution or restricting his liberty to a
penal institution or restricting his liberty to a penal farm or
colony, he is physically removed from society and thereby
prevented from committing any further offense during the
period of his sentence
• strategy of crime prevention  dictated by the theory
of crime causation which can be classified into 2 general
types:
1. sociological school – holds that crime and
delinquency are forms of behavior that are shaped
by continuous social interaction and the subtle
learning process; the criminal has a social outlook
that is formed by the social and economic class to
which he belongs
2. psychological – that the offender is an emotionally
disturbed or mentally sick person; ppl. suffering
from a disease are not to be punished but should
be given expert curative treatment to relieve them
form their malady
• early intervention is justified in order to prevent the
suspect from committing the crime he may likely do
• there are 2 flaws to this well-meaning intention:
1. behavioral science has not developed to the
degree that all its practitioners are agreed upon
what constitutes a reliable index to crime-prone
conduct
2. such a theory of prevention is based on the art of
predicting man
3. behavior in the unknown and distant future
Predicting Crime and Preventive Detention
• ex. the “additional penalty” authorized to be imposed
upon habitual delinquents is not truly a punitive penalty but
a preventive detention to avert the commission of a
predicted offense
• Vagrancy laws illustrate even more clearly the
connection between crime prediction and preventive
detention
• The conduct engaged in by the defendant is taken by
the law as an indicator for a prediction that he is likely or is
about to commit an offense, to avert which, a preventive
detention is justified in the interest of public protection
• Difficulty of accurate prediction – one’s behavior or
conduct is likewise the product of an interplay between
unique personality and ever-changing stimulus to which one
LAW 115: LEGAL HISTORY
40
responds (District of Columbia’s Preventive Detention Act –
violates presumption of innocence)
Rehabilitaqtive, Reformative Theory
• In its extreme form, the preventive object of criminal
law would want to see the elimination of crime by the
extirpation of the physically, mentally and morally unfit; or
by their complete segregation in a socially aseptic
environment
• The reformative theory however, seeks to modify and
even reverse this brutal object
• Through various sentencing alternatives and
procedures, it aims to uplift and redeem valuable human
material and prevent unnecessary and excessive
deprivation of liberty and economic usefulness
• Focuses mainly upon the crime itself; concern is to
predetermine the proper relation between the gravity of an
offense and the corresponding penalty in order to satisfy
the victim’s desire for revenge and his sense of penalty
appropriateness; and to deter others from committing
similar offense
Difficulty if not impossibility of eradicating crime
• Another view of crime aside from the psychological
view that regards criminal act as a manifestation of
psychopathology  this view regards crime as the
expression of his “natural and unbridled instinctual drives”
• Crime is merely a penalized defiance from man-made
societal rules
• From this view, tendency to crime or defiance from
rules is the natural while conformity is artificial.
Deterrence
• The aim of penal law could not be stated in more plain
language than the word “deterrence”  to deter, restrain,
and inhibit the commission of crimes through fear of
punishment
• The general object is to deter all crimes
• Types of Deterrence
1. general deterrence – “exemplarity”; restraint of all
potential offenders in the general population; seeks to
accomplish its object solely through terror and the
supposed consequent desire to avoid the punishment
of which persons are terrified
2. specific deterrence - deterrence of the individual
convict/parolee/probater/released inmate from
repeating his criminal act;
• Assumptions
a. Free will
b. Awareness of criminal sanctions
c. Fear and avoidance of punishment
• Factors Affecting Deterrent Efficacy
1. celerity
2. severity
3. certainty of punishment
The Problem of Criminalization
• Criminalization – the legislative process of choosing
what acts are to be prohibited, making legal definitions of
them and determining what punishment shall be prescribed
for their violation
• The ultimate aim of criminal law is to protect society
and provide the public with security to life, liberty and
property
• Any conduct that threatens this security of a fair
subject for criminalization
A2010
• “law is concerned not with private morals or ethical
sanctions but with the outward conduct of citizens in so far
as that conduct injuriously affects the rights of other
citizens
Conclusion
• the foregoing survey of what the criminal law seeks to
accomplish should serve to show that the subject of crime
prevention and control is not as simple as at first blush
would seem to appear
• the discussion also points out the dangers that arise
when a legal system places too heavy a reliance on any
single one of the penologic object
• Retributive punishment – concentrates too strongly on
the victim’s desire for revenge and becomes its brutal
instrument
• Rehabilitative ideal- on the other extreme, is so
concerned with the offender’s interest that it would
supplant the concept of punishment to which the roots of
criminal always could be traced
• In between, the objects of prevention and deterrence
are so intensely between towards protecting the public
interest that such effort may result in a vast overreaching of
otherwise harmless eccentrics and innocent persons
• Aristotle: formulated the doctrine of the “Golden Mean”
as an answer to a vexing dilemma  the advice is to follow
of conduct in accordance with the “virtues of moderation”
• Where the actual pointer must rest however varies
each man and must be determined from actual experience
+CRIME, SOCIETY IN THE NINETEENTH
CENTURY (G. BANKOFF)
CH.6 “PUNISHMENT”
The concept of punishment in Western societies changed during
the 19th century. The Biblical emphasis on physical retribution
gave way to one based more on social expiation and
reformation of character. Prisons, which had been holding
places for those awaiting trial, became the foundation of the
penal system. Capital and corporal punishment remained
judicial options, but the sentence of the court increasingly
involved incarceration in a purposely built institution.
Punishment became more institutionalized in the Philippines as
well. Courts increasingly favored imprisonment as a primary
corrective expedient for most offenses, though deportation,
force labor and execution remained options. The introduction of
the Penal Code in July 1887 deprived judges of their discretion in
determining the nature of an offense and the severity of its
punishment. Crimes were classified according to their gravity,
and penalties were standardized.
Imprisonment
Most persons convicted in the Philippines during the 19th were
sentenced to a prison term that varied according to the
enormity of the crime. Imprisonment consisted the principal
punishment imposed by the courts between 1840-1885, and
such sentence increased steadily until it comprised 99% of all
convictions. Imprisonment peaked during the revolutionary
period, when 4,000 prisoners were incarcerated in manila alone,
following the mass arrest of the Katipuneros in 1896.
LAW 115: LEGAL HISTORY
41
Imprisonment became so prominent a penal option during the
19th century that colonial courts evolved an extensive
nomenclature for such sentences. There were at least seven
legal term denoting imprisonment : presidio, cadena, reclusion,
relegacion, carcel, prison and arresto.
The Prison System
Only a rudimentary prison system existed for most of the 19 th
century. Each poblacion was required to maintain a jail either
within a casa tribunal or in a separate building adjacent to it.
Only suspects awaiting the outcome of criminal investigation or
prisoners serving minor sentences were confined here. Most
municipal jails, however, usually comprised nothing more than a
nipa and palm structure with wooden bars over the window and
a secured doorway. Those sentenced to longer terms were sent
to larger prisons located in every provincial and district capital..
Initially only prisoners serving sentences between one month
and two years were confined in these jails. However, the
introduction of the Penal Code in1887 extended the upper limit
to six years, and further strained the limited facilities of the
provincial penal system.
Prisoners convicted of serious crimes were sent to Manila. The
ayuntamiento de Manila maintained a municipal jail for minor
offenses, but more hardened criminals were housed in secure
premises ( Fort Santiago & Church of San Agustin in Intramuros).
Because of the need for a more secure structure, the Bilibid
was Commissioned in 1866 and three other provincial prisons
became major penitentiaries during the second half of the 19th
century – Cavite, Zamboanga & Marianas Islands.
While the structure of a comprehensive prison system existed in
paper, the state of many of the buildings hampered its
operations in rural areas. Outside the main penitentiaries,
prison buildings were in such disrepair that they provided
neither security of confinement nor adequate sanitary
conditions. The problem was fiscal. The state’s chronic shortage
of money as outlay exceeded revenue left little expenditure for
capital works after payment of salaries. The decision to make
municipal authorities responsible for constructing town jails only
succeeded in localizing the difficulty, but did nothing to solve
the lack of funding.
The financial problem was only exacerbated by the neglect of
other aspects of the penal system. There was a lack of
administrative structure, uniform regulation and professional
staff. Until the reforms of the late 19th century, the management
of the provincial prisons was the sole responsibility of the
alcalde mayor, who drafted their internal regulations, appointed
the personnel and determined their duties. Prisons were largely
left to the devices of a warden, who ran the place much as he
pleased subject only to the authority of the alcalde mayor. Only
in 1883 were provincial prisons fully incorporated into a
comprehensive administrative structure, and made subject to
newly created provincial and district prison boards. Members of
these boards were entrusted with most of the duties previously
performed by the alcalde mayor and with carrying out daily
inspections to ensure compliance with prison regulations.
No attempt was made to impose a uniform set of regulations on
prisons until 1863. Provincial and municipal prisons were largely
governed by the legal provisions on the arrest and treatment of
prisoners. Without adequate safeguards, such provisions were
often ignored, sometimes abused, and always subject to
interpretation by a warden. Prison boards often found
themselves converted into little more than useless clubs, neither
exercising the right of inspection nor taking part in their
administration.
A professional staff, the basis of any modern prison service,
simply did not exist until well after the mid-century. Prison
officials were considered as judicial employees, and the
A2010
appointment of wardens fell within the patronage of the
provincial magistrates. Though Spain managed to establish a
colonial prison system, it failed to provide the funding to make it
effective. Many officials were aware of the system’s deficiencies,
but reforms remained mostly on paper. Determined men, often
with confederates and relatives on the outside, easily escaped
from establishments, negating the entire concept of
incarceration in the Philippines.
Internal Organization
Inside the prison, society was organized along strictly military
lines with a delineated hierarchy that encompassed everyone
from the most recalcitrant inmate to the prison commandant.
The policy was to purposely create degrees of social
differentiation based on behavior. Prisoners were divided into
esquadas (squads of between 20 and 40 men) to facilitate their
security. These squads were later grouped into a number of
brigades according to the seriousness of offenses.
Prisoners were given a number on arrival and assigned to a
brigade. Both these identifications were clearly stamped on
prisoner’s clothes, salacot and chains. A squad was placed
under the surveillance of a prison trustee, who was responsible
for the security and behavior of the convicts under him. The
trustee (a.k.a. cabo de vara) ensured that internal prison
regulations were complied with - that prisoner neither gambles,
drank alcohol, nor sold their clothes nor rations. He also
maintained the conduct of his squad while working outside the
prison perimeters, took roll-call at the conclusion of such work,
prevented disorders, and assisted the recapture of any
escapees.
The onus of prison security fell on an official known as the
capataz (foreman). The capataces were responsible for the day-
to-day running of a prison. One such official was in charge of the
prison gates and what passed through them. Another exercised
control over security and labor performed outside the prison
perimeter, while still another had similar internal duties. A
capataz was placed in command of each brigade comprising a
total of between 120 and 160 men divided into three to eight
squads. He apportioned their tasks, kept a check on their
numbers, reported on their conduct, looked after their health,
ensured the cleanliness of their surroundings, and acted as
intermediary between the prisoners in his charge and higher
authority.
Authority in provincial prisons rested with the alcaide, who,
aided by an assistant warden in the larger establishments,
exercised immediate control over a prison according to the
responsibilities delegated to him. While in charge of everyday
running of a prison, the alcaide was initially subject to the orders
of the provincial governor to whom he had to report daily. He
was prohibited from imposing punishment on a prisoner and had
to refer all such matters to the alcalde mayor.
The duties of the alcaide were divided into a number of positions
in the main penitentiaries 1. capataz furriel – in charge of the
prison’s kitchen and stores, supervising food purchases, hygiene
and provision of furnishings 2. adjutant – security of the prison,
maintenance of order and discipline, thwarting escape attempts
3. commandant - the prison’s overall administrator and
implementor of legal requirements and penal regulations; only
he had the authority to order a prisoner punished and was
entrusted with certain quasi judicial powers to conduct criminal
investigations of preliminary nature and to impose sentence in
case of misdemeanor.
Labor and the Daily Round
LAW 115: LEGAL HISTORY
42
Work played a central role in the penal ideology of the 19th
century. A prison sentence was not only a disciplinary measure
but also a means of expiation. Prisoners were meant to repay
part of the debt they had incurred in society through their own
labors. But more than just a matter of retribution, hard labor
was also regarded as a means of character reformation. All
convicts were required to perform some form of labor but the
nature of the work depended on the severity of the offense
committed. Persons sentenced for serious crimes were forced to
work outside the prison on public works or otherwise for the
benefit of the government. Prisoners were often placed at the
disposal of the military, especially the engineer corps. At other
times, civic authorities engaged with private associations to
carry out some municipal project that would involve the use of
convict labor. Sometimes the government permitted the hiring
of convict labor to private enterprises. Only young, robust male
prisoners were obliged to perform hard physical work. Prisoners
were allocated duties as considered appropriate by the alcaide
or commandant, thus creating opportunities for graft and abuse.
Convicts were paid a fixed wage for their daily work but only
received part of this wage. 3/5 of the money was allocated to
the general prison fund; 1/5 towards improving a prisoner’s
mess; and 1/5 was paid into a general fund for providing
inmates or their heirs with money on their release or their death
in prison. Prisoners who attempted to escape forfeited all claim
to this money.
Poor hygiene and inadequate medical knowledge made prisons
a hotbed for morbidity. Provincial prisons had only small
infirmaries that were supposedly visited daily by a qualified
medical officer. However, there was a shortage of trained
medical staff, and much of the nursing was performed by
prisoners. The medical infrastructure of prison really came
under strain at times of crisis such as during an epidemic.
The general state of a prisoner’s health was determined largely
by the material conditions of life in prison. Diet was especially
important if a prisoner was to sustain a rigorous daily routine of
hard labor. The state felt responsible to provide each prisoner
with a daily ration that was adequate to maintain physical
strength. Government regulations determined the hour of
eating, the amount eaten and the type of food consumed. Prison
catering gave unscrupulous officials a chance to line their own
pockets. The prison commandant or warden controlled both the
purchase and distribution of rations, and many abused this
authority. Some reached understanding with the contractors on
the quality of the food delivered to the prison kitchens. Prisoners
accused prison officials of serving diminished rations and of
misappropriating the difference. The creation of the provincial
boards in 1883 was supposed to stop such flagrant violations.
Alcaides, however, always found ways to circumvent new
regulations.
Prisoners and Guards
Most of the convicts were male and young but there was
significant demographic differences between inmates of
metropolitan and provincial prisons. 1. most convicts serving
sentences in the metro had their domicile in other part of the
archipelago while convicts in a province come from the same
province. 2. convicts in the metro are unskilled or semi-skilled
while those in rural areas are mostly farmers. 3. convicts in the
metro served for shorter periods while those in the provinces
serve longer.
Prison staff were recruited primarily from among military
servicemen. Wardens of provincial prisons were often
noncommissioned officers or the relatives of former alcaides or
other government officials. Prison wardens needed to be at least
25 years old, of sound physical health and literate. Their salaries
often proved inadequate to support their families, thus it is
A2010
difficult to fill such positions. Only towards the end of the 19th
century were salaries increased to more realistic levels and then
only among the staff of the larger penitentiaries.
The relationship between prisoner and guard was ostensibly
tempered by a penal ideology concerned as much with the
rehabilitation as the punishment of the criminal, but whose
practices dehumanized the individual. The severity with which
regulations were enforced was largely left to the discretion of
local prison authorities. Consequently, the treatment of convicts
in any particular prison depended on the character and actions
of the senior alcaide. If he was a compassionate man who chose
to interpret the regulations leniently, life in orison would be hard
but tolerable. If, on the other hand, the warden was influenced
by pecuniary motives, the prison could easily become a place of
physical torment.
The prisoner was subjected to a set of regulations that
constituted institutional violence aimed at destroying a person’s
concept of self- identity. Although wardens were not authorized
to administer corporal punishment without judicial order, official
regularly flogged or otherwise physically abused convicts. In
may prisons, especially those in which the officials could count
on powerful friends among the local pricipalia, inmates lived in
mortal fear of provoking the wrath of the alcaide. Many
prisoners preferred to live in the woods like savages than to be
exposed to the caprices and inhumanities of the alcaide, who
was often able to impose whatever punishment he deemed
fitting on convicts in his charge.
Alcaides treated their office as a resource from which to make a
profit. Prison labor provided such opportunity. Convicts could be
hired by private businesses for all types of manual labor so long
as the arrangements were endorsed by higher authority. While
such practice was strictly prohibited, there was nothing to
prevent unscrupulous officials from sending prisoners to work on
family farms and businesses or simply hiring them out to
anyone willing to pay a modest rate. Other prisoners worked
directly for the alcaide himself, herding his horses or making
chairs and other items that were sold for his benefit. The
alcaide’s control over the exit and entry into the prison was one
of the most lucrative emoluments of his office. Prisoners who
paid the right price were able to return home to attend to family
or private matters for days or even weeks at a time. It was also
alleged that prisoners’ wives were forced to submit to his
lascivious desires, or, if they refused, he would systematically
increase the weight of chain imposed on their husbands. Wives,
too, could make certain arrangements with the alcaide
permitting them to stay with heir husbands. However, prisoners
who failed to pay the warden’s price find themselves
languishing in prison long after their sentences were completed.
Prisoners often made attempts to escape, indicating both the
attitude of prisoners towards their confinement and the failure
to provide adequate security. Recapture was not a significant
deterrent. Some fugitives had successfully escaped 5 or 6 times
during their careers. Most prisoners found many opportunities to
escape, given the dilapidated state or flimsy construction of any
prison buildings and the practice of employing convicts as
unpaid private laborers. Prisoners were so often outside the
compound unattended, either visiting their homes or performing
tasks for the senior warden, that escape was simply a matter of
failing to return at the due time. Sometimes prisoners resorted
to collective action. Little is known about the nature of prison
revolts during the nineteenth century, as alcaides feared what
subsequent investigations might reveal.
While imprisonment became the punishment most often
imposed by courts during the 19th century, the penal system
itself remained largely ineffectual. Neither the funding,
personnel nor security were adequate to fully realize a penology
LAW 115: LEGAL HISTORY
43
based on social retribution and personal rehabilitation. Prisons
continued to be places of neglect and brutality in which many
died and others escaped.
Corporal and Capital Punishment
. Those not convicted of any specific offense included vagrants,
Punishments other than imprisonment were generally resorted
to less frequently. Corporal remained widely administered until
after the mid-century, but capital sentences were increasingly
rare. Only deportation, in the form of forced labor in penal
colonies, offered any real alternative to incarceration after 1870.
Corporal punishment proved to be a useful instrument for
retaining control of the colony, not because of the pain inflicted
but because of the manner in which it was inflicted – that is, by
fellow Filipinos. For in this way Filipino resentment was directed
not against their colonial masters but against those Filipinos
who did their masters bidding.
Courts frequently included corporal punishment in their
sentences until after midcentury ; a person would be sentenced
to so many months’ or years’ imprisonment together with a
specified number of strokes. Punishment was not administered
with a whip, but with a rattan cane on the back of the buttocks
of the victim. Sentences were carried out in public. Town plazas
usually contained whipping post, or offenders were manacled to
a horse’s back and flogged through a settlement’s main
concourses. The use of corporal punishment was initially
restricted ad subsequently abolished by Carlos Maria de la
Torre, the 1st governor-general to be sent in the wake of the
liberal revolution of 1868.
Capital punishment remained a penal recourse throughout the
century, though high court increasingly chose not to exercise
this option. Only in case of rebellion was capital punishment
frequently imposed.
Prisoners sentenced to capital punishment met their deaths by
one of three prescribed methods: 1. hanging 2. garroting ( the
criminal was placed in a brass collar whose frontpiece opened
on a hinge and whose rear portion was moved forward by a big
screw attached to a wooden post. Death occurred
instantaneously by giving the screw a complete turn and
impelling the movable portion of the collar against the top of the
spine, snapping the spinal cord.) 3. death by firing squad.
The ritual surrounding public executions was carefully
orchestrated to emphasize the authority of both church and
state. More often then not, though, executions became mere
carnival, public affairs attended by large crowds of onlookers.
Public execution in the Philippines can only be understood if it is
clearly recognized that the purpose of such punishment was to
set a cautionary example rather than to systematically apply a
penalty to an offense. The proportion of death sentences to
murder cases suggest just such a rationale, while the innate
cumbersomeness of the judicial system defeated any other
purpose.
Deportation
Enforced migration and forced labor under the guise of penal
deportation represented the apogee of attempts to employ
aspects of the judicial state as instrument of colonial policy.
Convict might prove useful labor pool for public works or even a
contractual laborer to private enterprise, but deportation was
not only similarly beneficial to society, it also furthered colonial
aims. Spain’s desire to incorporate the southern portions of the
archipelago within its political sphere was partly realized
through enforced colonization and Christianization of the coastal
sectors of the southern Philippines. What began as a judicial
expedient for removing undesirable or hostile elements among
the indigenous population, gradually gave way to be a more
deliberate policy of using deportation for colonial governance.
A2010
The people deported to the south fell into two categories: those
convicted of criminal offenses and those simply deemed socially
undesirable. The criminal element comprised individuals
convicted of banditry, other serious felonies, or recidivism.
tax evaders, and people of moral laxity or known bad character.
Often these people were deported simply on the strength of an
unfavorable report from the gobernadorcillo or the parish priest.
The young, especially those under twenty-five, were thought to
profit most from deportation. Agricultural work was seen as
means of developing their physical and moral character, which
would otherwise only deteriorate incarcerated with hardened
criminals. People from all over Luzon and the Visayas were sent
as unwilling migrants to the south. Specific sites were carefully
chosen to deter escape and promote agricultural venture.
+CRIME, SOCIETY IN THE NINETEENTH
CENTURY (G. BANKOFF)
CH.4 “THE COURTS”
Structure
• Checks and balances-overlapping authorities than on
division of powers
• Spanish colonial rule in the Philippines-no independent
judiciary
• Judicial and executive offices were largely filled by the
same men
• The governor-general was both chief executive and
also president of the high court
• Alcalde Mayor was both provincial governor and judge
of the Court of First Instance
• The gobernadorcillo was both local mayor and
municipal magistrate
• At the base of the judicial structure-gobernadorcillo or
municipal magistrate – different from judicial
personnel-an indigenous person and elected
• Small oligarchy and indirect voting-to ensure that he
primarily represented the interests of the local elite
• Jurisdiction: townships or pueblos (30-50 families)-
barangay
• The directorcillo (municipal secretary and general
factotum to the gobernadorcillo) was often either an
ex-student who had failed to complete his studies at
the universities of Santo Tomas or San Juan de Letran
in Manila, or a former noncommissioned officer in the
army-known colloquially as papelista.
• Nineteenth-century reforms of the provincial
magistracy fall into two periods: those instituted prior
to 1859 were aimed at improving the caliber and
training of officials, while subsequent ones were
intended to separate judicial and executive authority.
• Beginning with the royal decree of 1 September 1859,
an attempt was made to separate the judicial and
executive functions of provincial magistrates
• Appointees were supposed to exercise only judicial
functions as judges of the courts of first instance. In
practice, however, most alcaldes mayor continued to
function as judge-governors pending the appointment
of civil governors.
• There were still 15 alcaldes and 25 politico-military
governors in 1881 possessing both judicial and
executive powers compared with twenty alcaldes
exercising solely judicial authority
LAW 115: LEGAL HISTORY
44
• With the extension of the Penal Code, 18 new civil
governorships were created while the remaining
alcaldes mayor were confined purely to judicial
functions
• Gobernadorcillos-replaced by justice of the peace in all
provincial towns
• Alcalde Mayor served as the appellate judge while the
gobernadorcillo was the highest office open to Indios
• The Alcalde was in reality a businessman
• Oidores of the Real Audiencia of Manila-the only judges
senior to the provincial alcaldes mayor whose
jurisdiction was nationwide
• The Oidores have the power to make annual
inspections of the provinces and the power to
investigate and punish corrupt officials
• While the Oidres concerned themselves with all aspects
of the administration of justice in the colony, their
authority frequently overlapped that of other judicial
institutions, not the least of which was the governor-
generalship
• Conflict between the two stemmed from this : Laws of
the Indies assigned to the oidores “matters of justice”
and to the governor-general “matters of government”
• The governor-general was still over the oidres
• The governor-general was the president of the Real
Audiencia where a number of judges sitting jointy or
individually
• Real Audiencia’s principal magistrates were: a regent,
five associate justices (oidores), and two attorney-
generals (fiscales)
• The Real Audiencia was an appellate court with both
civil and criminal jurisdiction. It was the center of the
colonial power structure, the highest judicial body in
the colony and has disciplinary administrative power. It
also has power to create special courts as it deemed
necessary as well as power to initiate law.
• Real acuerdo-decision reached by a full session of the
High Court presided over by the governor-general
• A decree of 24 October 1870 effectively split the court
into two chambers: civil and criminal
• This split did little to relieve the congestion, with delays
caused by distance, poor communications, and limited
legal advice as the norm. The three Philippine
audiencias only managed to dispatch 17 percent of the
21,300 cases pending during 1893. 72 percent of the
24,403 cases were still pending before overseas
audiencias as of 31 Dec. 1893
• Criminal cases increased 96 fold
• Criminal case-1:822 inhabitants
• Consejo de Indias-only superior tribunal to that of the
colonial audiencias and the first tribunal affected by
separation of judicial and executive powers-replaced by
Tribunal Supremo de España e Indios or the supreme
court for Spain and colonies
• The governor-general exercised substantial military
power as captain-general to declare martial law
• The Fiscal is the colonial government’s attorney –
general and Crown’s legal agent
Procedure
• Rules for criminal and civil court procedures relied on
scattered references in the numerous legal codes of
A2010
Castile, special laws extended to the colony or various
judicial decrees
• Failure to present witnesses rendered conviction
impossible despite the weight of circumstantial
evidence
• Careo- face-to-face confrontation of conflicting
witnesses
• Alcalde mayor frequently relied on advice from suitably
qualified lawyers known was asesores
• Alcalde mayor did not have the authority to sentence
people in criminal offences but only to express an
opinion on the guilt or innocence
• Cases more serious than misdemeanors are brought to
Real Audiencia
• There was already the concept of bond money to
ensure compliance with judicial orders and attendance
in the courtroom
•
Discretionary powers of the magistrates ceased
• Before, lack of money was no bar to litigation but in
reality, judicial procedure ensured that justice system
served mainly the administrative ends of the colonial
state
• Procrastination and prevarication had before become
almost institutionalized
Personnel
• Members of the legal fraternity-esteemed above all
other professions
• Law was most popular choice of profession during the
19th century next to the Church
• Spanish monarchy from Ferdinand and Isabel preferred
to employ lawyers for all the high echelons in the
colonial administration
• Spanish bureaucracy-bureaucracy of lawyers
• Exam for law included oral exam
• Abogadillos-not really lawyers but with varying degrees
of legal training
• Mercedes- royal favors-appointment to any magisterial
position regarded as Mercedes
Malfeasance
• The heart of the problem with malfeasance among
officials is the state’s inability to pay realistic salaries to
its administrative personnel in the colonies
• Inadequate salaries certainly encouraged judicial
malfeasance such as tribute payments collected in kind
were valued at below market price and later resold at
their true cost with the alcalde mayor retaining the
surplus
• All executive and judicial officials faced an examination
of their activities at the end of their term. The
residencia was an official investigation conducted by a
magistrate to determine whether an incumbent had
faithfully executed his duties
Special Jurisdiction
• System of special courts-class or racial distinction
• Judicial corporatisation through its court system
• Ecclesiastical, Chinese, Merchants and Military courts
Special courts today- Sandiganbayan and Court of Tax Appeals
+”THE COURTS AND ITS WAYS” (J. VITUG)
LAW 115: LEGAL HISTORY
45
I. HISTORY OF THE SUPREME COURT
- Established as the Royal audencia on May 5, 1583 and
remained in existence until June 11, 1901
+ On August 13, 1898 when Americans took over, the
criminal jurisdiction was taken over by military
commissions, courts
+ martial, and provost courts via an order by Maj. Gen.
Wesley Merrit
+ The civil jurisdiction of the Audencia was likewise
suspended as of January 30, 1899.
+ On May 29, Gen. Otis re-established the Audencia
Territorial to exercise the civil and criminal jurisdiction it
had prior to August 13, 1898
> Replaced through Act No. 136 of the Philippine
Commission
* Courts were abolished and judicial power vested in
a. Supreme Court
b. Courts of First Instance and Justice of the Peace
c. Municipal courts or Special Tribunals as may be
created by law
II. FUNCTION OF THE SUPREME COURT (PER 1987
CONSTITUTION)
- Co-equal branch as serves as both the court of last resort and
the Constitutional Court
+ resolves actual controversies involving a right which is
legally demandable and enforceable, an act or omission
violative of such right, and a concomitant remedy granted
or sanctioned by law for breach of right
+ Is now able to review sufficiency of the factual basis for
the declaration of martial law or the suspension of
the writ of habeas corpus
+ ability to take up issues which were previously deemed
as political questions except that it does not pass upon the
wisdom and expediency of legislation or of executive action
in consonance with legislation
- In charge of the administrative responsibility over the entire
judicial system in the country through the Office of the Court
Administrator (PD 828), in charge of the Judicial and Bar Council
which is tasked with recommending appointments to the
judiciary, and the Philippine Judicial Academy which is in charge
of the implementation of continuing education for all involved in
the legal profession, including Justices, judges, etc.
III. OPERATIONS OF GTHE SUPREME COURT
- may sit en banc, meaning all the justices, to discuss
+ constitutionality of treaty, international or executive
agreement or law
+ controversies involving the constitutionality, application,
or operation of PDs, proclamations, orders, instructions,
ordinances, or other regulations
+ cases heard by a division when the required majority in
the division is not obtained
+ modification or reversal of doctrine or principle of law
+ administrative cases where vote is for dismissal of judge
of lower court
+ election contests for President or Vice President
+ cases raising novel questions of law
> majority of those who actually took part in the
deliberation the norm whereas before it had to be 2/3
> may sit in divisions of three, five or seven members
* number reflect the relative importance of the case
being heard
* case being heard in one division cannot be taken
up in another
* en banc is not appellate tribunal. Decisions may be
division is like decision of the en banc itself
* division set-up is required in view of the number of
cases being heard.
IV. PROPOSED CHANGE IN THE CURRENT SETUP
A2010
- Cases can be decide en banc by a bit of restructuring but
maintaining the division
+all ponencias to be signed by the court en banc only
difference is the way Court will work
+ divisions will act as screener in sense of what the further
requirement will be for particular cases
V. HOW THE COURT TAKES UP CASES
- once case complies with certain guidelines, it is raffled off
to the division
- member assigned reviews the case to determine whether to go
forward or dismiss
- discussions on the recommendations, sometimes with amicus
curie (particularly if issue is constitutional)
- most cases should be point of law
- court receives about 5,000 cases a year and each are given
due consideration
- role of court of appeals expanded to de-clog SC
VI. OFFICIAL SESSIONS AND VOTING
- En banc meets once a week (Tuesday) Special sessions
(Thursday)
- Divisions meet Monday and Wednesday
- no robes on working sessions but one for hearings and another
for ceremonies
- sessions in Baguio for summer but reserved for decision
writing
- Extensive discussions could last beyong one or two sessions
- Voting en banc is from most junior to CJ. Rationale is to avoid
influence by more senior Justices
- If report of reporting justice is carried, he writes ponencia.
If not he writes the dissent
VII. COMPOSITION OF COURT
- fifteen members, retire at 70
- CJ never been impeached
- Decisions form part of the law of the land
+US V KEPNER
SMITH; December 3, 1902
FACTS
Atty. Thomas Kepner was acquitted of the charge of estafa by
the CFI Manila. The fiscal of the City of Manila appealed. The
Philippine Supreme Court in its decision on December 03, 1902
reversed the lower court and convicted him. Kepner argued that
his conviction by the Philippine Supreme Court violated his
constitutional right against double jeopardy.
It is has been well-settled in the United States that a judgment
of acquittal on merits precludes the State from appealing. The
theory behind this is that if the State is given the right to
appeal, the accused will be put in double jeopardy of
punishment. The salutary rule favors the accused and not the
State. Only the accused may appeal from a decision adverse to
him. Kepner argued that this right is available to him contrary to
the contention of the Government.
ISSUE
Was the provision against double jeopardy extended to the
Philippines to the effect that Philippine government has no right
to appeal in a judgment of acquittal rendered by a lower court?
HELD Yes
Ratio The Government may not appeal from a judgment of
acquittal rendered by the lower court without violating the
accused’s constitutional right against double jeopardy.
LAW 115: LEGAL HISTORY
46
HISTORY OF DOUBLE JEOPARDY PRINCIPLE IN THE
PHILIPPINES
 Military Order Number 58, dated April 23, 1900
provides an equal right to the Government to appeal from a
judgment of acquittal.
 This order was amended by an act of the Commission
(No. 194), passed August 10, 1901, which gave the Court
discretion to give the Government the right to appeal.
 On July 1, 1902, Congress passed an act, 32 Stat., 691:
"An Act temporarily to provide for the administration of the
affairs of civil government in the Philippine Islands, and for
other purposes. This time, it provides:
"That no person shall be held to answer for a criminal
offense without due process of law; and no person for
the same offense shall be twice put in jeopardy or
punishment, nor shall be compelled in any criminal
case to be a witness against himself.
 The Act just quoted became a law before the final
conviction of the accused in the Supreme Court of the
Islands. It is contended by the Government that that part of
the law under immediate consideration, which provides that
no person, for the same offense, shall be twice put in
jeopardy, must be construed in view of the system of laws
prevailing in the Islands before the same were ceded to the
United States, and that the purpose of Congress was to
make effectual the jurisprudence of the Islands as known
and established before American occupation, and that the
provision against double jeopardy must be read in the light
of the understanding of that expression in the civil law, or
rather the Spanish law as it was then in force.
 In Spanish law the doctrine against double jeopardy (in
the sense of being tried separately of the same offense in
another court) found expression in the Fuero Real (A. D.
1.255) and the Siete Partidas (A. D. 1263).
 In the encyclopedia of Spanish law, published by Don
Lorenzo Arrazola in 1848, it is said, in considering the
persons who may be accused of crime:
"It is another of the general exceptions that a person
can not be accused who has formerly been accused
and adjudged of the same crime, since. the most
essential effect of all judicial decisions upon which
execution can issue is to constitute unalterable law.
(Tomo 1, pag. 511.)"
 UNDER THAT SYSTEM OF LAW IT SEEMS THAT A
PERSON WAS NOT REGARDED AS BEING IN JEOPARDY IN
THE LEGAL SENSE UNTIL THERE HAD BEEN A FINAL
JUDGMENT IN THE COURT OF LAST RESORT. The lower
courts were deemed examining courts, having preliminary
jurisdiction, and the accused was not finally convicted or
acquitted until the case had been passed upon in the
audiencia, or Supreme Court, whose judgment was subject
to review in the Supreme Court at Madrid for errors of law,
with power to grant a new trial. The trial was regarded as
one continuous proceeding, and the protection given was
against a second conviction after this final trial had been
concluded in due form of law. The change introduced under
Military Order, No. 58, as amended by Act 194 of the
Commission, made the judgment of the Court of First
Instance final, in cases other than capital, whether the
accused be convicted or acquitted, unless an appeal was
A2010
prosecuted by the Government or the accused in the
manner pointed out.
 It was the intention of the US President in the
instructions to the Philippine Commission to adopt a well
known part of the fundamental law of the United States,
and to give much of the beneficent protection of the bill of
rights to the people of the Philippine Islands. When
Congress came to pass the act of July 1, 1902, it enacted,
almost in the language, of the President's instructions, the
Bill of Rights of the US Constitution. In view of the
expressed declaration of the President, followed by the
action of Congress, both adopting, with little alteration, the
provisions of the Bill of Rights, there would seem to be no
room for argument that in this form it was intended to carry
to the Philippine Islands those principles of our Government
which the President declared to be established as rules of
law for the maintenance of individual freedom, at the same
time expressing regret that the inhabitants of the Islands
had not theretofore enjoyed their benefit.
 It is not necessary to determine in this case whether
the jeopardy provision in the Bill of Rights would have
become part of the law of the Islands without Congressional
legislation. The power of Congress to make rules and
regulations for territory incorporated in or owned by the
United States is settled by an unbroken line of decisions of
this court and is no longer open to question. (American Ins.
Co. vs. Canter, 1 Pet., 511; Murphy vs. Ramsey, 114 U. S.,
15; Mormon Church vs. United States, 136 U. S., 1, 42, 43;
Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi,
190 U. S., 197.) This case does not call for a discussion of
the limitations of such power, nor require determination of
the question whether the jeopardy clause became the law
of the Islands after the ratification of the treaty without
Congressional action, as the act of Congress made it the
law of these possessions when the accused was tried and
convicted.
 The argument is of the Philippine Government in this
case that Congress intended to leave the right of
appeal as provided by Military Order, No. 58, as
amended by the Commission, in full force. But
Congress, in section 5, had already specifically provided
that no person should be put twice in jeopardy of
punishment for the same offense. While section 9
recognizes the established jurisdiction of the courts of the
Islands, it was not intended to repeal the specific guaranty
of section 5, which is direct legislation pertaining to the
particular subject. It is a well-settled principle of
construction that specific terms covering the given subject
matter will prevail over general language of the same or
another statute which might otherwise prove controlling. (In
re Rouse, Hazard & Co., 91 Fed, Rep., 96, 100, and cases
therein cited; Townsend vs. Little, 109 U. S., 504, 512.)
 In ascertaining the meaning of the anti-double jeopardy
clause taken from the Bill of Rights it must be, construed
with reference to the common law from which it was taken.
I Kent, Com., 336; United States vs.Wong Kim Ark, 169 U.
S., 649, in which this court said:
"In this, as in other respects, it [a constitutional
provision] must be interpreted in the light of the
common law, the principles and history of which were
familiarly known to the framers of the Constitution.
(Minor vs. Happersett, 21 wall., 162; Ex parte Wilson,
144 U. S., 417, 422; Boyd vs. United States, 116 U. S.,
616, 624, 625; Smith vs. Alabama, 6241 U. S., 465.)
The language of the Constitution, as has been well said,
LAW 115: LEGAL HISTORY
47
could not be understood without reference to the
common law. (I Kent's Com., 336; Bradley, J., in Moore
vs. United States, 91 U. S., 270, 274.)."
 At the common law, protection front second jeopardy
for the same offense clearly included immunity from second
prosecution where the, court having jurisdiction had
acquitted the accused of the offense. The rule. is thus
stated by Hawkins in his pleas of the Crown, quoted by Mr.
Justice Story in United States vs. Gibert et al. (2 Sumner, 19,
39) :
"The plea (says be) of autrefois acquit is grounded on
this maxim, that a man shall not be brought into
danger of his life for one and the same offense more
than once. From whence it is generally taken by all our
books, as an undoubted consequence, that where a
man is once found not guilty, on an indictment or
appeal, free from error, and well commenced before
any court, which hath juris diction of the cause, he may
by the common law, in all cases, plead such acquittal in
bar of any subsequent indictment or appeal for the
same crime."
In this court it was said by Mr. Justice Miller, in Ex parte Lange
(18 Wall., 163) :
"The common law not only prohibited a second
punishment for the same offense, but went further and
forbid a second trial for the same offense, whether the
accused had suffered punishment or not, and whether
in the former trial he had been acquitted or convicted."
In US constitutional history therefore it was clear that right
against double jeopardy includes the forfeiture of the right of
the State to appeal a judgment of acquittal by a lower court.
POINT OF THE ENTIRE DISCUSSION: Military Order No. 58, as
amended by act of the Philippine Commission, No. 194, in so far
as it undertakes to permit an appeal by the Government after
acquittal, was repealed by the act of Congress of July, 1902,
providing immunity front second jeopardy for the same criminal
offense. This conclusion renders it unnecessary to consider, if
the question was presented in this case, whether the accused
was entitled to the right of a trial by jury. Judgment reversed
and prisoner discharged.
Mr. JUSTICE HOLMES, with whom concurred Mr. JUSTICE
WHITE and Mr. JUSTICE McKENNA, dissenting:
A2010
CONTINUING JEOPARDY FROM ITS BEGINNING TO THE END
OF THE CAUSE.
 If a statute should give the right to take exceptions to
the Government, I believe it would be impossible to
maintain that the prisoner would be protected by the
Constitution from being tried again. He no more would be
put in jeopardy a second time when retried because of a
mistake of law in his favor, than he would be when retried
for a mistake that did him harm. It can not matter that the
prisoner procures the second trial.
 It might be said that when the prisoner takes
exceptions he only is trying to get rid of a jeopardy that
already exists-that so far as the verdict is in his favor, as
when he is found guilty of manslaughter upon an indictment
for murder, according to some decisions he will keep it and
can be retried only for the less offense, so that the jeopardy
only is continued to the extent that it already has been
determined against him, and is continued with a chance of
escape. I believe the decisions referred to to be wrong, but
assuming them to be right, we must consider his position at
the moment when his exceptions are sustained. The first
verdict has been set aside. The jeopardy created by that is
at an end, and the question is what shall be done with the
prisoner., Since at that moment he no longer is in jeopardy
from the first verdict, if a second trial in the same case is a
second jeopardy even as to the less offense, he has a right
to go free. In view of these difficulties it has been argued
that on principle he has that right if a mistake of law is
committed at the first trial. (1 Bish. Crim. Law 5th ed.),
secs. 999 1047.) But even Mr. Bishop admits that the
decisions are otherwise, and the point is settled in this court
by the cases cited above. That fetish happily being
destroyed, the necessary alternative is that the Constitution
permits a second trial in the same case. The reason,
however, is not the fiction that a man is not in jeopardy in
case of a misdirection, for it must be admitted that he is in
jeopardy, even when the error is patent on the face of the
record, as when he is tried on a defective indictment, if
judgment is not arrested. (United States vs. Ball, 163 U. S.,
662.) Moreover, if the fiction were true, it would be equally
true when the misdirection was in favor of the prisoner. The
reason, I submit, is that there can be but one jeopardy in
one case. I have seen no other, except the suggestion of
waiver, and that I think can not stand.
Mr. JUSTICE BROWN, dissenting:

 I regret that I am unable to agree with the decision of
the majority of the court. The case is of great importance,
not only in its immediate bearing upon the administration of
justice in the Philippines, but, since the words used in the
act of Congress are also in the Constitution, even more
because the decision necessarily will carry with it an
interpretation of the latter instrument. If, as is possible, the
constitutional prohibition should be extended
misdemeanors (Ex parte Lange, 18 Wall., 163, 173), we
shall have fastened upon the country a document covering
the whole criminal law, which, it seems to me, will have
serious and evil consequences. At the present time in this
country THERE IS MORE DANGER THAT CRIMINALS WILL
ESCAPE JUSTICE THAN THAT THEY WILL BE SUBJECTED TO
TYRANNY. But I do not stop to consider or to state the
consequences in detail, as such considerations are not
supposed to be entertained by judges, except as inclining
them to one of two interpretations, or as a tacit last resort
in case of doubt. It is more pertinent to observe that it
seems to me that logically and rationally a man can not be
said to be more than once in jeopardy in the same cause,
however often he may be tried. THE JEOPARDY IS ONE
 Under our Anglo-Saxon system of jurisprudence, I have
always supposed that a verdict of acquittal upon a valid
indictment terminated the jeopardy, that no further
proceedings for a review could be taken either in the same
or in an appellate court, and that it was extremely doubtful
whether even Congress could constitutionally authorize
such review.
to
 Conceding all this, however, I think that in applying the
principle to the Philippine Islands, Congress intended to use
the words in the sense in which they had theretofore been
understood in those Islands. By that law, in which trial by
jury was unknown, the Jeopardy did not terminate if appeal
were taken to the audiencia Or Supreme Court, until that
body bad acted upon the case. The proceedings before the
Court of First Instance were in all important cases
reviewable by the Supreme Court upon appeal, which acted
finally upon the case and terminated the jeopardy. This was
evidently the view of the military commander in General
Orders, No. 58, and of the Philippine Commission in the Act
of August 10, 1901 (No. 194), in both of which an appeal to
the Supreme Court was contemplated, even after a
LAW 115: LEGAL HISTORY
48
judgment Of acquittal. I think this also must have been the
intention of Congress, Particularly in view of sec. 9 of the
Philippine Act of July 1, 1902, which provided that "the
Supreme Court and the Courts of First Instance of the
Philippine Islands shall possess and exercise jurisdiction as
heretofore provided * * * subject to the power of said
Government to change the practice and method of
procedure." It seems to me impossible to suppose that
Congress intended to place in the hands of a single judge
the great and dangerous power of finally acquitting the
most notorious criminals.
+US V LIMSIONGCO
MALCOLM; October 9 1920
FACTS
- September 21, 1919 – Game of monte was being played in the
house of Limsiongco situated in Tibiao, Antique
- Pavia was the banker of the game and there were nine other
players
- Game was being observed by a secret service agent and upon
report to the sergeant of the Constabulary, a raid was
conducted with the aid of the municipal police
- The abovementioned individuals were arrested and the
paraphernalia and money were seized
- The ten defendants were charged with a violation of the
Gambling Law and each of them was found guilty
- Limsiongco, as the owner of the gambling house, was
sentenced to one month and 15 days in prison
- Pavia, as the banker, was sentenced to one month and 10 days
in prison
- The others were sentenced to one month imprisonment with a
1/10 part of the costs against each defendant
- Defendants question the very structure of the court itself,
assailing that the decision was rendered by a division of the
court and not the body itself
- That division of the court had no power, authority or
jurisdiction to render a final decision in the controversy
ISSUE
WON a division of the court has the power, authority or
jurisdiction to render final decisions regarding cases
N.B. In answering the issue, it is essential to resolve WON
Section 138 of the Administrative Code is unconstitutional
HELD
Yes
Reasoning The Administrative Code was the handiwork of the
Philippine Legislature
Sec. 138 of the Administrative Code of 1917 states:
Sessions of court in banc and in divisions. — The Supreme
Court shall, as a body, sit in banc, but it may sit in divisions to
transact business for which four judges constitute a quorum,
and two divisions may sit at the same time. If the Chief Justice
is present, whether in banc or division, he shall preside. In his
absence, that one of the judges attending in banc or in the
division shall reside who holds the senior commission.
Six of the judges of the Supreme Court, lawfully convened,
shall be necessary to form a quorum for the transaction of
any business involving the admiralty jurisdiction of the court,
or for the final disposition of a civil case in which the amount
in controversy exceeds ten thousand pesos or a criminal case
in which the judgment of the lower court imposed death, or
imprisonment for more than ten years, or a fine of more than
ten thousand pesos, and the concurrence of five judges, shall
be necessary for the pronouncement of a judgment, but when
there is a vacancy in said court five judges shall constitute
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such quorum, and the concurrence of four shall suffice for the
pronouncement of the judgment. In all other case the
presence of four judges shall be sufficient o form a quorum,
and the concurrence of three judges for the pronouncement
of a judgment.
In the absence of a quorum the court shall stand ipso facto
adjourned until such time as the requisite number shall be
present, and a memorandum showing this fact shall be
inserted by the clerk in the minutes of the court.
- Legislation concerning the Supreme Court:
• Cooper Law, Act of Congress of Feb. 6, 1965 grants original
and exclusive jurisdiction to the Supreme Court in all
actions brought by the Phil Government involving the
construction of section 4 of the law and provides how
vacancies shall be filled temporarily
• Congressional Joint Resolution of April 9, 1910 authorizes
the Supreme Court to hold terms of court in Baguio
• Organic Act for the Philippine Islands, Act of Congress of
Aug, 26, 1916
• Sec. 26 provides that:
• the chief justice and the associate justices
shall be appointed by the President
• the admirality of the Supreme Court shall
not be changed except by Act of
Congressional
• the Supreme Court and CFIs shall possess
and exercise jurisdiction
• Sec. 29 provides for the salaries of the Chief
Justice and the Associate Justices
- History of the Supreme Court
• Previously existed under the Spanish administration as the
Audiencia Territorial manila
• Reestablished by GO # 20 of the Military Government on
may 29, 1899.
• 1901 – Act # 36 was an act providing for the organization of
courts in the Philippine islands including the Supreme Court
• Judiciary Law found in Administrative Codes of 1916 and
1917 collated all previous provisions and modifications and
included, among others, the sessions for the court in banc
and in divisions.
- The Philippine legislature has been organized with very little
intervention from the US Congress
- Sec. 26 of the Organic Act – has been construed by courts to
mean that the Philippine Legislature can add to, but cannot
diminish, the jurisdiction of the Supreme Court and the CFI with
jurisdiction defined as the authority of the court to hear and
determine a cause.
- Sec. 138 of the Administrative Code does not diminish the
authority of the Court to hear and determine causes when
sitting in divisions.
• The Supreme Court remains a unit despite the divisions. It
is still a single court.
• Actions rendered by the divisions are still done by a single
tribunal. These divisions are not separate and distinct
courts.
- US v. Canent
• Appellant contends that providing for the assignment by the
respective judge of the district to the justice of the peace in
provincial capitals of certain specified cases originally
cognizable by CFI was unconstitutional and diminished the
jurisdiction of the CFI
• Court held that this was not so.
• The CFI shares the powers and the district
judge may act in the stead of the CFI judge. It
relieves the CFI of the duty of attending to so
many cases so that his attention is now
focused on more important cases
LAW 115: LEGAL HISTORY
49
+PEOPLE V ECHEGARAY
PER CURIAM; June 25, 1996
FACTS
- On June 25, 1996, we rendered our decision in the instant case
affirming the conviction of the accused-appellant for the crime
of raping his ten-year old daughter. The crime having been
committed sometime in April. 1994. during which time Republic
Act (R.A.) No. 7659. commonly known as the Death Penalty Law,
was already in effect. accused-appellant was inevitably meted
out the supreme penalty of death.
- On August 6, 1996, accused-appellant discharged the defense
counsel, Atty. Julian R. Vitug, and retained the services of the
AntiDeath Penalty, Task Force of the Free Legal Assistance
Group of the Philippines (FLAG). Now, accused-appellant comes
to us in the heels of this court's affirmation of his death
sentence and raises for the first time the issue of the
constitutionality of R.A. 7659. His thesis is two-fold:
ISSUE
(1) WON the death penalty law is unconstitutional per se for
having been enacted in the absence of compelling reasons
therefor; and
(2) WON the death penalty for rape is a cruel, excessive and
inhuman punishment in violation of the constitutional
proscription against punishment of such nature.
HELD
Ratio
1. Death penalty law is not unconstitutional as there are
compelling reasons for its enactment (which reasons as
determined by Congress are beyond the scope of judicial
review).
2. Death penalty for rape shall not be deemed as a cruel,
excessive and inhuman punishment.
HISTORY OF DEATH PENALTY IN THE PHILIPPINES
 Although its origins seem lost in obscurity, the
imposition of death as punishment for violation of law or
custom, religious or secular, is an ancient practice.
 The dawning of civilization brought with it both the
increasing sensitization throughout the later generations
against past barbarity and the institutionalization of state
power under the rule of law..
 One of the indispensable powers of the state is the
power to secure society against threatened and actual evil.
Pursuant to this, the legislative arm of government enacts
criminal laws that define and punish illegal acts that may be
committed by its own subjects, the executive agencies
enforce these laws. and the judiciary tries and sentences
the criminals in accordance with these laws.
 Although penologists. throughout history, have not
stopped debating on the causes of criminal behavior and
the purposes of criminal punishment, our criminal laws have
been perceived as relatively stable and functional since the
enforcement of the Revised Penal Code on January 1, 1932,
this notwithstanding occasional opposition to the death
penalty provisions therein. The Revised Penal Code, as it
was originally promulgated, provided for the death penalty
in specified crimes under specific circumstances. As early
as 1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870.
 The opposition to the death penalty uniformly took the
form of a constitutional question of whether or not the
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death penalty is a cruel, unjust, excessive or unusual
punishment in violation of the constitutional proscription
against cruel and unusual punishments. The Court
unchangingly answered this question in the negative in the
cases of Harden v. Director of Prison, People v. Limaco,
People v. Camano, People v. Puda11 and People v. Marcos.
 Consequently, we have time and again emphasized
that our courts are not the fora for a protracted debate on
the morality or propriety of the death sentence where the
law itself provides therefor in specific and well-defined
criminal acts.
 The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In
1941, Commonwealth Act (C. A.) No. 616 added espionage
to the list. In the 1950s, at the height of the Huk rebellion,
the government enacted Republic Act (R.A.) No. 1700,
otherwise known as the Anti-Subversion Law, which carried
the death penalty for leaders of the rebellion. From 1971 to
1972, more capital offenses were created by more laws,
among them, the Anti-Hijacking Law, the Dangerous Drugs
Act, and the Anti-Carnapping Law. During martial law,
Presidential Decree (P.D.) No. 1866 was enacted penalizing
with death, among others, crimes involving homicide
committed with an unlicensed firearm.
 In the aftermath of the 1986 revolution that dismantled
the Marcos regime and led to the nullification of the 1973
Constitution, a Constitutional Commission was convened
following appointments thereto by Corazon Aquino who was
catapulted to power by the people.
 Tasked with formulating a charter that echoes the new
found freedom of a rejuvenated people, the Constitutional
Commissioners grouped themselves into working
committees among which is the Bill of Rights Committee
with Jose B. Laurel, Jr. as Chairman and Father Joaquin G.
Bernas, S.J., as ViceChairman.
 The original wording of Article III, Section 19 (1),
however, did not survive the debate that it instigated.
Commissioner Napoleon G. Rama first pointed out that
"never in our history has there been a higher incidence of
crime" and that "criminality was at its zenith during the last
decade." Ultimately, the dissent defined itself to an
unwillingness to absolutely excise the death penalty from
our legal system and leave society helpless in the face of a
future upsurge of crimes or other similar emergencies.
What followed, thus, were proposed amendments to the
beleaguered provision. The move to add the phrase, "unless for
compelling reasons involving heinous crimes, the national
assembly provides for the death penalty," came from
Commissioners Monsod, Jose E. Suarez and de los Reyes.
Commissioner Rodrigo, however, expressed reservations even
as regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should
provide this matter in the Constitution or leave it to the
discretion of our legislature. Arguments pro and con
have been given x x x But my stand is, we should leave
this to the discretion of the legislature… I do not say
that we are not competent. But we have to admit the
fact that we are not elected by the people and if we are
going to entrust this to the legislature, let us not be
half-baked nor half-hearted about it. Let us entrust it to
the legislature 100 percent.''
LAW 115: LEGAL HISTORY
50
 The implications of the 1987 provision against double
jeopardy on the effectivity of the death penalty provisions
in the Revised Penal Code and certain special criminal laws
and the state of the scale of penalties thereunder, were
tremendous.
 A reading of Section 19 (1) of Article III will readily show
that there is really nothing therein which expressly declares
the abolition of the death penalty. The provision merely
says that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes the Congress
hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough.
LEGISLATIVE HISTORY OF THE DEATH PENALTY LAW:
SENATE VERSION
 The Senate never doubted its power as vested in it by
the constitution, to enact legislation re-imposing the death
penalty for compelling reasons involving heinous crimes.
Pursuant to this constitutional mandate, the Senate
proceeded to a two-step process consisting of first, the
decision, as a matter of policy, to re-impose the death
penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for
compelling reasons involving heinous crimes.
 On February 15, 1993, after a fierce and fiery exchange
of arguments for and against capital punishment, the
Members of the Senate voted on the policy issue of death
penalty. The Chair explained that it was agreed upon that
the Body would first decide the question whether or not
death penalty should be reimposed, and thereafter, a
seven-man committee would be formed to draft the
compromise bill in accordance with the result of the voting.
If the Body decides in favor of the death penalty, the Chair
said that the committee would specify the crimes on which
death penalty would be imposed. It affirmed that a vote of
Yes in the nominal voting would mean a vote in favor of
death penalty on at least one crime, and that certain
refinements on how the penalty would be imposed would be
left to the discretion of the seven-man committee.
 With seventeen (17) affirmative votes and seven (7)
negative votes and no abstention, the Chair declared that
the Senate has voted to reincorporate death as a penalty in
the scale of penalties as provided in the Revised Penal
Code. A nine-person committee was subsequently created
to draft the compromise bill pursuant to said vote. The
mandate of the committee was to retain the death penalty,
while the main debate in the committee would be the
determination of the crimes to be considered heinous.
 After the protracted debate, the Members of the Senate
voted on Senate Bill No. 891 on third reading. With
seventeen (17) affirmative votes, four (4) negative votes,
and one abstention, the death penalty bill was approved on
third reading on August 16, 1993.
LEGISLATIVE HISTORY: HOUSE VERSION
 The Senate's vote to pass Senate Bill No. 891 on third
reading on August 16, 1993 was a vindication of, the House
of Representatives. The House had, in the Eight Congress,
RAPE AND THE DEATH PENALTY
earlier approved on third reading House Bill No. 295 on the
restoration of the death penalty for certain heinous crimes.
The House was in effect rebuffed by the Senate when the
Senate killed House Bill No. 295 along with other bills
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coming from the House. House Bill No. 295 was resurrected
during the Ninth Congress in the form of House Bill No. 62
which was introduced by twenty one (21) Members of the
House of Representatives on October 27, 1992. House Bill
No. 62 was a merger of House Bill Nos. 125, 187, 411, 764,
506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
 In his Sponsorship Speech, Representative Manuel R.
Sanchez of Rizal ably essayed the constitutional vesting in
Congress of the power to reimpose the death penalty for
compelling reasons invoking heinous crimes as well as the
nature of this constitutional pre-requisite to the exercise of
such power. He cited Visconde Massacre, the killing of 2 UP
students (See People v. Lising under Prof. Te’s outline),
among others.
 A studious comparison of the legislative proceedings in
the Senate and in the House of Representatives reveals
that, while both Chambers were not wanting of oppositors
to the death penalty, the Lower House seemed less
quarrelsome about the form of the death penalty bill as a
special law specifying certain heinous crimes without regard
to the provisions of the Revised Penal Code and more
unified in the perception of what crimes are heinous and
that the fact of their very heinousness involves the
compulsion and the imperative to suppress, if not
completely eradicate, their occurrence.
 Rep Sanchez, one of the sponsors defined: A HEINOUS
CRIME IS ONE WHICH, BY REASON OF ITS INHERENT OR
MANIFEST WICKEDNESS, VICIOUSNESS, ATROCITY OR
PERVERSITY, IS REPUGNANT AND OUTRAGEOUS TO THE
COMMON STANDARDS OF DECENCY AND MORALITY IN A
JUST AND CIVILIZED SOCIETY.
 On February 23, 1993, after explaining their votes, the
Members of the House of Representatives cast their vote on
House Bill No. 62 when it was up for consideration on third
reading. The results were 123 votes in favor, 26 votes
against, and 2 abstentions.
 After the approval on third reading of House Bill No. 62
on February 23, 1993 and of Senate Bill No. 891 on August
16, 1993, the Bicameral Conference Committee convened
to incorporate and consolidate them.
 On December 31, 1993, Republic Act (R.A.) No. 7659,
entitled, "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised
Penal Code, as Amended, Other Special Penal Laws, and for
Other Purposes," took effect.39
 Between December 31, 1993, when R.A. No. 7659 took
effect, and the present time, criminal offenders have been
prosecuted under said law, and one of them. Herein
accused-appellant, has been, pursuant to said law, meted
out the supreme penalty of death for raping his ten-year old
daughter. Upon his conviction, his case was elevated to us
on automatic review. On June 25, 1996, we affirmed his
conviction and the death sentence.
 The U.S. Supreme Court in Coker vs. Georgia based its
ruling on two grounds: first, that the public has manifested
its rejection of the death penalty as a proper punishment
LAW 115: LEGAL HISTORY
51
for the crime of rape through the willful omission by the
state legislatures to include rape in their new death penalty
statutes in the aftermath of Furman; and second, that rape,
while concededly a dastardly contemptuous violation of a
woman's spiritual integrity, physical privacy, and
psychological balance, does not involve the taking of life.
 Anent the first ground, the Court did not see how this
could have any bearing on the Philippine experience and in
the context of our own culture.
 Anent the second ground, the Court disagreed with the
court's predicate that the gauge of whether or not a crime
warrants the death penalty or not, is the attendance of the
circumstance of death on the part of the victim. Such a
premise is in fact an ennobling of the biblical notion of
retributive justice of "an eye for an eye, a tooth for a tooth".
We have already demonstrated earlier in our discussion of
heinous crimes that the forfeiture of life simply because life
was taken, never was a defining essence of the death
penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in heinous
crimes because the perpetrators thereof have committed
unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely
destructive effects on the national efforts to lift the masses
from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and
because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition
of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be
permanently prevented from doing so.
 The Court has no doubts as to the innate heinousness
of the crime of rape, as we have held in the case of People
v. Cristobal:
"Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and charity.
Rape deeply wounds the respect, freedom, and
physical and moral integrity to which every person has
a right. It causes grave damage that can mark the
victim for life. It is always an intrinsically evil act x x x
an outrage upon decency and dignity that hurts not
only the victim but the society itself."
DISPOSITION OF THE COURT
WHEREFORE, in view of all the foregoing, the Motion for
Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED for LACK OF MERIT
SO ORDERED.
THE USES OF (LEGAL) HISTORY
+MAKING CIVIL RIGHTS LAW (M. TUSHNET)
CH.14 “QUIETLY IGNORING FACTS:
EXAMINING HISTORY”
- This chapter is about how the Supreme Court, in deciding the
case of Brown vs. Board of Education, “quietly ignored” some
parts of legal history in order to arrive at its desired outcome
(overturning the “Separate but Equal” doctrine which stated
that segregation between white people and black people is ok,
so long as the separate facilities are of equal quality). This being
a very long, detailed account of the actions of many parties
concerned with the case (lawyers, researchers, Justices), I will
focus on relating it to legal history.
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- In order to declare segregation unconstitutional, the Supreme
Court needed historical support. They scheduled a reargument
of the case (presumably because the first argumentation was
not based in historical facts) Marshall, the lawyer arguing for
desegration, and his staff, knew that the drafting history of the
Fourteenth Amendment of the U.S. Constitution (which provides
for Due Process and Equal Protection) would not be favorable to
their case. Marshall set aside his social psychologists and drew
in historians.
- Virtually every mention of education during the amendment’s
drafting said that the amendment would not prohibit segregated
schools. Occasionally opponents of the amendment would show
how terrible it was precisely because it would prohibit
segregation, and almost every time that argument was made, a
supporter responded by saying the amendment would not have
that effect. The amendment’s sponsored argued that it would
guarantee civil rights, but not social rights. And education was,
to them, a social right.
- But Marshall didn’t necessarily need to find historians’
arguments against segregated education to win his case. He just
needed to find information he could use, and he needed to know
how to use it.
- Should the lawyers use a generalized or particularistic
historical approach? Should they stress the overall spirit of
humanitarianism to neutralize the framers’ immediate historical
intent?
- Later on, the lawyers and historians decided to focus on
showing “how the pre-Civil War views of the radical abolitionists
dominated the egalitarian thinking” of the amendment’s
framers. If the framers were egalitarians, then their occasional
statements about segregated education became peripheral. If a
judge could accept this assumption as true, they would be more
inclined to ask why egalitarians sometimes supported
segregation, rather than why people who supported segregation
nonetheless propose this amendment.
- This interpretation of events leading up to the Fourteenth
Amendment’s adoption has become the standard one: To
understand the Fourteenth Amendment, we must understand
the general intellectual context in which its supporters lived:
their context was strongly egalitarian… when revising the
Constitution, they succeeded in persuading their colleagues that
the Constitution must incorporate egalitarian premises.
- The conclusion of the lawyers’ brief to the Supreme Court:
although the amendment’s drafters didn’t specifically
understand that it would abolish racial segregation, they did
understand it established the borad constitutional principle of
full and complete equality of all persons under the law. They
also made sure to include many quotations from the Supreme
Court saying that it should construe the Constitution
expansively, because its provisions express broad principles of
government, the essence of which is their vitality an adaptability
to the progressive changes and needs of the nation.
- Still, there was no manifested intent by Congress to abolish
segregation. But that didn’t matter, because the fact is, majority
of the Supreme Court already wanted to declare segregation
unconstitutional, and the historical evidence found was enough
to at least neutralize, to an extent, the historical support for
segregation.
- In fact, in court, Justice Frankfurter led Marshall’s arguments
by saying the historical details were largely irrelevant, and that
what the Supreme Court needed to know were the general
purposes of the Fourteenth Amendment.
+MAKING CIVIL RIGHTS LAW (M. TUSHNET)
CH.15 “WHEN THEY PRODUCE REASONS FOR
DELAY: DEVISING THE REMEDY”
- This chapter doesn’t discuss much of how history affects the
Court and its decisions. It just explains why the Court, in Brown
vs. Board of Education, asked for yet another reargument (the
LAW 115: LEGAL HISTORY
52
3rd one) of the case – it was not because the majority hadn’t
already decided to declare segregation unconstitutional, but
rather because they were still in the process of agreeing on a
remedy- the Court wanted a more gradual remedy than the one
offered. Demanding immediate desegregation was, to them,
unappealing. But, none of the justices was willing to say in
public that the remedy ought to take resistance by the people
into account, that they had concerns that “passions” associated
with desegregation could lead to violent resistance. On the
other hand, the NAACP argued that gradualism isn’t really a
solution to anything; it just postpones the time when
communities got around to dealing with the problem.
- This was a matter of great contention. Ultimately, all the Court
could accomplish in the shot run was a clear statement of
fundamental principle. The clearer the statement, the more
effective the long- run educational impact of the Court’s
decision. Regardless of how gradual or immediate the Court
decided the remedy should be, only a few African Americans
were likely o be admitted to desegregated public schools in the
deep South for many years, so there was no reason in the first
place to appease Southern sentiment through a gradualist
decree.
+FABRE, JR. V CA
MENDOZA; July 26, 1996
FACTS
- Engracio Fabre, Jr. and his wife are the owners of the minibus.
- Porfirio J. Cabil is the driver hired by the Fabre couple in 1981
after trying him out for two weeks. His job was to take school
children to and from the St. Scholastica's College in Malate,
Manila.
- November 2, 1984 : Word for the World Christian Fellowship
Inc. (WWCF) arranged with petitioners for the transportation of
33 members of its Young Adults Ministry from Manila to La Union
and back for the amount of P3,000.00.
- The group was scheduled to leave at 5PM of November 2,
1984.
- The group had to take a detour because bridge at Carmen was
under repair.
- At 11:30 that night, petitioner Cabil came upon a sharp curve
on the highway, running on a south to east direction, which he
described as "siete." Since it was raining thus the road was
slippery,the bus which was running at the speed of 50
kilometers per hour, skidded to the left road shoulder hitting the
left traffic steel brace and sign along the road and rammed the
fence of one Jesus Escano, then turned over and landed on its
left side, coming to a full stop only after a series of impacts. The
bus came to rest off the road. Several passengers were injured.
One of the passengers, Amyline Antonio was thrown on the floor
of the bus and pinned down by a wooden seat which came off
after being unscrewed. It took three persons to safely remove
her from this position.
- Police investigated the incident the next day. And filed a
criminal complaint against the driver, Porfirio Cabil. The case
was later filed with the Lingayen Regional Trial Court.
- Petitioners Fabre paid Jesus Escano P1,500.00 for the damage
to the latter's fence. On the basis of Escano's affidavit of
desistance the case against petitioners Fabre was dismissed.
- Amyline Antonio, who is now suffering from paraplegia and is
permanently paralyzed from the waist down, brought this case
in the RTC of Makati, Metro Manila.
- The trial court rendered judgment against defendants Mr. &
Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to
articles 2176 and 2180 of the Civil Code of the Philippines and
said defendants are ordered to pay jointly and severally to the
plaintiffs.
- The Court of Appeals sustained the trial court's finding that
petitioner Cabil failed to exercise due care and precaution in the
operation of his vehicle considering the time and the place of
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the accident. The Court of Appeals held that the Fabres were
themselves presumptively negligent. The Court of Appeals
modified damages.
ISSUE
1) WON petitioners were negligent
2) WON petitioners were liable for the injuries suffered by
private respondents
3) WON damages can be awarded and in the positive, up to
what extent
4) WON petitioners may be made to respond to private
respondent jointly and severally
HELD
1) Yes.
Cabil:
Considering the fact that it was raining and the road was
slippery, that it was dark, that he drove his bus at 50 kilometers
an hour when even on a good day the normal speed was only 20
kilometers an hour, and that he was unfamiliar with the terrain,
Cabil was grossly negligent and should be held liable for the
injuries suffered by private respondent Amyline Antonio.
Fabres:
Pursuant to Arts. 2176 and 2180 of the Civil Code Cabil's
negligence gave rise to the presumption that his employers, the
Fabres, were themselves negligent in the selection and
supervision of their employee.
2) Yes.
- This case involves a contract of carriage. The Fabres, did not
have to be engaged in the business of public transportation for
the provisions of the Civil Code on common carriers to apply to
them.
- Civil Code Art. 1759 :Carriers are liable for the death of or
injuries to passengers through the negligence or wilful acts of
the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the
orders of the common carriers.This liability of the common
carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and
supervision of their employees.
3) Yes
- On the theory that petitioners are liable for breach of contract
of carriage: the award of moral damages is authorized by Art.
1764, in relation to Art. 2220, since Cabil's gross negligence
amounted to bad faith.
- Owing to Amyline Antonio's testimony as well as the
testimonies of her father and co-passengers which fully
establish the physical suffering and mental anguish she endured
as a result of the injuries caused by petitioners' negligence an
award of exemplary damages and attorney's fees is warranted.
4) Yes
- The court used several precedents to explain...
1. In Dangwa Trans. Co. Inc. v. Court of Appeals,
- facts similar to those in this case
- the bus company and the driver jointly and severally
liable for damages for injuries suffered by a passenger.
2. In Bachelor Express, Inc. v. Court of Appeals
- a driver found negligent in failing to stop the bus in
order to let off passengers when a fellow passenger ran
amuck, as a result of which the passengers jumped out
of the speeding bus and suffered injuries
- driver jointly and severally liable with the bus
company to the injured passengers.
3. The same rule of liability was applied in situations
where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a
third party who was the driver of another vehicle, thus
causing an accident.
- Cases cited: Anuran v. Buño, Batangas Laguna
Tayabas Bus Co. v. Intermediate Appellate
LAW 115: LEGAL HISTORY
53
Court,Metro Manila Transit Corporation v. Court of
Appeals
- bus company, its driver, the operator of the other
vehicle and the driver of the vehicle were jointly and
severally held liable to the injured passenger or the
latter's heirs.
- The basis of this allocation of liability was
explained in Viluan v. Court of Appeals, thus: Nor
should it make any difference that the liability of
petitioner [bus owner] springs from contract while
that of respondents [owner and driver of other
vehicle] arises from quasi-delict. As early as 1913,
we already ruled in Gutierrez vs. Gutierrez, 56 Phil.
177, that in case of injury to a passenger due to the
negligence of the driver of the bus on which he was
riding and of the driver of another vehicle, the
drivers as well as the owners of the two vehicles are
jointly and severally liable for damages. Some
members of the Court, though, are of the view that
under the circumstances they are liable on quasi-
delict.
4. In the case of BLTB
- private respondents and her co-plaintiffs did not stake
out their claim against the carrier and the driver
exclusively on one theory,
-alleged alternative causes of action and join as many
parties as may be liable on such causes of action so
long as private respondent and her co-plaintiffs do not
recover twice for the same injury.
-the carrier and the driver were jointly and severally
liable because their separate and distinct acts
concurred to produce the same injury.
5. In Philippine Rabbit Bus Lines, Inc. v. Court of Appeals
SC
-exonerated the jeepney driver from liability to the
injured passengers and their families
-the owners of the jeepney jointly and severally liable,
but that is because that case was expressly tried and
decided exclusively on the theory of culpa contractual.
-As this Court there explained: The trial court was
therefore right in finding that Manalo [the driver] and
spouses Mangune and Carreon [the jeepney owners]
were negligent. However, its ruling that spouses
Mangune and Carreon are jointly and severally liable
with Manalo is erroneous. The driver cannot be held
jointly and severally liable with the carrier in case of
breach of the contract of carriage. The rationale behind
this is readily discernible. Firstly, the contract of
carriage is between the carrier and the passenger, and
in the event of contractual liability, the carrier is
exclusively responsible therefore to the passenger,
even if such breach be due to the negligence of his
driver (see Viluan v. The Court of Appeals, et al., G.R.
Nos. L-21477-81, April 29, 1966, 16 SCRA 742) .
+MIRPURI V CA
PUNO; November 19, 1999
FACTS
- On June 15, 1970, Lolita Escobar filed an application for the
registration of the trademark “Barbizon” with the Bureau of
Patents. Escobar alleged she has been manufacturing and
selling these products under the firm name “L&BM Commercial”
since March 3, 1970.
- Barbizon Corporation, organized and doing business under the
laws of New York, USA, opposed the application, claiming that:
1. Escobar’s Barbizon mark is confusingly similar
to the trademark Barbizon which opposer owns and has
never abandoned, causing great and irreparable injury to its
business reputation and goodwill;
A2010
2. Escobar’s use of the mark BARBIZON is a
statutory violation of Sec 4 (d) of RA No. 166.
- This case was docketed as IPC No. 686
- On June 18, 1974, Director of Patents dismissed opposition.
- On September 11, 1974, Escobar was issued a certificate of
registration for the trademark “Barbizon”.
- Escobar assigned all her rights and interest over the trademark
to petitioner Pribhdas J. Mirpuri who was the sole and exclusive
distributor of Escobar’s “Barbizon” products.
- Escobar, however, failed to file with the Bureau of Patents the
Affidavit of Use of Trademark, resulting in the cancellation of the
certificate of registration.
- On May 27, 1981, Escobar reapplied for registration; Mirpuri
filed his own application; Escobar later assigned her application
to Mirpuri.
- Application was opposed by private respondent, (the case was
docketed IPC No. 2049). ( allegations set forth stated in the
ratio)
- In response to the opposition, petitioner raised the defense of
res judicata
- On March 2, 1982, Escobar assigned to petitioner the use of
business name “Barbizon International” which petitioner
registered with DTI
- Certificate of registration was issued on 1987
- Private respondent filed a petition for cancellation before the
Office of Legal Affairs (OLA) of DTI
- On November 26, 1991, DTI-OLA cancelled the Certificate of
Registration
- In re: IPC No. 2049, the Director of Patents rendered a decision
declaring respondent’s opposition barred by res judicata
- Private respondent questioned decision before CA
- CA reversed the decision of the Director of Patents and
remanded the case to the Bureau of Patents
- Petitioner filed MFR, CA denied
- Hence, the issue was raised to the SC
ISSUES
1. WON private respondent’s action is barred by reason of res
judicata
2. WON the Convention of Paris for the Protection of Industrial
Property affords protection to a foreign corporation against a
Philippine applicant for the registration of a similar trademark
HELD
Background on the Function and Historical Development
of Trademarks and the Trademark Law
Definition
• any word, name, symbol, emblem, sign or device or
any combination thereof adopted and used by a
manufacturer or merchant to identify his goods and
distinguish them from those manufactured, sold or
dealt in by others (R.A. No.166, the Trademark
Law)
• any visible sign capable of distinguishing goods (R.A.
No. 8293, the Intellectual Property Code of the
Philippines)
Functions according to Phil. jurisprudence
• to point out distinctly the origin or ownership of the
goods to which it is affixed
• to secure to him, who has been instrumental in
bringing into the market a superior article of
merchandise, the fruit of his industry and skill
• to assure the public that they are procuring the
genuine article
• to prevent fraud and imposition
• to protect the manufacturer against substitution and
sale of an inferior and different article as his product
Functions according to authorities in trademark law
LAW 115: LEGAL HISTORY
54
• they indicate origin or ownership of the articles to
which they are attached
• they guarantee that those articles come up to a certain
standard of quality
• they advertise the articles they symbolize
History of the use of symbols to identify origin or ownership
• 5000 B.C.
o markings on pottery
o inscriptions on sculptural works, paintings, vases,
precious stones, glassworks, bricks
o affixed by the creator or maker of the article, or by
public authorities as indicators for the payment of
tax, for disclosing state monopoly, or devices for the
settlement of accounts between an entrepreneur and
his workmen
• Middle Ages
o compulsory use of identifying marks in certain trades
(baker's mark on bread, bottle maker’s marks,
smith's marks, tanner's marks, watermarks on paper)
o With constant use, the mark acquired popularity and
became voluntarily adopted
o intended not to create or continue monopoly but to
give the customer an index or guarantee of quality
• 18th century
o industrial revolution gave rise to mass production
and distribution of consumer goods that the mark
became an important instrumentality of trade and
commerce
o used not merely to identify goods, but to indicate
satisfactory quality
o eventually came to symbolize the goodwill and
business reputation of the owner of the product and
became a property right protected by law
o the common law developed the doctrine of
trademarks and tradenames "to prevent a person
from palming off his goods as another's, from getting
another's business or injuring his reputation by unfair
means, and, from defrauding the public
o subsequently, England and the United States
enacted national legislation on trademarks as part of
the law regulating unfair trade
o gave trademark owner the right to exclude others
from the use of his mark, or of a confusingly similar
mark
o trademark served as a warning against the imitation
or faking of products
• Today
o most effective agent for the actual creation and
protection of goodwill
o imprints upon the public mind an anonymous and
impersonal guaranty of satisfaction
o actually sells the goods
o the "silent salesman"
o growth of industry and the rapid development of
communications technology have enabled
trademarks, tradenames and other distinctive signs
of a product to penetrate regions where the owner
does not actually manufacture or sell the product
itself
Importance of trademarks
• play a significant role in commerce and trade, and
serve valuable and interrelated business functions,
both nationally and internationally
• intimately connected with economic development
A2010
• encourages investments in new ideas and inventions
and stimulates creative efforts for the satisfaction of
human needs
• speed up transfer of technology and industrialization,
and thereby bring about social and economic progress
These advantages have been acknowledged by the Philippine
government, thus leading to the creation of the Intellectual
Property Code
The IPC
• took effect on January 1, 1998
• repealed the Trademark Law, the Patent Law, Articles
188 and 189 of the Revised Penal Code, the Decree on
Intellectual Property, and the Decree on Compulsory
Reprinting of Foreign Textbooks
• enacted to strengthen the intellectual and industrial
property system in the Philippines as mandated by the
country's accession to the Agreement Establishing the
World Trade Organization (WTO).
The WTO
• a common institutional framework for the conduct of
trade relations among its members in matters related
to the multilateral and plurilateral trade agreements
annexed to the WTO Agreement
• created at the Uruguay Round of multilateral trade
negotitations sponsored by the General Agreement on
Tariffs and Trade in 1994
The GATT
• established in 1947 to promote a multilateral trading
system among countries through non-discriminatory
trade liberalization and through fair and effective rules
and disciplines
The court’s discussion on the history of trademarks and
intellectual and industrial property rights, as well as its
acknowledgment that a major proportion of international trade
depends on the protection of intellectual property rights, led to
its disposition affirming the CA’s decision.
1. No. Res judicata does not apply to the instant case and
respondent Court of Appeals did not err in so ruling.
2. Yes. The Convention of Paris for the Protection of Industrial
Property affords protection to a foreign corporation against a
Philippine applicant for the registration of a similar trademark.
(The SC, having affirmed the decision of the CA, had the case
remanded to the Bureau of Patents for further proceedings. It is
for the Bureau to determine whether or not the trademark
Barbizon is “well-known” in the country, this being an
essential requirement under Article 6 of the Paris Convention,
for a trademark to be entitled to protection.)
Ratio
1. Res judicata is an absolute bar to a subsequent action for the
same cause, and its requisites are:
a. the former judgment or order must be final
b. the judgment or order must be one on the
merits
c. it must have been rendered by a court having
jurisdiction over the subject matter and parties
d. there must be between the first and second
actions, identity of the parties, of subject matter, and of
causes of action
- The judgment in IPC No. 686 was final, was rendered by the
Director of Patents who had jurisdiction over the subject matter
and parties, and was on the merits (determines the rights and
liabilities of the parties based on disclosed facts). It also
involved the same parties (petitioner: the assignee of Escobar;
private respondent: Barbizon Corporation) and the same subject
matter (trademark “Barbizon”). The causes of action,
however, were different.
LAW 115: LEGAL HISTORY
55
- In IPC No. 686, private respondent’s opposition was merely
anchored on:
a. "confusing similarity" of its trademark with that of
Escobar's;
b. that the registration of Escobar's similar trademark will
cause damage to private respondent's business
reputation and goodwill; and
c. that Escobar's use of the trademark amounts to an
unlawful appropriation of a mark previously used in the
Philippines which act is penalized under Section 4 (d) of
the Trademark Law.
- while in IPC No. 4029 respondent set forth the ff issues:
a. as early as 1933, it adopted the word "BARBIZON" as
trademark on its products such as robes, pajamas,
lingerie, nightgowns and slips;
b. that the trademark "BARBIZON" was registered with
the United States Patent Office in 1934 and 1949; and
that variations of the same trademark, i.e., "BARBIZON"
with Bee design and "BARBIZON" with the
representation of a woman were also registered with
the U.S. Patent Office in 1961 and 1976;
c. that these marks have been in use in the Philippines
and in many countries all over the world for over forty
years. "Barbizon" products have been advertised in
international publications and the marks registered in
36 countries worldwide;
d. Escobar's registration of the similar trademark
"BARBIZON" in 1974 was based on fraud;
e. Private respondent's trademark is entitled to protection
as a well-known mark under Article 6 of the Paris
Convention, Executive Order No. 913, and the two
Memoranda dated November 20, 1980 and October 25,
1983 of the Minister of Trade and Industry to the
Director of Patents;
f. Escobar's trademark is identical to private respondent's
and its use on the same class of goods as the latter's
amounts to a violation of the Trademark Law and
Article 189 of the Revised Penal Code.
- Indeed, these are substantial allegations that raised new issues
that necessarily gave private respondents a new cause of
action. Res judicata does not apply to rights, claims or
demands, although growing out of the same subject
matter, which constitute separate or distinct causes of
action and were not put in the issue in the former action.
- Respondent also introduced in the second case, a fact that did
not exist at the time the first case was filed and terminated. Res
judicata extends only to facts and conditions as they
existed at the time judgment was rendered and to the
legal rights and relations of the parties fixed by the facts
so determined.
- Oppositions in the first and second cases were also based on
different laws. While the opposition in IPC No. 686 was based on
specific provisions of the Trademark Law, the opposition in IPC
No. 4029 invoked the Paris Convention and the two Memoranda
of the Minister of Trade and Industry, as well as Article 189 of
the RPC. The mere fact that the same relief is sought in
the subsequent action will not render the judgment in
the prior action operative as res judicata, such as where
the two actions are based on different statutes.
2. The Philippines and the United States of America have
acceded to the WTO, with a desire to reduce distortions and
impediments to international trade, taking into account
the need to promote effective and adequate protection
of intellectual property rights, and to ensure that
measures and procedures to enforce intellectual
property rights do not themselves become barriers to
legitimate trade. To fulfill these objectives, the members
have agreed to adhere to minimum standards of
protection set by several Conventions, one of which is
the Paris Convention.
A2010
- The Convention of Paris for the Protection of Industrial
Property, is a multilateral treaty that seeks to protect
industrial property consisting of patents, utility models,
industrial designs, trademarks, service marks, trade
names and indications of source or appellations of
origin, and at the same time aims to repress unfair competition.
Article 6 of this Convention, governs the protection of
well-known trademarks. Under this Article, each country of
the Union bound itself to undertake to refuse or cancel the
registration, and prohibit the use of a trademark which is
a reproduction, imitation or translation, or any essential
part of which trademark constitutes a reproduction, liable to
create confusion, of a mark considered by the competent
authority of the country where protection is sought, to
be “well-known” in the country as being already the mark of
a person entitled to the benefits of the Convention, and used for
identical or similar goods.
+DEATH PENALTY TIMELINE
THE imposition of the death penalty in the country has had a
repressive history. For the most part (from 1848 to 1987), it was
used to curtail the liberties, freedoms and rights of the Filipino
people. In recent history, however, the death penalty was
reimposed as a knee-jerk response to what has largely been
seen as rising criminality in the country. The following, with help
from the Mamamayang Tutol sa Bitay-Movement for Restorative
Justice, traces the death penalty’s historical roots and context in
Philippine society:
Spanish Period (1521-1898)
• Spanish colonizers brought with them medieval
Europe’s penal system, including executions.
• Capital punishment during the early Spanish Period
took various forms including burning, decapitation,
drowning, flaying, garrote, hanging, shooting, stabbing
and others.
• Capital punishment was enshrined in the 1848 Spanish
Codigo Penal and was only imposed on locals who
challenged the established authority of the colonizers.
• Between 1840-1857, recorded death sentences totaled
1,703 with 46 actual executions.
• Filipinos who were meted the death penalty include
Magat Salamat (1587); the native clergies Gomez,
Burgos and Zamora who were garroted in 1872; and
Dr. Jose Rizal, executed on December 30, 1896. All of
them are now enshrined as heroes.
American Period (1898-1934)
• The American colonizers, adopting most of the
provisions under the Codigo Penal of 1848, retain the
death penalty.
• The Codigo Penal was revised in 1932. Treason,
parricide, piracy, kidnapping, murder, rape, and
robbery with homicide were considered capital offenses
and warranted the death penalty.
• The Sedition Law (1901); Brigandage Act (1902);
Reconcentration Act (1903); and Flag Law (1907) were
enacted to sanction the use of force, including death,
against all nationalist Filipinos.
• Macario Sakay was one of those sentenced to die for
leading a resistance group. He was sentenced to die by
public hanging.
• The capital punishment continued to be an integral part
of the pacification process of the country, to suppress
any resistance to American authority.
Japanese Occupation (1941-1945)
LAW 115: LEGAL HISTORY
56
• There are no recorded or documented cases of
executions through the death penalty during this
period simply because extrajudicial executions were
widely practised as part of the pacification of the
country.
Post-World War II
• Espionage is added to the list of capital offenses.
• The Anti-Subversion Law called for the death penalty
for all Communist leaders. However, no executions
were recorded for any captured communist leader.
• For the period of 1946-1965, 35 people were executed
for offenses that the Supreme Court labeled as “crimes
of senseless depravity or extreme criminal perversity.”
The Marcos Years (1965-1986)
• “Deterrence” became the official justification for the
imposition of the death penalty. This is the same
justification used for the declaration of Martial Law in
1972.
• The number of capital crimes increased to a total of 24.
Some crimes which were made punishable by death
through laws and decrees during the Marcos period
were subversion, possession of firearms, arson,
hijacking, embezzlement, drug-related offenses,
unlawful possession of firearms, illegal fishing and
cattle rustling.
• Jaime Jose, Basilio Pineda, and Edgardo Aquino were
executed for the gang rape of movie star Maggie dela
Riva in 1972. Despite prohibitions against public
executions, the execution of the three was done in full
view of the public.
• Nineteen executions took place during the Pre-Martial
Law period. Twelve were executed during Martial Law.
• Senator Benigno Aquino, Jr. was sentenced to die by
firing squad for charges of murder, subversion and
illegal possession of firearm in 1977.
• The last judicial execution under the Marcos years was
in October 1976 when Marcelo San Jose was executed
by electrocution.
• Similar to the reasons for the imposition of capital
punishment during the Colonial Periods, the death
penalty during the Marcos Regime was imposed to
quell rebellion and social unrest.
President Corazon Cojuangco Aquino (1986-1992)
• The Death Penalty was “abolished” under the 1987
Constitution.
• The Philippines became the first Asian country to
abolish the death penalty for all crimes.
• All death sentences were reduced to reclusion
perpetua or life imprisonment.
• In 1988, the military started lobbying for the imposition
of the death penalty for crimes committed by the CPP-
NPA.
President Fidel Valdez Ramos (1993-1998)
• A series of high profile crimes during this period,
including the murder of Eileen Sarmenta and Allan
Gomez, created public impression that heinous crimes
were on the rise.
• The Ramos administration reimposed the death penalty
by virtue of Republic Act No. 7659 in December 1993 to
address the rising criminality and incidence of heinous
crimes.
• The Death Penalty Law lists a total of 46 crimes
punishable by death; 25 of these are death mandatory
while 21 are death eligible.
A2010
• Republic Act No. 8177 mandates that a death sentence
shall be carried out through lethal injection.
President Joseph Ejercito Estrada (1998-2001)
• Leo Echegaray was executed in February 1999 and was
followed by six other executions for various heinous
crimes.
• In 1999, the bumper year for executions, the national
crime volume, instead of abating, ironically increased
by 15.3 percent or a total of 82,538 (from 71,527
crimes in the previous year).
• Estrada issued a de facto moratorium on executions in
the face of church-led campaigns to abolish the death
penalty and in observance of the Jubilee Year.
President Gloria Macapagal Arroyo (2001-present)
• Arroyo publicly stated that she is not in favor of
executions.
• Due to the rise in crimes related to drugs and
kidnappings that targeted the Filipino-Chinese
community, she announced that she would resume
executions “to sow fear into the hearts of criminals.”
• Arroyo lifted the de facto moratorium issued by Estrada
on December 5, 2003.
• Even as executions were set to resume on January
2004, this did not push through by virtue of a Supreme
Court decision to reopen the Lara-Licayan case.
• Since then, the administration has been issuing
reprieves on scheduled executions without actually
issuing a moratorium.
• With the amendment of Republic Act No. 8353 (Anti-
Rape Law of 1997) and Republic Act No. 9165
(Comprehensive Dangerous Drugs act of 2002), there
are now 52 capital offenses, 30 of which are death
mandatory and 22 are death eligible.
LECTURE NOTES
June 21, 2006
I. Scope of the Course
* Overview of World Legal System
* Development of Philippine Laws and Legal Institution
Focus among three (3):
a. it gives background on legal system as a whole
b. it also provides sufficient information (academic or
practical) to form the foundation of one’s study of the
other fields of law
c. relevance of legal history not only in academic study
but also in practice
II. The Philippine Legal System
A. Legal Traditions
* What influences have impacted..?
a. Custom law or Malay influence
b. Spanich Civil Law influence (based on Roman Civil Law)
c. Anglo-American Common Law
d. Muslim Law / Non-muslim Indigenous Law
• Our legal system is unique and plural as compared to
world legal systems
• It is plural because: (1) of traces of influences (2)
affected by different traditions, and (3) in the Phils., all
these traditions work independently of the other
• He present legal system regulates or controls everyday
conduct
B. Sources of Law / Legal System
LAW 115: LEGAL HISTORY
57
“Source of law” ~ means mean authoritative sources which are
binding as law
2 Principal Sources:
a.] Statutes / Constitution, enactments of will of legislature,
issuances
5 forms of legislative enactments:
* Acts (1901)
* Commonwealth Acts (1935
* Republic Acts (1946) (1987 – )
* Presidential Decrees (1972, 73 – )
* Batas Pambansa Issuances
Q: Which bodies, in the course of history, enacted these
different legislative enactments?
As of 2005, there is a total of 9885 R.A.s enacted
2500~ PDs were passed by Marcos alone
b.] Jurisprudence / Case law – decisions and resolutions only of
SC
• forms of SC Decisions (SCRA) – published
• unsigned / unreported SC resolutions still form part of
source of law
C. Judicial System
• SC -- CA -- RTC/MTC ] accept criminal and civil cases
governed by rules of courts
• Criminal Courts – no jury trial; court system was
patterned after the American court system except the
concept of jury
• Codes which form part of this system: The Revised
Penal Code effective 1932; Civil Code enacted in 1950
which covers broad aspects of civil law such as
ownership, property, tort, persons and family relations,
etc; Code of Commerce, precedent of mortgage law,
corporation law, insolvency law; Labor Code enacted in
the 1970s which was an effort to consolidate laws on
labor, from labor standards and labor relations;
Corporation Code along with Investment Code; Local
Government Code; Revised Administrative Code
promulgated in 1997; Fire Code, Tariff and Customs
Code; and others.
III. Points in the Development of Phil. Legal System
Periods: Pre-Conquest, Spanish, American, Commonwealth,
Martial Law, Post Martial Law (Republic)
A. Pre-Conquest Period
* Refers to unwritten customs and practices
* 2 Codes attributed to this period: Code of Maragtas and Code
of Kalantiao (a Penal Code, however doubtful whether this is a
true or real record, its authenticity is questioned for records
don’t support such claim of veracity and authenticity)
* Custom law was passed orally
B. Spanish Period
* Governance was highly centralized
* In the manner of laws, Spain implemented 2 forms of laws: (1)
applicable only to Spaniards, and (2) applicable to colonies
* The Governor-General enjoyed law making powers
* By the end of the Spanish occupation, there were 3 sources of
laws namely: (1) law/Constitution of Spain, (2) laws enacted in
Phil. Islands, and (3) compromised cases decided by all courts
/ custom law
C. American Occupation
A2010
* All political laws were abrogated during the transfer of Phils
from Spain to Americans through the Treaty of Paris; however,
civil laws remained
* Commerce and Trade: given emphasis in the making of laws
through the 2 commissions sent to study the situation in the
Phils.
* Freedom of speech and freedom of expression was observed,
but before that strict laws to establish authority
* In all these we can underline the power and force of laws and
legislation
* One legacy of the Americans in the Phils is the court / judicial
system or the hierarchy of the courts with the SC as the
highest
* Legislation done by the Executive
D. Commonwealth Period
* Most of the legal ideas and laws were maintained
F. Japanese Occupation (1943 Constitution)
G. Philippine Republic
* Resumption of 1935 Constitution
* Legislative body, as responsible for the enactment of laws, was
formed
H. Martial Law / Marcos Regime
* Shift from presidential to parliamentary
* Circulars / orders / letters of instruction (also during the later
part of the Batasang Pambansa)
* President as both head of executive and legislative
* Proposal submission ad ratification of 1973 Constitution
I. The 1987 Constitution
* reverted to presidential form of government
* Separation of powers: executive, legislative and judiciary
* Restoration of democracy
July 18, 2006
Overview of the 1987 Constitution
References:
[a] Malolos Constitution, [b] 1935 Constitution, [c] 1973
Constitution
[d] Provisional Constitution of 1986 – adopted some revisions of
the 1973 Constitution; process for drafting of 1987 Constitution
was expressed; Proclamation No. 3 – how to draft the 1987
Constitution
The 1987 Constitution (February 2, 1987)
- It was drafted by a Constitutional Commission headed
by J. Muñoz Palma. ConCom took around 138 days
drafting the Constitution.
- There has been a dispute between the dates of
ratification: Feb. 2 – casting of votes, and Feb. 11 –
Proclamation of the Constitution
- 1973 Constitution (different from 1987 Constitution)
was considered ratified although the manner by which
it has been ratified was done by viva voce (raising of
hands), Yes or No by citizens gathered in citizen’s
assemblies.
- The study of the 1987 Constitution is bifurcated:
Constitutional Law I, Structure of Government, and
Constitutional Law II, Bill of Rights. However, other
commentators believe that it can be divided into 3,
namely: I – Constitution of Rights and Liberties, II –
Constitution of Government, and III – Constitution of
Sovereign
Characteristics of (1987) Constitution
[1] Written Constitution with all its implications (in 1 case, it was
said that the 1987 Constitution has been crafted in modern
constitutions)
LAW 115: LEGAL HISTORY
58
[2] Considered as Pro Life, Pro Filipino (national Economy and
Patrimony), Pro People (people’s initiative recognized), Anti-
Dictatorship (powers of the President have been significantly
limited) and Pro Poor
General Features of the 1987 Constitution
• It provides for Rights of Republican and Democratic
State
• Separation of Powers
• Recognizes expressly the power of Judicial Review
• Contains a Bill of Rights
• Presidential Form of Government with separation of
powers, meaning, a system of checks and balance that
allows each branch to act independently of the other,
but a separation hat was hoped to breed cooperation
rather than conflict
Changing the Constitution
* The urgency to draft and ratify a Constitution is in response to
or in order to attain normalcy.
* Changing the Constitution can be by amendment (certain
portions) or by revision (entirety of the Constitution).
* The recognized modes to amend or revise the Constitution is
by Congress [1] by ¾ votes of all its members or [2] calling a
Constitutional Convention, and also [3] by people’s initiative,
but limited only to amendments and not revision
* Note however that aside from the recognized modes, the
people/sovereign can change the Constitution by means of a
successful revolution
Majul’s article, A Legislature of Dictatorship, should have served
to provide:
- ideas on Constitution during that period
- ideas on Constitution-making during a revolution (and
not just in times of normalcy)
- Mabini provides ideas in 2 areas: [a] Constitution and
Constitutional making in normal times, and [b]
Constitution and Constitutional making in ties of
expediency like impending hostilities. During that time
he said that it’s not the right time to draft/make a
Constitution or a permanent structure of government,
rather a government based on values. Hence a
flexibility leaning toward a strong executive than
legislature.
Structure of Government: Presidential or Parliamentary?
• 1935 – unicameral at first but it was amended and it
became bicameral
• 1973 – unicameral (Interim National Assembly
• 1987 – bicameral (Senate and House of
Representatives)
Justice Mendoza’s article
• Constitutionalism was not known in the Philippines until
1896 (the short-lived Malolos Constitution which is only
of historical interest)
• Constitutional problem after or upon Treaty of Paris:
there was a gap, a constitutional void; the Phils. was an
unincorporated territory, hence the civil and political
status f the native inhabitants were of concern because
the U.S. were not so eager to extend her Constitution
to the Phils.
• Solution: McKinley’s Instruction providing for Bill of
Rights
2 major periods of Constitution making in Mendoza’s article:
[1] Organic Acts from 101
• McKinley’s Instruction providing for Bill of Rights
• Spooner Amendment which transformed the
government from a military to a civil one
A2010
• Philippine Bill of 1902 which created the Philippine
Assembly as the lower chamber of legislature
composing of Filipinos (upper chamber was Phil.
Commission, all Americans), and which expanded the
Bill of Rights
• Philippine Autonomy Act of 1916, Filipinization of
legislature and which promised Phil. Independence as
soon as stable government is established.
• Tydings-McDuffie Act which provided authority to Phil
Legislature to call election of delegates to a
Constitutional Convention.
[2] Constitution-making for the 1935 and 1973 Constitutions
Q: When was there real separation of powers according to
McKinley? Answer: Philippine Autonomy Act
J. Mendoza: the purpose of separation of powers at that time
was to insure that the Governor General, by tradition who was
American, was to reign supreme, which evidences a “strong
executive” (Majul: some bases on the socio-political condition of
the Phils. in history)
• 1935 Constitution was established or made by virtue of
the Tydings-McDuffie Act; it had to be crafted with a
republican character [Mendoza attributed this
republican character to Tydings but Majul attributed
this to the socio-political conditions]; the 202 delegates
were elected; certain conditions were provided it had to
have separation of powers and a bill of rights.
• 1973 Constitution was by way of a Constitutional
Convention of around 300 delegates; 17 mos. In the
course of convention Martial Law was proclaimed;
challenged from the time it was proposed up to the
time of its ratification; amended in ’80, ’81, 84 (e.g.
modified parliamentary where Pres. Had legislative
powers)
Note: Majul, Mendoza, Fernando – all made reference to the Bill
of Rights
Fernando’s article
• Discusses Separation of Powers, Judicial Review and Bill
of Rights
• In 1973, there was an attempt to visit the Malolos
Constitution. It was said to be unique since its Bill of
Rights included economic and social rights.
• 1973 and 1987 – both have reference to social justice
~ Majul: on June 12, declaration of independence in Kawit, and
on Sept. 15, 1898 Congress was inaugurated, then drafted their
Constitution in the North, in Malolos. Q: Any significance why?
Answer: Because they were on retreat, they were drafting their
Constitution while on retreat. Imagine the range of ideas they
had to contend with: [i] do we want a constitution with a
specification of right?, [ii] do we want a strong government?, [iii]
strong executive or legislature? – strong government was
necessary because it’s the only kind of government which can
give the Filipinos what they needed at that time.
• Strong executive (proposed by Mabini) vs. Strong
Legislature (proposed by Calderon) ~ both as a
response to the situation
Conclusion: (a) No other country has this colored history of how
constitutions are established and ratified. (b) Continuum of
discussion of Separation of Powers
August 2, 2006
LAW 115: LEGAL HISTORY
59
A. Constitution: Constitution-making
B. Basic background on previous charters, including the
Malolos Constitution
C. (Recurring) Ideas on Constitutional Design: design and
structure of government (string executive, weak
legislature, etc.)
D. (To some extent) Role of Court/ Supreme Court
Note: (a) Today, we are in the midst of a present effort of
constitutional reform, to amend the charter. There are initiatives
for economic reforms, popular initiative from presidential to
parliamentary, a change from centralized to federal, (b) PCCR –
in here we notice that the feature of our Constitution as unique
because it includes economic provisions
The 1973 Constitution
- Early Martial Law cases – relevant in the constitutional
amendments
- The 1973 Const. has obtained a lot of challenges from the
inception of the resolution to amend the constitution up to its
ratification; in every step of the way stood challenges, these
were unmitigated challenges to the 1973 Constitution
E. Mendoza’s article – describes the challenges to the 1973
Const.
• Look at Lansang case: it tests how cooperative/ pliant
or recalcitrant the Supreme Court is in cases
concerning the powers of the Executive.
• Doctrine here: where the power of the President to
suspend the writ of habeas corpus is questioned, the
SC has power only to the determination of the
sufficiency of factual bases or circumstances
• But the truth is: Is the Court allowed on its own to go
and collect facts? No. The SC only takes into account
the facts submitted
• Milieu: the functioning legislative could not be formed
based on the structure of the 193 Const. With this
vacuum then, the President had legislative and
executive powers.
Constitutional Change and Reform
1973 Charter – was an opportunity to revise the 1935 Charter to
design a charter that would lean to Filipino indigenous people;
the 1973 charter’s desire to be culturally appropriate, one
reason to reform the 1935 charter.
Economic Provisions and Some Conclusions on the PCCR
• PCCR – was an effort to propose changes in the 1987
charter regarding the economic provisions
• “economic provisions” – those provisions which deal
with economic policy and economic activity
• Areas of concern: Art II Sec. 91 and Sec 192, Art. XII on
National Economy and Patrimony, Art XIV, and Art XVI
on General Provisions
• Objection: Constitutional amendments have nothing to
do with foreign direct investments (Note: see page 409
of PCCR article re arguments For and Against the
economic changes)
• 2 Points: (a) in their study, no attention was really
made on the effect of having these economic
provisions (in the 1935, 1973 and 1987 charters), and
1
Art II Sec.9. The State shall promote a just and dynamic social order that
will ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social services,
promote full employment, a rising standard of living, and an improved
quality of life for all.
2
Art II Sec.19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
A2010
(b) it was never discussed why these provisions were
there, not to benefit Filipinos but to protect vested
American interests (which perpetuated from the 1935
Const) ~ Nationalist and Protectionist tradition in
Constitution
• Land, energy, fisheries and mining ~ these sectors or
areas are always in constant question
• Constitutional Intent: if we amend the economic
provisions, we should also remove the provisions where
there is a Filipino First Policy
• Question: Is it a matter of changing the economic
provisions? Or is it a matter of the Court’s decisions in
cases that concern economic policy?
• Proper mode of amendment: Constitutional Assembly.
If not feasible, then Constitutional Convention/
2 Questions: (1) Do you agree with PCCR? State your reasons
(2) Of all the charters, which charter do you think functions most
efficiently? How about in the area of economic policy? Why do
you think so?
August 8, 2006
Labor Law
I. The Constitution
Art. II Sec. 18
The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
Art. XIII Sec. 3
The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and
equality of employment opportunities for all.
Art. III Sec. 8 on Freedom of Association (closely related to self-
organization)
The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
II. The Labor Code and its IRR
Labor Standards: kinds of employment, wage, hours of work,
benefits, termination
Labor Relations: collective bargaining, certification elections,
unfair labor practice
III. Other Laws
• Laws have been passed to benefit laborers: 13th month
pay, anti-sexual harassment, SSS and GSIS benefits,
self-organization in Government
IV. Other Points
Pending bills in Labor
a. Pending bill to strengthen unions in the Phils.
b. Abolish NLRC and form an agency to resolve disputes
Kinds of Employment
- regular
- contractual
- casual
- project
- probationary
- fixed contract
Fernandez’s article: (salient points discussed in lecture)
(1) Pre Conquest Period: alipin, by capture and by debt
(2) Spanish Period:
- assimilated this practice through the pueblos, cabeza
de barangay etc; there was no effort industrialize
- there was the Galleon Trade but foreign merchants sis
not invest, rather, they just sold their properties.
- Polos y Servicios: Filipino males were required 40 days
per year without pay to work in Spanish shipyards
LAW 115: LEGAL HISTORY
60
• Speaking of wage, there were different workers who
had different ways to earn wages by the nature of work
they had:
- namomoo – he worked only in a household and rarely
does he get paid, only payment of indebtedness
- tihog – also called hired hand where he may only be
paid with meals
- himakdul –also called messenger or agent who may be
paid in particular amounts
- himuli – one who is employed under hazardous
circumstances who also earned hazard pay
- agricultural employees
Note other concepts: (a) alipin = share tenancy (effort to abolish
share tenancy); (b) the concepts of sangla, and (c) the manner
of terminating servitude
(3) American Period
- there was a sudden issuance of laws on labor
- most of our labor laws today are patterned in the American
labor laws
a. 8 hours of work
b. workmen’s compensation – separate benefits aside from
wage, e.g. health benefits, injury etc.
Trade Unionism – reference to guilds which were considered as
the first trade unions; however, looking at history more closely
these guilds were not organized; these were created for
purposes of welfare ad social association; but still, their
relationships were spring for the formation of trade unions
Important aspects of Trade Unionism:
- laws recognizing trade unions
- laws recognizing registration of unions
- derived, intended and unintended effects of laws
- PD 442 – consolidation of all labor laws and effect in
unionism; requirements for registration and
maintenance of trade unions; intended to protect labor
(e.g. collective bargaining) resulted in deregistration of
unions; ban on strikes and assemblies
• The more than 100 years of Philippine unionism shows
that labor movement is still weak and internally divided
due to ideological orientation and political party
affiliations as well as patriarchal and legalistic
leadership.
• Minimum Wage Law – factor of cheap labor policy
• Phenomenon of sending workers overseas. (relate this
to minimum wage law and other concepts)
August 23, 2006
Overview of Present Civil Law
Civil law is one of the most extensive areas of law. Scope of Civil
law include: effectivity and application of laws, human
relations, property and ownership, obligations and contracts
• Civil Code – preliminary title covering in general the
applicability of laws; one aspect of civil law is persons
and family relations; concepts which go back to Roman
Law: judicial persons, concept of persons, etc.
• Family Code – marriage (its relationship in Constitution;
in constitution, marriage as inviolable social institution;
law regulates marriage in several ways)
• Adoption Act
• Public Land Law
• Rental Reform Law and Act
• Property Law
• Clerical Correction Law Errors- new law on correction of
clerical errors
Pre-Conquest Society
A2010
Romualdez’s article . Rough survey of legislation – discusses the
notion of how to formulate written laws and how to promulgate
them, as present as early as
Fernandez’s article:
- Kinship : important nexus and liability;
multilateral kinship
- family as a legal entity not recognized in pre-
conquest period (today family is an important social
unit)
- multi and bilateral kinship prevented or
delayed the recognition of family as a legal entity.
however, the important function this set up served was
to maintain peace and order
Marriage in Pre-Conquest
(a) was essentially a private affair (as opposed today where
marriage is regulated by law, the Family Code); regulation was
minimal then
(b) 3 stages were recognized: [1] wife capture, [2] wife purchase
and [3] mutual consent
Q: What was the relevant point of regulation (in marriage)?
It showed the extent to which marriage affected the
household.
- Objective: To ensure detriment of one household is
compensated, the basis of which is the loss to bride’s
household and gain to groom’s household when marriage
between a man and a woman takes place.
- Emphasis re compensation system: pre-conquest period
did not have a uniform or regular medium of exchange. Q:
was this an effective measure?
(c) Observation: keeping of more than 1 wife was not a general
custom in pre-conquest
(d) allowed separation and divorce, under valid reasons; there
were economic sanctions. (note also that absolute divorce in the
Phils. Was allowed during the American and Japanese periods)
- Notion of different kinds of children, legitimate
and illegitimate was already present in pre-conquest
times (In Spanish period, distinction between natural
and spurious children)
- Inheritance and succession not only of
material estate but also of status and political office.
- Adoption: concept of system of compensation
to adopting parent; purpose of adoption to improve
one’s status (as opposed to Roman case where purpose
of adoption was to continue lineage)
- Property: everything was for immediate
consumption; the primary mode of acquisition was
production (what they acquired was what they
created); exchange or trade was only subsidiary (note:
however, conquest period arrested the development of
acquisition/ exchange/contract law by trade with
foreign traders; today contract as a regulation, contract
as the law between contracting parties)
Spanish Conquest
Balane’s article. Spanish Antecedents of the Philippine Civil Law
• Point: that around 57% of the present Civil Code was
based on the Spanish Civil Code, majority of the 57%
was about persons and family relations
• Discussed status of law in the Phils.
• There was a different notion of “codification” as we
know it today. To “codify” meant to form Spanish law,
“compilation”
• 1530 – Order of application of laws. Problems: [1]
limited scope in civil law, [2] hard to find law (e.g.
house of a friend, fiscal’s office, etc.) This confusion in
the Philippines mirrored the same confusion in Spain.
This was, however, only resolved later, during the later
portion of Spanish Conquest)
LAW 115: LEGAL HISTORY
61
• Sources of Civil Code in the Philippines – although the
American occupation came just after the Spanish Civil
Code was promulgated, the Spanish Civil Code was still
in force because it was not regarded with a political
character. So aside from the Spanish Civil Code, other
sources were the civil codes of France, Argentina,
Switzerland and Germany.
Bocobo’s article, The New Civil Code
Salient points of his article include:
• The concept of supremacy of justice of legalism (by
legalism, it is meant “rights are based strictly upon
law”)
• Creation of civil actions similar to American torts
• Elevation of Philippine customs into law
August 30, 2006
Criminal Law
What forms criminal law in the Philippines?
[a] RPC – Book I General Rules, Basic Principles, Penalties and
how to impose them; Book II Specific Felonies (Note: look at 2
areas, namely, the act, and the penalties)
[b] Special laws (e.g. Dangerous Drugs Act, Anti-Plunder Act,
etc.)
How did criminal law come to be?
Spanish Penal Code of 1887 – precursor to Penal Code. It is
important to note that prior to the promulgation of the Spanish
Penal Code, [1] the condition of the body of laws in the
Philippines is a situation where there was confusion as to laws;
discretion in determining the nature of offenses and the
resulting penalties was done by the judges since there was no
law written; [2] the capital punishment was carried out through
hanging, firing squad and the garrote.
The Revised Penal Code (1932) – before the RPC, the Americans
used criminal laws already in place to suppress recalcitrant
Filipinos; major change came only after 30 years of American
occupation with the RPC’s promulgation; there were indications
of movements in criminal law e.g. it penalized the mere
advocacy of independence:
• Act No. 92 or the Anti-Sedition law which made sedition
a crime punishable by death
• Act No. 518 or the Brigandage Act which was passed by
the Phil. Commission penalized brigandage as a crime
punishable by death or imprisonment of not less than
20 yrs. Along with the anti-sedition law, this was
enacted to suppress nationalist forces (Macario Sakay
was convicted of this crime. On appeal, SC affirmed
lower court’s decision)
4 Penologic Objectives (see discussion in Tadiar’s article)
* Retributive
* Preventive/Restrictive
* Rehabilitative
* Reformative
What were the changes in Criminal Law?
Changes:
* Reforms as to improve training of caliber officials
* Separate judicial and executive authority (independent
judiciary was not a feature of Spanish)
* Increase in litigation (as with civil and penal laws)
* Systematic rule on civil and criminal procedure which was
absent prior to 1887
In Bankoff’s article, note the following points:
[1] System of special courts based on class and race
A2010
[2] Separate courts for church, merchants, military and Chinese
[Note that in Balane’s article on Civil law, there is a feature on a
dual court system: colonizers/Spaniards and colonized/Filipinos.
This is important because it indicates that even at that time
bringing suits to those with expertise (people who are experts in
a particular aspect) where parties dispute is already manifest.]
[3] Organization of courts – actual function of courts was of
more interest than the administration of justice
Challenge: Explain by comparing: How were disputes handled?
From: Pre-Conquest – Spanish – American – up to the Present
Tadiar’s article, A Philosophy of a Penal Code
Note the following points (please refer to the article):
- What is the primordial aim of criminal law?
- What are the different Penologic Objectives? Explain
and differentiate.
- Identify what is the root of criminal law.
P. Fernandez’s article, Crime and Punishment
Note the following points (please refer to the article):
- Principal features of pre-conquest law as far as crime
and punishment
- What was the subject, and also the principles observed
in the imposition of penalties?
- Identify significant crimes in pre-conquest and how are
these penalized.
September 12, 2006
Continuing discussion on Criminal Law
P. Fernandez’s article, Pre-Conquest Phils., Crime and
Punishment
Distinction between:
(a) conduct harmful to community
vs.
(b) conduct prejudicial to individual
Q: Why is this distinction important?
Recall: crimininalization – identifying the criminal acts and
imposing the subsequent penalty (e.g. murder, homicide, theft,
insult to chief)
Point: Distinction was not made to criminalize a set of actions
and forego another set of actions. Rather, distinction was
necessary to form or inform the process of criminalization,
meaning, each act (conduct harmful to community or conduct
prejudicial to individual) was important to determine the act if it
is criminal and the corresponding penalty.
In pre-conquest, there was a humane mode of punishment: even
if pecuniary, notwithstanding death penalty, there was no resort
to torture; there was no wanton cruelty
Bankoff on Punishment
How has the concept of punishment changed in the 19th
century?
- incarceration or imprisonment was introduced (leading
Bankoff to conclude that imprisonment was/became
the foundation of the penal system)
- move from corporal, capital punishment to
imprisonment what did this mean to the society? What
were the effects? Note: shift in almost all aspects with
the introduction of prisons as foundation or primary
mode of punishment)
- to illustrate: the corporal punishment by beating and
the capital punishment by firing squad, garrote or
hanging did not need places of detentions to maintain
prisoners for long periods; nor was there need of
personnel, and other basic needs such as food, and
also facilities in prison system.
- The 1887 Penal Code provided for an increase in
penalty for 6 years or more.
LAW 115: LEGAL HISTORY
62
- The ideology of work also came about by the
recognition of incarceration as mode of punishment
- Character of the warden: How did this affect the
criminal justice system?
People v Echegaray: we see from the case that death penalty
may be imposed if conditions in the Constitution are met. Death
penalty per se, however, is not considered cruel and unusual.
Capital Punishment
- Spanish Period: burning, decapitation, drowning
- From 1840-1857: there were 1,703 death sentences
with 46 actual executions. Some of those who were
executed were Gomez, Burgos and Zamora, J. Rizal,
Magat Salamat among others.
- American Period: adopted the provisions on the
Spanish Penal Code; treason, murder, rape, robbery
with homicide, parricide, brigandage, and sedition
meted out death penalty
- Japanese Occupation: extra-judicial executions were
widely practiced; this was one reason why no
documents were recorded.
- Marcos Period: (a) death penalty as deterrence to
crimes. Note Tadiar’s point on deterrence: not the
weight of penalty that acts as deterrence but the
certainty and celerity; (b) capital crimes punishable by
death penalty increased t 24, some of which include
arson, subversion, hijacking, illegal possession of
firearms; there were 19 executions which took place
before Martial Law and 12 executions during Martial
Law. [e.g. Jose et al who gang-raped dela Riva in 1972;
Marcelo San Jose by electrocution; Sen. Benigno Aquino
was also sentenced to death penalty during Martial Law
but was not executed]
- Post-Martial Law Period: death penalty did not come to
be imposed until the enactment of the Heinous Crimes
Act. (a) Ramos Administration: R.A. 7659 – 46 crimes
were covered by death penalty. (b) Estrada
Adminisration: Leo Echegaray in Feb. 1999 and 6
others were executed by lethal injection, ironically,
crime rate increased in 1999.
Bankoff’s article on Courts
• It provided the basic structure of the legal system in
the late 19th century
• Legal profession requirements: pay attention to the
abogadillos. Who were abogadillos then? Even today
notwithstanding the increase in aspirants to the legal
profession, there are still places in the country where
one cannot find able legal counsels; hence the resort to
legal assistants or abogadillos
• Note the summary of reforms and measure for their
success that were pointed out in the article
• Delay in the disposition of cases
• Focus on Special Courts: (a) distinction of courts based
on race, Filipinos and the Spaniards, (b) segregation in
4 courts namely: ecclesiastical, military, Chinese and
merchant courts. (Today, we also have special courts
like the Sandiganbayan and the Court of Tax Appeals)
• Mode of Dispute Resolution: some disputes were
resolved in quasi-judicial administrative agencies.
Some other modes of dispute resolution today would
include mediation, arbitration
A2010
Point: Even facts, some historical facts may be subjected to
different interpretation
Recall the cases discussed: Echegaray, Mirpuri, Fabre,
Limsiongco etc.
Questions:
• What are the examples of the use of history in law?
• What is the importance of the use of history in law?
Again recall the cases and determine: What were those cases
where history did have material importance to the disposition of
the dispute in the cases?
Estrada v Escritor: note the importance of historical facts as
evidence. And also historical arguments presented
Today: Situation of Constitutional Amendment
There is a petition filed in the SC for certiorari re ComElec denial
of petition by invoking Santiago v. ComElec. Also House
Resolution 1230 proposing amendments to the Constitution:
Presidential to Parliamentary, Federal in 10 years, and, Lifting of
some economic restraints among others.
Jaraula: [1] Procedural. ¾ vote joint based on intent of
Constitutional Commission. [2] Substantive.
presidential to parliamentary, federal government in 10
years, and, lifting of some economic restraints.
Gordon: Procedure is as important as substantive. (Looking at
history and the was Constitutional change was done,
only 1935 followed the constitutional process more or
less.) Today is the time to act on changes in the proper
way.
Justice Mendoza: [1] Ideal is Constitutional Convention since the
extent of the changes in House Resolution 1230
involves full discussion and also in order to avoid
partisan interests. [2] How about the problems as to
cost? Constitutional amendment is worth putting it off
in the meantime until we have funds. No one has
argued in a convincing manner that changes to the
Constitution are urgent.
Noting the importance of history:
[1] Importance of Legislative history (e.g. Record of
Constitutional Commission.
[2] History in terms of the development of Constitution in the
Philippines

Conclusion of the Course

Relating the Tushnet’s article, Quietly Ignoring Facts,
Examining History