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The IBP Journal

INTEGRATED BAR OF THE PHILIPPINES

Board of Editors
ROAN I. L IBARIOS
Editor-in-Chief

EDUARDO A. L ABITAG
Managing Editor

D ANILO L. C ONCEPCION
F LORIN T. H ILBAY
J AIME G. H OFILEA
M ARIO C.V. J ALANDONI
CONCEPCION L. J ARDELEZA
N ASSER A. M AROHOMSALIC
O SCAR G. R ARO
CARMELO V. S ISON
AMADO D. V ALDEZ

O LIVER B. S AN A NTONIO
V INCENT P EPITO F. Y AMBAO , J R .
Associate Editors

F ROILAN A. M ONTERO
Editorial Assistant

V IVIAN C. C APIZNON V ICMUND Q. C AMACHO


Staff Layout/Design

VOLUME 34 NUMBER 2 (OCTOBER 2009)


CONTENTS

A Survey of Problems in the Law


of Treaties and Philippine Practice
Merlin M. Magallona ...................................................................................... 1

The Overseas Absentee Voting Act


Law & Jurisprudence
Danilo L. Concepcion ..................................................................................... 21

Rawlss Theory of Justice and its Relevance


in Adjudication: Nakedness in the Pursuit
of What is Fair
Oscar G. Raro................................................................................................. 38

Individualism as Mood:
Preliminary Thoughts on the Emergence
of the Rhetoric of Liberalism
Florin Ternal Hilbay...................................................................................... 57

Raising Medical Jurisprudence


from its Death Bed
Rustico T. De Belen ........................................................................................ 75

Exemption on Docket Fees


for Selected Labor Cases
on Certiorari and Appeal
Solo V. Tibe ..................................................................................................... 87

Survey of 2008 Court Decisions


on Property and Land Registration
Eduardo A. Labitag ....................................................................................... 96
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Synopsis
(The Articles in this Issue)

International law expert Merlin M. Magallona revisits the age-old debate


on the distinction between treaties, executive agreements and international
agreements in A Survey of Problems in the Law of Treaties and Philippine Practice and
discusses how varied interpretations of these instruments appear in Philippine
jurisprudence. He then proceeds to dissect how conflicts in the application of
international obligations and municipal law are resolved, citing the Gonzales vs.
Hechanova and Reyes vs. Bagatsing rulings of the Supreme Court. Magallona then offers
a critique of two landmark decisions involving international law issues: Nicolas vs.
Romulo, which touched on the validity of the Visiting Forces Agreement (VFA) between
the Philippines and the United States, and Taada vs. Angara, which delved on the
repercussions of the World Trade Organization Agreement on Philippine sovereignty.
In Nicolas, Magallona concludes that the theory relied on by the ratio decidendi of
Nicolas that the VFA is simply an implementing agreement of the main RP-US Mutual
Defense Treaty (MDT) and thus derives its status from the MDT emerges is a fallacy.
In criticizing Taada, meanwhile, the author cites as absurd and ironic the
pronouncement that norm-making by States is a medium of derogation of the very
sovereign powers expressed in the process of the development of international law
by means of treaties.

Danilo L. Concepcion presents the need to have a clearly-defined application


of the residency requirement of Republic Act 9189 in The Overseas Absentee
Voting Act: Law & Jurisprudence. He argues that the definition of what constitutes
a resident for absentee voting purposes is the biggest obstacle to greater
participation of overseas Filipinos in the electoral process. Concepcion highlights
the potential of this sector, as they constitute roughly ten percent of the entire
population and overseas Filipinos enjoy massive economic clout because of their
billion-peso remittances every year.

In Rawlss Theory of Justice and Its Relevance in Adjudication: Nakedness in the Pursuit
of What is Fair, Oscar G. Raro first lays down the two important principles of John
Rawlss theory of justice. One, that each person is to have an equal right to the
most extensive basic liberty compatible with a similar liberty for all, and second,
social and economic inequalities are to be arranged so that they are both reasonably
expected to be to everyones advantage, and attached to positions and offices open
to all. Raro subsequently transposes these philosophical principles and deftly applies
them to recent landmark Supreme Court decisions on liberties, namely, Senate of the
Philippines vs. Ermita, David vs. Macapagal-Arroyo and Estrada vs. Escritor.

Rustico T. de Belens Raising Medical Jurisprudence from its Death Bed strives
to update the legal professions outlook of the interesting field that intersects medicine
and law. He offers a broad definition of medical jurisprudence as dealing with the
laws and jurisprudence in medical education, medical regulation and medical practice,
including the appreciation and application of science and technology in the court
system and the protection and promotion of rights of all stakeholders in the health-
care delivery system, thus expanding the concept to fit both modern-day legal and
medical realities.

In Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of


Liberalism, Florin Ternal Hilbay posits that the confluence of printing-associated
developments in human history, particularly during the Middle Ages, had a profound
effect on mans reconfigured sense of self, because printing abetted the
popularization of such deeply personal human activities as reading and writing, forms
of meaning making that are intrinsically individualistic. He points to an irony that
while the production of knowledge through printing expanded the sense of community,
it also deepened the sense of individualism.

Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal by
Solo V. Tibe highlights the challenges the labor sector faces in prosecuting cases
on appeal with respect to prohibitive docket fees. He proposes exemptions for certain
groups of workers, and suggests that the Supreme Court revisit the rule on these
types of fees.

Lastly, Eduardo A. Labitag presents a comprehensive summary of new


jurisprudence in Survey of 2008 Court Decisions on Property and Land Registration.
A Survey of Problems in the Law
of Treaties and Philippine Practice
Merlin M. Magallona*

I. Treaties in Philippine Law

1. Our immediate interest in treaties lies in the juridical fact that, upon
compliance with constitutional requisites, they become part of Philippine law. In
the language of the Treaty Clause of the Constitution, it comes as a mandate that:

No treaty or international agreement shall be valid and effective


unless concurred in by at least two-thirds of all the Members of the Senate.1

The Treaty Clause in the 1935 and 1973 Constitutions uses solely the term
treaty.2 However, under the present Constitution the addition of international
agreement may raise the question as to whether this could refer to an instrument
other than a treaty, such as international contract. Two other provisions of the
1987 Constitution make mention of international agreement but they fail to clarify
this point. In requiring the concurrence of a majority of the Members of the Supreme
Court en banc taking part in the deliberation and voting, Section 4(2), Article VIII of
the Constitution deals with the constitutionality of a treaty, international or executive
agreement.3 Under Section 5(2)(a), Article VIII of the Constitution, the exercise of
the Courts power of review pertains to all cases of constitutionality or validity of
any treaty, international or executive agreement. These two provisions might have served
to contribute to ambiguity in making it appear that international agreement may
appear synonymous with executive agreement.

It is not implausible at all that international agreement in the Treaty Clause


of the present Constitution may be employed in departure from the classical subject-
matter of a treaty. Apart from treaty the term international agreement may
be interpreted to comprehend international agreements set out in Section 20, Article
VII of the Constitution, by which The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines. These loan and guarantee
agreements are of three categories: (a) agreement between the Philippine Republic
and another State, (b) agreement between the Republic and an international
organization, and (c) agreement between the Republic and a private international

* Professorial Lecturer, former Dean and Professor of Law, College of Law, University of the Philippines.
1 Article VII, Section 21.
2 Except that in Section 15, Article XIV, the 1973 Constitution speaks of international treaties or agreements.
3 Emphasis added.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 1


Merlin M. Magallona

banking corporation. The third category does not qualify under the international
law of treaties but may reasonably be accommodated in the Treaty Clause when
subsumed under international agreement, in which the other party is not a subject
or person of international law.

2. In one other respect, the Treaty Clause invites clarification. On its face the
constitutional text, quoted above, gives the impression that by Senate concurrence
alone a treaty becomes national law and as such becomes valid and effective. Note
that if a treaty, multilateral in character, has not yet entered into force by its own
provisions when Senate concurrence takes place, such concurrence by itself cannot
make it valid and effective as national law. A treaty that has not yet attained the
status of international law for the reason that on its own account it has not yet taken
effect cannot be transformed yet into national law. Since a treaty in that case by its
own force has not yet become binding international law, there is nothing that Senate
concurrence can transform into national law.

Senate concurrence by itself may be unable to make a treaty valid and effective
under the Treaty Clause because of the nature of the means by which the contracting
States express their consent to be bound by a treaty. If such consent is expressed by
means of exchange of instruments constituting a treaty, as permitted under Articles
11 and 13 of the 1969 Vienna Convention on the Law of Treaties, Senate concurrence
becomes the basis by which the treaty pursuant to its own provision will enter into
force. Most likely that exchange may take the form of an exchange of notes indicating
that the constitutional requirements of the parties have been completed. In which
case, it is the exchange of notes that determines the entry into force of the treaty,
much later than Senate concurrence. Or, in particular, in the case of the 1969 Vienna
Convention on the Law of Treaties, in addition to ratification, undertaken by Senate
concurrence, the treaty may provide that the instrument of ratification shall be
deposited with the Secretary-General of the United Nations. In which case, the
entry into force is based on the date of deposit of the thirty-fifth instrument of
ratification.4

Hence, there may be a significant time gap between Senate concurrence and
the moment the Philippines becomes a party to the treaty in question. In this light,
a treaty in the constitutional sense becomes valid and effective if two factors
converge, namely: (a) it has entered into force by its own provisions, and (b) it has
been concurred in by the Senate as required by the Treaty Clause.

3. Considering that the validity of executive agreements is not derived from


Senate concurrence, it is established that they are not governed by the Treaty Clause.
The opinion that prevailed in the Constitutional Commission that framed the present
Constitution was that the status of executive agreements should be determined by
the jurisprudence of the Supreme Court at the time, as exemplified by USAFFE

4 See Articles 82 and 84 of this Convention.

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A Survey of Problems in the Law of Treaties and Philippine Practice

Veterans Association vs. Treasurer of the Philippines5 in which the Court had affirmed that
Executive agreements may be entered into with other states and are effective even
without the concurrence of the Senate.

II. The Treaty Clause in Relation to the Incorporation Clause

In an obiter dictum, Secretary of Justice vs. Lantion6 declares as follows:

The observance of our countrys legal duties under a treaty is also


compelled by Section 2, Article II of the Constitution which provides
that [t]he Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of
the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations. Under the doctrine of
incorporation, rules of international law form part of the law of the land
and no further legislative action is needed to make such rules applicable
in the domestic sphere. This status of treaties springs from the
constitutional mandate itself.

This obiter appears to be of the view that conventional or treaty norms of


international law are part of the law of the land for the reason that they are as well
considered by the Supreme Court as generally accepted principles of international
law under the Incorporation Clause. This may be interpreted to mean that
the Incorporation Clause is a method by which both customary norms and
conventional rules of international law are internalized into Philippine law and become
part of it.

Kuroda vs. Jalandoni7 seems to have begun this line of thinking, in which the
Court dealt with the issue as to whether The Hague Convention and the Geneva
Convention on the rules on land warfare were binding on the Philippines although it
was not a party to them. In affirming that the norms of these Conventions form part of
and are wholly based on the generally accepted principles of international law and
were therefore binding on the Philippines as part of the law of the nation under
the Incorporation Clause, the Court appeared in fact to have given primacy to treaty
rules as the content of the Incorporation Clause, as follows:

Such rules and principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the conventions embodying them
for our Constitution has been deliberately general and extensive in its

5 105 Phil. 1030 (1959). See also Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 35 (1961) and Commissioner
of Internal Revenue vs. John Gotamco & Sons, Inc., 148 SCRA 36 (1987)
6 G.R. No. 139465, January 18, 2000.
7 83 Phil. 171 (1949).

VOLUME 34 NUMBER 2 (OCTOBER 2009) 3


Merlin M. Magallona

scope and is not confined to the recognition of rules and principles as contained
in treaties to which our government may have been or shall be a signatory.8

An alternative approach lies in characterizing the Hague and the Geneva norms
as customary international law and in their application as such, not as treaty rules of
the said Conventions. As customary norms or general international law they
acquire the status of generally accepted principles of international law under the
Incorporation Clause.

Recall that the international legal order maintains two principal sources of
law: international convention or conventional international law, and international
custom or customary international law. Their juridical character keeps them distinct
and separate: whereas international convention binds only States that are parties to
the convention or treaty, international custom is binding on all States.

In providing the modalities for the internationalization of these two sources


of international law into Philippine law, the constitutional framework is structured
such that each is assigned its own entry point by which it becomes part of the law of
the land; the Incorporation Clause for customary norms and the Treaty Clause for
the conventional or treaty rules. By the juridical nature of these sources, the entry
points or methods of entry are not interchangeable. Treaty rules as such cannot be
subsumed under the Incorporation Clause since the Constitution provides a
distinctive method in the Treaty Clause for transforming a convention or treaty into
national law. It is absurd to say that treaty rules without the benefit of Senate
concurrence may assume a binding character as national law by reason of the
Incorporation Clause. First, as treaty rule it does not have the status of international
law with respect to the Philippines. Secondly, by reason of the restricted binding
character of treaties it may not qualify as a generally accepted principle of
international law, plus the fact that as a treaty rule it is subject to reservations,
termination and withdrawal of State parties. Hence, by its nature it is not binding
on all States. Most likely the notion that a treaty rule becomes national law by
virtue of the Incorporation Clause comes about after the treaty itself of which it is a
part has already been concurred in by the Senate. On account of concurrence, the
treaty rule becomes valid and effective as national law under the Treaty Clause.
At such time, the claim that it is part of the law of the land under the Incorporation
Clause is indeed a plea that it be made national law twice: in the first instance,
through the Treaty Clause and, later, under the Incorporation Clause.

However, the line of thinking represented by Kuroda has persisted. In Agustin


vs. Edu9 the entire Vienna Convention on Road Signs and Signals, as ratified by the
Philippines in Presidential Decree No. 207, is described as impressed with the
character of generally accepted principles of international law under the
Incorporation Clause. Incredibly, this implies that the whole Convention is a

8 83 Phil. 171, at 178. Emphasis added.


9 88 SCRA 195 (1979).

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collection of general principles as customary norms, in the light of the understanding


that principles as used in the Incorporation Clause mean norms of general character.
In the usage by the Chamber of the International Court of Justice in the Gulf of
Maine Case, principles clearly mean principles of law, that is, they also include
rules of international law in whose case the use of the term principles may be
justified because of their more general and more fundamental character.10 With
Agustin, one is likely to be bemused by the impression it may convey that road signs
and signals are now to be regarded as general principles of law. Just the same, it
serves no purpose to make the Convention part of the law of the land twice, both
under the Incorporation Clause and the Treaty Clause.

Marcos vs. Manglapus11 makes reference to the right to return to ones country
under Article 12(4) of the International Covenant on Civil and Political Rights, of
which the Philippines at the time was already a party. This right, according to the
Court, is not any of the rights specifically guaranteed in the Bill of Rights of the
Constitution which deals only with the liberty of abode and the right to travel.
Marcos goes on to say that nevertheless it is our well-considered view that the right
to return [to ones country] may be considered as a generally accepted principle of
international law and, under [the Incorporation Clause of] our Constitution, is part
of the law of the land. In making this affirmation the Court did not seem to be
conscious of the fact that at the time the International Covenant which embodies
the right to return to ones country had already formed part of national law by
virtue of the Treaty Clause. At any rate, Marcos underscores the problematic outlook
that a treaty norm becomes national law by reason of the Incorporation Clause,
together with the fact that recourse to the Incorporation Clause is needless as revealed
by the facticity of the relevant cases.

We may try to interpret these cases in the light of the doctrine of dual character
of international-law norms. In the Nicaragua Case,12 the International Court of Justice
tells us that customary international law continues to exist and to apply, separately
from international treaty, even where the two categories of law have an identical
content. A customary norm may be codified into a treaty or convention and yet it
maintains its separate existence and applicability as such. Rules in a multilateral
treaty may develop into customary norms by means of general practice accepted as
law on the part of a great number of States, and thus assuming duality, i.e., they
remain binding as treaty rules even as they become customary norms.13

Is there any discernible intent in the aforementioned cases that the duality
doctrine is the underlying assumption? Whatever might have been the intended
operative principle, of supreme importance is that in the factual context of Lantion,

10 ICJ Reports, 1984, p. 246, para. 79.


11 177 SCRA 668 (1989).
12 Concerning Military and Paramilitary Activities In and Against Nicaragua, ICJ Reports, 1986, para. 179.
13 See North Sea Continental Shelf Cases, ICJ Reports, 1969, para. 73.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 5


Merlin M. Magallona

Agustin and Marcos, the principle of law involved in the controversy has already become
part of national law under the Treaty Clause, making the subsequent application of
the Incorporation Clause in the effort to make it part of the law of the land again a
senseless exercise.

III. Treaties in Relation to Statutory Law

Guerreros Transport Services Inc.14 tells us that [a]treaty has two (2) aspects as
an international agreement between states and as municipal law for the people of
each state to observe. As municipal law, Abbas vs. Commission on Elections15 informs
us, a treaty would not be superior to . . . an enactment of the Congress of the
Philippines, rather it would be in the same class as the latter. This parity principle
has been enlarged to apply to rules of international law in general. Lantion,16 Philip
Morris17and Mighty Corporation18 have a common formulation:

The fact that international law has been made part of the law of the land
does not pertain to or imply the primacy of international law over national
or municipal law in the municipal sphere. The doctrine of incorporation,
as applied in most countries, decrees that rules of international law are
given equal standing with, but are not superior to, national legislative
enactments.

What invites clarification is in case of irreconcilable conflict, which will take


precedence, treaty or statute? Obviously, the approaches to resolve the conflict are
themselves conflicting, resulting in the derogation of the precedential principle. The
principles governing these approaches lack coherence and consistency; altogether
they may be in bad need for unification within a more comprehensive juridical frame.

1. Abbas19 employs the later-in-time principle or les posterior derogat priori. its
obiter holds:

Assuming for the sake of argument that the Tripoli Agreement is a binding
treaty or international agreement, it would then constitute part of the
law of the land. But as internal law it would not be superior to R.A. No.
6734, an enactment of the Congress of the Philippines, rather it would
be in the same class as the latter. . . . Thus, if at all, R.A. No. 6734 would
be amendatory of the Tripoli Agreement, being a subsequent law . . . .20

14 Guerreros Transport Services, Inc. vs. Blaylock Transportation Services Employees Association-Kilusan, 71 SCRA 621, 629
(1976).
15 179 SCRA 287 ( 1989).
16 G.R. No. 139465, January 18, 2000.
17 224 SCRA 576 (1993)
18 434 SCRA 473 (2004)
19 Supra, note 15.
20 Id., at 294. Emphasis added.

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The sense of this obiter implies that the later-in-time principle is integral to the
parity relation of the treaty and the statute, comparable to that of two legislative
enactments on the same subject-matter but are in contradictory terms. The
contradiction is deemed to be resolved by the repeal or amendment of the earlier
enactment by the later one as the legislative intent.

While the later-in-time principle may prove to be a practicable legal formula


with respect to legislative enactments, in regard to treaty-statute relation the
consequences of applying this principle will have no bearing on the treaty as an
international agreement between States Parties. If the Philippines is involved as a
party to such a treaty, in the international plane its rights and obligations vis-a-vis the
other parties will remain unaffected by its unilateral legislative enactment. Under
the international law of treaties, the Philippines cannot justify its failure to comply
with treaty obligations by invoking its Constitution or laws, in particular the legislative
enactment in question.21

Besides, the operation of the later-in-time principle appears to be mechanical


in complete disregard of the substantive content of either the treaty or the statute.
It is likely that a later terrorism statute providing for some investigation procedures
akin to inhuman or degrading treatment may be made to prevail over an earlier
human rights treaty solely by reason of their temporal sequence.

2. Quite incompatible with the later-in-time principle or lex posterior derogat


priori is the following ruling pursued in Philip Morris22 and Might Corporation:23

Following the universal acquiescence and comity, our municipal law


on trademarks regarding the requirement of actual use in the Philippines
must subordinate an international agreement inasmuch as the apparent
clash is being decided by a municipal tribunal . . . .

This appears to be a more specific application of a general formula derived


from Lantion:

In a situation, . . . where the conflict is irrencilable and a choice has to be


made between a rule of international law and municipal law, jurisprudence
dictates that municipal law should be upheld by the municipal court . . .
for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances.24

21 Article 27 of the 1969 Vienna Convention on the Law of Treaties provides: A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty . . . .
22 Supra, note 17.
23 Supra, note at 18.
24 Supra, note 16, at 34.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 7


Merlin M. Magallona

And, yet, so incongruously, this formulation arrives at the following


conclusion:

Accordingly, the principle lex posterior derogat priori takes effect a treaty
may repeal a statute and a statue may repeal a treaty. . . .25

Two contradictory principles find themselves as bedfellows in the same ponencia


infact in the same paragraph. The first one upholds the supremacy of statutory or
municipal law as a source of law, lex superior derogat inferior. By its nature as a distinct
source of law a statute always prevails over a treaty rule. Whereas in the second
lex posterior derogat priori the later-in-time takes precedence; in which case the statutory
or municipal law prevails only when it is enacted later than the treaty, assuming
their conflict to be irreconcilable.

3. Earlier, the primacy of statutory law vis-a-vis the treaty is expressed in Ichong
vs. Hernandez.26 Having in mind the claim that the National Retail Trade Act was in
breach of the Treaty of Amity with China, Ichong has advanced the view, forming
part of its ratio decidendi, thus:

But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law . . .,
and the same may never curtail or restrict the scope of the police power
of the State . . . . 27

This is to be distinguished from the later-in-time principle in that it is silent on


whether the earlier statutory law would be subject to qualification or amendment
by a subsequent treaty.

When Ichong goes on with the thesis that a treaty may never curtail or restrict
the scope of the police power of the State, it may have shifted to lex superior derogat
inferiori, i.e., that the statute as a source of law with its inherent police power stands
superior to the treaty. This shift is of the assumption that a treaty may not qualify
as instrument of police power.

4. In Gonzales vs. Hechanova,28 the issues bearing on statute-treaty relation are


brought into a larger constitutional frame for the first time in Philippine jurisprudence
through the application of the Supreme Courts power of judicial review, and are
provided clear constitutional basis.29 Gonzales deals with the validity of what are

25 Id.
26 101 Phil. 1156 (1957).
27 Id., at 1163.
28 9 SCRA 230 (1963).
29 In this case, judicial review was provided in section 2, Article VIII of the 1935 Constitution. In identical text
it is now provided in Section 5(2)(a), Article XVIII of the present Constitution, except with respect to treaties,
international or executive agreement.

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assumed to be executive agreements authorizing the importation of rice for the


consumption of the armed forces in apparent violation of the prohibition set forth
in two Republic Acts. Strictly on the relation of statutory law and executive agreement,
Gonzales resolves the main issue, as follows:

But, even assuming that said contracts may properly be considered as


executive agreements, the same are unlawful, as well as null and void,
from a constitutional viewpoint, said agreements being inconsistent with
Republic Acts Nos. 2207 and 3452. Although the President may . . .
enter into executive agreements without previous legislative authority, he
may not, by executive agreement, enter into a transaction which is prohibited
by statutes enacted prior thereto . . . . He may not defeat legislative
enactments that have acquired the status of law, by indirectly repealing the
same through an executive agreement providing for the performance of the very
act prohibited by said laws.30

On its rationale based on separation of powers, Gonzales further explains:

Under the Constitution, the main function of the Executive is to enforce


the law enacted by Congress. The former may not interfere in the
performance of the legislative powers of the latter, except in the exercise
of his veto power.31

While Gonzales refers to statutes enacted prior to the executive agreements,


by the nature of the principle of separation of powers, its rationale may justifiably
apply even if the statutes were enacted after the conclusion of the executive
agreements. Hence, the superior status of statutory law vis-a-vis the treaty will assert
itself without regard to the later-in-time principle.

What deserves special interest in Gonzales is the fact that while it insists that
the instruments in question are not treaties and, on this account, it affirms that
[t]he American theory to the effect that, in the event of conflict between a treaty and
a statute, the one which is the latest in point of time shall prevail, is not applicable to
the case at bar,32 the provision of the 1935 Constitution on judicial review which it
has applied in the case at bar pertains to treaty and not to executive agreement, with
the result that it necessarily implies that the executive agreements mentioned in
its statement of facts are subsumed under the term treaty as used in the said
constitutional provision it has applied. It declares:

As regards the question whether an international agreement may be


invalidated by our courts, suffice it to say that the Constitution of the

30 Id., at 242. Emphasis by the Supreme Court.


31 Id., at 242.
32 Id., at 242-243. Emphasis by the Supreme Court.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 9


Merlin M. Magallona

Philippines has clearly settled it in the affirmative, by providing in section


2 of Article VIII thereof, that the Supreme Court may not be deprived
of its jurisdiction to review, revise, modify, or affirm on appeal, certiorari,
or writ of error as the law or the rules of court may provide, final judgments
and decrees of inferior courts in (1) All cases in which the constitutionality
or validity of any treaty, law, ordinance, or executive order or regulation is
in question. In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but also,
when it runs counter to an act of Congress.33

It must be observed that in the judicial review clause of the 1935 Constitution,
as embodied in Gonzales, given above, the term treaty stands alone relatively, whereas
in section 5(2)(a), Article VIII of the present Constitution the pertinent text runs as
follows: any treaty, international or executive agreement. Apparently, in the sense
that Gonzales interprets the 1935 judicial review clause, as shown above, the use of
the term treaty in context embraces international agreement and executive
agreement. In the shift from executive agreement to treaty in the exercise of
the Courts judicial review on the rationale of separation of powers, the premise of
Gonzales appears to be that the Presidents power in the making of executive agreements
solely pertains to him, by which he interferes, defeats or indirectly repeals legislative
enactments that have acquired the status of law. In the case of treaties, however,
the decisive participation of the Senate in the ratification process in representation
of the legislature, eliminates the relevance of separation of powers as a constitutional
infirmity.

Nevertheless, Gonzales retains its significance in terms of the serious implications


arising from:

(1) It enthrones the supremacy of the legislative enactment over a treaty in a


specific constitutional context, i.e., in the interpretation of the judicial review clause
of the 1935 Constitution, in which statutory law becomes a standard of validity of a
treaty. Gonzales affirms: [o]ur Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter to an
act of Congress.34

(2) Statutory law as a source of law holds supremacy over a treaty on


constitutional ground, not on the temporal sequence of the later-in-time principle.

(3) Statutory law does not only prevail over a treaty with unspecified legal
effect; it renders a violative treaty null and void.

(4) Gonzales does away with the doctrine established in Abbas, Lantion, Philip
Morris, and Mighty Corporation that a treaty and a statute are in parity.

33 Id., at 343. Emphasis by the Supreme Court.


34 Id., Emphasis by the Supreme Court.

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(5) It may imply a new element in the interpretation of the Treaty Clause: a
treaty concurred in by the Senate shall be valid and effective as part of the law of
the land, provided it does not run counter to an act of Congress.

Gonzales has remained unstudied. It does not seem to have merited precedential
application. In the meantime, statutory law has strengthened its juristic status over
a treaty but without substantive explication, as shown in Lantion, Philip Morris and
Mighty Corporation: In a situation . . . where the conflict is irreconsilable and a choice
has to be made between a rule of international law and municipal law, jurisprudence
dictates that municipal should be upheld by the municipal courts . . . [f]or the reason
that such courts are organs of municipal law and are accordingly bound by it in all
circumstances . . . .35

IV. The Constitution and the Treaty

A. In Reyes vs. Bagatsing,36 the mayor of the City of Manila was on mandatory
injunction to issue a permit for a march and rally against the US military bases
towards the gates of the United States Embassy, in the absence of a clear and present
danger of a substantive evil that could justify the denial of a permit and the Supreme
Court finding no justified restriction to the exercise of free speech and the right of
peaceful assembly.

But the Court went further and introduced what it considered a novel aspect
of this case, which made it one of the first impression. This is addressed to the
prospect that had the context of violence the substantive evil sought to be avoided
by the clear and present danger test involved the premises of the US diplomatic
mission, Reyes would have justified the denial of the permit, declaring that If there
were a clear and present danger of any intrusion or damage, or disturbance of the
peace of the [diplomatic] mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point would be the
[U.S.] Embassy.

This view is of the assumption that the circumstances considered as the clear
and present danger of violence and disorder would constitute a violation by the
Philippines of its obligation as a receiving State under Article 22(2) of the Vienna
Convention on Diplomatic Relations. This provision states: The receiving State is
under a special duty to take appropriate steps to protect the premises of the
[diplomatic] mission against any intrusion or damage and to prevent any disturbance
of the peace of the mission or impairment of its dignity.

In dealing with the novel aspect of this case, Reyes takes the risk of
subordinating the fundamental freedoms of citizens guaranteed by the Constitution

35 Secretary of Justice vs. Lantion, supra, note 77.


36 125 SCRA 553 (1983).

VOLUME 34 NUMBER 2 (OCTOBER 2009) 11


Merlin M. Magallona

to the protection of the diplomatic premises of a foreign government, in consequence


implying that a treaty may stand over and above the Constitution if certain acts
committed in the protest rally and claimed to be in breach of an obligation under
that treaty are characterized by the clear and present danger test as substantive evil
of sufficient immediacy. In this context, Reyes clashes with the hierarchy of norms by
which the Constitution becomes the supreme standard of validity of rules in the
legal system. The infirmity of Reyes appears in bold relief in the light of the Supreme
Courts power of review by which the fundamental law is instituted as the ultimate
measure of constitutionality or validity of any treaty, international or executive
agreement.37

Disorder and violence may occur on the occasion of the exercise of free speech
and of peaceful assembly in which conduct and utterances outside the constitutional
protection may arguably be earmarks of substantive evil sought to be tested by the
clear and present danger principle, with the result that these acts may be characterized
as outside the shelter of constitutional protection and justifiably subject to
containment. But to expand the scope of substantive evil, so as to include the notion
that these acts constitute unlawful conduct by which the Philippines would violate
its special duty under the Vienna Convention on Diplomatic Relations, is to stand
on dubious ground. Reyes would justify the denial of permit to hold the protest
march and rally in fact the denial of the exercise of free speech and peacefully
assembly in order to avert a breach of treaty obligation on the part of the
Philippines, which Reyes would consider as a substantive evil.

Under the circumstances, it would be foolhardy for the foreign government in


question to make out a case of breach of treaty obligation on account of the
established concept that state responsibility in international law is based on acts of
State, not on acts of private persons who are in no way acting as organs or agents of
State. In the factual setting of Reyes, the conduct of the rallyists, private individuals
as they were, could not be attributed to the Philippines as a State. Hence, their acts
and the consequences thereof would not constitute a breach of special duty under
Article 22(2) of the Diplomatic Convention. The Philippines is not liable to pay
reparation for acts of private individuals. Reyes may approve the suppression of
conduct under the free speech and peaceful assembly guaranteed of the Constitution
only to discover that it has nothing to do with the responsibility of the Philippines in
international law: that the substantive evil is nowhere but in the misconception of
the relevant law.

The imagined breach of treaty obligation as the substantive evil may have
been conceived on the basis of misunderstanding as to the nature of obligation
stipulated in Article 22(2) of the Diplomatic Convention. It appears clear that the
duty in this provision is to take all appropriate steps. In the performance of this
duty, the Philippines does not act as a guarantor or insurer that no damage will be

37 Constitution, Art. VIII, sec. 5(2)(a).

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done on the diplomatic premises. It shall have complied with its duty if the Philippines
employed all the resources for the purpose within its means and has exercised all
the due diligence in protecting the premises but despite the occurrence in question
had caused the damage. Moreover, no absolute standard is required on the Philippines
as to what steps to take in compliance with this special date; this may be clearly
inferred from the word appropriate. At any rate, suppression of the right to free
speech and to peaceful assembly cannot be characterized as appropriate steps in
the protection of diplomatic premises. At worse, the Philippines may opt to pay
reparation or compensation for the damage; state practice on the said special duty
indicates that States may choose to pay compensation not out of legal duty but on an
ex gratia basis. Between derogation of human rights and payment of compensation,
would Reyes be suggesting that the government take the first alternative? Its a
choice too between the Constitution and a treaty, on which Reyes appears to have
preferred the latter.

Even in objective international law, the right to free speech and peaceful
assembly take precedence over a duty or a right in the inter se relations between the
sending State and the receiving State under the Diplomatic Convention. Universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinction is an obligation of Member States of the United Nations, binding
on both the Philippines and the United States,38 and thus they are subject to the
supremacy clause of the UN Charter in Article 103: In the event of a conflict between
the obligations of the Members of the United Nations under the present Charter
and their obligations under any other international agreement, their obligations
under the present Charter shall prevail.

Reyes recognizes the binding force of the Universal Declaration of Human Rights
(UDHR) on the Philippines but fails to identify its significance in the context of the
novel aspect of this case, as pointed out above, and instead upholds the special
duty under Article 22(2) the Diplomatic Convention over the UDHR provisions on
free expression and on peaceful assembly.39

In the Barcelona Traction Case, the International Court of Justice draws our
attention to two categories of international obligations:

In particular, an essential distinction should be drawn between the


obligations of a State towards the international community as a whole,
and those arising vis--vis another State in the field of diplomatic protection
[or inter se obligations]. By their very nature the former are the concern of
all States. In view of the importance of the rights involved, all States can

38 See Charter of the United Nations, Arts. 55 and 56.


39 Article 19 of the UDHR reads: Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive, and impart information and ideas through
any media and regardless of frontiers. Art. 20 of this Declaration provides: Everyone has the right to freedom
of peaceful assembly and association.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 13


Merlin M. Magallona

be held to have a legal interest in their protection; they are obligations


erga omnes.40

The Court gives examples of international obligations of erga omnes character,


thus: Such [erga omnes] obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person .41

In this formulation, the undertaking to respect human rights and fundamental


freedoms stands on a higher plane as erga omnes obligation than the inter se special
duty under the Diplomatic Convention.

B. Promulgated more than eight years after Bayan vs. Executive Secretary42 on the
constitutionality of the RP-US Visiting Forces Agreement (VFA), Nicolas vs. Romulo43
pursues further the defense of the VFA on the thesis that the United States
Government has recognized it as a treaty as required by the Constitution in Section
25, Article XVIII. Nicolas derives its rationale from two reasons:

(a) [T]he VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified
by the duly authorized representative of the United States government.

(b) The second reason has to do with the relation between the VFA
and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate . . . .

Clearly, . . . joint RP-US military exercises for the purpose of


developing the capacity to resist an armed attack fall squarely under the
provisions of the RP-US Mutual Defense Treaty. The VFA, which is the
instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Mutual Defense Treaty . .
. .44

Accordingly, as an implementing agreement of the RP-US Mutual Defense


Treaty, it was not necessary to submit the VFA to the US Senate for advice and
consent, but merely to the US Congress under the Case-Zablocki Act . . . .
It is for this reason that the US has certified that it recognizes the VFA as
a binding international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.45

40 ICJ Reports, 1970, para. 33.


41 Id., at para 34. Emphasis added.
42 342 SCRA 449 (2000).
43 G.R. Nos. 175888, 176051 and 176222, February 11, 2009.
44 Emphasis added.
45 Emphasis added.

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The first reason appears to be in justification of the claim in the letter of US


Ambassador Hubbard, which forms part of the record of the case, that even as the
VFA was concluded by the United States Government as an executive agreement, it
recognizes it as a binding commitment under international law and therefore it has
the effect of a treaty. Nicolas now says that the status of the VFA under the Case-
Zablocki Act proves further that the VFA as an implementing agreement of the
Mutual Defense Treaty is recognized by the United States Government as a binding
international agreement or treaty.

Truly, this point is a falsification of the object and purpose of the Case-Zablocki
Act. The most relevant provision of this law enacted by the US Congress on 22
August 1972 is Section 112b(a), which reads:

The Secretary of State shall transmit to the Congress the text of any
international agreement (including the text of any oral international
agreement, which agreement shall be reduced to writing), other than a
treaty, to which the United States is a party as soon as practicable after
such agreement has entered into force with respect to the United States
but in no event later than sixty days thereafter. However, any such
agreement the immediate public disclosure of which would, in the opinion
of the President, be prejudicial to the national security of the United
States shall not be transmitted to the Congress but shall be transmitted
to the Committee on Foreign Relations of the Senate and the Committee
on Foreign Affairs to the House of Representatives under an appropriate
injunction of secrecy to be removed only upon due notice from the
President. Any department or agency of the United States Government
which enters into any international agreement on behalf of the United
States shall transmit to the Department of State the text of such agreement
not later than twenty days after such agreement has been signed.46

It is plain that the whole range of international agreements of the United States
covered by the Case-Zablocki Act are those which are not treaties under Section 2,
Article II of the US Constitution.47 The fact that an international agreement as
exemplified by the VFA is transmitted to the US Congress on account of the
Case-Zablocki Act testifies to the fact that it is not a treaty.

The classification under this law is clear: an international agreement of the


United States is a treaty or not a treaty; if it is not a treaty, then it is required to be
transmitted to the US Congress by the Secretary of State under the Case-Zablocki
Act. Nicolas, however, introduces a distortion as follows:

46 1 USC 112b(a) 1976 ed., Supp. IV). Emphasis added.


47 This provides that the president shall have the Power, by and with the Advice and Consent of the Senate, to
make Treaties.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 15


Merlin M. Magallona

Notice can be taken of the internationally known practice by the


United States of submitting to its Senate for advice and consent agreement that are
policy making in nature, whereas those that carry out or further implement these
policymaking agreements are merely submitted to Congress, under the provisions of the
so-called Case-Zablocki Act, within sixty days from ratifications.48

Here, Nicolas implies that agreements of the United States that may be in the
nature of treaties are either policymaking agreements or implementing agreements,
in the process conjuring a non-existent classification of treaties into policy-making
and implementing treaties. It seems to be the sense of Nicolas that although they are
all regarded as treaties, only the latter are within the scope of the Case-Zablocki
Act. In the result, Nicolas utterly revises this law, apparently by way of forcing the
twisted interpretation that the VFA is a treaty under US law, even though it has
been concluded as an executive agreement.

The second reason advanced by Nicolas springs from the notion that the
requirement of the Constitution of 1987 for the United States Government to
recognize the VFA as a treaty has already been complied with. This had been
accomplished by the ratification of the Mutual Defense Treaty of 1951 (MDT) by
the two governments. It was concurred in by the Philippine Senate on 12 May 1952
and had the advice and consent of the US Senate on 20 March 1952. Thus the MDT
no doubt has the status of a treaty as established under the Constitution of both the
Philippine and the United States. On this fact, Nicolas constructs the thesis that the
VFA is simply an implementing agreement to the main RP-US Mutual Defense
Treaty, and therefore it partakes of the MDTs status as a treaty not only under
the Philippine Constitution but as well as under the US Constitution. By this magic
formula, the VFA becomes qualified under Section 25, Article XVIII of the Philippine
Constitution as an agreement recognized as a treaty by the other contracting State,
i.e., the United States.

The first count of absurdity in this thesis is that the compliance of the VFA
with the said constitutional requirement is attributed by Nicolas to the MDT which
was concluded almost fifty years before the case at bar came to the Supreme Court,
producing the intriguing consequence that the compliance in question was already
accomplished fifty years before the constitutional requirement of that compliance
came into being in fact about thirty-five years before the 1987 Constitution came
into existence. Surprisingly, under this thesis the VFA may have automatically become
a treaty under the US law, although it was concluded by the United States Government
merely as an executive agreement a theory belied by the US Constitution vis-a-vis
the Case-Zablocki Act.

On three counts, the VFAs connectivity with the MDT appears dubious at the
least. How the two agreements are related, even discounting the distance of about
forty-six years between them, is an issue properly addressed to the intention of the

48 Emphasis added.

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parties. Nicolas is unable to show any objective fact in the negotiation or the travaux
preparatoire of the MDT that the VFA had been contemplated by the parties as its
implementing treaty. Above all, the parties to the MDT do not manifest such an
intention in the textual composition of the said agreement. Nicolas may be of the
incredible assumption that the parties to the MDT, after more than forty years of
actual implementation, would still decide to conclude the VFA as an implementing
treaty of the MDT.

Under the circumstances, the relation between the VFA and the MDT as set
forth in Nicolas is an imputation to both parties of a contrived intent. As against
such imputation, the MDT does not indicate any need for an implementing treaty,
which Nicolas claims to have materialized as the VFA forty-six years later. On the
part of the Philippine Senate in particular, its proceedings on the VFA demonstrate
no connection with the MDT as a condition for its concurrence. It may be assumed
that the instrument of ratification executed by the President, together with his request
for concurrence by the Senate, did not deal with the VFA as an implementing treaty
of the MDT.

Moreover, the MDT provides for its own implementing mechanism and, for
this reason, does not need the VFA to implement its provisions. MDTs own means
of implementation may be read in its Article III, thus:

The Parties, through their Foreign Ministers or their deputies, will


consult together from time to time regarding the implementation of this Treaty
and whenever in the opinion of either of them the territorial integrity,
political independence or security of either of their Parties is threatened
by external armed attack in the Pacific.49

In a separate agreement, consisting of Exchange of Notes of 15 May 1958


between the US Ambassador Charles E. Bohlen and Philippine Secretary of Foreign
Affairs Felixberto M. Serrano, the means of consultation described in Article III of
the MDT, quoted above, has been institutionalized in the Philippine-United States
Council of Foreign Ministers. This Exchange of Notes has organized a permanent
Philippine-United States Mutual Defense Board.50 It stipulates that The purpose
of this Board is to provide continuing intergovernment machinery for direct liaison and
consultation between appropriate Philippine and United States authorities on military
matters of mutual concern so as to develop and improve, through continuing military
cooperation, the common defense of the two sovereign countries.51

Note that the intent of the Bohlen-Serrano Exchange of Notes is to


institutionalize an intergovernmental arrangement for the implementation of all

49 II Phil. Treaty Series 727, 728; 177 UNTS 133. Emphasis added.
50 III Phil. Treaty Series 717. Emphasis added.
51 Id., at 718. Emphasis added.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 17


Merlin M. Magallona

security and defense agreements on a continuing and permanent basis 52 As


confirmed by established practice of the two governments, both the MDT and the
VFA are subject to the decision-making and implementing procedures of the Foreign
Ministers Council and the Mutual Defense Board under the Bohlen-Serrano
Exchange of Notes.

In the light of these factual details, the theory relied on by the ratio decidendi of
Nicolas that the VFA is simply an implementing agreement to the main RP-US Mutual
Defense Treaty and thus it derives its status as a treaty from the MDT emerges as
a fallacy. The fact is that both the VFA and the MDT have a common implementing
agreement in the Bohlen-Serrano Exchange of Notes.

V. Treaties and Sovereignty

In Taada vs. Angara,53 the Supreme Court confronts the issue as to whether
the Agreement Establishing the World Trade Organization (WTO) contravenes the
Constitution, in particular provisions which embody the sovereign powers pertaining
to the national economy.54 As summarized by the Supreme Court, the petitioners
claim that the WTO Agreement, together with its relevant Annexes, unduly limits,
restricts and impairs Philippine sovereignty.55

In response, Taada introduces a theory that goes into the basis of its ratio
decidendi, declaring that while sovereignty has traditionally been deemed absolute
and all-encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, s a member
of the family of nations.56 Elaborating on this theory, Taada declares:

By their inherent nature, treaties really limit or restrict the


absoluteness of sovereignty. By their voluntary act nations may surrender
some aspects of their state power in exchange for greater benefits granted
by or derived from a convention or pact. After all, States, like individuals,
live with co-equals, and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of their otherwise
absolute rights . . . . The sovereignty of a State therefore cannot in fact
and in reality be considered absolute.57

52 Id., See supra note 42 and Annex A in III Phil. Treaty Series 717, at 718-720.
53 272 SCRA 18 (1997).
54 These provisions include section 19, Article II which states: The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos; section 10, Article XII, providing that In the grant of
rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference
to qualified Filipinos; and section 12, Article XII which says that The State shall promote the preferential use
of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them
competitive.
55 Supra, note 53, at 44.
56 Id., at 66.
57 Id., at 66-67.

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One absurd feature of this theorizing is that if the status of a treaty as an


inherent limitation to sovereignty is to be attributed to the WTO Agreement in a
case where its very constitutionality is in question, then what is to be resolved as an
issue in Taada appears to be already determined a priori in its premise, namely, a
treaty is a restriction on state sovereignty. Given the assumption that the WTO
Agreement is a restrictive attribute of Philippine sovereignty, the end-game is pre-
determined and comes inevitably: a treaty by its nature is a limitation to sovereignty
and this notion easily translates into the conclusion that the WTO Agreement as a
treaty cannot possibly be in contravention of the Constitution. Rather, it is the
Constitution as an embodiment of sovereignty that may be restricted by the WTO
Agreement!

Indeed, operating in the international sphere, the WTO Agreement prevails


over the Constitution; it provides in Article XVII(4) that Each Member shall ensure
the conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements. However, this logic is alien to
the context of national law, in which the very constitutionality of a treaty is under
attack in a domestic court in the exercise of its judicial review power vested expressly
by the Constitution.

Taada takes pain in pointing out that sovereignty of a state . . . cannot in fact
and in reality be considered absolute. In the context of international law, the notion
of absolute state sovereignty is nowhere; arguing against this notion is beating a
dead or better, non-existent juridical horse. In the international sphere, the
sovereignty of one State relates itself to a large number of sovereignties such that
there prevails a co-existence of sovereignties under conditions of independence.

By its theory of auto-limitation that it is in the nature of treaty that it operates


in derogation of sovereignty, Taada entraps itself in an absurdity: sovereignty realizes
its power by treaty-making which Taada takes as the means by which it derogates
itself. The capacity to conclude treaties in fact is the main modality that transforms
the formal sovereign powers of the State into real exchanges of political and economic
facilities and, in the collective interests of the international community, builds
framework of cooperation for resolving crises of global proportion. Treaties
constitute a fundamental process in the creation of norms of international law. It is
an irony that Taada implies that norm-making by States is a medium of derogation
of the very sovereign powers expressed in the process of the development of
international law by means of treaties.

It seems to be clear that when Taada deals with treaties vis-a-vis state sovereignty,
they are treated as operating in the international sphere. It employs the concept of
a treaty in the relations of States under objective international law, removing it from
the context of national law and transporting its application to the international plane.

The case at bar is in the nature of a constitutionality suit of the WTO Agreement
and, hence, the treaty in question must be contextualized in the regime of national
VOLUME 34 NUMBER 2 (OCTOBER 2009) 19
Merlin M. Magallona

law, not in the international sphere as Taada does. In this context, it is subject to
the standard of validity under the Constitution not under objective international
law as it operates in the international plane. Within domestic jurisdiction, a treaty
cannot in any way be transmogrified into an instrument in derogation of Philippine
sovereignty as embodied in the Constitution. The supremacy of the Constitution is
pre-supposed in the nature of judicial review as applied in the case at bar, involving
as it does the determination that a treaty does not derogate the Constitution. The
confusion in Taada suggests a general guideline that the application of the concept
of a treaty, or simply its usage, must have the clarity of context. Certainly, a domestic
court cannot imbibe an outlook derogatory of the constitutional sovereignty from
which it derives its juridical status.

 

20 IBP JOURNAL
The Overseas Absentee Voting Act
Law & Jurisprudence
Danilo L. Concepcion*

Republic Act No. 9189 or The Overseas Absentee Voting Act of 20031 was
enacted to address the concern, quite clear in the deliberations of the Constitutional
Commission that drafted the 1987 Constitution, for thousands of Filipinos abroad
who wish to participate in Philippine elections but have not been given the opportunity
to do so because of the lack of an enabling statute. At the time of the drafting of the
constitution, there were about two million Filipino migrant workers.2 Today, their
number has ballooned to approximately ten percent of the population or about nine
million Filipinos, enough to constitute a political block that can make or unmake
politicians and affect the outcome of elections. These overseas workers have
remained Filipinos and have retained strong family ties in the Philippines. In fact,
most of them regularly return to the country to renew such relationships. The
truth, of course, is that for many of these citizens their decision to leave the country
is purely an economic decision, arising out of the need to seek greener pastures. It
is reasonable to assume that a large number of them, given the choice of working
abroad and a comparable local employment, would rather have stayed with family
and friends and enjoy life here. Outside their homeland, these Filipinos are exposed
to various stressful conditions, such as difficult employers or bosses, culture shock,
cold or unbearably hot weather, and homesickness. Many of them are even abused
and maltreated.

It is also a reality that migrant workers have become a powerful lobby group.
Given the need to organize themselves for self-protection and self-promotion,
overseas workers have become a loud voice with connections to local non-government
organizations, party-list groups, and perhaps even international organizations. It
also goes without saying that the sheer amount of money that they remit to the
country is a source of political leverage, especially considering that such remittances
have practically kept the economy afloat during repeated cycles of economic downturn.
In recognition of these contributions, and of the fact that they have remained Filipinos,
the Constitutional Commission saw it fit to mandate the legislature to enact an
absentee voting law.

* Professor, College of Law, University of the Philippines; Bar Reviewer in Civil Law, U.P. Law Center.
Professor Concepcion regularly participates in the annual Migrant Workers Conference in Japan.
1 An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes.President Gloria Macapagal-Arroyo signed the bill on
February 13, 2003. It was published on February 16, 2003 in the Today and The Daily Tribune newspapers.
2 II Record Of The Constitutional Commission (19 July 1986).

VOLUME 34 NUMBER 2 (OCTOBER 2009) 21


Danilo L. Concepcion

The original proposal for the directive to the Congress to pass an absentee
voters statute, made by Commissioner Florenz D. Regalado, was worded as follows:

The National Assembly shall prescribe a system which will enable


qualified citizens temporarily absent from the Philippines or place where
they are registered to cast their votes.3

After some deliberations among the commissioners, the proposed section was
amended, and it now appears in the present Constitution as Article V, Section 2,
first paragraph:

The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.

The present Constitution was ratified in 1987 and it took Congress more than
a decade to implement Article V, Section 2, finally passing an enabling legislation
only in 2003. We have had the experience of two elections under the Absentee
Voters Act, the first in 2004 and the second in 2007, and so far, reports indicate that
the participation of Filipinos abroad in the system has been quite dismal. As per the
transcript of the proceedings of the Joint Congressional Oversight Committee on
Absentee Voting,4 during the 2004 elections there were only 359,295 registrants
out of which only 233,092 actually voted. This is way below the number of qualified
Filipino absentee voters. The proceedings of the oversight committee also showed
that the Department of Foreign Affairs spent a total of PHP112.71 million for the
entire process. During the 2007 elections, the Commission on Elections was able to
register another 142,665 absentee voters, still way below potential.5

I submit that the reasons for this failure are shared among the Constitutional
Commission, the Congress and the Supreme Court. The failure of the Constitutional
Commission can be traced to the lack of a clear guidance as to how the residence
requirement in the Article on suffrage should be construed. On the part of the
Congress, what it should have done was to simply exempt absentee Filipinos from
the residence requirement of Article V which provides:

Suffrage may be exercised by all citizens of the Philippines not


otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year, and in the
place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

3 Id.
4 Session of December 13, 2004.
5 See Mission: Get Overseas Pinoys To Register & Vote, available at http://www.abs-cbnnews.com/print/34577,
last visited on June 23, 2009.

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It is within the powers of Congress to eliminate the residence requirement for


non-resident Filipino voters, considering the language of the Constitution and the
vague intention of the members of the Constitutional Commission. With respect to
the Supreme Court, what it should have done was to declare Section 5(d) of Republic
Act No. 9189 as unconstitutional as it effectively bars Filipino citizens who are
permanent residents of other countries from participating in the system and thus
exercising their constitutional right.

Constitutional Commission
It is important to point out that even during the deliberations among the
members of the Constitutional Commission, there was not a clear consensus as to
whether the residence requirement for absentee voting should apply. This may be
gathered from the following exchange between Commissioners Blas Ople and Joaquin
Bernas:

With respect to Section 1, it is not clear whether the right of suffrage,


which here has a residential restriction, is not denied to citizens temporarily
residing or working abroad. Based on the statistics of several government
agencies, there ought to be about two million such Filipinos at this time.
Commissioner Bernas had earlier pointed out that these provisions are
really lifted from the two previous Constitutions of 1935 and 1973, with
the exception of the last paragraph. They could not therefore have
foreseen at that time the phenomenon now described as the Filipino labor
force explosion overseas.

x x x x x x x x x

In the previous hearing of the Committee on Constitutional


Commissions and Agencies, the Chairman of the Commission on
Elections, Ramon Felipe, said that there was no insuperable obstacle to making
effective the right of suffrage for Filipinos overseas. Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are exposed
to embrace a more convenient foreign citizenship. And those who on
their own or under pressure of economic necessity here, find that they
have to detach themselves from their families to work in other countries
with definite tenures of employment. Many of them are on contract
employment for one, two, or three years. They have no intention of
changing their residence on a permanent basis, but are technically
disqualified from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 23


Danilo L. Concepcion

I, therefore, ask the Committee whether at the proper time they might entertain an amendment
that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than
merely a nominal right under this proposed Constitution.6 (italics supplied)

For purposes of interpreting the Constitution and Republic Act No. 9189, we
should bear in mind that there are three categories of Filipinos qualified to vote as
absentee voters:

1. Permanent residents or those who have transferred their residence


from the Philippines to another country;

2. Non-permanent residents or those who work outside the Philippines


for an extended period of time, and who usually return to the
Philippines after the expiration of their employment contract.

3. Transients.

If we analyze Commissioner Oples statement, we see that he is referring to


the first two categories of Filipinos and these are the overseas workers he seems to
have wished exempted from the residency requirement. Permanent residents are
those who adhered to their Filipino citizenship notwithstanding strong temptations
and are exposed to embrace a more convenient foreign citizenship. The other
group is composed of the non-permanent residents who find that they have to detach
themselves from their families to work in other countries with definite tenures of
employment. What he was asking the Constitutional Commission was to consider
a general amendment that will cover both categories and allow them to effectively
exercise their right of suffrage.

Commissioner Bernas response, however, was to stick to the settled


jurisprudence emphasizing the requirement of residence in the exercise of the right
of suffrage:

Certainly, the Committee will consider that. But more than just
saying that, I would like to make a comment on the meaning of residence
in the Constitution because I think it is a concept that has been discussed
in various decisions of the Supreme Court, particularly in the case of
Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of
residence in Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for


greener pastures, as the saying goes, to improve his lot and
that, of course, includes study in other places, practice of
his avocation, reengaging in business. When an election is
to be held, the citizen who left his birthplace to improve his
6 Id.

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lot may decide to return to his native town to cast his ballot,
but for professional or business reasons, or for any other
reason, he may not absent himself from the place of his
professional or business activities.

So, they are here registered as voters as they have the


qualifications to be one, and is not willing to give up or lose
the opportunity to choose the officials who are to run the
government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile
or residence has not forsaken him.

This may be the explanation why the registration of a voter in a


place other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.

In other words, residence in this provision refers to two residence


qualifications: residence in the Philippines and residence in the place
where he will vote. As far as residence in the Philippines is concerned,
the word residence means domicile, but as far as residence in the place
where he will actually cast his ballot is concerned, the meaning seems to
be different. He could have a domicile somewhere else and yet he is a
resident of a place for six months and he is allowed to vote there. So that
there may be serious constitutional obstacles to absentee voting, unless
the vote of the person who is absent is a vote which will be considered as
cast in the place of his domicile.7

We can gather from Commissioner Bernas statement that he wanted to


emphasize that the residence requirement is indispensable to the exercise of the
right of suffrage. This is why he stated that there may be serious constitutional
obstacles to absentee voting. For him, the only way to avoid the constitutional
obstacle is if the vote of the person who is absent is a vote which will be considered
as cast in the place of his domicile. This position is quite absurd because, as members
of the Constitutional Commission, they as a body have the power to entirely eliminate
the residence requirement for absentee voters. Commissioner Ople was a bit subtle
in sarcasm when he replied to Commissioner Bernas:

Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should
enjoy the right of suffrage, at least a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that when this Article of
the Constitution explicitly and unequivocally extends the right of suffrage
to Filipinos abroad, this will call for a logistical exercise of global

7 Id.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 25


Danilo L. Concepcion

proportions. In effect, this will require budgetary and administrative


commitments on the part of the Philippine government, mainly through
the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more
extensive elaboration of this mechanism that will be put in place to make
effective the right to vote. Therefore, seeking shelter in some wise jurisprudence
of the past may not be sufficient to meet the demands of the right of suffrage for
Filipinos abroad that I have mentioned.8

Clearly, what Commissioner Ople had in mind was a constitutional provision


that dispensed with the limitations of the jurisprudence Commissioner Bernas cited.
To follow the jurisprudence would have made it impossible for permanent residents
to exercise their right of suffrage in a jurisdiction in which they are no longer residents
even if they retained their citizenship in such a jurisdiction. This is why
Commissioner Ople was hinting about a proposal that goes beyond the wise
jurisprudence of the past.

More importantly, what Commissioner Bernas recited as jurisprudence is not


really appropriate to the situation of permanent residents. The case of Faypon vs.
Quirino9 and its more recent reiteration, Romualdez-Marcos vs. Commission on Elections10,
refer to those situations in which the status of the citizen as a resident is unquestioned.
The only question in these cases is whether the citizen should be allowed to vote in
one of the electoral districts in the country, even if he had resided in some other
place. Therefore, the voter in question is inside the country and not voting in absentia.
On the other hand, an absentee voter is, by definition, a citizen who is voting outside
his country. The problem with respect to permanent residents who wish to vote in
absentia is precisely that under settled jurisprudence, they are disqualified already
from voting in the Philippines because they have lost one of the qualifications for
voting, i.e., residence.

As I have said earlier, there is nothing in the powers of the Constitutional


Commission from preventing its members from entirely eliminating the requirement
of residence insofar as permanent residents are involved. We can only surmise that
the failure to do so is partly because of the inability to distinguish among the different
categories of potential absentee voters under the constitution. By way of example,
in the case of Filipino contract workers or those who have not been granted permanent
resident status in other countries, there is no question that they are qualified voters
because they have never lost their residence here in the Philippines. Their absence
from the Philippines is wanting in animus manendi. For this category of Filipinos,
what is needed is simply a law that grants the Commission on Elections the authority
to go outside the country and collect the votes of these absentee voters. This is

8 Id.
9 G.R. No. L-7068, December 22, 1954.
10 248 SCRA 300 (1995). The Court held: For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with
domicile.

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because they do not suffer from any of the disqualifications from exercising their
right to vote. The only problem is that, since they are outside the country on the
day of the elections and there are no authorized polling places beyond the Philippines,
then they cannot vote.

Interestingly, one of the more perceptive members of the Constitutional


Commission, Christian Monsod, declared that the reason we want absentee voting
to be in the Constitution as a mandate to the legislature is that there could be
inconsistency on the residence rule if it is just a question of legislation by Congress.
So, by allowing it and saying that this is possible, then legislation can take care of the
rest.11 Unfortunately, even this statement was made in relation to a query made by
another commissioner with regard to transients12 and has little to do with the situation
of permanent residents in other countries.

Despite the substantial amount of time spent on the matter, ultimately the
Constitutional Commission was not able to come up with an unequivocal position
on the status of permanent residents. This explains the bland phraseology of Article
V which simply says Congress shall provide a system for absentee voting by qualified
Filipinos abroad. This is not necessarily bad. In fact, this generality in the text of
the Constitution is an opportunity for the legislature to be creative with its
constitutional mandate to recognize the right of Filipino citizens abroad to vote.

I submit that because the members of the Constitutional Commission


equivocated on the details of the proposed system for absentee voting, then the
Congress is given substantial latitude in crafting that system. This includes the
discretion to determine who among the categories of absentee voters are eligible to
participate in such a system. This is consistent with the text of the Constitution
itself which mandates the Congress to establish such a system. The assumption
here, of course, is that the system should be an effective one or one that truly
implements the rights of overseas workers to vote.

Republic Act No. 9189


In response to repeated clamors for the passage of an enabling act, the Congress
finally passed Republic Act No. 9189, making it available for implementation during
the 2004 synchronized elections. As one might expect, the statute was highly
controversial and the bone of contention focused on the qualifications for registration.
The relevant provisions of Republic Act No. 9189 provide:

11 I Records Of The Constitutional Commission (July 21, 1986).


12 Id. Mr. Regalado. Before I act on that, may I inquire from Commissioner Monsod if the term absentee voting
also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their
places of registration, for instance, in Mindanao, to cast their votes.
Mr. Monsod. I think our provision is for absentee voting by Filipinos abroad.
Mr. Regalado. How about those people who cannot go back to the places where they are registered.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 27


Danilo L. Concepcion

Section 4. Coverage.All citizens of the Philippines abroad, who are


not otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators and
party-list representatives.

Section 5. Disqualifications.The following shall be disqualified from


voting under this Act:

x x x x x x x x x

d) An immigrant or permanent resident who is recognized as such in


the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of
the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to
vote in absentia.

One can easily notice that Section 5(d) of the statute is a compromise. It is
clear from the text that immigrants or permanent residents are, by default, disqualified
from voting. However, by executing an affidavit which amounts to nothing other
than a formal promise to resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of registration, the citizen
is allowed to vote. What this means is that the Congress considered residence as an
indispensable requirement for voting, unmindful of the wide latitude given to it by
the Constitution. The affidavit, from Congress point of view, is the strategy by
which it seeks to circumvent the residence requirement of the Constitution. That
this is just the case is evident in the debates in Congress:

SENATOR ARROYO: Mr. President, this bill should be looked into in


relation to the constitutional provisions. I think the sponsor and I would
agree that the Constitution is supreme than any statute that we may
enact.

Let me read Section 1, Article V, of the Constitution, entitled


Suffrage. It says:

Section. 1. Suffrage may be exercised by all citizens of


the Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein
they propose to vote for at least six months immediately
preceding the election.
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Now, Mr. President, the Constitution says, who shall have resided
in the Philippines. They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the
original text of the bill will have any effect on this?

SENATOR ANGARA. Good question, Mr. President. And this has been
asked in various fora. This is in compliance with the Constitution. One,
the interpretation here of residence is synonymous with domicile.

As the gentleman and I know, Mr. President, domicile is the intent


to return to ones home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a resident
of the United States, for example, but has a clear intent to return to the
Philippines, will make him qualified as a resident of the Philippines under
this law.

This is consistent, Mr. President, with the constitutional mandate


that wethat Congressmust provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as


demanding physical presence, then there is no way we can provide for
offshore voting to our offshore kababayan, Mr. President.

SENATOR ARROYO . Mr. President, when the Constitution says, in


Section 2 of Article V, it reads: The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.

The key to this whole exercise, Mr. President, is qualified. In


other words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And residence is a
qualification.

I will lose votes here from permanent residents or so-called green


card holders, but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be party to something that would
affect or impair the Constitution.

x x x x x x x x x

SENATOR ANGARA. It is a good point to raise, Mr. President. But it is


a point already well-debated even in the Constitutional Commission of
1986. And the reason Section 2 of Article V was placed immediately
after the six-month/one-year residency requirement is to demonstrate
VOLUME 34 NUMBER 2 (OCTOBER 2009) 29
Danilo L. Concepcion

unmistakably that Section 2 which authorizes absentee voting is an


exception to the six-month/one-year residency requirement. This is the
first principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence


and I think this is so well-entrenched that one need not argue about it
residency has been interpreted as synonymous with domicile.

But the third and more practical reason, Mr. President, is, if we
follow the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas Filipino
who do not physically live in the country, which is quite ridiculous because
that is exactly the whole point of this exerciseto enfranchise them and
empower them to vote.13

We can see in this debate, in more emphatic language, something similar to


the earlier exchange between Commissioners Ople and Bernas. Just like
Commissioner Bernas, Senator Arroyo was more bound to the teachings of past
jurisprudence and therefore was more insistent on the residence requirement as it
appears in Article V, Section 1. On the other hand, Senator Angara, just like
Commissioner Ople, was less tradition-bound and was more interested in the practical
problem of finding ways to effectively allow permanent residents to vote. The
difference is that Commissioner Ople was apparently biased in favor of an outright
exemption of even permanent residents from the residence requirement, while
Senator Angara, true to his reputation as a good strategist, was trying simply to
accommodate the requirement by using the affidavit.

The result, of course, is Section 5(d) which, as was pointed out earlier,
disqualifies permanent residents (because they lack the residence requirement under
Article V, Section 1) but at the same time allows them to vote if they indicate their
intention to resume actual physical permanent residence. This is clearly a bad
compromise and the task of justifying it was left to Supreme Court in the case
below.

Macalintal vs. Commission on Elections


Immediately after the passage of Republic Act No. 9189, petitions were filed
before the Supreme Court questioning the constitutionality of the statute. Not
surprisingly, the challenge was primarily lodged against Section 5(d) of the statute,
on the ground that it violated the residence requirement of Article V of the
Constitution. In Makalintal vs. Commission on Elections14, the Supreme Court sustained
the constitutionality of Section 5(d). On the surface, this is well and good for
13 Transcript of the Senate Proceedings (October 1, 2002), 10-12.
14 405 SCRA 316 (2003).

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The Overseas Absentee Voting Act Law & Jurisprudence

permanent residents for they can now finally exercise the right of suffrage guaranteed
them under the Constitution. However, the basis of the decision might not be
sufficient to effectively allow them to truly participate.

The petition in Makalintal raised several issues. As summarized by the Supreme


Court:

Petitioner posits that Section 5(d) is unconstitutional because it


violates Section 1, Article V of the 1987 Constitution which requires that
the voter must be a resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs.
Court of Appeals to support his claim. In that case, the Court held that a
green card holder immigrant to the United States is deemed to have
abandoned his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution


does not allow provisional registration or a promise by a voter to perform
a condition to be qualified to vote in a political exercise; that the legislature
should not be allowed to circumvent the requirement of the Constitution
on the right of suffrage by providing a condition thereon which in effect
amends or alters the aforesaid residence requirement to qualify a Filipino
abroad to vote. He claims that the right of suffrage should not be granted
to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution.15

That these were petitioners arguments is not surprising. After all, these were
the very questions raised during the deliberations in the Constitutional Commission
and in the drafting of Republic Act No. 9189. The Supreme Courts grounds for
dismissing the petition, however, are difficult to tie together. In fact, the justifications
offered were quite contradictory. The reason for this is that if one carefully scrutinizes
the decision of the Supreme Court, what becomes evident is that there are two
separate bases for the dismissal of the petition. Either of them could have stood
alone. Together, however, these justifications are incompatible. Let me illustrate:

First Rationale. The first theory of the Supreme Court is directly related to
Commissioner Oples position that the absentee voters provision is an exemption
from the residence requirement. Thus:

The Constitutional Commission realized that under the laws then


existing and considering the novelty of the system of absentee voting in
this jurisdiction, vesting overseas Filipinos with the right to vote would
spawn constitutional problems especially because the Constitution itself
provides for the residency requirement of voters:
15 Id, at 628.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 31


Danilo L. Concepcion

x x x x x x x x x

Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is precisely
to avoid any problems that could impede the implementation of its pursuit
to enfranchise the largest number of qualified Filipinos who are not in
the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting. (emphasis
supplied)

x x x x x x x x x

Clearly therefrom, the intent of the Constitutional Commission is


to entrust to Congress the responsibility of devising a system of absentee
voting. The qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
Commission opted for the term qualified Filipinos abroad with respect
to the system of absentee voting that Congress should draw up. As
stressed by Commissioner Monsod, by the use of the adjective qualified
with respect to Filipinos abroad, the assumption is that they have the
qualifications and none of the disqualifications to vote. (emphasis
supplied)

x x x x x x x x x

It is clear from the discussions of the members of the Constitutional


Commission that they intended to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned their domicile of origin.
The Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents domicile of origin is in the Philippines,
and consider them qualified as voters for the first time. (italics in original)

It is in pursuance of that intention that the Commission provided


for Section 2 immediately after the residency requirement of Section 1.
By the doctrine of necessary implication in statutory construction, which
may be applied in construing constitutional provisions, the strategic
location of Section 2 indicates that the Constitutional Commission provided for
an exception to the actual residency requirement of Section 1 with respect to
qualified Filipinos abroad. The same Commission has in effect declared
that qualified Filipinos who are not in the Philippines may be allowed to
vote even though they do not satisfy the residency requirement in Section
1, Article V of the Constitution. (italics in original)16

Second Rationale. The second theory of the Supreme Court can be traced to
Senator Angaras strained compromise on the residence requirement. Under this

16 Id, at 641-642.

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theory, the residence requirement under Article V, Section 1 still stands and Section
5(d) complies with that requirement. This is because the affidavit required under
Section 5(d) is evidence of residence, specifically, animus revertendi:

Contrary to the claim of petitioner, the execution of the affidavit


itself is not the enabling or enfranchising act. The affidavit required in
Section 5(d) is not only proof of the intention of the immigrant or
permanent resident to go back and resume residency in the Philippines,
but more significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct to say
that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes provisional registration or a promise by a
voter to perform a condition to qualify to vote in a political exercise.

To repeat, the affidavit is required of immigrants and permanent


residents abroad because by their status in their host countries, they are
presumed to have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of abandonment of Philippine
domicile shall remain.17

In another passage, the Supreme Court held:

Thus, Congress crafted a process of registration by which a Filipino


voter permanently residing abroad who is at least eighteen years old, not
otherwise disqualified by law, who has not relinquished Philippine citizenship
and who has not actually abandoned his/her intentions to return to his/
her domicile of origin, the Philippines, is allowed to register and vote in
the Philippine embassy, consulate or other foreign service establishments
of the place which has jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections, while providing
for safeguards to a clean elections.

x x x x x x x x x

Contrary to petitioners claim that Section 5(d) circumvents the


Constitution, Congress enacted the law prescribing a system of overseas
absentee voting in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a system of absentee
voting that necessarily presupposes that the qualified citizen of the
Philippines abroad is not physically present in the country. The
provisions of Sections 5(d) and 11 are components of the system of
overseas absentee voting established by Republic Act No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have
retained his domicile in the Philippines. He is presumed not to have lost

17 Id, at 645-646.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 33


Danilo L. Concepcion

his domicile by his physical absence from this country. His having become
an immigrant or permanent resident of his host country does not
necessarily imply an abandonment of his intention to return to his
domicile of origin, the Philippines. Therefore, under the law, he must be
given the opportunity to express that he has not actually abandoned his
domicile in the Philippines by executing an affidavit required by Sections
5(d) and 8(c) of the law.18

These two rationales are incompatible. The Supreme Court said that the
residence requirement no longer applies because the Constitutional Commission
intended to create an exception with respect to overseas voters. This rationale ends
the entire debate because all that the absentee voter has to show is that he is a
Filipino and in all other respects qualified to vote. But the Supreme Court also said
that, under the second rationale, the affidavit under Section 5(d) is evidence that the
voter concerned never lost his residence here in the Philippines. This implies that
the residence requirement still applies to overseas voters, including permanent
residents. Under this rationale, the affidavit is the means by which the requirement
is complied with. So which is which?

This is very important because the rationale for the decision has important
implications on the success of the operation of the statute itself. In fact, the reason
why R.A. No. 9189 has not been very effective in enticing the millions of potential
overseas Filipinos is precisely the ambiguity in the rationale used by the Supreme
Court. If the ultimate basis of the decision is that permanent residents are exempted
by the Constitution from the residence requirement, we can expect the number of
registrants to balloon to large numbers. On the other hand, if the true basis of the
decision is that the affidavit in Section 5(d) is the method of compliance with the
residence requirement, then we cannot expect the number of registrants to increase
substantially. There are two reasons for this conclusion:

1) Permanent residents are those who have formally settled already in a country
outside the Philippines. Especially because the law requires that they be recognized
as such in the host country, we cannot expect them to abandon their status just so
they can exercise their right to vote. Although the right to vote is something that
citizens should treasure, it is unreasonable to impose, as a consequence of or
precondition for exercising that right, the loss of that status. Considering that the
right to live permanently in countries such as the United States and United Kingdom
is such a highly valued status for Filipino workers, it is almost unfair to make them
choose between voting and coming back by making them sign an affidavit that they
will resume actual permanent physical residence in the country within a period of
three years.

2) The act of signing the affidavit in Section 5(d) might be used in the host
country as a legal justification for re-classifying the permanent residents status, to
the detriment of the Filipino. Obviously, the affidavit, once in the hands of the host

18 Id, at 647-648.

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countrys immigration officials, can be used against the permanent resident. This
might have tax, civil, social and political implications for the Filipino concerned. It
is difficult to imagine how such permanent resident can choose jeopardizing himself
and the well-being of his family just because he wants to vote in Philippine elections.

One can say, of course, that the Makalintal decision uses both rationales in
upholding the important provisions of Republic Act No. 9189. However, the problem
with this position is that both justifications can be used both for and against the
absentee voter, depending on the perspective of either the Philippines or the host
country. It is therefore the uncertainty created by the decision that makes Filipino
permanent residents abroad very hesitant in participating in the system. It is only
natural for them to err on the side of caution and try to avoid possible impairments
of their status as permanent residents. After all, it is a status that many of us crave
and work hard to achieve. As long as the affidavit requirement of Section 5(d)
exists, permanent residents abroad will not be enticed into joining other absentee
voters such as contract workers who, under Philippine jurisprudence are considered
domiciliaries of this country.

Nicolas-Lewis vs. Commission On Elections


The legal controversy over the right of Filipino permanent residents abroad
was again litigated in the Supreme Court. This time around, it was a group of
permanent residents headed by businesswoman Loida Nicolas-Lewis who brought
the matter to the Supreme Court. This case was complicated by the fact that
petitioners were not just Filipinos but so-called duals or dual citizens. Under Rep.
Act No. 9225 or the Citizenship Retention and Reacquisition Act of 200319 former
Filipinos may again become Filipinos through an expedited process and still retain
their non-Filipino citizenship. They may also exercise civil and political rights.20

19 An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending
for the Purpose Commonwealth Act No.63, As Amended, and for Other Purposes.
20 Section 5 of Rep. Act No. 9225 provides: Civil and Political Rights and Liabilities.Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V
of the Constitution, Republic Act No. 9189, otherwise known as The Overseas Absentee Voting Act of
2003"and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of
the Philippines and its duly constituted authorities prior to their assumption of office: Provided, that they
renounce their oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by,
or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in the active service as commissioned or noncommissioned officers in the armed forces of the
country which they are naturalized citizens.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 35


Danilo L. Concepcion

The question in the case of Nicolas-Lewis vs. Commission on Elections21 is whether


or not dual citizens such as petitioners are entitled to vote as absentee voters in
Philippine elections pursuant to Republic Act No. 9189. According to the Supreme
Court, long before the May 2004 national and local elections, petitioners sought
registration and certification as overseas absentee voters, only to be advised by the
Philippine Embassy in the United States that, per a COMELEC letter to the
Department of Foreign Affairs, they have yet no right to vote in such elections
owing to their lack of the one-year residence requirement prescribed by the
Constitution.22

Deciding in favor of the petitioners, the Supreme Court held:

As may be noted, there is no provision in the dual citizenship law


R.A. 9225requiring duals to actually establish residence and physically
stay in the Philippines first before they can exercise their right to vote.
On the contrary, R.A. 9225, in implicit acknowledgment that duals are
most likely non-residents, grants under its Section 5(1) the same right of
suffrage as that granted an absentee voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence, to enfranchise as much
as possible all overseas Filipinos who, save for the residency requirements
exacted of an ordinary voter under ordinary conditions, are qualified to
vote. 23

It would thus seem that in the eyes of the Supreme Court, dual citizens stand
on equal footing with permanent residents as far as the right to vote as absentee
voters is concerned. This is correct because the only difference between dual citizens
and permanent residents is that the former holds Filipino citizenship as a second
citizenship. Both of them, for purposes of the residence requirement, are
presumptively permanent residents of the host country. Which means that in order
for either of them to be able to vote in absentia they must execute the affidavit required
under Section 5(d) of Republic Act No. 9189. Ultimately, both classes of Filipino
absentee voters must make a legal promise to resume actual physical permanent
residence in the Philippines. Then again, the Supreme Court makes another turn
around by holding that:

In a nutshell, the aforequoted Section 1 prescribes residency


requirement as a general eligibility factor for the right to vote. On the

21 497 SCRA 649 (2006).


22 Id, at 652. As per the COMELEC Memorandum submitted to the Supreme Court, supra, at 658:4.
DUALS MUST FIRST ESTABLISH THEIR DOMICILE/RESIDENCE IN THE PHILIPPINES
4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The duals, upon
renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally
abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently
acquired a second citizenship, (i.e., Filipino) then, duals must, for purposes of voting, first of all, decisively and
definitely establish their domicile through positive acts.
23 Id, at 659.

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The Overseas Absentee Voting Act Law & Jurisprudence

other hand, Section 2 authorizes Congress to devise a system wherein an


absentee may vote, implying that a non-resident may, as an exception to
the residency prescription in the preceding section, be allowed to vote.24

This is really confusing and unfortunate and does not help the cause of absentee
voters.

Conclusion
What I have tried to emphasize in this article is that the confusion over the
interpretation of Article V, Section 2 of the Constitution is not an empty effort at
hair-splitting or a useless exercise in argumentation that only lawyers can appreciate.
Instead, this confusion that has been carried over to the legislative and adjudicative
arenas has practical implications for many migrant workers who both passionately
care about their political rights and their economic situation. I submit that if we
wish to empower our migrant workers by giving them equal or approximately equal
civil and political rights as local citizens, then we should interpret the Constitution
as well as the statutes in such a way as to make the exercise of the right not simply
nominal but effective and real.

To give the millions of Filipino permanent residents abroad the right to vote
in absentia only under the condition that they sign an affidavit that they shall resume
actual physical permanent residence in the Philippines is to give with one hand and
take away with the other. The loss of the status as permanent resident is so high a
price to pay for the right to cast a single ballot. This is unfair considering the reality
that many of these overseas Filipinos are there not to enjoy their lives, but to make
a personal sacrifice in order that their relatives and loved ones in this country can
live decent lives. Their sacrifice benefits not only their families and friends but the
entire Philippine economy.

Moreover, many of them are well-aware of the political, economic, and social
events here at home. The advances in technology and communications have made it
possible for everyone to be physically away but virtually present. One can even say
that overseas Filipinos, because of their separation from the life here in the
Philippines, have more time and greater inclination to know more about their country
than the ones who already live here. After all, only those who are away will miss the
idiosyncrasies of life in the Philippines. I submit it is in this context that we should
read both the Constitution and the law which, in the first place, was meant to recognize
the contributions to Philippine society of this unique group of citizens.

 

24 Id, at 654.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 37


Oscar G. R aro

Rawlss Theory of Justice and its


Relevance in Adjudication:
Nakedness in the Pursuit
of What is Fair
Oscar G. Raro*

I
Introduction: Unclad at Birth
The depiction of the three nude Graces touching each other in Botticellis
Primavera1 heralding the arrival of spring may just as well be the graphic illustration
of mental nudity required by John Rawls as a condition sine qua non before one can
formulate a theory of justice. Undress before you can even touch! Is the touch of
the naked, with passions disengaged, the symbol of enlightenment for the pursuit of
what is fair denied of those garbed in the garments of their experiences, biases, and
mind-sets? Must we all be bare to participate in a discourse of justice? May the
depiction be merely analogous to our pristine state of mind as at the moment of our
birth or is it the bareness of our mind and body at the time of procreation?

What is actually required in nakedness is, to Rawls, a metaphorical veil to


cover what may arguably be equated to Habermass individual biases and experiences
in a lifeworld.2 Thus, as a precondition for rational discourse, the participants,
instead of being shed of the minds plumage of biases and experiences as really
meant, are shielded by a fleeting veil of ignorance, as later formulated. Perhaps,
the formulation is an attempt to distance oneself from the clich naked in the face
of the Maker or from the fairy tale, The Emperors New Clothes.3 Is Rawlss theory,
in the ultimate analysis, nothing more than a fairy tale as a camouflage for despair
or a purely academic discussion as the unbidden rebirth of the social contract theories

* A.B., Ll.B., University of the Philippines, Ll.M. (candidate), San Beda Graduate School of Law, Editor-in-Chief,
San Beda Graduate School of Law Journal (2006-2007)
1 The Primavera is a painting by the Italian Renaissance painter Sandro Botticelli, c. 1482. It is housed in Uffizi
Gallery of Florence.
2 Except that for Habermas, such experiences may be brought into the discourse; while to Rawls must be shed
or veiled. (Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy 55, [William H. Rehg trans. 1996], The MIT Press, Cambridge, Massachusetts.
3 A Danish fairy tale written by Hans Christian Andersen and first published in 1837, as part of Eventyr, Fortalte
for Brn (Fairy Tales, Told for Children). It was originally known as Keiserens Nye Klder. The story is a type
of fableor morality play with a cautionary message: Just because everyone else believes something is true,
doesnt mean it is.

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of bygone days? May his metaphysical veil of ignorance and practical theory of
reflective equilibrium find application in adjudication to resolve hard cases, or
justify equitable decisions when strict application of the law will clearly be unjust?
While at it, may we conclude that Rawlss theory actually supports, in that limited
sphere of application, the natural law theory as against legal positivism in deciding
cases? These are the unashamed attempts at erudition endeavored in this paper.

II
Another Contractarian Emerges: The Initial Difficulty
The Social Contract theory may generally be stated thus: Men in a state of
nature, being naturally self-interested, yet rational, will choose to submit to the authority
of a sovereign in order to be able to live in a civil society conducive generally to their
own interests. While the full exposition and defense of the social contract theory
may rightfully be credited to Thomas Hobbes,4 and after him, to John Locke5 and
Jean-Jacques Rousseau,6 the theory was, in fact, insinuated as early as the Platonic
dialogues.

In the account of Plato, Socrates decision to accept the death penaltywhich


was clearly the result of trumped-up charges and wrong conviction in the courtsis
borne out of his strong and unbending desire to honor an agreement made between
him and the Laws. In his conversation with Crito while in prison, Socrates said that
if he agrees to flee, the State and the Law will confront him with these words: It
is a fact, then they would say, that you are breaking covenants and undertakings
made with us, although you made them under no compulsion or misunderstanding,
and were not compelled to decide in a limited time; you had seventy years in which
you could have left the country, if you were not satisfied with us or felt that the
agreements were unfair.7

4 Thomas Hobbes, Leviathan (1651) in 1 The Great Political Theories 296, Michel Curtis (ed.), Avon Books,
New York (1961); Rawls, however, while admitting that his theory of justice is an attempt to carry to a higher
level of abstraction the familiar theory of the social contract which even include that of Kants, beginning
with the Foundations of the Metaphysics of Morals he would expressly exclude that of Hobbes as it raises
special problems in the context of his theory. (Rawls at 11).
5 John Locke, Two Treatises on Government, Peter Laslett [ed.], Cambridge University Press, Mentor Book, New
York (1963).
6 Jean-Jacques Rousseau, Discourse on the Origin and Foundations of Inequality Among Men & Social Contract,
in The Essential Rousseau, Lowell Bair (trans.), A Mentor Book, New York (1974).
7 Plato, Socrates in Prison: Crito in The Last Days of Socrates 93, (Hugh Tredennick [ed.], Penguin Classics,
Baltimore, Maryland (1954); The judgment of conviction against Socrates, however, may be taken as an
argument in favor of Rawlss insistence that those seeking a rule of fairness must be freed from self-interests so
that those similarly inclined may not band together during the process of discourse to advance their groups
interests. One will note that in this case in 399 B.C., Socrates was haled to court as result of a public action
brought by Meletus, Anytus, and Lycon, whose self-pride he had offended and whose common interests
against him advanced and allowed during his prosecution. Arguably, this could not have happened had
Socratess accusers and judges were veiled in ignorance in passing judgment. But, of course, Rawls and his
theory would come thousands of years later, not of any use to Socrates now, whose memories remained merely
in Platos loyal, even while romanticized, accounts.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 39


Oscar G. R aro

In A Theory of Justice, 8 Rawls likewise started with some semblance of the


contractarians state of nature, his quest similarly for an ordered society and the
rules to govern its inhabitants. His starting point, much like the contractarians, is
that men are naturally self-interested, but rational.9 This, to Hobbes, in the state
of nature, made life brutish, nasty, and short 10 even while Rousseau, in his
romanticism, viewed man in this state as a noble savage.11 The nobility perhaps,
in mans rational faculty and innate quality of compassion which substituted for
laws when there were none 12; the savageness being merely descriptive of his
uncivilized state? Rawls setting, however, is a highly abstracted state of nature,
not such uncivilized and savage state, but of a modern democratic society where
the pursuit of justice remains elusive with what appears to be an impossible task of
taking into consideration each individual concerns, the society marked, as it is, by
conflict as well as an identity of interests,13 which makes it seldom well-ordered . .
. for what is just and unjust is usually in dispute.14 Thus, the difficulty, as he
expounded in Political Liberalism is that modern society . . . is characterized not
simply by a pluralism of comprehensive religions, philosophical, and moral doctrines
but by a pluralism of incompatible yet reasonable comprehensive doctrines . . . not
affirmed by citizens generally . . . or even by nearly all citizens. 15

The problem, therefore, is on how this individual self-interestedness may be


repressed in the face of the reality that the participants would naturally bring and
advance their respective biases, prejudices, experiences, and interests in the process
of discourse; or in the words of a noted professor of law and philosophy, particularities
such as tastes, gender, preferences, profession, and inclination, among others.16

Much like the contractarians, Rawls advances a theory when civil order and
justice may be attained in this world of individual selfishness. The key to Rawls is a

8 John Rawls, A Theory of Justice, The Belknap Press of Harvard University Press (1971) (hereinafter, Rawls,
unless the source is otherwise indicated from his other books and works).
9 The choice which rational men would make in this hypothetical situation of equal liberty, assuming for the
present that this choice problem has a solution, determines the principles of justice. (Rawls at 12, italics ours);
One feature of justice as fairness is to think of the parties in the initial situation as rational and mutually
disinterested. (Id. at 13); I assumed throughout that the person in the original position are rational. (Id. at 142)
10 Thomas Hobbes, in Leviathan, (supra): No arts; no letters; no society; and which is worst of all, continual fear
and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
11 Rousseau himself never used the exact phrase noble savage. The association of the term to him proceeds
from his notion, as outlined in his Discourse on Inequality, that all humans share that nobility by nature,
which they lose once a society is formed. The term first appeared in English with John Dryden in 1672, though
it originated earlier, in 1609, with Lescarbots Histoire de la Nouvelle France. Lescarbot noted that among the
Mikmaq, everyone was allowed to huntan activity enjoyed only by Europes nobility. This led Lescarbot to
remark that the Savages are truly noble.
12 Jean-Jacques Rousseau, Discourse on the Origin and Foundations of Inequality Among Men in The Essential
Rousseau 166, Lowell Bair (trans.), A Mentor Book, New York (1974).
13 Rawls at 126.
14 Rawls at 5.
15 John Rawls, Political Liberalism, Columbia University Press, New Ed. (1995).
16 Fr. Ranhilio C. Aquino, E-class lecture and discussion in the course Theories of Law and Justice, 14 October
2006, transcript of which may be obtained from San Beda Graduate School of Law.

40 IBP JOURNAL
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shared sense of justice (may be likened to Rousseaus compassion)17 which provides


bonds of civil friendship and, therefore, a self-imposed limit in the pursuit of selfish
individual ends.18 The next question, however, is how this common and innate19
conception of justice,20 a revived common denominator, may be utilized to fairly
arrive at rules of social and distributive justice acceptable to all who may be later
affected by such rules. Rawlss theory, therefore, is basically, procedural in character.21

Thus, we may point out this early that when Rawls describes his theory as
justice as fairness, the reference is to conditions and process that are fair by which
the rules are crafted by discourse, out of which justice is borne out: [T]he principles
of justice are agreed to in an initial situation that is fair.22 We must, therefore,
disabuse our mind that the Rawlss objective is to define justice as an all-
encompassing end, rather than for what it is, as means; he himself admitting that his
topic is the way in which the major social institutions distribute fundamental
rights and duties and determine the division of advantages from social cooperation.
On a smaller scale, therefore, he is concerned with the rather limited idea of what is
fair in the distribution of what are abundant as rights and duties, and of what are
presumably scarce, as income and wealth: the symbolical pie which he calls social
primary goods.23 His proposed solution, which consists of variant mechanics of the
concept of distributive justice, is what mandates Rawlss continuing relevance to this day.

III
THE C ONCEPT OF THE O RIGINAL P OSITION AND V EIL OF
I GNORANCE
Just as Rawlss setting is hypothetical, so is his requirement of the participants
state of mindsome sort of apostasy where only an intuitive sense of justice and
rationality remainedis also hypothetical. Thus, Rawls begins with a postulatory
status where the participants would not be encumbered by their predilections and
interests. This is necessary for it seems reasonable and generally acceptable that
no one should be advantaged or disadvantaged by natural fortune or social
circumstances in the choice of principles and to make impossible to tailor principles
to the circumstances of ones own case.24
17 See Note 12.
18 See Note 13.
19 Intuitive is Rawls preferred term: No doubt any conception of justice will have to rely on intuition to some
degree. (Rawls at 41)
20 See Note 13.
21 The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The
aim is to use the notion of PURE PROCEDURAL JUSTICE as a basis of theory. (Rawls at 136, emphasis
ours).
22 Rawls at 12.
23 Fr. Ranhilio C. Aquino, A Philosophy of Law: An Introduction to Legal Philosophy 162, Central Book Supply
(2006).
24 Rawls at 18.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 41


Oscar G. R aro

The participants in the rule-making process must, therefore, undergo some


sort of cleansing of the spirit and of the impedimenta of their individual experiences
and situations: One excludes the knowledge of those contingencies which sets men
at odds and allows them to be guided by their prejudices.25 In the later version of
his theory Rawls says that the veil conceals from the parties even the basic particulars
of their status such as sex, age, physical strength, profession, religion, among others.
This process which covers plurality of interests and situations, Rawls picturesquely
termed the veil of ignorance.

With our ideal rule-makers properly veiled in that original position, how
may they arrive now at a fair procedure and, thereafter, rules, acceptable to all?
How may one participate at all in the process knowing that any reference to bargaining
strengths and weaknesses is forbidden?

The key here lies in Rawls belief that a mutually disinterested rationality26
and intuitive sense of justice will self-regulate the discourse in that the participants
will be contented with advancing their system of ends as far as possible,27 but not
farther, as such rationality would seek its own level of tolerance before breaking
point. They will only strive for as high an absolute score as possible28 without
conferring benefits or imposing injury to one another. In short, reason and sense
of justice, like water, will seek their own level. That this is so is actually argued by
Rawls on the basis of mutual respect and natural duty, not as a matter of pure
decorum, but as practical imperatives:
Also respect is shown in a willingness to do small favors and
courtesies, not because they are of any material value, but because they
are an appropriate expression of our awareness of another persons
feelings and aspirations. Now the reason why this duty would be
acknowledged is that although the parties in the original position take no
interest in each others interests, they know that in society they need to
be assured by the esteem of their associates. Their self-respect and their
confidence in the value of their own system of ends cannot withstand the
indifference much less the contempt of others. Everyone benefits then
from living in a society where the duty of mutual respect is honored. The
cost to self-interest is minor in comparison with the support for the sense
of ones own worth.29

As to the duty of rendering mutual aid, the same has likewise practical
connotations. Leaning on Kant, Rawls states:

25 Rawls at 19.
26 Rawls at 144.
27 Id.
28 Id.
29 Rawls at 338.

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Similar reasoning supports the other natural duties. Consider, for


example, the duty of mutual aid. Kant suggests, and others have followed
him here, that the ground for proposing this duty is that situations may
arise in which we will need the help of others, and not to acknowledge
this principle is to deprive ourselves of their assistance.30

This far, Rawls has constructed a situation, an ideal setting, where the principles
of justice may be spawned. This now brings us to the next question: What are these
principles of justice by which the envisioned ordered society may be governed? This
transports to the next point.

IV
The Two Principles of Justice: The Priority Rule
From these situations and motivations, Rawls concludes that rationality would
easily allow the adoption of at least two principles or rules of justice:

1. Each person is to have an equal right to the most extensive basic liberty
compatible with a similar system of liberty for all; and

2. Social and economic inequalities are to be arranged so that they are both a)
reasonably expected to be to everyones advantage, and (b) attached to positions
and offices open to all.31

Later, Rawls would restate32 these two principles of justice as follows:

1. Each person has the same indefeasible claim to a fully adequate scheme
of equal basic liberties, which scheme is compatible with the same scheme of liberties
for all; and

2. Social and economic inequalities are to satisfy two conditions: first, they
are to be attached to offices and positions open to all under conditions of fair equality
of opportunity; and second, they are to be to the greatest benefit of the least-
advantaged members of society.

In the first principle, the reference to basic liberty is to political liberty as say,
the right to vote, freedom of speech and assembly, liberty of conscience and freedom
of thought, freedom to own property, freedom from arbitrary arrest, detention and
seizure as defined by the concept of the rule of law.33 In the second principle,
30 Rawls at 338 citing Immanuel Kant, The Foundations of the Metaphysics of Morals, Academy edition vol. 4,
p. 423.
31 Rawls at 60.
32 John Rawls, Justice as Fairness: A Restatement, Cambridge, Massachusetts: Harvard University Press (2001).
33 Rawls at 61.

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Oscar G. R aro

known as the Difference Principle, the reference to social and economic conditions
where inequality is recognized is principally to income and wealth.34 Here, therefore,
is a recognition that the economic well-being of the citizens is an integral component
of a just and ordered society. May this be a Rawlsian concept of the common good?

The two principles are not self-balancing in the sense that deficiency in one
may be satisfied by a compensation from the other. They must both be satisfied,
but in lexical order; that is, the first principle of equality of basic liberties must
first be satisfied before the second principle of unequal distribution of income and
wealth may be designed to yield the greatest benefit to the least advantaged.

One will note, however, that when Rawls revised his second principle of justice
from the original proposition that income and wealth must be arranged to be
reasonably expected to be to everyones advantage, to the current restatement as
greatest benefit to the least advantaged, his theory emphasizes its altruistic flavor
even while maintaining its egalitarian bent exemplified by the first principle.

This seems to suit modern day democracy when what is constitutionally


guaranteed is merely the equal distribution of political liberties, but only equality in
opportunity when it comes to income and wealth. It is a fact that inequality exists
when it comes to economic wealth. A law which mandates its equal distribution, as
in political liberties, will have to approach the principle of socialism.

Thus, in a democracy, what may only be prescribed as principle is that inequality


must be such that it must be arranged to produce the greatest benefit to the least
advantaged. In a local setting, may it be said that the constitutional precept that
[t]he State shall promote a just and dynamic social order that . . . will 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,35
one of those Rawlsian legal arrangements? Does the goal of the national economy
of a more equitable distribution of opportunities, income, and wealth illustrative
of this principle of the greatest benefit to the least advantaged?36 Perhaps, President
Magsaysays famous quip that those who have less in life should have more in law
has finally found its way into rational discourse?

But why should there be an order of priority between the two principles of
justice? Here, Rawls is most beautiful in what he insinuated as self-compensating
adjustment in the nature of the two principles:

The supposition is that if the persons in the original position assume


that their basic liberties can be effectively exercised, they will not exchange

34 Id.
35 CONST., Article II, Section 9.
36 CONST. Article XII, Section 1.

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a lesser liberty for an improvement in their economic well-being, at least


not once a certain level of wealth has been attained.37

That as basis, Rawls lays down the reason for the priority of liberty over the
principle of wealth distribution: as the conditions of civilization improve, the marginal
significance for our good of further economic and social advantages diminishes relative
to the interests of liberty, which become stronger as the conditions for the exercise
of the equal freedoms are more fully realized. 38

This necessary adjustment of natural diminution of our desire for wealth vis--
vis our interests in liberty is further supportive of Rawlss willingness to constantly
reexamine, revise, and prune any initially established principles of justice to fit our
considered judgment. This brings us to another important principle in Rawlss
theory.

V
Reflective Equilibrium: The Need for Continuing
Justification
While Rawls wished the principles of justice to transcend generations, implying
a certain character of permanency, he recognizes that such principles may not at all
times be stable and sustainable. In the Original Position and thereafter, such
principles may necessitate adjustment to bridge discrepancies, to harmonize
contractual situations, or to address circumstances which may sway judgment to
revise. In such a case, Rawls is amenable to change:

We can either modify the account of the initial situation or we can


revise our existing judgments, for even the judgments we take provisionally
as fixed points are liable to revision. By going back and forth, sometimes
altering the conditions of contractual circumstances, at others withdrawing
judgments and conforming them to principle, I assume that eventually
we shall find a description of the initial situation that both expresses our
considered judgments duly pruned and adjusted. 39

This condition of searching for the most favored description of the situation,
and the need to work from both ends, pruning and adjusting as the process takes
place, is what Rawls describes as reflective equilibrium. It is an equilibrium because
it describes a situation when principles, judgment, and circumstances balance
themselves in the process. And it is reflective, because it comes from the discovery

37 Rawls at 542.
38 Id.
39 Rawls at 20.

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Oscar G. R aro

of what principles the judgments conform and the premises of their derivation.40
This may be akin to the Socratic method of discourse, or to Hegelian dialectics.

At all events, Rawls even insinuates that his adopted uncertainty on the moral
force or ethical neutrality of his theory may later be subject to justification so that
its entire conception may fit shifting judgments.41 Rawlss theory of nakedness
or impartiality in the Original Position and willingness to adjust in the quest for
Reflective Equilibrium finds continuing relevance and practical application in
adjudication. This is so because the theory opens itself to continuing adjustment to
seek balance in a world when laws continue to be legislated and judges continue to
interpret them, resulting in precedents with the character of an evolved and interpreted
law. This transports us to the next point.

VI
The Philippine Setting for Rawlss Relevance
in Adjudication
Rawlss theory of justice, particularly, his desire at interim adjustments of its
standards, is at home in common law jurisdictions. On the other hand, for those
countries which strictly observed legal positivism in their interpretation and system
of laws, his theory of Reflective Equilibrium is dead in the water for there could be
no room for shifting judgments outside of the letter of the law.

But the first misconception that may be committed by those attempting to


analyze the legal system in the Philippines is to categorize it to be purely governed
by law in the Austinian formulation as that system of norms which derives its binding
force, directly or indirectly, from some organ of the state invested with legislative
authority under the constitution42 excluding in the process custom, morals, or even
conscience, as a source of social control or as basis for resolving disputes. Aside
from the fact that custom and morals are parts of our civil law provisions,43 the
courts power of judicial review44 has left open the inroads of these non-legal
considerations as bases in the resolution of disputes and thereafter as binding
jurisprudence, as norm of compulsion. It is, therefore, nave to draw a line between
law and morals in the analysis of the current Philippine legal system. If at all, the
40 Id.
41 Rawls at 579.
42 Lloyd, Dennis, The Idea of Law 226.
43 Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customsor public policy shall compensate the latter for the damage. (Article 21, Civil Code); Contracts whose
cause object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent
and void from the beginning. (Article 1409, Id.); The contracting parties may establish such stipulation,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy (Article 1306, Id.); Also Article 1346, Id.
44 First formulated by Chief Justice John Marshall in Marbury v. Madison, 1 Cr. 137 (1803).

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distinction becomes significant only in the event of conflict between law and custom
in that customs which are contrary to law, public order or public policy shall not be
countenanced45 nor may law be considered repealed by custom.46

Even in the United States, customs and the innate sense of what is moral and
just are actually observed regardless of legal foundation such as in libel and obscenity
cases being claimed as beyond the protection of the First Amendment. Punishment
for such libelous and obscene publications was long thought to require no
constitutional justification. Hence, Chief Justice Hughes in Near v. Minnesota47 simply
assumed that one of the exceptions to the rule of no prior restraint was enforcement
of the primary requirements of decency against obscene publications, and he
likewise took it for granted that the law of criminal libel rested upon a secure
foundation48 not referring to the Constitution as the basis of such foundation.

The second misconception here, however, is that because of this seeming fusion
of law and sense of justice as norms of conduct, the Philippines, in effect, rejects
altogether legal positivism as a system of law. This is simplistic as it proceeds from
a handicapped understanding of what the positivists are actually saying. The
positivists do not reject conscience or the dictates of what is just as a source of
normative conduct. What they are saying is simply that for these considerations to
have coercive authority they may either be included as part of the law or adopted by
jurisprudence.49 Thus, while indeed the positivists seek a distinction between law
and custom as what is and what ought to be,50 the distinction is not for the purpose of
application of one to the exclusion of the other. Thus, as John Austin would formulate
it, the existence of law is one thing; its merit and demerit another.51 Even H.L.A.
Hart would concede that in some legal systems, as in the United States, the ultimate
criteria of legal validity explicitly incorporate principles of justice or substantive
moral values52 and

[t]o use in the description of the interpretation of laws the suggested


terminology of a fusion or inability to separate what is law and ought to
be will serve (like earlier stories that judges only find, never make law)
only to conceal the facts, that here is anywhere we live among uncertainties
between which we have to choose, and that the existing law imposes only
limits on our choice and not the choice itself.53
45 Civil Code, Article 11.
46 Id. Article 7.
47 283 U.S. 697 (1931)
48 C. Herman Pritchett, Constitutional Civil Liberties 86 (1984 ed.)
49 Anthony DAmato, Professor Nagels Reflections on Cardozo, 2 Cardozo Law Review 589 (1981).
50 The formulation is David Humes
51 Green, Leslie, Legal Positivism, The Standford Encyclopedia of Philosophy (Spring 2003,Edition), http://
plato.standord.edu/archives/spr2003/entries/legal positivism (last visited 18 Junwe 2006)
52 H.L.A. Hart, The Concept of Law
53 H.L.A. Hart, Positivism and the Separation of Law and Morals. 71 Havard Law Review 593 (1958)

VOLUME 34 NUMBER 2 (OCTOBER 2009) 47


Oscar G. R aro

Thus Diamond Stanleys thesis on that innate separation of law from morals
as a matter of basic natural contradiction will find no place in Philippine jurisdiction.
As Stanley would insist:

Efforts to legislate conscience by an external political power are


the antithesis of custom: customary behavior comprises precisely those
aspects of social behavior which are traditional, moral, and religiousin
short, conventional and nonlegal. Put another way, custom is social
morality, the relation between custom and law is basically one of
contradiction not continuity.

Thus, law is symptomatic of the emergence of the state. Custom


spontaneous, traditional, personal, commonly known, corporate, relatively
unchangingis the modality of primitive society; law is the instrument of
civilization, of political society sanctioned by organized force, presumably
above society at large and buttressing a new set of social interests. Law
and custom both involve the regulation of behavior but their characters
are entirely distinct ..54

Even while Benjamin N. Cardozo would note that Blackstone55 had exaggerated
the creative energy of custom in the development of common law, he would
nonetheless recognize a custom of judicial decision, not of popular action, citing
Roscoe Pound and that it is doubtful whether at all stages of legal history, rules laid
down by judges have not generated custom, rather than custom generated the rules,56
relying on Gray.57 The cudgel of the positivists, therefore, is not law directed against
custom, but rather legislated law against undefined natural law and nebulous
natural rights.

Perhaps, Dean Jorge Bocobo, in incorporating nuances of the natural law theory
in the Civil Codewhen he said that while codes of law and statutes have changed
from age to age, the conscience of man has remained fixed to its ancient moorings,
[thus] it is safe and salutary to transmute, as far as may be, moral norms into legal rules,
thus imparting to every legal system that enduring quality which ought to be one of
its superlative attributes58 had hoped for a corresponding set of procedural rules
from the Supreme Court on the mechanics of how unlegislated sense of justice or
morals may be applied as a source of right or a cause of action. In further justification,
Dean Bocobo would state as the basis of the incorporation of customs, morals, and
conscience in our Civil Code that [i]n the last analysis, every good law draws its
54 Diamond, Stanley, The Rule of Law versus the Order of Custom in In Search of the Primitive (Transaction
Publishers, 1981)
55 Blackstones Commentaries on the Laws of England
56 Cardozo, Benjamin, The Nature of the Judicial Process 60 (Yale University Press)
57 Gray, Nature and Sources of the Law, se. 420.
58 Report of the Code Commission on the Proposed Civil Code of the Philippines, in Sison, Carmelo, Civil Code
Reader 586-587 (2005); Also, Rivera, Juan, The Father of the First Brown Race Civil Code 57 (1978 ed.)

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breath of life from morals, from those principles which are written with words of
fire in the conscience of man.59

VII
The Sufficiency of Judicial Review to Address
the Problem of What Ought to Be
In England from whence the common law tradition has been incorporated
into the American legal system, there is no recognized power of judicial review.
Such a power in fact was not even envisioned by the American Founding Fathers
when they crafted the U.S. Constitution.60

It took a question on a midnight appointment of William Marbury to a justice


of the peace position for the District of Columbia by a departing president, John
Adams, on the eve of Thomas Jeffersons ascension to office as the newly-elected
president, for judicial review to take tangible shape. The case was Marbury v. Madison61
where the newly-appointed Chief Justice John Marshall argued for the court that
the constitution controls any legislative act repugnant to it as one of the fundamental
principles of our society. The Constitution, he said is the supreme law of the land and
since it is the duty of the judicial department to say what the law is the Supreme
Court must overturn any law of Congress that violates the Constitution. A law
repugnant to the Constitution he asserted flatly, is void. This is the very first
pronouncement of the U.S. Supreme Court declaring an act of Congress
unconstitutional, and in the process, appropriating for itself what could have
remained, by silence, as constitutionally unintended power of judicial review.62 The
U.S. Constitution makes no explicit statement about the nature of the Courts power
even when a case admittedly falls within its jurisdiction.63 Before Marbury, the general
belief is that the Court has no final authority to review national legislative
enactments since the fact that the Constitution is supreme does not settle the question
of who decides what the Constitution means.64 After Marbury, however, Alexander
Hamiltons categorization of the judiciary as the least dangerous branch65 would
be further eroded as the Marshall Court would continue, in small steps albeit slightly
noticeable, to assert the Courts power of judicial review66 culminating, even beyond
Marshall, in the judiciary becoming the only branch which could declare any act of
both the executive and the legislative departments unconstitutional, a sort of judicial
veto of official acts.
59 Id.
60 Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics1 (1962).
61 1 Cr. 137 (1803)
62 Garraty, John A., Marbury v. Madison, Historical Viewpoints 180 (1971 ed.)
63 McCloskey, Robert, The American Supreme Court 9 (University of Chicago Press, 1960 ed.)
64 Id. at 8
65 Hamilton, Alexander, The Judges as Guardians of the Constitution, 78th Federalist.
66 Garraty, John A., Marbury v. Madison, Historical Viewpoints 191 (1971 ed.)

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As one of the benefactors of Jeffersonian democracy, even if not by choice,


but by subservience, the Philippines becomes a further benefactor of Chief Justice
Marshalls theory and exercise of judicial review. But even while the U.S. Constitution
was silent on the issue, we have upped the ante, by categorical constitutionalization
of judicial review:

Section 1. The judicial power shall be vested in one Supreme Court


and in such lower courts as may be established by law.

Judicial power includes the DUTY of the courts of justice to settle


actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of ANY BRANCH OR INSTRUMENTALITY OF THE
GOVERNMENT.67

The broad sweep and compass of this power of judicial review as we crafted it
in this jurisdiction, which is not only a right for the court to exercise but a duty, is
sufficient to draw from customs, conscience, and morality for sources of ideal
parameters in adjudication along lines of Rawlss Reflective Equilibrium. After all,
no judge or court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the laws.68

Indeed, the Supreme Court had not been wanting in legitimizing conscience
and sense of justice as norms via judicial decisions. In doing so, the court had, in
effect, engaged in the balancing process of discourse as Rawls envisioned. Let us
see.

Presidential Proclamation 1017 Cases

In David v. Macapagal-Arroyo69 and consolidated cases70 the Supreme Court posed


the question: How does the Constitution of a free people combine the degree of liberty, without
which, law becomes tyranny, with the degree of law, without which, liberty becomes license? In
Rawlsian context, the query may just as well be rephrased as the next question in
this paper: How does one reconcile the shifting concerns towards justice against the
text of a law to craft a norm obeyed not only by coercion, but also by respect? The
answer as we will later expound in the succeeding question is, for now, simply this:
adjustment to attain Reflective Equilibrium where respect for political and human
rights, Rawlss First Principle of Justice, guides the process at the outset.
67 CONST., Article VIII, Section 1, emphasis supplied.
68 Civil Code, Article 9.
69 G.R. No. 171396, May 3, 2006
70 Cacho-Olivarez v. Honorable Secretary, G.R. No. 171409; Escudero v. Ermita, G.R. No. 171485; Kilusang Mayo
Uno v. Arroyo, G.R. No. 171400; Cadiz v. Executive Secretary, G.R. No. 171489; and Legarda v. Arroyo, G.R.
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In David, the validity of Presidential Proclamation No. 1017 and its implementing
rules contained in General Order No. 5, was put in issue. The proclamation declares
a State of National Emergency which empowers the President to enforce obedience
to all decrees orders and regulations promulgated by her personally or upon her
direction. By virtue of the proclamation, U.P. professor Randolf S. David and his
companion, Ronald Llamas, were arrested during the dispersal of rallyists along
EDSA; the offices of the Daily Tribune were raided by operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP; Anakpawis congressman
Crispin Beltran was arrested by the police while leaving his farmhouse in Bulacan;
Bayan Muna representative Satur Ocampos drivers were taken into custody when
Beltran eluded arrest; and other party-list congressmen threatened with the same
fate and prevented merely by staying in the premises of the House of Representatives.

The issues brought by the cases are one for preservation of human rights, i.e.
freedom of the press, speech, and of assembly, that may not be defeated by the
expediency of a presidential proclamation where the chief executive arrogates unto
herself lawmaking and martial law powers.

The Supreme Court, declared as constitutional the right of the President to


make a call to prevent or suppress lawless violence. After all, there is not even a
need to make such a call, lawless violence being suppressible by the fact of its own
illegality. The proclamation, however, is unconstitutional when the call does not
relate to lawless violence. The arrogated power of lawmaking by decrees and the
resultant suppression of individual liberties as rights to expression and assembly
and freedom of the press are likewise declared unconstitutional.

Thus, in David, what we have is the nullification of a proclamation by the


President as it amounts to imposition of a norm which obviously failed to meet
Rawlss First Principle of Justice, and therefore, of any claim to legitimacy. Even
Habermas, another influential legal philosopher, would point out that even from
historical perspective, the core of modern law consists of private rights that mark
out the legitimate scope of individual liberties and are tailored to the strategic pursuit
of private interests.71 More, [i]n the legal mode of validity, the facticity of the
enforcement of law is intertwined with the legitimacy of a genesis of law that claims
to be rational because it guarantees liberty.72 In this sense, Habermass insistence on the
primacy of political rights coincides with Rawlss First Principle of Justice. Thus,
while the legitimacy of the law is, to Habermas, dependent upon its rationality, a
quality which ensures human right; to Rawls it is a given before embarking on a rational
discourse in the pursuit of what is just. The Supreme Court, even while perhaps
unaware that it treads on Rawls principles of justice, is clearly zealous of their
protection when it underscores in David the following libertarian points:

71 Habermas, Between Facts and Norms 27 (Italics mine)


72 Id. at 28 (Italics mine)

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Oscar G. R aro

1. The right to peaceably assemble in respect to public affairs is a necessary


consequence of our republican institution, complementary to the right of
speech;

2. These rights are not to be limited, much less denied, nor subject to prior
restraint or censorship, such as a permit, except in a showing of a clear
and present danger of a substantive evil that Congress has a right to prevent;

3. Military power is a means to an end and substantive civil rights are ends
in themselves. Thus, granting authority to government to cope with
crises may be done without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and
political responsibility of the government to the governed.

Thus, the questioned proclamation, insofar as it violates these basic principles


for protection of human rights, are declared unconstitutional, which may as well
be illegitimate, in Habermasian context, or a nullity in Rawlsians for non-observance
of the First Principle of justice in the process of discourse.

Executive Order 464 Cases

The case of Senate of the Philippines v. Ermita73 and companion cases74 bring to
the fore the constitutionality of Executive Order No. 464 requiring the prior consent
of the President of the Philippines before any official75 of the Executive Department
and officers of the Armed Forces and the Philippine National Police may be
summoned to appear before either House of Congress. Several petitions had been
filed before the Supreme Court questioning the constitutionality of the said order,
foremost among which is the petition by the Senate of the Philippines, being directly
affected by such Order in the exercise of its power of inquiry. In substance, this
case is between the Senate of the Philippines and its power of legislative inquiry and
the Executive Department and its claimed executive privilege allegedly dictated by
the principle of separation of powers.

The Supreme Court declared void the provisions of the Executive Order
requiring prior consent of the President for appearance to either House of Congress
by reason of generality resulting from its failure to make precise and certain reasons
for any claim of executive privilege. Moreover, the Executive Order failed to
distinguish between appearance during question hour, which may be legally prevented
by the President and appearance during inquiries in aid of legislation, which may only
be prevented on matters covered by executive privilege clearly stated in the refusal
to appear. Such generality, the Supreme Court said, severely frustrates the power
of inquiry of Congress and in effect deprives the people of information which, being presumed
73 G.R. No. 169777, April 20, 2006
74 Bayan Muna v. Ermita, G.R. No. 169659; Chavez v. Ermita, G.R. No. 169660; Alternative Law Groups, Inc. v.
Ermita, G.R. No. 169667; PDP-Laban v. Executive Secretary, G.R. No. 169834; and Cadiz v. Executive Secretary,
G.R. No. 171246

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to be in aid of legislation, is a matter of public concern. This last pronouncement by the


Court, without perhaps realizing it, is a declaration that to uphold the validity of the
Executive Order and therefore, the arbitrary power of the President to withhold
information, is to deny application of Rawlss Principle of Reflective Equilibrium in
the process of rational discourse.

Clearly, what we have here is the Supreme Court stating a failure of legitimation
since the people who stand to be affected by any legislation are effectively deprived
of participation in the discourse, without which a norm of legitimacy cannot bear
fruit, an outright denial of the process of determining judgments by shifting concerns
duly pruned and adjusted.76

Estrada v. Escritor: Illustrative


of Shifting Judgment

On the role of morality as a factor in judicial discourse, the case of Estrada v.


Escritor 77 illustrates an apparent conflict between the morality and legality of a
woman cohabiting with another person during the lifetime of her estranged husband.
The case is interesting reading on how the Supreme Court factored in and justified
such cohabitation in the face of the textual clarity of the law.

For cohabiting with a man other than her husband despite her separation de
facto from her husband for more than two decades, Soledad Escritor, a court
interpreter in the Regional Trial Court of Las Pias City, Branch 253, was
administratively charged for disgraceful and immoral conduct. Escritor, however,
is a member of Jehovahs Witnesses, and within the congregation, such cohabitation
is allowed by the elders of her religion by her execution of The Declaration of Pledging
of Faithfulness.

In his Report and Recommendation on the case, investigating judge Maceda


pointed out that the more relevant question is whether or not to exact from
respondent Escritor, a member of Jehovahs Witnesses the strict moral standards
of the Catholic faith in determining her administrative responsibilities in the case.
Maintaining that religious freedom being a fundamental right which is entitled to
the highest priority and the amplest protection among human rights, involving as it
is the relationship of man to his Creator, Judge Maceda recommended the dismissal
of the complaint against Escritor. The Office of the Court Administrator (OCA),
however, while concurring with Judge Macedas factual findings departed from his
recommendation to exonerate Escritor, stressing that Escritor had become
75 Head of departments and senior officials in the judgment of the department head, generals and flag officers,
PNP officials with the rank of chief superintendent, senior national security officials, and such other officers as
may be determined by the President (Executive Order No. 464 dated 28 September 2005, Section 2 [b])
76 Rawls at 20.
77 A.M. No. P-02-1651, August 4, 2003 and June 22, 2005

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capacitated to marry after the death of her husband, but she voluntarily carried on
her questioned relationship, which by itself constitutes immorality. Thus, the
OCA recommended a suspension of six months and one day without pay against
Escritor.

The Supreme Court, at the first instance that the case was heard on 4 August
2003, and after establishing the parameters for decision later, remanded the case to
the Office of the Court Administrator to examine the sincerity and centrality of
respondents claimed religious belief and practice; to present evidence on the states
compelling interest to override respondents religious belief and practice; and to
show that the means the state adopts in pursuing its interest is the least restrictive to respondents
religious freedom. After completion by the OCA of its re-investigation along the
lines suggested, the Supreme Court on 22 June 2006 finally decided the case
dismissing the complaint against Escritor.

The rational parameters by which the individual justices dissented and


concurred in the case at the first instance on 4 August 2003 illustrates rational
discourse at work, guided not only by what the law commands, but also by what
conscience insists. Among the justices, the ponente, Mr. Justice Puno, was clear that
the case may be resolved on the basis of the standards of religious freedom vis--vis
the States compelling interests to override it. But for purposes of this discussion, it
was Justice Vitugs concurring opinion which captured the context of Rawlss First
Principle of Justice in his exposition of law as it clashes with morals:

Law and morals, albeit closely connected, may proceed along


different planes. Law is primarily directed at mans behavior while morals
are directed at his animus or state of mind. While the law often makes
reference to ones state of mind, it does not, however, punish the existence
of immoral intent without more. It requires only that at the risk of punitive
sanctions for disobedience, one must refrain from the temptation to act
in accordance with such intent to the detriment of another. The ethical
principle is generally cast, affirmatively or negatively, in the form of a direct command,
whereas the legal rule speaks, generally, of the consequences that attend the violation
of a duty. As to purpose, law and morals further diverge. Morals strive for
individual perfection, while law aim at harmony in the community.

Not all societal mores are codified into laws. We have yet to see a
law outlawing vanity, pride, gluttony or sloth. Nor are all laws necessarily
moral. Slavery is outlawed but not so in our distant past. Laws allowing
racial segregation prejudicial to blacks or denying the right to suffrage to
women may seem to be relics of a long gone uncivilized society if one
forgets that the abolition of these immoral laws is but less than a century
ago.
... . . . . . .
It might then be deduced that moral laws are justified when they (1)
seek to preserve the moral value upheld by society and (2) when the
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morality enforced in a certain case, is true and correct. It is within these


standards that the provision against immorality in the Administrative
Code must be examined to the extent that such standards can apply to
the facts and circumstances in the instant case before the Court. As a rule
then, moral laws are justified only to the extent that they directly or
indirectly serve to protect the interests of the larger society. It is only
where their rigid application would serve to obliterate the value which
society seeks to uphold, or defeat the purpose for which they are enacted,
would a departure be justified. (Italics ours)

However, the ponencia of Justice Puno which calls for a balancing test between
the States compelling interest and the respondents right to religious freedom, is
really an attempt at complementation of morals and the law. Citing the germinal
case of Sherbert v. Verner,78 he said that not every conscience can be accommodated
by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes. What we have
here, is therefore, a recognition that the law cannot be left alone, but must be read
in conjunction with morals. While the formulation seems easy as it sounds, the
application is, however, what justifies the lengthy disquisition in Estrada v. Escritor.
For that, Justice Punos scholarly treatment of the issues is actually Rawlss
recommended process of pruning and adjusting in the hope that the factors would
balance in reflective equilibrium.

VIII
Conclusion: Fairness in the Justness of Democratic
Institutions
Under the principles of justice drawn by Rawls, one perceives the environment
of his existence as favorable and just in the pursuit of his life-plan when equality
in political liberties is assured. At this stage, Rawls goes back to his theory of the
Original Position, when the citizens are not affected by envy and jealousy, such
emotions having been veiled. Their concern now, satisfied as they are under rules
which they perceived as fair, is to pursue their own plan of life without being dismayed
by the greater amenities and enjoyments of others.79 While the individual may not
be totally insouciant to rank, he is assured that his need for status is met by the
public recognition of just institutions, together with the full and diverse internal life of
the many free communities of interests that equal liberty allows.80 In short, the basis
for self-esteem is not economic share but the publicly shared and affirmed distribution
of fundamental rights and liberties protected by institutions justly established.

78 374 U.S. 398 (1963)


79 Rawls at 544.
80 Id.

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What Rawls tells us in the end is that his theory of justice merely provides the
favorable environment under which man may pursue his dreams, where the loss of
freedom for some is not made right by a greater welfare enjoyed by others.81 Thus,
as against the utilitarian tendencies of sacrificing the minority for the comfort of the
greater number, Rawls provided the alternative theory, a viable systematic doctrine
[where] the idea of maximizing the good does not hold sway by default:82 It is in
this assurance of equality in political liberties that Rawlss theory of justice as fairness
is firmly rooted.

In this jurisdiction and in others, one of these institutions justly established


is the judiciary which must always be relied upon as the bulwark of the citizens
individual liberties against the power of the state. After all, only the state has the
wherewithal to endanger these liberties in more meaningful and substantial ways.
The judiciarys role as a just institution assumes extreme importance in this
continuing pursuit for justice where, in the process, political rights are continuously
subjected to the unrelenting onslaught of ever-shifting interests and changing
predilections of the sovereign. But our system is in place. The Bill of Rights assures
equality and protection for all. And even while the threats to these rights have
historically brought the upheavals of EDSA, and the sporadic revolts and revolutions
before that which ultimately ran out of steam on euphoric expectations for change,
we remain steadfast and zealous of these rights even while the realities thereafter
have fallen short of the promise. But the judiciary must be equally steadfast and
zealous even when the shouts of protest have died down. In the solemn task of
being the guardian of the balance, the judiciary must always be relied upon even
when the people have grown tired and fatigued of open dissent by warm bodies and
shrill voices and colorful slogans. In this sober task, it must not only be impartial
but veiled from biases and self-interestedness, naked in the face of its Maker, and
guided merely by rationality and conscience. Then and only then may Hamiltons
memorable phrase be taken in a different, but nobler context: the judiciary is, indeed,
the least dangerous branch from whom the people have the slightest cause for fear
of peril of their civil liberties. Perhaps, then, we can imagine John Rawls smile.

 

81 Rawls at 586.
82 Rawls at 586.

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Individualism as Mood:
Preliminary Thoughts
on the Emergence
of the Rhetoric of Liberalism
Florin Ternal Hilbay*

On December 10, 2008, the world commemorated the 60th anniversary of the
adoption of the Universal Declaration of Human Rights. In most parts of the globe,
state officials made declarations and resolutions, educational institutions and their
academics held conferences and forums, non-government organizations and human
rights institutions issued celebratory statements and renewed calls for advocacy. In
the light of the parallel reality that many of todays sovereign statesand we still call
them thatand non-state actors have embraced the idea of particularism at the level
of rhetorical and political commitment, the wide acclaim that the Universal Declaration
and its ideology of human rights have received is nothing less than a phenomenal
success in the marketing of ideas. The notion of human rights and the movement it
has spawned are now deeply embedded in global consciousness, directing the way
we view the world as individuals immersed in legal relationships with other individuals
and, most importantly, the state. How our normative world came to arrive at this
temporary configuration is a story that is at once complicated and complex, highly
political and remarkably subjective. Nonetheless, the attempt at narration must be
made so that we may be able to ground the abstract ideas of law to the concrete
events of history; for while it is possible to regard law itself as a separate theoretical
system, we must nevertheless remember that it is an institution shaped by the daily
lives of its participants played out in the theater of humanity.

My aim in this Essay is to highlight some narrative threads of the emergence


of human rights consciousness as we perceive it today, and in the way it is
communicated by its adherents through the alluring descriptive: everyone, everywhere,
always. The subject of this interrogation has little to do with questions related to the
characteristics of human rights discourse as a set of legal artifacts or with questions
of what and when; instead, it has to do with articulating the background conditions
that made it convenient, if not necessary and inevitable, to deploy the language of
rights in various philosophical, cultural, and political conversations of the inhabitants

* Melquiades Gamboa Professor of Jurisprudence, University of the Philippines, College of Law. A.B. (University
of Santo Tomas), Ll.B (Univ. of the Philippines), Ll.M (Yale Law School). This essay is based on a lecture,
entitled Rights delivered at the University of the Philippines, Law Center on 10 December 2008. This Essay
forms the first part of a series of pieces the aim of which is to historicize human rights discourse in the
Philippines.

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of an era. In particular, I am interested in the rise of the associated ideas of autonomy,


liberty, and individuality as basic concepts animating the notion of human dignity
which forms the core of human rights thinking today. Because we live in a global
society already caught up in the discourse of human rights, with all the implications
such a paradigm for democratic social organization carries, it is important that we
take a few steps back every now and then to reflect on the foundations of the linguistic
platform on which we stand even if only to heighten our sense of location in the
history of ideas and thereby tap into the material processes by which we have been
constituted.

This narrative I speak of can be situated technologically in the 15th century


with the development of Gutenbergs movable-type printer, and finds its political
culmination in the 18th century, in the period generally known as The Enlightenment.
Of course, the identification of The Enlightenment as a crucial period in the
conceptualization of human rights is, by itself, not new. After all there is, according
to Amnesty Internationals secretary general Irene Khan, a strong strand of thought
in the academy that points to that era as the source of the modern worlds
philosophical and political commitment to human rights.1 Nonetheless, this resort
to a preceding period as a source of succeeding ideologies, as human rights has been
so labeled, has in my view remained at a rather a high level of abstraction we might
as well consider such referencing a form of finger-pointing. In any case, the point is
not that such an ascription to the enlightenment era is unsupportable in the light of
the way history has so far been written, but that it seems such a shotgun approach to
attribution. There is a need to try to identify with some level of concreteness the
events during a particular period that led to which and what consciousness-forming
events. With special note on the fact that the 18th century was such an intellectually
potent era, how one brings to bear the power to interpret the facts of history affects
the saliency of certain strands of thought over others.

As I shall explain below, the rhetoric of human freedom of the enlightenment


thinkers in Europe can be seen as a byproduct of the technological transformation
in the production of knowledge that was initiated in the 15th century. To this extent,
this Essay is an attempt to reach a lower level of generality in the identification of
the material conditions that led to the emergence of human rights consciousness.
And so the questions that I investigate are not what ideas came out of the 15th to
the 18th centuries that have affected us today?because the stock answers to this
query we already know through our history booksbut first, what changes in the
production of knowledge came about and/or became settled and therefore,
paradigmatic, during this period and, second, how did such changes affect the menu
of human activities considered normal, that is, how did technological change produce
a transformation in the details of human existence, and third, how did the reconfigured
set of human activities become the building blocks for the development of the rhetoric
of individualism, liberty, and autonomy? In other words, what were the
characteristics of the new epistemic environment which, in turn, required the
1 Irene Khan, Knowledge, Human Rights, & Change, 28(2) Harvard International Review (2006).

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articulation of a reconfigured sense of self? The answers to these questions, however
tentative they may be, provide a more solid rendering of the foundations of the kind
of human rights consciousness we have today. They serve to situate the assumptions
of the forms of human rights advocacies we generally share within the wider swath
of the culture of ideas that connect those who have lived and thought before to
those of us today, making possible in our minds a more meaningful historical
connection to an identifiable portion of the past and its remarkable inhabitants.
This inquisitorial technique, in my view, also serves the powerful function of providing
us the analytical tools required to ascertain the stability of the foundations of present-
day discourses in the light of our altered forms of existence.

As a preview to my discussion of the questions posed above, I identify the


transition from manuscript to print culture as seminal events that are partly
responsible for the emergence of an environment hospitable to the acceptance of
the associated notions of liberty, autonomy, and individualism as a set of rhetorical
tools or linguistic arsenal through which human beings saw their relation to one
another and the then emerging state system in the west. They are precisely those
items of discourse which became the focus of the theoretical side of [Enlightenment]
political philosophy.2 The printing press, in particular, provided the technological
substrate that led to the transformation of the information architecture of the era,
thereby affecting the possibilities of knowing and articulating ideas about the world.
The print culture had a profound effect on the material conditions of human
existence; it made possible the rethinking of the fundamental bases of the relationship
of human beings to their society, and provided the very mechanisms for the
entrenchment of ideas including, most especially, those that have influenced our
views about what it means to be called human including, specifically, those types of
entitlements human beings should have in order to live the good life. The structural
changes in the epistemic environment of this era are responsible for the emergence
of a mass culture receptive to beliefs about and the practices of freedom many people
today consider largely incontestible.

If it were possible to sum up and describe the cumulative effects of these


changes, it is that they effected a decentralization in the capacity for the production
of meaning from high levels in the community (state, quasi-state, city-state, religious
or linguistic) to the level of the individual. Liberty, autonomy, and individuality, as
ideas informing human rights practice are, therefore, simply the bundle of
psychological entitlements that serve to maintain the effects of such structural
reconstruction of society leading to this decentralization. They are the linguistic
and conceptual mechanisms which serve to preserve the results of the transformation
western society underwent from the 15th to the 18th century, and whose effects we
still feel today not necessarily because of the logical appeal of the ideas of this era
but because of the quality of the technological changes in knowledge production
during that period compared with the others that have allowed the discourse in such

2 Lester G. Crocker, Interpreting the Enlightenment: A Political Approach, 46 (2) Journal Of The History Of
Ideas 211 (1985), at 214.

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ideas to attain the level of the canonical and the basis of the application of the
techniques of doctrine.

By way of qualification, the claim that I make here is not that the philosophical
idea of individual rights inhering in human beings is a uniquely western project for
many have, in fact, indicated that the notion of inherent human dignity is a widely
shared cultural convention among Asian societies. Instead, it is that the particular
formhuman rights qua rightsby which we now carry the project of promoting the
dignity of the human body is a product of a set of material events that occurred in
the west and which has made such form the convenient and dominant metaphor for
organizing our normative universe. At least for my present exposition, the claim
that the human rights project is a hegemonic tool by which a supposedly monolithic
western society seeks and is able to maintain epistemic control over the affairs of
the others, i.e., Asia and Africa, is largely irrelevant except for the recognition that
our modern-day conception of human rights is traceable to a specific, though not
exclusive, narrative that played out in the west. This acknowledgment, it should be
noted, is important primarily for the view that this specific instantiation of human
rights is a product of a set of historically contingent events.

Knowledge in Print. In his seminal work, Benedict Anderson provides a powerful


materialist account of the rise of nationalism.3 In the opening chapters of the work,
he notes that the appearance of the novel and the newspaper, the great innovations
of the 19th century, as partly responsible for the emergence of a linguistic community
which allowed temporally separated inhabitants to imagine themselves as being bound
together by their ability, as it were, to focus their consciousness on a specific narrative
in an overwhelmingly visual and aural sense. The ingenuity of this account is in
the plain artificiality of the idea of a nationthe notion that the unity of a large
conglomeration of human beings was deemed not a matter of nature, or tribal
affiliation or, even more crudely, of blood, but that it depended on how cultural
artifacts in print were instrumental in acting as a medium for the unification of a
vision of nation-ness. Such ingenuity, however, can be extended and flipped to produce
a different, if not contradictory, conclusion. By this I mean that while knowledge in
print was capable of creating a vision of community simultaneously constituted, it
was likewise capable of bringing about, as it did from the 15th to the 18th centuries, a
heightened and well-articulated sense of individualism, of separation of the self from
the community to which it belongs. The seeming paradox in this insight can be
explained by the fact that changes in material conditions of existence are
opportunities for the manufacturing of competing rhetorical tools. Thus, if the
novel and the newspaper were capable of producing a heightened apprehension of
togetherness, the same materials simultaneously allowed individuals to mark
themselves off from their communities as beings who differed in detail with
others and whose thoughts were accessible to others only through vicarious
experience.

3 Imagined Communities (Verso, 1983).

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It is no contradiction to hold that knowledge in print had the dual effect of
allowing human beings, looking outwards, to sense themselves as being united by
war, culture, language, myth, etc. and, looking inwards, to reflect on the deeply
personal and subjective nature of each and every experience. It is this fascinating
simultaneity of effects constitutive of the bipolar themes of community and
individuality that characterizes the rise of nationhood and rights-invested citizenship
as cultural and legal constructs. And while speculations on the material roots of
nationhood are already both broad and deep, those on individualism have remained
at the level of the purely philosophical and political, abstract and largely ungrounded.
But, as the reader may have already foreseen, if a materialist account of nationhood
is possible, so is a similar account of individualism considering the similarity in the
foundations of these twin concepts.

So far as the effect of knowledge in print is related to individualism, one must


not forget that the readers engagement with the printed material is a distinctly
solitary affair. In libraries, cafes, dining tables, bedrooms, benches, and carriages,
the reader is, first and foremost, an individual accessing knowledge as a being in
isolation. Her act of reading may of course be, as Anderson implies, the way by
which she is able to imagine herself along with other readers as part of a collective;
nonetheless, the activity of reading is a peculiar moment of separation of ones
consciousness from the outside world; it is itself an assertion of the privacy of the
mind so crucial to our notion of autonomy. By engaging the printed matter, she
detaches herself one step away from the common activity of living in the world in
which she is always immersed; she inhabits the life-world, but with the print as an
intermediary. One may be tempted to see this personal relationship with the text as
metaphorical, but for the reader grappling with the universe of text, this relationship
is as real as it can possibly get.

The epistemic environment in which we exist today allow, if not require, us to


discount the import of printed knowledge as it relates to our notion of self. Just like
the air we breathe, prints pervasiveness makes it invisible and its significance to
culture easily under-appreciated. But imagine a world in which information is encoded
in handwritten manuscripts instead of printed paper and one sees immediately the
stark differences in the way in which knowledge is produced, how it is accessed, who
holds the power of knowing, and for what purposes information may be controlled.
The information infrastructure of western society prior to Gutenbergs invention
was precisely such world. One may almost immediately anticipate the conclusion
that the world of manuscripts and the world of print were worlds inhabited by human
beings bearing different conceptions of selfbodies from (largely) the same genetic
pool, but with markedly different conceptions of time and space, as I shall later on
explain. Groping for a fashionable analogy, we could very well think of how todays
information revolution has allowed us to divide people between those who live
analog, and others, digital, lives. Those sensitive to the effects of digital encoding in
human life can easily compare how human beings of the early 20th century were
differently constituted from those who live in the 21st or how the particulars of
human existence, when carefully scrutinized, show markedly different platforms for
producing and interpreting meaning.
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The common ground between the digital revolution we experience today and
the switch from manuscript to print during the 15th to the 16th century is that both
transitions fundamentally altered, to borrow Ungers famous title, knowledge and
politics: information production, know-how, access, and therefore, political
consciousness. Human beings remained the kind of genetic pieces evolution has
produced, but with a radically different sense of how they relate to both themselves
and the world outside of them because the new information infrastructure created
possibilities for creation of meaning and production of knowledge in ways that were
not previously possible; in other words, the emergence of new regimes of information
necessarily produce human beings with an altered sense of humanity, of who they
are and what they can be. Because information is the material basis of knowledge
crucial to the conception of self and politics, every transformation in information
production alters both knowledge and politics. What follows below is a theoretical
account of how the transition from manuscript to print economy and culture made
conceivable the formulation of stronger variants of selfhood, with a focus on how
such transition affected the details of existence of the inhabitants situated within
the two information regimes.

The Manuscript Culture.4 A central aspect of the knowledge environment during


that period Europeans refer to as the middle-ages was the production of manuscripts
which, by the method of its production, graphically reflected relations of power in
that society. The production of manuscripts was, in the first place, a difficult
enterprise that required expertise, time, and material; it was literally a manual artistic
product. Anyone who has seen a manuscript can easily appreciate the level of skill
deployed for its production. To be sure, a manuscript was not simply parchment
with ink on it; nor was meant only to be readit was, in an age before capitalism and
which eschewed materialism, a work of quasi-industrial art. Here were see the merger
of two functionsthe book as art-object and the book as treasured text5in the
manuscript form which the arrival of the printed book eventually disaggregated.
Because they were produced manually, manuscripts took a long period to create.
This, coupled with the fact that the materials that can be produced could only be
copied from previously produced manuscripts necessarily narrowed the producers
of such works to those who had the combined abilities to invest time in their writing
and maintain the know-how required to pass on the skill, in addition to the possession
of manuscripts for copying. While printingthe mechanical reproduction of books
allowed the multiplication of identical information that made it susceptible to mass
production and thus wide dissemination, manuscript production made the
reproduction of knowledge simultaneously tedious, expensive, and erratic. The
result was a severely restrictive information regime unconducive to the emergence
of a reading and writing public sufficiently numerous to create and influence public
opinion. One is justified in saying that in such manuscript culture, the transaction
costs for the production of and access to information were prohibitive. One may

4 See Christopher de Hamel, A History of Illuminated Manuscripts (Phaidon, 1997).


5 Lisa Jardine, Worldly Goods (1996), at149.

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likewise conclude that such an environment could not possibly be considered optimal
for the growth of a mass-based market for information encoded in texts.

Needless to state, such manuscript-centered information ecology mirrored the


hierarchy and the narrow-minded focus for which feudal life is known. At least during
the monastic age, the production of manuscripts can hardly be considered an industry
for profit, its main function being the dissemination of religious information in the
form of the service book, the breviaries, the book of hours, the psalter, the lectionary,
and the missals. The universities, which were just beginning to exert their influence
in the world of popular knowledge, were not only minimal in number but also had
close ties to the hegemon of the erathe Churchwhich not only policed the
dissemination of information through their presence in the universities but also had
possession of many existing manuscripts. In any case, educational institutions of
the time were limited to the aristocracy, itself a miniscule portion of the population,
and remained closed to the overwhelming majority. This situation effectively reduced
the universitys role in the creation of a truly mass-based market for information
production and consumption. It is also worth pointing out that minus the engine of
capitalism, wide dissemination of information that was already expensive and time-
consuming to produce in the first place would have been very difficult to achieve.
Necessarily, this non-profit orientation in the production of knowledge had an
important effect on first, the power of the possessors and copyists of information to
regulate and maintain knowledge available to their intended audiences; second, the
role of the writers, whether their interest was in the arts, religion, politics, or
philosophy; and third, the quantity and quality of the members of the reading public.

Prior to the rise of the print industry, the monasteries and the abbeys were the
centers of knowledge production and the workers in this enterprise, the monks,
were required to spend significant portions of their time specializing in the
manufacture of manuscripts. This is a fact full of implications. That the producers
and re-producers of information were members of the religious had a significant
impact on the knowledge available to the inhabitants of the era: first, it ensured that
the materials available for consumption during the day had a content-bias, one that
leaned towards religious dogma or, at the very least, was not critical of the dominant
institutional practices of the time; second, the epistemic bias in the production and re-
production of information provided no safe haven for information on opposing
worldviews, that is, the information infrastructure provided no other popular avenue
for the production of critical opinions; third, that monks were responsible for the
physical act of producing manuscripts effectively made them both censors and vessels
for the propagation of knowledgethe scholar-scribe comingled the functions of
commentator, glossators, and reproducer of knowledge6; and fourth, the very physical

6 See Perry Wayland Sinks, The Reign of the Manuscript (1917), at 160. The monastic institution supplied, in a
special and adequate manner, through the abbeys and monastic houses in which, so to speak, it was domiciled,
a safe asylum and depository for the word of God. The common isolation of these establishments, together with
the reputed sanctity of their occupants, were double security against the hand of violence and, therefore, a
double means of preservation for the literary treasuresincluding both the Bible and classic literaturemade
and treasured therein.

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location of manuscript productionmonasteries and abbeysprovided a natural


barrier against dissemination of ideas noxious to the propagation of the dominant
worldview of feudal Europe.

The kind of language in which information was inscribed likewise had an effect
on the information ecology. The works considered important during the period, the
ones that the clergy and the scholars scoured and pored over, were written in Latin,
Greek, and Hebrew, which made the periods intellectuals trilinguals at the very
least. It seems peculiar today, but we must not forget that at the heart of the
Reformation was, apart from the debates over doctrine, a war over the primacy of
what language religious materials, most especially the Bible, ought to be printed in.
The terms of intellectual discourseof reading, writing, and debatingpresuppose a
common language communicants can understand. Such being the case, the realities
of the period meant that the relevant, and thus powerful, readers and speakers of
the day were those who had access to the grammars of the classics, for they understood
the code in which information was, as it were, encrypted. But in an era where
universities were just starting to be built, where knowledge was produced and re-
produced by the religious, where traveling for leisure or knowledge was non-existent,
where wealth was hard to come by, where manuscripts were expensive and literally
made to order, the only ones who had access to classical learning were the nobility,
the clergy, and the proto-bourgeoisie. These groups comprised such a small portion
of the population from which to constitute a pool that might be considered a reading
public or, even less, a learned society. One can barely imagine how highly exclusive
this particular knowledge community was. Just as important, at a time when heresy
and blasphemy could consign the speaker to a date with the stake, certainly the
ability of such a community to freely discuss must have been severely constrained.

To couch the situation in the language of information theorists, the architecture


of information production of the pre-printing era can be likened to a cathedral, as
opposed to a bazaar.7 During this period, the religious and a select few had a monopoly
of the pipelines of information and, as a consequence, an almost exclusive franchise
on culture and politics. This also meant that the overwhelming majority of the
inhabitants were illiterate or, though literate in the vernacular, unlearned in the
kinds of information that could deepen their understanding of the world around
them. Finally, that they had no access to a large chunk of knowledge available at
that time meant they had little opportunity to participate in and substantially influence
important cultural movements.

The restrictive information ecology of the pre-printing era not only directs us
to the centers of knowledge production and allows us to identify the eras guardians
of knowledge; it also permits the opportunity to wonder about what sorts of activities
the members of the general population engaged in during the course of their daily
existence. More specifically, it allows us to ask: how did such an information
environment affect peoples conception of time as it relates to their concept of self

7 See Eric S. Raymond, The Cathedral & The Bazaar (O-Reilly, 2001).

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and, by extension, freedom? One can posit several observations that can assist in
the formulation of an answer: first, most learning in mediaeval society was limited to
ecclesiastical knowledge coupled with high disincentives against dissemination of
critical views; second, in such pre-industrial society, time was spent mostly towards
meeting the practical demands of existence, that is, the business of life was directed
to the task of subsistence; third, in the absence of a knowledge culture with diffuse
bases, it would certainly have been difficult to conceive of a mass or popular culture
which can be the basis for learning and reflecting about how people live their lives.
These characteristics reinforce one another, constructing inhabitants of the era with
a conception of both time and space that is at once parochial and un-historical, their
daily lives narrowly focused on the raw physical appeal of their natural environments
and the received knowledge about their religion. If at all, the sense of community-
beyond-the-village that they derive was the prospect of a party of humanity in the
afterlife, either in a promised heaven or a threatened hell.

The relationship between the information ecology of a historical period with


its inhabitants conception of time and space is crucial to the kind of consciousness
a generally shared knowledge paradigm requires. So far, what I have tried to show
is that the kind of epistemic environment generated by the conditions during the
pre-printing era prohibits the emergence of a mass culture of individuals conscious
of their autonomy not merely from their physical environment but, more importantly,
from the social world that goes beyond the location of the village or the immediacy
of a life-span. By autonomy, I refer to that form of idea that would later on be
compartmentalized by John Stuart Mill, writing after the enlightenment era, as the
inward domain of consciousness, the liberty of tastes and pursuits, and the liberty
of combination among individuals.8 Put differently, the kinds of freedoms that
have become so canonical to the project of modernity were inconceivable in a time
and place whose information network centered on abbeys and monasteries and whose
information was written, not printed. In the next sub-section I detail how the
transition to a print economy effected various material changes that made libertarian
ideas rhetorically appealing to a significant number of inhabitants of the printing
era.

The Print Economy. A profound transformation in the production, dissemination,


and standardization of information from the 15th to the 18th century occurred, which
was made possible by the introduction of paper in Europe from China via the Arabs
three centuries earlier. This change not only reduced the number of working hours
needed to produce a book, but dramatically increased the intellectual output in books,
altering forever the readers relationship with what was no longer an exclusive and
unique object crafted by the hands of a scribe: the change was, of course, printing9
an epoch-making event that altered the way things change and the way they stayed
the same, affecting all forms of survival and revival.10 As is usual with the adoption
8 ON LIBERTY (1869).
9 Alberto Manguel, A History of Reading (1996), at 133.
10 Elizabeth Eisenstein, The Advent of Printing and the Problem of the Renaissance, 45 Past and Present 19
(1969).

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of a new technology, with printing, the reproduction of existing and new works
became cheaper and more efficient. With the rise of the printing industry came
crucial changes in the information ecology aside from simply the possibility of
reproducing more materials with better technology. That the printers were profit-
seekers who traveled different cities to market their technology was important insofar
as the incentives provided by the market reduced the hold of the church on printing.
One can safely say that the profit incentive was responsible for disentangling, at
least to the degree sufficient to diversify content, the role of the publisher and that
of the propagandist, religious or otherwise. The censor-monks became simply
participants in a large market in which they suffered the supreme disadvantage of
not being driven by the desire to make as much money as possible from the
publications they wished to distribute. Whereas previously, the core mechanism for
the dissemination of information was the religious motives of the scribes, with printing
that core mechanism became less religious and, to a certain degree, less content-
based. Religious printers had a natural incentive to produce works related to the
propagation of their faith, which incentive the ordinary printers did not share.
Instead, the latters incentive was the existence of a demand, real or apparent, for
any species of information which they can publish to make a profit. In the period of
transition from manuscript to print the relationships between authors, manufacturers,
buyers and backers were shaped by those kinds of accidental opportunities which
characterize any innovation in the commercial sphere.11 To the extent manuscript
and print were economic templates on which the production of knowledge relied,
the transition was simply a clash between two business models, one that was resolved
in favor of the for-profit printers.

Such orientation of the printers had the effect of drastically diversifying the
kinds of material available in Europe, as the relatively content-neutral basis for the
printing of materials opened up space for a wide number of publishable works,
including controversial ones. But perhaps, even more important, apart from providing
technological capacity for materials that could not be published during the pre-printing
era (either because the scribes did not want them published or because it was not
practical to spend the skills of the copyists on such materials), the print economys
drive to maximize its own potentials spurred the desire to create new materials.
Thus, once the popular materials during the manuscript era were printed to the
satisfaction of the market and the profits out of such conversion from parchment to
paper became marginal, the impetus to print other materials created a market for
new content. This is the foreseeable effect of the transition from one technology to
anotherit not only responds to existing demand, but also pushes the creation of
new and associated markets, in this case, the market for new content. The inevitable
consequence of these changes is the diversification of available information. This
diversification, in evolutionary terms, punctuated the equilibrium in the threshold
levelsboth in terms of quantity and qualityof information available for
consumption among the reading public.

11 Lisa Jardine, supra note 6, at 142.

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Along with quantity and quality came the lowering of the price of information.
Before, both the cost of manuscript and its acquisition, as well as other associated
constraints engendered by the manuscript culture, made its possession a privilege
and therefore a source and indicator of status. Privilege connotes exclusivity, and
exclusivity is always a source of power. The number of manuscripts available in
relation to the size of the population made it rare by todays standards. But the
cheapness of paper and the economies of scale made possible by mechanical printing
substantially brought down the price of printed matter, thereby opening access to
knowledge in print to a broader public that is less economically endowed and
interested in a wider range of information. Just as important, the book did not only
become cheaper, it also became available to buyers. Affordability and availability
are, of course, two different things: not everything that can be bought is available
for sale. But, as was pointed out earlier, it so happened that the bearers of printing
technologythe new copyistswere businesspeople, not monks, and their desire for
profits was enough incentive to look for ways to create and satisfy demand. Thus,
in addition to the lower costs of materials required to produce printed matter, the
proliferation of printers who established themselves over most cities in Europe to
take a slice in the new market substantially lowered the transaction costs associated
with acquiring printed information. No wonder the rise in the number of public and
private libraries in Europe closely paralleled the coming of the book.12

Both the availability and lower cost of information produced by profit-seeking


printers increased the collections of what could well be considered the information
oligarchy already existing during the manuscript era. At the same time, the same
characteristics of the print economy that allowed the members of such oligarchy to
expand their libraries also created space for participation by a larger public: first,
some of the popular materials to see print were the grammar booksinstructions
for the learning of the languages in which the classics were printed. For the first
time, the public, which before had no access to the codes in which classical learning
was written, came to know the Greeks, the Romans, and the eastern civilizations
from which they borrowed so much. This resulted in the expansion of readers
versed in pagan culture, in various civilizations that were in many ways more
sophisticated, esoteric, and exotic. And, second, the inertia created by increasing the
number of printed works made more materials available in the vernacular. Naturally,
because many of the members of the emerging reading public were not articulate in
Greek or Latin or any of the many languages in Europe except that which they had
grown to speak, they demanded the translation of materials written in those other
languages into their vernacular. This was revolutionary indeed, if only because,
whereas before, access to information in manuscripts was part of the many privileges
shared between the nobility and the clergy, with printing, such access became less of
a privilege. This privilege, of course, was cultural in character and, once widely
shared, became a social expectation. It is not difficult to see, however, that once
such expectation became a powerful source of diverse meaning to a significant number

12 Lucien Febvre & Henri Jean-Martin, The Coming Of The Book: The Impact of Printing 1450-1800 (1997,
Verso).

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of inhabitants who were starting to see themselves more and more as citizens, as
opposed to mere subjects, it became possible to conceive the notion of access to
information in the form of a general right to have those conditions that make
information available the obligation of the state to protect.

This materialist narrative of the commercialization of information through


the invention of printing now brings us to its effects on human beings and on how
such transformation left them susceptible to a reconceptualization of what it means
to be human and how, having conceived themselves differently, they came to develop
a rhetoric designed to protect such revised understanding of self. So far, what I have
described are the structural effects of the transition from manuscript to print that
focused on an analysis of the macro effects of the new technology. These large-scale
effects both constituted the new terrain in which information was produced in society
as well as the situation in which individuals of the era eventually found themselves.
The novelty brought by printingefficiency, lower cost, mass distributioncontoured
individuals habits of reading and writing, and ultimately, thinking and communicating.

New Sense of Self. The confluence of these printing-associated modifications in


the production of knowledge allows us to now theorize how such new information
environment became a catalyst for a reconfigured sense of self. For one, it is easy to
see that printing abetted the popularization of such deeply personal human activities
as reading and writing, forms of meaning-making that are intrinsically individualistic;
for another, it made possible the emergence of a reading public with a wider base
and diverse interests. Just as important, it allowed people to revise their thoughts
about such fundamental questions as the relationship between matter and spirit,
science and mysticism,13 and the nature of the divine.14 This new situatedness brought
a new form of individuality in several ways

i. Space.Widespread access to printed works allowed human beings a different


psychological template for looking at space. The eyes, after all, are limited but
flexible viewing devices. Because evolution is responsiveit solves problems that
lay to handand not pre-emptiveit doesnt equip us with all-purpose toolsit is
easy to imagine why human beings do not have the type of vision that crosses
mountains and seas. But the novelty of the printed matter is its ability to provide
the masses the means by which to breach the constraints of the physical environment
through vicarious viewingof someone or some others, of an event, of another
persons home, of another village or city, of someones thoughts and feelings, or of
something wholly unconnected with even the physical world. And the beauty of this
novelty is that this vicariousness is coupled with anonymityit allows the reader to
go online on this kind of vision space without the inconvenience of recognition.

13 For a fascinating account during Enlightenment-era France of the growing public interest in scientific matters
and the appropriation of natural philosophy into popular culture in the debate over the scientific status of
dowsing, See Michael R. Lynn, Divining the Enlightenment: Public Opinion & Popular Science in Old Regime
France, 92 (1) Isis 34 (2001).
14 See Cyril B. OKeefe, Conservative Opinion on the Spread of Deism in France, 1730-1750, 33 (4) The Journal
of Modern History 398 (1961).

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Imagine the reader, fully immersed in the pleasures of the moment, her mind
traveling, yet supremely sovereign, inaccessible, and private. This, no doubt, is an
experience full of meaning especially to those who had had the opportunity to witness
the transition from manuscript to print and therefore endowed with the means with
which to compare the intellectual pleasures of one against the other. The explosion
of reading materials was, for all intents, the illumination of areas previously darkened
by the sheer lack of opportunities for seeing-by-reading. With print, human beings
acquired a vision space that brought them to a detailed past and an infinitely
complicated present, thereby enhancing the quality of how they experience their
own lives.

ii. Time.The printed work also allowed the reader to transcend time. Without
it, her connection with the past was severely restricted to oral history and other
forms of impression. Of course, the manuscript permitted readers the same access
as the printed work; but the salient feature of print was its pervasiveness which
permitted a much wider public to scrutinize the details of the lives and ideas of
others that have lived and thought, and savor the intellectual products of those still
alive. Whereas time for those who existed before the print economy was lived in
terms of the daily motions of the sun around the earthor so they thought until they
read Galileos Dialogue Concerning the Two Chief World Systemsthe printed work gave
sizeable members of the population the ability to move their consciousness, at the
level of the individual, forwards and backwards. This not only gave them greater
control over time by increasing the span of history they were able to play with, it
also, and perhaps even more importantly, heightened their sense of difference. The
civilizations of the Greeks, the Romans, Africa and Asia not only came to light with
the arresting presence of the foreign, but also unsettled the tyranny of the present,
that mental timeframe that have held captive the minds of those who have not or do
not read. Among the many consequences one could speculate, one of those that
stand out would be the greater focus on the importance of the moment, singled out
in a larger canvass of history. We see the reading public of anonymous individuals
a collective of consciousness connected only by their engagement with texttraveling
in time but always ending their journey with a return to the present, now cast in bold
relief as the arena of concrete experience.

iii. Authorship.Michel Foucault famously declared: [t]he coming into being


of the notion of an author constitutes the privileged moment of individualization in
the history of ideas, knowledge, literature, philosophy, and the sciences.15 The
creation of the author as a new niche for legal entitlements in the form of intellectual
property constituted an aspect of a special kind of human beingthe writing subject
into a separate compartment of legal and cultural discourse. And so the writer, once
a creative being who sought meaning by expressing and who sometimes published
for fun, posterity, or money, became an authora legal artifact separable from the
writer, even capable of surviving her death, and protected by state. The author is a
creature of the market whose history may be found in the development of the laws

15 What is an Author? in The Foucault Reader (1984), at 32.

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of copyright. This development, in turn, is intimately intertwined with the print


economy and the controversies it brought about.

As I have previously noted, the search for profits out of printing expanded the
market for creators of content, especially when materials encoded in manuscript
had already been printed to the satisfaction of the public. Prior to the emergence of
the printing industry, authors who sought to live by their creativity survived through
the system of patronage by which we now know the Medicis. But the patronage
system, just like any other form of relation, had its advantages and disadvantages.
Understandably, patrons had an interest in the status quo or had economic and
political interests they sought to protect, and these considerations affected both the
expression of the author and the marketability of his ideas. The reading publics
demand for content was responsible for the disentanglement of this relationship
between author and patron, as the former started seeking wherewithal for the sale
of his work from the printer who gambled on the profitability of the new work. This
was not a natural and easily development; if anything, it was controversial and the
debates over copyright involved the monarch, conflicting ideologies, and of course,
god. 1720s France is a good example. Employing the doctrine of divine revelation
and a long tradition of medieval thought, the kings ministers argued that ideas were
a gift from god, revealed through the writer.16 Authors were not allowed to publish
their manuscripts, and only members of the royal guild of publishers and printers
were permitted to engage in the printed publication of what was royally deemed to
be gods knowledge.17 Eventually, authors, instead of simply selling their works to
printers by a contract of sale, devised and fought for laws that gave them greater
controlprivilges dauteurover the works beyond the old terms of sale. This form of
enhanced protection we now call copyright.

These related events marked a seminal moment in the freedom of the mind:
first, that authoring became profitable meant that intellectual creation, one of the
most powerful and distinctive forms of assertion of ones individuality, was now a
source livelihood for manyan industry by itself, a novel, if profitable, category of
meaningful existenceand another niche not only for the literate and the emerging
bourgeoisie, but also the poor and angry, hungry and expressive; second, that the
author became less bound to the wishes of the patron meant greater freedom in the
selection and expression of content, thus providing an avenue for social criticism
and public propaganda; third, that authoring at a wider scale was now possible meant
that speakers who distinguished themselves as such became the new high priests of
the print economy, powerful speakers and models in an era of anonymity; fourth,
that the printers compass was the market meant that even expressions critical or
hostile to the settled ways of society found print so long as there were buyers and
the dangers to the printer (and other costs) were reasonable risks compared to
potential returns.

16 Carla Hesse, Enlightenment Epistemology and the Laws of Authorship in Revolutionary france, 1777-1793, 30
Representations 109 (1990), at 111.
17 Id.

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These developments helped initiate the critique of the permission regime in
the publication of information, helping relegate the enterprise of writing and printing
more and more to the category of the private. For those familiar with constitutional
law, what immediately comes to mind are the rhetorical weapons used by advocates
against the no permit, no publication policy of monarchs and parliamentsfree
speech and freedom of the pressthe very rights we consider so fundamental today
to the operation of the liberal state.

Unpacking the details of the changes brought about by the emergence of the
printing industry, what used to be considered an unacknowledged revolution,18 is
a work requiring an analysis of a technological innovations relation to a revolution
in the production of knowledge, a task historians since the second half of the century
have been performing. In relation to the emergence of the liberal mindset, and to
the extent forms of consciousness may be located in material conditions in a particular
society, the printing industry is responsible for the emergence of two powerful
communities greatly interested in freedoms associated with access to information
the reading public and the community of authors. These communities, at the beginning
of the modern era, were the ones best situated to propagate both the freedom to
inquire and to articulate; and printingthrough the book, the leaflet, the newspaper
provided their craving to learn and to speak the technical underpinning through
which the desire to know and be known could be satisfied. These communities of
readers and authors, armed with a new conception of time and space, became the
embodiment of the civilized person: the reading and writingthe educatedhuman
being, what we might call the homo articulus. Compared to the more mundane tasks
of herding, fishing, hunting or farming, this new human beings relationship with
the printed matter allowed her access to a more transcendent form of consciousness,
a life of the mind, a higher form of existence, a new standard of civility.

One distinct feature these communities have in common is their mutually


reinforcing interest in information, a material of value they came to consider as so
fundamental to meaning-making, and therefore crucial to their notion of the good
life. The commerce in information, of which reading and writing were integral pieces,
brought about new, varied, and highly individuated forms of introspection that
generate massive and deep sense of meaning to the members of these communities.
The investment in time spent by anyone who enjoys (or even so much as pretend to
enjoy) the activity of reading or writing is an empirical attestation of this. Those
who live today have access to an even wider stream of content; nonetheless, the
reading and writing performed by human beings have remained essentially the same.
This fact allows us to comparatively appreciate the fundamentality of access to
information as the basic mechanism that makes these activities both useful and
enjoyable, and thus a core component of the kind of freedom so central to liberty
and autonomy. It also allows us to see why the rights we normally associate with
liberty are so important: it is because they serve the function of preserving the benefits
obtained by the reading and writing public from the transition from manuscript to

18 Elizabeth Eisenstein, The Printing Press As An Agent of Change (1979).

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print. This is the point in characterizing individualism as a general mood that captured
the intellectual environment generated by the print economy: before the idea of
legally enforceable human rights, whether set up against the state or the monarch,
was the set of material events I have just described, leading to a cultural conception
of freedom dependent on the effects of technological change. This is why
individualism, seen as a mood that influenced the intellectual environment and
captured the imagination of readers and writers at the dawn of the print era, has
potent explanatory capacity in providing an understanding of the rhetoric of rights.
Put differently, what print economy augured was a structural transformation in the
production of knowledge whose primary effect was the emergence of individualism
as a public expectation, which itself required the political commitment to some notion
rights for the maintenance of the very effects of such transformation.

Individuality in Community. Transitions from one paradigm to another bring


about a reformulation of the paradoxes that govern the new environment. For instance,
in the movement from manuscript to print, we see the signs, so pregnant with irony,
of an emerging tension between individuality and community. True, the communities
that brought to bear the power of printing can be seen as a collective; indeed, it is in
printing that the production of knowledge became a truly social activity, one that
required the participation of a large portion of the population for the success of the
diverse ventures that came with it. For the first time in the history of the world, the
knowledge of the ancients, of foreign lands, of the high and mighty, of the dead and
gone, and of the fantastic claims of other belief-systems, became largely available to
large segments of the population. But beyond mere access, and even as society at
the end of the 18th century remained hierarchical, imperial, and oligarchic, the
possibility of popular participation in public affairs, at least in the west, started to
attain the thresholds of normality. Public opinion quickly became not simply an
opinion held by the masses on a speculative level, but a term of art for a collective
that found its voice in printconcrete, accessible, diverse, readable, and noisy.

At the same time that printing was paving the way for a mass-based reading
public engaged in the discourse of common language, such platform for
communication was unleashing a wide space for introspection that could only have
effected a deepened sense of individualism. One must not forget that only a few
activities come close to being as private as reading and writing, even if only because
by reading we burn printed matter into our consciousness, transforming it into a
lived experience, and by writing we literally give birth to the products of the mind.
In either case, these activities are actually instances of powerful attempts by
individuals to assume authorship over their lives. In a world of expanded knowledge,
the opportunities for the mind to browse, reflect, and otherwise engage in creative
mimicry become more intense and diverse, making the mind more capable of
engaging in acts of self-definition. This function of self-authorship, which we now
take for granted as available to everyone, is fundamental to the liberal mindset.

These having been said, we now see the connection between two apparently
separate events: the emergence of the print industry and the rise of individualism as
72 IBP JOURNAL
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a popular mood. What connects these events is what printing has made available to
a vast number of inhabitants from the 15th to the 18th century which, one may suppose,
was to some extent already available, albeit restrictively, to the knowledge oligarchy
of the medieval and renaissance periods. It is printed information at a reasonable
cost. This, of course, is not to say that individualism was literally invented during
this period or that prior to the printing industry, human beings had no consciousness
of their individuality. While we may assume that human beings, as evolved forms of
life, have had, since the dawn of humanity, that sense of individuality crucial to allow
them to survive (whether they know this or not) by considering their own interests
as a default rule of existence, this form of individualism is just pure self-interestedness
at the level of the person, unmindful of its social situation. The liberal mindsetor
ideology, to make it even more emphaticis the idea that human beings, though socially
constituted, have the right to engage in acts of self-authorship even in the face of a
more powerful social authority. This notion is a by-product of culture, not an innate
idea. This mindset among individuals became possible only because they became,
through the printed text, linguistically connected as members of a discursive
community of readers and writers. Thus, the individuality characteristic of 18th
century liberal thinking is epiphenomenal to the extent that it is the result of the
preliminary existence of a discursive community, necessarily connected through print,
but simultaneously increasingly aware of its members individuality. It is not the
loose notion of freedom to do whatever one desires simply, but a form of situated
freedom that recognizes its function both as a means and as an endit is the means
by which other possible freedoms and the freedom of others are equally guaranteed,
and the end by which selfhood is intimately expressed. This liberalism accepts, as
its basic assumption, the existence of the common enterprise of maintaining a viable
market for the exchange of ideas. It is in this spirit that Voltaire famously declares
of disagreeable ideas, I may not agree with what you say, but I shall defend to the
death your right to say it. In this statement one captures the simultaneity of the
notions of individuality and community inherent in the concept of freedom that
emerged in the print economy; it is the idea that the discourse of freedom,
while placing its focus on the individual as the unit of meaning-making, is nonetheless
self-conscious of the need maintain the ethic of togetherness in the venture at
hand.

Voltaire, by promising to defend with his life the right to speak of a person
whose idea he disagrees with, fulfills the terms of the tacit contract of the liberal
social organizationthat the continued functioning of the new information paradigm
requires a commitment from the communitys members to protect individual
speakers. Individualism as a mood therefore had both self- and other-regarding
aspects, which was how the protection of freedom was conceived before the rise of
positive law and constitutional doctrine that now places the burden to protect rights
more saliently on the shoulders of the government and less on the community of
readers and writers. Without constitutional norms that bound the state to guarantee
fundamental rights, the community of readers and writers were left to construct a
culture of protection of the members of the community with the larger purpose of
protecting the community itself. These rules of self-protection, once assimilated
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into the ethic of the community, became the rhetorical weapons directed against
those who threatened the expectations of freedom of the reading and writing
public.

The new traffic in information generated by the print economy not only
transformed the material conditions of thinking, but also unsettled the configurations
of power in society. The new community it engendered, with public opinion as its
source of both power and legitimacy, was a natural threat to royalty and theocracy
and their tool of enforcementthe emerging state bureaucracy. The diversity of the
sources of public information that print made available to the public necessarily
made it a potential equal opportunity offender and the status quo was not spared
from its articulate voice. This is to be expected. Every movement from one type of
social organization to another inevitably results in tension because, as the new one
replaces the old, it renders obsolete some aspects of the other or undermines the
foundations of its mechanisms. Many invest, financially or ideologically, in the
continued functioning of the old regime, and the need to protect such investments
leads to inevitable clashes. The transition from manuscript to print was no different.
Manuscript, as the fundamental unit on which the medieval social organization relied
for the preservation and dissemination of knowledge, did not have the property of
tending towards massive distribution, a characteristic the printed matter
comparatively had. The kinds of spaces opened up by the print economy made
salient the political character of the traffic in information, opening them to
contestation, renewal, and temporary closure. To be sure, the old information
infrastructure had political effectsits function, deliberate or otherwise, was to allow
the present power holders to preserve control over information and many other
privileges. The print economy exposed both the restrictive and hierarchical nature
of this architecture, and facilitated the drawing of battle lines between the old guards
of the ancien regime and their perceived successors.

Knowledge in print, therefore, besides simply providing an expedient and less


expensive substrate for reading and writing, ushered in a new epistemic environment
that allowed individuals to re-conceptualize themselves as individuals and members
of society. The fundamental basis of this change was the new relationship between
human beings and information, mediated by printing. This resulted in a
decentralization which we may describe two-fold as first, the shift from a monopolistic
production of knowledge to a more social production of knowledge and, second, the
transition from a content-controlled manuscript culture to (at least eventually) a
more or less content-neutral print economy. This double-aspect decentralization,
we may conclude, were the structural transformations in the information
infrastructure that brought about the modern era from whose cultural products we
still so heavily depend.

 

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Individualism as Mood:
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of the Rhetoric of Liberalism

Raising Medical Jurisprudence


from its Death Bed*
Rustico T. De Belen**

At the outset, this article aims to provide a scholarly perspective that can help
avoid ambiguity in dealing with the discipline that lies in the intersection of medicine
and law. This article also underscores that medical jurisprudence can verily delve on
the clinical aspects of medicine or medical knowledge as applied, and to be applied,
by the courts in cases before them. But it does not lose sight of the fact that medical
jurisprudence is basically the study of relevant laws and jurisprudence in relation to
the practice of medicine. However, medical jurisprudence is viewed here in its various
contexts to fully understand its ramifications and competently discern its signification
in the post-modern age. It is regarded in the succeeding discourse as an emerging
field of inquiry sanctioned by long usage and its being a required subject in the law
curriculum which one must pass before he/she is allowed to take the bar examination.

Evidently, the Rules of Court provide that: No applicant shall be admitted to


the bar examinations unless he has satisfactorily completed the following courses in
a law school or university duly recognized by the government: civil law, commercial
law, remedial law, criminal law, public and private international law, political law,
labor and social legislation, medical jurisprudence, taxation and legal ethics (Sec. 5,
Rule 138; underscoring supplied). Medical jurisprudence is defined thus as the study
of law and jurisprudence in medical education, medical regulation, and medical
practice, including the application and appreciation of forensic evidence and the
patients rights.

* Some portions of this article were lifted from the book Medical Jurisprudence by Rustico T. De Belen,
published by C & E Publishing, Inc. early this year. Lest it be misunderstood, this author has no illusion to
replicate or surpass what Dr. Solis had achieved, be it in law, medicine or both. In fact, he recognizes his
monumental achievements in both medicine and law. In his humble attempt to raise the bar of medical
jurisprudence, this author wrote his book on medical jurisprudence to contribute to its literature, correct the
misconceptions of people in various aspects of law and medicine combined, and provide a scholarly framework
for its study. This book highlights the importance of health and justice in the study of medical jurisprudence. As
stated in its preface, it hopes to serve as a handbook on medical jurisprudence and to help lawyers, judges and
doctors formulate or fine-tune their approach to science and technology as applied to the courts.
** Currently the Deputy Director of the Supreme Court Mandatory Continuing Legal Education Office. He was
formerly the Assistant Secretary and OIC-Undersecretary for Policy Planning and Legal Affairs of the Department
of Agrarian Reform. He wrote several books on health and law such as Medical Jurisprudence (2009), Dental
Jurisprudence (2009), A Praxis in Community Health Nursing (2008), Public Health Care for Community
Development (2008), Nursing Law, Jurisprudence and Professional Ethics (2007), and Significant Laws, Rules
and Regulations and Standards of Nursing Practice (2007), to mention a few. He is now writing Pharmacy
Jurisprudence to complete his book series on health jurisprudence. He also holds the following professional
degrees: Bachelor of Arts in Political Science, UP Diliman; Bachelor of Science in Nursing, St. Dominic Savio
College; Bachelor of Laws, Arellano Law School; Master in National Security Administration, National
Defense College; Master of Laws, San Beda College; and Doctor of Philosophy in Peace and Security
Administration, Bicol University Camp Crame Peace Program.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 75


Rustico T. De Belen

The most prominent guru in Philippine medical jurisprudence, Pedro P. Solis,


was a lawyer-physician who was widely respected in the field of law and medicine. He
was the most sought-after forensic expert in the country. Regarded by many as the
countrys foremost luminary in medico-legal practice, he was a leading educator in
the integrated area of medicine and law. In his honor, the UP College of Medicine
created the Pedro Solis Professorial Chair in Forensic Pathology. For several decades,
his knowledge on medico-legal subjects has been beyond reproach, and his brilliant
ideas and expert opinions in various topics of law and medicine combined have been
accepted without question. His name has been immortalized in the fields of law and
medicine. He is simply unrivaled with his sterling credentials, impressive reputation
in the legal and medical professions and magnificent accomplishments as a medico-
legal expert.

Dr. Solis tackled medical jurisprudence and legal medicine separately in his
books Medical Jurisprudence (1988) and Legal Medicine (1987), thus creating unwanted
distinction, if not uncertainty, in the emerging medico-legal practice and doctrine in
the Philippines. He considered medical jurisprudence as the study of the aspect of
law and legal concepts which has to do with the practice of medicine (Solis, 1988:1);
and legal medicine as the study of the application of medical knowledge to purposes
of law and in the administration of justice, including the application of basic clinical,
medical and paramedical sciences to elucidate legal matters (Solis, 1987:1).
Apparently from his book Legal Medicine, the concept of forensic medicine is
subsumed, if not used to mean or refer to legal medicine, while medical jurisprudence
is restricted by the expansive scope of legal or forensic medicine and its self-limiting
definition.

A cursory reading of both books by Dr. Solis yields to a view that medical
jurisprudence relates only to the legal aspect of medical practice and forensic or
legal medicine is all about the medical aspect of the practice of law, thus impetuously
dividing the two fields of study instead of uniting and harmonizing them, or better,
delineating their respective scopes and boundaries for clarity. Most of the present
breed of experts and professors in the area, who frequently lecture in various legal
education programs all over the country, and teach the subject in various law and
medical schools, have subscribed to this view of Dr. Solis. More often, they have
synonymously used or interchanged legal medicine with forensic medicine, or medical
jurisprudence with forensic or legal medicine. They have thus approached and even
taught medical jurisprudence without accurately defining its nature and scope, and
sans any framework for better understanding of the subject. This has retarded the
progress of medical jurisprudence to the point of putting it to its present death bed.
For this reason, this author was compelled to raise his voice and state that it is
medical jurisprudence whether the issue deals with or involves the application of
medical knowledge to the practice of law or legal knowledge to the practice of
medicine, particularly when it is viewed in the context of justice.

76 IBP JOURNAL
R aising Medical Jurisprudence from its Death Bed

Solving the Problem of Meaning


Almost all authorities in the combined area of law and medicine are physicians
first and lawyers second. Dr. Solis, the most popular medico-legal author and expert
in the subject, confined the concept of medical jurisprudence to the aspect of law
and legal concepts which has to do with the practice of medicine (Solis, 1988:1). On
the other hand, he defines legal medicine as the application of basic and clinical,
medical and paramedical sciences to elucidate legal matters (Solis, 1987:1). The
foregoing definition of medical jurisprudence has been followed or adopted by Ng,
Po and Po (2008) in their book Medical Laws and Jurisprudence as it mainly presents
the legal aspects of medical practice. Worse, according to Ng and Po (2007) in their
book Forensic Science, strictly legal medicine should include both forensic medicine
and medical jurisprudence (p.1). They borrowed the definition of the American
College of Legal Medicine (ACLM) that legal medicine is the professional and
academic discipline which concerns itself with legal aspects of medical science, medical
practice and other health-care delivery problems (ibid.). Their safe but superficial
distinction of the two disciplines is as follows: legal medicine is a specialized area of
medical practice, concerned with the relationship between medicine and the law,
while medical jurisprudence is a specialized area of legal practice, concerned with
the relationship between medicine and the law (ibid.).

Similarly, in his legal education paper entitled Medical (Mal)practice: Laws and
Jurisprudence, Capule (2008) defines the three terms as follows: (1) medical
jurisprudence as the application of the principles of law as they relate to the practice
of medicine, to the obligations of the practitioner to his patients, and to the
relations of physicians to each other and to the society in general (citing Dorlands
Illustrated Medical Dictionary, p. 873); (2) forensic medicine as the branch of
medicine dealing with the application of medical knowledge to the purposes of law
(Dorlands, p. 999 ); and (3) legal medicine as a branch of medicine that relates to the
practice of law embracing the definition of ACLM (p.6). He argues that medical
jurisprudence is an old nomenclature, while legal medicine is a modern terminology
(ibid.). Like the above-mentioned authors, Capule does not characterize medical
jurisprudence with clarity and accuracy to distinguish it from forensic or legal
medicine. It appears from his definition that medical jurisprudence is narrowed down
to the application of law to the practice of medicine and other issues related thereto,
thus overlooking the fact that it can be used the other way around the application
of principles of medicine to the practice of law.

Moreover, most law and medical schools have included legal medicine and/or
forensic medicine as required subject/s in their respective law and medical degree
programs, thus adopting Solis school of thought. They also conform, whether
consciously or unconsciously, to the prevailing notion that medical jurisprudence is
based on the original concept, and that Section 5, Rule 138 (making medical
jurisprudence as one of the subjects required before taking the bar examination)
must be the study of legal medicine as it was the intention and practice of the past
(Solis, 1987: 1). This, to the authors mind is not in compliance with the Rules of
VOLUME 34 NUMBER 2 (OCTOBER 2009) 77
Rustico T. De Belen

Court and an anathema to the advancement of medical jurisprudence as an important


branch of law. Yes, it is old but not obsolete. Neither does it box its application nor
inquiry to the legal aspect of medical practice, as it can be made otherwise. In the
study of medical jurisprudence, it may be the practice to use legal or forensic medicine
in the past as instigated or perceived by medical practitioners. However, to say that
medical jurisprudence is an old name and make legal medicine as a modest substitute
for being the modern one is not only giving preference to the latter at the expense
of the former but also slaying the former through obsolescence or non-use for being
superseded.

Court of Appeals Justice Maambong shared his observation on the issue by


pointing out in one of his lectures that:

Forensic science started with medical practitioners who gave evidence on


the probable causes of unnatural death after an autopsy is carried out by
a pathologist or medical examiner, and the records were referred to as
medical jurisprudence. In law school, we studied the subject Legal
Medicine which does not really appear to an apt description of the course.

The foregoing misconception of medical jurisprudence could be attributed


first to the policy of the government making legal medicine as one of the subjects in
the model law curriculum under DECS Order No. 27, s. 1989, re: Policies and
Standards for Legal Education, in spite of the fact that it is categorically prescribed
by the Supreme Court. The Commission on Higher Education (CHED) has been
holding onto this policy in legal education because of the profound impact of Dr.
Solis works in the context of health (medicine) and because of the dearth of
researches and studies on the subject from the perspective of justice (law). Another
reason could be the combined influences of Spanish and American laws to the
Philippine legal system. The Spanish regime was known for sowing the seeds of
legal education in the Philippines through the establishment of the University of
Santo Tomas Faculty of Civil Law in 1734, while the American occupation set up
the first state law school at the University of the Philippines in 1911. As of 2004,
there are already about 104 law schools operating in the country under the supervision
of the CHED (CHED Technical Panel Study dated 14 January 2004). Most of these
law schools prescribe legal medicine and/or forensic medicine in their law curricula.
Note that the CHED is mandated by law to approve the permit to conduct and
operate Bachelor of Laws (LLB) or Juris Doctor (JD) curriculum of law schools.

In short, the authorities and scholars themselves are the ones confounding the
problem of usage and meaning of medical jurisprudence. Some of them acknowledge
or consider medical jurisprudence differently from legal or forensic medicine but
they use and apply them indistinctly in their books, articles and lectures. Others
argue that they are one and the same as the first (medical jurisprudence) is an old
concept and the second (legal medicine) is the current one. However, the ambiguity
or confusion begins to surface when they operationally define any of them in relation
to the other, and worse, when they apply them. Their refuge is often to go back to
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Dr. Solis definition, thus, legal medicine as basically the application of medical science
to legal problems; and medical jurisprudence as the application of law to medical
practice. They usually give the utilization of the DNA technology in the Philippine
Court System as a classic example of the first, and the application of the law on torts
and damages in medical malpractice cases or health-care liability suits as a common
illustration of the second. For this author, medical jurisprudence encompasses both
first and second examples as it deals with the application of medical knowledge to
the field of law, including the legal aspects of medical practice. Simply put, it is
concerned with the use of both legal and medical knowledge in the administration of
justice, whether it is legal knowledge in the practice of medicine or medical knowledge
in the practice of law and regardless of the actor.

Considering that medical jurisprudence is the one categorically required by


the Court under Section 5, Rule 138 of the Rules of Court, it must be specifically
used and enriched as a mandatory subject in the law degree or curriculum of all law
schools, be it public or private, to contribute to its advancement through its usage,
debates and discussions inside and outside of the classrooms. Through researches
and studies, its scope can be enhanced and elevated to an even wider context and
broader perspective to encompass not only the legal aspects in the domain of medicine
but also the application of clinical procedures to aid the administration of justice.
Medical jurisprudence includes all concerns and questions that bring any medical
person in contact with the law, the legal person in contact with medicine or medical
knowledge, and the use of medical and legal knowledge combined to promote health
and justice. It must stand up as a separate body of knowledge, fight for its autonomy
as a discipline, and be recognized on its own merits by advancing its knowledge
claims and contributing to national development. It must be used to instill not only
the value of justice but also the essence of health to the people. It is how this author
views medical jurisprudence in its various contexts to fully understand its implications
and competently use and apply them to achieve the end of health and justice.

Unveiling Medical Jurisprudence through Etymology


The word medical qualifies the operative subject, jurisprudence; thus, joining
them together we come up with the term medical jurisprudence, which literally means
that medicine is in contact with law or vice versa. To further understand the context
and meaning of medical jurisprudence, it is more prudent to start with the origin of
terms medicine and jurisprudence. First, medicine comes from the Latin word medicina,
which is derived from the Latin term ars medicina, meaning the medical art or the
art of healing. The practitioner of the art of healing in ancient times is called medicus,
meaning physician. It was regarded as an art in earliest times because ancient medicine
was basically concerned with the use of therapeutic self through human feeling,
motivation and compassion to relieve the disease, suffering or ill-condition of the
patient. Medicine in ancient times was often practiced by a person with a divine
power to heal the body of illness or curse and leadership qualities to rule his people.
For example, Imhotep of Ancient Egypt, who was regarded as the worlds first doctor,
VOLUME 34 NUMBER 2 (OCTOBER 2009) 79
Rustico T. De Belen

was a high priest, physician, chief minister, among other occupations. However,
contemporary medicine employs medical technology and clinical expertise, aside
from the face-to-face relief of suffering. Their integration in the courts system
enhances the body of knowledge of medical jurisprudence and the administration of
justice.

Second, jurisprudence is derived from the Latin words juris and prudentia, which
mean law or legal and knowledge, wisdom or prudence, respectively. Juris refers to
oral legal tradition and to functional applications of law, to and in particular sets of
facts and circumstances, whereas prudentia pertains to one who behaves prudently
or wisely because s/he has knowledge of the possible consequences of a particular
action (De Belen and De Belen, 2007: 25). Broadly, jurisprudence is defined as the
theory and philosophy of law which aims to (a) understand the fundamental nature
of law, and to analyze its purpose, structure, and application, and (b) acquire a
deeper meaning of the law, the kind of power that it exercises, and its role in
human societies (ibid.). It is the study of law and rules of conduct and their utilizations,
including the socio-economic and political milieu and factual antecedents surrounding
such applications.

Generally, jurisprudence connotes not only the established decisions of the


Supreme Court, collectively known as the case law or judicial precedent, but also
the statutory enactments, rules and regulations related to medical education, medical
regulation, medical administration and medical practice. Going beyond the traditional
understanding of jurisprudence in the Philippine legal system, it may mean law,
including its intention, interpretation and application. Not only does it mean law in
general, it is also connected to the concept of ethics and morality in the community
because of its objective to achieve and promote justice as evidenced by its etymological
origin. Jurisprudence and ethics share many societal similarities but their common
denominator is their goal to establish a state of justness and wellness in the individual
in particular and the society in general.

Also, jurisprudence has been regarded as a separate philosophy or an


independent body of knowledge, particularly when it is combined with other
disciplines to form a new field of study such as medical jurisprudence, nursing
jurisprudence, dental jurisprudence, pharmacy jurisprudence, socio-political
jurisprudence, and ethno-jurisprudence, to name a few. In this case, jurisprudence
does not only deal with the structure of the legal system such as equity or justice,
but it seeks to draw on unrestricted elements of life and the world to aid the
critical study of law along with the theory and philosophy of the discipline wherein
it is utilized or made part of (ibid.). Applied to any professional practice, jurisprudence
does not only deal with the legal standards in the practice of a profession but also
with the factual circumstances and conditions affecting such profession. It is thus an
ever-expanding field of study, particularly when it is integrated with any of the health-
care disciplines and/or professions, and when it is examined in its various contexts
for different applications.

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Emerging Fields in Health Jurisprudence


Jurisprudence has acquired a deeper meaning in various fields of health. Nursing,
Pharmacy, Dental Medicine and the other allied health professions have created or
developed their respective fields of inquiry in the arena of health jurisprudence.
They have apparently resolved or preferred to name the study of law and
jurisprudence related to their respective professions by affixing jurisprudence to
their respective disciplines such as nursing jurisprudence, pharmacy jurisprudence,
dental jurisprudence, etc., thus using law and jurisprudence to amplify and advance
their respective fields of study. They have developed their own bodies of knowledge
that strengthen the practice of their respective professions. Firstly, nursing
jurisprudence is important to nursing profession because it focuses on the study of
nursing laws, lawsuits, liabilities, legal principles, rules and regulations, case laws
and doctrines affecting the nursing practice (De Belen and De Belen, 2007). It includes
the teaching of jurisprudence on fault and negligence to make every nurse more
prepared and less vulnerable to professional malpractice, negligence or misconduct
charges in the practice of the nursing profession.

Secondly, the study of dental jurisprudence includes knowing not only the
applicable laws and jurisprudence, but also understanding the extent of legal liability
and accountability in case the dentists action causes damage, harm or injury to the
patient. It means not only acquiring some knowledge about the nature and scope of
lawsuits and liabilities in dental care management, but also becoming more aware of
the standard of dental care and the act or omission that constitutes fault or negligence
in the provision of oral treatment to the patient. Thus, dental jurisprudence clarifies
and addresses the scope of dental medicine, the legal accountability in dentistry, and
the issues, concerns and problems of dental practice and management in the country
and the world over (De Belen, 2009 (2): 5).

Thirdly, pharmacy jurisprudence is vital to all health-care professions because


it is concerned not only with pharmacy education, regulation and practice but also
the laws relating to drugs. It includes the study of the Comprehensive Dangerous
Drugs Act of 2002 (R.A. No. 9165) which punishes certain acts done in connection
with prescription and administration of dangerous drugs and controlled precursors
and essential chemicals used to manufacture dangerous drugs. Dangerous drugs
include those listed in the Schedules annexed to the 1961 Single Convention on
Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to
the 1971 Single Convention on Psychotropic Substances as enumerated in the attached
annex which is an integral part of this Act (Article I, Sec. 3 (j)). While controlled
precursors and essential chemicals include those listed in Tables I and II of the 1988
UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
as enumerated in the attached annex, which is an integral part of this Act (id., Sec. 3
(h)). Notably, the pharmacist, physician, dentist, veterinarian and other professionals
authorized to dispense drugs under the law, are required to comply with the record
keeping standards provided under Section 40 of R.A. No. 9165.

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Fourthly, therapeutic jurisprudence is another emerging field of jurisprudence.


It is a term first used by Professor David Wexler, University of Arizona Rogers
College of Law and University of Puerto Rico School of Law, in a paper delivered to
the National Institute of Mental Health in 1987. It was initially conceived to focus
on the inquiry on the extent to which substantive and procedural rules, procedures
and principles and the legal actors (lawyers and judges) generate or produce therapeutic
or anti-therapeutic consequences for all individuals involved in the legal process. It
has expanded its compass to include other pillars and stakeholders of the criminal
justice system and all persons affected thereby such as the litigants, law-enforcers
(police), prosecutors, court personnel and witnesses (ordinary and expert). It is an
interdisciplinary approach to law that concentrates on the impact of legal rules,
processes and institutions and the legal stakeholders on peoples emotional lives
and psychological well-being. It envisions lawyers practicing with an ethic of care, a
sense of justice and enhanced interpersonal skills, who respect the justice system
and the rule of law, value the psychological and emotional well-being of their clients
as well as their legal rights and interests, and address legal problems through
therapeutic and problem-solving methods.

Lastly, medical jurisprudence deals with issues and questions that bring
medicine in contact with the law or vice versa, be they involving rights, privileges
and other concerns in the entire gamut of physician-patient relationship. It must be
viewed beyond its customary definition as the application of medical knowledge to
elucidate legal issues and problems. It is concerned with the study of the legal aspects
of medical practice as they involve risks to the public, brought about by negligence,
and unlawful and unethical conduct. It deals with cases concerning blood relationship,
mental illness, injury, or death resulting from violence. It addresses all issues or
questions of health-care workers in conflict or contact with law and legal standards
of professional practice, pertaining to the rights of individuals, particularly patients
and health-care providers, and on the accountability of physicians for the injuries or
damages suffered by the patients. It uses science and technology as implements of
justice or to support the criminal justice system for it helps to punish the guilty and
to save the innocent from punitive action. In a rape case, for example, medico-legal
examination can prove the crime of rape through physical evidence such as hymenal
laceration. In case of death, too, examination of the dead body can identify the
cause of death, whether as a result of homicide or suicide as evidenced by stab
wounds, drowning, asphyxia, fire arm, burn, poisoning and other physical evidence.

In medical jurisprudence, medical knowledge can be used in various directions


and standpoints: first, it can be applied to health promotion and disease prevention;
second, it can serve not only to deter crime but to resolve it; third, it can be used for
the purposes of research and development; and fourth, it can be utilized to render
scientific opinion on legal problems and cases. Medical knowledge employed in
resolving legal problems and cases may directly pertain to the function of a medico-
legal expert or jurist. Scientific or expert opinion of medical experts are imperative
in deciding whether an injury is dangerous to life, when it was inflicted, what type of

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weapon caused it; was it ante-mortem or post-mortem, was it natural, accidental,


suicidal or homicidal. On the other hand, the legal knowledge, case opinion or
jurisprudential stance of lawyers on medical issues is needed in the construction of
case theory, formulation of policy and decision-making, as the case may be.

These are just among the significant functions of medical jurisprudence showing
that it is indeed a branch of law because medical knowledge is used as a means to a
legal end. Specifically, it serves as an implement of law in the administration of
justice, particularly, to determine the agent of injury or death, the nature and
characteristics of injury, and the approximate time of injury or death. Aside from
cases of injury or death resulting from violence and accident, medical jurisprudence
utilizes science and technology in cases concerning genetic relationships (e.g., DNA
fingerprinting), rape, child abuse and other physical assaults (e.g., medical
examination), and annulment of marriage on the ground of psychological incapacity
(e.g., psychological and/or psychiatric examination), etc. In fine, in the study of medical
jurisprudence, medicine can be considered as a means to attain the purpose of justice,
while law can be employed to support medicine to achieve its noble goal - health.

Medical jurisprudence is thus raised here from its demise and in the midst of
the prevailing usage or immense popularity of the terms legal medicine and forensic
medicine in the legal and medical professions in the Philippines. It is presented in
this article and in the book Medical Jurisprudence of this author with the end in
view of uniting and harmonizing medicine and the law through researches and studies,
and adhering to the Rules of Court. As an autonomous discipline, it must be advanced
by going out of the traditional school of thought - medical jurisprudence is the legal
aspect of medical practice, while legal or forensic medicine is the application of
medical knowledge in the practice of law. It can be further developed through
continuous researches and studies, critical analyses and discussions of the application
of science and technology in the court system, specifically forensic evidence. However,
we can only do so much and go so far through proper usage and faithful compliance
with the rules.

Raising the Bar of Medical Jurisprudence


Medical jurisprudence is a promising field of study that can cut across various
areas of medicine, law and other allied health sciences. As it permeates other domains
of learning, it can always be institutionalized to include countless subjects that
traditionally belong to other disciplines. The process of knowledge generation and
integration in medical jurisprudence can be effectively achieved through the
construction of framework and the use of correct theoretical grid to sustain its
empirical appeal. But this does not suggest incursion to the aspects that legally and
logically or scientifically belong to the study of legal or forensic medicine. It simply
advocates for an interdisciplinary approach in the study of medical jurisprudence to
find its synergy with other disciplines and competently include the application of
science and technology to promote and enhance the ethico-legal competence, integrity
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Rustico T. De Belen

and professional responsibility and develop the legal skills and health consciousness
of all persons affected by or involved in the administration of justice. This article
maintains its position that medical jurisprudence deals with the laws and jurisprudence
in medical education, medical regulation and medical practice, including the
appreciation and application of science and technology in the court system and the
protection and promotion of rights of all stakeholders in the health-care delivery
system.

For clarity, medical jurisprudence has its limitations and is not envisioned to
penetrate, conduct or engage in specialized examinations and testings of the forensic
medicine as they require highly technical education, training and skills, on top of
astute knowledge of modern technology and equipment. Forensic medicine has
developed various technological procedures among which are (a) the use of post-
mortem examination to determine and look into the human body for concealed
wounds, foreign objects and other physical evidence; (b) the use of chemical analysis
to see visible traces of poison, establish the identity of body, body parts and fluids,
and other evidence; (c) the use of microscope to see tiny lesions, crystals, microbes,
and distinguish hairs and fibers; and (d) spectroscopic analysis of blood, tissues and
material found on or near the body of the victim to distinguish and match trace
elements that link the body of the victim, crime scene and perpetrator. In this case,
medical jurisprudence is limited to the analytical study of codes, ethico-legal standards,
laws and jurisprudence in medical or forensic education and practice, including the
appreciation and application of the findings of or evidence derived from forensic
knowledge and technologies. With the processes of forensic science to obtain forensic
evidence, it is expected that said evidence can stand the scrutiny of judges, expert
witnesses, lawyers, professional peers and the public to make them useful to law
and justice.

Further, medical jurisprudence is much more useful in the governments medical


tourism program. It can be utilized not only in the formulation of legal rules and
policies for health and wellness program of the government but also the economic
analysis of the laws and regulations affecting the program. With its niche in tourism
and hospitality, the Philippines can surely make a difference in its efforts to make
the country a medical tourism destination. However, to succeed in this program and
make it a key to economic development, it must conduct an economic analysis of law
and jurisprudence to identify the changes needed in laws, rules, regulations and
enforcement mechanisms in the medical tourism program to enhance economic
efficiency and improve equity (Buscaglia, 1999). On top of modern medical
infrastructure, the country needs to create a credible, accountable and acceptable
legal system that provides safety, comfort and peace of mind for the local and foreign
patients and investors. Physicians should neither be alarmed nor should they oppose
the passage of medical malpractice law or any measure for the protection of patients
rights as they can equally push for the passage of a new medical practice law to
secure their profession and protect their interests. They must help the government
in establishing a legal infrastructure for the medical tourism program that is investor-

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friendly and patient-friendly to attract foreign patients and investors in the health
sector. A successful medical tourism program will ultimately benefit the physicians
in particular and the health sector in general because it would mean an increase in
the number of patients and investments in the health-care delivery system to address
the upsurge of patients, and the consequential increase of job opportunities not
only for the physicians but all other health-care providers. Thus, the economic benefit
of the law outweighs its speculative risks to the medical profession.

The economic analysis of law is only one aspect of medical jurisprudence as a


field of inquiry. It is also crucial to make an economic and legal analysis of the
hospitals where the patients and health-care providers converge and where medical
negligence usually happens. Hospitals now are highly organized and manned by highly
professional medical staff whose competence and performance are subject to periodic
review and evaluation to ensure the quality of patient care. This is the reason why
the courts of various jurisdictions have found or suggested in some cases that the
doctrine of corporate negligence is more in consonance with the modern hospitals,
particularly when respondeat superior or apparent authority is unavailing; that the
captain-of-the-ship doctrine is antiquated; and that the independent contractor doctrine
merits a closer examination. However, the courts should always be cognizant of
various doctrines in medical malpractice claims to effectively address the problem in
allocating liability for the negligent acts of healthcare practitioners. They should
always be mindful that not all cases can be boxed into the given standards and
protocols or established legal doctrines. There will always be instances that the
courts will be required to resolve on a case-to-case basis, guided by experience, the
findings of experts, and the processes of science.

It is also important to understand the impact of the legal processes upon the
well-being of those involved and their implications for the attainment of the objectives
of the criminal justice system. Litigation is indeed a very stressful endeavor or
activity. Medical jurisprudence could address the implications of stress in the
administration of justice by knowing its impact upon the health and well-being of
those involved. It can hardly be relied upon for development of the means, methods
and approaches to mitigate and eliminate the stress of litigation by judicial counseling,
offender rehabilitation, and other therapeutic practices to alleviate anxiety and
distress. This has been filled by therapeutic jurisprudence, which is regarded as a
branch of health jurisprudence that focuses on the role of law as a healing agent,
particularly the extent to which a legal rule or practice promotes the psychological
and physical well-being of the people it affects (Schma, 2000: 1). This discipline is
essential not only to the study of medical jurisprudence but also in the cross-border
healthcare program of the government.

Equally important in medical jurisprudence is the application of science and


technology in the court system. Neither envisioning to have encyclopedic knowledge
of law and economics, and science and technology nor intending to engage in an
exhaustive inquiry for cosmic understanding of all disciplines related to this field of

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Rustico T. De Belen

study, medical jurisprudence aims to raise the standard of medical education,


regulation and practice in the Philippines and to provide particularized solutions to
legal issues and disputes in the combined areas of law and medicine. It leads and
works to understand how the processes of science can further serve the end of justice
by not limiting its inquiry into the standard of care and protocolized diagnosis and
treatment in medical malpractice cases. And it aims to expand its body of knowledge
by viewing it in its various contexts to fully appreciate its compass and magnitude.

Finally, when judges and those learned in laws use medical findings and evidence
including their expert opinions and apply them in their cases or decisions, it is medical
jurisprudence no less. Medical jurisprudence brings medicine and the law to aid the
administration of justice and to protect not only the patients but also physicians and
all other health-care workers involved in the healthcare industry. One vital interest
of medical jurisprudence is the reliability and acceptability of the process and outcome
of science and technology in the courts system. Thus, the judges handling medical
malpractice cases as triers of facts need to have forensic or medical training to become
effective gatekeepers of forensic evidence.

REFERENCES

Buscaglia, Edgardo. Law and Economic Development. Hoover Institute, Stanford


University, 1999.
Capule, Rodel V. Medical (Mal)Practice Law and Jurisprudence. Lecture
Paper for MCLE Seminar conducted by Arellano Law Foundation, May 2007.
De Belen, Rustico T (1). Medical Jurisprudence. Quezon City: C & E Publishing,
Inc., 2009.
De Belen, Rustico T (2). Dental Jurisprudence. Quezon City: C & E Publishing,
Inc., 2009.
De Belen, Rustico T. and De Belen, Donna Vivian V. Nursing Law, Jurisprudence
and Professional Ethics. Quezon City: C & E Publishing, Inc., 2007.
Ng, Peter P. and Po, Philip U. Forensic Science. Manila: Philippine College of
Medical Researchers, Inc., 2007.
Regalado, Maambong E. Forensic Ballistics, Dactyloscopy/Science of
Fingerprints, Examination of Questioned Documents and Other Trace
Evidence. MCLE Lecture conducted by Legis Forum Inc., 2008.
Schama, Honorable William. Therapeutic Jurisprudence. National Center for
State Courts, 2000.
Solis, Pedro P. Legal Medicine. Quezon City: RP Garcia Publishing Co.,1987.
Solis, Pedro P. Medical Jurisprudence. Quezon City: Garotech Publishing, 1988.

 

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Exemption on Docket Fees


for Selected Labor Cases
on Certiorari and Appeal
Solo V. Tibe*

There is no meaningful distinction between a rule which would deny the poor
the right to defend themselves in a trial court and one which effectively denies the poor
an adequate appellate review accorded to all who have money enough to pay the costs
in advance . . . . Such a denial is a misfit in a country dedicated to affording equal
justice to all and special privileges to none in the administration of its criminal law.
There can be no equal justice where the kind of trial a man gets depends on the
amount of money he has.
US Justice Hugo L. Black

Introduction
The framers of the 1987 Philippine Constitution enshrined easy access to
justice by the poor and protection to labor as sacrosanct principles of our
democracy. From the Articles on the Declaration of State Policies and Principles,
the Bill of Rights up to the Social Justice and Human Rights provisions, the right to
access to justice of the lowly working man has been sanctified.

The State shall promote social justice in all phases of national


development. (Article II, Section 10)

The State affirms labor as a primary social economic force. It shall


protect the rights of workers and promote their welfare. (Article II,
Section 18)
Free access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of poverty.
(Article III, Section 11)

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.

* Legal Counsel, National Federation of Labor Unions (NAFLU), one of the largest labor federations in the
Philippines.

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Solo V. Tibe

It shall guarantee the rights of all workers to self-organization,


collective bargaining and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. They shall be entitled
to security of tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility


between workers and employers and the preferential use of voluntary
modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production
and the right of enterprises to reasonable returns to investments, and to
expansion and growth. (Article XIII, Section 3)

It is said that the Constitutional framers considered the power base of the
1986 socio-political revolution which ousted the 20-year dictatorship. That power
base emanated from the people, most of whom were lowly workers, farmers, destitutes
and members of marginalized sectors. This mass base has proven critical and
indispensable in many a political transition in the country, and arguably was observed
even recently with the demise of a popular icon of Philippine democracy, former
President Corazon C. Aquino.

The United Nations Development Programme (UNDP) defines access to


justice as the ability of people from disadvantaged groups to prevent and overcome human
poverty by seeking and obtaining a remedy, through formal and informal justice systems, for
grievances in accordance with human rights principles and standards.

Towards this end, the Supreme Court has adopted philosophies, rules, projects
and programs placing prime importance on easy access to justice by the poor. Such is
the case of the Action Program for Judicial Reforms initiated by former Chief Justice
Hilario G. Davide and the judicial philosophy of Liberty and Prosperity of former
Chief Justice Artemio V. Panganiban. And, certainly, this is the moving force and
direction of the Justice on Wheels Program as well as the Access to Justice program
being undertaken by current Chief Justice Reynato Puno.

There remains however pockets of areas in the current judicial system that
may not be consistent and compatible with the foregoing democratic objectives We
refer to the apparent difficulty of certain types of workers in raising their cases,
however meritorious, to the appellate courts due to the high cost of docket fees and
required documentation.

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Exemption on Docket Fees for Selected Labor Cases
on Certiorari and Appeal

Payment of Fees and Implications


to Access to Justice of Labor
The Supreme Court, by the exercise of its exclusive powers to regulate the
judicial system, has established rules in the filing of actions from the lower court up
to the appellate courts and fixing the docket fees thereto. Settled is the rule that
payment of docket fees is jurisdictional, the absence of which is fatal to the action of
the party raising it.

It is well-established that the payment of docket fees within the


prescribed period is mandatory for the perfection of an appeal. This is so
because a court acquires jurisdiction over the subject matter of the action
only upon the payment of the correct amount of docket fees regardless
of the actual date of filing of the case in court. The payment of the full
amount of the docket fee is a sine qua non requirement for the perfection
of an appeal. The court acquires jurisdiction over the case only upon the
payment of the prescribed docket fees. (Meatmasters Internatonal
Corporation vs. Lelis Integrated Development Corp., G.R. No. 163022,
28 February 2005)

Then again, the Court has allowed parties to be exempted from payment of
docket fees in certain exceptional cases, mostly because they are pauper litigants.

This paper advocates that there are parties under peculiar circumstances, such
as the workers enumerated below, who may not be technically considered pauper
litigants, but arguably stand on the same footing:

1. Workers dismissed for lack of just and authorized causes who have been
awaiting resolution of their cases at the NLRC for more than six (6) months;

2. Workers who were retrenched due to unlawful closure of the company.

3. Union officers and members who are parties to inclusion-exclusion cases


or pre-election controversies raised on appeal.

4. Union officers and members who, after the initial period of recognition by
any valid mode of election, conducted a strike due to the refusal to bargain
of management;

5. Union busting cases during the early period of union formation;

6. Surviving bereaved children and widow/widower of the Overseas Filipino


Workers (OFWs), either land-based or sea-based, who are claiming
permanent disability benefits and death benefits for more than six
months.

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Solo V. Tibe

It is interesting to note that the National Labor Relations Commission does


not charge any filing fee at the initiatory arbitration branch level. However, the fee
is pegged at P550.00 on appeal at the commission level. The rate then skyrockets
and multiplies a thousand fold or 1000% when a worker raises his action to the
appellate courts, to wit:

Rule Action Venue Fe e s

65 Petition for Certiorari CA P 5000.00


TRO 500.00

45 Petition for Review on Certiorari SC 4500.00


TRO 500.00

This is not to mention the cost of documentation and the reproduction of


voluminous documents plus the cost of serving to the public and private respondents.
Together, these financial requirements stand as big burdens and serious impedimentz,
and may even be discriminatory to the lowly workers who wish to raise their cases to
the higher courts to seek relief.

In so saying, this paper does not seek to discount the importance of fee collection
in the court system as this helps defray the cost of judicial operations. In fact, it is
part of the fiscal autonomy being enjoyed by the judiciaryto be able to raise its
own revenue. But it must be stressed that such fees must take into account the
capacity to pay of party litigants. Certainly, it cannot be gainsaid that workers,
especially those who have been displaced, have limited financial ability.

Take for instance, the case of a security guard who served a security agency
for more than twenty (20) years and then was floated for more than six (6) months
and later dismissed due to an alleged serious financial setback. After more than six
months waiting for posting and another six months or more fighting his case at the
Labor Arbiter and the NLRC, this illegally dismissed worker has to produce at least
Seven Thousand Pesos (P7,000.00) to defray his dockets fees, cost of reproduction
documents and cost of courier service to the opposing parties to file a petition for
certiorari on the NLRCs adverse ruling, sans any professional fee to his counsel
assuming his case is under pro bono arrangement!

Another example is the case of union officers and members who were illegally
dismissed during the early stage of union formation or negotiation for a collective
bargaining agreement, and the battle to reclaim their positions at the labor arbitration
level lasted more than six months. These workers cannot secure gainful employment
with another employer since they are union officers and members, while they have
no income for the last six months. They most certainly cannot afford to raise a
minimum fund of P7,000.00 to file a petition for certiorari against an adverse NLRC
ruling. During this period, the union only de facto exists and, as such, has no standing
fund to cover the cost of litigation at the appellate courts.
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Or take the case of inclusion-exclusion and pre-election cases at the shop-floor


whereby the management made all sorts of legal maneuvers such that the case went
straight to the Secretary of Labor and Employment and later the local union received
an adverse ruling. The local union will definitely be at a loss how to raise their case
to the CA for at that point. It remains de facto with no operational fund to defray a
higher plane of legal battle and it can only rely on its mother organization, the labor
federation which has yet to receive any share from the local union dues.

Furthermore, consider the case of a mother and child of a deceased Filipino


seaman, who died due to cirrhosis of the liver, hypertension or any work-related
disease within the period of his overseas employment contract or shortly thereafter.
Arguably, the family of an OFW has a good financial condition during the time that
the OFW is still fit to work and can send dollar remittances. However, the familys
standing becomes different when the same OFW contracts a permanent serious
disease or dies due to an occupational disease, and the family has to fight for claims
against the foreign principal and the domestic agency at the NLRC. In a one-year
period of actual arbitration, the family becomes destitute due to the cost of medication,
hospitalization and therapy, such that when they now receive an adverse ruling from
the NLRC, they can hardly afford to raise their case to the appellate courts due to
their own dire needs.

There is not much government data to reflect this truism, but based on the
2006-2007 annual report of the NLRC, the possibility of workers raising their cases
up to the CA and SC for reliefs is quite unlikely.

Cases Received 2006 2007


Commission 10,110 9,069
Regional Arbitration Branches 30,543 31,644

Cases Handled
Commission 17,927 17,342
Regional Arbitration Branches 45,083 46,338

Source: NLRC Performance Report 2006-2007

In the said NLRC report, cases received at the regional arbitration branches
would run from 30,000 to 31,000 cases per year, but the number is significantly
reduced to one third (1/3) upon reaching appeal at the commission level. The report
is incomplete and it does not reflect the figures of workers withdrawing or desisting
from appealing their cases due to financial considerations.

VOLUME 34 NUMBER 2 (OCTOBER 2009) 91


Solo V. Tibe

The Rule on Pauper Litigants


Arguably, the present system provides for a mode by which parties can raise
their cases to the higher courts as pauper litigants, and be exempted from docket
fees. On 01 March 1, 2000, Rule 141 on Legal Fees was amended by the Court in
A.M. No. 00-2-01-SC, whereby certain fees were increased or adjusted. In this
Resolution, the Court amended Section 16 of Rule 141, making it Section 18, which
now reads:

Section 18. Pauper-litigants exempt from payment of legal fees.Pauper litigants


(a) whose gross income and that of their immediate family do not exceed
four thousand (P4,000.00) pesos a month if residing in Metro Manila,
and three thousand (P3,000.00) pesos a month if residing outside Metro
Manila, and (b) who do not own real property with an assessed value of
more than fifty thousand (P50,000.00) pesos shall be exempt from the
payment of legal fees.

The legal fees shall be a lien on any judgment rendered in the


case favorably to the pauper litigant, unless the court otherwise
provides.

To be entitled to the exemption herein provided, the litigant shall execute


an affidavit that he and his immediate family do not earn the gross income
abovementioned, nor do they own any real property with the assessed
value aforementioned, supported by an affidavit of a disinterested person
attesting to the truth of the litigants affidavit.

Any falsity in the affidavit of a litigant or disinterested person shall be


sufficient cause to strike out the pleading of that party, without prejudice
to whatever criminal liability may have been incurred.

More recently on 16 August 2004, in view of the passage of Republic Act No.
9227 introducing a new wave of increase in docket fees, the Court further amended
Section 18 of Rule 141 in Administrative Matter No. 04-2-04-SC, which became
effective on the same date. The rule on pauper litigants now reads:

Sec. 19. Indigent litigants exempt from payment of legal fees. Indigent
litigants whose gross income and that of their immediate family do not
exceed an amount double the monthly minimum wage of an employee
and who do not own a real property with a fair market value as stated in
the current tax declaration of more than Three Hundred Thousand Pesos
(P300,000.00) shall be exempt from payment of legal fees.

The legal fees shall be a lien on any judgment rendered in the case
favorable to the indigent litigant unless the court otherwise provides.

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on Certiorari and Appeal

To be entitled to the exemption herein provided, the litigant


shall execute an affidavit that he and his immediate family do
not earn a gross income abovementioned, and they do not own
any real property with the fair value aforementioned, supported
by an affidavit of a disinterested person attesting to the truth
of the litigants affidavit. The current tax declaration, if any, shall be
attached to the litigants affidavit. (Emphasis supplied.)

Amendments to Rule 141 (including the amendment to Rule 141, Section 18)
were made to implement RA 9227 which brought about new increases in filing fees.
Specifically, in the 16 August 2004 amendment, the ceiling for the gross income of
litigants applying for exemption and that of their immediate family was increased
from PhP 4,000.00 a month in Metro Manila and PhP 3,000.00 a month outside
Metro Manila, to double the monthly minimum wage of an employee; and the
maximum value of the property owned by the applicant was increased from an
assessed value of PhP 50,000.00 to a maximum market value of PhP 300,000.00, to
be able to accommodate more indigent litigants and promote easier access to
justice by the poor and the marginalized in the wake of these new increases in filing
fees.

Section 22, Rule III of the Rules of Court likewise provides:

Pauper litigant.Any court may authorize a litigant to prosecute his


action or defense as a pauper upon a proper showing that he has no
means to that effect by affidavits. certificate of the corresponding
provincial, city or municipal treasurer, or otherwise. Such authority
once given shall include an exemption from payment of legal
fees and from filing appeal bond, printed record and printed
brief. The legal fees shall be a lien to and, judgment rendered
in the case favorably to the pauper, unless the court otherwise
provides. (Emphasis supplied)

In the case of Algura vs. Local Government of the City of Naga (G.R. No.
150135, October 30, 2006), the Court explained in greater detail the rules on
pauper litigants. It noted therein that under the present rules, if an application for
exemption meets the salary and property requirements under Section 19 of Rule
141, then the grant of the application is mandatory. On the other hand, when an
application does not satisfy one or both requirements, then the application should
not be denied outright; instead, the court should apply the indigency test under
Section 21 of Rule 3 and use its sound discretion in determining the merits of the
prayer for exemption.

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Solo V. Tibe

Revisiting the Pauper Litigant Rule


It is submitted however that, despite the noble objectives in crafting the
revitalized Rule 141 or Rule 3, the application of the same still stands stringent
and inconvenient, if not discouraging to the foregoing workers. For one thing, the
rigors of going through the process would be an added imposition on the litigating
workers, what with the attendant delay and the uncertain result of the application.
More so, these workers do not necessarily fit into the description under Rule 141, as
they are minimum wage earners. In addition, an OFW may have established at least
a family home, but hardly will his family dispose the same for legal fees only and
disposition of which will entail another pile of expenses. Due to the big loss of their
income for a long period of time, coupled with the high cost of docket fees, they now
lie on the same boat as pauper litigants.

Chances are, these workers are more inclined not to raise their cases, however
meritorious they are, to the appellate courts since they have no wherewithal to do it.
They will simply resort to silence and keep their grievances to themselves, letting
the injustice committed against continue unchecked and unpunished. Meanwhile, on
the other side of the fence, the offenses of management to labor continue and
perpetuate. Management knows very well that the lowly workers cannot last the
long uphill climb of legal battles. Surely, even without official government statistics,
many cases of destitute workers have been prematurely lost as they opted to keep
their grievances to themselves than bring them to the appellate courts precisely due
the high cost of docket fees.

It is for these reasons that this writer advocates that the Supreme Court ought
to revisit the rules on docket fees, thus allow the foregoing groups of workers
sufficient latitude to raise their cases on appeal at the CA and the SC as groups
similarly situated to pauper litigants. Full exemption to the rules will be the best
scenario, but a graduation of fees may be acceptable depending on the scale that can
be established.

Conclusion
The Courts requirements on payment of docket fees for all legal actions,
initatory as well as those cases raised on appeal and certiorari to the appellate courts
remain sound and very much applicable to a wide range of litigants. It is noteworthy
that the Court has established an alternative mode for indigent parties to have access
to justice under the Rules of Court.

This paper however only seeks some more possible exceptions to the payment
of docket fees, specifically for certain groups of workers who are in a peculiarly
difficult economic standing, but not necessarily falling under the category of pauper
litigants as defined under the rules.

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A popular Philippine President once said: Those who have less in life should
have more in law. This adage has become a cornerstone for future state policies
and declarations to accommodate the poor, which includes the lowly working man.
This writer adheres to such a maxim and advocates for the democratic principles of
the 1987 Constitution to be given more fruition in order to benefit the members of
the working class and the families who are dependent on them. All these, in
accordance with the Constitutional principles of equality, protection to labor,
democracy and social justice.

 

VOLUME 34 NUMBER 2 (OCTOBER 2009) 95


Eduardo A. Labitag

Survey of 2008 Court Decisions


on Property and Land Registration
Eduardo A. Labitag*

I. Classification of Property
A . For the register of deeds to issue a new certificate of title, she
must require the submission of the approved subdivision plan
together with the approved technical descriptions and the
corresponding owners duplicate certificate of title.

Secretary of the DENR vs. Yap


G.R. No. 167707.October 8, 2008. (568 SCRA 164)

FACTS: These two consolidated cases involved the right of the present
occupants of Boracay Island to secure titles over their occupied lands. The first was
a petition for review on certiorari of the Decision of the Court of Appeals affirming
that of the Regional Trial Court in Aklan granting the petition for declaratory relief
filed by respondents-claimants Mayor Jose Yap, et al. and ordering the survey of
Boracay for titling purposes. The second was a petition for prohibition, mandamus,
nullification of Proclamation No. 1064 issued by President Gloria Macapagal-Arroyo
classifying Boracay into reserved forest and agricultural land.

HELD: A positive act declaring land as alienable and disposable is required.


In keeping with the presumption of State ownership, the Court has time and again
emphasized that there must be a positive act of the government, such as an official
proclamation, declassifying inalienable public land into disposable land for
agricultural or other purposes. In fact, Section 8 of CA No. 141 limits alienable or
disposable lands only to those lands which have been officially delimited and
classified. The burden of proof in overcoming the presumption of State ownership
of the lands of the public domain is on the person applying for registration (or
claiming ownership), who must prove that the land subject of the application is
alienable or disposable. To overcome this presumption, incontrovertible evidence
must be established that the land subject of the application (or claim) is alienable or
disposable. To prove that the land subject of an application for registration is
alienable, the applicant must establish the existence of a positive act of the government
such as a presidential proclamation or an executive order; an administrative action;
investigation reports of Bureau of Lands investigators; and a legislative act or a
statute. The applicant may also secure a certification from the government that the
land claimed to have been possessed for the required number of years is alienable
and disposable.

* Professor, U.P. College of Law

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The 1935 Constitution classified lands of the public domain into agricultural,
forest or timber. Meanwhile, the 1973 Constitution provided the following divisions:
agricultural, industrial or commercial, residential, resettlement, mineral, timber or
forest and grazing lands, and such other classes as may be provided by law, giving
the government great leeway for classification. Then the 1987 Constitution reverted
to the 1935 Constitution classification with one addition: national parks. Of these,
only agricultural lands may be alienated. Prior to Proclamation No. 1064 of May
22, 2006, Boracay Island had never been expressly and administratively classified
under any of these grand divisions. Boracay was an unclassified land of the public
domain.

Philippine land law traces its roots to the Regalian Doctrine. Upon the Spanish
conquest of the Philippines, ownership of all lands, territories and possessions in
the Philippines passed to the Spanish Crown. The Regalian doctrine was first
introduced in the Philippines through the Laws of the Indies and the Royal Cedulas,
which laid the foundation that all lands that were not acquired from the Government,
either by purchase or by grant, belong to the public domain. The Laws of the Indies
was followed by the Le y Hipotecaria or the Mortgage Law of 1893. The Spanish
Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims. The Royal Decree of 1894 or the Maura Law partly amended the
Spanish Mortgage Law and the Laws of the Indies. It established possessory information
as the method of legalizing possession of vacant Crown land, under certain conditions
which were set forth in said decree. Under Section 393 of the Maura Law, an informacion
posesoria or possessory information title, when duly inscribed in the Registry of
Property, is converted into a title of ownership only after the lapse of twenty (20)
years of uninterrupted possession which must be actual, public, and adverse, from
the date of its inscription. However, possessory information title had to be perfected
one year after the promulgation of the Maura Law, or until April 17, 1895. Otherwise,
the lands would revert to the State. In sum, private ownership of land under the
Spanish regime could only be founded on royal concessions which took various forms,
namely: (1) titulo real or royal grant; (2) concesion especial or special grant; (3) composicion
con el estado or adjustment title; (4) titulo de compra or title by purchase; and (5) informacion
posesoria or possessory information title.

The Court traced the history of the law or disposition of public lands as follows:
The first law governing the disposition of public lands in the Philippines under
American rule was embodied in the Philippine Bill of 1902. By this law, lands of the
public domain in the Philippine Islands were classified into three (3) grant divisions,
to wit: agricultural, mineral, and timber or forest lands. The act provided for, among
others, the disposal of mineral lands by means of absolute grant (freehold system)
and by lease (leasehold system). It also provided the definition by exclusion of
agricultural public lands. Interpreting the meaning of agricultural lands under the
Philippine Bill of 1902, the Court declared in Mapa vs. Insular Government. In other
words, that the phrase agricultural land as used in Act No. 926 means those
public lands acquired from Spain which are not timber or mineral lands. On
February 1, 1903, the Philippine Legislature passed Act No. 496, otherwise known
VOLUME 34 NUMBER 2 (OCTOBER 2009) 97
Eduardo A. Labitag

as the Land Registration Act. The act established a system of registration by which
recorded title becomes absolute, indefeasible, and imprescriptible. This is known
as the Torrens system. Concurrently, on October 7, 1903, the Philippine Commission
passed Act No. 926, which was the first Public Land Act. The Act introduced the
homestead system and made provisions for judicial and administrative confirmation
of imperfect titles and for the sale or lease of public lands. It permitted corporations
regardless of the nationality of persons owning the controlling stock to lease or
purchase lands of the public domain. Under the Act, open, continuous, exclusive,
and notorious possession and occupation of agricultural lands for the next ten (10)
years preceding July 26, 1904 was sufficient for judicial confirmation of imperfect
title. On November 29, 1919, Act No. 926 was superseded by Act No. 2874, otherwise
known as the second Public Land Act. This new, more comprehensive law limited
the exploitation of agricultural lands to Filipinos and Americans and citizens of
other countries which gave Filipinos the same privileges. For judicial confirmation
of title, possession and occupation en concepto dueo since time immemorial, or since
July 26, 1984, was required. After the passage of the 1935 Constitution, CA No. 141
amended Act No. 2874 on December 1, 1936. To this day, CA No. 141, as amended,
remains as the existing general law governing the classification and disposition of
lands of the public domain other than timber and mineral lands, and privately owned
lands which reverted to the State. Section 48(b) of CA No. 141 retained the
requirement under Act No. 2874 of possession and occupation of lands of the public
domain since time immemorial or since July 26, 1894. However, this provision was
superseded by Republic Act (RA) No. 1942, which provided for a simple thirty-year
prescriptive period for judicial confirmation of imperfect title. The provision was
last amended PD No. 1073, which now provides for possession and occupation of
the land applied for since June 12, 1945, or earlier. The issuance of PD No. 892 on
February 16, 1976 discontinued the use of Spanish titles as evidence in land
registration proceedings. Under the decree, all holders of Spanish titles or grants
should apply for registration of their lands under Act No. 496 within six (6) months
from the effectivity of the decree on February 16, 1976. Thereafter, the recording
of all unregistered lands shall be governed by Section 194 of the Revised
Administrative Code, as amended by Act No. 3344. On June 11, 1978, Act No. 496
was amended and updated by PD No. 1529, known as the Property Registration
Decree. It was enacted to codify the various laws relative to registration of property.
It governs registration of lands under the Torrens system as well as unregistered
lands, including chattel mortgages.

Regarding claimants submission that Boracay was already an agricultural land


pursuant to the old cases Ankron vs. Government of the Philippine Islands (1919) and De
Aldecoa vs. The Insular Government (1909). The Court said that these cases were decided
under the provisions of the Philippine Bill of 1902 and Act No. 926. There is a
statement in these old cases that in the absence of evidence to the contrary, that in
each case the lands are agricultural lands until the contrary is shown. The Court
ruled that private claimants reliance on Ankron and De Aldecoa was misplaced. These
cases did not have the effect of converting the whole of Boracay Island or portions
of it into agricultural lands. It should be stressed that the Philippine Bill of 1902
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and Act No. 926 merely provided the manner through which land registration courts
would classify lands of the public domain. Whether the land would be classified as
timber, mineral, or agricultural depended on proof presented in each case.

Ankron and De Aldecoa were decided at a time when the President of the
Philippines had no power to classify lands of the public domain into mineral, timber,
and agricultural. At that time, the courts were free to make corresponding
classifications in justiciable cases, or were vested with implicit power to do so,
depending upon the preponderance of the evidence. This was the Courts ruling
Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca vs. Republic
(G.R. No. 151312, August 30, 2006, 500 SCRA 209). The Court reasoned that to
aid the courts in resolving land registration cases under Act No. 926, it was then
necessary to devise a presumption on land classification. Thus evolved the dictum
in Ankron that the courts have a right to presume, in the absence of evidence to the
contrary, that in each case the lands are agricultural lands until the contrary is shown.
The presumption in Ankron and De Aldecoa cannot be expanded to an argument
that all lands of the public domain had been automatically reclassified as disposable
and alienable agricultural lands. By no stretch of imagination did the presumption
covnert all lands of the public domain into agricultural lands. In any case, the
assumption in Ankron and De Aldecoa was not absolute. Land classification was, in
the end, dependent on proof. If there was proof that the land was better suited for
non-agricultural uses, the courts could adjudge it as a mineral or timber land despite
the presumption.

The Court concluded that it was Proclamation No. 1064 of 2006 which positively
declared part of Boracay, specifically, six hundred twenty-eight and 96/100 (628.96)
hectares of agricultural land as alienable and open to private ownership. Sections 6
and 7 of CA No. 141 provided that it is only the President, upon the recommendation
of the proper department head, who has the authority to classify the lands of the
public domain into alienable or disposable, timber and mineral lands. In issuing
Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the
authority granted to her to classify lands of the public domain, presumably subject
to existing vested rights. Classification of public lands is the exclusive prerogative
of the Executive Department, through the Office of the President. Courts have no
authority to do so. Absent such classification, the land remains unclassified until
released and rendered open to disposition.

Private claimants are not, however, entitled to apply for judicial confirmation
of imperfect title under CA No. 141; they do not have vested rights over the occupied
lands under the said law either. There are two requisites for judicial confirmation of
imperfect or incomplete title under CA No. 141, namely: (1) open, continuous,
exclusive, and notorious possession and occupation of the subject land by himself or
through his predecessors-in-interest under a bonafide claim of ownership since time
immemorial or from June 12, 1945; and (2) the classification of the land as alienable
and disposable land of the public domain.

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Eduardo A. Labitag

B. Non-registration of patent with Register of Deeds, the deed as a


contract between the Government and the patentee rendered it
functus officious.

Pasio vs. Monterroyo


G.R. No. 159494. July 31, 2008. [560 SCRA 739 (2008)]

FACTS: Petitioners filed an action for recovery of possession and damages


against respondents. They alleged that the subject land was occupied, cultivated and
cleared by Laureano Pasio in 1933; that after Laureano died, the Dir. of Lands
issued an Order for the issuance of a homestead patent in his favor. However, the
heirs of Laureano failed to receive the order. Consequently, the land was not
registered. In their answer, respondents claimed that they had been in open,
continuous, exclusive and notorious possession of the subject lot for over 30 years.

HELD: The Court ruled in favor of the respondents. In Director of Lands vs.
IAC [146 SCRA 509 (1986)], the Court held that alienable public land held by a
possessor, continuously or through his predecessors-in-interest, openly, continuously
and exclusively for the prescribed statutory period (30 years under the Public Land
Act, as amended) is converted to private property by the mere lapse or completion
of the period, ipso jure.

Furthermore, the Court stated that once a homestead patent in accordance


with law is registered the certificate of title issued by virtue of the patent has the
force and effect of a Torrens title issued under the land registration law. In this case,
the issuance of a homestead patent in 1952 in favor of Laureano was not registered.
Sec. 103 of Presidential Decree No. 1529 mandates the registration of patents since
it is the operative act to convey the land to the patentee. Non-registration of patent
with Register of Deeds, the deed as a contract between the Government and the
patentee rendered it functus officious.

C . Forest lands cannot be owned by private persons. It is not


registrable whether the title is Spanish title or a Torrens title.

Land Bank vs. Republic


G.R. No. 150824. February 4, 2008. [543 SCRA 453(2008)]

HELD: The Court held that the contention of petitioner Land Bank that it
had an interest over the subject land as a mortgagee had no merit. The mortgagor,
Lourdes Farms, Inc. from which Land Bank supposedly obtained its alleged interest,
had never been the owner of the mortgaged land. Acquisition of the subject land by
Lourdes Farms, Inc., was legally impossible since it was a forest land, not alienable.
Under Art. 2085 of the Civil Code, it is essential that the mortgagor be the absolute
owner of the thing mortgaged. Since Lourdes Farms Inc. is not the owner of the
land, it does not have capacity to mortgage it to LBP.

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Even assuming that Land Bank was able to obtain its own TCT over the
property by means of its mortgage contract with Lourdes Farms, Inc. the title must
also be cancelled as it was derived from OCT No. P-2823 which was not validly
issued to Bugayong (who obtained the OCT in his name). Forest lands cannot be
owned by private persons. It is not registrable whether the title is a Spanish title or
a Torrens title. It is well-settled that a certificate of title is void when it covers property
of public domain classified as forest or timber or mineral lad. Any title issued covering
non-disposable lots even in the hands of an alleged innocent purchaser for value
shall be cancelled.

II. Possession
A. Specific Rights Found in the Civil Code

A. Article 430 of the Civil Code gives every owner the right to
enclose or fence his land or tenement by means of walls, ditches,
hedges or any other means. This right f lows from the right of
ownership.

Aneco Realty and Development Corp. vs. Landex Development Corp.


G.R. No. 165952. July 28, 2008. [560 SCRA 182 (2008)]

FACTS: Petitioner Aneco filed a complaint for injunction against respondent


Landex. Prior thereto, FHDI sold 22 lots to petitioner and 17 lots to respondent.
The dispute arose when Landex started the construction of a concrete wall on one
of its lots. To restrain the construction of the wall, petitioner filed the said case.

HELD: The Court held that the complaint for injunction should be dismissed
for lack of merit. Article 430 of the Civil Code gives every owner the right to enclose
or fence his land or tenement by means of walls, ditches, hedges or any other means.
The right to fence flows from the right of ownership. As owner of the land, Landex
may fence his property subject only to the limitations and restrictions provided by
law. Absent a clear legal and enforceable right, as in this case, the Court will not
interfere with the exercise of an essential attribute of ownership.

B. Available Actions to Recover Possession / Ownership

1. Accion Reinvicatoria - Action to recover the real right of ownership of


immovable property.

2. Accion Publiciana Action to recover real right of possession or possession


de jure over immovable property.

3. Action for Ejectment (for immovable property) to recover de facto


possession or actual, physical possession.
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Eduardo A. Labitag

B. An ejectment suit is an action in personam wherein judgment is


binding only upon parties properly impleaded and given an
opportunity to be heard.

Floyd vs. Gonzales


G.R. No. 169047.November 3, 2008

FACTS: Petitioners Floyd and Calixtro were occupants of a lot which was
the subject of a complaint for forcible entry filed by respondents Nisperoses against
Abarnas for constructing a house on the subject land through stealth and strategy.
Olongapo RTC ordered Abarnas to vacate. Floyd, Calixtro and Ong Sotto, the
occupants, filed a case for injunction enjoining Sheriff Gonzales from enforcing the
judgment.

HELD: An ejectment suit is an action in personam wherein judgment is binding


only upon parties properly impleaded and given an opportunity to be heard.
Petitioners were not made party-defendants by the Nisperoses. In the forcible entry
case, petitioners had not been given their day in court to present their side to prove
their alleged bona fide possession. Neither was a court hearing held to prove that
they are mere successors-in-interest, guests, or agents of defendant Abarnas when
the ejectment judgment was sought to be enforced against them. Thus, they cannot
be bound by the decision in the ejectment case.

However, they themselves admitted having possessed the subject land only
in 1986 and 1988 respectively. These cannot prevail over the Nisperoses possession
through their father Igmedio that started in 1950. Thus, Nisperoses have the better
right to possession, prior possession having been proved.

CRITIQUE: This case involved a forcible entry case between the Nisperoses
and Abarnases. Floyd and Calixtro had been in possession of the property since
1986 and 1988, respectively. They are possessors with a real right or de jure possessors.
The lower court ruling the forcible entry case can only rule on the actual physical
possession of the property.

C . In forcible entry cases, in order to constitute force, the trespasser


does not have to institute a state of war.

Arbizo vs. Santillan


G.R. No. 171315. February 26, 2008. [546 SCRA 610 (2008)]

HELD: As to whether respondents were deprived of possession by force,


intimidation, strategy or stealth, the acts of the petitioner in unlawfully entering the
subject properties, erecting a structure thereon and excluding therefrom the prior
possessor would necessarily imply the use of force. In order to constitute force, the
trespasser does not have to institute a state of war.

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a. Forcible Entry

Gonzaga vs. CA
G.R. No. 130841. February 26, 2008. [546 SCRA 532 (2008)]

HELD: For a forcible entry suit to prosper, the person lawfully entitled to
the possession of the property must allege and prove that he was in prior physical
possession and defendant deprived him of such possession through any of the grounds
provided in Rule 70, Sec. 1 Rules of Court. The Court quoted Mediran vs. Villanueva
[37 Phil. 752 (1918)], on why this is so, to wit:

Juridically speaking, possession is distinct from ownership, and from


this distinction are derived legal consequences of much importance. In
giving recognition to the action of forcible entry and detainer the purpose
of the law is to protect the person who in fact has actual
possession; and in case of controverted right, it requires the parties to
preserve the status quo until one or the other of them sees fit to invoke the
decision of a court of competent jurisdiction upon the question of
ownership. It is obviously just that the person who has first acquired
possession should remain in possession pending this decision; and the
parties cannot be permitted meanwhile to engage in petty warfare over
the possession of the property which is the subject of the dispute. To
permit this would be highly dangerous to individual security and disturbing
to social order. Therefore, where a person supposes himself to be the
owner of a piece of property and desires to vindicate his ownership against
the party actually in possession, it is incumbent upon him to institute an
action to this end in a court of competent jurisdiction; and he cannot be
permitted, by invading the property and excluding the actual possessor,
to place upon the latter the burden of instituting an action to try the
property right.

In Heirs of Laurora vs. Sterling Technopark III [401 SCRA 181 (2003)], the Court
stressed the basic inquiry in forcible entry cases:

The only issue in forcible entry cases is the physical or material possession
of real property possession de facto, not possession de jure. Only prior
physical possession, not title, is the issue. If ownership is raised in the
pleadings, the court may pass upon such question, but only to determine
the question of possession.

The ruling in Bejar vs. Caluag [516 SCRA 84 (2007)] was of the same tenor, but
formulated a bit differently, thus:

To make out a suit for illegal detainer of forcible entry, the complaint
must contain two mandatory allegations: (1) prior physical possession
of the property by the plaintiff; and (2) deprivation of said
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Eduardo A. Labitag

possession by another by means of force, intimidation, threat,


strategy, or stealth. This latter requirement implies that the possession
of the disputed property by the intruder has been unlawful from the very
start. Then, the action must be brought within one year from the date of
actual entry to the property or, in cases where stealth was employed,
from the date the plaintiff learned about it.

b.Unlawful Detainer

c. Distinction between Forcible Entry and Unlawful Detainer

D. The distinction between forcible entry and unlawful detainer


was discussed.

Acaylar, Jr. vs. Harayo


G.R. No. 176995. July 30, 2008. [560 SCRA 624 (2008)]

FACTS: Respondent Harayo filed a complaint for forcible entry against


petitioner Acaylar. Respondent alleged that he acquired the subject property from
the petitioners parents by virtue of a Deed of Sale. However, petitioner allegedly,
using strategy, intimidation, threats and stealth, entered the subject property, cut
the tall grasses in the coconut plantation, gathered the fallen coconuts and other
fruits, and pastured his cows and other animals thereon. In his answer, petitioner
claims that he was already in possession of the property since 1979 as administrator
thereof. The issue is whether the complaint for forcible entry was proper.

HELD: The Court held that Harayo has no case for forcible entry since
petitioner Acaylar was in prior physical possession. Under Rule 70, Sec. 1 of the
Rules of Court, there are two entirely distinct and different causes of action, to wit:
(1) a case for forcible entry, which is an action to recover possession of a property
from the defendant whose occupation thereof is illegal from the beginning as he
acquired possession by force, intimidation, threat, strategy or stealth; and (2) a case
for unlawful detainer, which is an action for recovery of possession from defendant
whose possession of the property was inceptively lawful by virtue of a contract (express
or implied) with the plaintiff, but became illegal when he continued his possession
despite the termination of his right thereunder.

The distinctions between the two forms of ejectment suits are: first, in forcible
entry, the plaintiff must prove that he was in prior physical possession of the premises
until he was deprived thereof by the defendant, whereas, in unlawful detainer, the
plaintiff need not have been in prior physical possession; second, in forcible entry, the
possession of the land by the defendant is unlawful form the beginning as he acquires
possession thereof by force, intimidation, threat, strategy or stealth, while in unlawful
detainer, the possession of the defendant is inceptively lawful but it becomes illegal
by reason of the termination of his right to the possession of the property under his
contract with the plaintiff; third, in forcible entry, the law does not require a previous
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demand for the defendant to vacate the premises, but in unlawful detainer, the plaintiff
must first make such demand, which is jurisdictional in nature.

It is the nature of defendants entry into the land determines the cause of
action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then
the action which may be filed against the intruder is forcible entry. If, however, the
entry is legal but the possession thereafter becomes illegal, the case is unlawful
detainer.

Sales vs. Barro


G.R. No. 171678. December 10, 2008

FACTS: Petitioners filed an ejectment action against respondents alleging:


(1) that petitioners were the owners of the disputed lot, (2) that the respondents
constructed a shanty thereon without their consent; (3) that the respondents have
not been paying any rent for their occupation thereof; (4) and that the respondents
refused the formal demand made by the petitioners for them to vacate the subject
lot. Respondent Barro claims that he had a right to occupy the lot, as he was its
caretaker. MeTC held for petitioners. CA reversed.

HELD: The Court held that complaint for unlawful detainer was improper.
The petitioners own averment in the complaint that the defendant constructed a shanty
in the lot of the plaintiffs without their consent, and the relief asked for by the petitioners
that the respondent and his wife pay the amount of P10,000 a month beginning
January 2004 as for reasonable rent of the subject premises, clearly contradict their claim.
No other conclusion can be made except that the petitioners had always
considered respondents occupation of the same to be unlawful from the
very beginning. It is a settled rule that in order to justify an action for unlawful detainer, the
owners permission or tolerance must be present at the beginning of the possession. What
the petitioners actually filed was a fatally defective complaint for forcible entry.

HELD: In Tirona vs. Alejo, the Court held that in actions for forcible entry, two
allegations are mandatory for the municipal trial court to acquire jurisdiction: first, the plaintiff
must allege his prior physical possession of the property; and second, he must also allege that he was
deprived of his possession by any of the means provided for in Sec. 1, Rule 70 of the Rules of Court,
namely, force, intimidation, threats, strategy, and stealth. The petitioners allegation that
they are the registered owners of the lot miserably falls short of satisfying the required
averment of prior physical possession. Legal possession is NOT the same as actual
prior physical possession.

Barnachea vs. CA
G.R. No. 150025. July 23, 2008

FACTS: The subject matter of the case were lots titled in respondent Avelino
Ignacios name, which lots were adjacent to the property that the petitioners owned
and occupied. These properties were originally part of a piece of land owned by Luis
VOLUME 34 NUMBER 2 (OCTOBER 2009) 105
Eduardo A. Labitag

Santos and subsequently inherited by his daughter. The land was subdivided and
transferred to tenant-farmers Santiago Isidro and Procopio de Guzman. The property
that the petitioners own and occupy was derived from the land transferred to Santiago
Isidro. Respondent Ignacios properties were derived, on the other hand, from the
land originally transferred to Procopio de Guzman. Respondents filed their complaint
for ejectment against petitioners before the MTC on October 20, 1998. This was
dismissed on December 8, 1999 but was revived on April 5, 2000. Meanwhile, On
October 5, 2000, the petitioner Julitas sister, Leticia, who was representing herself
was the sole owner of the land, filed a Petition for Quieting of Title.

ISSUES:

(1) Whether or not the action was one of forcible entry

(2) Whether or not the ejectment proceedings need to be suspended until


resolution of ownership issue

HELD: (1) No. The action was one of unlawful detainer. In this case, the
Court found a complete absence of any allegation of force, intimidation, strategy or
stealth in the complaint with respect to the petitioners possession of the respondents
property. While admittedly no express contract existed between the parties regarding
the petitioners possession, the absence does not signify an illegality in the entry nor
an entry by force, intimidation, strategy or stealth that would characterize the entry
as forcible.

(2) As a rule, a pending civil action involving ownership of the same property
will not justify the suspension of the ejectment proceedings. The ruling in Amagan vs.
Marayag cannot be applied in this case. In Amagan, the party refusing to vacate the
disputed premises was the same party seeking to quiet the title. In the present case,
the petitioners were not parties to the civil action whose result they seek to await.
The action to quiet title was filed by petitioners sister who claimed to be the sole
owner of the property. Also, In Amagan, the MCTC decision involved the demolition
of the petitioners house a result that this Court found to be permanent, unjust
and probably irreparable; in the present case, only a portion of the petitioners
house is apparently affected as the petitioners occupy the lot adjoining the disputed
property.

C. Requisites of Recovery

a. Identify the property

b. Prove his right of ownership

E. Tax declarations are good indicia of possession in the concept of an owner.

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Leoncio vs. De Vera


G.R. No. 176842. February 18, 2008. [546 SCRA 180 (2008)]

HELD: The Court reiterated the rule that while it is true that tax declarations
or realty tax payments of property are not conclusive evidence of ownership,
nevertheless, they are good indicia of possession in the concept of an owner, for no
one in his right mind would be paying taxes for a property that is not in his actual or
constructive possession. They constitute at least proof that the holder has a claim of
title over the property. In this case, petitioners failed to overcome the burden of
proving their main contention that Emilia owned the subject lot.

III. Quieting of Title


A . For an action to quiet title to prosper the requisites provided
for in Article 476 and 477 of the New Civil Code must be met.

Clado-Reyes vs. Limpe


G.R. No. 163876. July 9, 2008

ISSUE: Whether the petitioners have a cause of action to quiet title,


reconveyance and damages against respondents by simply alleging that their title is
based on Sec. 5 of Art. XIII of the 1987 Constitution and Sec. 2 of the Comprehensive
Agrarian Reform Law.

HELD: The Court held that they had no cause of action. Under Article 476
and 477 of the New Civil Code, there are two indispensable requisites in order that
an action to quiet title could prosper: (1) that the plaintiff or complainant has a legal
or an equitable title to or interest in the real property subject of the action; and (2)
that the deed, claim, encumbrance or proceeding claimed to be casting cloud on his
title must be shown to be in fact invalid or inoperative despite its prima facie appearance
of validity or legal efficacy.

To prove their case, petitioners merely cited Sec. 4 of Article XIII of the 1987
Constitution and Sec. 2 of the Comprehensive Agrarian Reform Law and stated
that their title was founded upon these provisions. They hardly argued on the matter.
Neither was there any positive evidence. A mere allegation is not evidence, and he
who alleges has the burden of proving the allegation with the requisite quantum of
evidence. The documents allegedly executed by Simeon I. Garcia are purely hearsay
and have no probative value.

B. An action for quieting of land title is not extinguished by death


of the parties.

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Saligumba vs. Palanog


G.R. No. 143365.December 4, 2008

FACTS: Spouses Palanog alleged that they have been in actual, open, adverse
and continuous possession as owners for more than 50 years of a parcel of land
located in Solido, Nabas, Aklan. The spouses Saligumba allegedly prevented them
from entering and residing on the subject premises and had destroyed the barbed
wires enclosing the land. While the civil case was pending, spouses Saligumba died
but were not substituted. Petitioners now claim that the ruling in the said civil case
in favor of respondents be declared null and void.

HELD: The Court held that this case involved an action for quieting of title
with damages which is an action involving real property. It is an action that survives,
pursuant to Sec. 1 of Rule 87, as the claim is not extinguished by the death of
a party. Under the express terms of Sec. 17, in case of death of a party, and upon
proper notice, it is the duty of the Court to order the legal representative or heir of
the deceased to appear for the deceased.

In the instant case, it is true that the trial court, after receiving an informal
notice of death by the mere notation in the envelopes, failed to order the appearance
of the legal representative or heir of the deceased. Neither did the respondent ever
procure the appointment of such legal representative, nor did the heirs ever ask to
be substituted. However, in this case, the petitioners failed to show their interest in
the case, they should have questioned immediately the validity of the proceedings
absent any formal substitution. Despite the courts alleged lack of jurisdiction over
the persons of petitioners, petitioners never bothered to challenge the same, and in
fact allowed the proceedings to go on until the trial court rendered its decision.
Hence, their petition failed.

Note: Sec. 1, Rule 87 of the Revised Rules of Court provides:

SEC. 1. Actions which may and which may not be brought against executor or
administrator. - No action upon a claim for the recovery of money or debt
or interest thereon shall be commenced against the executor or
administrator; but actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon, and actions
to recover damages for an injury to person or property, real or personal,
may be commenced against him.

The spouses Saligumba died before the effectivity of the 1997 Rules on Civil
Procedure. Sec. 17, Rule 3 of the Rules of Court was amended and it is now Sec. 16,
Rule 3 of the 1997 Rules on Civil Procedure.

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IV. Co-Ownership
A. Rights of each co-owner as to the thing in common:

1. Use the thing as to the purpose intended

2. Share in the benefits in proportion to his interest

3. Bring an action in ejectment

A . No condominium unit can be sold without at the same time selling


the corresponding amount of rights, shares or other interests in
the condominium management body, the Condominium
Corporation; and no one can buy shares in a Condominium
Corporation without at the same time buying a condominium
unit. RA No. 4726 allows foreigners to acquire condominium
units and shares in condominium corporations up to not more
than 40% of the total and outstanding capital stock of a Filipino-
owned or controlled corporation.

Hulst vs. PR Builders


G.R. No. 156364. September 25, 2008. [566 SCRA 333 (2008)]

FACTS: Petitioner filed the present Motion for Partial Reconsideration insofar
as he was ordered to return to respondent the amount of P2,125,540 in excess of
the proceeds of the auction sale delivered to petitioner. Petitioner contended that
the Contract to Sell between petitioner and respondent involved a condominium
unit and did not violate the Constitutional proscription against ownership of land
by aliens. He argued that the contract to sell will not transfer certificate of title but
merely a Condominium Certificate of Title as evidence of ownership; a perusal of
the contract show that what the buyer acquires is the sellers title and rights to and
interests in the unit and the common areas.

HELD: Under Republic Act No. 4726, otherwise known as the Condominium
Act, foreign nationals can own Philippine real estate through the purchase of
condominium units or townhouses constituted under the Condominium principle
with Condominium Certificates of Title. Sec. 5 of RA No. 4726 states:

Sec. 5. Any transfer or conveyance of a unit or an apartment, office, or store


or other space therein, shall include the transfer or conveyance of the undivided
interest in the common areas or, in a proper case, the membership or shareholdings
in the condominium corporation; Provided, however, That were the common areas in
the condominium project are held by the owners of separate units as co-owners
thereof, no condominium unit therein shall be conveyed or transferred to persons
other than Filipino citizens or corporations at least 60% of the capital stock of which
belong to Filipino citizens, except in cases of hereditary succession. Where the
VOLUME 34 NUMBER 2 (OCTOBER 2009) 109
Eduardo A. Labitag

common areas in a condominium project are held by a corporation, no


transfer or conveyance of a unit shall be valid if the concomitant transfer
of the appurtenant membership or stockholding in the corporation will
cause the alien interest in such corporation to exceed the limits imposed
by existing laws.

The law provides that no condominium unit can be sold without at the same
time selling the corresponding amount of rights, shares or other interests in the
condominium management body, the Condominium Corporation; and no one can
buy shares in a Condominium Corporation without at the same time buying a
condominium unit. It expressly allows foreigners to acquire condominium
units and shares in condominium corporations up to not more than 40%
of the total and outstanding capital stock of a Filipino-owned or controlled
corporation. Under this set up, the ownership of the land is legally separated from
the unit itself. The land is owned by a Condominium Corporation and the unit
owner is simply a member in this Condominium Corporation. As long as 60% of the
members of this Condominium Corporation are Filipino, the remaining members
can be foreigners.

B. A co-owner may bring an action for the recovery of possession


without the necessity of joining all the other co-owners as co-
plaintiffs.

Wee vs. De Castro


G.R. 176405. August 20, 2008. [562 SCRA 695 (2008)]

HELD: In this case, the Court reiterated the rule that a co-owner may bring
an action for the recovery of possession without the necessity of joining all the other
co-owners as co-plaintiffs. The reason is that the action is deemed to be instituted
for the benefit of all. The Court also stated that Art. 487, which states that [A]ny
one of the co-owners may bring an action in ejectment, covers all kinds of action for
the recovery of possession, i.e., forcible entry and unlawful detainer (accion interdictal),
recovery of possession (accion publiciana), and recovery of ownership (accion de
reinvicatoria).

4. Compel other co-owner to contribute to expenses for preservation of the thing

5. Oppose any act of alteration

C . Giving consent to a third person to construct a house on the co-


owned property without the consent of the other co-owners is
tantamount to devoting the common property to his/her exclusive
use to the prejudice of the co-ownership. This is in violation of
Art. 486 and Art. 491 of the Civil Code.

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Cruz vs. Catapang


G.R. No. 164110. February 12, 2008. [544 SCRA 512 (2008)]

FACTS: Leonor Cruz, Luz Cruz and Norma Maligaya are the co-owners of a
1435 sq. m. parcel of land in Taal, Batangas. With the consent of Norma, respondent
Teofila Catapang built a house on a lot adjacent to the subject parcel of land in 1992.
The house intruded, however, on a portion of the co-owned property. In 1995,
petitioner Leonor Cruz visited the property and was surprised to see a part of
respondents house intruding unto a portion of the co-owned property. She then
made several demands upon respondent to demolish the intruding structure and to
vacate the portion encroaching on their property, to no avail. Petitioner filed a
complaint for forcible entry against respondent. At issue before the Court is whether
the consent given by a co-owner of a parcel of land to a person to construct a house
on the co-owned property warrants the dismissal of a forcible entry case filed by
another co-owner against that person.

HELD: The Court held that a co-owner cannot devote common property to
his/her exclusive use to the prejudice of the co-ownership, in violation of Articles
486 and 491 of the Civil Code. The consent given by Norma Maligaya in the absence
of the unanimous consent of the other co-owners did not vest upon respondent any
right to enter into the co-owned property. Respondents entry into the property still
fell under the classification through strategy or stealth. Entry into the land effected
clandestinely without the knowledge of the other co-owners could be categorized as
possession by stealth. Moreover, respondents act of getting only the consent of one
co-owner, her sister Norma Maligaya, and allowing the latter to stay in the constructed
house, can in fact be considered as a strategy which she utilized in order to enter
into the co-owned property.

6. Protest against acts of majority which are prejudicial to minority

7. Exercise legal redemption

8. Ask for partition

D. Assignees of a co-owner who do not exercise the rights afforded


to them by Art. 497 of the Civil Code during the partition of
the property owned in common are bound by the final and
executory decision of the court as regards the partition of such
proper ty.

Panganiban vs. Oamil


G.R. No. 14931. January 22, 2008. [542 SCRA 166 (2008)]

HELD: Under a co-ownership, the ownership of an undivided thing or right


belongs to different persons. During the existence of the co-ownership, no individual
can claim title to any definite portion of the community property until the partition
VOLUME 34 NUMBER 2 (OCTOBER 2009) 111
Eduardo A. Labitag

thereof; and prior to the partition, all that the co-owner has is an ideal or abstract
quota or proportionate share in the entire land or thing. Before partition in a co-
ownership, every co-owner has the absolute ownership of his undivided interest in
the common property. The co-owner is free to alienate, assign, or mortgage this
undivided interest, except as to purely personal rights. The effect of such transfer is
limited to the portion which may be awarded to him upon partition of the property.

Under Art. 497 of the Civil Code, in the event of a division or partition of
property owned in common, assignees of one or more of the co-owners may take
part in the division of the thing owned in common and object to its being effected
without their concurrence. But they cannot impugn any partition already executed,
unless there had been fraud, or in case it was made notwithstanding a formal
opposition presented to prevent it, without prejudice to the right of the debtor or
assignor to maintain its validity.

E . Partition may be inferred from circumstances sufficiently strong


to support the presumption. Thus, after a long possession in
severalty, a deed of partition may be presumed.

Quimpo, Sr. vs. Abad Vda. de Beltran


G.R. No. 16095. February 13, 2008. [545 SCRA 174 (2008)]

FACTS: Estaquia Perfecto-Abad was the owner of several parcels of land in


Goa, Camarines Sur. When she died, her grandchildren, Joaquin Quimpo and the
respondents, inherited the parcels of land. In 1966, petitioner and respondents
undertook an oral partition of parcel III (San Jose Property) and parcel IV. Half of
the properties were given to petitioner and the other half to the respondent. Two of
the respondents occupied their respective shares in the San Jose property and installed
their tenants over their share in parcel IV. Joaquin, on the other hand, became the
administrator of the remaining undivided properties and of the shares of respondents
Danilo, Marites, Anita and Helen, who were still minors at that time. In 1989 Danilo,
Marites, Anita and Helen wanted to take possession of the portions allotted to
them, but petitioner prevented them from occupying the same. Petitioner also refused
to heed respondents demand for partition of parcels I and II, prompting respondents
to file a complaint for judicial partition and/or recovery of possession with accounting
and damages with the RTC of Camarines Sur.

HELD: The Court noted that for forty-three (43) years, Consuelo and Ireneo
occupied their portions of the San Jose property and petitioner never disturbed
their possession. They also installed tenants in parcel IV, and petitioner did not
prevent them from doing so, nor did he assert his ownership over the same. These
unerringly point to the fact that there was indeed an oral partition of parcels III and
IV. In Maglucot-Aw vs. Maglucot, [329 SCRA 78 (2000)], it was held that [p]artition
may be inferred from circumstances sufficiently strong to support the presumption.
Thus, after a long possession in severalty, a deed of partition may be presumed. It
has been held that recitals in deeds, possession and occupation of land, improvements
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made thereon for a long series of years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual partition of land either by deed or by
proceedings in the probate court, which had been lost and not recorded.

Furthermore, in Hernandez vs. Andal [78 Phil. 196 (1947)], the Court explained
that:

parol partitions may be sustained on the ground of estoppel of the


parties to assert the rights of a tenant in common as to parts of land
divided by parol partition as to which possession in severalty was taken
and acts of individual ownership were exercised.

A parol partition may also be sustained on the ground that the parties
thereto have acquiesced in and ratified the partition by taking possession
in severalty, exercising acts of ownership with respect thereto, or otherwise
recognizing the existence of the partition.

A number of cases have specifically applied the doctrine of part


performance, or have stated that a part performance is necessary, to take
a parol partition out of the operation of the statute of frauds. It has been
held that where there was a partition in fact between tenants in common,
and a part performance, a court of equity would have regard to and enforce
the partition agreed by the parties.

The Court held that respondents can rightfully ask for the confirmation of the
oral partition over parcels III and IV, and the partition of parcels I and II.
Jurisprudence is replete with rulings that any co-owner may demand at any time the
partition of the common property unless a co-owner has repudiated the co-ownership.
This action for partition does not prescribe and is not subject to laches.

V. In an action for partition, all other persons interested in the


property shall be joined as defendants, as an action for partition
is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the
properties involved.

Heirs of Panfilo F. Abalos vs. Bucal


G.R. No. 156224. February 19, 2008. [546 SCRA 252 (2008)]

HELD: The Rules of Court provides that in an action for partition all other
persons interested in the property shall be joined as defendants. Not only the co-
heirs but also all persons claiming interests or rights in the property subject of
partition are indispensable parties. Here, it is the responsibility of plaintiff to implead
all indispensable parties, including respondents in their capacities as vendees and
donees of the subject fishponds. Without their presence in the suit the judgment of
the court cannot attain real finality against them. Being strangers to the first case,
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Eduardo A. Labitag

they are not bound by the decision rendered therein; otherwise, they would be
deprived of their constitutional right to due process.

VI. Possession
A . Provisional resolution of ownership by Municipal Trial Courts
in Cities is for the sole purpose of determining issue of
possession in Actions for Ejectment.

Villadar, Jr. vs. Zabala


G.R. No. 166458. February 14, 2008. [545 SCRA 325 (2008)]

HELD: Where the issue of possession in an unlawful detainer suit is closely


intertwined with the issue of ownership, as in this case, the MTCC can provisionally
resolve the issue of ownership for the sole purpose of determining the issue of
possession. The judgment, however, is not conclusive in any action involving title or
ownership and will not bar an action between the same parties respecting title to the
land or building.

Aquino vs. Aure


G.R. No. 153567. February 18, 2008. [546 SCRA 71 (2008)]

HELD: The Court held that jurisdiction in ejectment cases is determined by


the allegations pleaded in the complaint. As long as these allegations demonstrate a
cause of action either for forcible entry or for unlawful detainer, the court acquires
jurisdiction over the subject matter. This principle holds, even if the facts proved
during the trial do not support the cause of action thus alleged, in which instance the
court after acquiring jurisdiction may resolve to dismiss the action for insufficiency
of evidence.

An adjudication in an inferior court regarding the issue of ownership should


be regarded as merely provisional and, therefore, would not bar or prejudice an
action between the same parties involving title to the land. The foregoing doctrine is
a necessary consequence of the nature of forcible entry and unlawful detainer cases
where the only issue to be settled is the physical or material possession over the real
party, that is, possession de facto and not possession de jure. In other words, inferior
courts are now conditionally vested with adjudicatory power over the issue of title
or ownership raised by the parties in an ejectment suit. These courts shall resolve
the question of ownership raised as an incident in an ejectment case where a
determination thereof is necessary for a proper and complete adjudication of the
issue of possession.

B. The barangay conciliation process is not a jurisdictional


requirement in an ejectment suit; but non-recourse thereto should
be pleaded in the Answer in order that the case may be dismissed.
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Aquino vs. Aure


G.R. No. 153567. February 18, 2008. [546 SCRA 71 (2008)]

ISSUE: Whether non-recourse to barangay conciliation process is a jurisdictional


flaw that would warrant dismissal of the ejectment suit.

HELD: The Court ruled that it is not a jurisdictional defect. It is true that
precise technical effect of failure to comply with the requirement of Sec. 412 of the
Local Government Code on barangay conciliation (previously contained in Sec. 5 of
Presidential Decree No. 1508) is much the same effect produced by non-exhaustion
of administrative remedies the complaint becomes afflicted with the vice of
prematurity; and the controversy there alleged is not ripe for judicial determination.
The complaint becomes vulnerable to a motion to dismiss. Nevertheless, the
conciliation process is not a jurisdictional requirement, so that non-
compliance therewith cannot affect the jurisdiction which the court has
otherwise acquired over the subject matter or over the person of the
defendant.

By Aquinos failure to seasonable object to the deficiency in the Complaint,


she is deemed to have already acquiesced to or waived any defect attendant thereto.
The fact that Aquino raised such objection during the pretrial and in her Position
Paper is of no moment, for the issue of non-recourse to barangay mediation
proceedings should have been impleaded in her Answer. Neither could the MeTC
dismiss Civil Case No. 17450 motu proprio. The 1997 Rules of Civil Procedure provide
only three instances when the court may motu proprio dismiss the claim.

VII. Easements and Servitudes


A. Legal Easements

A. Requisites of Legal Easements were enumerated.

Valdez vs. Tabisula


G.R. No. 175510. July 28, 2008. [560 SCRA 332 (2008)]

FACTS: Petitioners-spouses Victor and Jocelyn Valdez purchased from


respondent-spouses Francisco and Caridad Tabisula a 200 sq. m. portion of a 380
sq. m. parcel of land located in San Fernando, La Union. Respondents subsequently
built a concrete wall on the western side of the subject property. Petitioners then
filed in April 1999, more than six years after the execution of the deed a Complaint
for Specific Performance with Damages against respondents. In their complaint,
petitioners alleged that they purchased the subject property on the strength of
respondents assurance of providing them a road right of way. They then prayed
that respondents be ordered to provide the subject property with a 2 -meter wide
easement and to remove the concrete wall blocking the same.
VOLUME 34 NUMBER 2 (OCTOBER 2009) 115
Eduardo A. Labitag

HELD: The Court held that an easement or servitude is a real right


constituted on anothers property, corporeal and immovable, by virtue of which the
owner of the same has to abstain from doing or to allow somebody else to do
something on his property for the benefit of another thing or person. The statutory
basis of this right is Article 613 of the Civil Code.

Article 1358 of the Civil Code provides that any transaction involving the sale
or disposition of real property must be in writing. The stipulation harped upon by
petitioners was not a disposition of real property. The proviso that the intended
grant of right of way was not included in this sale only meant that the parties had
to enter into a separate and distinct agreement for that purpose. The use of the
word shall, which is imperative or mandatory in its ordinary signification, should
be construed as merely permissive where, as in the case at bar, no public benefit or
private right require it to be given an imperative meaning. Besides, a document
stipulating a voluntary easement must be recorded in the Registry of Property in
order not to prejudice third parties as provided for in Articles 798 and 709 of the
Civil Code.

Petitioners were neither entitled to a legal or compulsory easement of right of


way. For to be entitled to such kind of easement, the preconditions under Articles
649 and 650 of the Civil Code must be established, viz.:

Art. 649. The owner, or nay person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other immovables
pertaining to other persons, and without adequate outlet to a public highway,
is entitled to demand a right of way through the neighboring estates, after
payment of the proper indemnity.
xxx

Art. 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be
the shortest.

Thus, to be conferred a legal easement of right of way under Article 649, the
following requisites must be complied with: (1) the property is surrounded by other
immovables and has no adequate outlet to a public highway; (2) proper indemnity
must be paid; (3) the isolation is not the result of the owner of the dominant estates
own acts; (4) the right of way claimed is at the point least prejudicial to the servient
estate; and (5) to the extent consistent with the foregoing rule, the distance from the
dominant estate to a public highway may be the shortest. The onus of proving the
existence of these prerequisites lies on the owner of the dominant estate, herein
petitioners. Since petitioners had more than adequate passage to two public roads,
they had no right to demand the grant by respondents of an easement on the western
side of respondents lot.

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B. The criterion of least prejudice to the servient estate must prevail


over the shortest distance.

Quintanilla vs. Abangan


G.R. No. 160613. February 12, 2008. [544 SCRA 494 (2008)]

HELD: Petitioners Apolinardito and Perfecta Quintanilla owned a corporation


engaged in the manufacture and export of rattan-made furniture. In the conduct of
their business, they used vans to haul and transport raw materials and finished
products. Because they wanted to expand their business and construct a warehouse
on their property (the dominant estate), they asked for a right of way from Pedro
sometime in April 1994. However, Pedro had already sold his lot to DARYLS on
March 24, 1994. Thereafter DARYLS constructed a warehouse over the servient
estate, enclosing the same with a concrete fence. Petitioner, thus, sought the
imposition of an easement of right of way, six meters in width, or a total area of 244
square meters, over the servient estate.

HELD: The Court held that the petitioners failed to discharge the burden of
proving the existence and concurrence of all the requisites in order to validly claim
a compulsory right of way against respondents. It should be remembered that to be
entitled to a legal easement of right of way, the following requisites must be satisfied:
(1) the dominant estate is surrounded by other immovables and has no adequate
outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was
not due to the acts of the proprietor of the dominant estate; and (4) the right of way
claimed is at the point least prejudicial to the servient estate. Here, the fourth requisite
is absent. The Court quoted with approval the findings of the CA, to wit:

As provided for under the provisions of Article 650 of the New Civil
Code, the easement of right of way shall be established at the point least
prejudicial to the servient estate, and insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be
the shortest. Where there are several tenements surrounding the dominant
estate, and the easement may be established on any of them, the one
where the way is shortest and will cause the least damage should be chosen.
But if these two circumstances do not concur in a single tenement, as in the instant
case, the way which will cause the least damage should be used, even if it will not be
the shortest. The criterion of least prejudice to the servient estate must prevail over the
criterion of the shortest distance. The court is not bound to establish what is
the shortest; a longer way may be established to avoid injury to the servient
tenement, such as when there are constructions or walls which can be
avoided by a round-about way Mere convenience for the dominant estate
is not what is required by law as the basis for setting up a compulsory
easement. Even in the face of necessity, if it can be satisfied without
imposing the easement, the same should not be imposed.

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VIII. Land Titles and Deeds

A. Registration of Title

A . Three requisites for the filing of an application for registration


of title were enumerated.

Republic vs. Diloy


G.R. No. 174633. August 26, 2008. [563 SCRA 413 (2008)]

FACTS: As early as 1948, Crispin Leaban had already declared the subject
property for taxation purposes under his name. He was then succeeded by his son
who filed tax declarations in his name from period 1951-1969. Thereafter, in 1974,
the subject property was transferred to Eusebio Leabans daughter, Pacencia Laban,
who also declared the property for taxation purposes under her name. On June 15,
1979, the subject property was then conveyed by Pacencia to her daughter, respondent
in this case, Gregoria Diloy. In 1997, Diloy filed an Application for Registration of
Title over the subject property under Sec. 14 of PD No. 1529 before the MCTC of
Silang, Cavite. The Republic opposed the application for registration of respondent
alleging that the latter failed to prove her possession as required under PD 1529.
The issue raised in this petition is whether or not the respondent had acquired a
registrable title.

HELD: The Court held that respondent had acquired registrable title. Under
Sec. 14 of the Property Registration Decree, the three requisites for the filing of an
application for registration of title under the first category are: (1) that the property
in question is alienable and disposable land of the public domain; (2) that the applicants
by themselves or through their predecessors-in-interest have been in open, continuous,
exclusive and notorious possession and occupation; and (3) that such possession is
under a bona fide claim of ownership since 12 June 1945 or earlier. In effect, the
period of possession open, continuous, exclusive and notorious must at least be
30 years computed from 12 June 1945 to the effectivity of PD 1529 on 11 June 1978.
Sec. 14(1) of the aforesaid law requires that the property sought to be registered
is already alienable and disposable at the time the application for
registration of title is filed. In the case at bar, it is beyond question that the
subject property was already an alienable and disposable land at the time the
Application for Registration of Title over the same was filed by the respondent

Ong vs. Republic


G.R. No. 175746. March 12, 2008. [548 SCRA 160 (2008)]

HELD: The Court in this case cited Sec. 14(1) of P.D. 1529 (Property Registration
Decree) as amended, which provides

SEC. 14. Who may apply. The following persons may file in the property

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CFI an application for registration of title to land, whether personally or


through their duly authorized representatives:

(1) Those who by themselves or through their predecessors-in-interest


have been in open, continuous, exclusive and notorious possession and
occupation of alienable and disposable land of the public domain under a
bona fide claim of ownership since June 12, 1945, or earlier.

Thus, pursuant to the aforequoted provision of law-mselves4. pr

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Eduardo A. Labitag

C . The Principle of Indefeasibility of Title was reiterated.

Caa vs. Evangelical Free Church of the Phils.


G.R. No. 157573. February 11, 2008. [544 SCRA 225 (2008)]

HELD: The Court stated that respondents title over the property was
evidence of its ownership thereof. It was a fundamental principle in land registration
that the certificate of title serves as evidence of an indefeasible and incontrovertible
title to the property in favor of the person whose name appears therein. Moreover,
the age-old rule is that the person who has a Torrens Title over a land is entitled to
possession thereof.

D. A title procured by fraud or misrepresentation can still be the


source of a completely legal and valid title if the same is in the
hands of an innocent purchaser for value.

Heirs of Tiro vs. PES


G.R. No. 170528. August 26, 2008. [563 SCRA 309 (2008)]

HELD: The Court held that a person is considered in law as an innocent


purchaser for value when he buys the property of another, without notice that some
other person has a right or an interest in such property, and pays a full price for the
same at the time of such purchase, or before he has notice of the claims or interest
of some other person in the property. A person dealing with registered land may
safely rely on the correctness of the certificate of title of the vendor/transferor, and
the law will in no way oblige him to go behind the certificate to determine the condition
of the property. The courts cannot disregard the rights of innocent third persons,
for that would impair or erode public confidence in the Torrens system of land
registration. Thus, a title procured by fraud or misrepresentation can still be the
source of a completely legal and valid title if the same is in the hands of an innocent
purchaser for value.

E . It is a well-settled doctrine that a certificate of title cannot be


subject to collateral attack and can be altered, modified, or
cancelled only in a direct proceeding in accordance with law.

Heirs of Sps. Lim vs. RTC Judge of Quezon City


G.R. No. 173891. September 8, 2008. (564 SCRA 352)

FACTS: Canosa filed a petition for reconstitution of the original TCT of a


parcel of land, to which the trial court granted. The heirs of Lim opposed such
claiming that their parents were the registered owners and were in actual physical
possession of the land. They continued possession after the death of their parents.
They claimed that no records existed in the QC Assessors Office or in the Taxation
Division of the ownership of Canosa. On the other hand, Canosa claimed that the
title issued to the spouses Lim emanated from a spurious private subdivision plan.
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HELD: Both parties raised issues of ownership and the validity of the parties
respective titles were being attacked in a proceeding which was brought merely to
seek nullification of an order of reconstitution. This cannot be allowed. The Court
reiterated the well-settled doctrine that a certificate of title cannot be subject to
collateral attack and can be altered, modified, or cancelled only in a direct proceeding
in accordance with law.

F. The act of registration shall be the operative act to convey or


affect the land in so far as third persons are concerned.

Republic vs. Ravelo


G.R. No. 165114. August 6, 2008. [561 SCRA 204 (2008)]

ISSUE: The issue raised was whether the act of registration affected third
persons with respect to the perfected sale.

HELD: The CA approached the issue of good faith based mainly on its view
that there had been a perfected sale prior to the annotation of the notice of lis
pendens. The Court held that the approach adopted by the appellate court was simplistic
as it disregards, among others, the nature of a sale of registered real property, as
well as other material and undisputed developments in the case. For example, while
the appellate court was correct in its general statement about the perfection of a
contract of sale, it did not take into account that the subject matter of the sale was a
registered land to which special rules apply in addition to the general rules on sales
under the Civil Code. Sec. 51 of PD No. 1529 which governs conveyances of registered
lands provides:

Sec. 51. Conveyance and other dealings by registered owner. An owner


of registered land may convey, mortgage, lease, charge or otherwise deal
with the same in accordance with existing laws. He may use such forms of
deeds, mortgages, leases or other voluntary instrument as are sufficient
in law. But no deed, mortgage, lease or other voluntary instrument, except
a will purporting to convey or affect registered land, shall take effect as a
conveyance or bind the land, but shall operate only as a contract between
the parties and as evidence of authority to the Register of Deeds to make
registration.

The act of registration shall be the operative act to convey or affect the
land in so far as third persons are concerned, and in all cases under this
Decree, the registration shall be made in the office of the Register of
Deeds for the province or city where the land lies.

G. The act of registration is the operative act to convey or affect


the land insofar as third persons are concerned.

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Eduardo A. Labitag

AFP-MBA, Inc. vs. Santiago


G.R. No. 147559. June 27, 2008. [556 SCRA 46 (2008)]

HELD: The Court restated Levin vs. Bass [91 Phil. 420 (1952)] which provided
the distinction between voluntary registration and involuntary registration. In
voluntary registration, such as a sale, mortgage, lease and the like, if the owners
duplicate certificate be not surrendered and presented or if no payment of registration
fees be made within fifteen (15) days, entry in the day book of the deed of sale does
not operate to convey and affect the land sold. In involuntary registration, such as
an attachment, levy upon execution, lis pendens and the like, entry thereof in the day
book is a sufficient notice to all persons of such adverse claim.

Secs. 51 and 52 of the Property Registration Decree (Presidential Decree [P.D.]


1529) provide:

SEC. 51. Conveyance and other dealings by registered owner. An owner of


registered land may convey, mortgage, lease, charge or otherwise deal
with same in accordance with existing laws. He may use such forms of
deeds, mortgages, leases or other voluntary instruments as are sufficient
in law. But no deed, mortgage, lease, or other voluntary instrument, except
a will purporting to convey or affect registered land shall take effect as a
conveyance or bind the land, but shall operate only as a contract between
the parties and as evidence of authority to the Registry of Deeds to make
registration.

The act of registration shall be the operative act to convey or affect the land insofar as
third persons are concerned, and in all cases under this Decree, the registration
shall be made in the office of the Register of Deeds for the province or
city where the land lies.

SEC. 52. Constructive notice upon registration. Every conveyance, mortgage,


lease, lien, attachment, order, judgment, instrument or entry affecting
registered land shall, if registered, filed or entered in the office of the
Register of Deeds for the province or city where the land to which it
relates lies, be constructive notice to all persons from the time of such
registering, filing or entering.

Under the aforequoted provisions, the act of registration is the operative act
to convey or affect the land insofar as the third persons are concerned. Constructive
notice is also created upon registration of every conveyance, mortgage, lease, lien,
attachment, order, judgment, instrument or entry affecting registered land. It must
be noted that the computation of the prescriptive period of any cause of action
starts from the date when the cause of action accrues. Written acknowledgment and
assumption of the mortgage obligation had the effect of interrupting the prescriptive
period of the mortgage action.

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H. Ownership and possession are two entirely different legal


concepts.

Heirs of Arcilla vs. Teodoro


G.R. No. 162886. August 11, 2008. [561 SCRA 545 (2008)]

HELD: The Court held that petitioners physical occupation commercial


building which they erected on the disputed property does not necessarily prove
their ownership of the subject lots. In Tating vs. Marcela [G.R. No. 155208], the Court
held that:

Ownership and possession entirely different legal concepts. Just as


possession is not a definite proof of ownership, neither is non-possession
inconsistent with ownership. The first paragraph of Art. 1498 of the Civil
Code states that when the sale is made through a public instrument, the
execution thereof shall be equivalent to the delivery of the thing which is
the object of the contract, if from the deed the contrary does not appear
or cannot clearly be inferred. Possession, along with ownership, is
transferred to the vendee by virtue of the notarized deed of
conveyance.

B. Indefeasibility of Torrens Title

I . A certificate of title issued on the basis of a free patent procured


through fraud or in violation of the law may be cancelled since
such title is not cloaked with indefeasibility.

Martinez vs. CA
G.R. No. 170409. January 28, 2008. [542 SCRA 604 (2008)]

FACTS: Gregoria Martinez, a descendant of Celedonia Martinez (the great-


grandmother of herein private respondents) applied for free patents over the subject
parcels of land. The OCTs were thereafter issued in her name. When private
respondents, as heirs of Melanio Medina Sr., the latter being a son and heir of Rosa
Martinez Ermitao, daughter of Celedonia Martinez herself, filed an application of
land registration over the subject properties. Gregoria opposed. This impelled the
private respondents to file this complaint. The RTC found that Merquines employed
fraud and misrepresentation in her free patent applications by pretending and
claiming that she is Gregoria Martinez and thus an heir of Celedonia when in fact
her real surname was neither Martinez nor was she related to Celedonia Martinez.
However, the trial court said that notwithstanding the misrepresentation of Gregoria,
private respondents were not necessarily entitled to the automatic reconveyance of
the subject lots. In the decision, the cancellation of the OCTs issued in the name of
Gregoria Martinez (Merquines) was ordered. The CA affirmed.

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Eduardo A. Labitag

HELD: The Court held that it is well settled that a certificate of title issued
on the basis of a free patent procured through fraud or in violation of the law may
be cancelled, as such title is not cloaked with indefeasibility. In other words, the
principle of indefeasibility of title is unavailing where fraud attended the issuance of
the free patents and titles.

Then, the Court reiterated the rule that public lands suitable for agricultural
purposes can be disposed of only by homestead patent, sale, lease, judicial
confirmation of imperfect or incomplete titles, and administrative legalization or
free patent. One claiming private rights as basis of ownership must prove compliance
with the Public Land Act. When the conditions specified in Sec. 48(b) of the Public
Land Act are complied with, the possessor is deemed to have acquired, by operation
of law, a right to a grant, without the necessity of a certificate of title being issued.
The land, therefore, ceased to be of the public domain, and beyond the authority of
the director of lands to dispose of. The application for confirmation is a mere
formality, the lack of which does not affect the legal sufficiency of the title as would
be evidenced by the patent and the Torrens title to be issued upon the strength of
said patent.

Eagle Realty Corporation vs. Republic


G.R. No. 151424. July 24, 2008

FACTS: Casiano and Maria De Leon applied for registration of Lots 1 and 2,
located at Barrio San Dionisio, Paraaque, Rizal. The Heirs of Dionisio Tomas, inter
alia, opposed. Nonetheless, the CFI granted the application. However, it appeared
that another decision similar to the De Leon decision but adjudicating the property
to a certain Martina Medina, who was the alleged intervenor in LRC Case No. N-
4140, was surreptitiously inserted in the records of the LRC. Likewise inserted in
the records of the LRC was the Order for the Issuance of the Decree. On May, 1983,
pursuant to these documents, the acting Land Registration Commissioner issued a
decree of registration in the name of Martina Medina. Subsequently, she exchanged
the property for another property owned by Pilarita Reyes. Thn, Reyes sold the
property to petitioner Eagle Realty Corp. Later, it was found out that the Medina
Decision and the Order of Issuance of Decree were fake. Hence, this complaint was
filed. For its part, petitioner Eagle Realty Corporation alleged, among other things,
that the one-year prescriptive period within which to seek review of a decree of
registration has already lapsed. Also, it claimed to be a buyer in good faith.

HELD: The Court held that the principle of indefeasibility of a Torrens title
does not apply were fraud attended the issuance of the title. The Torrens title does
not furnish a shield for fraud. As such, a title issued based on void documents may
be annulled. Moreover, elementary is the rule that prescription does not run against
the State and its subdivisions.

He who alleges that he is a purchaser in good faith and for value of registered
land bears the onus of proving such statement. This burden is not discharged by
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involving the ordinary presumption of good faith. Petitioner failed to discharge this
burden. It did not present any proof that would substantiate this allegation nor did
it present any evidence to show that it took other steps to verify the authenticity of
its predecessors title. Indeed, the general rule is that a purchaser may rely on what
appears on the face of a certificate of title. He may be considered a purchaser in
good faith even if he simply examines the latest certificate of title. An exception to
this rule is when there exist important facts that would create suspicion in an otherwise
reasonable man to go beyond the present title and to investigate those that preceded
it. The property covered by the void titles was transferred from Medina to petitioner
with unusual haste. The property was transferred to petitioner from Reyes only
more than five months after she herself acquired the property. These circumstances,
plus the fact that the subject property was a vast tract of land in a prime location,
should have, at the very least, triggered petitioners curiosity. Moreover, petitioner
is a corporation engaged in the real estate business. A corporation engaged in the
buying and selling of real estate is expected to exercise a higher standard of care and
diligence in ascertaining the status and condition of the property subject of its business
transaction.

J. The principle of indefeasibility of title does not apply when the


patent and the title based thereon were null and void.

De Guzman vs. Agbagala


G.R. No. 163566. February 19, 2008. [546 SCRA 278 (2008)]

HELD: The Court held that a decree of registration or patent and the
certificate of title pursuant thereto may be attacked on the ground of falsification or
fraud within one year from the date of their issuance. Such an attack must be direct
and not by a collateral proceeding. The rationale, as held in Ingusan vs. Heirs of Reyes
[531 SCRA 315 (2007)], is that the public should be able to rely on a registered title.
The Torrens System was adopted in this country because it was believed to the most
effective measure to guarantee the integrity of land titles and to protect their
indefeasibility once the claim of ownership is established and recognized.

Furthermore, the Court stated that the principle of indefeasibility does not
apply when the patent and the title based thereon are null and void. Since the Director
of Lands had no authority to grant a free patent over privately owned land, any title
issued pursuant thereto was null and void. Therefore, although OCT No. P-30187
was merely collaterally attacked, it was still correctly nullified because the free patent
on which it was based was null and void ab initio.

C. Writ of Possession

K . A petition for a writ of possession is ex parte and summary in


nature.

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Eduardo A. Labitag

Lam vs. Metrobank


G.R. No. 178881. February 18, 2008. [546 SCRA 200 (2008)]

HELD: The Court explained the nature of a writ of possession. A petition for
a writ of possession is ex parte and summary in nature. It is a judicial proceeding
brought for the benefit of one party only and without notice by the court to any
person having any adverse interest. Relief is granted without giving the person against
whom the relief is sought an opportunity to be heard. By its very nature, an ex parte
petition for issuance of a writ of possession is a non-litigious proceeding authorized
under Act no. 3135, as amended. It is not strictly speaking a judicial process as
contemplated in Art. 433 of the Civil Code. It is a judicial proceeding for the
enforcement of ones right of possession as purchaser in a foreclosure sale. It is not
an ordinary suit filed in court.

The law does not require that a petition for a writ of possession may be granted
only after documentary and testimonial evidence shall have been offered to and
admitted by the court. As long as a verified petition states the facts sufficient to
entitle the petitioner to the relief requested, the court shall issue the writ prayed for.

L. A person who took possession of a parcel of land after final


adjudication of the same in registration proceedings cannot be
summarily ousted through a writ of possession secured by a
mere motion.

Factor vs. Martel, Jr.


G.R. No. 161037. February 4, 2008. [543 SCRA 549 (2008)]

FACTS: Benito Lopez was the registered owner of a parcel of land at Barrio
Almanza, Las Pias City. Lopez sold the land to Antonio Martel, Jr. for P75 M. The
latter had the land subdivided into five lots. Later, Martel Jr. learned of a Decision
dated December 1994 of the Pasig RTC which granted an application for registration
and confirmation of title to parcels of land in an LRC case which was filed by heirs of
Ricardo and Narciso Factor. Their claim was based on possession since time
immemorial of lands, among which was a lot from which the title of Benito Lopez
emanated. Benito Lopez and Pepito Ng then filed a motion for leave to admit petition
to reopen and review the decree of registration. The Pasig RTC reversed its earlier
Order. On the strength of this ruling, Martel Jr. filed an ex parte petition for the
issuance of a writ of possession over the two lots. The RTC denied the relief but
upon Motion for Reconsideration, granted the resolution. The CA affirmed.

HELD: It is well-established that a writ of possession may be issued only


pursuant to a decree of registration in original land registration proceedings not
only against the person who has been defeated in a registration case but also against
anyone adversely occupying the land or any portion thereof during the proceedings
up to the issuance of the decree. Also, it is a well settled rule that when parties
against whom a writ of possession is sought to have been in possession of the land
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for at least 10 years, and they entered into possession apparently after the issuance
of the final decree, and none of them had been a party to the registration proceedings,
the writ of possession will not issue. A person who took possession of the land after
final adjudication of the same in registration proceedings cannot be summarily ousted
through a writ of possession secured by a mere motion. Regardless of any title or
lack of title of persons to hold possession of the land in question, they cannot be
ousted without giving them their day in court in the proper independent proceedings.

In this case, petitioners applied for registration and confirmation of the land
long after the decree of registration to the same was issued in 1905. Neither were
petitioners parties to the original registration case. Clearly, they are not the adverse
occupants contemplated by law against whom a writ of possession may be enforced.
Pending the final outcome of the land registration case, the only remedy by which
respondent can take possession of the lots is through an accion reinvicatoria (sic
should be reinvicatoria) against the petitioners. This is so because a writ of possession
cannot issue against possessors who claim ownership. Actual possession under claim
of ownership raises a disputable presumption of ownership and the true owner must
resort to judicial process for the recovery of the property, not summarily through a
motion for the issuance of a writ of possession.

D. Reconstitution of Title

M . It is not the ministerial function of the Register of Deeds to


record a right or an interest that was not duly noted in the
reconstituted certificate of title the responsibility is lodged by
law to the proper court.

The Phil. Cotton Corp. vs. Gagoomal and Ang


G.R. No. 130389. February 11, 2008. [544 SCRA 185(2008)]

HELD: A special law specifically deals with the procedure for the reconstitution
of Torrens certificates of title, either lost or destroyed. Under Sec. 4 of Act. No. 26,
liens and other encumbrances affecting a destroyed or lost certificate of title shall be
reconstituted from such of the sources hereunder enumerated as may be available,
in the following order: (a) Annotations or memoranda appearing on the owners, co-
owners, mortgagees or lessees duplicate; (b) Registered documents on file in the
registry of deeds, or authenticated copies thereof showing that the originals thereof
had been registered; and (c) Any other document which, in the judgment of
the court, is sufficient and proper basis for reconstituting liens or encumbrances
affecting the property covered by the lost or destroyed certificate of title.
Furthermore, Secs. 8 and 11 of the same Act provide for the procedure for the
notation of an interest that did not appear in the reconstituted certificate of title,
mandating that a petition be filed before a court of competent jurisdiction.

Therefore, it is not the ministerial function of the Register of Deeds to record


a right or an interest that was not duly noted in the reconstituted certificate of title.
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Eduardo A. Labitag

The foregoing quoted provisions of the law leave neither question nor any doubt
that it is indeed the duty of the trial court to determine the merits of the petition
and render judgment as justice and equity may require. Even the contentions that
the Register of Deeds may validly re-annotate the encumbrance/liens and annotate
the Court decision on the administratively reconstituted transfer certificates of titles
have no basis in law and in jurisprudence.

N. Reconstitution of Titles RA 26 presupposes that the property


whose title is sought to be reconstituted had already been brought
under the provisions of the Torrens System.

Pascua vs. Republic


G.R. No. 162097. February 13, 2008. [545 SCRA 186 (2008)]

HELD: In Republic vs. IAC [157 SCRA 62 (1988)], it was held that when RA 26,
Sec. 20 speaks of any other document, the reference is to similar documents
previously enumerated in the Sec. or documents ejusdem generis as the documents
earlier referred to. RA 26 presupposes that the property whose title is sought to
be reconstituted has already been brought under the provisions of the Torrens
System, Act. No. 496. Petitioners evidence itself, the Deed of Sale between Limuaco
and petitioners parents, stated that the lot was not registered under Act. No. 496
and that the parties agreed to register it under Act No. 3344. Even the Deed of Co-
owners partition stated that the subject lot, Lot No. 19-pt., was not registered. The
other piece of evidence, the certifications from the LRA, merely stated that the
Decree No. 412846 covering Lot No. 3209 was issued on December 4, 1930, but the
copy of said decree was not among the salvaged decrees on file with said office. The
said copy was presumed lost or destroyed during World War II. The LRA neither
stated the certificate of title was actually issued nor mentioned the number of the
OCT. It cannot be determined from any of the evidence submitted by petitioner
that the adjudicatee of the purported decree was Limuaco. The purpose of
reconstitution of title was to have the original title reproduced in the same form as
it was when it was lost or destroyed. In this case, there was no title to be re-issued.

O . Reconstitution of Title Sec. 10 of Act 3110 should apply to


reconstitution of title to a pending cadastral action.

Republic vs. Oyales


G.R. No. 168742 September 3, 2008

FACTS: The Director of Lands filed cadastral case involving lots nos. 2917,
2919, 3272 and 9533 located in Libmanan, Camarines Sur. He prayed that these
parcels of land be declared public land. Respondent Norma Royales was a claimant
of these lots. Subsequently, the CFI rendered a decision ordering the registration of
the lots in the name of respondent. However, before the certificate of finality of the
decision and order for the issuance of the decree of registration could be issued by
the court, the Registry of Deeds of Camarines Sur was razed by fire. 27 years later,
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respondent filed a petition for the reconstitution CFI decision. The RTC issued an
order setting the petition for hearing without directing the respondent to cause the
publication of said order in the Official Gazette. It, however, notified the government
prosecutor and Land Registration Authority.

Hence, this petition raising the lone issue of whether or not publication was
necessary for the court to acquire jurisdiction over a petition for reconstitution of a
final and executor decision in a cadastral case.

HELD: Petitioner argues that under Section 10 of Act 3110, publication in


the Official Gazette was necessary in a petition for reconstitution of records of pending
cadastral cases. On the other hand, respondent asserted that Section 9 of the same
law was the applicable provision. Section 9 of Act 3110 refers to the reconstitution
of a pending land registration proceeding while Section 10 applies to the reconstitution
of a pending cadastral action, a distinct kind of land registration process. The case
here involves a cadastral undertaking.

The Court held that it was Section 10 that was applicable to this cadastral
proceeding. Consequently, the RTC did not acquire jurisdiction over respondents
petition for reconstitution for failing to comply with the publication requirement. In
line with the ruling in Nacua, Respondents remedy was to file the petition for
reconstitution anew and observe the requirements under Section 10 of Act 3110.
Considering that there was already a final decision in her favor, the case could continue
and the court, if proper, may order the issuance of a decree of registration.

P. Reconstitution of Titles - If an owners duplicate copy of a


certificate of title has not been lost but is in fact in possession
of another person, the reconstituted title is void and the court
rendering the decision has not acquired jurisdiction.

Villanueva vs. Viloria


G.R. No. 155804. March 14, 2008. [548 SCRA 401 (2008)]

HELD: The Court in this case reiterated the ruling in Rexlon Realty Group Inc.
vs. CA [429 Phil. 31 (2002)] which cited Strait Times, Inc. vs. CA [G.R. No. 126673.
(1998)]. In the Strait Times case, the facts were analogous to those involved in this
case, the Court held that if an owners duplicate copy of a certificate of title has not
been lost but is in fact in possession of another person, the reconstituted title is void
and the court rendering the decision has not acquired jurisdiction. Consequently,
the decision may be attacked any time. In the case at bar, the authenticity and
genuineness of the owners duplicate of TCT Nos. T-52537 and T-52538 in the
possession of petitioner Rexlon and the Absolute Deed of Sale in its favor have not
been disputed. As there is no proof to support actual loss of the said
owners duplicate copies of said certificates of title, the trial court did
not acquire jurisdiction and the new titles issued in replacement thereof
are void.
VOLUME 34 NUMBER 2 (OCTOBER 2009) 129
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Q . Reconstitution of Title Following the principle of ejusdem generis


in statutory construction, any document mentioned in Sec. 3
of Act No. 26 should be interpreted to refer to documents similar
to those previously enumerated therein.

Republic vs. Santua


G.R. No. 155703. September 8, 2008

ISSUE: Whether tax declarations, technical description, and lot plans are
sufficient bases for the reconstitution of lost or destroyed certificates of title?

Sec. 3 of Republic Act No. 26 enumerates the documents regarded as valid and
sufficient bases for reconstitution of a transfer certificate of title:

SEC. 3. Transfer certificates of title shall be reconstituted from such of


the sources hereunder enumerated as may be available, in the following
order:

(a) The owners duplicate of the certificate of title;


(b) The co-owners, mortgagees or lessees duplicate of the certificate of
title;
(c) A certified copy of the certificate of title, previously issued by the
register of deeds or by a legal custodian thereof;
(d) The deed of transfer or other document on file in the registry of
deeds, containing the description of the property, or an authenticated
copy thereof, showing that its original had been registered, and
pursuant to which the lost or destroyed transfer certificate of title
was issued;
(e) A document, on file in the registry of deeds, by which the property
the description of which is given in said documents, is mortgaged,
leased or encumbered, or an authenticated copy of said document
showing that its original had been registered; and
(f) Any other document which, in the judgment of the court, is sufficient
and proper basis for reconstituting the lost or destroyed certificate
of title.

The instant petition for reconstitution was anchored on Sec. 3(f) of RA No. 26,
with respondent proffering three significant documents a tax declaration, survey
plan and technical descriptions of each lot.

HELD: The Court held that any document mentioned in Sec. 3 should be
interpreted to refer to documents similar to those previously enumerated therein,
following the principle of ejusdem generis in statutory construction.

The tax declaration obviously did not serve as a valid basis for reconstitution.
For one, the Court cannot safely rely on Tax Declaration No. 15003-816 as evidence
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of the subject property being covered by TCT No. T-22868 in the name of respondent
because a tax declaration was executed for taxation purposes only and was actually
prepared by the alleged owner himself. In fact, in Heirs of Eulalio Ragua vs. CA, the
Court pronounced that a tax declaration was not a reliable source for the
reconstitution of a certificate of title. At most, the tax declaration can only be prima
facie evidence of possession or a claim of ownership, which however was not the
issue in a reconstitution proceeding. A reconstitution of title did not pass upon the
ownership of the land covered by the lost or destroyed title but merely determined
whether a re-issuance of such title is proper. Moreover, a survey plan or technical
description prepared at the instance of a party cannot be considered in his favor, the
same being self-serving. Further, in Lee vs. Republic, the Court declared the
reconstitution based on a survey plan and technical descriptions was void for lack of
factual support.

E. Action for Reconveyance

R. Persons who have not obtained title to public lands could not
question the titles legally issued by the State.

Alegria vs. Dirlong


G.R. No. 161317. July 16, 2008. [558 SCRA 459 (2008)]

FACTS: Petitioners filed an action for reconveyance and declaration of nullity


of the sale of the subject 2 lots alleging that respondents obtained the free patents
through fraud. The issue is whether the petitioner has standing to file the case.

HELD: The Court ruled that petitioner had no standing to file the case since
reconveyance is a remedy granted only to the owner of the property alleged to be
erroneously titled in anothers name. In such instances, it is the State which is the
proper party to file suit, thus:

Persons who have not obtained title to public lands could not question
the titles legally issued by the State. In such cases, the real party-in-interest
is the Republic of the Philippines to whom the property would revert if it
is ever established, after appropriate proceedings, that the free patent
issued to the grantee is indeed vulnerable to annulment on the ground
that the grantee failed to comply with the conditions imposed by law. Not
being an applicant, much less a grantee, petitioner cannot ask for
reconveyance (De la Pea vs. CA, G.R. No. 81827).

Further, Sec. 101 of Commonwealth Act. No. 141 provides that actions for
reversion of public lands fraudulently awarded must be instituted by the Solicitor
general in the name of the Republic of the Philippines:

Sec. 101. All actions for the reversion to the government of lands of the
public domain or improvements thereon shall be instituted by the Solicitor
VOLUME 34 NUMBER 2 (OCTOBER 2009) 131
Eduardo A. Labitag

General or the officer acting in his stead, in the proper courts, in the
name of the Commonwealth of the Philippines.

S. The essence of an action for reconveyance is that the free patent


and certificate of title were respected as incontrovertible.

Daclag vs. Macahilig


G.R. No. 159578. July 28, 2008. [560 SCRA 137 (2008)]

FACTS: Candillo and Gregoria Macahilig were owners of seven parcels of


land located at Numancia, Aklan. They had seven children, one of whom was Maxima.
The latter entered into a Deed of Extra-judicial partition with the heirs of her deceased
siblings. One of the properties was Parcel One, which was an irrigated riceland with
an area of 1896 sq. m. It was adjudicated in the partition to Eusebio Macahilig (the
northern portion) and to the heirs of Mario Macahilig, the southern portion.
The respondents filed a complaint for recovery of possession and ownership,
cancellation of documents and damages against petitioners. The respondents alleged
that they were the lawful owners and previous possessors of the one half northern
portion of Parcel One by virtue of a Deed of Extra-judicial partition; that since they
were all residents of Caloocan City, their land was possessed by their first cousin,
Penicula Quijano (Maximas daughter), as tenant thereon, as she was also in
possession of the southern portion as tenant of the heirs of Mario Macahilig; that
sometime in 1983, Ms. Quijano allowed Maxima to farm the land; that without their
knowledge, Maxima illegally sold the entire riceland to petitioners, who were now
in possession of the land.

HELD: The Court held that Maxima was not the owner of the land since
northern portion of such land was owned by the respondents. Consequently, Maxima
had no right to dispose of the land. Nemo dat quod non habet.

The reconveyance of the subject land to respondents was proper. The essence
of an action for reconveyance is that the free patent and certificate of title are
respected as incontrovertible. What is sought is the transfer of the property, which
has been wrongfully or erroneously registered in another persons name, to its rightful
owner or to one with a better right. Moreover, an action for reconveyance
prescribes in 10 years, the point of reference being the date of registration of the
deed or the date of issuance of the certificate of title over the property. Records
show that while the land was registered in the name of petitioner Rogelia in 1984,
the instant complaint for reconveyance was filed by the respondents in 1991, and
was thus still within the ten-year prescriptive period.

T. The action for reconveyance on the ground that the certificate


of title was obtained by means of a fictitious deed of sale is
virtually an action for the declaration of its nullity, which does
not prescribe.

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Santos vs. Heirs of Dominga Lustre


G.R. No. 151016. August 6, 2008. [561 SCRA 120 (2008)]

FACTS: Petitioners Macaspac filed a Complaint for Declaration of the


Inexistence of Contract, Annulment of Title, Reconveyance and Damages (Civil
Case No. 1330) against the Froilan Santos. They alleged that the sale of the property
from their predecessor-in-interest to the spouses Santos was simulated. While the
case was pending, another group filed a Complaint for Annulment of Transfer
Certificate of Title and Deed of Absolute Sale (Civil Case No. 2115) against the
spouses Santos, et al., with the same RTC. The second case made the same allegations.
Petitioners filed a motion to dismiss on the second civil case alleging that the
plaintiffs right of action had long prescribed and was barred by laches.

HELD: The action for reconveyance on the ground that the certificate of title
was obtained by means of a fictitious deed of sale is virtually an action for the
declaration of its nullity, which does not prescribe. Moreover, a person acquiring
property through fraud becomes, by operation of law, a trustee of an implied trust
for the benefit of the real owner of the property. An action for reconveyance based
on an implied trust prescribes in ten (10) years. In such a case, the prescriptive
period applied only if there was an actual need to reconvey the property as when the
plaintiff was not in possession of the property. Otherwise, if plaintiff was in possession
of the property, prescription does not commence to run against him. Thus, when an
action for reconveyance was nonetheless filed, it would be in the nature of a suit for
quieting of title, an action that is imprescriptible.

F. Overlapping of Titles

U . Overlapping Titles a land owner loses the right to claim that


his property has been encroached when his predecessor did not
register any objections at the time the encroachment was made.

Cambridge Realty and Resources Corp. vs. Eridanus Development, Inc.


G.R. No. 152445. July 4, 2008

ISSUE: Whether a Torrens Certificate of title, complete and valid on its


face may be defeated by another Torrens certificate of title which, on its face, is
irregular, and which contains defective technical description.

HELD: A case of overlapping of boundaries or encroachment depends on a


reliable, if not accurate, verification survey; barring one, no overlapping or
encroachment may be proved successfully, for obvious reasons. In the wake of the
majority expert opinion that by changing the tie or reference point from a PLS to a
BLLM 1 monument, a corresponding effect on the survey occurs which can include
a change in boundaries and, at worst, an overlap - the Court is not prepared to
declare that an accurate survey of the respondents properties has been made as to
be a proper basis of the present claim of encroachment or overlap.
VOLUME 34 NUMBER 2 (OCTOBER 2009) 133
Eduardo A. Labitag

Also, the continuous presence of the old adobe wall diminishes the case for
the respondents. In was only in 1989 that the wall became an ungainly sight for
respondents. Previous owners of what not constitutes the respondents respective
lots did not complain of its presence. In several overlapping of boundaries cases,
the Court held that a land owner may not now claim that his property has been
encroached upon when his predecessor did not register any objections at the time
the monuments were being placed on the claimed encroached area; nor did the latter
make any move to question the placement of said monuments at the time.

IX. Miscellaneous Rulings


A. Possession

A . Where the trial court had already granted the writ of possession
sought by the buyer at an extrajudicial foreclosure sale, a petition
to consolidate said case with the case pending before another
court for Declaration of Nullity of Contracts/Discharge of
Mortgage, Annulment of Extrajudicial Foreclosure Sales,
Reconveyance, had become moot and academic.

Leong vs. Tanguanco


G.R. No. 154632. March 14, 2008. [548 SCRA 387 (2008)]

HELD: The Court in this case upheld the doctrine in the case of Spouses Eduardo
Vaca and Ma. Luisita Pilar vs. CA and Associated Bank (G.R. No. 109672, 14 July 1994).
The said case cited the earlier cases of Vda. De Jacob vs. CA (G.R. Nos. 88602 & 89544,
06 April 1990, 184 SCRA 1990) and Navarra vs. CA (G.R. No. 86237, 17 December
1991, 204 SCRA 850), decreeing that:

the pendency of a separate civil suit questioning the validity of the


mortgage or its foreclosure cannot be a legal ground for refusing the
issuance of a writ of possession because the same is a ministerial act of
the trial court after title has been consolidated in the name of the
mortgagee.

Likewise, for obvious reasons, respondents prayer for the consolidation


of this case with the civil case in Las Pias is not warranted.

Pursuant to Sec. 7 of Act NO. 3135, it is this Court which has jurisdiction
over this case considering that the subject parcels of land are all situated
in Bacoor, Cavite.

The RTC of Bacoor, Cavite had already granted the writ of possession sought
by Hermosa. Hence, the petition to consolidate the case before the RTC of Bacoor,
Cavite with the case pending before the RTC of Las Pias, had become moot and
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academic. This does not, however, preclude petitioners from availing themselves of
appropriate remedies depending upon the outcome in the RTC of Las Pias case.

B. Just Compensation

B. Meaning of Just Compensation was explained.

Land Bank of the Philippines vs. Orilla


G.R. No. 157206. June 27, 2008

HELD: The Court held that constitutionally, just compensation is the


sum equivalent to the market value of the property, broadly described as the price
fixed by the seller in open market in the usual and ordinary course of legal action
and competition, or the fair value of the property as between the one who receives
and the one who desires to sell, it being fixed at the time of the actual taking by the
government. It has been repeatedly stressed by the Court that the true measure is
not the takers gain but the owners loss. The word just is used to modify the
meaning of the word compensation to convey the idea that the equivalent to be
given for the property to be taken shall be real, substantial, full and ample.

The concept of just compensation embraces not only the correct


determination of the amount to be paid to the owner of the land, but also payment
within a reasonable time from its taking. Without prompt payment, compensation
cannot be considered just inasmuch as the property owner made to suffer the
consequences of being immediately deprived of his land while being made to wait
from a decade or more before actually receiving the amount necessary to cope with
his loss. While prompt payment of just compensation requires the immediate deposit
and release to the land-owner of the provisional compensation as determined by the
DAR, it does not end there. Verily, it also encompasses the payment in full of the
just compensation to the landholders as finally determined by the courts. Thus, it
cannot be said that there is already prompt payment of just compensation when
there is only a partial payment thereof, as in this case.

Land Bank of the Philippines vs. Heirs of Domingo


G.R. No. 168533. February 4, 2008. [543 SCRA 627 (2008)]

HELD: In the case at bar, there is no doubt that Domingos land was taken by
the government under PD 27. However, it was only in 1994 when LBP prepared the
Land Transfer Payment Form which was superseded by a Claims Processing Form
issued in 2002. In Assoc. of Small Landowners vs. Sec. of Agrarian Reform, [175 SCRA 343
(1989)], the Court held that it is a recognized rule that title to the property shall
pass from the owner to the expropriator only upon full payment of just
compensation. The date of the taking of the subject land for purposes of computing
just compensation should be reckoned from the dates of the issuance of the
emancipation patents. An emancipation patent constitutes the conclusive authority
for the issuance of a Transfer Certificate of Title in the name of the grantee. It is
VOLUME 34 NUMBER 2 (OCTOBER 2009) 135
Eduardo A. Labitag

from the issuance of an emancipation patent that the grantee can acquire the vested
right of ownership on the landholding, subject to the payment of just compensation
to the landowner.

Lee vs. Land Bank of the Philippines


G.R. No. 170422. March 7, 2008. [548 SCRA 52 (2008)]

The Court in this case cited Sec. 17 of R.A. No. 6657 which enumerates the
factors to be considered in determining just compensation reads:

SEC. 17. Determination of Just Compensation. In determining just


compensation, the cost of acquisition of the land, the current value of
like properties, its nature, actual use and income, the sworn valuation by
the owner, tax declarations, and the assessment made by government
assessors shall be considered. The social and economic benefits contributed
by the farmers and the farmworkers and by the Government to the
property as well as the non-payment of taxes or loans secured from any
government financing institutions on the said land shall be considered as
additional factors to determine its valuation.

The Court explained that these factors have already been incorporated in a
basic formula by the DAR pursuant to its rule-making power under Sec. 49 of R.A.
No. 6657. A.O. No. 5 precisely filled in the details of Sec. 177, R.A. No. 6657 by
providing a basic formula by which the factors mentioned therein may be taken into
account. This formula has to be considered by the SCA in tandem with all the factors
referred to in Sec. 17 of the law. The administrative order provides:

A. There shall be one basic formula for the valuation of land covered by
the VOS or CA:

LV = (CNI x 0.6) + (CS x 0.3) + (MV x 0.1)

Where:

LV = Land Value

CNI = Capitalized Net Income

CS = Comparable Sales

MV = Market Value per Tax Declaration

The above formula shall be used if all three factors are present, relevant,
and applicable.

A.1. When the CS factor is not present and CNI and MV are applicable,
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the formula shall be:

LV = (CNI x 0.9) + (MV x 0.1)

A.2. When the CNI factor is not present, and CS and MV are applicable,
the formula shall be:

LV = (CS x 0.9) + (MV x 0.1)

A.3. When both the CS and CNI are not present and only MV is applicable,
the formula shall be:

LV = MV x 2

In no case shall the value of idle land using formula MV x 2 exceed


the lowest value of land within the same estate under consideration or
within the same barangay or municipality (in that order) approved by
LBP within one (1) year from receipt of claimfolder.
---

Where:

CNI = (AGP x SP) - CO


.12
AGP = Average Gross Production corresponding to the latest available
12 months gross production immediately preceding the date of FI (field
investigation)

SP = Selling Price (the average of the latest available 12 months selling


prices prior to the date of receipt of the CF (claim folder) by LBP for
processing, such prices to be secured from the Department of Agriculture
(DA) and other appropriate regulatory bodies or, in their absence, from
the Bureau of Agricultural Statistics. If possible, SP data shall be gathered
for the barangay or municipality where the property is located. In the
absence thereof, SP may be secured within the province or region.

CO = Cost of Operations

Whenever the cost of operations could not be obtained or verified, an


assumed net income rate (NIR) of 20% shall be used. Landholdings planted
to coconut which are productive at the time of FI shall continue to sue
the assumed NIR of 70%. DAR and LBP shall continue to conduct joint
industry studies to establish the applicable NIR for each crop covered
under CARP.

0.12 = Capitalization rate

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Eduardo A. Labitag

Land Bank of the Philippines vs. Heirs of Cruz


G.R. No. 175175. September 29, 2008. [567 SCRA 31]

FACTS: Respondents are the heirs of Eleuterio Cruz, the registered owner
of an unirrigated riceland situated in Lakambini, Tuao, Cagayan a considerable
portion of which was placed by the government under the coverage of the operation
land transfer program under P.D. 27.

HELD: The Court in this case held that since the amount of just compensation
due to the land owners had not yet been settled by the time R.A. No. 6657 became
effective the fixing of just compensation should therefore be based on the parameters
set out in R.A. No. 6657, with P.D. No. 27 and E.O. No. 228 having only suppletory
effect.

In Land Bank of the Philippines vs. Natividad, [G.R. No. 127198. (2005)] the Court
explained why the guidelines under P.D. No. 27 and E.O. No. 228 are no longer
applicable to the delayed payment of lands acquired under P.D. No. 27, to wit:

It would certainly be inequitable to determine just compensation based


on the guideline provided by PD No. 27 and EO 228 considering the
DARs failure to determine the just compensation for a considerable length
of time. That just compensation should be determined in accordance with
RA 6657, and not PD 27 or EO 228, is especially imperative considering
that just compensation should be the full and fair equivalent of the
property taken from its owner by the expropriator, the equivalent being
real, substantial, full and ample.

Nepomuceno vs. City of Surigao


G.R. No. 146091. July 28, 2008. [560 SCRA 41 (2008)]

HELD: In a long line of cases, the Court has consistently ruled that where
actual taking is made without the benefit of expropriation proceedings and the owner
seeks recovery of the possession of the property prior to the filing of expropriation
proceedings, it is the value of the property at the time of taking that is controlling
for purposes of compensation. As pointed out in Republic vs. Lara, the reason for this
rule is:

The owner of private property should be compensated only for what


he actually loses; it is not intended that his compensation shall
extend beyond his loss or injury. And what he loses is only the
actual value of his property at the time it is taken. This is the
only way the compensation to be paid can be truly just; i.e., just not
only to the individual whose property is taken, but to the public, which
is to pay for it.

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Regarding petitioners contention on the applicability of Art. 1250 of the Civil


Code, Republic vs. CA is enlightening:

Article 1250 of the Civil Code, providing that, in case of


extraordinary inflation or deflation, the value of the currency at the time
of the establishment of the obligations shall be the basis for the payment
when no agreement to the contrary is stipulated, has strict application
only to contractual obligations. In other words, a contractual
agreement is needed for the effects of extraordinary inflation to be taken
into account to alter the value of the currency.

Since there was never any contractual obligation between the parties in this
case, Article 1250 of the Civil Code finds no application.

C . The nature, as well as the character of the land at the time of


taking is the principal criterion in determining just compensation.
All the facts as to the condition of the property and its
surroundings, as well as its improvements and capabilities, must
thus be considered.

NPC vs. Angel Suarez, et. al.


G.R. No. 175725. October 8, 2008. [568 SCRA 232 (2008)]

ISSUE: Whether petitioner, the National Power Corporation (NPC), in its


acquisition of an easement of right of way (aerial) over a parcel of land, only a fee,
not the full value of the land, must be paid. In order to implement its 350 KV Leyte
Luzon HDVC Power Transmission Project which aimed to transmit the excess
electrical generating capacity from the Leyte Geothermal Plant to Luzon and various
load centers. Respondents land was expropriated. There were expectedly conflicting
valuations of the said land. RTC upheld its appointed commissioners valuation at
of P783, 860.46. CA affirmed.

HELD: Petitioner argues that since it merely seeks an aerial easement over
the property, the decision of the appellate courts decision was erroneous. The Court
held that the petitioners plea for the application of Sec. 3A(b) of RA 6395 (Revised
Charter Of The National Power Corporation), which directs the payment of an
amount equivalent to only 10% of the market value of the property as just
compensation for an easement of right of way, does not lie. The acquisition of
such an easement falls within the purview of the power of eminent domain since it
deprives the respondent of the normal use of the property. For this reason, the
latter is entitled to payment of a just compensation, which must be neither
more nor less than the monetary equivalent of the land.

The Court further held that petitioners assertion that respondents can still
make use of the property by planting corn, rice, root crops and similar plants fails to
consider that the property was originally tilled and suited for, as reflected in the
VOLUME 34 NUMBER 2 (OCTOBER 2009) 139
Eduardo A. Labitag

Commissioners Report, 234 fruit bearing coconut trees, 617 abaca plants, 50 madre
de cacao and 23 jackfruit trees. That petitioner prohibited respondents from planting
trees higher than three meters clearly shows that the easement had impaired
respondents beneficial enjoyment of their property to warrant the imposition
of payment of its full value. The measure is thus not the takers gain but the owners
loss. The word just is used to intensify the meaning of the word compensation
and to thereby convey the idea that the equivalent to be rendered for the property
to be taken shall be real, substantial, full and ample.

NPC vs. Purefoods Corp.


G.R. No. 160725. September 12, 2008. [565 SCRA 17]

FACTS: NAPOCOR was to construct and maintain its San Jose-San Manuel
500 KV Transmission Line Project and had to acquire an easement of right-of-way
over eight parcels of land owned by several respondents. Respondents claimed that
they should be indemnified based on prevailing market purchase price, that the
peripheral area should be included, that NAPOCORs offer was excessively low,
undervalued, and obsolete and that its action had caused extreme prejudice to
investments and further delay in construction and development of other
businesses. NAPOCOR claims that it should only pay for an easement fee and not
the full value of the property because an easement of a right of way transmits no
rights except the easement itself while the full ownership is retained by the
respondent.

HELD: The Court ruled that if the nature of the easement will deprive the
normal use of the land for an indefinite period, just compensation must be based on
the full market value of the affected properties. The passage of NAPOCORs
transmission lines over the affected property causes not only actual damage but also
restriction on the agricultural and economic activity normally undertaken on the
entire property. Expropriation is not limited to the acquisition of real property with
a corresponding transfer of title or possession but also includes a right-of-way
easement resulting in a restriction or limitation on property rights over the land
traversed by transmission lines, as in this case.

The Court further explained that in eminent domain or expropriation


proceedings, the general rule is that the just compensation to which the owner of the
condemned property is entitled is the market value. Market value is that sum of
money which a person desirous but not compelled to buy, and an owner willing but
not compelled to sell, would agree on as a price to be given and received therefor.
But where only a part of a certain property is expropriated, the owner is not restricted
to compensation for the portion actually taken. In addition to the market value of
the portion taken, he is also entitled to recover the consequential damage, if any, to
the remaining part of the property. At the same time, from the total compensation
must be deducted the value of the consequential benefits.

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D. The non-filing of the case for expropriation will not necessarily


lead to the return of the property to the landowner. What is left
to the landowner is the right of compensation.

FORFOM Development Corp. vs. PNR


G.R. No. 124795 December 10, 2008

FACTS: Forfom was the registered owner of several parcels of land in Laguna.
The San Pedro-Carmona Commuter Line Project, a project by then President
Marcos, was implemented with the installation of railroad facilities and appurtenances.
During construction, several properties, including that of the petitioners, were
traversed as right-of-way. Respondent Philippine National Railways (PNR) failed to
file an expropriation case and provide just compensation. Petitioner argues that
these circumstances entitle it to recovery of possession over the land.

HELD: The power of eminent domain, though inherent in the State, is subject
to Section 9, Article III of the Constitution which states that private property
shall not be taken for public use without just compensation. A number of
circumstances must be present in the taking of property for purposes of eminent
domain: (1) the expropriator must enter a private property; (2) the entrance into
private property must be for more than a momentary period; (3) the entry into the
property should be under warrant or color of legal authority; (4) the property must
be devoted to a public purpose or otherwise informally, appropriately or
injuriously affected; and (5) the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of all beneficial enjoyment of the
property. All of these are present in the case at bar, hence it is clear from the
foregoing that there was a taking of property within the constitutional
sense.

However, it is also understood that recovery of possession of the property


by the landowner can no longer be allowed on the grounds of estoppel and, more
importantly, of public policy which imposes upon the public utility the obligation to
continue its services to the public. The non-filing of the case for expropriation
will not necessarily lead to the return of the property to the landowner.
What is left to the landowner is the right of compensation.

D. DARAB Jurisdiction

E . DARAB retains jurisdiction over disputes arising from agrarian


reform matters even though the landowner or respondent
interposes the defense of reclassification of the subject lot from
agricultural to non-agricultural use.

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Eduardo A. Labitag

Laynesa vs. Uy
G.R. No. 149553. February 29, 2008. [547 SCRA 200 (2008)]

HELD: The Court held that despite the reclassification of an agricultural


land to non-agricultural land by a local government unit under Sec. 20 of RA 7160,
the DARAB still retains jurisdiction over a complaint filed by a tenant of the land in
question for threatened ejectment and redemption for the reason that jurisdiction is
determined by the statute in force at the time of the commencement of the action.
Likewise settled is the rule that jurisdiction over the subject matter is determined by
the allegations of the complaint. DARAB case No. V- RC-028 was filed by the tenants
of an agricultural land for threatened ejectment and its redemption from respondents.
It cannot be questioned that the averments of the DARAB case clearly pertain to an
agrarian reform laws. Such being the case, the complaint falls within the
jurisdiction of the DARAB under Sec. 50 of RA 6657 on the quasi-judicial powers
of the DAR. It bears stressing that the DAR has primary jurisdiction to determine
and adjudicate agrarian reform matters and shall have exclusive original jurisdiction
over all matters involving the implementation of the agrarian reform except those
falling under the exclusive jurisdiction of the Department of Agriculture and the
DENR. Primary jurisdiction means in case of seeming conflict between the
jurisdictions of the DAR and regular courts, preference is vested with the DAR
because of its expertise and experience in agrarian reform matters. Sec. 50 is also
explicit that except for the DA and DENR, all agrarian reform matters are
within the exclusive original jurisdiction of the DAR. Therefore, the
Court held that the DARAB retains jurisdiction over disputes arising from
agrarian reform matters even though the landowner or respondent interposes the
defense of reclassification of the subject lot from agricultural to non-agricultural
use.

F. DARAB. All controversies on the implementation of the


Comprehensive Agrarian Reform Program (CARP) fall under
the jurisdiction of the Department of Agrarian Reform (DAR),
even though they raise questions that are also legal or
constitutional in nature.

Tan vs. Link


G.R. No. 172849. December 10, 2008

HELD: The Court in this case, found that jurisdiction over the complaint of
the petitioners fell on the DARAB. Well settled is the rule that jurisdiction is
determined by the allegations in the complaint. Mainly, petitioners do not agree in
the Orders of the DARAB officials which were prejudicial to them. Petitioners allege
that the orders were issued by the DARAB with grave abuse of discretion or with
lack or excess of jurisdiction. Perusal of petitioners complaint would reveal that
petitioners themselves invoked and accepted the jurisdiction of the DARAB
over their dispute with respondent Link. Petitioners prayer is even more obvious:
they request the RTC to reverse/set aside the DARAB Order directing payment of
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just compensation to respondent Link and the DARAB Order denying their Motion
for reconsideration.

Sec. 1, Rule II, 2002 DARAB Rules of Procedure pointedly covers this particular
issue before us. It provides:

Sec. 1. Primary And Exclusive Original and Appellate Jurisdiction.


The board shall have primary and exclusive jurisdiction, both original
and appellate, to determine and adjudicate all agrarian disputes involving
the implementation of the Comprehensive Agrarian Reform Program
(CARP) under Republic Act No. 6657, Executive Order Nos. 228, 229,
and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389,
Presidential Decree No. 27 and other agrarian laws and their implementing
rules and regulations. x x x.

Islanders CARP-Farmers Beneficiaries Multi-Purpose Cooperative, Inc. vs. Lapanday


Agricultural and Development Corporation [G.R. No. 159089 (2006)] instructs that; All
controversies on the implementation of the Comprehensive Agrarian Reform
Program (CARP) fall under the jurisdiction of the Department of Agrarian Reform
(DAR), even though they raise questions that are also legal or constitutional in nature.
All doubts should be resolved in favor of the DAR, since the law has
granted it special and original authority to hear and adjudicate agrarian
matters.

Hilario vs. Prudente


G.R. No. 150635, September 11, 2008. [564 SCRA 485]

FACTS: Petitioner filed a protest to oppose the inclusion of her land in the
CARP and the identification of the respondents and Benito Prudente as farmer-
beneficiaries, averring that they were neither tenants nor occupant-tillers of the subject
property. The protest was denied by the Provincial Agrarian Reform Officer (PARO).
Petitioner filed a forcible entry case in the MTC which ruled in her favor. RTC
reversed for lack of jurisdiction. CA affirmed RTC.

HELD: The Court held that the case filed with the MTC clearly concerned
an agrarian dispute involving the implementation of the CARP which the petitioner
was fully aware of. It was obvious that the petitioner filed the ejectment suit with the
MTC in order to thwart the unfavorable ruling she obtained from the PARO. In the
case of Bautista vs. Mag-isa Vda. de Villena [G.R. No. 152564. (2004)] the Court held
that under Republic Act 6657, the DAR retains jurisdiction over all agrarian
reform matters. The pertinent provision reads:

Sec. 50. Quasi-Judicial Powers of the DAR. - The DAR is hereby vested with
the primary jurisdiction to determine and adjudicate agrarian reform
matters and shall have exclusive original jurisdiction over all matters
involving the implementation of agrarian reform, except those falling
VOLUME 34 NUMBER 2 (OCTOBER 2009) 143
Eduardo A. Labitag

under the exclusive jurisdiction of the Department of Agriculture and


the Department of Environment and Natural Resources.

G. Reclassified agricultural lands must undergo process of


conversion in DAR before they may be used for other purposes.

DAR vs. Polo Coconut Plantation Co., Inc.


G.R. No. 168787. September 3, 2008

HELD: The Court in this case cited Ros vs. Department of Agrarian Reform, [468
SCRA 471 (2005)], which held that reclassified agricultural lands must undergo the
process of conversion in the DAR before they may be used for other purposes. Since
the DAR never approved the conversion of the Polo estate from agricultural to
another use, the land was never placed beyond the scope of the CARP. The approval
of the DAR for the conversion of agricultural land into an industrial estate is a
condition precedent for its conversion into an ecozone. A proposed ecozone cannot
be considered for Presidential Proclamation unless the landowner first submits to
PEZA a land use conversion clearance certificate from the DAR. This PCPCI failed
to do.

E. Tenancy Relations

H. DARAB. Tenancy. Claims that one is a tenant do not automatically


give rise to security of tenure. The elements of tenancy must
first be proved in order to be entitled to security of tenure.

Jeremias vs. Estate of Mariano


G.R. No. 174649. September 26, 2008. [566 SCRA 539 (2008)]

FACTS: Irene P. Mariano owned two parcels of land, a little over 27 hectares,
located in Barangay Balatas, Naga City. In 1972, the said parcels of land were placed
under the Operation Land Transfer Program pursuant to P.D. 27, and among the
tenant-beneficiaries was Santiago Jeremias, the father of herein petitioner, Leopoldo
Jeremias. Ruben Vinas was also instituted allegedly as a tenant by the wife of Jose
Mariano (heir of Irene) through an unsigned letter. Irene P. Mariano died intestate
and the appointed administrator filed a case for ejectment and damages against
both Jeremias and Vinas alleging that neither of them were tenants of the disputed
land. The Estate alleges that petitioners gained access to the latter through
surreptitious means and unjustly refused to vacate upon demand. PARAD (Provincial
Agrarian Reform Adjudicator) ruled for the Estate. DARAB (Department of Agrarian
Reform Adjudication Board) reversed upholding petitioners tenancy. CA upheld
PARAD decision.

HELD: The Court held that Jeremias and Vinas were NOT tenants. RA 1199
(Agricultural Tenancy Act of the Philippines) defines a tenant as a person who, himself,
and with the aid available from within his immediate farm household, cultivates the
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land belonging to or possessed by another, with the latters consent for purposes
of production, sharing the produce with the landholder under the share tenancy
system, or paying to the landholder a price certain or ascertainable in produce or in
money or both, under the leasehold system.

The Court has in the past ruled that self serving statements regarding tenancy
relations could not establish the claimed relationship. The fact alone of working
on anothers landholding does NOT raise a presumption of the existence
of agricultural tenancy. Substantial evidence entails not only the presence of a
mere scintilla of evidence in order that the fact of sharing can be established; there
must be concrete evidence on record to evidence the element of sharing. In this case,
both petitioners failed to satisfy the required burden of proof. Jeremias failure to
produce a single morsel of evidence that he was authorized to till the other lots
(which he did not inherit from his father-the lawful tenant) is fatal to his cause.
Vinas letter which was unsigned was likewise insubstantial as evidence.

I. Requisites for tenancy relations to be present were enumerated.

Salmorin vs. Zaldivar


G.R. No. 169691. July 23, 2008

The Court in this case reiterated the ruling in Saul v Suarez [G.R. No. 166664,
473 SCRA 628 (2005)] :

There must be evidence to prove the tenancy relations such that all its
indispensable elements must be established, to wit (1) the parties are
the landowner and the tenant; (2) the subject is agricultural land; (3) there
is consent by the landowner; (4) the purpose is agricultural production;
(5) there is personal cultivation; and (6) there is sharing of the harvests.
All these requisites are necessary to create tenancy relationship, and the
absence of one or more requisite will not make the alleged tenant a de
facto tenant.

F. Mortgage

B&I Realty Co, Inc vs. Caspe


G.R. No. 146972, January 29, 2008. [543 SCRA 1]

FACTS: Venegas and her husband, respondents and Datuin entered into a
compromise agreement whereby the Venegases agreed to sell and transfer the
property to respondents with the condition that they (respondents) would assume
and settle Datuins mortgage debt to petitioner. The amount corresponding to the
unpaid mortgage would be deducted from the consideration. The issue here is whether
or not prescription had already set in.

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Eduardo A. Labitag

HELD: The Court held, citing Art. 1142 and Art. 1155 of the Civil Code, that
although the deed of real estate mortgage and the promissory note executed by
Datuin expressly declared that the date of maturity of the loan was May 14, 1974 or
one year after the real estate mortgage was entered into between Datuin and petitioner,
the same could not be the reckoning point for purposes of counting the prescriptive
period of the mortgage. This is because Datuin and respondents Caspe executed a
deed of absolute sale on October 30, 1975 whereby the latter acknowledged and
assumed the mortgage obligation of the former in favor of petitioner. Under Article
1155 of the Civil Code, the written acknowledgment and assumption of the
mortgage obligation by respondents had the effect of interrupting the
prescriptive period of the mortgage action.

The computation of the prescriptive period of any cause of action starts from
the date when the cause of action accrues. Here, petitioners cause of action accrued
from the time respondents stopped paying the mortgage debt they assumed from
Datuin, in accordance with Article 1151 of the Civil Code:

Art. 1151. The time for the prescription of actions which have for their
object the enforcement of obligations to pay principal with interest or
annuity runs from the last payment of the annuity or of the interest.

It was then that respondents committed a breach of duty to pay their remaining
obligation to the former. Thus, the ten-year prescriptive period should be reckoned
from January 14, 1980. Petitioner had until January 14, 1990 to file suit so that,
when it sued on August 27, 1993, the action had already prescribed.

J. An equitable mortgage is one which, although lacking in some


formality, or form, or words, or other requisites demanded by a
statute, nevertheless reveals the intention of the parties to charge
real property as security for a debt, and contains nothing
impossible or contrary to law.

Dorada Vda. De Delfin vs. Dellota


G.R. No. 143697. January 28, 2008. [542 SCRA 397]

FACTS: Dionisia Delfin, owner of a property with an area of 143,935 sq. m.


executed a (1) Pacto de Retro of her 50,000 sq. m. property in favor of the spouses
Ildefonso Dellota, but failed to exercise her right of redemption. Twenty years later,
she executed a (2) Deed of Sale with Right of Redemption through which she sold
another 50,000 sq. m. portion of the property to Gumersindo Delena, but failed to
redeem the same. Records show that Salvador Dellota leased this area from
Gumersindo. Dionisia then executed a Deed of Mortgage and Promise to Sell in
favor of Salvador Dellota, without specifying whether it included the lot sold to
Gumersindo. Heirs of Dionisia contend that the Deed of Sale with Gumersindo was
an equitable mortgage.

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HELD: The Court in this case held that an equitable mortgage is one which,
although lacking in some formality, or form, or words, or other requisites demanded
by a statute, nevertheless reveals the intention of the parties to charge real property
as security for a debt, and contains nothing impossible or contrary to law. The
essential requisites of an equitable mortgage are: (1) the parties enter into what
appears to be a contract of sale, (2) but their intention is to secure an existing debt
by way of mortgage.

For the contract to be converted from a purported contract of sale into an


equitable mortgage, what should be determined is whether the consideration of
P5,300.00 paid by Gumersindo to Dionisa for a five-hectare portion of Lot No. 1213
on June 9, 1949 is unusually inadequate [Art. 1602 (1), NCC]. In sales denominated
as pacto de retro, the price agreed upon should not generally be considered as the
just value of the thing sold, absent other corroborative evidence. On the part of the
vendor, the right to repurchase the land is immaterial as to whether or not the price
of the sale is the just value thereof; for the vendee, the price does not induce him to
enter into the contract as he does not acquire the thing irrevocably, but subject to
repurchase at the stated period but only has an expectancy that he will acquire the
thing absolutely at a favorable price should the vendor fail to redeem the thing sold.
There is no reason to conclude that the 1949 price of P5,300 was unreasonable or
unusually inadequate, since it is presumed that a person takes ordinary care of his
concerns absent any showing of fraud or threat into signing the contract.

Even assuming it was an equitable mortgage, Dionisia failed to redeem the


property for 15 years until the complaint was filed. Her heirs claim that since Dionisia
had been paying the realty taxes follows that she owns the property. Settled is the
rule that tax receipts per se are not conclusive evidence of land ownership absent
other corroborative evidence.

G. Judicial Confirmation of Imperfect Title

K . The reckoning date under the Public Land Act, as amended, for
the acquisition of ownership of public lands is likewise 12 June
1945 or earlier.

Republic vs. Imperial Credit Corporation


G.R. No. 173088. June 25, 2008. [555 SCRA 315 (2008)]

HELD: The Court in this case ruled that the date 12 June 1945 under the
aforequoted provisions is a reiteration of Sec. 4 of P.D. No. 1073, which, in turn,
amended Sec. 48(b) of the Public Land Act. The reckoning date under the Public
Land Act, as amended, for the acquisition of ownership of public lands is likewise 12
June 1945 or earlier, and evidence of possession from the date or earlier is essential
for a grant of an application for judicial confirmation of imperfect title.

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Eduardo A. Labitag

L. The Government of the Philippine Islands bought the friar lands


not from individual persons but from certain companies, a society,
and a religious order.

Caete vs. Genuino Ice Co., Inc.


G.R. No. 154080. January 22, 2008. [542 SCRA 206 (2008)]

HELD: The Court held that one who acquires land under the Friar Lands
Act, as well as his successor in interest, may not claim successional rights to purchase
by reason of occupation from time immemorial, as this contravenes the historical
fact that friar lands were bought by the Government of the Philippine Islands, pursuant
to an Act of Congress of the United States, approved on 1 July 1902, not from
individual persons but from certain companies, a society and a religious order. Under
the Friar Lands Act, only actual settlers and occupants at the time said lands are
acquired by the Government were given preference to lease, purchase, or acquire
their holdings, in disregard of the settlement and occupation of persons before the
government acquired the lands.

 

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Integrated Bar of the Philippines

BOARD OF GOVERNORS
(2007-2009)

FELICIANO M. BAUTISTA
Chairman

ROGELIO A. VINLUAN
Vice Chairman & Governor for Southern Luzon

ABELARDO C. ESTRADA EVERGISTO S. ESCALON


Governor for Northern Luzon Governor for Eastern Visayas

ERNESTO A. GONZALES, JR. RAYMOND JORGE A. MERCADO


Governor for Central Luzon Governor for Western Visayas

MARCIAL M. MAGSINO RAMON EDISON C. BATACAN


Governor for Greater Manila Governor for Eastern Mindanao

BONIFACIO T. BARANDON, JR. CARLOS L. VALDEZ, JR.


Governor for Bicolandia Governor for Western Mindanao

NATIONAL OFFICERS
(July 2007 - June 2009)
FELICIANO M. BAUTISTA
National President

ROGELIO A. VINLUAN
Executive Vice President

TOMAS N. PRADO ESTER SISON CRUZ


National Secretary National Treasurer
JAIME M. VIBAR ROSARIO T. SETIAS-REYES
National Executive Director National Director for Legal Aid
ALICIA A. RISOS-VIDAL DOMINIC C.M. SOLIS
National Director for Bar Discipline Assistant National Secretary
MARIA TERESITA C. SISON GO DEAN PACIFICO A. AGABIN
Assistant National Treasurer General Counsel
ROGELIO V. GARCIA ROAN I. LIBARIOS
Deputy Director for Bar Discipline Editor-in-Chief, IBP Journal
RODOLFO G. URBIZTONDO JOSE AMOR M. AMORADO
Deputy General Counsel & Chief of Staff Presidential Assistant for External Affairs
EDUARDO A. LABITAG HERMINIO HARRY L. ROQUE, JR.
Managing Editor, IBP Journal Presidential Assistant for Human Rights
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Integrated Bar of the Philippines


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