Notes On Warrantless Arrest

The IBP Journal
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VOLUME 38, NUMBER 3 & 4 (JULY - DECEMBER 2013)

IBP JOURNAL
Volume 38, Numbers 3 & 4

(July - December 2013)
Articles
Revisiting Legal and Judicial Ethics: Challenges and Perspectives ............................. 1

Hilarion L. Aquino
The Misclassification of the Crime of Rape ..................................................................... 11

Emmanuel Q. Fernando
Government Liability Arising from Cancellation

of Foreign Investment Contracts ...................................................................................... 44
Cristina A. Montes
Land Ownership and Registration of Title .................................................................... 80

Emmanuel L. Genciana
Perspective on the Norm-Creating Process in the Relations of States ..................... 91

Merlin M. Magallona
Standards of Conduct on Mediator Impartiality:

Can the Philippines Learn from Australia? ................................................................. 100
Ma. Araceli B. Habaradas
Arrest: Scope, Subtleties and Remedies ........................................................................ 118

Oscar G. Raro
Analytical Survey of 2013 Decisions on Torts and Quasi-Delicts .......................... 140

Rommel J. Casis
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Revisiting Legal and Judicial Ethics: Challenges and Perspectives
Revisiting Legal and Judicial Ethics:
Challenges and Perspectives
Hilarion L. Aquino*
INTRODUCTION
Even the most rudimentary surveys will reveal that Filipinos will not give lawyers high
marks for trustworthiness. To say that lawyers are not well trusted is, in our days, almost
hackneyed. In fact, one internet post put it with stinging humor when it declared: Legal
ethics is an oxymoron!
Like all institutions, the Bar and the Bench have their shares of problems. The Bar
is suffering from a poor public image. Lawyers are perceived by the public as generally
self-seeking. The Bench is hurting too from negative comments of the public especially
media on perceived judicial improprieties and injudiciousness of many a judge. True,
these may just be perceptions which may not square with reality but in our milieu,
perception and reality are virtually the same. These problems belong to the realm of
ethics and morality which make it not only necessary but imperative to revisit legal and
judicial ethics.
These serious problems challenge in this 21st Century all members of the legal
profession to help in the restoration of that great, dignified and preeminent image that
our profession once had. In my paper I shall present some ethical propositions which
are my perspectives on the subject, hopefully to provoke meaningful discussions on them
in the different legal fora and academe.
Law, Ethics and Justice: Linkages
That the precepts of law need not rest on moral argument is now commonplace, and
this conviction goes by many names, positivism being among the most popular. But
we persist, do we not, in recognizing the efficacy of the moral in the universe of the
legal.
The elementary distinction in criminal law between a malum prohibitum and a malum
in se is tacit recognition of the criminalization of what is morally reprehensible. An act
which is malum in se has been defined as one inherently wicked, one naturally evil, as
adjudged by the sense of a civilized community, one involving illegality from the very
nature of the transaction, upon principles of natural, moral and public law, and one
immoral in its nature and injurious in its consequences without regard to the fact of its
being noticed or punished by the law of the state.1
* Chair, Legal Education Board; Chair, Department of Ethics and Judicial Conduct, Philippine Judicial Academy,
Supreme Court
1 21 Am Jur 2d, Criminal Law, 27
Volume 38, Number 3 & 4 - (July - December 2013 ) 1

Hilarion L. Aquino
Finally, the Supreme Court has repeatedly linked justice to the workings of the
judicial system. In holding the inapplicability of the protective provisions of the Foreign
Currency Deposits Act to a pedophiles dollar account, Justice Justo Torres intoned: In
fine, the application of a law depends on the extent of its justice.2 And in deciding
against a literal application of Civil Code requirements for the exercise of the right of
redemption by co-heirs in the sale by another heir of his undivided share in the common
inheritance to a third party, the late Justice Isagani Cruz wrote with his usual flair: The
question is sometimes asked, in serious inquiry or in curious conjecture, whether we are
a court of law or a court of justice. Do we apply the law even if it is unjust or do we
administer justice even against the law? Thus queried, we do not equivocate. The answer
is that we do neither because we are a court both of law and of justice. We apply the law
with justice for that is our mission and purpose in the scheme of our Republic.3
All this of course links the legal with the moral, because justice is principally not a
legal but a moral concept.
LEGAL ETHICS
The Ethos of the Legal Profession
The ethos of the legal profession consists of the disposition of the lawyers, the culture
lawyers create in the exercise of their profession and in the evolution of their traditions,
the adoption and acceptance of precepts of conduct.
I have practiced law for 31 years and was a member of the Bench for 17 years. For all
of 48 years, I had been interacting with lawyers. This long period of close association
with them, qualifies me, I think, to talk about the lawyers mindset. This, I shall do
with utmost objectivity and candor.
When a lawyer accepts a case, the thought of an opportunity to serve the cause of justice
does not at all cross his mind. His initial concerns are, to know thoroughly the problem
of the client and to get the facts right and the fixing of satisfactory attorneys fees.
A lawyer is basically client-centered. In managing the case, what is most important
to him is the cause of his client. His ultimate goal is to win the case or secure some
benefits for his client. When he is confronted with a dilemma of clashing duties: his
duties to his client on the one hand, and his duties to society, or to his profession or to
the courts on the other, without a second thought, the lawyer would give preference to
his duties to his client.
It is not easy to change this mental disposition but we ought not to stop trying.
2 Salvacion v. Central Bank, G.R. 94723 (August 21, 1997)

3 Alonzo v. Intermediate Appellate Court, G.R. 72873 (May 28, 1987)
2 The IBP Journal

The Imperatives of Principled Legal Advocacy
Canon 1 of the Code of Professional Conduct announces the principal obligation

of the lawyer: uphold the Constitution, obey the laws of the land, and promote respect
for law and legal processes. Justice does not figure in this articulation of the lawyers
duty. And it should not be assumed, naively, that the lawyers obligation to uphold the
Constitution and the laws is eo ipso his obligation to see that justice is done, for laws are not
necessarily just, especially when applied to concrete circumstances.
In fact, the first aporia of legal ethics makes itself felt. When the law itself particularly
in relation to the specific factual constellations of cases yields unjust results, what then
does the obligation of the lawyer to obey the laws consist in? Does this bind the lawyer to
cram down the law despite its unjust results?
I take it that it is not to be seriously contested that a lawyer cannot ethically take up a
position whether it should serve his clients interests or not that would allow his client
to transgress the law. After all, as an officer of the court, the lawyer owes his allegiance
principally to the court, without detracting from his fiduciary obligation towards his client.
I am advancing a rather straightforward proposition: It is the

lawyers obligation to be ethical that obligates him to promote
justice at all times and it is a lawyers espousal of the cause
of justice that links the specialized concern with the law to the
ideal (not idealized) quality of social and individual human
living.
With characteristic eloquence does the General Statute for the Spanish Bar (Estatuto General
de La Abogacia Espanola) make this point when it expressly provides:
The fundamental obligation of the lawyer as a participant in the

public function of the administration of justice is to cooperate in such
administration, conciliating and defending in law such interests as may
be entrusted to him. In no case, however, do such interests ever justify the
lawyers departure from the supreme end of justice to which the Bar is
inextricably linked.4
A propos are the exquisite lines written by the late iconic Justice J.B.L. Reyes which he
suggested to be the mantra of all lawyers:
No master but the law,

No guide but conscience,
No goal but justice.
These 13 simple words in 3 short lines which can be uttered in less than a second
encapsulate what I have been talking about in the past several minutes.
4 Estatuto General de la Abogacia Espanoloa, Titulo III, Capitulo Primero, Articulo 30

Hilarion L. Aquino
The Ethics of Prosecutorial Discretion
Directly related to the subject of justice as the overarching criterion of ethical conduct
on the part of the lawyer is the matter of the exercise of prosecutorial discretion. From
a string of decisions on the subject, I cite only two, twin cases in fact: Po v. Department of
Justice5 and Chiu v. Court of Appeals6. In these consolidated cases, the Court held that, absent
grave abuse of discretion, it could not interfere with the discretion of the prosecutor to file
a case, all that was required being a finding of probable cause.
Recently, as the Supreme Court enforced the newly-minted rule on the Judicial
Affidavit, prosecutors were agitated. They in fact succeeded in securing from the Court
a stay in the implementation of the rule insofar as they were concerned. The essence
of their complaint was that, in those cases covered by the rule on the judicial affidavits,
they would have to be ready, already at pre-trial, with all the judicial affidavits of all the
witnesses they intend to present by which to prove the guilt of the accused. This is because
Sec. 9 (b) of the rule gives a caveat to the prosecution that judicial affidavits not submitted before the
preliminary conference or pre-trial shall not be accepted during the trial. The prosecutors argued that all
that was necessary for the filing of the Information was probable cause. Why then were
they now required, under the new rule, to muster all their evidence so that the judicial
affidavits could be prepared and duly submitted before commencement of trial?
I will formulate the issue in the following manner: Is it ethical for a prosecutor to
file the Information in the awareness that all the evidence that he has, establishes only
probable cause which is of course insufficient to convict the accused?
It has become commonplace for prosecutors to argue that since all that the rules require
for Information to be filed is probable cause, then that is the quantum of evidence they
need at the time they go to court. I must then ask: If they file the Information in the full
awareness that at the time they do so, they have only such evidence as establishes probable
cause, would the prosecutors be acting legally in filing the Information? Yes, of course.
But would they be acting ethically?
Remember the Latin aphorism: Non omne quad licit bonestum est. (Not everything
permitted is honorable)
But does a prosecutor have any option other than to file the information if in the
preliminary investigation he finds probable cause? The rule in effect provides that a
finding of probable cause is necessary for the filing of the information but it does not
follow that where there is probable cause without anything more the Information must
be filed! The problem is first logical: the illicit transmutation of a categorical proposition
is required to a modal proposition must be filed!
5 G.R. 195198 (February 11, 2013)

6 G.R. 197098 (February 11, 2013)
4 The IBP Journal

Probable cause is defined in Section 1, Rule 112 of the Rules of Court as that
evidence which is sufficient to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof.
May I yet again ask: Is it ethical to indict a person for the commission of an offense
which immediately and inevitably puts him and the members of his family to shame,
incarcerates him if the crime charged is non-bailable or even if bailable, if he cannot
afford to post a bail, burdens him with expenses of litigation and attorneys fees, and
makes him suffer anxiety and the inconveniences of trial with time and effort spent
when all that the prosecutor has is evidence showing the probability of the indictees
guilt? Note, most of these burdens and injuries are emotional or psychological and,
therefore, irreparable.
To answer that in the affirmative, is to me, to tolerate an injustice if not oppression.
To be sure, my proposition is not new at all.
The California District Attorneys Association Uniform Crime Charging Standards directs
prosecutors according to the following rules:
1. Basic Criteria for Charging: The prosecutor should charge only if the
following four basic requirements are satisfied:
a. The prosecutor, based on a complete investigation and a

thorough consideration of all pertinent data readily available
to him, is satisfied that the evidence shows the accused is
guilty of the crime to be charged;
b. There is legally sufficient, admissible evidence of a corpus
delicti;
c. There is legally sufficient, admissible evidence of the
accuseds identity as the perpetrator of the crime charged;
d. The admissible evidence should be of such convincing force
that it would warrant conviction of the crime charged by
a reasonable and objective fact-finder after hearing all the
evidence available to the prosecutor at the time of charging
and after hearing the most plausible, reasonably foreseeable
defense that could be raised under the evidence presented to
the prosecutor xxx7
Why indeed should a prosecutor be allowed to gamble with the

honor, the liberty, the property and the well-being of a person
in the crucible of a criminal proceeding on the basis of a mere
expectancy: that his inadequate evidence may perchance be
fortified or rehabilitated during trial?
7 Cited in Zimring and Frace, The Criminal Justice System (Boston: Little, Brown and Company, 1980), p. 443

Hilarion L. Aquino
In a very informative and frank article by John Kaplan in the Northwestern Law Review,
we are told how things go in the federal prosecutors office. Kaplan writes: The first
and most basic standard is the assistants [Assistant United States Attorney] view of the
accuseds guilt of the crime charged. It is generally agreed that, regardless of the strength
of the case, if the prosecutor does not actually believe in the guilt of the accused, he has
no business prosecuting.
JUDICIAL ETHICS
Judging For Justice
Nowhere in the sixteen sections that constitute Article VIII of our Constitution, on
the judiciary, will one find mention of justice. Of the two hundred ninety six sections
of the fundamental law, justice figures only in the Preamble and in Section 1 of Article
XI that binds all public officers and employees to act with justice. I have tried to explain
this by the fact that justice is actually a very difficult concept. A non-legal attribute, it
is in fact a moral concept.
Article VIII, Section 14 confines the bases of a Courts judgment to the facts and
the law. And when you have a Supreme Court pronouncements like Courts are mere
instruments of the law and in administering and constructing it, they can will nothing but
the will of the law8 then it should not be surprising that judges will rest content about
having rendered a judgment that pays obeisance to the letter of the law, no matter how
atrociously unjust the results may be.
In this regard, the important pronouncement of Justice Cruz in the Alonzo case earlier
mentioned is worth recalling:
Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. To be sure, there are
some laws that, while generally valid, may seem arbitrary when applied in a particular
case because of its peculiar circumstances. In such a situation, we are not bound, because
only of our nature and functions, to apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the word and the will, that justice
may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law
as it is worded, yielding like robots to the literal command without regard to its cause
and consequence. Courts are apt to err by sticking too closely to the words of a law, so
we are warned, by Justice Holmes again, where these words import a policy that goes
beyond them. While we admittedly may not legislate, we nevertheless have the power to
interpret the law in such a way as to reflect the will of the legislature. While we may not
read into the law a purpose that is not there, we nevertheless have the right to read out of it
8 Tiamco v. Diaz, 76 Phil 672 (1946); Security Bank and Trust Co. v. Regional trial Court of Makati, 263 SCRA 483 (1996).
6 The IBP Journal

the reason for its enactment. In doing so, we defer not to the letter that killeth but to the
spirit that vivifieth, to give effect to the law makers will.
Every judge will do well to pay heed once more to a provision of law that, because it is
so familiar, is now no longer carefully read. Article 10 of the Civil Code directs: In case
of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail. No matter that the seeming transparency
of the provision of law, if its application should result in iniquity, malice, injustice and
unfairness, then there is a resulting ambiguity that the judge must resolve in favor of the
right and justice that the Legislature is presumed to have intended.
I do not think then that there is anything so revolutionary about my proposal that
when a magistrate renders judgment, he should do so on the basis of fact and law with
deliberate intent to do justice. And whether or not the Constitution is amended
to include this phrase or not, this, I submit, remains a moral imperative in every act of
judging.
In the several lecture sessions I have had with judges all over the country as a member
of the Philippine Judicial Academy, I have had the occasion to ask what they would do
when confronted by this dilemma: rendering a judgment that they knew to be legally
correct but patently unjust. No one takes comfort from the aphorism dura lex sed lex! You
cannot quiet a conscience that bothers you about having visited injustice by intoning a
Roman aphorism!
If a law has not yet received an authoritative interpretation, then the trial court should
construe it in such a way as to attain justice. However, if there is already a precedent,
the trial court is not at liberty to ignore it. The doctrine which commands adherence
to precedents in called stare decisis et non quieta movere which means that once a case
has been decided one way, then another case, involving exactly the same point at issue,
should be decided in the same manner.
But, if the case before the judge is not exactly on all-fours with the precedent due to
some peculiar facts or circumstances, then the judge, when demanded by the tenets of
justice, may decide the case differently, in effect constituting such an adjudication as an
exception to the precedent. I submit that the rule on stare decisis can accommodate this
reasonable judicial rendition.
A famous American philosopher-jurist, Appellate Judge Richard Posner puts it well:

The very thing that gives a chain of precedents its strength length over time may in
a changing society signal obsolescence.9
In relation to the social contexts in which judgments are to take effect, I would like
to take up the matter of public welfare in relation to the judicial disposition of cases.
Note, like justice, public welfare is not mentioned in the Constitution as one of the
9 Richard Posner, The Problems of Jurisprudence (Cambridge; Harvard University Press, 1990), p. 119

Hilarion L. Aquino
bases of a decision. However, the preamble of the Constitution in part states that the
government must promote the common good. Section 4, Article II makes it the prime
duty of the Government to serve and protect the people. Section 1, Article XI commands
that public officers and employees serve the people with utmost responsibility and act with
justice.
In our democratic government where the people are sovereign, their welfare is the
ultimate goal of government. In connection with the office of a judge, the question
immediately presents itself: In rendering a decision, should public interest or welfare be a
relevant consideration? When a foreign investor, for example, wins an award to construct
a gargantuan project in the Philippines into which he is to invest a handsome sum, but he
fails to comply with some requirements, a case is brought for the rescission of the award.
Would it be ethical to be inclined towards rescission, or to find a way to save the award by
employing such devices as substantial compliance, constructive notice, good faith
attempt, colorable title? Is it altogether inconsequential to a judge that an adverse
judgment against such an investor may very well keep potential investors at bay and
deprive thousands of Filipinos of jobs? I submit that under certain circumstances,
public welfare should be factored in the decisional process.
The Ethos of the Judge
I asked judges several times, if it has come to their knowledge that pictures and sketches
were taken at the scene of the vehicular incident but they are not before the court, should
the judges demand for their production in court if they believe that said pictures and
sketches are needed by them to resolve an issue in the case.
Most of the time, judges answered that they would not, lest they be thought of
favoring a party. In other words, the prevailing ethos is one of passivity the judge merely
awaiting what is presented before him and rules on it.
It is time, I think, for the judge to be truly in control of proceedings: and this means
asking for evidence, if the judge thinks that the evidence is necessary. The fear of being
suspected of bias should not prevail against the judges passion to find the truth and to
arrive at a fair judgment that does not depend on how successfully parties have concealed
evidence. True, it is, that this judicial attitude, we carried over from the Americans, but as
history has taught us, our American heritage is a bag of mixed blessings and woes.
Shift to Inquisitorial System of Trial
From the advent of the American colonial rule in the Philippines, the conduct of
trial in our country had generally been the adversarial system. This method is identified
with the common law tradition. One aspect of this system is the requirement that the
judge should restrain himself from exercising his right to examine witnesses. Tabuena v.
Sandiganbayan,10 teaches that as much as possible, judges should stay out of the conduct
10 206 SCRA 382 (1997)
8 The IBP Journal

of trial, neither interfering or intervening therein. They should ask questions to witnesses
sparingly and judiciously and only to clarify some ambiguities in the evidence.
The judge, in adversarial proceedings, is a neutral umpire, who ensures that the
evidence is presented in accordance with certain ground rules, and can generally ask
only clarificatory questions, but not to take over from the contending attorneys. He then
adjudicates on the basis of the evidence presented by the adversary parties.11
On September 4, 2012 the Supreme Court promulgated the Judicial Affidavit Rule12
which became effective on January 1, 2013. Significantly, this issuance planted the seed
of the inquisitorial system of trial in the Philippines. Under this Rule, the questioning of
witnesses by the judge is no longer just a right but more importantly, an imperative duty.
The judge, is commanded by Section 7 to take active part in examining the witnesses to
determine their credibility as well as the truth of their testimony and to elicit the answers
that he needs for resolving the issues.
Soon after the Judicial Affidavt Rule was promulgated, the Supreme Court has started
the revision of the 1997 Rules of Civil Procedure. The proposed revision changes the
trial system in the Philippines from generally adversarial to generally inquisitorial system.
Under the proposed rules the judge would not just be a passive umpire but an active third
party, representative of the States sovereignty, who seeks just solutions to disputes and
controversies.
Not too long ago, at a symposium organized by the Legal Education Board that had
partnered with the Graduate School of Law of San Beda College, Justice Roberto Abad
and Dr. Pacifico Agabin introduced the law deans to the proposed revision to the Rules
of Civil Procedure. Features such as the requirement of written demand and prior to
submission to at least two modes of alternative dispute resolution, the requirement that
judicial affidavits be attached already to the initiatory and to the responsive pleadings,
but above all the face-to-face trial that involves the judge actively in the examination of
the witness all these constitute a radical departure from the comfort zone of lawyers for
whom court room meant dais, witness box and counsels table behind the Bar.
CONCLUSION: THE CULTIVATION OF LEGAL ACADEMIA
I shall conclude with a subject very close to my heart, as the very first chairman of
the Legal Education Board. From the time I entered into the discharge of the duties
of my office, I have always advocated the development of legal academia as a distinct
profession. There is no doubt that all of us have been schooled at the feet of giants in the
legal profession, and ten of them have been honored by the Legal Education Board by
inscribing their names in the Hall of Fame, ten more were honored posthumously. But
the fact is that law professors in this country have largely been law practitioners with time
11 Farrar and Dugdale, Introduction to Legal Method, 2nd Edition (London: Sweet and Maxwell, 1984), pp. 59 - 60
12 A.M. No. 12-8-8-SC

Hilarion L. Aquino
to spare for teaching law. In other words, almost all of us who teach law or who have
taught it have been, at best, incidental professors.
When I advance the cause of the formation of legal academia professorship and
juristic scholarship, in other words I am not advocating anything new. In fact, the
Renaissance of Justinians Copus Juris Civilis is owed to the professors at such ancient law
faculties as Bologna and Padua where law primarily did not mean court appearances
and legal counseling but a discipline of study that exacted much in terms of intellectual
energy from those who pursued it.
We must then resolutely move towards the formation of legal academia as a distinct
profession one that places a premium on scholarship in the law, with the time and
the opportunity to research and to explore on topics great and small, not harried by
the prospect of what might be asked in the Bar Examinations and that prepares the
academic for the supremely noble vocation of passing on to others, neophytes in the
science of jurisprudence and the law, the fruits of the academics mature and recondite
reflections.
10 The IBP Journal

The Misclassification of the Crime of Rape
Emmanuel Q. Fernando*
I. INTRODUCTION
On 30 September 1997, the Philippine Congress, influenced by the feminist move-

ment of the Philippines, passed Republic Act No. 8353, otherwise known as the Anti-Rape
Law of 1997, which expands the definition of the crime of rape and reclassifies it as a
crime against persons.1 Previously it was a crime against chastity. This is a conceptual
misclassification or a category mistake.
In justifying themselves, the feminists, who played a prominent part in its reclassifi-
cation, approached the crime of rape from the womans perspective. They apparently
intended to make known, by means of the reclassification, three feminist theses regarding
rape which the legal system, due to its underlying male perspective and ideology, did not
at that time appreciate: that rape is (i.) a crime against a womans very being or person-
hood and not a crime against a womans virtue or chastity; (ii.) a violent act rooted in male
dominance and female subordination or patriarchy; and (iii.) a public and not a private
crime. A public crime may be commenced directly by the State without the offended
partys participation while a private crime must be filed directly by the offended party, or
* M.A. (Cantab.), D. Phil. (Oxon.). Prof. Fernando is a professorial lecturer at the College of Law at the University
of the Philippines and the Graduate School of Law in San Beda College. He is also Vice-Chairman of the
Department of Jurisprudence and Philosophy in the Philippine Judicial Academy.

A shorter and similar paper was accepted for publication in a book on the general theme of sex, crime and the
law as part of the proceedings of the Second Annual Conference of Good Sex, Bad Sex: Sex Law, Crime and Ethics,
held on Monday 3rd May 2010 to Wednesday 5th May 2010 at Prague, Czech Republic. The book project was
not completed.
Prof. Fernando has also recently discovered that the preliminary paper which he submitted to the Conference,
unbeknownst to him, was published in the internet. That paper contains topics not covered in this paper and his
views regarding certain matters covered in both papers have substantially changed. As to the topics covered in
both papers, this paper represents his current and more refined views. As to the topics not substantially treated
in this paper but covered in the earlier one, he intends to write several new, more polished papers.
1 This is found in Art. 266-A of the Revised Penal Code, the relevant portions of which state:

Art. 266-A. Rape: When and How Committed.Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circum-
stances:

a) Through force, threat or intimidation:
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another persons mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of another person.
...
Art. 266-D. Presumptions.Any physical overt act manifesting resistance against the act of rape in any degree
from the offended party, or where the offended party is so situated as to render her/him incapable of given valid
consent, may be accepted as evidence in the prosecution.

her parents, grandparents, or guardian.2
This article determines whether this reclassification is wise and is called for, whether
the feminist objectives are achieved by this reclassification and whether there are available
other, less radical and less objectionable ways for achieving these objectives.
Apart from the reclassification of rape as a crime against persons and the character-
ization of rape as a public crime, the Law introduced several other significant innova-
tions. First, marital rape is impliedly recognized. Second, a fourth mode of committing
rape, by fraudulent machination or grave abuse of authority, is added. Third, rape now
also includes acts other than penile penetration of the vaginal orifice, such that, an act of
sexual assault could be effected by inserting a penis into another persons mouth or anal
orifice, or any instrument or object, into the genital or anal orifice, of another person.
Fourth, and this is a consequence of the third innovation, a woman might now be charged
of raping another person and rape might now be committed against men in the form of
sexual assault. However, the law does not go so far as criminalizing the rape of a woman
against a man, when she compels, forces or intimidates him, for example, to penetrate
her sexual organ, as in the case of the female teacher-male student coitus. Fifth, two
evidentiary presumptions were instituted: (i.) any physical overt act manifesting resistance
against the act of rape in any degree from the offended party or (ii.) where the offended
party is so situated as to render her/him incapable of giving valid consent may be ac-
cepted as evidence in the prosecution.3
Incidentally, the Anti-Rape Law of 1997 should be considered with Republic Act No.
8505 (Rape Victim and Assistance Act of 1998), which provides for a rape shield. This simply
means that in rape, evidence of a complainants past sexual conduct, opinion thereof or
of his/her reputation should not be admitted unless, and only to the extent that the court
finds that such evidence is material and relevant to the case.
II. THE PERSPECTIVES OF LIBERAL AND RADICAL FEMINISM
I have made reference to Philippine feminism as if there was only one kind of femi-
nist perspective. There are, in fact, different versions or kinds of feminism: conservative
feminism, liberal feminism, cultural feminism, pragmatic feminism and radical feminism,
to name but a few. Although the doctrines espoused by each kind of feminism differ, at
times radically from each other, they are united in one goal: the elimination of patriar-
2 Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The
crimes of adultery and concubinage . . .
...

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender
has expressly pardoned by the above named persons, as the case may be.
3 This being said, some feminists believe that the amendments introduced by R.A. 8353 have not gone far
enough. They have recommended additional amendments. See, for example, Philippine Commission on Wom-
en (PCW), Strengthening the Provisions of R.A. 8353: Amending the Anti-Rape Law, Policy Brief No. 11,
http://pcw.gov.ph/wpla/rape. See also House Bill 6170 or An Act Amending Chapter 3 of Republic Act 8353,
also known as the Anti-Rape Law of 1997, which has been filed by Gabriela Womens Party representatives Luz
Ilagan and Emmi De Jesus. ((http://bulatlat.com/main/2012/05).
12 The IBP Journal

chy.4 Patriarchy is characterized as an unjust social system of male superiority and female
subordination oppressive to women. More comprehensively,
Patriarchyis a social system in which the role of the male as the primary
authority figure is central to social organization, and where fathers hold
authority over women, children, and property. It implies the institutions
of male rule and privilege, and is dependent on female subordination.5
Different kinds of feminism disagree in the method for eliminating patriarchy. The
method used by Philippine feminists in eliminating patriarchy by this reclassification is
that of liberal feminism, which utilizes legal reform. Liberal feminists subscribe to the val-
ues of freedom, of autonomy and of equality between the sexes and avails of the methods
of political and legal reform.6 This is to be contrasted with the method of radical femi-
nism. Radical feminists tend to be more militant in their approach (radical as getting to
the root) than other feminists are. Radical feminism opposes existing political and social
organization in general because it is inherently tied to patriarchy. Thus, radical feminists
tend to be skeptical of political action within the current system, and instead tend to focus
on culturechange that undermines patriarchy and associated hierarchical structures.7
That being said, radical feminists in the Philippines also support the legal reform of the
rape law by means of this reclassification and other amendments.
However liberal and radical feminists differ in their conceptual understanding of

what rape is. Liberal views tend to regard rape as a gender-neutral assault on individual
autonomy, likening it to other forms of assault and/or illegitimate appropriation, and
focusing primarily on the harm that rape does to individual victims. More radical views,
in contrast, contend that rape must be recognized and understood as an important pillar
of patriarchy. . . . Radical feminists see rape as arising from patriarchal constructions of
gender and sexuality within the context of broader systems of male power, and empha-
size the harm that rape does to women as a group.8
Consequently, although the method used for rape reform is that of liberal feminism,
rape is conceptualized from the radical feminist perspective. This will be made evident
4 Conservative feminism opposes patriarchy only to a limited degree.
5 Princeton, Patriarchy, https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Patriarchy.html
6 Liberals hold that freedom is a fundamental value, and that the just state ensures freedom for individuals.
Liberal feminists share this view, and insist on freedom for women. Stanford Encyclopedia of Philosophy, Liberal
Feminism, http://plato.stanford.edu/entries/feminism-liberal/.
Liberal feminismis anindividualisticform of feminist theory, which focuses on womens ability to maintain
their equality through their own actions and choices. Liberal feminists argue that society holds the false belief
that women are, by nature, less intellectually and physically capable than men; thus it tends to discriminate
against women in the academy, the forum, and the marketplace. Liberal feminists believe that female subor-
dination is rooted in a set of customary and legal constraints that blocks womens entrance to and success in
the so-called public world. They strive for sexual equality via down to earth political and legal reform. Tong,
Rosemarie. 1989. Feminist Thought: A Comprehensive Introduction. Oxon, United Kingdom: Unwin Human
Ltd. Chapter 1.
7 Womens History, Radical Feminism, http://womenshistory.about.com/od/feminism/g/radicalfeminism.
htm. Radical feminism is defined as follows: Radical feminism is a philosophy emphasizing the patriarchal
roots of inequality between men and women, or, more specifically, social dominance of women by men. Radical
feminism views patriarchy as dividing rights, privileges and power primarily by gender, and as a result oppress-
ing women and privileging men.
8 Stanford Encyclopedia of Philosophy, supra, fn. 7.

later in the article. It is my contention that feminists, of the liberal but not of the radical
variety, will not be averse to my conclusions and recommendations.
III. THE LEGAL RATIONALE BEHIND THE CLASSIFICATION

OF RAPE AS A CRIME AGAINST CHASTITY
Previously, the crime of rape was classified as a crime against chastity, and belonged
to the group of crimes which included adultery, concubinage, acts of lasciviousness, se-
duction, corruption of minors and white slave trade. The logical criticism against the
reclassification is that crimes against persons involve the criminal intent to do physical
harm. The intent of the rapist is totally different. It is sexual or lustful in nature, such that
the crime or rape, as all crimes against chastity, must be committed with lewd design.
In People v. Gilo,9 it was held that lewd design is an indispensable element of all crimes
against chastity, such as abduction, seduction and rape, including acts of lasciviousness.10
Even the reclassification concedes this when the Code, as amended by R.A. No. 8353,
refers to the crime in Art. 266-A(2) as one of sexual assault. By using the term sexual,
the Code apparently acknowledges that it is not physical harm, but lewd design, which is
the intent of the perpetrator. This means that it ought to be classified as a Crime Against
Chastity, and not a Crime Against Persons.
This observation is supported by Philippine jurisprudence. Even after the reclassifica-

tion of the crime of rape as a crime against persons, the justices of the Supreme Court
still acknowledged the satisfaction of ones lust, and not the intent to do harm, to be the
motivation behind the crime. For example, in justifying the conviction of the accused,
particularly in cases of incest, the Court still reiterated the dictum that lust is no respecter
of time or place, or some similar observation. This happened often in cases prior to the
effectivity of the reclassification and continued after its effectivity.11 One recent case that
asserted it after the reclassification was the 2012 case of People v. Danao, where the Supreme
Court pronounced: Furthermore, we agree with both the RTC and the CA that lust is no
respecter of time and precinct and known to happen in most unlikely places.Indeed,
rape can either happen in a populated area or in the privacy of a room.12
Another recent case is People vs. Anguac, a 2009 case, where it was held:
Lust, being a very powerful human urge, is, to borrow from People v. Ber-
nabe, no respecter of time and place (G.R. No.141881, November 21,
2001, 370 SCRA 142, 147). Rape can be committed in even the unlikeli-
est places and circumstances, and, as recent jurisprudence shows, by the
most unlikely persons. . . . We have observed in more than one occasion
9 G.R. No. L-18202, April 30, 1964
10 This was reiterated in People v. Obsania, G.R. No. L-24447, 29 June 1968.
11 Although the Anti Rape Law was passed in 1997, it applied only to cases when the rape was committed after its
effectivity on 30 September 1997, and not when the case was decided by the Supreme Court. Consequently, the
earliest case where the Anti Rape Law was applied by the Supreme Court was, on the basis of my research, on 09
August 2001 in People v. Toralba, G.R. NO. 139411 concerning the incestuous rape of a father of his 22-year-old
mentally retarded daughter.
12 G.R. No. 193665, 25 June 2012
14 The IBP Journal

that rape could take place in the same room where other members of the
family were sleeping (People v. Besmonte, G.R. Nos. 137278-79, February
17, 2003, 397 SCRA 513, 523); that it is not impossible to commit rape
in a small room even if there are several persons in it (People v. Balmoria,
G.R. No. 134539, November 15, 2000, 344 SCRA 723, 728). We have
taken judicial notice of the fact that among poor couples with big fami-
lies cramped in small quarters, copulation does not seem to be a problem
despite the presence of other persons (People v. Flores, G.R. Nos. 145309-
10, April 4, 2003, 400 SCRA 677, 687).13
A more graphic case depicts it as follows:
Neither the crampness of the room, nor the presence of other people
inside it, nor the high risk of being found out has been held sufficient
and effective obstacles to deter the commission of rape. As this Court ob-
served in People v. Umali (G.R. No. 76530, 1 March 1995, 242 SCRA 17,
23-24. See also People v. Hinto y Bueno, G.R. Nos. 138146-91, 28 February
2001, 353 SCRA 215, 223): [I]t has become a matter of judicial no-
tice that rape can be committed in many different kinds of places which
many would consider as unlikely or inappropriate and that the scene of
the rape is not always or necessarily isolated or secluded for lust is no re-
specter of time or place. Thus, the crime can, and has been, committed
in places where people congregate, e.g., inside a place where there are
occupants, a five-meter room with five people inside, and even the same
room which the victim was sharing with the accuseds sisters. Therefore,
we find it not so incredible that accused somehow had the temerity to
sexually assault private complainant even with his wife and two small
children just nearby. To repeat what has been said before, animal lust
is an aberration which this Court will not explain for the benefit of the
accused.14
This, as in the quotations above, often happens when the case before the Supreme
Court involves a rapist, usually a father, who has the gall to rape his own daughter at night
in a room where other members of his family are sleeping. If the justices adhered to the
reclassification, they would have restated the dictum as: Harm is no respecter of time or
place.
This reclassification is rendered more ludicrous by the following example. A torturer

who inserts a blunt instrument into the anus of a victim so as to inflict pain should be
considered guilty of the crime of physical injuries. Under the reclassification, his act is
construed to constitute rape as sexual assault, even if it were perpetrated without any
lewd design. This is because in reclassifying rape as a crime against persons, the requisite
criminal intent becomes one to do physical harm and not one to satiate ones lust. In fact,
any attempt to penetrate the orifice of a victim, motivated by harm, becomes rape by
13 G.R. No. 176744, 05 June 2009.
14 People vs. Magbanua, G.R. No. 176265, 30 April 2008. Other cases include: People vs. Alipio, G.R. No. 185285, 5
October 2009; People vs. Castel, G.R. No. 171164, 28 November 2008; People vs. Arivan, G.R. No. 176065, 22 April
2008; and other cases too numerous to mention.

sexual assault.
To take an example from the movies, Marathon Man involved a character played by
Sir Lawrence Olivier, a Nazi war criminal referred to as the dentist, who tortured the
character played by Dustin Hoffman, by means of inserting dental instruments into the
latters mouth and drilling it into his teeth, causing him great pain. The dentist continu-
ally asked his victim the question Is it safe? He did so to determine whether it was safe
to recover and sell off a large cache of diamonds which he had taken from Jews killed
atAuschwitz. In the Philippine jurisdiction, after the effectivity of the Anti-Rape Law, he
would be guilty of rape by sexual assault.
This reclassification gravely offends the sound logic of the Philippine Revised Penal
Code, which traces its origins to the Spanish Penal Code of 1870. Indeed, the Philippines
shares together with the other Spanish-speaking countries, the same legacy. None of the
other Spanish colonies however has seen fit to reclassify the crime of rape as one against
persons.
Indeed, when I attended a criminal law conference in the Universidad de Deusto in

Bilbao, Spain last November 2004, whose theme concerned how various Spanish colo-
nies developed the Spanish Penal Code of 1870, I happened to mention to a few of the
delegates the reclassification. They were greatly amused, to say the least. By this reclas-
sification, the Philippines has succeeded to embarrass itself with the rest of the Spanish-
speaking legal community.
The reclassification, therefore, violates the conceptual clarity and logic of the Spanish
Penal Code of 1870, from which the Philippine Revised Penal Code is derived. Specifical-
ly, it reclassifies a crime which is motivated by lustful or lewd intent to a group of crimes
which is committed with intent to do physical harm. Hence, it is included among the fol-
lowing crimes, parricide, murder, homicide, infanticide, abortion, and physical injuries,
among others, which has physical harm as its intent. Surely, this is a mistake. If harm is
the accompanying intent for the crime of rape, it is not physical harm, but psychological
or emotional harm, that is intended.
The feminists, undoubtedly were aware of this violation of conceptual clarity and
logic. But, to them perhaps, it is but a small price to pay for the advantages of reclas-
sification. As earlier mentioned, there exist three. The first is to point out that rape is an
act against a womans being and not her virtue; the second is to focus on rape as an act
of violence and of domination of a man against a woman; and the third is to overcome
the procedural obstacles due to rape being a characterized as a private and not a public
crime.
IV. RAPE FROM THE PERSPECTIVE OF WOMEN
Rape from the perspective of women perhaps is best contrasted with the perspectives
of men and of the legal system by the distinction that where the legal system has seen the
intercourse in rape, victims see the rape in intercourse.15 This distinction encapsulates
15 MacKinnon, Catherine A. Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,
Journal of Women in Culture and Society 1983, vol. 8, no. 4; citing (Susan Brownmiller, Against Our Will: Men, Women
and Rape (New York: Simon and Schuster, 1976), p. 16) and Diana E. H. Russell, The Politics of Rape: The Victims
Perspective (New York: Stein & Day, 1977); Andrea Medea and Kathleen Thompson, Against Rape (New York, Far-
16 The IBP Journal

the underlying rationale for the three feminist theses mentioned earlier. If the legal system
sees the rape in intercourse rather than the intercourse in rape, then, according to the
feminists, it would view rape as (i.) a violation of a womans being, and not just a violation
of her virtue; (ii.) an act of violence rooted in male dominance and female subordination
rather than an act of lust or lewd design against the will of a woman; and (iii.) a public
and not a private offense, which challenges or transcends the public/private divide.16
The Feminist project to characterize rape as essentially from the viewpoint of women
and not that of men, however, is misguided when applied to evidentiary matters regard-
ing the existence of consent in the determination of guilt in a particular case. To view
the crime from the perspective of the offender or the accused, and not from the victim or
offended party, is not so much patriarchal or sexist in character, but as protective of the
rights of the accused who enjoys the presumption of innocence.17 Was it not Blackstone
who insisted: All presumptive evidence of felony should be admitted cautiously; for the
law holds it better that ten guilty persons escape, than that one innocent party suffer.18
John Adams, who studied Blackstone, explained why: It is more important that inno-
cence should be protected, than it is, that guilt be punished; for guilt and crimes are so
frequent in this world, that all of them cannot be punished . . . when innocence itself, is
brought to the bar and condemned, especially to die, the subject will exclaim, it is im-
material to me whether I behave well or ill, for virtue itself is no security. And if such a
sentiment as this were to take hold in the mind of the subject that would be the end of all
security whatsoever.19
Philippine jurisprudence, no doubt influenced by American jurisprudence, agrees

with Blackstone. So often has it been said that it is better for one hundred criminals to
go free than for one innocent man to be convicted. That is the reason why we require the
constitutional presumption of innocence to be offset only by the most persuasive of proofs
that will establish the guilt of the accused beyond the whisper of a doubt.20
rar, Straus & Giroux, 1974); Lorenne M. G. Clark and Debra Lewis, Rape: The Price of Coercive Sexuality (Toronto:
The Womens Press 1977); Susan Griffin, Rape: The All-American Crime, Ramparts (September, 1971), pp.
26-35; Ti-Grace Atkinson connects rape with the institution of sexual intercourse (Amazon Odyssey: The First
Collection of Writings by the Political Pioneer of the Womens Movement [New York: Links Books, 1974], pp. 13-23).
Kalamu Ya Salaam, Rape: A Radical Analysis from the African American Perspective, in Our Women Keep Our
Skies from Falling (New Orleans: Nkombo, 1980), pp. 25-40.
16
Undoubtedly, the Anti-Rape Law of 1997 is progressive in terms of veering away from the chastity frame-
work, and classifying rape as a crime against persons rather than a crime committed against private individuals
thereby challenging the private-public divide. PCW, supra, fn. 4.
17 Some feminists have proposed that the reasonable victim standard should be used to determine guilt for the
crime of sexual harassment in hostile workplace environment cases. See, for example: Deborah L. Wells and
Beverly J. Kracher, Justice, Sexual Harassment, and the Reasonable Victim Standard, Ethics in the Workplace,
Edward J. Ottensmeyer and Gerald D. McCarthy, eds., New York: McGraw-Hill, 1996, pp. 202-211; and Rob-
ert S. Adler and Ellen R. Pierce, The Legal, Ethical, and Social Implications of the Reasonable Woman
Standard in Sexual Harassment Cases, Ethics in the Workplace, Edward J. Ottensmeyer and Gerald D. McCarthy,
eds., New York: McGraw-Hill, 1996, pp. 211-235.
18 Commentaries on the Laws of England by Sir William Blackstone, Kt.; edited by William Carey Jones. Published: San
Francisco: Bancroft-Whitney, 1915-16. Description. 2 vols.
19 Blackstones Commentaries on the Laws of England; edited by Wayne Morrison. 4 vols. Published: London:
RoutledgeCavendish; London, England: 2001. Description 4 vols.
20 People vs. Capilitan, G.R. No. 73382, 15 February 1990. This was particularly apropos because the accused was
acquitted in a crime of rape by the Philippine Supreme Court which found the alleged victims testimony full of
contradictions and hence not credible. Many other cases state a similar observation.

Concomitant with the principle of the presumption of innocence is the doctrine of

mens rea, that the accused must have a guilty mind before he can be pronounced guilty of
a crime. It respects the values of individual autonomy and responsibility. The doctrine has
been characterized in this manner.
The essence of the principle of autonomy is that the incidence and de-
gree of criminal liability should respect the choices of the individual.
The principle of mens rea expresses this by stating that defendants should
be held criminally liable only for events or consequences which they in-
tended or knowingly risked. Only if they were aware (or, as it is often
expressed, subjectively aware) of the possible consequences of their
conduct should they be held liable. The principle of mens rea may also be
stated so as to include the belief principle, since in some crimes it is not
(or not only) the causing of consequences that is criminal but behaving
in a certain way with knowledge of certain facts. Thus where the defence
is one of mistaken belief, the principle of mens rea would state that a per-
sons criminal liability should be judged on the facts as he believed them
to be.21
Philippine jurisprudence adheres to this doctrine.
The rule on mens rea has been stated thus: Ordinarily, evil intent must
unite with an unlawful act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting.
Ignorance or mistake as to the particular facts, honest and real, will, as a
general rule, exempt the doer from criminal liability.22
To constitute a crime, the act must, except in certain crimes made so by

statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences, as, in law, is equivalent to crimi-
nal intent. The maxim is, actus not facit reum, nisi mens rea a crime is not
committed if the mind of the person performing the act complained of
be innocent.23
The doctrine is embodied in Art. 3 of the Revised Penal Code: Acts and omissions
punishable by law are felonies. Felonies are committed not only by means of deceit (dolo)
but also by means of fault (culpa). Deceit or dolo is loosely translated as criminal intent,
or mens rea.
Viewing the crime from the perspective of the woman in a specific rape case is tanta-
mount to viewing a crime from the perspective of the victim. However it is the perpetra-
tors perspective which ought to be relevant. Otherwise he would be pronounced guilty
of a crime without the requisite mens rea or criminal intent. It would be unfair to imprison
him for an act which he considers completely innocent at the time he was committing it.
21 Andrew Ashworth, Principles of Criminal Law, Oxford: Oxford University Press, 4th Edition, 2003, p. 87.
22 People v. Ah Chong, 15 Phil. 488, citing Bishops New Criminal Law, Vol. 1, sec. 290.
23 U.S. v. Catolico, G.R. No. 6486, 02 March 1911. This was quoted in U.S. v. Elvia, G.R. No. L-7280, 13 February
1913 and People v. Beronilla, et al., G.R. No. L-4445, 28 February 1955.
18 The IBP Journal

In other words, the issue is not whether the victim consented or not but rather whether
the accused believed that the victim consented. That would determine his guilt because, if
he believed that the victim consented, he would not have the requisite mens rea.24
That this doctrine is not so much sexist but rather protective of the accused is shown
by the fact that it protects both the man and the woman, when she has been accused of
a crime. Just as a man should not be imprisoned without the guilty mind, so should a
woman not be.
Apart from the above caveat, I agree with the feminists that it is essential and indis-
pensable to be aware of and appreciate the female point of view in order to undertake
legal reform with respect to the crime of rape. That being said, it does not necessarily
mean that I subscribe to their recommendations, particularly the reclassification of the
crime as one against persons.
V. RAPE AS A VIOLATION OF A WOMANS BEING OR PERSONHOOD
The first thesis of the feminists that rape is a crime against persons, rather than a
crime against chastity, is argued thusly. First, they traced the error in classifying the crime
of rape as a crime against chastity to the Spanish macho or patriarchal culture:
The old rape law defined rape as a crime against chastity. It was a direct
translation from the oldSpanish Penal Codeand was outdated in the sense
that it defined rape as a crime against chastity. Chastity is a sexist stan-
dard which categorizes women to either being chaste (clean; a good
woman) or unchaste (dirty; a bad woman). Hence, it perpetuates dis-
crimination against women.25
Thecrime of rape, under the old provisions of the Revised Penal Code,
was considered a Crime Against Chastity, implying that only virtuous
or chaste women can be victims of rape. More emphasis was placed on
the loss of chastity of a woman or the denigration of her value and the
staining of her honor, rather than a violation of her being.26
As a result, it would be error for anyone to construe rape as a crime against virtue
rather than as a crime against a persons being or personhood. Consequently, it should be
reclassified as a crime against persons. With the change in law defining rape as crimes
against persons,it recognizes the crime against the person itself (sic) an abuse to a wom-
ans humans rights, a violation against the very persons right to life, security, health.27
24 If this observation is offensive to some feminists, the author merely begs their indulgence to wait for a more
complete treatment of this point in an article he intends to write concerning the concept of consent in Philip-
pine rape law which will explain this more thoroughly. This is among the articles I intend to write that I men-
tioned in fn. 1.
25 Santos, Ana, What you should know about the Rape Law?, http://sexandsensibilities.com/tag/republic-act-
no-8353-act-of-1998/. Original article in Ana Santos her.word dotcom, July 2010.
26 Wiki-Pilipinas on the Anti-Rape Law of 1997, http://en.wikipilipinas.org/index.php/Anti-Rape_Law_
of_1997.
27 Santos, supra, fn. 26.

Although I agree with the feminists that to classify crimes such as rape as crimes
against chastity is to use a sexist standard which promotes the patriarchal ideal of a chaste
woman and perpetuates the discrimination of women, I submit that to reclassify the
crime as a crime against persons is a retrograde step.
For to include rape among crimes such as parricide, murder, homicide, infanticide,
abortion, and physical injuries is to maintain that it is more akin to those crimes than to
adultery, concubinage, acts of lasciviousness, seduction, abduction and the like.
If the rationale for the reclassification is to preclude the use of a sexist category, such
as crime against chastity to characterize rape, then it would be more sensible simply to
return the crime of rape to its previous category and rename that category in terms less
odious or non-sexist. Hence, instead of naming that category Crimes Against Chastity,
it should be renamed, for example, as Crimes of Sexual Assaults or Affronts, or some
similar denomination.
Moreover, if the purpose of the reclassification is to recognize that rape is a crime

against the person itself (sic), then it would serve the feminist aims more to characterize
the other crimes against chastity as also crimes against persons. For these other crimes,
more obviously those of acts of lasciviousness or seduction, are just as much offenses to
a womans being, albeit to a lesser degree. Moreover, keeping these crimes in its present
category as crimes against chastity and failing to reclassify them as crimes against persons
as in the case of rape would be an admission that it is a womans virtue and not a womans
being which is violated by, say, acts of lasciviousness, seduction or abduction.
Since it would be absurd to include all these crimes in the category of crimes against
persons, I propose that they should be classified under a separate category and referred
to as, for example, Crimes of Sexual Assaults Against a Persons Being and of Sexual Af-
fronts.28 That way, these crimes would not be considered crimes against a womans virtue
or chastity, so anathema to the feminists. Further, the point that these crimes violate a
womans being or personhood rather than her virtue is made explicit.
The next section concerns my treatment of the second thesis: that rape is an act of
violence rooted in male dominance and female subordination. In the process, the basis
for justifying the second thesis, that it is a violation of a womans being or personhood,
will be provided.
VI. RAPE AS AN ACT OF VIOLENCE ROOTED IN MALE

DOMINANCE AND FEMALE SUBORDINATION
In reclassifying the crime of rape as a crime against persons, Philippine feminists not
only wanted to impress upon the public that it is a crime against a persons being and not
her virtue, but also to stress the violent and sexist nature of the crime. This is based on the
feminist conception of rape as an act of violence and of male domination and oppres-
28 The crimes of adultery and concubinage present a problem. That is not a crime against the offended partys
being, because the person wronged is not the person who is having sexual relations. That is why I would classify
these crimes as sexual affronts rather than sexual assaults. The ideal solution would be the decriminalization of
these acts. That way there would only be crimes of sexual assaults against a persons being and no crimes of
sexual affronts in the category.
20 The IBP Journal

sion. Feminists have reconceived rape as central to womens condition in two ways. Some
see rape as an act of violence, not sexuality, the threat of which intimidates all women.
Others see rape, including its violence, as an expression of male sexuality, the social im-
peratives of which define all women.29
The philosophical rationale behind considering rape as an act of violence or of male

domination is as follows: The point of defining rape as violence not sex has been to
claim an ungendered and nonsexual ground for affirming sex (heterosexuality) while re-
jecting violence (rape). The problem remains what it has always been: telling the differ-
ence. The convergence of sexuality with violence, long used at law to deny the reality
of womans violation, is recognized by rape survivors with a difference: where the legal
system has seen the intercourse in rape, victims see the rape in intercourse. The unco-
erced context for sexual expression becomes as elusive as the physical acts come to feel
indistinguishable. Instead of asking what is the violation of rape, what is the nonviolation
of intercourse? To know what is wrong with rape, know what is right about sex. If this, in
turn, proves difficult, the difficulty is as instructive as the difficulty men have in telling the
difference when women see one. Perhaps the wrong of rape has proved so difficult to de-
fine because of the unquestionable starting point has been that rape is defined as distinct
from intercourse, while for women it is difficult to distinguish the two under conditions of
male dominances.30
This notion of rape, as an act of violence rooted in male dominance over female
subordination, and not just as an act of lust or lewd design against her will, had already
been made mention of by the Philippine Supreme Court. The conventional attribution
is that lust is the motivating cause for rape, although a view is held that this crime is actu-
ally a misguided and blatant mode of domination by one gender over the other. Regard-
less of the sociological cause, the law considers rape as one of the most odious offenses.31
Although these two perspectives on rape, as a crime of violence and as a crime rooted
in male dominance and female subordination are undoubtedly connected, nonetheless I
will discuss these two perspectives separately for greater clarity. I will show, in what fol-
lows, that these two generalizations have been rashly and carelessly made.
A. As an Act of Violence
The above philosophical rationale for the second feminist thesis, in its extreme ver-
sion, depicts rape as a crime of violence, not sex that is, a form of assault whose
sexual nature is irrelevant, and which is analogous to other violent crimes.32 That is tan-
tamount to taking all sex out of the rape. Less extreme versions only insist that violence,
not sex, is more definitive of rape. In describing rape as inherently violent, the Philippine
Commission on Women (PCW) appears to adopt a position intermediate between the
two. Rape is an inherent violent crime that results in physical, social, emotional and
psychological harm. It is not only when force is used that the crime becomes violent;
the fact that the sexual act is committed against the will of the victim makes the crime
29 MacKinnon, supra n. 16.
30 MacKinnon, Catherine Towards a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1984),
Chapter 9.
31 People vs. Sayat, G.R. Nos. 102773-77, 08 June 1993.
32 Stanford Encyclopedia of Philosophy, Feminist Perspectives on Rape, http://plato.stanford.edu/entries/feminism-
rape/
violent.33 This formulation goes beyond what the liberal feminists espouse as the latter
merely liken(ed) rape to other forms of assault. By means of the PCW characterization
of rape, the reclassification, it argues, is warranted.
It is no accident then that the crime of rape was numbered Art. 266-A, immediately
after the series of crimes of physical injuries. Serious Physical injuries at Art. 263, Less
Serious Physical Injuries at Art. 264 and Slight Physical Injuries at Art. 266 are crimes
committed by means of beating, wounding, and assaulting another. The crime of rape
contemplated a different kind of assault, that of sexual assault, as indeed that is how
one type of rape, Art. 266-A(2) is denominated. There is another way, according to the
feminists, to do physical harm, apart from beating, wounding and assaulting another, and
that is by means of having sex with or carnal knowledge of another without her consent.
In reclassifying rape as a crime against persons rather than a crime against chastity,
the feminists actually made a slightly different second thesis: rape is an act of violence
motivated by the intent to cause physical harm rooted in male dominance and female
subordination. Hence, rape was considered more akin to crimes like physical injuries
rather than crimes such as acts of lasciviousness or seduction. But PCW contends not just
that violence is more definitive of rape than sex is but rather that violence is inherent in
rape. The ensuing discussion will show such contention to be wrong.
1. Rape as harm
The fact that the rape causes harm does not necessarily render it a crime against per-
sons, where the harm contemplated is physical harm. This is obvious even to a woman.
Few women would agree that being raped is essentially equivalent to being hit in the
face.34
According to Justice Aquino,
(Crimes against persons) contain the penal sanctions against the viola-
tion of the physical integrity of a person. There are two kinds of crimes
against persons: destruction of life and physical injuries. The crimes
consisting of destruction of life are parricide, murder, homicide, giving
assistance to suicide, discharge of firearms, infanticide, abortion, and du-
eling. Physical injuries consist of mutilation, grave physical injuries (lesio-
nes graves), less serious physical injuries (lesiones menos graves), light physical
injuries (lesiones leves), and administration of injurious substances.35
Surely, rape is not a violation of the physical integrity of a person and does not es-
sentially involve destruction of life or physical injuries (although rape may sometimes be
accompanied by destruction of life or physical injuries). This is because the essence of the
crime is not physical harm, but emotional and psychological harm.
The first feminist thesis that rape is a crime against a persons being or personhood
reflects this observation. Rape treats the victim as a sex object and not as a person. Rape,
33 PCW, supra, fn. 4.
34 Cahill, A., 2001,Rethinking Rape, Ithaca NY: Cornell University Press, p. 3.
35 Aquino, Ramon C., The Revised Penal Code, Vol. II, 1978 edn., Manila: Central Book Supply, p. 1236. This was
written before the reclassification.
22 The IBP Journal

in its total denial of the victims agency, will, and personhood, can be understood as a
denial of intersubjectivity itself. . . . The self is at once denied and . . . stilled, silenced,
overcome.36
The concept of a persons being is that of her psyche or essence, not of physical
or bodily integrity. It refers rather to her psychological integrity. A person who has been
physically injured has his physical body, but not his being, harmed. On the other hand, a
person raped has her very being, psyche or essence, violated. Many rape survivors describe
feeling not only worthless, but also numb, absent, or deadened.37 This is because the act
has emotionally scarred her, has degraded and dehumanized her, and not just physically
injured her.
Hence, emotional and psychological harm, not physical harm, is contemplated.
Victims of rape can be severelytraumatizedby the assault and may have

difficulty functioning as well as they had been used to prior to the assault,
with disruption of concentration, sleeping patterns and eating habits,
for example. They may feel jumpy or be on edge. After being raped,
it is common for the victim to experienceacute stress disorder, includ-
ing symptoms similar to those of posttraumatic stress disorder, such as
intense, sometimes unpredictable emotions, and they may find it hard
to deal with their memories of the event.In the months immediately
following the assault, these problems may be severe and upsetting and
may prevent the victim from revealing their ordeal tofriendsorfamily, or
seeking police or medical assistance.
Additional symptoms of Acute Stress Disorder include:
Depersonalizationordissociation(feeling numb and detached, like

being in a daze or a dream, or feeling that the world is strange and
unreal)
Difficulty remembering important parts of the assault
Reliving the assault through repeated thoughts, memories, or night-
mares
Avoidance of things, places, thoughts, and/or feelings that remind
the victim of the assault
Anxiety or increased alertness (difficulty sleeping, concentrating, etc.)
Avoidance of social life or place of rape
For one-third to one-half of the victims, these symptoms continue be-

yond the first few months and meet the conditions for the diagnosis
of posttraumatic stress disorder.In general, rape and sexual assault are
among the most common causes of PTSD in women.38
That being said, physical harm may also result from rape: in addition to psychologi-
cal harm resulting from the act, rape may cause physical injury, or have additional effects
36 Cahill, supra, fn. 35, p. 132
37 Stanford Encyclopedia of Philosophy, supra., fn. 33.
38 Rape http://en.wikipedia.org/wiki/Rape; citations omitted; emphasis deleted.

on the victims, such as the acquiring of sexually transmitted infections

or becoming
preg-
nant. Furthermore, following a rape, a victim may face violence or threats thereof from
the rapist, and, in some cultures, from the victims own family and relatives.39
The Philippine Commission of Women is acutely aware of the harmful effects to the
physical health of women who have been initiated into sex at a young age, as a result of
which it proposed increasing the age of consent.
Earlier initiation of sexual intercourse is strongly associated with sexually

transmitted infections, increased risk for cervical cancer, pregnancy, de-
pression and suicide, and sexual abuse. Increasing such age of consent to
at least 16 years of age will generally provide greater protection against
abuses to girls and minors.40
Perhaps, what the feminists meant is that the intent of harm in crimes against persons
should include emotional and psychological harm. If so, the objection of Section V holds.
The other crimes of chastity should be included to belong to crimes against persons, since
they also involve emotional and psychological harm. That would be absurd. It would be
better instead to separate the two categories of crimes: one whose intent is to cause physi-
cal harm and the other whose intent is to cause emotional and psychological harm.
2. Rape as violence
According to the Philippine Commission on Women, the act of rape is inherently

violent. It then offered the following elucidation of that claim by means of the following
unsubstantiated contention. Rape need not use force in order to be considered violent;
it is sufficient that the act be committed against the will of the victim. In the discussion
which follows, I will prove that the above unsubstantiated contention is erroneous. There-
after, I will attempt to prove the feminists case for them and present other interpretations
of the concept of violence which might prove rapes inherent violence. Hence, rape
might be considered as violent because of (i.) mens motivations, (ii.) womens perspec-
tives; (iii.) women being violated and (iv.) a redefinition. I will then show that each of the
four interpretations of the concept fail to prove that rape is inherently violent. Before I
proceed with a discussion of the other interpretations, however, I will first establish below
that the PCW contention is erroneous.
a. Rape violent even if committed without the use of force
Contrary to the contention of PCW, I submit that any act committed against the will
of the victim must be accompanied by force or intimidated by force for it to be violent.
For example, a thief may pickpocket the wallet of a pedestrian. This is against the will of
the pedestrian but that does not render the act violent.
This is reflected in the definition of the crime of theft, which, according to Art. 308
of the Revised Penal Code (RPC), is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things, shall take
the personal property of another without the persons consent. It is precisely because
the crime is committed without violence against or intimidation of persons nor force
39 Ibid.
40 PCW, supra, fn 4.
24 The IBP Journal

upon things, which distinguishes theft from robbery. According to Art. 299 of the RPC,
robbery is committed by any person, with intent to gain, (who) shall take any personal
property of another, by means of violence against or intimidation of any person, or using
force upon anything.
Indeed if violence is defined as an act against the will of the victim, then there
would be no such crime as theft, only robbery. Every act of taking the personal property
of another with intent to gain would be an act of violence, because it is done against his
will or without his consent.
This point is reflected in the ordinary definition of the term. The Concise Oxford
Dictionary defines violence as (i.) the unlawful exercise of physical force, or (ii.) intimi-
dation by the exhibition of this.41 The Websters New World Dictionarys characterizes it
as (i.) physical force used so as to injure or damage; or (ii.) a use of force in this way; rough
injurious act.42
An act of rape is not always violent, although it often is. The Code itself, even the
amendment which resulted in the reclassification, acknowledges this. Hence, it catego-
rizes four ways in which it might be committed, only one of which is essentially violent: (i.)
either by means of force, threat or intimidation; (ii.) when the offended party is deprived
of reason or otherwise unconscious; (iii.) by means of fraudulent machination or grave
abuse of authority; or (iv.) when the offended party is under twelve (12) years old or is
demented. By so doing, it concedes that rape may be committed non-violently.
It is only when physical force or intimidation by the exhibition of force is used that
the crime becomes violent. The other means need not use violence to consummate the il-
legal act. Indeed, the common denominator of all acts of rape is not that violence is used,
but that it is against the will of the victim, which could have been secured by non-violent
means.
This argument having been disposed of, I will now try to arrive at a concept of vio-
lence which will establish that rape is inherently violent in order to prove the feminists
case for them.
(i.) Rape violent because men motivated by intent to do violence
Perhaps what the feminists meant by the violence in rape is not in terms of acts com-
mitted with violence but in terms of acts motivated by intent to do violence. This would
be consistent with the feminist characterization of the male gender. Under this view, men,
because of the predominant ideology of patriarchy, cannot help but be actually motivated
by harming women when they commit rape, even if they do not think that to be the case.
That also makes sense of the PCW contention that the act of rape done without the
use of force is violent. This is because the offender was in any case motivated by the intent
to do violence to women. It likewise makes sense of calling rape as inherently violent.
41 The Concise Oxford Dictionary, ed. by R, E. Allen, 8th edn., Oxford: Oxford University Press, 1991.
42 Websters New World Dictionary, ed. by D. B. Guralnik, Concise edn., New York: The World Publishing Co., 1966.

This is because, although rape may be committed without violence, it is inherently violent
since it is perpetrated to do violence.
The legal system does not view the motivations of men with regards to sex in that
manner. The Revised Penal Code, depicted by the Feminists as inherently patriarchal,
characterized crimes of chastity as motivated by lust or committed with lewd design.
Hence, the perpetrator of those crimes is motivated by lewd design towards them, and
not by doing violence to them. Under the reclassification, rape is an act of violence mo-
tivated by the intent to do physical harm and rooted in male dominance and female
subordination. Under the previous classification, rape is an act of lust motivated by the
intent to have carnal knowledge of another against her will rooted in lack of self-control.
Men would not disagree with the previous classification. Most of them, if caught in
the act, would excuse their behavior as due to the promptings of lust, which they could
not control. But this is a subjective standard.
More objective studies would show that there are factors which motivate a man to
commit rape other than the inability to control the libido. According to the World Health
Organization, there are many factors which motivate the commission of rape.
There is no single scientific theory that conclusively explains the motiva-

tion for rape; the motives of rapists can be multi-factorial and are subject
to debate. Several factors have been proposed: anger; a desire for power;
sadism, sexual gratification in tandem with evolutionary proclivities.43
Although many of the above factors may be associated with violence, this does not
warrant the conclusion that rape is essentially motivated by the intent to do violence.
There is at least one such factor not associated with it, sexual gratification in tandem
with evolutionary proclivities.
Further, insisting that rape is essentially motivated by the intent to do violence fails to
account for the following subjective experiences of men.
While perpetrators differ in their strongest occurrent motivations, it is

important to ask why so many men who wish to harm or violate women
do so in a sexual manner. Furthermore, some rapes do occur because a
man wants to have sex, and perhaps would even prefer it if his partner
consented, but is prepared to proceed without her consent.44
Finally, major religions disagree with the Feminists regarding the extent of how lust
motivates the actions of men. The Catholic religion listed down lust as among the seven
deadly sins, the others of which are greed, pride, sloth, envy, gluttony, and anger. Accord-
ing to the Sikh and Eck religions, the five passions or perversions of the mind are lust,
anger, vanity, attachment to material things and envy. Wasnt it Confucius who once said,
43 Rape, supra n. 39; emphasis deleted.
44 Stanford Encyclopedia of Philosophy, supra fn. 33.
26 The IBP Journal

A man with an erection is in no need of advice.
Clearly ancient wisdom has considered lust as one of the main motivating factors for
sinners to do wrong or to sin. By their characterization of rape as inherently violent, the
Feminists have succeeded in doing away with lust as a deadly sin or a perversion of the
mind. After all, according to them, rapists do not really lust after women; they actually
want to do harm or violence to them. Feminists may boast about arriving at an ingenious
and innovative insight into rape but me thinks that ancient wisdom is correct on this point.
To a male, lust represents the most powerful of urges. A child or adolescent, when
experiencing sexual stirrings, is sorely tempted to engage in guilty solitary pleasure despite
it being taboo or anathema, as drummed into him by his parents, teachers, religion or
society. A teen-ager, conflicted between love and desire, resorts to all sorts of arguments,
schemes or devises to convince his first love, whose autonomous choice he respects, to
engage in sex with him. If rebuffed, he may seek comfort with a prostitute and once re-
lieved he can then go home content and satiated. Even a husband, when confronted with
an exhausted wife not in the mood, will beg and plead with his wife to end the torture.
Finally, the caricature of the above-mentioned incestuous father, who committed rape
against his very own daughter in the same room as other members of the family, surely
must have been aroused by irresistible urges and motivated by lust, not violence. For he
did not intend to harm his daughter and may even have fatherly affection towards her; he
merely could not control himself. As the Supreme Court has correctly observed, lust is
no respecter of time and place.
Lesser men such as the incestuous father, when confronted with the same dilemmas as
above, might resort to the use of force to relieve their tension. The worst of them may be
extremely and cruelly violent. It may be wrong to ignore the violence in rape but it would
be serious folly to denigrate the role of lust in it.
(ii.) Rape violent because women view it as such.
Secondly, perhaps what the feminists meant by rape being violent is that women view
it as such. Whereas a man considers it as an act of penetration, a woman views it as a
violent invasion of her person.
I submit that this characterization of rape viewed from the womens perspective is
similarly misguided. To some women, not all acts of rape are essentially acts of violence,
despite being perpetrated with violence and motivated by the intent to do violence.
Women, not of the feminist variety, acknowledge this. Admittedly, in most cases, the
female victim views the act of rape as violent as it in fact often is. But not all victims feel
that way. To elaborate on the example, some victims of incestuous rape (of which sadly
the Philippines has an inordinate share of), particularly daughters who get raped by their
own fathers either because he has recently been widowed or because his wife is working
abroad to earn extra money for the family, sometimes understand that the act is not es-
sentially an act of violence, even if it be perpetrated with the use of force against her will
or without her consent, but one of weakness arising from the promptings of lust due to

the absence of a loved one. Some of them realize that their fathers miss their mothers
so much that they could no longer control themselves, particularly when the daughters
physically resemble their mothers. This is not to countenance the acts of the fathers which
are undeniably despicable, but only to show that the intent involved is not to harm or do
violence to them. This, the victims appreciate, and therefore the act is not one of violence
to them.
To use a different example, I have heard of a few incidents (not judicial cases) where a
boyfriend may have physically forced his girlfriend to have sex with him, neither to satiate
his lust nor to harm her, but to ensure that she marry him. But his act constituted rape
because his girlfriend did not consent to it and even resisted it. However, when the act
had been consummated, the girlfriend felt that she had no choice but to marry him. Some
girlfriends even feel that it showed how much he loved her because he was so determined
to compel her to marry him. This is not uncommon in the Philippines given its culture.
Under such a situation, the girlfriend may have considered the act to be one of love and
not one of violence.
At the risk of sounding chauvinist, I will propose a third example. This involves the
caricature of a vain woman who considers herself so physically irresistible that men can-
not but sexually crave for her body. Such women exist. Consequently, she may flirt with a
suitor but not with the intention of having sex with him, as she realizes the adverse conse-
quences of immediately giving in. Imagine that she resists his advances but he has his way
anyway with or without the use of force. She will consider the act as one not essentially of
violence even if done against her will. To her, it will be more an act of lustful desire due
to her compelling beauty.
The above three examples show that specific acts of rape are not inherently acts of
violence from the female point of view. Sex due to lust is just as much an essential ingre-
dient of rape which needs to be appreciated to fully understand it. The sexual character
of rape must not be ignored. Observations regarding other aspects of female experiences
of rape establish this. For one, as above-mentioned, few women would agree that being
raped is essentially equivalent to being hit in the face.
Furthermore, many rape survivors are damaged specifically in their sex-

uality, facing difficulties in their sexual relationships in the months and
years following the rape. Finally, because many rapes do not involve overt
extrinsic violence, the violence, not sex slogan may make it more dif-
ficult for people to recognize less obviously violent experiences of sexual
force as rape. In short, rape is forced, abusive, and/or violentsex; recog-
nizing rapes sexual nature is crucial to understanding not only its wrongs
and harms, but also the cultural and political meaning of sex in patriar-
chal cultures.45
(iii.) Rape violent because women are violated
Thirdly, feminists may argue that rape, as seen from the female perspective, is violent,
because women feel and are violated by the act. However, this argument is persuasive or
appears valid only because of similar sounding words. To be violated by an act does not
necessarily mean that the act was violent.
45 Stanford Encyclopedia of Philosophy, supra, fn. 33; emphasis the authors.
28 The IBP Journal

Imagine a labor strike wherein the disgruntled laborers engage in a peaceful sit-in
demonstration before the factorys premises preventing anyone to enter the factory and
the factory from pursuing its activities. You can say that the rights of the non-striking
laborers to work and the rights of the factorys management to engage in business have
been violated. However, the sit-in demonstration is not violent.
(iv.) Rape violent due to a redefinition
Finally, what the feminists may be proposing is a redefinition of violence to apply

specifically and only to rape. They may argue that the situation of women who have been
raped are so radically different from the situation of others who have been physically
harmed by the use of force, such that a definition of violence, contrary to its ordinary
meaning, has to be stipulated or used. In other words, there is something distinctive about
the crime of rape so that a new meaning of violence has to be applied. Hence, an act
of rape done against the will of a person, even if done without the use of physical force,
would be violent, while an act done under similar circumstances would not be violent,
such as the commission of theft.
This is a serious mistake. First, this redefinition would be contrary to womens ordi-
nary understanding of rape. If they themselves make a distinction between being raped
against their will and being raped by the use of force as has previously pointed out, then
even they would consider this redefinition mistaken.
Secondly, it would represent a hindrance to understanding what sex essentially is,

and, in particular, appreciating the sex in rape. This has been previously argued. To add,
even the prominent feminist Mackinnon admits that so long as we consider rape as an
abuse of violence, not sex we fail to criticize what has been made of sex, what has been
done to us through sex.46
Finally, this would lead to conceptual confusion and miscommunication. People

would not be able to engage in meaningful communication and debate regarding rape
because they are talking at cross-purposes with each other due to the difference in the
meaning of violence. To prevent confusion, it would be best to coin a new term for that
type of violence, inherent in rape, which does not involve the use of force or do away with
the redefinition altogether.
But I suspect that the feminists would not want to do either of these. They would
prefer to avail of the negative, pejorative connotations attached to the term violent
so as to emphasize the wrongness or odiousness of rape rather than coin a new term or
abandon the redefinition. It seems championing a cause is higher on their agenda than
conceptual clarity is.
If the use of the term violence by the feminists is to point out the harmful, hor-
rendous, odious, pernicious, and despicable nature of the crime of rape, there are ways
in which this thought is imparted or communicated to the public, less harmful to clear
thinking. This I will explain later on in the paper.
46 Mackinnon, Catherine, 1987,Feminism Unmodified: Discourses on Life and Law, Cambridge MA: Harvard Univer-
sity Press, pp. 86-87.

b. As an act rooted in male dominance and female subordination
Philippine feminists have defined rape as an act of male dominance rooted in female
subordination. Rape is a crime involving power relations between the offender and the
victim, and rooted in male dominance and female subordination. It is no doubt, the
result of disparities in the status and situations of women and men; between the more
powerful and the oppressed. The Anti-Rape Law should be viewed from a perspective
that promotes the right of the more vulnerable groups and ensuring their freedom from
violence.47
As mentioned earlier, this is a careless and rash generalization to make. Even if patri-
archy may prevail in a given society, it does not mean that all who live in society act in ac-
cordance with its underlying values and beliefs. Rape is not always between the powerful
and oppressed. This would rule out rape between the oppressed male and the powerful
female. It is also not always rooted in male dominance and female subordination, the
result of disparities in the status and situations of women and men. It would render
impossible the rape by a lesbian. For those who might argue in rebuttal that a lesbian is
actually a male in female clothing,48 I choose more uncontroversial examples. It would
also render impossible the rape by a female teacher who has forced her adolescent student
to have sex with her or of men drugged by women and raped at gunpoint. Such incidents
have been reported. If untrue, they are at least possible.
Nonetheless, the thesis that rapes are acts of male domination and oppression is sup-
ported by some scientific evidence: American clinical psychologist David Lisak, author
of a study of undetected rapists, says that compared with non-rapists, both undetected
and convicted rapists are measurably more angry at women and more motivated by a
desire to dominate and control them, are more impulsive, disinhibited, anti-social and
hyper-masculine and less emphatic.49
I tend to agree with this view but only to the extent that many rapes are rooted in
male dominance and female subordination. The Philippines is still a patriarchal society,
although it has been less so for more than fifty (50) years now. Consequently the ideolo-
gies of male sexual entitlement provides a major motivating factor or cause for the com-
mission of rape.
I stop short, however, of claiming that it is the only factor, or even the predominant
one. This is so for some of the same reasons that I did not consider rape to be inherently
violent. There exist too many motivating factors or causes of rape, even within a patriar-
chal society. Consequently, the claim to me is too simplistic.
There is much value in scientific and psychological studies determining the extent of
how rape is caused by factors of male domination and oppression and I welcome them.
Rapes sexual nature is central to understanding both its perpetrators motivations and
its effects on victims, not to mention the crimes broader social and ideological roots and

48 Or it might be argued that the lesbian has imbibed the ideology of male domination. Thus a lesbian rape would
also be one of male domination. I do not take this argument seriously as it is obviously been made tongue-in-
cheek.
49 Rape, supra, fn. 39; emphasis deleted.
30 The IBP Journal

consequences,50 which can only be achieved by such studies. They will provide useful
sources of information which can be used in improving male-female relations and in pre-
venting these odious crimes from being committed. Thus, rather than readily conclude
that rape is an act of violence rooted in male domination and female subordination, I
suggest that these scientific and psychological studies be pursued more vigorously.
Although I share with the feminists the commitment to promoting the right(s) of
the more vulnerable groups and ensuring their freedom from violence, I cannot, in all
honesty, readily agree with their assumption that rape is a violent act rooted in male
dominance and female subordination. That would transform a scientific, albeit credible,
hypothesis into a dogmatic truth.
c. A Proposed Solution
In the first two parts of this section, Section VI, I have argued that the second feminist
thesis is too simplistic. But that is not the central point of this paper. As its title suggests,
it concerns the misclassification of the crime of rape. I am arguing therefore that the
method of reclassification is not the best way for the Feminists to achieve their very own
objectives. I have gone some way toward achieving this goal in my proposal regarding
the first Feminist thesis in Section V. I argued therein that returning the crime of rape to
its previous category of crimes against chastity suitably renamed as Crimes of Sexual
Affront Against a Womans Being and of Sexual Affronts will do the trick in ways less
offensive to logic. I extend that approach to this Section.
If the objectives of the feminists in the last two Sections were simply to bring into
public consciousness the womans perspective in rape and stress that the act of rape is a
violent act rooted in male dominance and female subordination which violates her being,
some less radical, less objectionable and less illogical, but perhaps more effective, recourse
is available. It is to adopt the first proposal of returning rape to its previous category and
include in that category a definition of rape which encapsulates the thought in the second
thesis.
The PCW, without abandoning its position that rape is a crime against persons, has
attempted some similar characterization or definition:
The PCW proposes the following salient features of the new Anti-Rape
Law: specify that rape is a sexual assault that violates a persons right to
personal security and bodily integrity with the essential element of lack
of consent;
1. the crime is committed by:
2.
a. a man who has carnal knowledge of a woman without her
consent, whether or not the woman suffers injuries;
b. a man touches or inserts his penis into the females inner or
outer vaginal labia, without her consent, whether or not the
woman suffers injuries;
c. a man who touches or inserts his penis into another persons
mouth or anal orifice, without the persons consent, whether
50 Stanford Encyclopedia of Philosophy, supra, fn. 33.
or not the person suffers injuries;

d. a person who touches or inserts any instrument or object,
including a finger, into the genital or anal orifice of another
person . . .51
Although the proposed definition makes way for the possibility of a person, not neces-
sarily male, raping another not necessarily female, by inserting an object into a female ori-
fice, it stops short of contemplating the situation of a female raping a male when a male
is forcibly compelled by a female to penetrate or insert his penis into her inner or outer
vaginal labia. Rape committed by a female against a male has been previously shown to
be possible.
As it stands, I maintain therefore that PCW is a feminist organization of the radi-

cal and not the liberal kind. This is because liberals subscribe to the values of liberty,
autonomy and equality between the sexes. To characterize rape as committed only by a
man against a woman involves discrimination of one sex over another, albeit of the op-
posite variety.
In its stead, I suggest a non-sexist definition or characterization of the crime which

would encapsulate the thoughts contained in the first two theses.
Art. 335-E. Characterization. Rape is an act of sexual assault which is a

violent, harmful act of oppression and domination between a male and
a female, and merely a violent, harmful act when committed by a female
against a male or between persons of the same gender, which degrades
and dehumanizes the offended partys being. Judges ought to take this
perspective into account in deciding crimes of rape.52
This definition is superior because, unlike the PCW definition, it incorporates the
elements of violence, of male domination and oppression, of harm to a womans being
and of psychological damage to her being arising out of degradation and dehumaniza-
tion. It also communicates more effectively the harmful, horrendous, odious, pernicious,
and despicable nature of the crime. By means of the incorporation of these elements, the
reclassification of the crime as a crime against persons is rendered unnecessary and the
exposition of the feminist theses is, unlike the reclassification, communicated clearly and
explicitly.
VII. RAPE AS A PUBLIC CRIME
There are said to be three advantages of the characterization of rape as a public

crime. First, it challenges the private/public divide. Secondly, the crime is not extin-
guished by pardon of the offended party. And thirdly, it would overcome the procedural
obstacle of the crime having to be commenced by a Complaint filed by the offended
party, parents, godparents or guardian.53

52 Prior to the reclassification, rape was defined in Art. 335 as the act of having carnal knowledge of a woman
under certain specified circumstances.
53 It is only when the offended party lacks the capacity to file a Complaint, such as in the case of a minor, when
parents, godparents, or guardians, in that order, are allowed to file in her behalf.
32 The IBP Journal

A. Challenging the Private/Public Divide
The private/public divide refers to the line that separates and determines the place
and roles of men and women in society. It is the very essence of patriarchy. The womens
place is in the home and the mans outside it. However, man reigns supreme within the
home which should not be intruded into by the State. Consequently, its elimination is one
of the most important goals of feminism, as it is considered to be the main cause of the
domination and oppression of women.
The Philippines has, with respect to the roles of men and women outside the home,
has made great strides in doing away with the divide. More and more women are profes-
sionals. There are many female politicians, and have even been two female Presidents.
There are an increasing number of two-income families. Even within the confines of
the home, some progress has been made. It is not uncommon to see the husband doing
household chores, even if, as a result, they may be jokingly teased by their friends as being
under the saya.
However, much has still to be done particularly with respect to sexual matters con-
cerning domestic abuse and violence. Here, the Filipino macho culture rears its ugly
head. Since man reigns supreme within the home which the State, according to the di-
vide, has no business intruding into, men have been able to escape prosecution for sexual
assaults and other crimes committed within the household. Consequently, much sexual
harassment of household help, domestic violence and incests occur.
The Philippine Commission of Women is acutely aware of this problem and bewails
the fact that the amendment has not gone far enough in eliminating marital abuse in con-
nection with the amendment of the rape law.
While making rape a public crime, it also recognizes that . . . the subse-
quent forgiveness by the wife . . . shall extinguish the criminal action or
the penalty. . . . Further, the provision which states that the subsequent
valid marriage between the offender and the offended party shall extin-
guish the criminal action or the penalty imposed could expose the wom-
an to the danger of domestic violence. Once the woman victim marries
the offender, she no longer has legal remedy to file an action for rape.
These forgiveness clauses in the law do not take into consideration the
very issue of gender-based violence in an intimate relationship which can
involve a whole range of abuses such as physical, sexual and psychologi-
cal that can happen over a prolonged period of time. Maintaining the
existence of the forgiveness clause in our law could give rise to violence
against women under the shroud of marriage, keeping women in violent
and abusive relationships rather than freeing them. With such provision,
women who are raped by their husbands are likely to be raped many
times and would suffer repeated violence for they are usually trapped in
a vicious cycle of sexual abuse in marriage.54
It appears therefore that the impact of turning rape into a public crime is only sym-
bolic, and not substantial. The effects are more ideological than tangible or effective.

More practical measures are required. Indeed, the Anti-Rape Law has been around for
a good seventeen (17) years and it has done little, if at all, to reduce domestic violence
and abuse. To this the feminists will agree. Nonetheless, as a philosopher, I will not un-
derestimate the importance of a change or transformation in ideology or fundamental
background beliefs.
1. Proposed Solution
That being said, it is doing away with the public/private divide, and not reclassifying
rape as a crime against persons, which will actually help alleviate domestic abuse. The
reclassification is only the means and the elimination of the divide the goal. That would
be better achieved by more practical, and not symbolic, measures. Moreover, the goal
would just as much be reached if Art. 344 would simply be amended. That way rape
would still be rendered a public crime and all the disadvantages of the reclassification
would not occur.
B. Pardon by the Offended Party
Prior to the amendment, the crime of rape could not be prosecuted if the offended
party pardons the offender.55 The feminists found this objectionable because actual rapes
will go unpunished. Moreover, many of the causes of the pardon are due to financial con-
siderations where the offended party needs the money and the offender buys his freedom.
That allows the offender to commit more rapes.
However, there is some wisdom in allowing the pardon. Forgiveness is a virtue for a
Christian and it may be, to her, the enlightened and more spiritually satisfying way to deal
with the problem. Who are we to impose our morality on her? Moreover, if the woman
is not that virtuous, she may be pragmatic and the acceptance of money, although it may
show lack of integrity, is empowering to her. To her, it is an exercise of autonomy as well
as of pragmatism. Finally, without her cooperation, the case would not prosper anyway
and the offender would not be convicted. In this regard, the discussion of the third advan-
tage has more to say about the matter.
C. Overcoming the Procedural Obstacle
Reclassifying the crime as one against persons is generally considered to allow anyone
who knew about the crime to file a complaint against the offender, since crimes against
persons are public crimes. However, Art. 344, which has not been amended, still provides
that rape is a private crime, along with the offenses of seduction, abduction, rape or acts
of lasciviousness.56 By its non-deletion, that rape is a private crime has therefore not been
expressly repealed. It has only been impliedly so. Since it was the clear intent of the Femi-
nists to turn rape into a public crime, it can be concluded that the framers were guilty of
legislative oversight.
55 Under the Code prior to its amendment by the Anti-Rape Law of 1997, Art. 344, par. 3 states: The offenses
of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by
the offended party, or her parents, grandparents, or guardian; nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be. Under the Code as amended, Art. 266-A did not
include as an effect of pardon the non-prosecution of the crime. However, it did not delete the above provision
in Art. 344. This could only be considered an implied repeal and a legislative oversight, as the non-deletion of
rape as a private crime in Art. 344 was not done. See what follows.
56 Supra, fn. 3.
34 The IBP Journal

The underlying rationale behind this appears to be to ensure that more rape cases
will be filed. When rape was considered a private crime, and only the injured party or
specific family members could file a complaint against the perpetrator. most rape sur-
vivor-victims kept quiet about their violation, because prosecution of the case leads to
embarrassment, as the defense-respondents often sought to prove that the victim was not
chaste--thus no rape occurred.57
However, that should not be the only consideration and, in fact, should not be the
main one. The primary objective should be to ensure that there be more rape convictions,
that rapists do not escape unpunished.
Hence, the wisdom of disallowing the procedural requirement is suspect. For there
exist strong practical grounds for it. First, it is the victim who ultimately knows whether
the act constitutes rape or not. After all, she might have consented to the act, which
would then render the act perfectly innocent. Secondly, the victim might not want to
expose herself to the unwanted publicity, the possible embarrassment and the rigors of
a public trial, where her virtue and character might be subjected to exposure and severe
examination. She might choose, in other words, to suffer in silence rather than to punish
the wrong-doer. Or, she might simply want to practice the Christian virtue of forgiveness.
The second and third considerations, the Feminists do not sympathize with.
Finally, without the victims cooperation, the case would not prosper. Usually, the
crime of rape occurs in secrecy. It is the victims word against that of the offender. No
testimony of a third party could ever replace that of the victim herself. Unless the third
party actually witnesses the event, which is unlikely, the witnesss testimony could only be
hearsay. And even if a third party witnessed the event, his motives could be put into ques-
tion and the question why the victim did not testify herself would be raised.
By allowing the prosecution to prosecute the crime without a Complaint from the
offended party, it does away with the above benefits of treating rape as a private crime.
There have been three cases in which a rape case that had been filed had been dis-
missed by the Supreme Court on the ground that it was not filed by the offended party or
her guardian. This was done in People vs. Trinidad,58 People vs. de la Cruz59 and People vs. Santos,
et al.60 Two other cases were filed but the validity of the Complaint was upheld.
In any case, with respect to those instances where the cases were dismissed, the com-
plainant was not prejudiced by the dismissal. In the Trinidad case, the case was dismissed
without prejudice to the filing of a formal Complaint. Hence, if the complainant were
determined to seek justice, she should have simply affixed her signature in the Complaint.
Although the accused was convicted in the invalidated Complaint wherein the Supreme
Court reversed the conviction for lack of jurisdiction, the de la Cruz case showed no im-
pediment to the re-filing of the Complaint, this time with the proper guardians or com-
57 Wiki-Pilipinas on the Anti-Rape Law of 1997, http://en.wikipilipinas.org/index.php/Anti-Rape_Law_
of_1997
58 24 March 1933, G.R. No.L-38344.
59 20 February 1934, G.R. No. L-39882.
60 G.R. No. L-8520, 29 June 1957.

plainants signature. The same went for the Santos case. Hence, the requirement did not
present a sufficient procedural obstacle to the conviction of the rapist.
Moreover, even a feminist has pointed out that the elimination of this procedural
obstacle has not done much to encourage victims to file more rape cases.
Despite the enactment of RA 8353 in 1997 which amended the crime of

rape in the Revised Penal Code, it is often difficult for a woman to press
charges because of the evidential rules concerning the crime or many
cases of rape are being dismissed in courts because victims have to prove
beyond reasonable doubt that there was no consent. Behind relevant pro-
visions of the anti-rape law that represents considerable progress, it is still
implicit in this law the disregard for the traumatic effects to the victims
of the sexual assault of this nature. Myths and misconceptions, wrong-
ful presumptions and discriminatory understandings about consent in
sexual violence and its victims are still being employed and remain as
basis for jurisprudential doctrines in rape.61
There is no telling whether, as a result of the reclassification, more cases for rape
would be filed without the victims cooperation with the result of a conviction. It is my
contention that, given the evidential requirements, these cases would be dismissed or the
accused acquitted due to her non-participation. It would even be likely that the prosecu-
tor, who wants to have a winning record, would prefer not to try the case at all.
Hence, I am of the belief that this change in the law does not help the Feminist cause
any. However, if the Feminists were determined to get rid of the procedural requirement
that rape be initiated by a Complaint filed by the offended party, there is no need to go
to such extremes as to reclassify rape. A simple deletion of this requirement in Art. 344
would have sufficed.
The next section will introduce other remedies, which serve as proposals, to ensure
that more rape cases will be filed and more convictions achieved. I daresay that these are
more effective than transforming rape into a public crime.
VIII. GREATER CHANCE OF PROSECUTION AND CONVICTION
If the feminists are worried that many acts of rape would go unpunished for the sim-
ple reason of the offended partys reluctance to file such a complaint, there are available
other less radical remedies to address this problem. These remedies include protections
to the offended party, evidentiary requirements, procedural innovations, and institutional
remedies.62 Some of these remedies already exist in the Philippine legal system and, in
61 Santos, supra., fn. 26; citation omitted.
62 Different classifications of these remedies have been proposed. As sexual violence affects all parts of society,
the response to sexual violence is comprehensive. The responses can be categorized as: individual approaches,
health care responses, community-based efforts and actions to prevent other forms of sexual violence. Recovery
from sexual assault is a complicated and controversial concept,but support groups, usually accessed by um-
brella organizations .. . are prevalent, including some on-line.
Sexual assault may be prevented bysecondary school,college,and workplace education programs.At least one
program forfraternitymen produced sustained behavioral change.[ Rape, supra, fn. 39; citations omitted.
36 The IBP Journal

fact, have been mentioned above; others still need to be introduced.63
A. Protections to the Offended Party
1. Rape Shield
R.A. 8505 (Rape Victim and Assistance Act of 1998), provides for a rape shield. As earlier
mentioned, this means that in rape, evidence of a complainants past sexual conduct,
opinion thereof or of her reputation should not be admitted unless, and only to the extent
that the court found, that such evidence is material and relevant to the case. This would
go some way towards convincing her to file a case for rape since her sexual history, if in-
deed there exists one, would not be broadcasted to the public.
2. Withholding Real Name of Victim
The second measure is the ruling in People v. Cabalquinto, which protects the privacy
and anonymity of the victim. The statutory bases for this ruling are Republic Act No.
7610 (RA 7610), otherwise known as theSpecial Protection of Children Against Child Abuse,
Exploitation and Discrimination Act, and its implementing rules, RA 9262, otherwise known
as theAnti-Violence Against Women and Their Children Act of 2004, its implementing rules,
and the Supreme Courts ownRule on Violence Against Women and their Children.64 Hence, the
Supreme Court held:
Taking all these opinions (the opinions of the Office of the Solicitor Gen-
eral, the Integrated Bar of the Philippines, the National Press Club, the
Philippine Press Institute, Kapisanan ng mga Broadcasters sa Pilipinas [Orga-
nization of Philippine Broadcasters] and the Department of Social Wel-
63 For some ideas, I relied on Elisabeth McDonald and Yvette Tinsleys Alternatives to Prosecution: Restorative
Possibilities for Victims in Aotearoa/New Zealand in Helen Gavin and Jacquelyn Bent (eds)Sex, Drugs and
Rock & Roll: Psychological, Legal and Cultural Examination of Sex and Sexuality(e-book, ID Press, Oxford-
shire, 2010) (http://www.inter-disciplinary.net/publishing/id-press/ebooks/sex-drugs-and-rock-roll/) pp 145-
157.
64 Sec. 29 of RA 7610 provides: at the instance of the offended party, his name may be withheld from the public
until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and reporter or
columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting,
producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any
case of a violation of this Act which results in the moral degradation and suffering of the offended party.
Sec. 44 of RA 9262 similarly provides: Sec. 44.Confidentiality.All records pertaining to cases of violence
against women and their children including those in the barangay shall be confidential and all public officers
and employees and public or private clinics or hospitals shall respect the right to privacy of the victim. Who-
ever publishes or causes to be published, in any format, the name, address, telephone number, school, business
address, employer, or other identifying information of a victim or an immediate family member, without the
latters consent, shall be liable to the contempt power of the court.
Likewise the Rule on Violence against Women and their Children states: Sec. 40.Privacy and confidentiality of proceedings.
All hearings of cases of violence against women and their children shall be conducted in a manner consistent
with the dignity of women and their children and respect for their privacy.
Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published,
in any format, the name, address, telephone number, school, business address, employer or other identifying
information of the parties or an immediate family or household member, without their consent or without au-
thority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment
and the fine of not more than Five Hundred Thousand (P500,000.00) pesos.

fare and Development) into account and in view of recent enactments

which unequivocally express the intention to maintain the confidentiality
of information in cases involving violence against women and their chil-
dren, in this case and henceforth, the Court shall withhold the real name
of the victim-survivorand shall use fictitious initials instead to represent
her. Likewise, the personal circumstances of the victims-survivors or any
other information tending to establish or compromise their identities, as
well those of their immediate family or household members, shall not be
disclosed.65
The adherence to the protection of the anonymity and privacy of the victim or of-
fended party may also render her less reluctant to report the crime of rape and, conse-
quently, to prosecute it as well.
B. Evidentiary Requirements
1. Determination of Consent
Art. 266-D of the Revised Penal Code made it easier to establish lack of consent
due to the evidentiary presumptions it introduced. According to it, (a)ny physical overt
act manifesting resistance against the act of rape in any degree from the offended party,
or where the offended party is so situated as to render her/him incapable of given valid
consent, may be accepted as evidence in the prosecution.
On this point, it has been asserted that the revision of the evidentiary rules to make
it more sympathetic to women particularly with regards to the issue of consent would
make it easier for rape victims to go to court. Ms. Santos pointed out the difficulties faced
by the victim in proving rape, previously quoted in Section VII, Part C. This involves the
standard of proof beyond reasonable doubt, disregard for the traumatic effects of rape on
the victim, and wrongful presumptions and discriminatory understandings about consent.
She adds: The issue surrounding consent in the crime of rape must also go to the ques-
tion on whether the victim has the capability to consent. Our present law implicitly sets
the rightful age of consent to sex at 12 years old while official data show that majority of
victims of rape are under the ages of 13-15 years old.66
Further, one of the policy recommendations of the PCW is a definition of consent,

which definitely makes it easier to prove rape.67 Consent is the voluntary agreement
to engage the sexual activity in question, which must be proven such that: a. the victim
understands what is being proposed; b. the victim is aware of the societal standards of
what is proposed; c. agreements or disagreements will be respected equally; d. both par-
ties enter into the relationship or proposal voluntarily; and e. both parties are mentally
competent.
65 G.R. No. 167693, 19 September 2006.

66 PCW, supra, fn. 4, citations omitted.
67 Ibid.; citations omitted. For those interested in my opinions regarding this definition, please wait for my article
on consent in rape mentioned in fns. 1 and 25.
38 The IBP Journal

2. Standards of Credibility
The evidentiary requirements as to believing the testimony of the offended party may
be liberalized in her favor. This is jurisprudentially settled. As early as 1901, the Supreme
Court held: When a woman testified that she has been raped she says, in effect, that all
that is necessary to constitute the commission of this crime has been committed.68 This,
with few exceptions, has been the doctrine since.
Evidentiary requirements (iii.) and (iv.), render it less difficult to prove rape. Being
favorable to the female victim, it may once again result in her more readily filing a com-
plaint for rape.
3. Introduction of Accuseds Male History
Another evidentiary tool is the introduction of the male sexual history of the accused
during trial. Of course, this may go against the protection of the accused and the rules on
evidence, particularly when the introduction of such evidence has more of an exacerba-
tory, rather than of probative, value. In short, this must be consistent with the rules on
evidence.69
C. Procedural Innovations
The Convention on the Elimination of all Forms of Discrimination against Women

(CEDAW) Committee has recommended that concrete measures be taken to ensure that
all legal procedures in cases involving crimes of rape and other sexual offenses are not af-
fected by prejudices or stereotypical gender notions. It specifically recommends reviewing
the definition of rape in the legislation so as to place the lack of consent at its centre.70
These are some procedural recommendations.
1. Special Rules on the Trial of Rape Cases
The Supreme Court could introduce measures that would render the trial process
more sympathetic towards the rape victim and less intimidating to them. For example, the
Philippine Commission on Women has called on the Supreme Court to consider issuing
a Rule on Trial of Rape Cases which may include: (i.) application of the rape shield
rule as provided for in Section 6 of RA 8505; (ii.) guiding principles on the appreciation
of evidence in rape cases, (iii.) child and gender-sensitive decorum for lawyers, prosecu-
68 United States vs. Ramos, G.R. No. L-126, 26 December 1901. This doctrine has been reiterated in cases too nu-
merous to mention. The doctrine has been qualified, however, by introducing the further requirement that her
uncorroborated testimony be credible. We have said that the lone testimony of an offended party in a crime of
rape, if credible, is sufficient to sustain the conviction of the accused. This is so because owing to the nature of
the offense, in many cases, the only evidence that can be given regarding the matter is the testimony of the of-
fended party (People v. Selfaison, 110 Phil. 839; People v. Macaya and Gagawaran, 85 Phil. 540; People v. Ganal, 85 Phil.
743; People v. Ariarte, 60 Phil. 326; People v. Dazo, 58 Phil. 420); and People vs. Gan, G.R. No. L-33446, 18 August
1972.
69 Rule 130, Sec. 334 states: Sec. 34. Similar acts as evidence--Evidence that one did or did not do a certain thing
at one time is not admissible to prove that he did or did not do a similar thing at another time; but it may be
received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the
like.

tors, judges and other court personnel during trial of rape cases.71
2. Use of Females
This is already part of the law: according toRA 8505 known as the Rape Victim
Assistance and Protection Act of 1998,the police officer, the medico-legal, and the pros-
ecutor should all be female. The judge may or may not be female, but the case will be as-
signed to Family Courts where the judges should be trained on gender-based violence.72
D. Institutional Remedies
1. Creation of Committees and Task Forces
Research may be undertaken by the appropriate departments of government, par-

ticularly the Department of Justice and the Department of Social Welfare and Develop-
ment concerning sexual violence, and rape in particular. In that regard, task forces or
committees may also be set up to investigate and arrive at meaningful proposals to address
and deal with sexual violence so as to advise the government to take concrete and effec-
tive action to respond to and address the crime.73 This might convince the offended party
of the governments sincerity as to the prosecution of rape cases, and render her more
cooperative in prosecuting her attacker.
2. Police Training Programs
A police training program may be introduced so as to educate policemen to be more

sensitive in interviewing rape victims and in gathering evidence.74 Moreover, these police-
men may be subjected to continuous training and reassessment. This sensitivity of the in-
terviewing policeman may be precisely that spur to the woman to seek redress, by means
of prosecution, to the crime perpetrated on her.
3. Victim Support Programs
The government could initiate victim support programs. Specialized victims advisors
could be provided her. It aids the victim cope with the trauma she has just experienced so
as to resume her previous life. Moreover, she can be informed as to the process of prosecu-
tion so that she can arrive at an informed decision whether to proceed with it or not. She
may even be encouraged to prosecute her wrong-doer since finding redress to the wrong
71 Ibid.
73 In New Zealand, some similar action has been taken. The Taskforce for Action on Sexual Violence, Ministry of
Justice, Wellington, 22 October 2009, viewed on 19 March 2010, http://www.justice.govt.nz/policy-and-con-
sultation/taskforce-for-action-onsexual-violence. Ministry of Womens Affairs, Wellington, 2 December 2009,
viewed on 19 March 2010, http://www.mwa.govt.nz/our-work/svrproject/index.html.
New Zealand Law Commission, Disclosure to Court of Defendants Previous Convictions, Similar Offending, and Bad Char-
acter, NZLC Report 103, New Zealand Law Commission, Wellington, 2008, p. v.
74 Such a model can apply to both suspect and witness interviewing. The New Zealand Police propose a tiered
accreditation structure similar to that operated in a number of English police constabularies.
40 The IBP Journal

done her is one vital step in the healing process.75
4. Specialized Courts
Specialized courts dealing with sexual violence could also be set up. Once again, the
offended party may feel more confident that she will obtain justice with a court and a
judge more knowledgeable and sensitive to her plight.76
The Philippine legal system has recognized the wisdom of such a course of action
with respect to other areas in law. It has set up environmental courts, family courts, com-
mercial courts and the like. There are also criminal courts which specialize in drug cases.
In that regard, it has been proposed that the trial of rape cases should be conducted by
family courts.77
5. Sensitivity Training
It has been recommended in the Philippines that the police, medico-legal, prosecu-
tors, judges, justices should really undergo intensive trainings on gender-based violence.78
The importance of trained specialist prosecutors has been recognized in Australia

and the United Kingdom.79 Their trained competence and expertise on crimes of sexual
violence will result in confidence in the judicial system to render justice.
6. Rape Crisis Centers
Finally, Rape Crisis Centers or Sexual Assault Referral Centers (SARC) may be in-
stituted.
In some countries the womens liberation movement of the 1970s created the firstrape
crisis centers. One of the first two rape crisis centers, the D.C. Rape Crisis Center, opened
in 1972. It was created to promote sensitivity and understanding of rape and its effects
on the victim.80
75 Such advisers, referred to as Independent Sexual Violence Advisors (ISVA) exist in the United Kingdom. (A
Robinson, Research Report 20 Summary - Independent Sexual Violence Advisors: A Process Evaluation, Home Office, Lon-
don, 2009, p. i.) ISVAs therefore give practical support and information, liaise with other agencies, and give the
victim information about criminal justice processes and any police investigation. They also provide continuity
for complainants throughout the process.
76
Such courts already exist in New Zealand and Australia. Although known as family violence courts, New Zea-
lant specialist courts actually involve the allocation of time within an existing court structure and use a modi-
fied form of procedure. See M Morgan, L Coombes & S McGray, An Evaluation of the Waitakere Family Violence
Court Protocols, Massey University and WAVES, Palmerston North, 2007. In Australia, there exist Magistrates
Court of Victoria, Sexual Offences List, Magistrates Court of Victoria, Melbourne, 27 July 2009, viewed on 19
March 2010, http://www.magistratescourt.vic.gov.au/wps/wcm/connect/justlib/magistrates +court/home/
specialist+jurisdictions/sexual+assault/magistrates+-+sexualoffences+list.
77 Supra, fn. 72.
79 For example, the state of Victoria in Australia has a specialist sexual offences unit and in England and Wales
specialist prosecutors are used when possible.
80 Rape, supra, fn. 39.

SARCs, such as those which exist in the United Kingdom, may be institutionalized.81
They offer medical care, psychological counseling, legal advice and other support, all in
one place, from professionally trained staff. Again apart from helping the victim cope
with her trauma, it assists her in the right way to deal with it and provides her confidence
in the government to deal with it. Hence, the chances of the resort to prosecution being
undertaken are improved.
The above remedies therefore increase the chances of an offended party in a crime
of rape to seek prosecution of the perpetrator and judicial redress of the wrong done her.
They provide a better solution to the problem of unprosecuted crimes due to the require-
ment of the Complaint having to be filed by the offended party than the reclassification
of the crime or the deletion of the requirement in Art. 344. It need not violate the logic of
the Revised Penal Code to include a crime of lewd design among crimes with the intent
to do physical harm. Moreover, it avoids the occurrence of unsuccessful prosecutions due
to the refusal of the offended party to testify in her own case.
IV. CONCLUSION
There has been said to be three advantages to the reclassification of the crime of
rape from a crime against chastity to a crime against persons which overcomes the criti-
cism that the reclassification violates the conceptual clarity and logic of the Revised Penal
Code. They are to make known to the public that rape is (i.) a crime against a womans
very being or person and not a crime against a womans virtue or chastity; (ii.) a violent act
rooted in male dominance and female subordination; and (iii.) a public and not a private
crime.
The first two could have been achieved by other means short of reclassification. A
provision in Art. 335 characterizing rape from the female perspective as a violent act
rooted in male dominance and female subordination against her personhood would have
sufficed. It would have communicated this observation directly and more effectively rath-
er than by resort to reclassification. But to make the crime akin to a crime of homicide
or physical injuries is simply too radical and retrograde a step. It confuses the intent to do
physical harm with lewd design or lust.
As to the third supposed benefit, a simple deletion of rape in Art. 344, as one of the
crimes requiring the signature of the offended party or the guardian in the Complaint
as a requisite for its validity, would have been sufficient. That would render rape a public
crime and not a private crime. No reclassification is necessitated.
Moreover, if the feminists are motivated by lessening unprosecuted and unpunished

crimes of rape which are said to be among the benefits of transforming rape into a pub-
lic crime, there are other remedies which would achieve that objective with less harmful
consequences to law.
81 Sexual Assault Referral Centres (SARC), Home Office, viewed on 19 March 2010, http://www.homeoffice.
gov.uk/crime-victims/reducing-crime/sexual-offences/sexual-assault-referral-centres/. New Plymouth in New
Zealand provides a similar service for children, the Kimiora sexual assault centre: see L Beckett, Care in Col-
laboration: Preventing Secondary Victimisation through a Holistic Approach to Pre-Court Sexual Violence Interventions, Doctoral
thesis, Victoria University of Wellington, Wellington, 2007.
42 The IBP Journal

In short, too much is lost with the reclassification and any improvements of the Code
would have been better achieved by retaining it as a crime against chastity, with (i.) a
renaming of the term chastity in categorizing sexual crimes; (ii.) a more satisfactory
definition of rape from the female perspective and (iii.) the introduction of practical rem-
edies which would help do away with the public/private divide and overcome the feminist
objections to a complaint for rape having to be filed by the offended party by increasing
her chances to do so without diminishing the odds to win the case. The conviction rate
will even be improved.

Cristina A. Montes
Government Liability Arising from Cancellation
of Foreign Investment Contracts*
Cristina A. Montes**
Introduction
It is a common scenario: a government enters into a contract with a private foreign

firm for a long-term project involving an astronomical sum of money, and then, during
the execution of the project, the contract gets cancelled either through a judicial deci-
sion nullifying the contract or the unilateral declaration by the President cancelling the
contract. Examples are the Philippine cases of the Philippine International Air Terminals
Co., Inc. (PIATCO) and of the Baggerwerken Decloedt En Zoon NV (BDZ) Laguna
Lake dredging project. The reasons for such cancellations are numerous: environmental
threats, the nullity of the contract for failure to comply with certain procedural require-
ments in the bidding, corruption in the process of negotiating the contract, conflict with
the law or public order, or at least according to public opinion because a current
president does not want to have anything to do with the projects of his or her predeces-
sor. In any case, the questions are raised: does the foreign private contracting party have
a remedy? If yes, what are the legal bases of such remedies in substantive and procedural
law? Or is the government within its rights and prerogatives to cancel the contract and,
hence, not liable?
These questions seem to have easy responses from an analysis based on the internal
law of any country. Most legal systems provide remedies in law or in equity to maintain
the equilibrium between the rights and duties of the parties in cases of the nullity of
a contract or the unilateral withdrawal from the contract. However, contracts between
governments and foreign private parties raise additional issues. In addition to the usual
issues involved in contracts having foreign elements like parties from different jurisdic-
tions questions of jurisdiction, applicable law, and the execution of the foreign judg-
ment the foreign private contracting party, in the case of foreign investment contracts
with the government, would have to confront issues raised by the sovereignty of the other
contracting party.
For this reason, the resolution of the above-mentioned questions are related to the
private and social aspects of property, the balance between sovereign prerogatives and the
rights of private parties, and the clash between the interests of the investors home coun-
tries (which, in most cases, are developed states) and host countries (which, in most cases,
are developing states), the conflict between the free flow of investments in a globalized
* This is a revised and translated version of the authors thesis entitled La Responsabilidad del Gobierno en la
Cancelacin de Contratos de Inversiones Extranjeras which was submitted and defended in partial fulfilment
of the requirements for the Mster en Derecho de la Globalizacin e Integracin Social degree granted by the
Universidad de Navarra in Pamplona, Spain.
** Associate, Parlade Hildawa Parlade and Panga Law Offices
44 The IBP Journal

Government Liability Arising from Cancellation of Foreign Investment Contracts
world and the sovereignty of host countries over the resources within their territories.1
This paper, however, does not concern itself specifically with these debates, but with the
just equilibrium between rights and duties given a particular case of cancellation by the
government of a foreign investment contract.
This paper will first expound on the juridical treatment of nullity of contracts and
unilateral withdrawals from contracts in the Philippine legal system, as well as in repre-
sentative systems of both the Roman law and the common law traditions (Spanish law
and United States law respectively). Nullity of contracts will be discussed since a countrys
declaration of the nullity of a foreign investment contract is a common way by which the
said sovereign state withdraws unilaterally from the contract. The paper will then discuss
the complications introduced by the sovereignty of the state-party in contracts between
governments and private foreign investors, and the tools available to private foreign inves-
tors to alleviate the inequality between them and the sovereign state party. Finally, the
paper will discuss questions specific to the cancellation of foreign investment contracts by
the government.
Nullity of Contracts
In Philippine Law
The Philippine Civil Code distinguishes between rescissible contracts, voidable con-
tracts, unenforceable contracts, and void contracts2.
According to Article 1409 of the Philippine Civil Code, void contracts are:
(1) Those whose cause, object or purpose is contrary to law, morals,

good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transac-
tion;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal
object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
Unlike rescissible, voidable, and unenforceable contracts, the contracts enumerated

in Article 1409 cannot be ratified. They have no legal effects. However, Philippine law
establishes a series of mechanisms to avoid unjust enrichment and to protect the innocent
party. For example, according to Article 1411 of the Civil Code, if the nullity of the con-
1 For a more detailed discussion of the history of foreign investment law and its political and economic contexts,
see Sornorajah, Muthucumaraswamy, The International Law on Foreign Investment, Cambridge University Press,
Cambridge, 2004; Newcombe, Andrew and Paradell, Lluis, Law and Practice of Investment Treaties, Kluwer Law
International, Netherlands, 2009.
2 For a general discussion, see Tolentino, Arturo, Civil Code of the Philippines Vol. IV: Obligations and Contracts, Central
Lawbook Publishing Co., Inc., Quezon City, 2002, pp. 569-643.

Cristina A. Montes
tract proceeds from an illegal object or cause, and the act committed constitutes a crimi-
nal offense, both parties being in pari delicto, they shall have no action against each other
and both parties shall be prosecuted. Furthermore, the effects or instruments of the crime
or the price of the contract shall be disposed according to the provisions of the Revised
Penal Code. If only one of the parties is guilty, the same rule applies but the innocent
party can recover what he has given without having to comply with his promise. If the act
does not constitute a crime, and both parties are guilty, no one can recover what he has
given nor demand fulfilment from the other3. If the act does not constitute a crime and
only one party is guilty, the guilty party cannot recover what he has given nor demand
fulfilment from the other party, but the innocent party may demand the return of what
he has given and need not comply with his promise4. If the contract is merely prohibited
but is not illegal per se and the prohibition of the law is designated for the protection of
the plaintiff, he may recover what he has paid or delivered if public policy will thereby be
enhanced5.
In Philippine jurisprudence, in cases of public contracts which are null and void for
failure to comply with a procedural requirement in the negotiation or bidding but which
had already been partially or almost completely complied with at the time the Supreme
Court decides the nullity of such contracts, the Supreme Court has allowed recovery
quantum meruit, that is, the reasonable value of the works or services rendered without tak-
ing into account the price agreed upon in the contract6.
In Spanish Law
Article 1300 of the Spanish Civil Code provides that contracts in which all the ele-
ments of Article 1261 concur consent of the parties, object certain, and cause may be
annulled even if there had not been lesion or harm to the contracting parties if any or all
of the elements of a valid contract are tainted with vices.
In reality, the chapter of the Spanish Civil Code (Chapter 6 of Title II, Article 1300-
1314) which deals with nullity of contracts touches both null and annullable contracts.
The exact words used in Article 1300, pueden ser anulados, refer to annullable contracts.
Diez-Picazo explains that the annullability of such contracts is a consequence of vices
or defects that concur in the formation of the contracts, and that it is the party whom
the law intends to protect who has the power to seek the annulment of or to impugn
the contracts7. Annullable contracts, according to Diez-Picazo, are those entered into by
incapacitated parties, with defects of the will of the parties, and contracts dealing with
conjugal properties and which lack the consent of the spouse of the contracting party.
3 Philippine Civil Code, Article 1412 (1).

4 Philippine Civil Code, Article 1412 (2).
5 Philippine Civil Code, Article 1416.
6 See, for example, Eslao v. Commission on Audit (G.R. No. 110634, October 6, 1995); EPG Construction Co. et al. V.
Vigilar (G.R. no. 131544, March 16, 2001); Department of Health v. CV Canchela and Associates (G.R. Nos. 151373074,
November 17, 2005).
7 Diez-Picazo, Luis, Fundamentos del Derecho Civil Patrimonial Volumen I, Editorial Civitas, SA, Madrid, 1996, pp. 486-
490.
46 The IBP Journal

On the other hand, Articles 1305-1306 refer to null and void contracts (nulos de pleno
derecho). Diez-Picazo explains that these contracts suffer from structural, radical, and
automatic inefficacy, and are considered to not have taken legal effect8. While annullable
contracts may be ratified, null contracts may not. Among the null contracts are the fol-
lowing:
1. Those in which the parties have trespassed the limits of private autonomy
protected by the law, such as contracts contrary to law, morals, or public
order;
2. The inexistence or absolute absence or illicitness of the object of the con-
tract;
3. The inexistence or illicitness of the cause of the contract (Article 1275 of the
Spanish Civil Code);
4. The lack of compliance with the required form when the form required by
the law is a requirement ad solemnitatem.
In both cases of annullability and nullity of contracts, Article 1303 of the Spanish
Civil Code requires the parties to reciprocally restore the things which are the objects of
the contracts, with their fruits, and the price with interests. However, the Spanish Civil
Code contains provisions similar to those of 1411-1412 of the Philippine Civil Code,
cited above.
In addition, Diez-Picazo and Gulln explain that the inefficacy of a contract due
to its annullability or nullity may give rise to an action for damages by the party in good
faith9.
In United States Law
In general, United States law distinguishes between null and void contracts and void-
able contracts. The former have no effects and are considered completely non-existent,
for example, for the illegality of the cause. The latter are annullable at the option of one
of the parties for example, contracts contrary to public order or which suffer defects
in the consent or capacity of one of the parties. Voidable contracts cannot be enforced
by the party who benefits from their illegality but by the party protected by the law. For
example, a homeowner has the right to enforce a contract for works against an unlicensed
contractor, but the unlicensed contractor does not have the right to demand payment
from the owner of the works.10
8 Cf. Diez-Picazo, op. cit., pp. 471-473, 496-506.

9 Diez-Picazo, Luis and Gulln, Antonio, Sistema de Derecho Civil Volumen II, Editorial Tecnos, SA, Madrid, 1995,
p. 123.
10 Ferriel, Jeffrey and Navin, Michael, Understanding contracts, Lexis-Nexis, United States, 2004, pp. 507, 509.
See also 17 AmJur 2d 342-343..

Cristina A. Montes
Schaefer compares and analyzes the concepts of void contracts, voidable contracts,
and unenforceable contracts in the Restatement of Contracts11. He notes that the Restatement of
Contracts defines void contracts as a promise or set of promises for breach of which the
law neither gives a remedy nor otherwise recognizes a duty of performances by the prom-
issory. He also notes that the Restatement enumerates five types of voidable contracts:
contracts by minors; contracts induced by fraud, mistake, or duress; and contracts which
involve a breach of a warranty, while according to his interpretation of the Restatement,
unenforceable contracts are those which do not comply with the Statute of Frauds or the
Statute of Limitations and those which arise from illegal agreements which are not totally
void nor voidable12. The second Restatement, as Schaefer notes, defines an unenforceable
contract as one for the breach of which neither the remedy of damages nor the remedy
of specific performance is available, but which is recognized in some other way as creat-
ing a duty of performance, though there has been no ratification. But Schaefer, observ-
ing the limitations of the definitions and the confusion in the use of the three terms in
practice, proposes that the three concepts be understood as different aspects of the same
concepts and supposes that the courts are concerned not only with the conditions that the
parties attach to the contract, but also with the conditions for which the law determines
the willingness of the State to enforce certain contracts. Schaefer understands voidable
contracts as contracts which are null and void to protect individuals who may waive such
protection, while void contracts are those which the state predictably and consistently will
not enforce.
In the majority of cases, the United States courts do not allow restoration of the ef-
fects of illegal contracts. However, the courts sometimes permit such restoration if the
contracts violation of the law was not intentional, or if both parties were not equally
guilty.13
Unilateral Withdrawal from a Contract
In Philippine and Spanish Laws
These two legal systems are discussed together because of the similarity between the
provisions of the civil codes of both countries, given the origin of the Philippine Civil
Code in the Spanish Civil Code14.
Spanish law, as a general rule, does not recognize the unilateral withdrawal from a
contract. This can be concluded from Articles 1091, 1256, and 1258 of the Spanish Civil
Code.
11 Schaefer, Jesse A., Beyond a Definition: Understanding the Nature of Void and Voidable Contracts, in
Campbell Law Review, vol. 33, Fall 2010, pp. 193-209.
12 The second Restatement also discusses contracts which are unenforceable for being contrary to public policy. See
Scott, Robert E. and Krauss, Jody S., Contract Law and Theory, LexisNexis, USA, 2007, pp. 23-24.
13 Ferriel y Navin op. cit., pp. 508-509.
14 For a discussion on the influence of Spanish law on Philippine law, see Gamboa, Melquiades, The Meeting
of Roman Law and Common Law in the Philippines, Philippine Law Journal, volume 49, number 3, 1974, pp.
304-314.
48 The IBP Journal

Article 1159 of the Philippine Civil Code, which states that obligations arising from
contracts have the force of law between the contracting parties and should be complied
with in good faith echoes Article 1091 of the Spanish Civil Code15, while Article 1308 of
the Philippine Civil Code, which establishes that [t]he contract must bind both contract-
ing parties; its validity or compliance cannot be left to the will of one of them, echoes
Article 1256 of the Spanish Civil Code16. Finally, Article 1315 of the Philippine Civil
Code provides that [c]ontracts are perfected by mere consent, and from that moment
the parties are bound not only to the fulfilment of what has been expressly stipulated but
also to all the consequences which, according to their nature, may be in keeping with
good faith, usage and law; this is similar to Article 1258 of the Spanish Civil Code17.
Thus, in both Philippine and Spanish laws, the legal recognition of unilateral with-
drawal from a contract is the exception rather than the general rule.
Among the exceptions recognized in both Spanish Law and Philippine law is the case
of reciprocal obligations when one of the obligors should not comply what is incumbent
upon him (Article 1191 of the Philippine Civil Code; Article 1124 of the Spanish Civil
Code). In Spanish law, other exceptions are in special contracts such as those of agency,
deposit, commodatum, and partnership. Commenting on these provisions in the Spanish
Civil Code, Valpuesta clarifies that in reality, these instances where Spanish law recog-
nizes unilateral withdrawal from a contract are not exceptions from Article 1256 of the
Spanish Civil Code on the reciprocity of contracts18. With regard to the case of reciprocal
obligations (which in a strict sense is not a case of unilateral withdrawal but of rescission,
although the differences between both are not relevant for the present paper), he explains
that the unilateral withdrawal cannot be exercised freely and arbitrarily, but only in the
occurrence of supervening disequilibrium between the parties; for this reason, it will be
the judge who will determine the existence of breach of obligation. In the case of special
contracts, Valpuesta explains that the bases which allow unilateral withdrawal from these
contracts are objective conditions which precisely preclude arbitrary withdrawal from
such contracts. While unilateral withdrawal from fiduciary contracts may seem an excep-
tion to Article 1256 of the Spanish Civil Code, such right has to be exercised in good
faith, and its exercise in bad faith implies the duty to indemnify the other party.
Valpuesta also explains that the unilateral withdrawal from a contract, when legally
recognized, implies the obligation to liquidate the extinguished relationship. Good faith
would demand advance notice to the other party.
15 Article 1091 of the Spanish Civil Code states:

Las obligaciones que nacen de los contratos tienen fuerza de ley entre las partes contratantes, y deben cumplirse al tenor de los
mismos.
16 Article 1256 of the Spanish Civil Code states:
La validez y el cumplimiento de los contratos no pueden dejarse al arbitrio de uno de los contratantes.
17 Article 1258 of the Spanish Civil Code provides:
Los contratos se perfeccionan por el mero consentimiento, y desde entonces obligan, no slo al cumplimiento de lo expresamente
pactado, sino tambin a todas las consecuencias que, segn su naturaleza, sean conformes a la buena fe, al uso y a la ley.
18 Valpuesta Gastaminza, Eduardo, La Prohibicin de la Arbitrariedad en el mbito Contractual Privado, Servicio de
Publicaciones de la Universidad de Navarra, S.A., Pamplona, 1989, pp. 179, 187-206.

Cristina A. Montes
In Philippine jurisprudence, specifically in the case of Jardine Davies v. Court of Appeals,19

the Supreme Court awarded moral damages for unilateral withdrawal from the contract.
With regard to the need for court action for the rescission of a contract pursuant to
Article 1191 of the Philippine Civil Code, discrepancies exist among the pronouncements
of the Philippine Supreme Court. In Ong v. Bogalbal20, the Supreme Court ruled that
recourse to the court is necessary to exercise the right to rescind contracts pursuant to
the cited article. But in Garcia v. Court of Appeals, the Supreme Court held that in applying
Article 1191, the recourse to the court is not necessary to resolve the contract, but only to
determine if the resolution of the contract was just.
Philippine law, like Spanish law, also recognizes unilateral withdrawal from some spe-
cial contracts, such as those of agency21. As in Spanish law, these instances are not excep-
tions to the rule on reciprocity of contracts. At least Article 19 of the Philippine Civil
Code, which prohibits abuse of right, protects the non-withdrawing party.
In United States Law
In United States law, the anticipatory repudiation of a contract, which takes place
when one of the parties, before the expiration of the period to comply with the contract,
announces his intention not to comply with the contract or does something which renders
fulfilment of the contract impossible, has the same consequences as breach of contract:
action for damages, the absolution of the obligation of the other party, and the right to
expect fulfilment and to demand the retraction of the threat to breach the contract.22
The possibility of the retraction of an anticipatory repudiation distinguishes it from

breach of contract. Another distinction is the period to enforce the contract. In the case
of breach, the period to demand specific performance is four years from the breach, while
in the case of an anticipatory repudiation, the aggrieved party can wait for fulfilment for
a reasonable time before enforcing the contract judicially. 23
Peculiarity of Foreign Investment Contracts:

Sovereignty of the State-Party
The examples of the above-mentioned internal laws of three juridical systems show
that 1) the laws uphold the reciprocity of contracts; 2) as a general rule, unilateral with-
drawal from a contract is not legally recognized and the right to do so is recognized only
as an exception to the general rule; 3) in United States law, the anticipatory repudiation
of a contract does not have any effect and does not absolve the debtor from complying
19 G.R. No. 128066, June 19, 2000.
20 G.R. No. 149140, September 12, 2006.
21 Article 1919 (1) and (2) of the Philippine Civil Code recognizes revocation and withdrawal of the agent as
means by which agency is extinguished.
22 For discussions regarding anticipatory repudiation, see 17 AmJur2d 883; see also discussion on anticipatory
breach in 17 AmJur2d 910-923.
23 Ferriel, Jeffrey and Navin, Michael, Understanding contracts, Lexis-Nexis, United States, 2004, p. 483.
50 The IBP Journal

with his prestation; and 4) even if void contracts do not confer rights on the parties, the
law establishes norms except in the cases of in pari delicto to restore the parties to their
situations before the contract and to avoid unjust enrichment. In other words, for ordi-
nary private contracts, the law has means to protect the rights of the parties in cases of
cancelation of the contract, and the non-cancelling party almost always has the right to
restoration or indemnity.
In foreign investment contracts between investors and host states, new factors exist
which introduce problems regarding the rights of the parties in the case of the cancella-
tions of such contracts. Aside from facing the same issues as other contracts with parties
of different states or other foreign elements questions of jurisdiction, applicable law, and
the recognition of foreign judgments by national courts the foreign private contracting
party would have to confront the sovereignty of the state party. Many of the problems in
the protection of the rights of the private contracting party in contracts of this nature are
rooted in their being state contracts.
Sovereignty is an attribute of a state or country which confers on it prerogatives and

rights in international and internal law. As a concept, it has four aspects: it is the source of
a countrys capacity to incur international obligations and to create international law; it
characterizes a country as a subject of international law; it permits the state to constitute
a government; and it constitutes the states authority over its territory and people24.
As a sovereign, a state has the prerogative of enacting and enforcing laws to control
the entry of investments into its territory. These laws include both the private and public
laws of the state25. In foreign investment contracts, while the private laws protect the in-
vestor as they protect other ordinary parties in private countries, the public laws establish
certain prerogatives for the state party and some norms submit the contract to the states
concern for the common good. Given that the government concludes foreign investment
contracts with a social end, these contracts must be subject to certain norms of the public
order26. For example, the law may require processes which must be complied with; if not,
the contract shall be void for being contrary to law irrespective of whether the non-
compliance were the responsibility of the investor or of the responsible government of-
ficer. In this situation, the host state may withdraw from the contract either by a judicial
declaration or an executive act for this reason, and the withdrawal will be legitimate as
a sovereign act of the state.
The sovereignty of a state implies its right to choose or change its own economic
policy and political, social, economic, and social systems27, and the right to seek the com-
mon good even if it would entail the cancellation, breach, amendment, or any manner of
24 Alvik, Ivar, Contracting with Sovereignty, Hartland Publishing, Oxford, 2011, p. 240.
25 This classification distinguishes between laws that govern the organization of the government and its relation
with private parties (public law, which includes such branches as political law, international law, and criminal
law) and laws which govern relations between private parties (for example, civil and commercial laws).
26 Zambrana Tvar, Nicolas, La Determinacin del Derecho Aplicable al Fondo en el Arbitraje de Inversiones, Editorial
Aranzadi, SA, Pamplona, 2010, p. 248.
27 Sornarajah, op. cit., p. 76; Alvik, op. cit., p. 274.

Cristina A. Montes
expropriation of a foreign investment contract. The sovereign state can also exercise its
competencies over the goods of foreigners situated within its territory28. The only limits to
the activity of the state are those which the state imposes on itself, such as the laws and the
constitution29. But while the laws and the constitution of the state may impose limits on
the exercise of its prerogatives (for example, the requirements of justice and good faith),
the same sovereign state may change its laws and constitution30. Furthermore, it is most
likely that the drafting of the laws and the Constitution would be favourable to the state.
For example, the provision of law that a contract contrary to public order is broad enough
and can justify the annulment of any contract. It is also most likely that the national
courts interpret the laws in a manner favourable to the sovereign state. It is for this reason,
Iruretagoiena Agirrezabalaga states, that many investors do not have confidence in the
protection offered by the local laws and courts of host states, since such states, in disputes
are perceived by the investor to act as legislator, judge, and party at the same time31.
(However, there are imperative norms of international law which limit the sovereign
prerogatives of the host states. In fact, as it will be discussed, the internationalization of
contracts between host countries and private foreign investors is one way of addressing
the inequality between them.)
The superior position of the sovereign state in a contractual relationship is empha-

sized by the explicit recognition of administrative contracts in some jurisdictions. In these
contracts, which are state contracts concluded to benefit public interest, the state has the
power to modify or even resolve these contracts, since the public interest is mutable32.
Spain is an example of a jurisdiction which recognizes administrative contracts. Gar-

cia Rodriguez explains that the mixed character of foreign investment contracts in Span-
ish law makes the identification of norms applicable to the relationship of the parties
difficult. According to her, the Ley de Contratos de Administraciones Publicas applies to the
preparation, negotiation, and awarding of such contracts, while the execution up to the
extinction of such contracts are governed by laws governing ordinary private contracts33.
Applying the intersection between private law and public law in foreign investment
contracts, even if the internal laws surveyed earlier allows some form of compensation to
the other party in most cases of unilateral withdrawal or annulment of the contract, if
one of the parties is a sovereign state, the issue is raised of whether such compensation is
due if the declaration of nullity or the unilateral withdrawal constitutes an exercise of the
28 Iruretagoiena Agirrezabalaga, Iigo, El Arbitraje en los Litigios de Expropiacin de Inversiones Extranjeras, Editorial
Bosch SA, Barcelona, 2010, p. 73.
29 Zambrana Tvar, op. cit., p. 49.
30 Op. cit., p. 51.
31 Iruretagoiena Agirrezabalaga, op. cit., p. 49. Also see Fernadez Masa, Enrique, Tribunales Nacionales, Arbitraje
Internacional, y Proteccin de Inversiones Extranjeras, Marcial Pons Ediciones Jurdicas y Sociales, SA, Madrid, 2008,
pp. 12-13.
33 Garcia Rodriguez, Isabel, La Proteccion de las Inversiones Exteriores, Tirant lo Blanch Valencia, 2004, ppp. 66-67.
52 The IBP Journal

states prerogative to adopt regulatory measures.
In the procedural aspect, to enforce its rights against the state, the investor would have
to confront sovereign immunity. It is true that the investor may overcome this obstacle
since many jurisdictions have developed the doctrine that sovereign immunity against
suit does not extend to acts in exercise of jure gestionis. A number of jurisdictions have also
developed the doctrine that the state waives its immunity from suit when it enters into a
commercial contract34. However, aside from the difficulty of distinguishing between the
states exercise of jure imperii and its exercise of jure gestionis35, the waiver of immunity from
suit extends only to up to the pronouncement of the judgement and does not extend to
the execution of the judgment36. With regard to international arbitration, it is not settled
whether the consent of a state to submit to arbitration implies the waiver of its immunity
against execution; in fact, Article 55 of the Convention of Washington creating the Inter-
national Center for the Settlement of Investment Disputes (ICSID) expressly states that a
states submission to arbitration according to the Convention does not imply the waiver of
its immunity from execution37. While Alvik opines that the state may, through an arbitra-
tion clause or other agreement, waive its immunity against execution, this waiver does not
extend to the states properties which, for their public purposes, are exempt from execu-
tion38. Furthermore, the 1958 New York Convention on the Recognition and Enforce-
ment of Foreign Arbitral Awards and the 1965 Convention of Washington do not totally
address the problems raised by the sovereignty of the host countries in the enforcement
of foreign arbitral awards because according to these conventions, the execution of such
awards shall be carried out according to the internal laws of the country where the award
is to be executed, which most likely shall be the host country of the foreign investment.
The host country can avoid execution by invoking public order or policy.
Means by which Foreign Investors Address the

Complications Created by the Sovereignty of the State Party
Internationalization
One response to the problems introduced by the sovereignty of the state party to a
foreign investment contract is the internationalization of such contracts. This practice be-
gan in the beginning of the 20th century. In that period, the prevailing doctrine was that a
private firm who invests in a foreign country submits itself to the policies, ideologies, and
interests of the host country.
The response of traditional international law to protect the investments was diplo-
34 See, for example, China National Machinery and Equipment Corp. (Group) v. Santamaria, G.R. No. 185572, February 7,
2012.
35 For a discussion of this issue, see Eslava Rodrguez, Manuela, Las Empresas Publicas en el Comercio Internacional,
Universidad de Extremadura Servicio de Publicaciones, Cceres, 1992, pp. 166-168.
36 Professional Video Inc. v. TESDA, G.R. No. 155504, June 26, 2009.
37 Iruretagoiena Agirrezabalaga, op. cit., p. 207.
38 Alvik, op. cit., pp. 115-125.

Cristina A. Montes
matic protection, which elevated foreign investment disputes to the level of international
law. With diplomatic protection, the home country of the investor exercises its right to sue
and take measures against the host country. Thus, the dispute will be a dispute between
the two sovereign states and will be governed by international law. In the remedy of invok-
ing diplomatic protection, the home country of the investor exercises its own right, and
not the right of the investor.
Due to the huge financial interests involved and the political uncertainties of this
process, this solution did not adequately protect the investors. The exercise of diplomatic
protection would depend on the initiative of the investors home country, which will act
according to its own political and economic interests and not according to the investors
own interests. To give them direct recourse against the host countries under international
law, the private foreign investors, in their contracts with the host countries, included arbi-
tration clauses, the explicit choice of international law as the applicable law, and stabiliza-
tion clauses (which will be discussed)39.
In this sense, internationalization signifies the process by which international law is

made the law applicable to a contract by the will of the parties, through an explicit choice
of international law as the applicable law and the agreement to submit any dispute to
international arbitration40. The term internationalization can also refer to the charac-
terization of these contracts by arbitral tribunals as internationalized contracts, to which
the internal law of any state cannot be applied41. In general, whether it be by the choice
of the parties or by characterization, internationalization is the progressive separation
between a foreign investment contract or juridical relation and the law of the state which
would normally be applicable, and the substitution of the internal law by another series
of orders and systems of norms, such as international law or the general principles of law,
which do not have their origin in a concrete state42. This addresses the investors concerns
regarding the possibility of the cancellation of a foreign investment contract through a
judicial declaration of the contracts nullity or the exercise by government powers which,
in either case, would be legitimate according to the internal law of the host country.
For example, in the case of Texaco v. Libya, the concession contract between Libya and
the investor was cancelled by an act that was valid according to Libyan internal law. In
spite of such validity, the arbiter declared that the cancellation was not valid according to
international law, specifically under the pacta sunt servanda principle. This was possible due
to the internationalization of the contract. To justify this decision, the arbiter found that
the contract was governed by international law due to: 1) the express submission of the
contract to the general principles of law, and 2) the submission to arbitration, instead of
to litigation before the local courts of the host country, of disputes arising from the con-
tract. In addition, the arbiter considered, as a signs of the application of international law,
the need to protect the investor against unilateral and abrupt modifications of the laws of
39 Alvik, op. cit., p. 30.
42 Zambrana Tvar, op. cit., pp. 85-86.
54 The IBP Journal

the state contractor, and the circumstances that the purpose of the contract was to attract
investors and that the interests of the state required that the investor have confidence in
the states promises43.
However, even in these cases of internationalization the internal law of the host
country maintains its relevance, for example, to establish if there had been a denial of
justice when the complainant accuses the state of not complying with the obligation to
provide fair and equitable treatment; if there had been discriminatory treatment; or if the
requirements established by the host states national law for a lawful expropriation had
been complied with44. The host countrys internal law can also be relevant to determine
the existence of an investment in its territory, the validity of the investment contract, the
conditions and guarantees which the host countrys internal law grants to investors, the
extent of the government act which constitutes a breach of a bilateral investment treaty
(BIT), or the host countrys capacity to consent to an arbitration clause45. Furthermore,
renvoi by international law to the host states internal law is possible. It is also possible that
the parties to the investment contract or BIT agree among themselves that the internal
law of the host country would be complementary to international law as the applicable
law.
It may be asked how internationalization puts the investor at an equal footing with
the host country, given that a private party has no legal personality in international law46;
consequently, international law would not give a remedy for breach or cancellation of
a contract, in itself, between a state and a private party. In addition, international law
respects a states decisions as long as its effects remain reasonably within its borders and
do not violate certain ius cogens norms and principles47. For these reasons, the internation-
alization of a contract would not be a totally effective solution.
On the other hand, while the personality and rights that a state enjoys under interna-
tional law are consequences of its sovereignty, the same sovereignty can bind a state to its
promises. The capacity to make a binding promise is a manifestation of sovereignty, but
once exercised also constitutes a limit to sovereignty48.
Certainly, doubts exist on whether a contract between a state and a private party,
in itself, constitutes a source of obligation in international law. Iruretagoiena Agirreza-
balaga opines that the investment contracts between a state and a private party can only
be governed by a states internal law, since a private party cannot be considered a subject
of international law and, furthermore, only an internal law contains norms sufficiently
43 Texaco v. Libya (ad hoc arbitration), January 19, 1977; as analyzed by Alvik, op. cit., p. 209.
45 Alvik, op. cit., pp. 105-106; Newcombe and Paradell, op. cit., pp. 92-95.
46 Alvik, op. cit., p. 47. Also see Espada Ramos, op. cit., pp. 51-59 for a discussion of the defects, in general, of the
internationalization theory.
48 Alvik, op. cit., p. 241; Paulsson, Jan, El Poder de los Estados para Hacer Promesas Significativas a los
Extranjeros, Revista de Economa y Derecho, vol. 6, no. 21, 2009, p. 10.

Cristina A. Montes
complete and developed to regulate these contracts49. In the last half of the twentieth
century, the prevailing point of view was that a breach or cancelation of a contract will be
a source of obligation in international law only if it violates a norm or obligation of inter-
national law (for example, a treaty) distinct from the contract. The norms of international
law which an investor may invoke against a host country in a case of a cancellation of a
foreign investment contract will be further explored in a later section.
The existence of a BIT with an umbrella clause between the host country and the
investors home country is a tool for the internationalization of the contract. An umbrella
clause is a clause included in a BIT by which both parties promise to comply with any
obligation contracted with investors of the other country. According to some authors and
arbitral awards, these umbrella clauses transform the breach of an obligation, including
contractual obligations that a state has assumed with respect to a foreign investor into a
breach of treaty.
Confronted with this position, other authors and arbitral awards deny that an umbrel-
la clause automatically transforms the breach of contractual obligations into the breach
of a treaty; there are also authors who limit the range of obligations covered by umbrella
clauses50. For example, in the award in SGS v. Philippines, the arbitral tribunal declared that
the umbrella clause included in the BIT between Switzerland and the Philippines did not
mean that the law that applied to the contract was international law. The tribunal opined
that while the objective of the said clause was to assure the investor of compliance with
or execution of the host countrys commitments with respect to specific obligations once
these obligations have been established, the umbrella clause does not deal with the extent
or content of the obligations, and questions like the amount of the indemnification are
not to be determined by international law. According to this award, the specific formula-
tion of the umbrella clause, its context in the contract and its extent must be taken into
consideration.
From the position taken by the cited award, the usefulness of umbrella clauses may
be questioned. On the other hand, while umbrella clauses are incorporated in BITs to
augment the protection of foreign investments, a too broad interpretation of such clauses
could create problems in the relation between the state-parties to the BITs if the investors
invoke the umbrella clauses in the face of every minor disagreement about the fulfilment
of foreign investment contracts. To resolve this dilemma, Iruretagoiena Agirrezabalaga
proposes recalling the origin of umbrella clauses as reactions against expropriatory con-
duct of governments, and suggests that umbrella clauses only apply to a governments
contractual breaches in the exercise of its sovereign powers in other words, when the
government acts guided by political motives and not as a mere private subject51.
49 Iruretagoiena Agirrezabalaga, op. cit., p. 388. Also see Espada Ramos, op. cit., pp. 47-50..
50 Iruretagoiena Agirrezabalaga, op. cit., pp. 414-428; Zambrana Tvar, op. cit., pp. 457-468.
51 Iruretagoiena Agirrezabalaga, op. cit., pp. 426-427.
56 The IBP Journal

Arbitral practice supports this position52. However, some authors point out that most
of the BITs include obligations of host states that do not refer to contracts with investors;
this being the case, umbrella clauses will be redundant if they would be interpreted to
apply only to states exercises of their sovereign powers. Given that there is no uniform
formulation of umbrella clauses, these arguments underscore the need to interpret each
umbrella clause individually, taking into account the text, the intention of the parties, and
the principles on the interpretation of treaties in the Vienna Convention on the Law of
Treaties.
Stabilization or Renegotiation Clauses
A host country, as a sovereign power, can modify its laws with the sole objective of
prejudicing the investor, and this legislative modification may be constitutional and, thus,
valid in the internal juridical order of the host country. Furthermore, given the long pe-
riod of most foreign investment contracts, it is possible that the host countrys laws and/
or policies, which the investor took into consideration in its decision to invest, change.
One tool to protect investors from this possibility is the stabilization clause: an agreement
between a state and a foreign person or entity by which the former promises not to annul,
resolve, or modify the contract with the said person or entity; or a promise by the state
that any change in its internal laws would not affect the investor53. With the existence of
a stabilization clause, the annulment of the contract may be a breach of the contract54.
Iruretagoiena Agirrezabalaga opines that stabilization clauses and umbrella clauses

are like two sides of the same coin and are complementary55. He considers both clauses to
share the same purpose: protect foreign investors from the possibility that the state, by ex-
ercising its prerogatives as a sovereign, will attempt to evade the obligations it incurred as
a contracting party. Citing and analyzing the CMS v. Argentina56 case, he concludes that the
violation of a stabilization clause which refers to the states exercise of their sovereign
prerogatives in the absence of an umbrella clause would not grant the protection fore-
seen in international investment treaties if, at the same time that the contract is breached,
no other treaty norm is also breached. In relation with this, Zambrana Tvar opines that
an umbrella clause is in reality a stabilization clause.
A stabilization clause can work as a tool for internationalization57. The inclusion of a

stabilization clause in a contract may be considered evidence of the host countrys intent
not to submit the contract to its own juridical order, but to an external one.
52 Yannaca-Small, Katia, What about this Umbrella Clause?, in Yannaca-Small, Katia, Arbitration under
International Investment Agreements, Oxford University Press, Oxford, 2010, pp. 495-497.
54 Alvik, op. cit., p. 253
55 Iruretagoiena Agirrezabalaga, op. cit., p. 426, 428.
56 ICSID Case No. ARB/01/08, May 12, 2005.
57 Sornarajah, op. cit., p. 408.

Cristina A. Montes
Garcia Rodriguez identifies two types of stabilization clauses: 1) that which freezes
the host countrys law at the date in which the BIT is concluded and which is incorpo-
rated in the foreign investment contract; and 2) that which includes a promise by the host
country that legislation subsequent to the celebration of the contract would not apply to
the relations between the parties which are derived from the investment contract, or that
in case of a contradiction between a new law and an old law, the old law will prevail. For
his part, Zambrana Tvar classifies stabilization clauses into three: 1) stabilization clauses
strictu sensu; 2) untouchability clauses; and 3) economic stabilization clauses. Stabiliza-
tion clauses strictu sensu assure that the applicable law to the state-investor contract will
not be modified during the life of the said contract, or that the contract would prevail
in case of conflict with a new law. Untouchability clauses establish that the content
of the state contract will not be modified nor resolved except through a mutual agree-
ment of the parties. The economic stabilization clauses require the host country not to
approve legislation nor take measures that will increase the costs of the project or, in the
contrary case, initiate consultations to determine the how the investor will be prejudiced
and to repair losses suffered. Stabilization clauses strictu sensu prohibit nationalization or
expropriation, internationalize the contract, and require the payment of indemnity for
the breach of the promise not to alter the terms of the contract or not to alter the legal re-
gime governing the investment. The untouchability clauses and economic stabilization
clauses also require the payment of indemnity as a consequence of modifications of the
contract and/or legal regime governing the contract, with differences in the computation
of the indemnity.
The efficacy of stabilization clauses may be placed in doubt. Garcia Rodriguez notes
that if a host country breaches a stabilization clause, the investor has no possibility of pro-
tection because the clause itself is included in the investment contract which, most likely,
is to be submitted to the law of the host country in case of conflict58. One possible solu-
tion is the inclusion of a stabilization clause in a BIT; nevertheless, the stabilization clause,
in any case, will be void if it would impede states from developing or supporting principles
that international law recognizes. There are doubts on whether a state can bind itself, by
contract with a private party, to limit its own legislative powers59. In any case, Alvik, in his
analysis of arbitrary awards, concludes that according to jurisprudence, in the contracts,
in the absence of any clear and distinct commitment to the contrary, the state maintains
its right to change its laws and policies60. Furthermore, a stabilization clause, more than
prohibiting such modifications, merely requires the payment of indemnity whenever such
modifications are made.
On the other hand, Zambrana Tvar affirms the efficacy of stabilization clauses
based on, among others, the doctrines of pacta sunt servanda, the principle of juridical sta-
bility, the sanctity of contracts, the principle that the law cannot alter contracts between
private parties, and the fact that states continue to include such stabilization clauses in
58 Garcia Rodriguez, op. cit., pp. 193-194.

59 Sornarajah, op. cit., pp. 407-410.
60 Alvik, op. cit., pp. 274-279.
58 The IBP Journal

their contracts with foreign investors or in their own internal laws61. He adds that al-
though a stabilization clause may not, in practice, achieve its literal objective, it has a dis-
suasive effect and is taken into consideration as a manifestation of the will of the parties
in the interpretation of the contract and in the calculation of indemnity.
Nevertheless, the same author suggests that a more realistic alternative to stabilization
clauses are renegotiation clauses, which establish the circumstances in which the parties
may demand a renegotiation of the terms of the contract. By a renegotiation clause, the
host country promises to renegotiate in good faith the terms of the contract in the case
of a modification of the circumstances, including the laws, in order to maintain the eco-
nomic equilibrium of the original contract62.
Al Qurashi identifies the advantages of renegotiation clauses. According to this au-

thor, these clauses address the states concerns about maintaining their sovereign pre-
rogatives, while adding flexibility to adjust the agreement of the parties to changes in
circumstances63. Investors themselves, too, can invoke renegotiation clauses in their favor,
for example, during an economic crisis. At the same time, renegotiation clauses assure the
predictability and stability that investors seek. For their capacity to combine flexibility and
stability in the relations between the parties, renegotiation clauses help harmonize differ-
ent negotiation styles and business behaviours among cultures (for example, the Asian
mentality views a business transaction as a long-term relationship in which conflicts must
be avoided as much as possible, while the Western style sees a business transaction as
something concrete with the terms and conditions fixed by the contract.
Some additional questions which renegotiation clauses raise are the identification of
events which would require renegotiation, the extent of the changes in the contract, and
the extent of the duty to renegotiate and the effects of the failure of renegotiation64. Al
Qurashi explains that the duty to renegotiate does not imply a duty to reach an agree-
ment, and that the duty to renegotiate is complied with even if there had not been any
agreement if the parties renegotiate in good faith, and if the disagreement of the parties
is based on ordinary commercial judgments. In the case of the failure of renegotiation,
the original terms and conditions of the contract would persist.
Arbitration Clauses
In addition to being tools of internationalization (because in many cases, tribunals

consider the presence of a clause providing for arbitration before the ICSID as a sign that
the parties have chosen international law to govern their contract),65 arbitration clauses
61 Zambrana Tvar, op. cit., pp. 508-516. For his refutation of the arguments against the efficacy of stabilization
clauses, see, specifically, op. cit., pp. 509-511.
62 Bernardini, Pietro, Investment Protection under Bilateral Treaties and Investment Contracts, The World
Journal of Investment, vol. 2, no. 2, June 2001, p. 242.
63 Al Qurashi, Zeyad A., Renegotiation of International Petroleum Agreements, Journal of International Arbitration,
vol. 22, no. 4, 2005
64 Al Qurashi, op. cit., pp. 288-292.
65 For example, in Texaco v. Libya, already discussed.

Cristina A. Montes
address the problem of the immunity of the host country. Through its consent to an arbi-
tration clause, the host country consents to submit itself to arbitration and thus renounces
its immunity. Arbitration clauses also address the investors reluctance to submit disputes
to national courts of host countries, and thus provide a forum distinct from the national
courts of the host country or the home country of the investors.
The host countrys consent to submit to arbitration need not be explicit in a contract
between it and the investor; it may be in a BIT or as a unilateral offer gathered from trea-
ties signed by the host country, or in its internal laws66. For example, in the case of Southern
Pacific Properties, Ltd. (Middle East) v. Egypt67, ICSID accepted the argument of Southern
Pacific Properties, Ltd. (SPP) that ICSID had jurisdiction over the case because of a
provision in an Egyptian law regarding foreign investments. The Egyptian legal norm
established that disputes regarding the implementation of the law shall be resolved within
the framework of ICSID. This phenomenon, in which the host countrys submission to
arbitration is attributed to a provision in a BIT, internal law, or a unilateral offer gathered
from other treaties signed by the host country in the absence of an explicit arbitration
clause in a contract with the investor is called unilateral arbitration or arbitration without
privity.
Criticisms of arbitration without privity are not lacking68. For example, arbitration
without privity has been said to introduce the possibility that arbitral tribunals which
are private persons, even though the respondent-states would also have the right to choose
one of the arbiters judge legislative, executive, and judicial measures. It is also alleged
that the expansion of transnational unilateral arbitration banalizes the investors right
to resort to transnational arbitration against the host state of the investment. However,
the advantages of unilateral arbitration to investors are also recognized69. Unilateral ar-
bitration facilitates the vindication of investors claims against host countries, making
it unnecessary for investors to wait for their home countries to extend them diplomatic
protection.
Nevertheless, even admitting the validity and efficacy of the submission to unilateral
arbitration, the problems already discussed regarding the validity of the waiver of immu-
nity and the execution of the award remain.
As in the case of stabilization clauses, arbitration clauses raise the question of the
capacity of host countries to submit themselves to arbitration. Everything that has already
been written about the states capacity to consent to a stabilization clause also applies to
the question of the states capacity to consent to an arbitration clause in a contract with
a private party. Iruretagoiena Agirrezabalaga suggests that this question does not create
too much problems, given that the possibility of public entities submitting themselves to
international commercial arbitration were already recognized in the European Conven-
67 ICSID Case No. ARB/84/3, May 20, 1992, as analyzed in Paulsson, Jan, Arbitration Without Privity, ICSID
Review-Foreign Investment Law Journal, vol. 10, no. 2, Autumn 1995, pp. 232-235.
69 Paulsson, Jan, Arbitration Without Privity, op. cit., pp. 255-256.
60 The IBP Journal

tion on International Commercial Arbitration of April 1961 and the 1965 Convention of
Washington (signed by 156 states as of May 9, 2007), and given that most international
investment treaties contemplate the possibility of submitting disputes to arbitration70.
The question of the arbitrability of foreign investment disputes arises when the le-
gitimacy of the host countrys act, and not merely the amount of due compensation or
indemnity, is raised71. It may be asked if an arbiter or arbitral tribunal may judge the
legitimacy of a host countrys exercise of its sovereign prerogatives.
The creation of the ICSID by international convention among sovereign states added
protection for investors. The convention by which ICSID was created obliges the state-
parties to submit disputes to conciliation (which may be through arbitration) before it72.
This obligation, as an obligation of international law created by treaty, cannot be over-
come by legislation of the host country cancelling the foreign investment contract73, nor
by the host countrys invocation of its sovereignty to avoid the effects of its submission to
arbitration by contract. Furthermore, the ICSID is one more tool for deslocalization and
internationalization of foreign investment contracts.74
ICSID is not the only forum for the arbitration of disputes between host countries
and foreign investors. There are other arbitration forums that also have jurisdiction over
70 Iruretagoiena Agirrezabalaga, op. cit., pp. 205-206. See also the discussion regarding the states capacity to
submit itself to arbitration according to international law and Spanish domestic law in Snchez Pos, Mara
Victoria, El Control Judicial en la Ejecucin del Laudo Arbitral, Editorial Aranzadi, SA, Pamplona, 2009, pp. 49-51.
72 Sornarajah, op. cit., pp. 415-416. Here, Sornarajah discusses some features which distinguish ICSID, as a
creation by sovereign will, from other private arbitration institutions. For more information about the workings
of ICSID, see Fernndez Masi, Enrique, Arbitraje en Inversiones Extranjeras: El Procedimiento Arbitral en el CIADI,
Tirant Lo Blanch, Valencia, 2004; Pascual Vives, Francisco Jos, La Competencia del Centro Internacional
para el Arreglo de las Diferencias Relativas a Inversiones (CIADI) para Proteger Las Inversiones Extranjeras
Realizadas por los Particulares: El Laudo de 8 de Mayo de 2008 Dictado por un Tribunal del CIADI en el caso
Vctor Pey Casado y Fundacin Presidente Allende y la Repblica de Chile (caso CIADI nm. ARB/98/2),
Anuario de Derecho Internacional, No. 24, 2002, pp. 177-214; lvarez vila, Gabriela, Las Caractersticas del
Arbitraje del CIADI, Anuario Mexicano de Derecho Internacional, No. 2, 2002, pp. 206-229; Gonzalo Quiroga,
Marta, El Sistema Arbitral de Solucion de Controversias del CIADI, in Collantes Gonzles, Jorge Luis and
De La Vega Justrib, Brbara (Coords.,) Derecho Internacional Econmico y de las Inversiones Internacionales, vol. 2, 2009,
pp. 433-486; Claros Alegra, Pedro, El Sistema Arbitral del Centro Internacional de Arreglo de Diferencias
Relativas a Inversiones (CIADI), Revista de Derecho Procesal, No. 1-2007, pp. 209-258; Murillo Gonzlez, Jorge,
Efectos de la Clausula Compromisoria en los Arbitrajes Internacionales: Caso del CIADI, Revista de Ciencias
Jurdicas, No. 118, 2009, pp. 121-152. Regarding international arbitration in general, see Cordn Moreno,
Faustino, El Arbitraje en el Derecho Espaol, Interno, e Internacional, Editorial Aranzadi, S.A., Pamplona, 1995.
73 Sornarajah doubts that the doctrine of separability of the arbitration clause from the entire contract (which
permits that the validity of an arbitration clause survive the annulment of the contract) applies to the annulment
by legislation of contracts between sovereign states and private parties, since the annulment of the contract by
legislation is a sovereign act, and it is unlikely that the host country will concide that the arbitration clause would
be immune to such legislation. Op. cit., p. 414.
74 Article 42 (1) of the 1965 Convention of Washington:
Article 42
(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be
agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law
of the Contracting State party to the dispute (including its rules on the conflict of laws)
and such rules of international law as may be applicable.

Cristina A. Montes
these types of disputes, like the International Chamber of Commerce, the London Court
of International Arbitration, among others75. Each forum has its own rules but with a
series of common features: the capacity of the parties to control the composition of the
tribunal and to select the applicable law, the tribunals power to determine its own juris-
diction, the tribunals power to determine the procedural rules in the absence of a choice
by the parties, and confidentiality.
In spite of the existence of other arbitration forums, arbitration before ICSID is more
advantageous in that the ICSID is not a private arbitration institution but one created
by international treaty with the consent of its sovereign state-parties. This prevents that
doubts be raised regarding the legitimacy of private arbitration institutions judging the
exercise by sovereign states of their sovereign prerogatives.
Furthermore, the 1965 Convention of Washington which created ICSID also solves
the problem of the immunity of host states against execution, since the articles of the
convention oblige the state parties to comply with arbitral awards76. The state parties
to the convention should recognize the effects of an arbitral award and enforce them
within their territories as if they were a final judgment of a national court77. Although
it is not clear if these clauses, or similar clauses in BITs or in other treaties constitute a
waiver of the immunity against execution (because the question is still unresolved in the
jurisprudence of countries), it is clear that compliance with these arbitral awards is a
treaty obligation78.Martinez and Reed suggest that because of this, in the case of a host
countrys non-compliance with an arbitral award, the aggrieved foreign investor has op-
tions such as: 1) initiating another arbitration case against the host country; 2) asking the
World Bank to urge the compliance by the host country, for example, by retaining some
of the host countrys benefits; 3) ask its own country to sue the host country before the
International Court of Justice for violation of the international obligation of comply-
ing with the arbitral award; 4) ask its own country to initiate a state-to-state arbitration
against the host country; 5) ask its own country to exert pressure on the host country, for
example, through economic measures; 6) if the arbitral award is an ICSID award, ask an
interested third country to sue the host country before the ICJ for violation of the Con-
vention of Washington, and 7) sue before the European Tribunal of Human Rights, if the
host country is party to the European Convention for the Protection of Human Rights
and Fundamental Freedoms.
Additionally, while it is doubtful whether a state may consent, in a contract with a

private party, to submit to arbitration, the inclusion of an arbitration clause (or at least
an offer to submit to arbitration) in a BIT is binding among the state parties thereto.
Fernndez Masa note that arbitration of foreign investments is not founded on arbitra-
75 Dolzer, Rudolph and Schreuer, Christoph, Principles of Internatioanl Investment Law, Oxford University Press,
Oxford, 2008, pp. 225-229.
76 See Article 53 (1) of the 1965 Convention of Washington.
77 Rey Vallejo, Pablo, El Arbitraje de Inversiones y los Retos de la Globalizacin, Revista de Derecho Privado, No.
38, June 2007, pp. 7-8; citing Art. 54 (1) of the 1965 Convention of Washington.
78 Martinez, Lucy and Reed, Lucy, Treaty Obligations to Honor Arbitral Awards and Diplomatic Protection, in
Bishop, R. Doak, Enforcemtn of Arbitral Awards against Sovereigns, JurisNet, LLC, United States, 2009, pp. 20-25.
62 The IBP Journal

tion clauses that have been incorporated in investment contracts between investors and
host countries, but on the consent by a host country in a BIT which binds said state with
the home state of the investor79.
Resort to the Principles about Expropriation and Compensation
The application of the principles of customary international law about expropriation

and compensation is an intermediate solution between the recognition of the sovereign
prerogatives of the host country and the protection of the investors interests.
It is generally accepted in customary international law that a state should pay com-
pensation in cases of expropriation, although there is no agreement regarding the stan-
dards for computing such compensation80. International law about expropriation is an
attempt to balance two general principles of international law: the permanent sovereignty
of states over their territories and natural resources, on one hand, and the duty of states
to respect acquired rights of foreigners.81 Under certain conditions, the host country, as
a sovereign, has the prerogative of expropriating a foreign investment, such that the ex-
propriatory act which follows the conditions required will not be illegitimate nor in bad
faith, but the host country will be obliged to pay compensation to the investor.82 The
nuances of the issues surrounding the principles of expropriation will be discussed in the
next section.
Issues Specific to the Liability of Host States in the

Cancelation of Foreign Investment Contracts
Cancellation of the Contract: Expropriation or Regulatory Means?
The Nature of Expropriation and Regulatory Means, and the Differences between
Them
This section will respond to the following questions: 1) What is expropriation under
international law? 2) What are the bases of the host countrys right to expropriate? 3)
What are the conditions for an expropriation to be legitimate? 4) Under international law,
what are the differences between expropriation and regulatory measures?
In general, expropriation is an act or series of acts by which the ownership or the pos-
session of an investment is transferred to the host country, or which completely destroys
the value of the investment. The transfer of intangible properties, such as contractual
rights or other rights, are also contemplated by this concept.83
79 Op. cit., p. 22. However, in pp. 25-29, the author discusses the four types of stipulations about arbitration in BITs
and emphasizes that not all cases have an offer of consent to international arbitration in a manner clearly and
unequivocally binding on the state party.
80 Salacuse, Jeswald W., The Law of Investment Treaties, Oxford University Press, Oxford, 2010, p. 48.
81 Newcombe and Paradell, op. cit., pp. 321-322.
82 Alvik, op. cit., pp. 256-257, 282.
83 Dolzer and Schreur, op. cit., pp. 115-117.

Cristina A. Montes
Iruretagoiena Agirrezabalaga notes that the concept of expropriation in arbitral

practice and in BITs is broad and indefinite. Nevertheless, he identifies four essential ele-
ments for which an act may be qualified as an expropriation: 1) attributable to the state;
2) forceful character; 3) reasonably suited to produce the specific results of expropriation;
4) with the double result of privation of the investment, which affects the investor, and the
appropriation or acquisition which is translated into the fact that the host country benefits
from its own act84.
The first characteristic requires that the act be executed or instigated by the govern-
ment, in the name of the government, or by an act attributable to the government. Acts
of government organs, decentralized public authorities, acts of entities which exercise
prerogatives of public power according to the law but without forming part of the state
structure, and acts of individuals who act in representation of the state are included. Al-
vik notes that an act that can be done by any private contracting party like the simple
breach of a contract cannot be expropriation.85
The second characteristic requires that the act be imposed by the state on the investor.
An act with the investors agreement, or which is the result of a negotiation between the
state and the investor, cannot be expropriation.
The third characteristic requires that there be a relation of direct and objective cau-
sality between the states actuations and the expropriatory effects which affect the foreign
investors, and that the state adopt the measure voluntarily and conscious of the effects
that it will produce, beyond the states ultimate intention or objectives pursued through
the adoption of the measure. The need for the third characteristic is debatable, however.86
The fourth characteristic means that the expropriation must deprive the investor of
the investment, and that there exist an appropriation by the part of the state of the own-
ership of or benefits of the investment. The privation must be of a degree that strips the
investment of all usefulness for the investor, although a partial deprivation may effectively
annul all the utility of an investment. Furthermore, it is not sufficient that the investor
be deprived of his or her investment; there must also be a transfer of the benefits of the
investment to the state or to a third person who should occupy the position of the investor
and substitute the investor in the market.
Without this substitution of positions, the state act will be a regulatory measure which
does not require that the state compensate the investor. However, some arbitral awards
and BITs refer to indirect expropriations or measures with effects equivalent to expropria-

86 Newcombe and Paradell opine that the states intention to expropriate is not a necessary condition for
expropriation to exist, although the existence of clear evidence of such intention may influence a tribunal that
there had been expropriation. The same authors note that the existence of such evidence may be a factor to be
considered in the assessment of the compensation or indemnity. Newcombe and Paradell, op. cit., pp. 342-343.
64 The IBP Journal

tion.87 According to the award in Metalclad v. Mexico,88 measures with effects equivalent
to expropriation are hidden or incidental interferences which have effects equivalent to
totally or significantly depriving the owner of the use or economic benefit that he or she
would reasonably expect from the property, although not necessarily with obvious ben-
efits to the host country. They include acts of the state which do not formally transfer the
investment in favour of the state or third parties but which in reality produce the effects
proper to expropriation: the nullification of the utility of the investment for the investor,
and the economic benefit of the state or third parties. Although the extent of the concept
of indirect expropriations is being debated (for example, there are contradictory opinions
on whether an obvious benefit for the state is necessary for an indirect expropriation to
exist, although recently, in BITs, priority is given to the privative effects of state measures),
it is clear that an act, to be considered an indirect expropriation, should have effects of the
magnitude and severity of an ordinary expropriation.
In customary international law, the right of sovereign states to expropriate properties

of foreigners is recognized. This right is a consequence of the sovereignty of a state over
its natural resources, which is an economic aspect of the right to self-determination.89 In
addition, BITs in general recognize this right.90
Although differences in the manners of formulation and in the nuances of what are
considered expropriations exist, an examination of BIT provisions show the character-
istics that an expropriation must have in order to be legitimate: 1) public purpose; 2) the
absence of discrimination; 3) due process; and ) prompt and adequate compensation.91
Some BITs add that an expropriation in violation of contractual obligations is not legiti-
mate.
The first characteristic public purpose requires that the expropriation not respond
solely to the interest of an individual or a pronounced minority, and that the interest to
which the expropriation respond be economic and not of a principally political charac-
ter.92 The expropriation should neither be a political tool against foreigners nor a tool for
violating ius cogens norms. As a general rule, given the broad discretion which international
law concedes to sovereign states in their internal affairs, in arbitrations on expropriation
the tribunals apply a wide margin to determine if the expropriation had a public pur-
pose. However, at least a demonstrable public purpose must exist and the determination
of the existence of the same must be done in good faith. The expropriation cannot, for
example, be a form of political, racial, or religious persecution under the pretext of a
public purpose.
87 We follow the discussion of Iruretagoiena Agirrezabalaga, op. cit., pp. 248-285, including his discussion of the
Metalclad v. Mexico case.
88 ICSID Case No. ARB (AF)/97/1, August 30, 2000.
90 For examples of BIT provisions recognizing and defining the right of states to expropriate, see Article V in the
BIT between Spain and Argentina and Article IV of the BIT between Spain and the Philippines.
91 Newcombe and Paradell, op. cit., p. 321.
92 Iruretagoiena Agirrezabalaga, op. cit., pp. 264-265; Newcombe and Paradell, op. cit., pp. 370-373.

Cristina A. Montes
The second characteristic absence of discrimination does not refer so much to the
absence of inequality of treatment because differences in treatment can be admitted in
certain cases, if there is a rational basis for such differences but rather to the absence of
arbitrariness.93
Regarding the third characteristic, Newcombe and Paradell opine that due pro-
cess requires compliance with internal laws, the minimum standard of compliance with
due process (notice, opportunity for the investor to argue its side, and the absence of
arbitrariness.)94 For Iruretagoiena Agirrezabalaga, the lack of due process focuses its at-
tention on denial of justice and can encompass all types of procedural defects, like the
incompetence of the judges or the denial of access to available internal recourses.95
The requirement of prompt and adequate compensation shall be discussed in more

detail later. For now, it is sufficient to note that a debate exists on whether compensation
is simply a consequence of the expropriation or a condition for its legitimacy.96 Some au-
thors affirm that expropriation, whose origin is found in the sovereignty of the state, is licit
in itself and the duty to compensate is only a consequence of the expropriation. Others
argue that the payment of compensation is a condition for the legitimacy of expropria-
tory acts, such that the extraterritorial effects of expropriation are not recognized if the
obligation to compensate is not complied with. A nuanced version of this latter position
posits that the absence of compensation is curable.
The requirement in some BITs that the expropriation not violate contractual commit-
ments refers to stabilization clauses in foreign investment contracts. The question raised is
whether the expropriation will be internationally illicit in case of a violation of these sta-
bilization clauses. Iruretagoiena Agirrezabalaga opines that the violation of a stabilization
clause can only create contractual responsibility and not international responsibility.97 For
him, while the violation of a stabilization clause in relation to the violation of an umbrella
clause may give rise to the international responsibility of a state but does not affect the
legitimacy of an expropriatory measure.98 On the other hand, Newcombe and Paradell
opine that if a BIT has a provision that any expropriation should not violate contractual
commitments, and there is a stabilization clause in the foreign investment contract which
prohibits expropriation, any expropriation will be a violation of the treaty.99
Expropriation must be distinguished from regulatory measures, whereby private

property is confiscated to protect public order, morality, health, or the environment,100 or,
93 Iruretagoiena Agirrezabalaga, op. cit., p. 267; Newcombe and Paradell, op. cit., pp. 373-374.
94 Newcombe and PAradell, op. cit., p. 376.
98 Op. cit., p. 275. However, the same author affirms that the violation of a stabilization clause should be considered
in the assessment of the compensation due, because the stabilization clause creates a legitimate expectation.
99 Newcombe and PAradell, op. cit., p. 377.
100 Op. cit., pp. 358-368.
66 The IBP Journal

as Rey Vallejo discusses, human rights.101 In these cases, the state need not pay compensa-
tion. However, the states exercise of its prerogative to take regulatory measures must be
without discrimination, with the common good as aim, and with respect for the minimum
standards of treatment of foreigners;102 if not, the state should pay indemnity. Further-
more, an apparent regulatory measure can be, in reality, expropriation (indirect expro-
priation as discussed earlier). In the arbitral award in Tcnicas Medioambientales Tecmed
S.A. v. Mexico,103 the tribunal, to evaluate if a measure is equivalent to an expropriation,
considered the ends pursued and the reasonableness of the means used, the deprivation
of economic rights, and the legitimate expectations of the parties.
Although the criteria to differentiate between regulatory measures and expropriations

are not uniform in arbitral jurisprudence, and regulatory measures must be treated in a
particular manner in every specific case, Iruretagoiena Agirrezabalaga identifies some
principles which may aid this analysis. It is certain that the appropriation of properties
as a consequence of an investors criminal activities or the disposition of such properties
according to other punitive norms is legitimate and not compensable. The question in the
case of regulatory measures which are not punitive is more complicated, because the exis-
tence of public interest is a common characteristic of regulatory measures and expropria-
tions. To distinguish between a regulatory measure and an expropriation, it is necessary
to determine the existence of public objectives of such weight or importance that when
the state pursues such objectives it should be free from the obligation of compensating
the prejudiced investors. When a government act refers to matters which belong to the
sphere of the police power of the state which adopts them, the act shall be considered a
regulatory measure and not an expropriation and thus shall not be compensable. Police
power, according to the Tribunal of Justice of the European Communities, refers to the
national dispositions whose observance must be considered crucial for the safeguarding
of the political, social, or economic organization of the member-state in question, to the
point of being obligatory for all persons who find themselves within the national territory
of that member state or with respect to all juridical relations localized in it.
Another manner of evaluating the criterion of the end pursued is to look at the result-
ing benefit. Expropriations have, as resulting benefits, economic ones: the management,
control, or disposition of an expropriated investment, such that the state or a third person
shall occupy the position of the investor in the market with respect to the expropriated
investment. In the case of indirect expropriations, any economic benefit for the state or
a third person is included in the concept, even if the title to the investment had not been
transferred to the state or third person. On the other hand, regulatory measures have,
as resulting benefits, the citizens safety, public health, the protection of morality, or the
environment. In general, the resulting benefit of a regulatory means translates itself to the
prevention of a use of property that is highly prejudicial to society.
101 Op. cit., pp. 16, 19, and 21.

102 The minimum standard for the treatment of foreigners under international law shall be discussed later.
103 ICSID Case No. ARB (AF)/00/2, May 23, 2003. We follow with the analysis of Iruretagoiena Agirrezabalaga
of this case in op. cit., pp. 292 and the following pages.

Cristina A. Montes
The severity of the privative effect of the government act is, in addition, a criterion
to distinguish between regulatory means and expropriations. A government act, to con-
stitute indirect expropriation, should produce an effect equivalent to that of direct expro-
priation. As the award in the above-cited case of Tecmed v. Mexico establishes, this effect
should deprive the investor in a radical manner of the economic use of his or her invest-
ment, as if the rights relative to it have ceased. In CMS v. Argentina,104 the tribunal resolved
that no substantial deprivation existed and thus there was no expropriation because
the claimant maintained control and full ownership of the investment, and the Argentine
government did not manage the companys daily operations.
An otherwise legitimate regulatory measure which renders the investment economi-

cally useless for the investor, under the conventional law on investments, constitutes a
measure with an effect equivalent to expropriation which requires compensation. Regu-
latory measures constitute measures equivalent to expropriation when they dispossess the
investor of the inversion.
Finally, a government act affecting a foreign investment, to be a legitimate regulatory

measure and not an expropriation, should be reasonable. The proportionality between
the harm suffered by the investor and the objective pursued by the act or regulatory mea-
sure should be examined. The legitimate expectations of the investor (which shall be dis-
cussed later) shall be considered too in evaluating the reasonableness of a government act.
In sum, Iruretagoiena Agirrezabalagas criteria for determining whether a regulatory

measure is, in reality, an expropriation are the preeminent character of the ends pursued
by the measure, the intensity of the deprivation, and the reasonableness of the measure.
For Newcombe, in addition to factors similar to those which Iruretagoiena Agirreza-

balaga considers relevant, the process which the government takes before deciding the
regulatory measure affects its legitimacy. This means the presence or absence of public
hearings, studies, or other manners of obtaining evidence, and transparency in the dem-
onstration of the risk which the government seeks to avoid. Nevertheless, Newcombe
insists that the presence or absence of due process is not sufficient to determine the legiti-
macy or illegitimacy of a regulatory measure; there must be a substantial assessment of
the nature of the measure in itself.105
Alvik identifies two doctrines which are used to distinguish between legitimate regu-
latory measures and indirect expropriations.106 The first is the sole effects doctrine,
according to which only the effects of a measure determine whether it is a legitimate
regulatory measure or an indirect expropriation. This doctrine is based, on one hand, on
the legitimacy of an expropriation under international law if the expropriation is for a
public purpose; and on the other hand, on the interest of protecting foreign investments
from deprivation for political ends, whatever may be the importance of such ends. This
104 ICSID Case No. ARB/01/08, May 12, 2005.
105 Newcombe, Andrew, The Boundaries of Regulatory Expropriation in International Law, ICSID Review-
Foreign Investment Law Journal, vol. 20, no. 2, 2005, p. 31.
106 Alvik, op. cit., pp. 254-272, including his analysis of Methanex v. United States of America.
68 The IBP Journal

point of view does not interfere with the policies of a government as long as the investor
be indemnified.
The second doctrine takes into account the proportionality between the end pursued
and its effects. For example, in the case of Methanex v. United States of America, Methanex,
the investor in the state of California, was a methanol producer. California promulgated
a law which prohibited a substance in gasoline which contains methanol; because of this,
Methanex lost a substantial fraction of its business in California. During arbitration, the
tribunal decided that even if the prohibition had the effect of depriving the investor of its
investment, it was justified because the government believed in good faith and with scien-
tific reasons that the substance which contained methanol contaminated the water. Thus,
the prohibition was a regulatory measure and not an indirect expropriation.
For Marquez Escobar, for a regulatory measure to be expropriatiory, it should have a

certain unjustified nature, constitute an attack against the property, and which interfere
with the investors reasonable expectations.107
Determining the Existence of an Expropriation or a Regulatory Measure
Before analyzing the question of whether the cancelation of a foreign investment

contract is an expropriation or a regulatory measure, it is necessary to note that each
particular case should be analyzed individually. Furthermore, each BIT has its own defi-
nitions of expropriation and regulatory measures.108 However, a few general principles
regarding the theme may be identified.
To recall, in the first place, the act should be attributable to the State. Although the
cancelation of a foreign investment contract by judicial decision or by executive/admin-
istrative or legislative act, it is not sufficient that the cancelation be done by an agent of
the state; the act of cancelation should be in the exercise of sovereign prerogative. The
denial of the existence of a contract similar to what a private contracting party can do is
not attributable to the state. Thus, the cancelation by a public corporation which does not
exercise sovereign prerogatives is not attributable to the state.
107 Mrquez-Escobar, Pablo, Expropiacin Mediante Regulacin: Inversin Extranjera, Tratados de Promocin
de Inversiones, y el Poder de Polica de la Administracin, in Revista Colombiana de Derecho Internacional, No. 11,
May 2008, p. 50. For a more extensive discussion regarding the differences between indirect expropriations
and legitimate regulatory measures, see Pez, Marisol, La Expropiacin Indirecta Frente al CIADI:
Consideraciones para la Autorregulacin de los Actos Administrativos de los Estados, in Estudios Internacionales:
Revista del Instituto de Estudios Internacionales de la Universidad de Chile, No. 153, pp. 5-36.
108 BITs form most part of the juridical regime governing foreign investments, given the failure of efforts to establish
a multilateral global regime and the insufficiency, vagueness, and uncertainty of customary international law
during the global economic expansion after World War II which was a crucial stage in the history of foreign
investments. Salacuse, op. cit., pp. 75-79. For a general analysis of BITs, see, among others, Cairns, David and
Cremades, Bernardo Mara, La Seguridad Jurdica de las Inversiones Extranjeras: la Proteccin Contractual y
de los Tratados, Revista de la Corte Espaola de Arbitraje, 2004, pp. 69-94; Pascual Vives, Francisco, Los Acuerdos
Sobre Promocin y Proteccin Reciproca de las Inversiones Extranjeras y el Derecho de la Unin Europea,
Civitas. Revista Espaola de Derecho Europeo, No. 40, 2001, pp. 441-489; Pascual Vives, Francisco Jose, Las
Obligaciones de Promocin y Proteccin de las Inversiones Extranjeras en la Segunda Generacin de APPRI
Espaoles, Revista Espaola de Derecho Internacional, vol. 61, No. 2, 2009, pp. 411-440.

Cristina A. Montes
The cancellation of a contract by legislative or judicial act is attributable to the state

given that the promulgation of laws and judicial judgments are state prerogatives. The
cancellation of the contract by executive or administrative act may be not attributable to
the state because it has the same effect as a private contractors denial of the existence of
a contract. But the cancellation of a contract as an exercise by the executive branch of its
prerogatives in countries whose laws recognize administrative contracts is attributable to
the state, because it is in the exercise of a sovereign prerogative.
In the second place, expropriation requires a forcible character. The cancellation of a

foreign investment contract by judicial decision is clearly by force. The same can be said
of cancellations by administrative/executive or legislative acts without the agreement of,
nor negotiations with, the investor.
In the third place, the existence of a direct and objective causal connection between
the states actuations and the expropriatory effects on the foreign investment, in cases of
cancellations of foreign investment contracts, is likewise clear.
The existence of intent to expropriate is not clear in all cases of cancellations of for-
eign investment contracts. However, as already stated earlier, the need for the existence
of this criterion for expropriation to exist is debatable.
With regard to the effect of deprivation, Newcombe and Paradell, in their analysis
of arbitral jurisprudence, conclude that the breach of a contract or the denial of the
existence of a contractual obligation by the government, in themselves, do not constitute
expropriation.109 But when the government of a host country acts in its sovereign capac-
ity for example, by law which cancels contractual rights of the investor there is expro-
priation even if the act be valid according to the host countrys internal laws.
In cases of cancelation by administrative/executive act, the existence of the effect of

deprivation is not clear. In the case of the unilateral cancelation by the president of a for-
eign investment contract, for example, the investor may have remedies in the internal law
of the host country. In this case, there is no effect of deprivation because the investor can
seek a remedy before the appropriate forum. The denial, in itself, by the host country of
the existence of its contractual obligation does not annul such obligation, and the investor
can enforce his contractual rights through the courts. But a states insistence on not com-
plying with a contractual obligation not because of a dispute in good faith regarding the
existence of the obligation but as a political decision not to comply with of the contract
may have the effect of deprivation. Generally, if the investor has a remedy before the lo-
cal courts of the host country, there is no effect of deprivation; but when a state, acting as
a sovereign, annuls the investors contractual rights and the resort to the local courts will
be futile, the effect of deprivation exists.
The cancellation of a foreign investment contract by judicial decision, especially

upon the finality of the decision, seems to have the effect of depriving the investor of his
or her investment. But the declaration by courts of the nullity of a contract does not have
70 The IBP Journal

the effect of deprivation because in the first place, the nullity of the contract means that
the contract the source of the investors right does not exist.110
It is possible that the contract be declared null by the court after or during the inves-
tors compliance with the contract. It may be asked if in this case there is the effect of
deprivation, since the investor, by his compliance with the contract, may have already
acquired some or all the rights under law to prevent unjust enrichment. In addition, it
may be argued that the investors compliance is a species of payment not due, because
the investor gave goods and/or services under a non-existent contractual obligation. It
is debatable whether the same principles form part of international law or of the general
principles of law. In the end, the resolution of the question of the privatory effect of the
judicial cancellation of a foreign investment contract due to the nullity thereof during
or after compliance by the investor will depend on the applicable law. Nevertheless, it
can be said that given that the investor, by his compliance with the contract, had already
acquired certain legal rights, the declaration of the nullity of the contract would have no
retroactive effect of deprivation for the investor. The investor may claim his rights based
on his compliance or on payment not due and, as stated earlier, in this situation where the
investor can avail of remedies before the local courts of the host state, there is no depri-
vation, unless the state, acting as a sovereign, annuls the investors contractual rights and
renders recourse to the host states local courts futile.
Nevertheless, the investor may claim compensation or indemnity if the judicial deter-
mination of the nullity of the contract constitutes a denial of justice or if the law which
renders the contract null is expropriatory.
With regard to the resulting benefit from the cancellation of a foreign investment
contract, in most cases it is most likely that the ostensible purpose of such cancellation
would be the protection of public order or interest, or obedience to the constitution or to
laws. An example is the cancellation of a foreign investment contract for being contrary
to law or public policy. It may thus be argued that the cancellation of a contract of for-
eign investment is not an expropriation but a regulatory measure.
However, such cancellation of the contact may also have a resulting economic ben-
efit for the state or a third person, like when the contract is cancelled when the work of
project which is subject of the contract is almost completed. Nevertheless, as already
explained, it is doubtful there is an effect of deprivation which is another element of
expropriation; thus, even if there would be economic benefits for the state, there would
be no expropriation.
It is possible that the cancellation of a foreign investment contract is ostensibly to

protect public order or the law, but in reality is an attempt to expropriate without having
to pay compensation. The requirements of reasonableness and proportionality would be
that which determine if the state should pay compensation even if it cancels the contract
for purposes which may classify its act as a regulatory measure.111

Cristina A. Montes
Sources of the Liability of the Host Country
Internal Laws
The possible sources of the liability of the host country have already been expounded
on in the discussion of examples of internal laws regarding unilateral withdrawal from, or
nullity of, ordinary contracts. These continue to be relevant in spite of the trend towards
the internationalization of foreign investment contracts. The internal law of the host
country, or of any country selected by the parties, is relevant, for example, to determine if
in reality the investor was dispossessed of his investment with the cancellation of the con-
tract. Furthermore, the availability of international arbitration as a remedy for the inves-
tor does not always exclude resort to local remedies. In fact, in some occasions the failure
to resort to local remedies can lead to a dismissal of the investors claim, for example, for
lack of denial of justice or of privatory effect of the government act.112
International Law
It is clear that according to customary international law and the majority of BITs, the
government should pay compensation to the investor whenever the cancelation of foreign
investment contracts has all the elements of expropriation. In the case of a cancellation
of a contract which constitutes a regulatory measure, the government does not have the
obligation to pay except if the apparent regulatory measure is, in reality, an expropriation,
or if the regulatory measure violates a norm of international law (like a norm of custom-
ary international law or a provision in a BIT).
In customary international law, the minimum standard of treatment of foreigners is

not fixed, although in any case Francioni affirms that the principle of access to justice
forms part of such standard under customary international law.113 It is debated whether
a state should treat foreigners in a manner equal to its treatment of its own nationals, or
with a minimum international standard which may be better than the treatment of its
nationals.114 However, BITs normally impose standards of treatment of investors. In gen-
eral, the standards which BITs usually contain are:115
112 Foster, George K., Striking a Balance Between Investor Protections and National Sovereignty: the Relevance of
Local Remedies in Investment Treaty Arbitration, Columbia Journal of Transnational Law, vol. 49, no. 201, 2011,
pp. 201-267. For a more extensive discussion on the exhaustion of local remedies in relation to international
arbitration and the BITs and, in relation to these, the fork in the road clauses and the renunciation of local
state jurisdiction, and the effect of Article 26 of the ICSID rules, see Fernando Masia, op. cit., pp. 77-100. For
reference, Article 26 of the ICSID Rules states:
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be
deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may
require the exhaustion of local administrative or judicial remedies as a condition of its consent to
arbitration under this Convention.
113 Francioni, Francesco, Access to Justice, Denial of Justice, and International Investment Law, The European
Journal of International Law, vol. 20, no. 3, 2009, pp. 730-731.
114 Salacuse, op. cit., pp. 46-49.
115 Salacuse, op. cit., pp. 131-134.
72 The IBP Journal

1. Fair and equitable treatment Although this concept may seem clear, its
meaning in specific situations can be debated. The content of this standard
is discussed and interpreted in many arbitral awards.
2. Full protection and security This standard imposes on the host country the
obligation to give full protection and security to the investors from the other
country. The content of this standard is interpreted in many decisions and
arbitral awards but, in general, jurisprudence establishes that this standard
does not make the host country responsible for all harms to investments; the
standard only imposes the duty of due diligence or of taking reasonable mea-
sures to protect investments.
3. Prohibition of discriminatory or unreasonable measures The application
of this standard would depend on the circumstances of specific cases, but it
is clear that the reasonableness of a measure taken against the investor may
constitute a defense for the host country.
4. International law This standard means that a foreign investment should
not be treated in a manner less favourable than that which international law
demands.
5. State obligations This criterion requires a host country to respect its obliga-
tion to its investors.
6. National treatment This standard requires the host country to treat the
investors or investments of the other country with a treatment no less favour-
able than that which it confers on its own investors or the investments of its
own nationals.
7. Most favoured nation treatment This criterion means that a host country
should treat the investors or investments of the other country with a treat-
ment no less favourable than that which it confers on investors or investments
of other countries.116
In both cases of expropriation and regulatory measures, the concept of the legitimate
expectations of the parties is key. Alvik explains that in reality, the basis of the govern-
ments duty to pay in cases of expropriation is the protection of the legitimate expectation
of the investors.117 His explanation is especially relevant in relation to the cancellation of
contracts. Alvik explains that while the protection of contractual rights against expropria-
tion depends ultimately on clause agreed upon and on the definition of the protected
investment, customary international law protects contractual rights that have economic
value. It is clear that contractual rights between private parties have economic values,
because the creditors right to payment or fulfilment by the debtor is an asset in the credi-
tors patrimony, and can be transmitted to a third party. However, in the case of a contract
between the state and an investor, when the state cancels the contract, that which the state
appropriates is not the objective value of the investors contractual right but the investors
116 The doctrine of the most favoured nation treatment is discussed with more detail in Fernando Masa, Enrique,
Atribucin de Competencia a Travs de la Clausula de Nacin Mas Favorecida, Revista Electrnica de Estudios
Internacionales, No. 13, 2007, available in www.reei.org; and in Garriga Suau, Georgina, El mbito de
Aplicacin de las Clausulas de la Nacin Mas Favorecido de los Tratados Bilaterales de Inversin Sometidos
a la Interpretacin de los Tribunales del CIADI,, Migraciones y Desarrollo: II Jornadas Iberoamericanas de Estudios
Internacionales, Montevideo, 25, 26, y 27 de Octubre de 2006, 2007, pp. 567-580.
117 Alvik, op. cit., pp. 159-237.

Cristina A. Montes
expectation of the states fulfilment of the contract.
Alvik also writes that the concept of the legitimate expectations of the parties forms
part of the standard of fair and equitable treatment, which is among the standards which
many BITs establish. The host country may have to pay indemnity to the investor for the
cancellation of a foreign investment contract, even if the cancellation constitutes a regu-
latory measure and not an expropriation, if the cancellation violates the standard of fair
and equitable treatment. This standard, in the context of the legitimate expectations of
the investor, implies that the state cannot revoke the promises on which the investor relied
in order to invest. The key criterion is whether the investor relied reasonably on the ex-
pectation in order to invest. On the other hand, the evaluation of the investors legitimate
expectations should consider the inherent risks in any investment, and should take into
account that BITs are not insurance policies.118
The investors legitimate expectations are considered as an element of reasonableness

in evaluating if a government act is a regulatory measure or an expropriation.119
Calculation of the Compensation, Indemnity, or Restitution
The compensations demandable under international law in cases of cancellations

of foreign investment contracts can be classified into two types: 1) compensation or just
indemnity, for cases of licit expropriations; and 2) restitution for internationally illicit acts,
for illicit expropriations and regulatory measures that violate international law norms.
They can also be classified as compensation due under internal law, on one hand, and
under international law, on the other.
The formula for the assessment of the compensation for licit expropriation would
depend on the applicable law, be it the internal law of the host country or any other
country or international law. Each country has its internal laws regarding expropriation,
and in case an international treaty binds the state, it will be obliged to respect the norms
established in the treaty.
In international law, there is much discussion about the standard of compensation

for expropriations.120 The industrialized countries insist on the application of the Hull
formula, which requires that compensation be prompt, adequate (complete according
to the market value of the investment), and effective (in such a manner as to be useful to
the investor, that the investor may obtain benefit from the compensation immediately).
According to these countries, the Hull formula forms part of the international minimum
standard. On the other hand, developing countries generally deny the existence of an
international standard of compensation which requires the payment of a prompt, ade-
quate, and effective compensation; these countries insist that the compensation should be
determined according to the internal laws of states. Even though many BITs incorporate
118 Newcombe and Paradell, op. cit., p. 350.

74 The IBP Journal

in themselves the Hull formula,121 it is impossible to affirm, in practice, that the formula
Hull or any other have been constituted into a norm of customary international law.
Another debate in international law concerns the inclusion of lucrum cessans (lost prof-
its) in calculating the damnum emergens. Alvik, from his study of arbitral awards on this
question, in the context of the distinction between the contractual perspective on for-
eign investments (which sees foreign investments as a right in personam, like the right of an
investor as a creditor against the host country as a debtor) and the property perspective
(which contemplates foreign investments as rights in rem, an asset, something which can be
transferred for value), concludes that arbitral practice adopts the contractual perspective,
and assesses the compensation according to the investors expectations, and not only ac-
cording to a more objective criteria like the value of the investment as an asset.122
On the other hand, Iruretagoiena Agirrezabalaga opines that indemnifying the lu-
crum cessans should be limited to instances of illicit expropriations or regulatory measures.
From his comparison between international law and Spanish internal law, he concludes
that while a licit measure like expropriation requires compensation, an illicit measure
gives rise to the duty to make reparation, reparation being distinct from compensation.123
Alvik observes that the calculation of compensation for acts which do not constitute
expropriation, such as non-compliances with the standard of just and equitable treat-
ment (which are internationally illicit acts), are also based on the legitimate expectations
of the investor.124 The same author clarifies that the legitimate expectations of the inves-
tor should be expectations in which the investor, in fact, relied on. Furthermore, Alvik
explains that tribunals, in general, only award lucrum cessans which are direct effects of the
contract and which are not merely speculative or hypothetical.
With regard to reparation for internationally illicit acts (illicit expropriations or regu-
latory means which violate international standards on the treatment of foreigners), the
principles established in the Chorzow Factory case and in the draft of the articles on state
responsibility drafted by the International Law Commission (CIL) serve as guides. Al-
though these sources apply to conflicts between states, Blackaby and Camargo Garcia
propose that they can be guides or references to determine the responsibility of the state
for internationally illicit acts against investors, because the basis of state responsibility in
conflicts among states and conflicts between states and investors is the same: the commis-
sion by the state of an injurious act, which implies specifically the violation of a norm of
international law.125 It is debated on whether the articles on state responsibility drafted
by the ICL constitute a source of international law taking into account Article 38 of the
121 See Sabahi, Borzu, Compensation and Restitution in Investor-State Arbitration, Oxford University Press, Oxford, 2011,
pp. 92-94.
122 Alvik, op. cit., pp. 222-231.
124 Alvik, op. cit., pp. 231-237.
125 Blackaby, Nigel and Camargo Garca, Andrea, Alternativas de Reparacin en el Arbitraje Internacional de
Inversiones Un Debate entere la Teora y la Practica, Anuario Colombiano de Derecho Internacional, Year 1, No. 1,
2008, pp. 163-164.

Cristina A. Montes
statute of the International Court of Justice. However, Blackaby and Camargo Garcia
propose that the articles can be an auxiliary means for the determination of the rules of
international law, as writings of the best-known authors on the area and as a product of
a commission of international experts.126
The Chorzow Factory case established that while licit expropriations require just com-
pensation, internationally illicit acts require restitution in the form of adequate repara-
tion.127 The same case explained that the objective of restitution is to re-establish the situ-
ation which existed if the illicit act had not been committed. This is also called restitution
in integrum or integral reparation.
These principles were incorporated in the ICL draft. The relevant articles are:
Article 34
Forms of reparation
Full reparation for the injury caused by the internationally wrongful act
shall take the form of restitution, compensation and satisfaction, either
singly or in combination, in accordance with the provisions of this chap-
ter.
Article 35
Restitution
A State responsible for an internationally wrongful act is under an obliga-

tion to make restitution, that is, to re-establish the situation which existed
before the wrongful act was committed, provided and to the extent that
restitution:
(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriv-
ing from restitution instead of compensation.
Article 36
Compensation
1. The State responsible for an internationally wrongful act is under an

obligation to compensate for the damage caused thereby, insofar as
such damage is not made good by restitution.
126 Blackaby and CAmargo Garcia, op. cit., pp. 162-163 (note 8).
76 The IBP Journal

2. The compensation shall cover any financially assessable damage in-

cluding loss of profits insofar as it is established.
Article 37
Satisfaction
1. The State responsible for an internationally wrongful act is under an

obligation to give satisfaction for the injury caused by that act insofar
as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate mo-
dality.
3. Satisfaction shall not be out of proportion to the injury and may not
take a form humiliating to the responsible State.128
However, in the practice of states and tribunals, integral reparation is not considered
an appropriate remedy for cases of illicit expropriations, given the difficulty of execution
and that to require the cancellation of an expropriation or other form of restoring the
status quo ante would interfere with the respondent state, because it will require that the
state cancel its act of expropriation or regulatory measure.129
If restitution is impossible, the Chorzow Factory case and the CIL draft require an
indemnity, or payment of the sum corresponding to the value of the restitution. This
sum includes the damnum emergens and the lucrum cessans, because the Chorzow Factory case
requires that the victim of the wrongful act be placed in his economic position at the time
of the rendering of the award as if the wrongful act had not occurred. By comparison,
the compensation in the case of a licit expropriation is calculated based on the fair market
value of the property at the moment immediately before its appropriation.130
Conclusions
The central question this study poses is whether the government of a host country of
a foreign investment is liable to the investor if such government cancels the investment.
The first step in answering this question is to determine if the cancellation was done
in the exercise by the state of its jure imperii or jure gestionis. Afterwards, the applicable law
should be determined: if it is the internal law of any country or international law. The de-
termination of the applicable law would depend on the forum, the choice of the parties,
BIT provisions, the norms of private international law, the applicable rules of arbitration,
and the circumstances of the contract and the arbitration.
128 International Law Commission, Project on Responsibility of States for Internationally Wrongful Acts.
129 Iruretagoiena Agirrezabalaga, op. cit., pp. 473-474; Blackaby and Camargo Garcia, op. cit., p. 181.
130 See the discussion by Sabahi about the distinction between licit expropriation and an illicit expropriation or
other illicit act in op. cit., p. 99.

Cristina A. Montes
If the internal law of a country is applicable, and the cancellation was done in exer-
cise of jure imperii, state immunity applies, except if the internal laws regarding expropria-
tion are violated. Nevertheless, the investor may obtain compensation or indemnity under
international law if the cancelation was done in the exercise of jure imperii. If the cancella-
tion was done in the exercise of jure gestionis, the immunity of the state will not apply and
the any of the norms of contract law, such as the examples surveyed above, will apply.
If international law is applicable, it should be determined whether the cancelation

is an expropriation or regulatory measure and, if it is a regulatory measure, if theres a
violation of a norm of international law. For this determination, the provisions of the
applicable BIT, the foreign investment contract (to determine, for example, if there is a
stabilization clause or other clauses which can be sources of legitimate expectations for
the investor), the principles discussed above, the internal laws of the host country, and the
circumstances of the cancellation. The host country will be obliged to pay a compensa-
tion, in the case of licit expropriation, or restitution, in the case of an illicit expropriation
or a regulatory measure which violates a norm of international law.
These are general principles. It should be remembered that BITs have their own
norms that apply in particular cases.
The application of the norms applicable to cancellations of foreign investment con-

tracts seek to balance the sovereign prerogatives of host countries with the rights of inves-
tors as private contracting parties. A balance between the social and private aspects of
property is also sought. This can be seen especially in the norms on expropriation, which
are the product of the dynamic between sovereignty and private rights, between the two
aspects of property.131
Although the interests of host countries and investors may conflict with each other, in
reality both interests are interrelated. While in the past many countries were reluctant to
receive foreign investments, the increase of BITs in recent years including BITs signed
by developing countries and countries which previously were under socialist regimes re-
flects a general tendency towards attempts to attract foreign investors, and can be inter-
preted as a consensus on the need for legal security regarding such investments.132
On the other hand, in spite of the benefits which foreign investments bring to host
countries, the protection of the rights of foreign investors may imply real threats to public
health, the environment, public morality, or human rights. The norms regarding regula-
tory measures address the need for a state to prioritize, in some occasions, the protec-
tion of the common good over its obligations to foreign investors. It is not clear if these
norms are sufficient to reach the perfect balance among the interests of states. In fact,
Rey Vallejo recommends other measures, in addition, to assure that the recognition of
the rights of foreign investors does not conflict with the protection of human rights133. He
recommends the inclusion in BITs of clauses obliging investors to comply with minimum
131 See Iruretagoiena Agirrezabalaga, op. cit., pp. 66-64.
132 Paulsson, Arbitration without Privity, op. cit., p. 255.
133 Rey Vallejo, op. cit., p. 21.
78 The IBP Journal

standards of respect for human rights in the development of their activities; the retention
by national or international tribunals of jurisdiction over human rights matters rather
than transferring such jurisdiction to arbitral tribunals; and the consideration, in the de-
termination of compensation, of states obligations to regulate certain economic activities
to address certain basic needs of the population; among others.
Nevertheless, the same author advises that enforcing the compliance with obligations
in the matter of human rights cannot allow states to freely and repeatedly ignore their
commitments to foreign investors.134 As discussed earlier, the principle of good faith is
one of the indicators of the legitimacy of a regulatory measure. At the same time, the
principle of good faith in contractual relations, as a general principle in the majority of
juridical systems, remains relevant to the new problems of the age of globalization, and
maintains its importance in agreements between host countries and investors, as in agree-
ments between private contracting parties and between states.135
134 Op. cit., p. 18.

135 See Manrique Nieto, Carlos, La Moderna Concepcin de la Buena Fe Objetiva como Regla Universal Para
Los Contratos, Revista de Derecho Privado, No. 38, pp. 27-37, 1-6. Manrique Nieto shows how the principle of
good faith is common in many juridical systems, expounds on the content of the principle of good faith in the
context of contracts, and argues that the principle of good faith has an equalizing function in the globalized
environment. See also OConnor, J.F., Good Faith in International Law, Dartmouth Publishing Company, Lt.d, UK,
1991. In the Draft Common Frame of Reference published in 2009, good faith and fair dealing was fixed as a
general parameter of correct conduct, see Valpuesta Gastaminza, Eduardo, La Propuesta de Derecho Privado
Unificado de Obligaciones y Contratos para Europa: El Draft Common Frame of Reference, and Libro I.
Disposiciones Generales, en Valpuesta Gastaminza, Eduardo (coord.), Unificacin del Derecho Patrimonial Europeo.
Marco Comn de Referencia y Derecho Espaol, Bosch, Barcelona, 2011, pp. 61-87, and 89-98.

Land Ownership and R
Emmanuel egistration of Title
L. Genciana
Emmanuel L. Genciana*
INTRODUCTION
In the beginning God created the heavens and the earth. It was form-
less and empty. He called the dry ground land, and the gathered waters
He called it seas. and God saw that it was good. Further He said, Let
the land produce vegetation: seed-bearing plants and trees on the land
that bear fruit with seed in it, according to their various kinds. And it
was so. The land produced vegetation: plants bearing seed according
to their kinds and trees bearing fruit with seed in it according to their
kinds. And God saw that it was good. (From the book of Genesis).
Land is the portion of the earth which is not covered by water or may refer to as the
mass of soil that rise above the sea level. It is a place where we live and carry-out our
activities, as it is the essence of life on this beautiful planet. However, history is replete
with conflicts and disputes arising from land resources. Wars have been waged to acquire
properties and new frontiers, changing geographical positions to expand the sphere of
influence equated with power. Tension escalates to protect and maintain the territorial
integrity of a nation which could be devoured by mighty ones. Family feuds intensify
and within family circles we witness the struggles of brothers against brothers, or siblings
against their parents to gain a property which they could never bring to where they are
going.
The conflict among persons claiming lands and the desire to perfect their ownership
thereon illustrate the grave importance of this resources. This is the only commodity
which does not depreciate, rather, it appreciates at a sky-rocketing pace. With the con-
tinuing burst of population especially in urban areas, there is no way for the value of
land to go down. The land area is constant and fixed while population and the demand
for this resources continue to increase as fueled by commercial activities. All these factors
will pressure the prices to an astronomical height, a natural phenomena in the science of
economics affirming the principle of supply and demand.
However, land alone is not the asset that will ignite economic progress. Land must
have a title to be an agent of social development. Note that no project or structure can
ever rise on a piece of land without a survey plan and its corresponding certificate of
title. Ownership must be established and its boundaries determined before any project
can jumpstart from its drawing board. Thus, title is equally important without which
land could never be productive and may remain idle. This could be the reason we see
idle lands amidst mountain of progress. It may have strategic location, nonetheless when
problem or conflict of ownership is present it would be difficult to use this resources.
Such conflict must be resolved first before the same could be utilized to become a produc-
tive economic tool and a sources of progress.
* The Contributor is lawyer, in the government service working with the Land Management Bureau of the
DENR (formerly the Bureau of Lands).
80 The IBP Journal

Land Ownership and Registration of Title
We may notice that in all Government permits, licenses and other regulatory con-
cessions and issuances have definite duration of effectivity or a date on which the same
expire. It is only the certificate of title of lands that has none. Once issued, it becomes
indefeasible after the lapse of a certain period of time and may no longer be questioned.
Its force and effect extend beyond the lifetime of the owner and may be transferred only
by an appropriate mode authorized by law. This is the reason issuance of land title is not
a simple process and could be complicated if there are other claimants who will put their
life at stake to gain a space or a piece of this property that never depreciates.
And so, as we witness claimants struggling for possession and gathering evidence of
ownership, we realized the importance of this property bequeathed to us from our fore-
fathers. It may not have the glitter of a jewel yet the price could soar to an astonishing
height where only the rich could afford. An interesting phenomena in the sphere of social
economics which we are bound to accept. Yes, no one could ever bring this property to a
place where he will end-up, but the heirs who will be left behind will continue the struggle
if they could not be provided with a clear perspective and understanding of land own-
ership and registration of title.
GENERAL PROVISIONS:
OWNERSHIP DEFINED:
WHAT ARE THE RIGHTS OF AN OWNER ?
In general, ownership is the legal right to possess a property and can be exercised over things or
rights. Article 426 of the Civil Code states the rights of an owner :
1. Right to Enjoy the property

- Right to possess
- Right to use
- Right to the fruits
i. Natural fruits ( product of soil )

ii. Industrial fruits (produced by labor)
iii. Civil fruits (rents or leases)
2. Right to Dispose ( example: the right to sell or donate)

3. Right to Recover ( example: the right to file legal action if somebody is un-
lawfully possessing it).
The foregoing rights of ownership are not absolute. There are limitations imposed by
law, the State or the giver. ( example: with taxation and the eminent domain powers of the
State, land could confiscated as when taxes are not paid or when it is needed for public
purpose, but always with due process and compensation.)
HOW IS OWNERSHIP ACQUIRED?
Generally, the modes of acquiring ownership are stated in Art. 712 of the Civil Code

and these are the following :

1. Intellectual Creation (refers to authors, composers, painters and the likes
who have produced their intellectual pieces ).
2. Occupation (seizure, capturing or mere getting things that are not owned
by anyone. Ex. Catching fish in the water; capturing wild animals in the
forest. Note: this will not apply to land because of the principle of Re-
galian doctrine or presumption that all the land is owned by the State).
3. Sale.
4. Donation.
5. Inheritance or the legal succession.
Note that registration is not a mode of acquiring ownership but rather it confirms
the fact of its existence with notice to the world at large. Ownership has a different con-
cept from registration, hence, the one who applies for registration should be the owner
or presumed to be the owner and has interest over the property. In the case of the heirs
of Clement Ermac vs. heirs of Vicente Ermac, G.R. No.149679 May 30, 2003, the Supreme
Court pronounced that ownership should not be confused with a Certificate of Title.Registering land under
the Torrens System does not create or vest title, because registration is not a mode of acquiring ownership.
To illustrate, if one is not really the owner but merely succeeded in fraudulently registering the property
he will not become its owner considering that registration is not a mode of acquiring ownership. He should
first acquire ownership through the proper modes provided by law, such as sale as stated above, before he
should act to register the land. Hence, the proper sequence is to acquire the property first or have a legitimate
or registrable claim before a person could act to register the title over the land. It could not be the other way
as registration will not vest ownership to the one who is not really the owner of the property.
REGALIAN DOCTRINE DEFINED
The Regalian Doctrine is enshrined in our Constitution particularly Section 2 of Article XII which
states that all lands of the public domain, waters, minerals x x x and other natural resources are owned
by the State. With the exception of agricultural lands all other natural resources shall not be alienated. x
x x. Meaning, there is a presumption that when a land has no title it is a public land owned by the State
and not a private property of any individual. The one in possession is a mere claimant who must file ap-
plication for patent to acquire a title if he has all the qualification and none of the disqualification provided
by law. Therefore, the one who claims to be the owner must prove that the State has granted him a right
or a title over the property and if he cannot prove the existence of a grant or patent, then the presumption
applies that it is a public land.
CLASSIFICATION OF LANDS
Our Constitution, (Section 3, Article XII) classified land, into four main classifica-
tions namely:
a) Agricultural lands
b) Forest of timber lands
c) Mineral lands
d) National park
82 The IBP Journal

Of the four, only agricultural land can be a subject of disposition, meaning, only
agricultural land can be disposed to private individual and be a subject of titling process.
Hence, no valid title can be issued to forest land, mineral or National park and any title
within these areas are null and void ab initio.
Land is also classified according to ownership, to wit:
1. Private properties- those which are titled or registered to private individuals,

corporation or association ;
2. Public lands- those which have not been titled but released as A & D (alienable
and disposable) lands as well as those of public dominion or outside the com-
merce of man such as road, public plaza, and rivers. Any title issued over areas
of public dominion shall be void and will be subjected to cancellation or rever-
sion proceedings.
REGISTRATION OF TITLE
REGISTRATION AND ITS PURPOSE
Registration means the entry made in the book of registry that records permanently
the rights of ownership or other interest over a parcel of land. This includes cancellation
and annotation of such right over the property
In our system, we have the original and the subsequent registration. Original registra-
tion takes place when title to the land is made public record for the first time in the name
of its lawful owner, resulting to the issuance of OCT/ Original Certificate of Title. On
the other hand, subsequent registration takes place when a deed/instrument or whatever
document affecting the land is made of public record after the original registration. The
act of transferring the title will result to the issuance of TCT/ Transfer Certificate of
Title. while registration of other documents such as mortgage will result to annotation in
the Memorandum of Encumbrances attached therein.
WHAT ARE THE MODES OF REGISTRATION?

HOW CAN ONE ACQUIRE A CERTIFICATE OF TITLE ?
Presidential Decree 1529 dated June 11, 1978 codified the laws relative to registra-
tion of property and it superseded Act 496 or the Land Registration Act which was ap-
proved on November 6, 1902. Section 14 of PD 1529 stated those who are qualified to
register land to wit:
Section 14. Who may apply. The following persons may file in the proper Court of
First Instance 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 lands of the public domain under a bona fide claim of ownership
since June 12, 1945, or earlier.

(2) Those who have acquired ownership of private lands by prescription under the
provision of existing laws.
(3) Those who have acquired ownership of private lands or abandoned river beds by
right of accession or accretion under the existing laws.
(4) Those who have acquired ownership of land in any other manner provided for by
law.
This is the judicial mode which is voluntary/original registration when no title has yet
been issued over a parcel of land. Under this proceedings the claimant files petition for
registration in proper Court that has jurisdiction. After hearing, when the Court deemed
it proper, it will issue an order for the LRA (Land Registration Authority) to cause the issu-
ance of a decree of registration and its corresponding number, which will be transmitted
to, and registered with the Register of Deeds where the land is located and be the basis
for the issuance of an Original Certificate of Title (OCT).
There is also the involuntary registration or cadastral proceedings pursuant to Ca-

dastral Act or Act 2259, wherein the Government through the OSG (Office of Solicitor
General) initiates/institute registration proceedings by filing petition against the holders,
claimants, possessors or occupants of such lands to be settled and adjudicated with title.
Private claimants will have to file their respective answers, or else the land will be declared
as public lands.
On the other hand, there is another mode of registration which is the administrative
proceedings by which the claimant files an appropriate application for patent (e.g. home-
stead, free patent or sales patent) in the Administrative body, the DENR. After investiga-
tion and compliance of all requirements, the patent shall be issued by the DENR and
will be transmitted/registered with the Register of Deeds concerned in accordance with
Section 103 of PD 1529. Thus, this patent shall become the basis for the issuance of the
Original Certificate of Title. The said Section states:
Section 103. Certificates of title pursuant to patents. When-

ever public land is by the Government alienated, granted or conveyed
to any person, the same shall be brought forthwith under the operation
of this Decree. It shall be the duty of the official issuing the instrument
of alienation, grant, patent or conveyance in behalf of the Government
to cause such instrument to be filed with the Register of Deeds of the
province or city where the land lies, and to be there registered like other
deeds and conveyance, whereupon a certificate of title shall be entered as
in other cases of registered land, and an owners duplicate issued to the
grantee x x x x x x x.
In both instances, whether judicial or administrative, the land becomes a private

property upon registration of the patent or decree and the issuance of the Original Cer-
tificate of Title by the Register of Deeds. It is this act of registration that shall be the
operative act to affect and convey the land from the mass of public lands and into the
classification of the private properties. Upon expiration of the term of one year the title
issued becomes incontrovertible or indefeasible (Republic vs. Benjamin Guerrero G.R.
No. 133168 , March 28, 2006). Also, the same can no longer be acquired by prescription
as provide by Section 47 of PD 1529 which provides:
84 The IBP Journal

Section 47. Registered land not subject to prescriptions. No title to registered

land in derogation of the title of the registered owner shall be acquired
by prescription or adverse possession.
MODES OF REGISTRATION
OR TITLING PROCESS
( Under P.D. 1529)
Judicial Proceedings
DECREE
File COURT OF
Petition REGISTRATION
Register
Of
Deeds
Administrative Proceedings
File DENR PATENT

Application
MEANING OF TITLE:

A title refers to the legal right to own or possess a property, while the certificate of title
is the document or the evidence which confers or confirms the existence of such right of
ownership. The certificate of title expressly states the name of the owner or owners of
the land, and the same could be an individual, an association or a corporation which has
juridical personality with rights to own or possess a property. Therefore, it is the certificate
of title that can be faked, spuriously produced or irregularly issued and not the title itself.
In the strict sense of the term, therefore, there is no fake title but spurious or faked cer-
tificate of title, if the same did not emanate from a source authorized by law.
Also stated in the document called the certificate of title is the technical description of
the land which accurately describes the property, where it is located as well as its boundar-
ies. It has a tie-line connecting the property from a known or established point such as a
municipal boundary monument and this determines where the property is situated. With
the accurate area and the metes and bounds stated in the title, it would be more easy to
ascertain the exact location of the property.
Another important part of the certificate of title is the Memorandum of Encum-

brances where all transactions affecting the property are annotated or entered therein . It
may include mortgages, leases or cancellation thereof. It is a principle of the Torrens Sys-
tem that where a contract affecting a property is not annotated in the title it will not bind
a third person. Thus, even if the land is already mortgaged to another person but such
mortgaged was not registered in the Registered of Deeds and there is no annotation in the

title, it will not be binding and may not be honored by a third person or by a new owner.
This simply means that a third person who has no knowledge of such mortgage has no
obligation to honor the same if it was not annotated in the title. This is the importance
of annotating encumbrances affecting the property.
LAND SURVEY

WHAT IS LAND SURVEYING?
Land surveying is essentially the art and science of accurately measuring and es-
tablishing a map on a particular land on the surface of the earth, as well as gathering
data and information on relative position of points, determining its exact boundaries and
location through the use of the principles in mathematics, geometry,trigonometry and
calculus, among others. This is also known as Geomatics, and may well be considered
as the worlds second-oldest profession, as it dates back to ancient Egypt and Babylon
who developed interest on land information. It is believed that Napoleon Bonaparte was
one of the earlier leaders who made use of this data in 1808 for taxation purposes and ef-
fective governance. Likewise, the surveying instrument has progressively evolved from the
ropes of Egyptians measuring lands where Nile River overflowed, through the develop-
ment of Total Station instrument and the GPS (Global Positioning System) using digital
and satellite technology.
In the Philippines, we have the PRS92 or the Philippine Reference System of 1992
which is a national common coordinate reference system being used for all surveys and
maps which was established pursuant to Executive Order No. 45 dated January 5, 1993.
For a non-technical mind, it may be understood that a particular point on the face of the
earth has its latitude and a longitude and once the distance and bearing from a known
point is determined, the surveyor can find where that particular point or property should
be situated in the projection map. A common coordinate reference system is therefore
necessary to be followed and observed by all practicing surveyors.
WHAT IS CADASTRAL SURVEY?
These are surveys initiated by, and under the control and supervision of the govern-
ment, comprising vast areas of lands such as the whole or portion of a municipality and
consisting of several lots separately claimed by different individuals and may be used for
cadastral proceeding. This could be distinguished from an isolated survey wherein a pri-
vate individual hires a private surveyor to conduct survey but only on a particular lot that
he claims to own. In the conduct of cadastral survey, all isolated surveys earlier approved
and conducted by private surveyors within this area, must be reflected in the cadastral sur-
vey and its map. On the other hand, original survey are those survey on lands that has not
yet been a subject of survey which is usually in a far and remote places. Presently, there
are only few municipalities in the Philippines which have yet to complete cadastral survey.
THE SURVEY OF LAND IS THE INITIAL STEP IN REGISTRATION:
The initial step to acquire a title or bring the property under the regime of Torrens
System is to survey the land. It must have a technical identity and a technical description
before a parcel of land can be registered. One can hire the services of a licensed geodetic
86 The IBP Journal

engineer or a surveyor to conduct the survey the land and have it approved. If techni-
cally correct, accurate and done in conformity with the existing Revised Regulations on
Land Surveys ( DAO No.2007-29) it will be approved by the DENR Regional Office. The
survey is plotted in map of the DENR to determine exactly where the land is situated
or whether it will encroach other surveys. The LRA (Land Registration Authority) has
also the authority to approve survey plans but only on segregation or subdivision of lots
involving titled or private properties. It is only the DENR that has the sole authority and
jurisdiction in the approval of the original surveys.
WHAT ARE THE IMPLICATIONS/

MISCONCEPCIONS OF AN APPROVED SURVEY?
Once the survey plan is approved, it is permanently recorded and all survey records
as well as technical data, will be respected for subsequent and future surveys affecting that
particular area. The survey claimant or the person for whom the survey was made and
approved, is now a step behind in acquiring a title but this should not be considered a title
yet. Hence, if no approval was made for whatever reasons or for some technical defect or
error as when it is inside a timberland, such survey has no value and could not be used for
registration. Hence, when one hires a private surveyor for a job, it is necessary to deter-
mine what the purpose is, as it may be for reference only. However, if it is for registration,
there must be an assurance from the surveyor that the survey will be approved if he has to
collect the complete professional fee
It must be emphasized that land survey is not a title and should not be confused with
certificate of title. It does not follow that the one who successfully acquired approval of
a survey plan in his name will be awarded with title. Approval of survey is conditioned
on correct survey data, accurate computations, compliance with the Survey Manual and
sufficient logistics for the payment of fees. However, there is nothing in the approval of
the survey plan which confirms ownership of the land that it covers;.
Moreover, one should not be misled to believe that if a person or his parents or grand
parents had an approved survey plan in their names, then they are already the owners of
the land. It has a significant weight, however, this is not always the case if we note that the
name stated in the plan only gives the information that it is SURVEYED FOR or AS
PREPARED FOR the person who hired the private surveyor. There is no categorical
pronouncement which we can find in the survey plan that indicates that it is Owned By:
the person for whom such survey was made.
There are requirements for the conduct and approval of survey of unregistered land,
such as the initial inspection or investigation and the issuance of survey authority from
the DENR. However, with sufficient logistics, it is not impossible for someone to hire a
private surveyor and put his name in the plan as Surveyed For or Prepared For him.
Nonetheless, there is no confirmation, validation or even adjudication that the person
named in the survey plan is already the actual owner of the land that it covers. The sur-
veyor does not vouch who the lawful owner is, and he is not in a position to confirm the
same, or make such pronouncement. The surveyor is hired for the job and has to make
the technical research and ground verification. The Survey Authority issued to him by the
DENR does not include the authority to adjudicate claims and conflict in land. Applica-
tion for titling and issuance of a certificate of title is another matter which has a different
and more rigid process and requirements to undergo. Although survey is an important

component of titling process, it is not a mode of registration prescribed under PD 1529.
This is also true in Cadastral Surveys or projects undertaken by the Government,

wherein the name of the claimant for a particular lot is indicated and listed. In a situation
where the owner of the adjacent lot was not present during the actual cadastral survey,
we could expect inconsistencies or boundary error between adjacent owners leading to
disputes. The person listed as claimant constitute weight, however, this is not absolute and
can be disputed when the application for titling is being processed If such application is
protested and after due investigation there was a finding that there is merit in the protest,
it could be decided the other way and against the survey claimant. Thus, it confirms that
survey claim is not absolute and registration proceedings is the one that will result into a
title.
POSSIBLE PROBLEMS REGARDING APPROVED

SURVEY INVOLVING UNREGISTERED LAND
It can be observed that in survey of vast area involving hectares, there are more prob-
ability of problems or conflicts as there might be encroachments wherein survey claim
extends beyond the landholdings of the adjacent owner. If timely discovered, there will
be objections from other claimants who can formally file protest against the approval of
the survey plan on the basis of their actual possession. Even assuming that it is already ap-
proved, the same can be protested and the plan can be amended or canceled on the basis
of an error of where the boundary should be. The surveyor should have indicated in the
plan the contested area if he was duly informed or has actual knowledge of the dispute
when he conducted ground verification. However, if the boundary lines are conformed,
confirmed and accepted by adjacent owners there will be no dispute nor trouble among
neighboring lots.
The worst scenario that could possibly happen is when the plan was already approved
and resulted into issuance of a title before it was discovered to contain boundary error
that prejudiced adjacent owners. It is indeed too late and the survey could no longer be
cancelled nor amended if there is already a title involved. Having an error, there must be
a legal remedy because of the principle that registration is not a mode of acquiring own-
ership. (Heirs of Clement Ermac vs. Heirs of Vicente Ermac, G.R.No.149679). There is
also the principle in our Torrens System that a title cannot be collaterally attacked (Sec-
tion 48, PD 1529). Hence, the legal remedy, is a direct action against the title by way of
annulment/cancellation or reversion proceedings before the proper court.
An action for reconveyance of title is likewise an option if there is an assumption

that the title was regularly and validly processed, but was given to a wrong person who
has no right of ownership. In the case of Lorzano vs. Tabayag, G.R. No. 189647, Feb. 6, 2012,
the Court ruled that an action for reconveyance is a legal and equitable remedy granted to
the rightful landowner, whose land was wrongfully or erroneously registered in the name
of another, to compel the registered owner to transfer or reconvey the land to him. In all
instances, it is only the Court that has the power to cancel or annul a title and the same
must be respected and presumed valid, until it is annulled by the Court..
As against person who has no supporting papers and who has not established posses-
sion and occupation, the holder of the approved survey plan or the person for whom the
88 The IBP Journal

survey was made, may have a better right to claim the lands. However, in a situation where
there is a clear abandonment and another person successfully established occupation and
possession, with considerable improvements introduced in good faith, the outcome of
controversy may not be the same. It could be resolved in favor the actual occupants and
against the survey claimants.

Hence, we can observe that conflicts and disputes will arise when another person
asserts ownership and claims the land which was earlier surveyed to another person. In
seeking valid claim, the applicant must show that there is relationship or continuity of
rights coming from the original survey claimant down to the actual possessor/occupants
who is applying for a title. This could be in a form of waiver, sale or an issue of succession
as when the applicant is the grand child of the survey claimant. If there is none and there
are no documents of transfer in support of the claim, this conflict will be difficult to settle,
more so, when a person has no idea of how he acquired rights or what constitute valid
claim of ownership over unregistered lands.
DISSECTING DISPUTES ON UNREGISTERED LANDS
WHAT ARE LAND DISPUTES?
In a simple term, land dispute arises when two or more individuals are claiming a
single property with their desire to exclude the other claimant/s. It is a controversy over
ownership, possession or preference to apply for a land title. This is different from co-
ownership which arises whenever two or more individuals are considered co-owners of
an undivided portion of a land. However, unlike in co-ownership, parties in land dispute
are determined to dislodge each other and be in sole control and possession of the land
that he claims to own.
But to have a deeper understanding of land dispute, it is necessary to have an idea

of what a valid claim constitute when the land is unregistered. An equation may well be
formulated to be helpful in appreciating the situation wherein a claimant is seeking to
apply for a land title:
Valid Claim = Tax Declaration + Approved Survey Plan + Possession
The foregoing three basic elements of valid claim are not necessarily in that order
and there may be other factors to consider that can affect such claim. When the claimant
who filed the application for titling has all the above elements, he is entitled to registration
and it would be difficult to dispute his right of ownership over the land.
However, problem may arise when the claimant does not have the perfect three ele-
ments, or when another person possess even just one element. A claimant may have a
combination of two elements as he may be in actual possession of the land and has an
approved plan but he will have trouble if the tax declaration is in another person who
likewise claim the same land. There could be a possibility where a person has only an ap-
proved plan while tax declaration and possession are separately in different persons who
would not settle for a compromise. The first one who files an application for administra-
tive titling may be accepted, however, such application cannot be given due course upon
the formal protest of the second claimant who will allege that he has interest over the land

due to his tax declaration or possession of the land.
These combinations of elements are the ingredients which could spark land disputes
and could be complicated with other factors such as the existence of documents like sales,
donations or waiver of rights. Parties may be related by blood coming from the same as-
cendants or ancestors and the land was not properly apportioned to the heirs. There may
be encroachment which is visible, but as to who was responsible is difficult to determine
unless timeline of improvements in affected area is established accurately.
Thus, several considerations must be thoroughly evaluated to determine who has

preferential right over the disputed land or how the same could be settled or allocated in
a just and equitable manner. There shall be investigation wherein records and evidence
of both parties shall be gathered for final evaluation. It may need Solomonic wisdom to
resolve land disputes but time is of the essence for those who are already in their twilight
years hoping to see the title of the land they bitterly fought for. Realizing the need for a
peaceful settlement and for reason to prevail, may come a bit too late.
CONCLUSION:
Existence of dispute is counter productive and must be resolved immediately and

equitably as possible. Otherwise, the land becomes idle and unproductive which may lead
to other disputes often personal and violent that could result to loss of property and even
life. The controversy may spread to families and be carried over to succeeding generations
which could no longer be controlled as fuelled by irrational pride. This is the harsh con-
sequence and reality of the land disputes which should have been avoided at the outset or
settled peacefully by the parties themselves, had they been given proper and judicious ad-
vise. While, ignorantia legis neminem excusat (ignorance of the law excuses no one) however,
a person enlightened on this subject matter may save himself from the inconvenience of
controversy that entails claiming of property and perfecting ownership.
A deeper understanding of land ownership and registration of title therefore,

is an indispensable tool for which we could offer solution to untangle land disputes and
provide lasting peace among the contesting parties. Only by attaining such peace can we
find the true value of land and harness optimum utilization of this God-given resources.
90 The IBP Journal

Perspective on the Norm-Creating Process in the Relation of States
Perspective on the Norm-Creating
Process in the Relations of States
Merlin M. Magallona*
I. A Preface
The methods and related problems involved in the creation of norms of law are rare-
ly, if at all, treated separately from the other aspects of sources of law in the international
sphere. Rather, the traditional concern as part of practice is focused on the application of
rules, in particular as this entails the analysis of their textual composition. In other words,
it is devoted to the application of the product of norm-creation.
Left out of emphasis are the processes or methods by which principles or norms of
law come into being or assume normative character by which they embody rights and
obligations. Virtually, in every case where the application of customary international law,
for example, is at issue there arises the need to show evidence of that source of law in
terms of the process by which it came into being. This means that its applicability as a
source of law is inextricably intertwined with the process of its formation.
This survey also attempts to demonstrate how diplomacy may be involved in the
process of norm-formation, or how some forms of diplomacy may by themselves become
operative as legal norms or principles of law. The focus of discussion here is the shift of
diplomacy to multilateral setting as a process of negotiation in the creation of interna-
tional convention as a source of law. This context has acquired vital importance in the
light of the general prohibition against the threat or use of force under contemporary
international law and reliance on diplomacy involved in settlement of international dis-
putes through peaceful means.
Human condition has grown in dilemmas and crises and, accordingly, the dimension
of legal processes has expanded together with the qualitative content of negotiations in
diplomacy. The expansive concern of law in the international community brings the ne-
cessity of scientific knowledge in the complex issues involved in international negotiations
not only between states but between individual states, on one hand, and the international
community, on the other.
II. Sources of Law in General
How do we identify that a rule or standard of behavior has the binding force of law
in that it creates an obligation or a demand as a matter of right. In brief, this gives rise to
the concept of the source of law. One formalized means of approaching this problem
is reference to Article 38(1) of the Statute of International Court of Justice (ICJ). This
provision stipulates the duty of the Court to decide in accordance with international law
such disputes as are submitted to it by applying:
* Professorial Lecturer and Former Dean and Professor of Law, University of the Philippines College of Law;
Professor, San Beda Graduate School of law; Chair, Department of International and Human Rights Law,
Philippine Judicial Academy, Supreme Court.

Merlin M. Magallona
a. international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
For the present discussion, we deal with international custom and international con-
vention as the principal sources of law. Note that these sources are referred to as inter-
national law. These sources may be interpreted in the following way:
They are in the first place norm-creating processes, at the same time they
result in the creation of customary law and conventional or treaty law.
These norm-creating processes are integral to the nature of customary law and of
conventional law, in the sense that their character as sources of law is inherently derived
from their respective methods of creation. If constituted by any other method they are
anything but sources of law.
But are these sources of law regarded as such outside the jurisdiction of the ICJ?
Are they characterized as sources of law in the international community as a whole? In
response, there is need to emphasize the fact that the ICJ Statute is a multilateral treaty or
convention, the States Parties to which consists of the entire membership of the United
Nations of 193 States. The ICJ Statute itself in Article 93 provides that all members of
the UN are ipso facto parties to the Statute. Hence the ICJ Statute, particularly its Article
38, represents the will of the international community in identifying the sources of law.
What are sources of law governing inter-state relations pertain to a closed legal re-
gime, in the sense that no rules are so characterized other than those normatively em-
bodied in Article 38(1) of the ICJ Statute. As a consequence, international law is virtually
defined as such rules as are created through the processes involved in the making of
customary law and of conventional rule, taking into account the general principles of law
in addition.
The foregoing presentation may explain the principle that consent is the foundation
of the norm-creating processes of law in inter-state relations. As formulated by the Per-
manent Court of International Justice (PCIJ), the predecessor of the ICJ,
International law governs relations between independent States. The

rules of law binding upon States therefore emanate from their own free
will as expressed in conventions or by usages generally accepted as ex-
pressing principles of law and established in order to regulate the rela-
tions between those co-existing independent communities or with a view
to the achievement of common aims.1
It may be instructive for the understanding of the norm-creating process involved in

the nature of sources of law to identify the distinction between the formal sources from
the material sources in the internal structure of the source of law. Salmond has pointed
out that The material sources supply the substance of the rule to which the formal
1 PCIJ Reports, Ser. A, No. 10, 1927, p. 18.
92 The IBP Journal

sources give the force and nature of law.2
Brownlie marks this distinction by explaining that
.[formal sources] are those legal procedures and methods for the cre-
ation of rules of general application which are legally binding . The
material sources provide the evidence of the existence of rules which,
when proved, have the status of legally-binding rules of general applica-
tion.3
III. Customary Law
Norms of customary international law in principle are binding upon all states, pro-
vided that their creation is engaged in two elements, namely: (1) the objective element of
general practice in such a manner that shows acceptance as law which is (2) the subjective
element (opinion juris).
These elements of customary law, according to the ICJ, must be both extensive
and virtually uniform. It considers general practice as constant and uniform usage by
States.4
Combining these two elements, the ICJ has stressed that
Not only must the acts amount to a settled practice, but they must also be
such, or be carried out in such a way as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring
it The States concerned must therefore feel that they are conforming
to what amounts to a legal obligation. The frequency or even habitual
character of the acts [of State practice] is not in itself enough.5
To emphasize the legal status of opinion juris as an element of customary law, the ICJ
strikes its distinction from usages even if established by years of practice but, as described
by the ICJ, motivated only by considerations of courtesy, convenience or tradition, and
not by sense of legal duty, as in the field of ceremonial and protocol.6
Coming back to Article 38(1) of the ICJ Statute, it deserves emphasis that the norms
of customary law are binding on all states; whereas, treaty rules bind only the states that
are parties to the treaty or convention. Since the general practice of states accepted as
law is evidenced by customary norm, it is assumed that only generality of states, not una-
nimity, provides the basis of the legal status of such a norm as binding on all states. This
means the binding force of customary norm includes the dissenting states. As expressed
by one expert opinion,
2 Jurisprudence, 6th ed., 1924, para. 44.

3 Principles of International Law, 5th ed., 1998, pp. 1-2.
4 North Sea Continental Shelf Cases, ICJ Reports, 1969, p. 74; Asylum Case, ICJ Reports, 1950, p. 176.
5 North Sea Continental Shelf Cases, ICJ Reports, 1969, para. 77.]
6 North Sea Continental Shelf Cases, ICJ Reports, 1969, para. 77.)

Merlin M. Magallona
.[customary international law] is dependent not upon unanimity, but

only upon generality of will. The dissentient minority of States are as
much bound by the formulated rule as those who actively participated in
its creation, the source of their obligation residing in the moral necessity
which underlies observance of law.7
Just the same, this phenomenon puts to doubt the basic premise in the formation of
customary international law to the effect that it is consensual in nature or that it draws
its binding force from the free will of states, as articulated by the PCIJ above. But even as
the dissenting States may find disagreement in the material source of customary norm,
they may be in conformity with the formal source, i.e., in the method of its creations.
However, there is the difficulty of identifying one from the other, considering that the
formal source is so intertwined with the material source, in such a way that each of these
elements may appear to be inseparable from each other in the customary norm.
It would be useful, theoretically and practically, to make reference to the exclusion-

ary rule accepted by the ICJ in the Anglo-Norwegian Fisheries case8. when a state continues
to object to a new customary norm at the time when it was yet in the process of forma-
tion (lex ferenda), its being a persistent objector excludes it from the application of such a
customary norm. By the application of the persistent objector doctrine, the ICJ upholds
Norways claim, thus: In any event, the ten-mile rule [in the delimitation of territorial
waters across bays] would appear to be inapplicable against Norway [as customary rule],
in as much as she has always opposed any attempt to apply it to the Norwegian coast.
For practical purposes, the identification of a customary norm may be less compli-
cated by departing from the traditional method of analysis consisting of dividing a cus-
tomary norm into two elements general practice and opinion juris. Note that the essence
of international custom is simplified in the proposition that it is a juridical expression of
general practice accepted as law. Its normative character lies in its content as an already
declared legal norm, i.e., acts manifested as law: two elements in unity.
IV. Conventional or Treaty Law
In Article 38(1)(a), the ICJ Statute declares as international law or source of law,
international conventions establishing rules expressly recognized by the contesting
states. While this provision pertains in particular to states that are parties to the dispute
submitted to the ICJ, rules in treaties are in principle binding only on states that are
parties, bilateral or multilateral. Treaties do not create rights and duties for non-parties
(third states) without their consent. In this sense, treaties create rules special to the par-
ties.
How are treaty rules created? In the language of PCIJ, they are created by methods
established by customary law as now codified in the Vienna Convention on the Law of
Treaties (VCLT). The general nature as well as the method of creation of rules in treaty
or convention is reflected in the usage of the term treaty under the VCLT: it is an
international agreement between States in written form and governed by international
7 D.J. OConnell, International Law, 2nd ed., 1970, pp. 15-16.
8 ICJ Reports, 1951, pp. 116-131.
94 The IBP Journal

law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.9
The peculiarity of the VCLT is defined by the fact that this Convention is a treaty
governing the creation, operation or application, interpretation, validity, termination or
suspension of treaties. In certain aspects, it deals with the relation of treaty law with cus-
tomary norms. Its innovation is in terms of some progressive development of interna-
tional law, such as in the introduction of the concept of peremptory or jus cogens norms
as ground for invalidity and for termination of treaties.10
V. Selected Problems in Methods and Practice
Even as Article 59 of the ICJ Statute says that The decision of the Court has no
binding force except between the parties and in respect of that particular case, the cre-
ative role of the Court in the development of international law lies in the interpretation
of legal principles applied in that case that gives new orientation or direction to the entire
thrust of practice as well as doctrine of international law. Note, for example, how the ICJ
in the Barcelona Traction case11 has situated international obligations in a new light, paving
the way to a sense of hierarchy of norms in application. The ICJ formulation reads:
An essential distinction should be drawn between the obligation of a

state towards the international community as a whole, and those arising vis-
-vis another State in the field of diplomatic protection. By their very
nature the former are the common concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes.12
The category of obligations erga omnes has branched out into the law of state respon-
sibility; an internationally wrongful act may be committed against the international com-
munity as a whole, resulting in the obligation of the responsible State to compensate for
the damage or injury caused thereby.13 Obligations owed to the international community
as a whole have now been absorbed into the nature of contemporary international legal
regulation; in international law of the environment in fact, it is the core element of obli-
gations of States.
2. Much earlier, in the Lotus case, the PCIJ is confronted with the issue as to whether
Turkeys application of criminal jurisdiction defined in its domestic law is in accordance
with internati4onal law. Turkey claims that there is no rule in international law that pro-
hibits the application of its criminal jurisdiction. On the other hand, France contends
that for Turkey to apply its domestic law, it must show a particular rule of international
law that explicitly allows it. In what has been called the Lotus presumption, the PCIJ
resolves the issue by affirming that Restrictions upon the freedom of States cannot
be presumed. The Court has relied on the principle that the freedom of States prevails
9 See Article 2(1(a).
10 See Arts. 53 and 64.
11 ICJ Reports, 1970, pp.
12 ICJ Reports, 1970, pp. 3, 32. Emphasis added.
13 The Work of the International Law Commission, 6th ed., vol. I, 2004, pp. 327, 379-381.

Merlin M. Magallona
unless limited by rules governing their relations.14 As a ground of invalidity of treaties,

VCLT provides in Article 53 that A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law.15 But what appears to
be impeding the application of this rule is the absence in the VCLT of the identity of
what are the specific general norms categorized as peremptory or jus cogens. However, this
lacunae is intended in the proceedings of the International Law Commission (ILC)
when the Convention was drafted and when it was finally adopted by the diplomatic
conference. The omission of specific identity of peremptory norms expresses a method
employed by the ILC, which the diplomatic conference finally affirmed in adopting the
VCLT.
Which norms in general international law are to be characterized as jus cogens is not
determined by the VCLT in a ready-made fashion by an explicit listing of those norms.
In terms of specific content, jus cogens norms are to be identified by the States themselves
in their actual experience. Thus, it is the intention of the ILC in drafting the Convention
rule on jus cogens to leave the full content of this rule to be worked out in state practice
and in the jurisprudence of international tribunals.
In brief, the ILC is of the mind to leave the identification of jus cogens norms to the
norm-creating processes involved in the dynamics of state relations.
4. Under the Philippine Constitution, the Incorporation Clause in Section 2, Article

II provides the process by which customary international law, referred to as generally
accepted principles of international law, is adopted as part of the law of the land.
This provision entails the internalization into Philippine law of what exists as general
international law binding on all states; more than the existing principles, it comprehends
international custom as a source of law, i.e., as a method of creation of customary norms,
to the extent that the Incorporation Clause should be interpreted as contemplating cus-
tomary norms existing at the time of the effectivity of the Constitution; but it is deemed to
include those resulting from the continuing process of international custom as a method
of creation of norms. Hence, the Incorporation Clause may have a hidden mechanism
of legislating generally accepted principles of international law that is in process of
creation or changing continuously over time.
5. Note that the Incorporation Clause involves the transformation of international

law into domestic law. The transformative process cannot be mechanically performed
because of the qualitative difference between the two systems of legal regimes, in terms,
for example, of subjects of law and the conditionalities of application. Consider that if
applied as domestic law in Philippine jurisdiction, general norms of international law are
subject to constitutional limitations and may be affected by the operation of legislative
enactments.
6. In the application of generally accepted principles of international law as do-

mestic law, is there a need to show that they are categorized as such principles in the inter-
national plane, or they do become such principles by reason merely of their application
14 PCIJ Reports, 1927, Ser. A, No. 10, pp. 15-16.
15 This provision explains peremptory or jus cogens norm as follows: For purposes of this Convention, a peremptory
norm of general international norm is a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international norm having the same character.
96 The IBP Journal

as domestic law? Philippine judicial practice lacks justification as to their legal status in
international community, as a pre-condition to their application as domestic law.
In Agustin vs. Edu,16 the Supreme Court gives a clear impression that it is the entire
Vienna Convention on Road Signs and signals that may be subsumed under the Incor-
poration Clause. There is no reference at all to general principles sought to be applied. In
the first place, are road signs and signals legal principles?
7. In Ichong vs. Hernandez,17 the Supreme Court is of the view that the treaty is
always subject to qualification or amendment by a subsequent law. On the assumption
that the legislative enactment has as its subject-matter a treaty or provision of a treaty, the
legislative act will not affect the treaty, being in principle a legal regime independent of
the Constitution and the laws the moment it has entered into force. An integral part of
the international law of treaties as against the internal law of the State is the rule that A
party [to a treaty] may not invoke the provisions of its internal law as a justification for its
failure to perform a treaty18 The internal law includes the constitution of a State.
V. Diplomacy in the Context of Contemporary International Law
1. In contemporary international legal order, diplomacy as a system of manage-

ment of negotiations and exchanges between states has assumed normative character, in
particular in the light of the outlawry of threat or use of force in the relations of States
and in their obligation to settle international disputes by peaceful means.19 In the settle-
ment of disputes under the UN Charter, forms of diplomacy have acquired prescriptive
nature. Refer, for example, to the dominant status of diplomacy in the following provi-
sion:
The parties to any dispute, the continuance of which is likely to endanger

the maintenance of international peace and security, shall, first of all,
seek a solution by negotiation, inquiry, mediation, conciliation, arbitra-
tion, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.20
Or, take note of Article 283(1) of the UN Convention on the Law of the Sea on obliga-
tion to exchange views:
When a dispute arises between States Parties concerning the interpreta-

tion or application of this Convention, the parties to the dispute shall
proceed expeditiously to an exchange of views regarding its settlement
by negotiation or other peaceful means.
2. Diplomacy in a grand scale takes place within the UN system in the process in-
volved in the progressive development of law and its codification, starting with draft
16 88 SCRA 195 (1979).
17 101 Phil. 1156 (1957).
18 VCLT, Art. 27.
19 See UN Charter, Art. 2(3) and 2(14).
20 See UN Charter, Art. 33(1).

Merlin M. Magallona
convention or multilateral treaties prepared by the International Law Commission (ILC)

the following general flow of work on a draft convention situates diplomacy at the core of
codification or adoption of international law, characterized by general debate, negotia-
tion, bargaining and exchange of views, in every stage:
a. The draft convention is submitted by the ILC to the UN General

Assembly.
b. The General Assembly includes the ILC report in its agenda.
c. State members of the General Assembly may submit comments on
the ILC report.
d. The UN Secretary-General transmits the ILC report to the UN
member states for comments on the ILC draft convention, which
comments are sent to the ILC.
e. The General Assembly assigns the draft convention to its Six Com-
mittee (the Legal Committee) for consideration and recommenda-
tion. The Committee holds a general debate, followed by recom-
mendations submitted to the General Assembly.
f. The Sixth Committee may recommend the holding of a diplomatic
conference, to which the entire UN membership is entitled to be
represented. To be the main material in the conference agenda is
the ILC draft which becomes the subject-matter of general debate,
exchange of views, and negotiations. The debate and exchange
of views open the way to proposals from delegations in terms of
amendments to the ILC draft as well as new materials resulting from
discussions and bargaining in the committee, sub-committee levels
or in the plenary or committee-of-the whole sessions.
g. The diplomatic conference may decide to adopt the final draft con-
vention, as it goes through the conference proceedings, by two-thirds
vote. Before the plenary session a rush of bargaining and negotiation
may ensue among the delegations on the vote for or against the final
draft convention.
These diplomatic proceedings and conferences take place within the frame of Article
13 of the UN Nations Charter which engages the General Assembly to initiate studies
and make recommendations for the purpose of the progressive development of inter-
national law and its codification. Article 13 of the United Nations Charter is the focal
point by which this world organization is turned into a complex law-making institution.
The core mechanism of this enterprise is the International Law Commission (ILC) es-
tablished by the UN General Assembly on 21 November 1947 when its Statute was ap-
proved. Article 1, paragraph 1, of its Statute provides that the Commission shall have
for its object the promotion of the progressive development of international law and its
codification; in Article 15 it makes a distinction between progressive development and
codification; the first means the preparation of draft conventions on subjects which
have not yet been sufficiently developed in the practice of States and the second intends
the more precise formulation and systematization of rules of international law in fields
where there already has been extensive State practice, precedent and doctrine. Under
its article 1, paragraph 2, ILCs Statute says that it shall concern itself primarily with
public international law. For its first Thirty-nine annual sessions, it exclusively devoted
its work to this field. Among the international conventions which originated from the ILC
drafts are the Convention on the Territory Sea and the Contiguous Zone, Convention on
98 The IBP Journal

Fishing and Conservation of the Living Resources of the High Seas, Convention on the
Continental Shelf, Convention on the Reduction of Statelessness, Vienna Convention on
Diplomatic Relations, Vienna Convention on Consular Relations, and the Vienna Con-
vention on the Law of Treaties.

Can the Philippines Learn from Australia?
Ma. Araceli B. Habaradas*
Mediation is arguably enroute to professionalisation in the Philippines with recent

developments expecting to mark a growth in number of ADR professionals offering pri-
vate mediation services to the public. Incidental to the development of a profession are
issues of quality, standards and accountability which can be promoted in mediation
through among others the establishment of guidelines and codes of conduct.1 The essay
will focus on Philippine rules on ethical conduct of mediators, particularly the stand-
ards relating to impartiality, and examine if these rules satisfactorily guide mediator
practice and express essential features of impartiality as a key principle2 in mediation.
I. YOUTH AND EXPERIENCE
The development of codes of conduct is said to be indicative of a growing profes-

sionalisation of mediation practice.3 Mediation is arguably enroute to professionalisa-
tion in the Philippines with the recent approval of accreditation guidelines for alternative
dispute resolution practitioners4 and the preceding Rules on Ethical Conduct of a Me-
diator (PH Rules).5 It can be said that the PH Rules are no different from earlier ethica
codes of conduct in Australia penned in the absence of widespread practial experience in
mediation.6 This gave Australian ethical standards then an abstract and tentative qual-
ity and limited insight into, or guidance for, the actual practice of mediation.7 Media-
tion in Australia has already come a long way8 and various issues relating to the practice
have been resolved during the early years of medation.9
In contrast, with the PH Rules issued only recently10 its usefulness as a guide for ethi-
cal conduct has yet to be tested until private mediators are accredited and start offering
* Accredited as Associate Mediator of the Singapore Mediation Centre and an Associate Member of LEADR-
Association of Dispute Resolvers; accredited under Australias National Accreditation System for mediators;
LL.M, Columbia University; Master of Dispute Resolution, University of New South Wales; Awardee for
Excellence on Mediation, Managing Workplace Conflict and Change and Facilitation.
1 Laurence Boulle, Mediation: Principles, Process, Practice (Lexis Nexis Butterworths, 3rd ed, 2011) 456 [12.1].
2 Ibid 77 [3.32].
3 Ibid 466 [12.14].
4 Adopting Accreditation Guidelines for Alternative Dispute Resolution Provider Organizations and Training
Standards for Alternative Dispute Resolution Practitioners (Philippines) Department of Justice Circular No.
049.
5 In Implementing Rules and Regulations of the Alternative Dispute Resolution Act of 2004 (Philippines)
6 Department of Justice Circular No. 98, 4 December 2009, Chapter 3, Rule 3 (PH Rules). Boulle, Mediation:
Principles, above n 1, 467 [12.15].
7 Ibid.
8 Laurence Boulle, Minding the Gaps Reflecting on the Story of Australian Mediation (1999) 11(2) Bond Law
Review 216, 218.
9 Ibid 219.
10 Issued in December 2009 As part of the implementing rules of Republic Act No. 9285 (April 2, 2004), An Act
to Institutionalize the Use of an Alternative Dispute Resolution System in the Philippines and to Establish the
Office for Alternative Dispute Resolution, and for other purposes.
100 The IBP Journal

their services to the public.11 Until Philippine mediation experience becomes richer, a look
at more developed standards for mediator conduct that have benefitted from extensive
practice experience12 can prove useful when examining the infantile and untested PH
Rules.
II. ETHICAL STANDARDS AND MEDIATION
Field maintains that ethical standards are critical to the legitimacy of mediation as
an appropriate, additional dispute resolution process13 while Cooks and Hale assert that
ethical considerations raise important questions not only about mediator responsibility
but also about the meaning of mediation.14
Ethical standards of conduct are established to among others guide practitioners in

developing a sense of basic commitments and professional responsibilities.15 Various me-
diator standards of conduct echo this by specifying their purpose to assist and guide medi-
ator conduct16 and specify practice and competency requirements for mediators.17 This
purpose articulates the enabling function18 of codes of ethics, i.e., provide a compass
to allow mediators make more informed choices19 especially when experiencing anxiety
or confusion when they encounter novel situations in their practice.20 This purpose also
embodies the educational role21 a code of conduct can fulfill, i.e., to demonstrate how
ethical standards can be helpful in dealing with ethical problems associated with media-
tion.22 Also entrenched in this purpose is the ethical guidelines function to advance the
values that define a mediators role and to express essential features of what the profes-
sion really is.23 In mediation, one of these essential features is impartiality,24 which is a
11 Note that mediation has been practised in the Philippines many years earlier through committees of ediators
in villages or barangays. (Joel Lee, Teh Hwee Hwee (eds) The Asian Perspective on Mediation (Academy
Publishing, 2009) 5-6[1.4]) However, the accreditation of mediators as private ADR providers is only a recent
development. (See above n 10)
12 Ibid.
13 Rachel Field, A mediation profession in Australia: An improved framework for mediation ethics (2007) 18
Australasian Dispute Resolution Journal 178.
14 Lela M Cooks, Claudia L Hale, The Construction of Ethics in Mediation (Fall 1994) 12(1) Mediation Quarterly
55, 56.
15 Boulle, Mediation: Principles, above n 1, 466 [12.14]. Other cited purposes for the establishment of standards
of conduct are the promotion of realistic expectations among users of professional services and enhancement
of public confidence in these professional services.
16 The Law Society of New South Wales, Revised Guidelines for Solicitors who act as Mediators (at 29 July
1993) <http://www.lawsociety.com.au> (NSW Guidelines); Law Council of Australia, Ethical Guidelines for
Mediators (at August 2011) <http://www.lawcouncil.asn.au> (Law Council Guidelines).
17 National Mediator Accreditation Standards; Practice Standards (at March 2012) <http://www.msb.org.au/
mediator-standards/standards> (NMAS Standards).
18 Mark S Frankel, Professional Codes: Why, How and with What Impact? (1989) 8(2/3) Journal of Business
Ethics 109, 111.
19 Ibid.
20 Ibid 109.
21 David Spencer and Michael Brogan, Mediation Law and Practice (Cambridge University Press, 2006) 224.
22 Frankel, above n 18.
23 Spencer and Brogan, above n 21 citing Sanders (1993) 214-215.
24 Shyam Kishore, The Evolving Concepts of Neutrality and Impartiality in Mediation (June 2006) 32(2)
Commonwealth Law Bulletin 221, 224. The author labels impartiality as a central element in mediation.

standard component in codes of conduct for mediators.25

Impartiality is viewed a key principle in all forms of mediation26 and one of the
hallmarks of the pure model of mediation.27Astor notes that impartiality has broad
approval from mediators, who would regard it as central to ethical practice.28 It is in the
context of the abovementioned functions of ethical standards29 and the centrality of im-
partiality in mediation practice that the PH Rules will be appreciated and studied.
Literature on mediator impartiality is visited for a deeper understanding what this

central element in mediation30 entails and how impartiality has been constructed by
dispute resolution scholars. Then, reference to existing guidelines or standards of conduct
in Australia referred as more sophisticated instruments after having benefitted from
extensive practical experience of mediation31 will be made to explore if the Philip-
pines can learn from the Australian experience. While there are no national mediator
codes binding on all mediators in Australia,32 various standards of conduct have been
established (collectively referred AU Standards) such as the Practice Standards33 for me-
diators accredited under the National Mediator Accreditation Scheme (NMAS Stand-
ards) and Ethical Guidelines for Mediators34 developed by the Law Council of Australia
(Law Council Guidelines). Professional bodies such as The Law Society of New South
Wales35 and Queensland Law Society36 adopted their standards for mediator conduct
(NSW Guidelines and QLD Standards respectively) while organizations such as The
Institute of Arbitrators & Mediators developed its Principles of Conduct for Mediators37
(IAMA Principles).
III. IMPARTIALITY IN MEDIATOR CONDUCT
Much rhetoric of mediation is based on mediator impartiality and neutrality.38 Many

definitional problems associated with mediation are contingent on the meaning assigned
25 Spencer and Brogan, above n 21, 220. Among the other standard components cited are confidentiality, fairness,
bias and conflicts of interest.
26 Boulle, Mediation: Principles, above n 1, 77 [3.32].
27 27 Russell Thirgood, Mediator Intervention to Ensure Fair and Just Outcomes (1999) 10 Australasian Dispute
Resolution Journal 142, 105.
28 Hilary Astor, Rethinking Neutrality: A Theory to Inform Practice Part I (2000) 11 Australasian Dispute
Resolution Journal 73, 77.
29 Despite differences in nomenclatures, ethical codes of conduct, guidelines, standards and professional
standards will be treated the same in this essay.
30 Kishore, above n 24, 224.
32 Ibid [12.14-12.16].
33 See above n 17.
34 See above n 16.
35 See above n 16.
36 Queensland Law Society, Standards of Conduct for Solicitor Mediators (at 23 September 1998) <www.qls.com.
au> (QLD Standards)
37 The Institute of Arbitrators & Mediators, Principles of Conduct for Mediators (at 6 February 2003) <www.
iama.org.au> (IAMA Principles)
38 Bobette Wolski, Mediator Settlement Strategies: Winning Friends and Influencing People (2001) 12
Australasian Dispute Resolution Journal 248.
102 The IBP Journal

to impartiality and neutrality, both deemed imprecise and multi-dimensional.39 Im-

precision and multi-dimensionality manifest in how some use impartiality and neutrality
synonymously,40 some include the former into the latter, and others plainly distinguish the
two concepts.41 The concept of impartiality is not only found to be difficult to define but
even more difficult to maintain.42 Different impartiality notions can be viewed from the
perspective of bias manifestation (process and outcome impartiality43) or from the lens
identifying sources of bias or risks to impartiality.
The preservation of impartiality in the mediation process is an oft-cited ethical di-

lemma encountered by mediators44 with questions arising as to what is necessary to
maintain both the appearance and fact of impartiality45 both basic problem areas
for mediators.46 Maintaining impartiality is also cited as one of the mediation practice
areas having ethical implications.47 Do the PH Rules properly guide the mediator to
conduct mediation with impartiality? Do the PH Rules sufficiently articulate the different
notions of impartiality with respect to process and outcome as well as sources and risks?
Can wisdom be drawn from counterpart AU Standards?
39 Wolski, above n 38, 249.

40 Susan Douglas, Constructions of neutrality in mediation (2012) 23 Australasian Dispute Resolution Journal
80, 82; Carol Izumi, Implicit Bias and the Illusion of Mediator Neutrality (2010) 34 Washington University
Journal of Law and Policy 71, 78.
41 See generally Christopher W Moore, The Mediation Process Practical Strategies for Resolving Conflict
(Jossey-Bass, 3rd revised ed, 2003) 53; Cooks and Hale, above n 14, 62-63.
42 Spencer and Brogan, above n 21, 195 citing Wolski, Legal Skills: A Practical Guide for Students (2006).
43 Borrowed from what William Lucy labels procedural and outcome impartiality (William Lucy, The Possibility
of Impartiality (Spring 2005) 25(1) Oxford Journal of Legal Studies 3, 7-8). In his essay on impartiality in
adjudication Lucy discusses that in some contexts impartiality might be expected not only of the process
through which decisions are produed, but also of the outcomes of those decisions.
44 Robert A Baruch-Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy
Implications (1994) 1994(1) Journal of Dispute Resolution 1, 9.
45 Ibid (emphasis added).
46 Baruch-Bush, above n 44, 9.
47 National Alternative Dispute Resolution Advisory Council, A Framework for ADR Standards (2001) 110- 113.

IV. BIAS MANIFESTATION; PROCESS/OUTCOME IMPARTIALITY
Mediator impartiality must be perceived in relation to the outcome and in relation

to the process.48 It invokes a stance against bias49 in favor of a mediating party (party
impartiality) or an outcome (outcome impartiality).
A. Process/party impartiality
Moore defines impartiality as the absence of bias or preference in favor of one or

more negotiators, their interests, or the specific solutions that they are advocating50 while
Boulle treats impartiality as one of the senses of the neutrality concept51 and proposes
that a mediator is neutral in the impartiality sense when process is conducted fairly, even-
handedly and without bias toward either mediating party.52 Mediators must not cham-
pion one side or the other in a dispute53 and not see their job as trying to promote one
person or groups interests at the expense of another.54 Fairness and even-handedness in
process is demanded.
Cooks and Hale define impartiality as freedom from favouritism or bias in either
word or action55 while Astor (using impartiality interchangeably with neutrality) describes
it as when the mediator is not partisan and that she or he will treat the parties equally,
not favouring one over the other.56 Both reinforce the stance that impartiality is predomi-
nantly behavioural in nature57 and that the mediators fairness, even-handedness and
objectivity as between the parties is seen to be so by the parties.58 Contingent on this
perception of fair treatment by the mediator is the development of trust and confidence
of the parties in the mediator.59
To emphasize the importance of perception of impartiality, suggestions are made

that mediators allow each party adequate opportunity to speak, approximate equality of
attention, consistent application of ground rules and no overt displays of favouritism to

49 Douglas, above n 40, 82.
50 Moore, above n 41, 53. See also Wolski above n 38, 249.
51 Boulle, Mediation: Principles, above n 1, 73[3.28]. The two other senses are disinterestedness and
independence. See nn 123 and 129 and accompanying text.
52 Ibid.
53 Lucy, above n 43, 12.
54 Bernard S Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 2004) 85.
55 Cooks and Hale, above n 14, 62-63 (emphasis added). Cooks and Hale treat neutrality as a lack of prior
relationship with the parties, or vested interest in an outcome. See also Kishore, above n 24, 223.
56 Hilary Astor, Mediator Neutrality: Making Sense of Theory and Practice (2007) 16(2) Social & Legal Studies
221, 223.
57 As compared to disinterestedness a predominantly structural factor and independence a structural and
attitudinal factor (p73[3.28])
58 Boulle, Mediation: Principles, above n 1, 77[3.32].
59 Paula M Young, Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buss
Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances
Filed Against Florida Mediators (2011) 11 Pepperdine Dispute Resolution Law Journal 309; Kishore, above n
24, 223.
104 The IBP Journal

any side.60 Even more specific behavior of even-handedness is prescribed to maintain the
appearance of impartiality such as addressing parties in a similar manner and perform-
ing equal non-verbals.61
Impartiality demands can however give rise to a dilemma62: equal treatment of par-
ties may result to unfair results63 or inequality of outcome64. If parties have an unequal
relationship (e.g., power imbalance exists) at the onset of mediation, treating unequal
parties equally results in inequality. 65 It is suggested that treating the parties unequally66
applying bias can resolve the dilemma.67 (See further discussion below)
B. Outcome impartiality
Is it acceptable for the mediator to impose their own opinions on the parties at will,
so long as they impose equally on both?68 Astor poses this question to apparently high-
light the insufficiency of plainly relying on impartiality as absence of favouritism. Bias
may be directed not only at either party but also towards the outcome of mediation.69
The mediator may strive skilfully and carefully to be impartial as be-

tween the parties, but the mediators ideas and approach may influence
both parties, guiding, persuading or influencing them in a direction they
might not themselves have chosen. Further, the mediators approach will
not necessarily influence or benefit both parties equally.70
Even if limited to procedural tasks, mediators can still influence content and out-
come in ways like using process control to subtly direct outcomes according to their own
preferences71 or exerting pressure to reach favored outcomes by selectively creating
opportunities for the parties to pursue these outcomes.72 Clearly, the mediator can wield
power to direct outcome of the process. Impartiality assumes power as an attribute of
the mediator73 and the mediator may exercise this power overtly or subtly.
60 Mary Anne Noone, Lawyers as mediators: More responsibility? (2006) 17 Australasian Dispute Resolution
Journal 96, 98; See also Boulle, Mediation: Principles, above n 1, 77[3.32].
62 Douglas, above n 40, 84-5.
63 Astor, Rethinking Neutrality, above n 28, 77.
64 Douglas, above n 40, 84-5
66 Ibid.
68 Astor, Mediator Neutrality, above n 56, 227.
69 Outcome partiality may be a result of bias in favor of either party (See earlier discussion in Section IV.A) or due
to conflicts or personal preferences (See discussion in Section V below).
70 Astor, Rethinking Neutrality, above n 28, 77. (emphasis in original)
71 Douglas, above n 40, 83 citing Gorrie D, Mediator Neutrality: High Ideal of Sacred Cow? in Fisher L (ed),
Conference Proceedings, Famcon 95 (3rd National Mediation Conference, Sydney, 1995) 34-35.
72 Astor, Mediator Neutrality, above n 56, 225-6.
73 Sara Cobb and Janet Rifkin, Practice and Paradox: Deconstructing Neutrality in Mediation (1991) 16 Law &
Social Inquiry 41, 46.

Impartiality thus likewise calls for conduct of non-intervention as to content and

non-directiveness. The mediator does not influence the content or the outcome of the
mediation74 and limits the task to controlling process and providing a procedural frame-
work within which the parties can decide what their dispute is about and how they wish
to resolve it.75 Mediators have no authority to impose a decision on the parties.76 Out-
come impartiality instead demands a commitment from the mediator to aid all parties,
as opposed to a single party, in reaching a mutually satisfactory agreement.77 Simply
put, impartiality ought to further goal of self-determination. To ensure impartiality in
this sense is maintained, mediators are called to be consistently aware and cautious when
expressing opinions or suggestions and are advised to encourage parties to instead access
independent legal advice before and during the course of mediation.78
The requirement of mediator impartiality as to outcome gives rise to a related is-

sue of dealing with (or avoiding) results that may be unfair,79 unjust or inappropriate.80
Noone notes that the more problematic aspect of impartiality is the fairness of mediated
outcomes.81 Power relationships (or imbalances) are material in the process and as pro-
cess manager the mediator needs to deal with this power element. Impartiality require-
ments and power imbalances give rise to a tension and put mediators in a double bind,
i.e., [d]ealing with power relationships in order to ensure that mediation is fair, and being
neutral, conflict with each other.82 Astor argues that promoting consensual decision-mak-
ing may require the mediator to be partial by intervening if there is an unequal power
relationship between the parties.83
C. PH Rules and AU Standards on process impartiality
The PH Rules are curiously silent with respect to process impartiality. There is no
guiding rule on required impartial conduct except the broad statement that the mediator
shall maintain impartiality.84 General behavioural expectations of procedural impartial-
ity such as fairness, even-handedness or equal treatment of parties, or absence of bias or
favouritism toward either mediating party85 are neither expressed nor suggested in said
rules.
74 Astor, Mediator Neutrality, above n 56, 223. Astor in this article uses impartiality and neutrality interchangeably
to mean the same thing.
75 Ibid.
77 Thirgood, above n 27, 146 (emphasis added); See also Cooks and Hale, above n 14, 63.
79 Boulle notes that implications of impartiality for the fairness of mediated outcomes are problematic and
cites different views on this issue: the orthodox position is that mediators are not responsible for the fairness
of outcomes partly because this would entail that they not treat the parties equally and impartially. (Boulle,
Mediation: Principles, above n 1, 77[3.32])
80 Douglas, above n 40, 83 citing Gorrie D, Mediator Neutrality: High Ideal of Sacred Cow? in Fisher L (ed),
Conference Proceedings, Famcon 95 (3rd National Mediation Conference, Sydney, 1995) 34-35.
81 Noone, above n 60, 98.
83 Ibid 224.
84 PH Rules, above n 5, art 3.7.
85 See discussion under Section IV.A.
106 The IBP Journal

The PH Rules silence on required impartial behavior becomes deafening upon look-
ing at how the AU Standards belabor procedural impartiality expected of mediators. In
addition to their general instruction for mediators to conduct the process in the impartial
manner86 or maintain impartiality towards all participants at all times during the me-
diation process,87 most AU Standards define impartiality generally as freedom from
favouritism or bias either in word or action88 to describe what said conduct entails.
The Law Council Guidelines take an extra step specifying that the mediator must avoid
partiality or prejudice.89
Several AU standards also specify the need for even-handed behavior,90 even demand
commitment to procedural fairness (including an adequate opportunity for each party
in the mediation to participate in the discussions)91 to underscore that the impartiality
imperative is not only behavior in the negative (e.g., absence of bias) but also behavior of
positive conduct through equal treatment of parties. Positive behavioral dictates extend to
the commitment to assist all parties to a dispute as opposed to a single party.92
NMAS Standards adopt an expanded definition of impartiality to include in the con-

cept the omission of word or action that might give the appearance of such favouritism
or bias.93 QLD Standards similarly stress the necessity to maintain impartiality in appear-
ance94 while the Law Council Guidelines specifically require a mediator to avoid conduct
that gives any appearance of partiality or prejudice.95 The PH Rules do not contain any-
thing akin to a suggestion that maintaining perception of impartiality is a desired ethical
86 NMAS Standards, above n 17, standard 5 (The NMAS Standards state that mediators must conduct the
dispute resolution process in an impartial manner and adhere to ethical standards of practice.); Law Council
Guidelines, above n 16, guideline 2 (The Law Council Guidelines state that a mediator may mediate only those
matters in which the mediator can remain impartial and even handed. If at any time the mediator is unable
to conduct the process in an impartial manner the mediator should withdraw.) IAMA Principles, above n 37,
principle 2 (Under the IAMA Principles, a mediator shall conduct the mediation in an impartial manner [and]
shall mediate only those matters in which she or he can remain impartial and even-handed.
87 NSW Guidelines, above n 16, 5.1; QLD Standards, above n 36, 4.1.
88 NMAS Standards, above n 17, standard 5. (Under the Standards impartiality means freedom from favouritism
or bias either in word or action, or the omission of word or action, that might give the appearance of such
favouritism or bias.); NSW Guidelines, above n 16, 5.1 (Impartiality means freedom from favouritism or bias
in word or action.); QLD Standards, above n 36, 4.1 (Impartiality means freedom from any favouritism or bias
in appearance word or action, and a commitment to assist all parties to a dispute as opposed to a single party,
but without a commitment to a particular outcome.)
89 Law Council Guidelines, above n 16, guideline 2. The Guidelines add that a mediator must avoid: (i) partiality
or prejudice; and (ii) conduct that gives any appearance of partiality or prejudice.
90 Law Council Guidelines, above n 16, guideline 2; IAMA Principles, above n 37, principle 2.
91 IAMA Principles, above n 37, principle 6 (IAMA Principles states that the mediator shall work to ensure a
quality process [which] requires a commitment by the mediator to diligence and procedural fairness. There
should be adequate opportunity for each party in the mediation to participate in the discussions.).
92 QLD Standards, above n 36, 4.1 (The QLD Standards expand its definition of impartiality to also mean a
commitment to assist all parties to a dispute as opposed to a single party); NSW Guidelines, above n 16, 5.1
(The NSW Rules provide that the mediator shall maintain a commitment to aid all participants, as opposed to
a single individual, in reaching a mutually satisfactory agreement.)
93 NMAS Standards, above n 17, standard 5.
94 QLD Standards, above n 36, 4.1.
95 Law Council Guidelines, above n 16, guideline 2.

conduct for a mediator.96
If impartiality is an ethical demand that is behavioural in nature97 and the behaviour

must be seen by the parties98 then the window of improvement for PH Rules remains wide
so as to include a clearer description of what to do and avoid to better guide mediators on
how to conduct themselves impartially.
D. PH Rules and AU Standards on outcome impartiality
As in process impartiality, the PH Rules do not give any explicit directive on main-
taining outcome impartiality or restraining content/outcome bias. Restraints on con-
tent/outcome influence may only be surmised from indirect instructions. At best, the PH
Rules restraint from showing outcome bias take the form of an instruction to abstain
from expressing his/her personal opinion on the merits of any proposal made99 unless
parties request for such opinion.100 But even if solicited by all mediating parties, express-
ing an opinion on merits is frowned upon by the Law Council Guidelines since there a
substantial risk in giving such an opinion that the mediator may no longer appear to be
impartial.101
Arguably attempting to (indirectly) encourage outcome impartiality, the PH Rules

also restrains mediators from giving legal or technical advice and engaging in coun-
seling or advocacy.102 However both prohibitions do not necessarily translate to remov-
ing any possible bias a mediator may have on a particular outcome. These prohibitions
merely reduce opportunities to pollute content and outcome. The NSW Standards do
not only stop at restraining advice-giving or counseling but further impose a definite rule
against non-directiveness: that the mediator should not attempt to direct the decision of
the parties based upon the mediators interpretation of the law as applied to the facts of
the dispute.103
96 At best, partial behavior (or at least its appearance) is addressed where the PH Rules state that the mediator
may be compelled to withdraw from mediator proceedings in case the mediators impartiality is in question
(PH Rules, above n 5, art 3.5.c), which is a statement made in broad strokes, the interpretation of which falls on
the mediating parties.
97 As compared to disinterestedness a predominantly structural factor and independence a structural and
attitudinal factor (Boulle, Mediation: Principles, above n 1, 73 [3.28])
99 PH Rules, above n 5, art 3.10(a).
100 PH Rules, above n 5, art 3.10(a)(ii) (emphasis added). The PH Rules state: Except in evaluative mediation or
when the parties so request, a mediator shallabstain from expressing his/her personal opinion on the rights
and duties of the parties and the merits of any proposal made.
101 Law Council Guidelines, above n 16. In its comment to the impartiality guideline, the Law Council Guidelines
state: Even if all the disputants agree that they would like the mediator to express an opinion on the merits,
there is a substantial risk in giving such an opinion that the mediator may no longer appear to be impartial. As
a result the mediator may be obliged to withdraw.
102 PH Rules, above n 5, art 3.10(a)(i). Under the heading of Separation of Mediation from Counseling and
Legal Advice the PH Rules require the mediator to refrain from giving legal or technical advice and otherwise
engaging in counseling or advocacy.
103 NSW Guidelines, above n 16, 2.3 (emphasis added). The QLD Standards have a similar guideline on non-
directiveness: A mediator must not try to impose his or her interpretation of the law on the parties as applied
to the facts of a particular dispute. (QLD Standards, above n 36, 7.2)
108 The IBP Journal

If impartiality demands mediators not to influence content or outcome104 and ethical

guidelines ought to guide mediators in their conduct105 the PH Rules can consider going
beyond rules that only suggest, perhaps off-tangentially, outcome impartiality. The AU
Standards being more articulate with respect to restraining mediator influence or bias as
to content or outcome can be instructive. NMAS Practice Standards for example do not
only prohibit mediators from advising upon, evaluating or determining disputes but also
categorically underscore a prohibition against content bias to promote self-determination:
Mediation is essentially a process that maximises the self-determination

of the participants. The principle of self-determination requires that me-
diation processes be non-directive as to content.106
Instructions of non-directiveness are similarly articulated in the QLD Standards and

NSW Guidelines, which require mediators not to impose a solution on the mediating
parties.107 The QLD Standards additionally underscore mediator mandate of outcome
impartiality through commitment to assist all parties to a disputebut without a com-
mitment to a particular outcome.108 The NSW Guidelines qualify the extent a mediator
input in content (e.g., generating options) with the principle of self-determination as over-
arching guide.109
While not explicit on outcome impartiality, the PH Rules indirectly give antidotes
approximating rules against outcome bias through instructs on self-determination, i.e.,
that the mediator shall make reasonable efforts to ensure that the parties are free and
able to make whatever choices they desire regarding specific settlement options;110 and
recognize and put in mind that the primary responsibility of resolving a dispute and the
shaping of a voluntary and uncoerced settlement rests with the parties.111 While valuable,
these instructions do not exactly translate to a clear standard of outcome impartiality.
E. Power imbalance, fairness and impartiality
What it ostensibly lack in ethical guidelines as to behavioral directives to maintain

process and outcome impartiality, the PH Rules make up in ethical instructions against
potential imbalances or injustice in process or outcome. It can be argued that the PH
Rules open a window of permissible partiality (as to parties or outcome) if indicators of
105 See above nn 16 and 17 and accompanying text.
106 NMAS Standards, above n 17, standard 2 (emphasis added).
107 QLD Standards, above n 36, 1.2 (Said standards state that in no circumstances wil the mediator seek to impose
a solution on the parties); NSW Guidelines, above n 16, 2.2 (The Guidelines state: The mediator does not
impose a solution upon the disputants.)
109 NSW Guidelines, above n 16, 4.4. The Guidelines emphasize that the mediator may assist in generating
options for the participants to consider, such as alternative ways of resolving problems but that all decisions are
to be made voluntarily by the participants themselves.
110 PH Rules, above n 5, art 3.9(a). The provision states: (a) A mediator shall make reasonable efforts to ensure
that each party understands the nature and character of the mediation proceeding including private caucuses,
the issues, the available options, the alternatives to non-settlement, and that each party is free and able to
make whatever choices he/she desires regarding participation in mediation generally and regarding specific
settlement options.
111 PH Rules, above n 5, art 3.9(b).

inequality between parties (or potential unfairness) surfaces particularly when either party
is unrepresented by counsel. When a mediator believes that a party, who is not repre-
sented by counsel, is unable to understand or fully participate, the mediation proceedings
for any reason, the mediator may:
limit the scope of the mediation proceedings in a manner consistent with the
partys ability to participate, and/or recommend that the party obtain ap-
propriate assistance in order to continue with the process; orterminate
the mediation proceedings.112
The PH Rules further provide that:
Where appropriate and where either or both parties are not represented by
counsel, a mediator shall: (i) recommend that the parties seek outside
professional advice to help them make informed decision and to un-
derstand the implication of any proposal; and (ii) suggest that the par-
ties seek independent legal and/or technical advice before a settlement
agreement is signed.113
Both provisions permit an amount of mediator influence in content to equalize po-

tential inequalities between parties. In the first provision, limiting the proceedings con-
sistent with the ability to participate of an apparently disadvantaged party is seeming
acquiescence to exercise partiality in order to avoid inequality to persist in process and
outcome. In the second provision, the qualifier Where appropriate may be treated
as permission to exercise partiality but only when the disadvantaged party has no legal
representation.
Several AU Standards also provide for mediator conduct guide that can possibly ad-
dress inequalities or power imbalances. Noticeably, instructions of possible intervention
remain crafted in a manner that even-handedness and process impartiality is maintained.
NMAS Standards provide for mediators completion of training that assists them to rec-
ognise power imbalance and issues relating to control and intimidation and for them to
take appropriate steps to manage the mediation process accordingly.114 The Law Coun-
cil Guidelines and QLD Standards encourage mediators to make the parties aware of
the importance of consulting other professionals, where appropriate, to help them make
informed decisions.115
The NSW Guidelines also advise the mediator to inform the parties that they have
the right at any time to obtain and may need to obtain independent legal or other pro-
fessional advice during the mediation process.116 Clear from these AU Standards that
language is written with care so as to maintain the edict of even-handedness.
112 PH Rules, above n 5, art 3.9(a) (emphasis added).

113 PH Rules, above n 5, art 3.10(b).
114 NMAS Standards, above n 17, standard 4 (The NMAS Standards add: If at any time abuse is present, or
implied or threatened, the mediator shall take appropriate measures to ensure the safety of participants.).
115 Law Council Guidelines, above n 16, guideline 1, Comment (b); QLD Standards, above n 36, 2.1.7.
116 NSW Guidelines, above n 16, 4.9 The mediator should inform the parties that they have the right at any time
to obtain and may need to obtain independent legal or other professional advice during the mediation process.
110 The IBP Journal

V. SOURCES OF BIAS; IMPARTIALITY RISKS
Process and outcome partiality are behavioral manifestations of factors personal or

internal to the mediator. Conflicting interests and personal values and opinions of the
mediator are usual considerations117 in determining the mediators capability to be im-
partial. Impartiality may be viewed from the lens of possible sources of bias or risks to the
rule against bias.118
A. Conflicting interests
It is recommended that when selecting a mediator one should consider first relation-
ship biases referring to mediators relationship to the dispute, to each party and their
counsel119 implying bias may arise from relationships or associations with the parties
or interests in outcome. In its narrow construction, impartiality is associated with free-
dom from bias as a precondition of the mediators interaction with the parties120 where
bias actual or perceived may arise from pre-existing knowledge of, or association
with, the parties and their dispute or from any vested interest in the outcome of the
dispute.121
One notion of impartiality stems from the commonly accepted belief that prior,
existing or subsequent relationships with mediating parties or their lawyers may compro-
mise impartiality122 This is akin to what Boulle labels another sense of neutrality (distinct
from impartiality): independence.123 To be independent the mediator must not have a
prior relationship with the mediating parties124 and it is suggested that previous relation-
ships also include class or group affiliations/identities.125 Beyond simple indicators of as-
sociation, mediators must also not be influenced by financial or personal connection with
the disputants126 and not have allegiance to outside bodies interested in outcomes.127
Impartiality also contemplates absence of any vested interest in the outcome of the
dispute.128128 This notion of impartiality is what Boulle labels disinterestedness or hav-
ing no personal or commercial interest in the mediation outcome, other than in seeing a
117 See Cris M Currie, Mediating off the grid (2004) 59(2) Dispute Resolution Journal 8, 11-13. In this article, the
author proposes that the mediators approach to mediation can be predicted by examining who the mediator
is and by inspecting the mediators different biases (e.g., relationship, content): at 11.
119 Currie, above n 117, 11.
120 Douglas, above n 40, 82. (emphasis added)
121 Ibid 82-83.
122 Baruch-Bush, above n 44, 12-13.
124 Ibid.
125 Baruch-Bush, above n 44, 12 and 13 (emphasis altered).
127 Boulle, Mediation: Principles, above n 1, 73 [3.28]. See also Astor, Mediator Neutrality, above n 56, 223
where she notes that the mediator must also be free from influence by governments.
128 Douglas, above n 40, 83 (emphasis added). See also Thirgood, above n 27, 146.

settlement reached.129 Impartiality is deemed at risk when a mediator stands to benefit

or might be perceived to benefit from the outcome of a dispute.130
Mediators having actual or potential conflicts of interests arising from above asso-
ciations, relationships or interests in outcome must disqualify themselves from the third-
party role; otherwise, necessary disclosures must be made131 to the disputing parties and
appropriate consents or waivers132 obtained from affected parties before performing the
mediation task.133
Impartiality also requires mediators not to have pre-existing knowledge not only of
the parties but also of their dispute134 and that they should not be aware of prejudicial
information about either (or both) of the parties.135 Currie cites the importance of look-
ing at a mediators background and biases136 and finding out how much knowledge the
mediator has about the dispute137 when choosing a mediator. Like conflicts of interests,
this prior knowledge must be disclosed.
B. Values, Judgments, Prior Knowledge
Impartiality is also considered the absence of bias due to more subtle impact of
a mediators personal values, preferences and preconceptions.138 This wide sense of
impartiality is deemed problematic if viewed an absolute requirement.139 There is a
growing recognition that mediators cannot be impartial140 whether in process or out-
129 Boulle, Mediation: Principles, above n 1, 73 [3.28]. Disinterestedness is of the three senses of neutrality and is
treated distinctly from impartiality.
130 Lucy, above n 43, 12.
131 Astor, Mediator Neutrality, above n 56, 223. Astor notes that absence of financial and personal connections is
not an absolute requirement provided mediators disclose the nature and extent of their relationship with the
parties and the parties decide that they are content for the mediation to continue.
132 According to Boulle, independence and disinterestedness can be waived by parties. He however stresses that
impartiality (as he described it) is unlikely to be waived by parties. Boulle, Mediation: Principles, above n 1, 77
[3.32].
133 Douglas, above n 40, 83. See also Baruch-Bush, above n 44, 12.
134 Ibid.
136 Currie, above n 117, 11.
137 Ibid 12. Currie refers to such pre-existing knowledge as content bias but notes that it is more often referred as
subject-matter expertise.
139 Ibid 84.
140 Wolski, above n 38, 249. See also Moore, above n 41, 53 (Moore concedes, No one can be entirely impartial.
He does not discount that a mediator may have a personal opinion about a desirable outcome to a dispute or
feel closer to one party than another or disconnected from people with [whom] they work); Boulle, Mediation:
Principles, above n 1, 76 [3.31] (Boulle asserts, It is now conventional wisdom that mediators do influence the
substantive content of mediated negotiations and settlement outcomes. All mediator interventions are based
on mediators perceptions and judgments which are never fuly independent and disinterested in any absolute
sense. Mediators have power, their own standpoints and some degree of interest in outcomes. Boulle however
adds that it makes little sense to jettison all aspects of neutrality [which includes impartiality] and the use of
impartiality [and other aspects of neutrality] is not problematic for as long as the limitations of the concept
are understood.)
112 The IBP Journal

come. It is argued that mediators are bound to have subjective preference141 or bias
conscious or unconscious toward either party or a particular preferred outcome be-
cause mediators are bound to bring their own values and interests to the mediation [and]
choose behavioural tactics based on the kind of outcome they wish to achieve.142 This
subjective preference or unconscious bias143 may root from the mediators professional,
educational and/or experiential backgrounds;144 ideas and approaches to a problem;145
and even personal, unpredictable and intuitive predispositions.146
Being descriptive of a condition internal to the mediator impartiality can be be-

trayed by conscious and unconscious processes and biases can leak as partial conduct ab-
sent awareness of the mediator.147 Thus, development of self-awareness is deemed essen-
tial in mediation practice.148 Mediators ought to guard against psychological processes149
as well as their biases, predispositions, values and attitudes150 and understand how they
may impact on the process and consequently outcome.151 Awareness will help mediators
avoid acting on their biases.152
Moore emphasizes the importance of detachment and self-determination to give

meaning to impartiality despite internal biases:
[T]he mediator can separate his or her personal opinion about the outcome
of the dispute or relationships that have developed during the mediation
process from the performance of their duties and focus on ways to help the
parties make their own decisions without unduly favoring one of them.153
Boulle equally puts primacy on self-determination to rein a mediators inclination to

be partial to a particular outcome:

142 Ibid.
145 Astor, Rethinking Neutrality, above n 28, 77. Astor notes the concern that the mediators ideas and approaches
to a problem will intrude and affect the direction of the process of mediation and its outcomes, as well as the
difficulty of monitoring unconscious bias.
146 Ibid. See also Baruch-Bush, above n 44, 13 where the author also cites cases where mediators may experience a
strong personal reactionwhether of sympathy or antipathyto one of the parties during the mediation itself
because of that partys situation, actions, or positions and reactions of sympathy/antipathy may affect their
ability to conduct the mediation with impartiality.
147 Cobb and Rifkin, above n 73, 43.
148 Mark Dickinson, The importance of self-awareness and self development to mediator effectiveness (2010) 21
Australian Dispute Resolution Journal 97, 102. Dickinson notes the value of developing self-awareness, which
limits the impact of personal bias during mediation.
149 Cobb and Rifkin, above n 73, 43.
150 Thirgood, above n 27, 146.
151 Douglas, above n 40, 83. the mediator is expected to guard against the impact of her values, preferences and
preconceptions on content and outcomes and be confined to process.
152 Thirgood, above n 27, 146.
153 Moore, above n 41, 54 (emphasis added). See also Cobb and Rifkin, above n 73, 42. Cobb and Rifkin also cite
texts suggesting detachment such that the mediators goal is either to dismiss their opinions, values, feelings, and
agendas or to separate them from the mediation process.

To achieve impartiality mediators should be conscious of their own

standpoints, work with power relationships in the room, defer to party
priorities and uphold the ultimate norm of party self-determination.154
C. PH Rules and AU Standards on conflicting interests
The principal ethical guideline of the PH Rules on impartiality155 articulates the rule
against bias using the source/risk lens. This guideline visibly156 contemplates the narro-
construction of impartiality,157 i.e., covering possible conflicts arising from relationships
or interests in outcome by requiring a mediator prior to accepting the mediation task to:
make an inquiry that is reasonable under the circumstances to determine

whether there are known facts that a reasonable individual would consider likely to
affect the impartiality of the mediator, including a financial or personal interest in
the outcome of the mediation and any existing or past relationship with a party
or foreseeable participant in the mediation; anddisclose to the media-
tion parties any such fact known or learned as soon as practical before
accepting a mediation.158
The catch-all clause known facts that a reasonable individual would consider
likely to affect the impartiality if broadly construed can cover other sources of bias or
risks to impartiality such as personal values and opinions of the mediator. (See next sec-
tion) However, the ensuing enumeration more visibly points to conflicts arising from rela-
tionships and interests in outcome. The above rule also requires disclosure of facts likely
to affect impartiality before accepting the mediation159 but is not explicit on waiver or
consent requirements. Consent of parties to proceed may be implied.
Similar rules on impartiality vis--vis conflicts are found in counterpart AU Stand-

ards. A noticeable difference however is the unequivocal and relatively more detailed
disclosure and waiver requirement in AU Standards. NMAS Standards require disclosure
of actual and potential grounds of bias and conflicts of interest and the need to obtain
an informed waiver of conflict of interest before the mediator can proceed.160 The Law
155 PH Rules, above n 5, art 3.7. The entire rule reads: Impartiality. A mediator shall maintain impartiality. (a)
Before accepting a mediation, an individual who is requested to serve as a mediator shall: (i) make an inquiry
that is reasonable under the circumstances to determine whether there are any known facts that a reasonable
individual would consider likely to affect the impartiality of the mediator, including a financial or personal
interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable
participant in the mediation; and (ii) disclose to the mediation parties any such fact known or learned as soon as
is practical before accepting a mediation. (b) If a mediator learns any fact described in paragraph (a) (i) of this
Article after accepting a mediation, the mediator shall disclose it as soon as practicable to the mediation parties.
156 A broad interpretation of the particular rule on impartiality may permit the contemplation of other sources of
or risks to impartiality (e.g., personal values, prior knowledge of the dispute). See Sections V.D. for additional
discussion.
158 PH Rules, above n 5, art 3.7(a)(i) and (a)(ii).
159 Ibid.
160 NMAS Standards, above n 17, standard 5 (emphasis added). The pertinent portion of the standard states: A
mediator will disclose actual and potential grounds of bias and conflicts of interest. The participants shall be
free to retain the mediator by an informed waiver of the conflict of interest. See also NSW Guidelines, above
n 16, 5.4. The NSW Guidelines also require the fully informed consent of all parties for the mediator to act as
such if said mediator is a partner or an associate of any legal counsel retained by either of the parties.
114 The IBP Journal

Council Guidelines instruct the mediator to be certain of parties agreement before

proceeding.161
A continuing mandate to disclose grounds of bias/conflict is also found in both PH

Rules and AU Standards. Under PH Rules, the mediator shall disclose to the parties
as soon as practicable any fact likely to affect impartiality if learned after accepting a
mediation.162 NMAS Standards require mediators to identify and disclose any potential
grounds of bias or conflict of interest that emerge at any time in the process163 while
QLD Standards call for prompt disclosure and impose a continuing duty to disclose to
the parties any such circumstances that might arise during the mediation.164 The Law
Council Guidelines require mediators at all times to be transparent about their rela-
tions with the parties in the mediation process.165 More noteworthy is the additional
NMAS Standard for mediators to proactively maintain impartiality by taking reasonable
steps to minimise the chances of being in a position of potential bias or conflict of interest
before the process commences.166
Striking feature in several AU Standards that cannot be found in PH Rules are state-
ments requiring certainty of impartiality not only from without but also from within.
NMAS Standards additionally require mediators to withdraw regardless of the express
agreement of the parties if in the mediators view a bias or conflict of interest impairs
their impartiality.167 The Law Council Guidelines similarly permit mediators to proceed
if they are satisfied that the conflict or perception of conflict will not preclude the proper
discharge of the mediators duties and certain that their ability to undertake the media-
tion with independence and neutrality so as to ensure impartiality.168 The same mandate
from IAMA Principles is gleaned: that the mediator may proceed if all parties agree to
mediate after being informed of conflicts but shall decline to proceed if the conflict
casts serious doubt on the integrity of the process.169 The above AU Standards intimate
the need for mediators to develop a deeper sense of awareness to maintain impartiality
in their practice.
D. PH Rules and AU Standards on mediator values, opinions
Both PH Rules and AU Standards contain impartiality and conflicts rules that when
construed broadly can contemplate a standard securing impartiality from being infected
by personal values, opinions and preferences of mediators. As earlier discussed, PH Rules
161 Law Council Guidelines, above n 16, guideline 3. See also IAMA Principles, above n 37, principle 3. Under
the IAMA Principles after the disclosure of all actual and any potential conflicts of interest reasonably known
to the mediator, the mediator shall decline to mediate unless all the parties choose to retain the mediator.
(emphasis added).
162 (b) If a mediator learns any fact described in paragraph (a) of this Article after accepting a mediation, the
mediator shall disclose it as soon as practicable to the mediation parties.
163 NMAS Standards, above n 17, standard 5; The Law Council Guidelines also state: Disclosure must also be
made if conflicts arise during the mediation. Law Council Guidelines, above n 16, guideline 3.
166 NMAS Standards, above n 17, standard 5.2.
167 NMAS Standards, above n 17, standard 5.1.
169 IAMA Principles, above n 37, principle 3.

require a mediator, prior to accepting the mediation, to determine if there are known
facts that a reasonable individual would consider likely to affect the impartiality of the
mediator and disclose these facts to the mediation party.170 However a complete reading
of the rule171 tends to direct mediators eyes to conflicts arising from relationships or in-
terests in outcome rather than other personal biases.
Under most AU Standards, mediators are required to disclose actual and potential
grounds of bias;172 discuss any circumstances that may, or may be seen to, affect the
mediators independence or impartiality;173 or disclose promptly to the parties any cir-
cumstances which may constitute a possible bias, prejudice or impartiality.174 Disclosure
and consent requirements go with these standards. Despite generality of these standards
(i.e., not specifying if conflicting values/opinions/biases are included in facts or circum-
stances affecting impartiality), they remain meaningful when combined with other direc-
tives in AU Standards prescribing specific conduct of impartiality to follow or describing
behavior (indicative of bias or favouritism) to avoid.175 It in this area that PH Rules may
still improve if only to give better impartiality safeguards against mediator personal biases
contaminating the process and outcome.
VI. CONCLUSION
According to Boulle impartiality, in the sense of mediators conducting the process

in a manner which is procedurally fair and unbiased, can be depicted as a defining value
of mediation.176 The PH Rules on impartiality are still wanting in this sense. A general
directive that the mediator shall maintain impartiality absent a specific description of
what conduct needs to be exhibited and avoided may not suffice to guide mediator con-
duct and showcase practice requirements attached to this defining value of mediation.177
If the ultimate test of mediator impartiality lies in the judgment of the parties178
then clearer guidance on more specific behavior not merely an inventory of what to dis-
close or what to avoid, but also what to do should be desired. Impartiality goes beyond
pre-existing relationships or giving legal opinions.
170 PH Rules, above n 5, art 3.7(a).

171 See above n 155.
172 NMAS Standards, above n 17, standard 5.1 and 5.2.
175 See discussion under Sections IV.C and IV.D.
177 Ibid.
178 Moore, above n 41, 54.
116 The IBP Journal

Impartiality is a multi-dimensional concept179 and expressing it mainly from a con-

flicts rule perspective is limiting the ability of the PH Rules to steer mediator conduct in
accord with all other important aspects of this core value of the profession. Since codes
of ethics are found to have a direct impact on behaviour,180 more descriptive and instruc-
tive standards in the PH Rules to guide mediators in maintaining process and outcome
impartiality are in order. Improvements can also be made to ensure awareness is encour-
aged among mediators to avoid the impact of personal biases in the process. The AU
Standards, most of which (continuously) polished from lessons taught by experience, can
be informative in complementing future efforts to improve the PH Rules.
179 See above n 39.

180 Spencer and Brogan, above n 21, 216.

Oscar G. Raro
Arrest: Scope, Subtleties, and Remedies*
Oscar G. Raro**
1. Meaning and Nature of Arrest
Arrest is the taking of a person into custody in order that he may be bound to answer for
the commission of an offense.1 In the law of criminal procedure, the term arrest has special
connotation in that it must be for purposes of criminal prosecution.
There is an arrest when actual restraint is made to a person to be arrested or by his

voluntary submission to the custody of the person making the arrest.2 Thus, there is no ar-
rest, as held in one case, 3 when a suspect walked into a police station accompanied by
his lawyers and placed himself at the disposal of the police authorities. It was clear that
the police authorities at that time were not making any arrest. There is likewise no arrest
when a motorist is flagged down for traffic violation,4 the intent being merely to confiscate
the drivers license as provided by law.5
Actual force or physical restraint, or formal declaration of arrest is not necessary as

it is enough that there be an intent on the part of one of the parties to arrest the other
and an intent on the part of the other to submit, under the belief and impression that
submission is necessary.6
2. Persons Authorized to Issue Warrant of Arrest
Under the 1973 Constitution, a warrant of arrest may be issued upon probable cause
to be determined by the judge or such other responsible officer as may be authorized
by law.7 One of these responsible officers was the mayor, who, under the old Local
Government Code8 may conduct preliminary investigation and issue a warrant of arrest
thereafter.
* This article is a chapter in the authors forthcoming book on Criminal Procedure tentatively titled Rights of the
Accused: A Treatise on Philippine Criminal Procedure.
** A.B., University of Sto. Tomas; 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 Rules of Court, Rule 113, Sec. 1.
3 Arrest made by the police after the accused was identified by a witness for a crime committed six days before
does not constitute valid warrantless arrest. (Go v. Court of Appeals, G.R. NO. 101837, February 11, 1992);
People v. Court of Appeals, G.R. No. 116623, March 23, 1995.
4 Luz v. People, G.R. NO. 197788, February 29, 2012.
5 Luz v. People, G.R. NO. 197788, February 29, 2012 citing R.A. 4139 (Land Transportation and Traffic Code),
Sec. 29 and Philippine National Police Operations Manual, Sec. 7 (m).
6 Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9, 1993.
7 1973 Const., Art. IV, Sec. 3: The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for whatever purposes shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.
8 Repealed Batas Pambansa Blg. 337, otherwise known as the Local Government Code, Sec. 143 (3).
118 The IBP Journal

Arrest: Scope, Subtleties, and Remedies
Under the 1987 Constitution, the phrase such other responsible officer in the per-
tinent provision of the Bill of Rights9 was deleted. This effectively abrogated the power
of the mayor to conduct preliminary investigation and to issue orders of arrest.10 The
old Local Government Code11 was likewise repealed by the Local Government Code of
199112 which later law does not confer any such power to the mayor.13 Thus now, except in
administrative, congressional, and military arrests,14 only a judge may issue a warrant of
arrest for purposes of criminal prosecution upon prior determination of probable cause.
3. Administrative, Congressional, and Military Arrest
3.1. Administrative Arrest for Purposes of

Deportation of Undesirable Aliens
The President or the Commissioner of Immigration may issue an order or warrant

of arrest in cases of illegal and undesirable aliens, following a final order of deportation,
for the purpose of deportation.15 Thus, an alien may be arrested and deported upon a
warrant issued by the Commissioner of Immigration upon prior determination by the
Board of Commissioners of the existence of the ground as charged against the alien.16
The validity of this deportation arrest is moored to the recognized supremacy of the
Executive in matters involving foreign affairs17 and on the fact that the constraints under
the 1987 Constitution for judicial warrant of arrest contemplates criminal prosecution.
A deportation proceeding is administrative in character and an order of deportation is not
a criminal punishment, a preventive, not a penal process.18
3.2. Congressional Power of Inquiry

and the Process to Enforce It
The power of inquiry by Congress carries with it the process to enforce it.19 This
power of inquiry is essential and appropriate auxiliary to the legislative function since
Congress cannot legislate wisely or effectively in the absence of requisite information
which, at times, may only be obtained by compulsion.20 This power to compel is neces-
9 1987 Const., Article III, Sec.2.

10 Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003
11 Batas Pambansa Blg. 337.
12 Republic Act No. 7160
13 Muez v. Ario, A.M. No. MTJ-94-985. February 21, 1995.
14 See 2.3. Administrative, Congressional, and Military Arrest hereof.
15 Salazar v. Achacoso, G.R. No. 81510, March 14, 1990 citing Qua Chee Gan v. Deportation Board, No.
L-10280, September 30, 1963, 9 SCRA 27; Vivo v. Montesa, No. L-24576, 24 SCRA 155; Ang Ngo Chiong v.
Galang, G.R. No. 21426, October 22, 1975.
16 Lao Gi v. Court of Appeals, G.R. No. 81798, December 29, 1989.
17
Salazar v. Achacoso, G.R. No. 81510, March 14, 1990 citing Go Tek v. Deportation Board, No. L-23846, Sep-
tember 9, 1977, 79 SCRA 17.
18 In Re: Andrew Harvey v. Santiago, G.R. No. 82544, June 28, 1988 citing Lao Tang Bun v. Fabre, 81 Phil. 682
[1948].
19 Arnault v. Nazareno, G.R. No. 3820, July 18, 1950, 87 Phil. 29.
20 Arnault v. Nazareno, G.R. No. 3820, July 18, 1950, 87 Phil. 29.

Oscar G. Raro
sary if Congress is to perform its duties without impediment.21 This congressional power,
however, is not absolute as it is governed by the following limitations, among others:
1. No person can be punished for contumacy or recalcitrance as a witness

before either House of Congress, unless his testimony is required in a
matter into which Congress has jurisdiction to inquire.22 Thus, [i]f the
subject of investigation before the committee is within the range of le-
gitimate legislative inquiry and the proposed testimony called relates to
that subject, obedience to its process may be enforced by the commit-
tee by imprisonment.23 In short, the subject of inquiry must pass the
test of relevance and Congresss scope of jurisdiction. The subpoena or
invitation to a witness must contain the possible needed statute which
prompted the need for the inquiry, along with the usual indication of
the subject of inquiry and the questions relative to and in furtherance
thereof.24 Congress is not a police agency where it can investigate the
commission of a crime for purposes of prosecution, but may only do so
in aid of legislation.25
2. Congress cannot encroach on validly grounded and invoked executive

privilege or presidential communication privilege. However, for execu-
tive privilege to thwart Congresss power of inquiry, the privilege must
be invoked by a formal claim of privilege lodged by the head of the
department which has control over the matter with precise and certain
reason for preserving confidentiality of information within the execu-
tive department.26 The determination on where the balance will heel be-
tween the legislative power of inquiry and executive privilege is weighed
by the balancing of interest test. This balancing test involves calibration
on whether disclosure of the disputed information impairs the Presi-
dents ability to perform her constitutional duties more than disclosure
would impair Congresss ability to perform its constitutional functions
which should result in the promotion of the public interest. 27
3. The power to cite for contempt and order the arrest of a witness must be
in accordance with duly deliberated and published rules of procedure. 28
21 Lopez v. De los Reyes, G.R. No. 34361. November 5, 1930, 55 Phil, 170 [1930].
22 Arnault v. Nazareno, G.R. No. 3820, July 18, 1950, 87 Phil. 29 citing Killbourn v. Thompson, 26 L. ed., 377.
23 Arnault v. Nazareno, G.R. No. 3820, July 18, 1950, 87 Phil. 29 citing Sulivan v. Hill. 73 W. Va., 49; 79 S. E.,
670; 40 Ann. Cas. [1926 B.], 1115.
24 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1
25 Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, November 20, 1991, 203 SCRA 767.
26 Neri v. Senate Committee on Acountability of Public Officers and Investigations, G.R. No. 180643. March 25,
2008 citing U.S. v. Reynolds, 45 U.S. 1, 6-8 [1953] and U.S. v. Article of Drug, 43 F.R.D. at 190.
27 Neri v. Senate Committee on Acountability of Public Officers and Investigations, G.R. No. 180643. March 25,
2008, Justice Puno dissenting.
28 In Neri v. Senate Committee on Acountability of Public Officers and Investigations, G.R. No. 180643. March 25, 2008, the
majority opinion by the Supreme Court nullified the order of arrest against Romulo Neri because the Senates
Rules of Procedure Governing Inquiries in Aid of Legislation was not duly approved by a majority of the Sen-
ate Blue Ribbon Committee and the publication of such Rules has been found to be procedurally infirm.,
among other reasons.
120 The IBP Journal

3.3. Arrest Under Military Law
Also, military authorities may order the arrest or confinement of any persons subject
to military law29 who are charged with crime or with serious offense under the Articles
of War.30 The Articles of War govern officers and soldiers of the Armed Forces of the
Philippines,31 among others. While the arrest may be made under the Articles of War for
the crime of coup eetat, a crime penalized under the Revised Penal Code,32 the accused
may be tried both before a court martial and before a civilian court.33 Cases against
members of the Philippine National Police (PNP) who were formerly governed by mili-
tary justice and, therefore, by the Articles of War are now cognizable by the regular
courts.34 The Articles of War no longer apply to them, and not being subject to military
law anymore, they could no longer be ordered arrested by their commanding officer.
4. Immunity From Arrest
4.1. Diplomatic Immunity
The Vienna Convention on Diplomatic Relations ratified by the member states on

18 April 1961, to which the Philippines is a signatory, grants absolute or blanket im-
munity from criminal and civil suits in favor of diplomatic agents.35 The person of a
diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or
detention,36 He shall be immune from the criminal, civil, and administrative jurisdic-
tion of the receiving State.37 Diplomatic agents are defined in the Convention as the
heads of missions or members of the diplomatic staff of the mission,38 members of the
administrative and technical staff of the mission together with members of their families
forming part of their respective household, if not nationals or permanent residents of the
29 Commonwealth Act No. 408 or Articles of War, (Commonwealth Act No. 408 as amended by Rep. Act No.
242, on June 12, 1948), Article 70.
30 Commonwealth Act No. 408 or the Articles of War, Sec. 70; In Re: Army Major Jason Laureano Aquino, G.R.
No. 174994, August 31, 2007; Barbieto v. Court of Appeals, G.R. No. 184645, October 30, 2009.
31 Articles of War, Article 2.
32 Article 134-A.
33 Gonzales v. Abaya G.R. No. 164007, August 10, 2006.
34 Republic Act No. 6975, An Act Establishing the Philippine National Police, under a Reorganized Department
of the Interior and Local Government, and for Other Purposes, Section 46: Jurisdiction in Criminal Cases.Any
provision of law to the contrary notwithstanding, criminal cases involving PNP members shall be within the ex-
clusive jurisdiction of the regular courts: Provided, That the courts-martial appointed pursuant to Presidential
Decree No. 1850 shall continue to try PC-INP members who have already been arraigned, to include appro-
priate actions thereon by the reviewing authorities pursuant to Commonwealth Act No. 408, otherwise known
as, the Articles of War, as amended by Executive Order No. 178, otherwise known as the Manual for Courts-
Martial: Provided, further, that criminal cases against PC-INP members who may have not yet been arraigned
upon the effectivity of this it shall be transferred to the proper city or provincial prosecutor or municipal trial
court judge.
35 Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003.
36 Vienna Convention on Diplomatic Relations, Art. 29.
38 Vienna Convention on Diplomatic Relations, Art. 1 (e)

Oscar G. Raro
receiving State except when performing acts outside the course of their duties.39
But consuls, who represent their respective states in concerns of commerce and navi-
gation and perform certain administrative and notarial duties, such as the issuance of
passports and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats,
mainly for the reason that they are not charged with the duty of representing their states
in political matters. Indeed, the main yardstick in ascertaining whether a person is a dip-
lomat entitled to immunity is the determination of whether or not he performs duties of diplomatic
nature.40 The long-recognized subjects of such immunity are heads of state, diplomats
and members of the armed forces contingents of a foreign State allowed to enter another
States territory.41 However, diplomatic immunity may be waived by the sending State,
which waiver must always be express.42
4.2. Parliamentary Immunity
A member of Congress, that is, a senator or member of the House of Representatives

shall be privileged from arrest while Congress is in session and for offenses punishable by
not more than six years of imprisonment. Such member shall not be questioned nor be
held liable in any other place for any speech or debate in the Congress or in any com-
mittee thereof.43 There is nothing unusual or abhorrent in this immunity as it is based on
public policy or public interest.44 This parliamentary immunity, however, does not apply
in two instances: 1) when Congress is not in session; and 2) when the crime involved is
punishable by more than six years of imprisonment. Thus, a congressman may be arrest-
ed and held liable for statutory rape, punishable by reclusion perpetua, even when Congress
is in session.45
4.3. Presidential Immunity
The president may claim immunity from suit, and, therefore, from arrest, only during
the period of his tenure, but not during his term, of office.46 Term refers to the time when
an officer may claim to hold the office as of right; while tenure refers to the period when
an incumbent actually holds office.47 This is so because the reason for presidential im-
munity is to assure the exercise of presidential duties and functions free from any hin-
drance or distraction, the job requiring all of the office-holders time and undivided
attention.48 Thus, when the president is no longer in office despite the fact that his term
is yet to expire, the rationale for such immunity no longer obtains. Presidential immunity
39
Vienna Convention on Diplomatic Relations, Art. 31; Minucher v. Court of Appeals, G.R. No. 142396, Febru-
ary 11, 2003; U.S. v. Reyes, G.R. No. 79253.
40 Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003.
41 Nicolas v. Romulo, G.R. No. 175888, 176051 and 176222, February 11, 2009
43 Const., Article VI, Sec. 11.
44 Endencia v. David, G.R. Nos. 6355-56, August 31, 1953.
45 People v. Jalosjos, G.R. No. 132875-76, February 3, 2000.
46 Estrada v. Desierto, G.R. Nos. 146710-15 and 146738, March 2, 2001.
47 Estrada v. Desierto, G.R. Nos. 146710-15 and 146738, March 2, 2001.
48 Soliven v. Makasiar, G.R. Nos. 82585 & 82827, November 14, 1988.
122 The IBP Journal

may only be claimed by the president himself, and not by any person in his behalf. To
illustrate, it is incongruous for a presidential staff to claim the same immunity as it will
insolate him from a suit filed by the president himself as the complainant.49 Presidential
immunity, however, may be waived by the president himself by choosing to submit to the
courts jurisdiction.50
4.4. Immunity of International Officials
International organizations and officials are extended absolute immunity from arrest
for official acts similar to the diplomatic prerogatives granted to diplomatic envoys.51 As a
member of the United Nations and a party to the Convention on the Privileges and Immunities
of the Specialized Agencies of the United Nations, the Philippines adheres to the doctrine of
immunity extended to the UN and its specialized agencies which enjoy immunity from
every form of legal process unless expressly waived.52 Thus, officers and staff of, in-
cluding experts and consultants performing mission for, the Asian Development Bank (ADB)
are immune from personal arrest or detention, seizure of their personal baggage, legal
process of every kind in respect of words spoken or written and all acts done by them in
their official capacity except when the bank waives the immunity.53 Immunity from suit
or legal process extends to the International Rice Research Institute (IRRI)54 by virtue of Presi-
dential Decree No. 1620,55 which extended to it immunities accorded to international
organizations and thereby grants it immunity from any penal, civil, and administrative
proceedings except when expressly waived; to the International Catholic Migration Commis-
sion (ICMC);56 or to the Southeast Asian Fisheries Development Center,57 among others.
5. Arrest with a Warrant
The 1987 Constitution requires the judge to personally determine the existence of
probable cause before issuing a warrant of arrest.58 This makes the issuance of the war-
51 Liang v. People, G.R. No. 125865, March 26, 2001.
52
Convention on the Privileges and Immunities of Specialized Agencies, Article III, Sec. 4: The specialized agen-
cies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form
of legal process except insofar as in any particular case they have expressly waived their immunity. It is however,
understood that no waiver of immunity shall extend to any measure of execution. Lasco v. UNRFN, G.R. Nos.
109095-109107, February 23, 1995.
53
Charter of the Asian Development Bank; Agreement Between the Asian Development Bank and the Govern-
ment of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank, Sec. 44.
Liang v. People, G.R. No. 125865, March 26, 2001.
54 Callado v. International Rice Research Institute, G.R. No. 106483, May 22, 1995.
55
Granting to the International Rice Research Institute (IRRI) the Status, Prerogatives, Privileges and Immuni-
ties of an International Organization.
56 International Catholic Migration Commission v. Calleja, G.R. Nos. 85750 and 89331, September 28, 1990.
57 Southeast Asian Fisheries Development Center v. Acosta, G.R. Nos. 97468-70, September 2, 1993; Southeast
Asian Fisheries Development Center-Aquaculture Department v. National Labor Relations Commission, G.R.
No. 86773, 206 SCRA 283 [1992]; see also Lacanilao v. de Leon, G.R. No. 76532, 147 SCRA, 286 [1987].
58
1987 Const., Article III, Sec. 2: The right of the people to be secure in their persons, houses, papers, and ef-
fects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce
and particularly describing the place to be searched and the persons or things to be seized.

Oscar G. Raro
rant of arrest discretionary to the judge.59 This requirement of personal determination

was not expressly made in the texts of the 1935 and 1973 Constitutions.60 Now, the only
time that a warrant of arrest may be issued by the judge is after the complaint or informa-
tion has been filed in court after preliminary investigation or for purposes of trial and only
after probable cause has been determined.61
5.1. Determination of Probable Cause
Upon the filing of the complaint or information after preliminary investigation, the
judge whether of the regional trial courts or of the first level courts shall, within ten days
from the filing of the complaint or information,62 determine the existence of probable
cause for purposes of issuing the warrant of arrest. Probable cause for the warrant of
arrest means such facts and circumstances which would lead a reasonably discreet and
prudent man to believe than an offense has been committed by the person sought to be
arrested.63
The judges determination of probable cause shall be based on his personal evalu-
ation of the resolution of the prosecutor and its supporting evidence; not merely on the
certification by the prosecutor,64 who is expectedly supportive of his own resolution.65 He
should independently66 rely on the documentary evidence, the complaint and counter-af-
fidavits of the witnesses, and transcript of stenographic notes, if taken during preliminary
investigation.67 Neither is the judge precluded from relying on the evidence earlier gath-
ered by responsible officers.68 However, he need not personally examine the complainant
and his witnesses in person,69 unlike in cases of search warrants.70 A hearing for purposes
of personal examination of the complainant and his witnesses is not mandatory and in-
dispensable at this stage before the judge could issue the warrant of arrest.71
If probable cause exists after such determination, the judge shall issue a warrant of
arrest or a commitment order (if the accused is already detained for having been previ-
ously arrested without warrant and he waives his right under Article 125 during inquest).72
59 Cruz v. Areola, A.M. No. RTJ-01-1642, March 6, 2002.

60 Abdula v. Guiani, G.R. No. 118821, February 18, 2000.
61 Rules of Court, Rule 112, Sec. 6 (a) and (b).
62 Rules of Court, Rule 112, Sec. 6 (a) and (b).
63 Ocampo v. Abando, G.R. No. 176830, February 11, 2014 and companion cases, citing Allado v. Diokno, G.R.
No. 113630, May 5, 1994, 232 SCRA 192, 199-2000.
64 Rules of Court, Rule 112, Sec. 6 (a) and (b); Cuevas v. Muoz, G.R. No. 140520, December 18, 2000; AAA
v. Carbonell, G.R. No. 171465, June 8, 2007; Okabe v. Gutierrez, G.R. No. 150185, May 27, 2004, 429 SCRA
685.
65 Ho v. People, 280 SCRA 365 (1997).
66 Ho v. People, 280 SCRA 365 (1997).
67 Okabe v. Gutierrez, G.R. No. 150185, May 27, 2004
68 Lim, Sr. v. Felix, G.R. Nos. 94054-57 & G.R. Nos. 94266-69. February 19, 1991.
69 Webb v. De Leon, G.R. No. 121234. August 23, 1995; .Soliven v. Makasiar, 167 SCRA 393 (1988).
70 See Rules of Court, Rule 126, Sections 4 & 5.
71 Ocampo v. Abando, G.R. No. 176830, February 11, 2014 and companion cases, citing De los Santos-Reyes v.
Montesa, Jr., 317 Phil. 101, 111 (1995), People v. Grey, G.R. No. 180109, July 26, 2010, 625 SCRA 523, 536.
72 Rules of Court, Rule 112, Sec. 5 (c).
124 The IBP Journal

No warrant or commitment order shall issue if the offense is penalized by fine only.73
If the judge is not satisfied of the existence of probable cause, he may either dismiss
the case or order the prosecutor to present additional evidence within five (5) days from
notice, and resolve the issue of whether to issue a warrant of arrest or not within thirty
(30) days from the filing of the complaint or information.74 These 5-day and 30-day peri-
ods imposed to determine probable cause are mandatory and such determination during
the period is ex parte and summary in nature, not adversarial.75
There is this current practice of defense lawyers of filing a motion for judicial de-
termination of probable cause before the judge could issue a warrant of arrest or even
thereafter. Such a motion is a superfluity since the judge is already mandated by the Con-
stitution, no less, to make such determination.76 In fact, there is no requirement that this
determination be adversarial to require a notice of hearing77 and neither may the accused
insist on such a hearing.78
As the obvious intent of such a motion is for the court not to issue a warrant of arrest,
for one reason or the other, then defense counsel should instead file a motion to withhold
or defer the issuance of the warrant of arrest, not for judicial determination of probable
cause. If the objection to the issuance of the warrant is lack of preliminary investigation,
then he should file a motion for preliminary investigation with additional prayer to with-
hold meanwhile the issuance of the warrant.79 If the ground for the motion is insufficient
probable cause for the filing of the information, then he should file a motion to dismiss
for lack of probable cause.80
5.2. First Level Courts No More Authority

to Conduct Preliminary Investigation;
Ergo, No Power to Issue Arrest Warrant
Incidental to Preliminary Investigation
For so long in the past, judges had been allowed to conduct preliminary investigation
and to issue warrants of arrest after the first stage of preliminary investigation.81 When
the stages for such process were reduced to only one stage in the Rules,82 judges conduct-
ing preliminary investigation were still allowed to issue a warrant of arrest after determin-
ing probable cause upon examination in writing and under oath of the complainant
and his witnesses in the form of searching questions and answers, and upon findings of
a necessity of placing respondent under immediate custody in order not to frustrate the

74 Rules of Court, Rule 112, Sec. 6 (a)
75 Ramiscal v. Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006.
76 Leviste v. Alameda, G.R. No. 182677, August 3, 2010.
77 Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006, 499 SCRA 375; 398.
78 Leviste v. Alameda, G.R. No. 182677, August 3, 2010.
79 Redulla v. Sandiganbyan, G.R. No. 167973, February 28, 2007.
80 Rules of Court, Rule 112, Section 5 (a); People v. Lacson, G.R. No. 149453, April 1, 2003, J. Puno dissenting.
81 Abrera v. Muoz, G.R. No. 14743, July 26, 1960; Mayuga v. Maravilla, G.R. No. 18826, December 17, 1966;
82 Bagunas v. Fabillar, A.M. No. MTJ-97-1128, April 22, 1998 citing Sangguniang Bayan of Batac, Ilocos Norte
v. Albano, A.M. No. MTJ-94-1004, August 21, 1996, pp. 4-5.

Oscar G. Raro
ends of justice.83
Since preliminary investigation is an executive function, a judge conducting prelimi-

nary investigation at that time assumes the mongrelized role of a judicial-executive official
which role-switching functions do not sink well with the separation of powers doctrine.
On the other hand, in fealty to the said doctrine, the investigating prosecutor conducting
the preliminary investigation has no power, then as now, to issue a warrant of arrest at any
time,84 the issuance of warrants being a judicial function.
Finally, on 30 August 2005, the Supreme Court amended Rule 112 and 114 of the
Revised Rules on Criminal Procedure by removing from judges of the first level courts the
authority to conduct preliminary investigation,85 and therefore, to issue warrant of arrest
during preliminary investigation. This amendment took effect on 3 October 2005, but
those judges of the first level courts who had pending preliminary investigation incidents
in their courts were directed to terminate them not later than December 31, 2005.86 Now,
there will be no more occasion for the court of the first level courts to issue a warrant of
arrest incidental to preliminary investigation, which they no longer have the power to conduct
in the first place.87
5.3. No Law Requiring an Order of Arrest

Before Warrant of Arrest is Issued
An order of arrest issued prior to the issuance of the warrant of arrest which order
does not specify the offense charged, the facts and the law upon which it is based, and the
name of the complainant, does not invalidate the warrant when complete in itself and
duly signed by the judge.88 After all, there is no law requiring that a warrant of arrest must
be preceded by an order of arrest.89
5.4. Medical Confinement Amounts to Custody;

Warrant of Arrest Superfluous
An alias warrant of arrest need not be enforced nor required when the accused is
already confined in a hospital by virtue of a court order, which order amounts to placing
83 Batas Pambansa Blg. 129 (Judiciary Reorganization Act of 1980), Old Sec. 37; Rules of Court, Rule 112,
Sec. 6 (b), last paragraph; Mantaring v. Roman, A.M. No. RTJ-93-964, February 28, 1996; Ora v. Almajar,
A.M. No. MTJ-05-1599. October 14, 2005; Tabujara III v. People, G.R. No. 175162, October 29, 2008; Sang-
guniang Bayan of Batac v. Judge Albano, 329 Phil. 363, 374-375 (1996); Dadula v. Ginete, A.M. No. MTJ-03-
1500. March 18, 2005; Lumbos v. Baliguat, A.M. No. MTJ-06-1641, July 27, 2006; Gutierrez v Hernandez,
A.M. No. MTJ-06-1628. June 8, 2007.
84 Collector of Customs v. Villaluz, G.R. No. 34038, June 18, 1976.
85 A.M. No. 05-8-26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure
dated 30 August 2005; N.B. The power to conduct preliminary investigation was removed earlier from judges
of the regional trial courts on 1 January 1985, upon effectivity of the 1985 Rules on Criminal Procedure. (Tor-
revillas v. Navidad, A.M. Nos. RTJ-06-1976 and RTJ-06-1977 April 29, 2009.)
86 Office of the Court Administrator v. Galvez, A.M. No. MTJ-03-1472, October 17, 2007 citing A.M. No.
05-8-26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure; Mangila v.
Pangilinan, G.R. No. 160739, July 17, 2013.
87 Conquilla v. Bernardo, A.M. No. MTJ-09-1737, February 9, 2011.
88 Torres v. Teodoro, G.R. Nos. L-10093 & L-10356. April 30, 1957.
89 Webb v. De Leon, G.R. No. 121234, G.R. No. 121245, and G.R. No. 121297, August 23, 1995; Roberts v.
Court of Appeals, G.R. No. 113930, March 5, 1996;
126 The IBP Journal

the accused in custody of the law.90
5.5. Warrant Improper in Contempt Cases When

Respondent Has Already Filed Answer to the
Charge
A justice of the peace may not validly issue a warrant of arrest to compel the personal
appearance of one charged with contempt before him when that person has already filed,
through counsel, a written answer to said charge.91
5.6. Persons Authorized to Serve or Implement

A Warrant of Arrest
A warrant may only be executed by a peace officer. As the Rules are silent on whether
it may be served by a private person, the practice is that a private person may get a copy
of the warrant for record purposes only but not for service thereof.92 It is a standard
judicial practice in the Philippines that warrants are addressed to any peace officer for
execution or implementation. A peace officer, in one case, had been alluded to as those
charged with the maintenance of public order and the protection and security of life and
property who have the authority to make arrests . . . similar to the authority generally
conferred upon peace officers in the United States, and more especially that class of
peace officers known to American and English law as constables.93 Thus, covered by the
phrase peace officers are members of the Philippine National Police (PNP),94 members
of the municipal police force;95 the mayor, chief and deputy or assistant chief of police,
the chief of the secret service and all officers and members of the city police and detec-
tive force;96 members of the Philippine Coast Guard for purposes of the law creating that
body;97 and members of the investigation staff of the National Bureau of Investigation
(NBI).98
5.7. Duty of the Persons Authorized to Serve

or Implement A Warrant of Arrest
The head of office to whom the warrant of arrest was delivered shall cause the war-
rant to be executed within ten (10) days from its receipt. Within an equal period of ten
90
People v. Gako (G.R. No. 135045, December 15, 2000): Where bail was entertained even before implementa-
tion of the alias warrant of arrest, the confinement in the hospital by virtue of a court order being equated to
custody of law.
91 Bakewell v. Lloren, G.R. No. 20108, December 28, 1964 citing Esparagoza v. Tan, G.R. No. L-6525, April 12,
1954.
92 As related by respondent clerk of court in Pascual v. Alvarez, A.M. No. P-04-1882, September 30, 2004.
93 U.S. v. Batallones, G.R. No. 7284, August 23, 1912.
94 Republic Act No. 6975, Sec. 24 (a), (b), (c), (d), (e), and (h) (Department of the Interior and Local Government
Act of 1990)
95 Manzano v. Villa, G.R. No. 27018, August 30, 1972.
96 Sayo v. Chief of Police, G.R. No. 2128, May 12, 1948; Subido v. Sarmiento, G.R. No. 14981, May 23, 1960
citing Section 37 of the Revised Charter of Manila; City Mayor v. Chief Philippines Constabulary, G.R. No.
20346, October 31 1967 citing Section 37 of the Revised Charter of the City of Tacloban;
97 Republic Act No. 5173, Sec. 3 (o), (An Act Creating a Philippine Coast Guard).
98 Republic Act No. 157, Sec. 5.

Oscar G. Raro
(10) days from the expiration of the period to execute the warrant, the officer to whom it
was assigned shall make a report to the judge who issued the warrant. In case of failure
to execute the warrant, he shall state the reasons for such failure.99 In case of a successful
implementation of the warrant resulting in the arrest of the accused, the arresting officer
shall deliver the accused to the nearest police station or jail forthwith or without unneces-
sary delay.100
5.8. Warrant of Arrest Valid Anywhere in

the Philippines
Curiously, unlike the warrantless arrest of an escaped prisoner,101 there is nothing in

the Rules categorically stating that a warrant of arrest may be served anywhere in the
Philippines or outside of the territorial jurisdiction of the issuing court. That said, a war-
rant of arrest may be served anywhere in the Philippines regardless of the station or terri-
torial jurisdiction of the issuing court under the Judiciary Reorganization Act of 1980.102
5.9. Time to Issue and Implement Warrant of Arrest
A warrant of arrest may only be issued by the judge after determination of probable
cause.103 This determination is the personal responsibility of the judge.104 The sufficiency
of the evaluation or review made by the judge cannot be measured by merely counting
minutes and hours.105 Thus, the warrant may be issued on the same day,106 in barely
one hour and twenty minutes,107 or in a matter of few hours,108 after the case is filed
in court, provided the constitutional mandate of determining probable cause is complied
with. That said, neither may the evaluation be exercised baselessly or capriciously such
as when the documents and evidence submitted by the investigating prosecutor are insuf-
ficient to support his conclusion to indict109 or when the Ombudsman failed to weigh the
evidence carefully and to deliberate thereon amounting to merely passing the buck,
leaving the determination of probable cause to the Sandiganbayan.110 Such failure to
weigh the evidence amounts to dereliction of duty.111

100 Rules of Court, Rule 113, Sec. 3, Sec. 5, last paragraph.
101 Rules of Court, Rule 113, Sec. 13:Arrest after escape or rescue. If a person lawfully arrested escapes or is
rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within
the Philippines.
102 Batas Pambansa Blg. 129, Sec. 37, last paragraph; Sec. 38, (2).
103 Rules of Court, Rule 112, Section 5;
104 Soliven v. Makasiar, 167 SCRA 394, November 14, 1988 as cited in Ho v. People, G.R. No. 106632 & 106678,
October 9, 1997.
105 Webb v. De Leon, G.R. No. 121234. August 23, 1995.
106 Ribaya v. Binamira-Parcia, A.M. No. MTJ-04-1547. April 15, 2005.
107 In Re: Enrile v. Salazar, G.R. No. 92163 and G.R. No. 92164. June 5, 1990.
108 Webb v. De Leon, G.R. No. 121234, August 23, 1995.
109 Allado v. Diokno, G.R. No. 113630, May 5, 1994.
110 Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001 citing Venus v. Desierto, 298 SCRA 196, 214-
216 [1998].
111 Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001 citing Bernardo v. Mendoza, 90 SCRA 214
[1979]; Vda. de Jacob v. Puno, 131 SCRA 148-149 [1984].
128 The IBP Journal

An arrest may be made on any day and at any time of the day or night.112 Thus, a war-
rant of arrest may be issued and served on a Friday and the fact that accused languished
in jail on Saturday and Sunday, does not invalidate the warrant and the arrest. After all,
he could have posted bail for his temporary liberty even on weekends and holidays.113
The implementation of a warrant of arrest cannot be deferred while the resolution by
the investigating prosecutor to file the information is pending review by the Secretary of
Justice.114 Such deferment would amount to an encroachment on the exclusive preroga-
tive of the judge to issue said warrant.115
5.10. Lifetime of a Warrant of Arrest
The period to enforce an arrest warrant does not expire and it remains indefinitely
effective until the accused has been arrested, has surrendered, or the warrant has been
recalled or lifted.116 A criminal case may be archived after the issuance of the warrant of
arrest where the accused remains at large for six (6) months after delivery of the warrant
to the proper peace officer. Meanwhile, the Court shall issue an alias warrant before is-
suing an order to archive the case, which order shall be furnished to the complainant.117
This means that even while the case is archived, the warrant to arrest the accused remains
effective. The order to archive the case shall require the peace officer to explain why the
accused was not apprehended.118
6. Arrest Without a Warrant
Arrest without a warrant precedes the filing of a case in court either for purposes of
preliminary investigation or of trial. The illegality of a warrantless arrest may be waived,
which waiver does not extend to the inadmissibility of evidence seized during an illegal
arrest.119
A police officer or a private person may make a lawful warrantless arrest120 under the
following circumstances:
112 Rule of Court, Rule 113, Sec. 6.

113 Colorado v. Agapito, A.M. MTJ-06-1658, July 3, 2007 citing Supreme Court Circular No. 95-96 10 dated
December 5, 1996: 6. Duty during weekends and holidays. All Executive Judges, whether in single sala courts or
multiple sala stations shall assign, by rotation, Metropolitan Trial Judges, Municipal Trial Judges and Municipal
Circuit Judges within their respective territorial areas to be on duty on Saturday from 8:00 a.m. to 1:00 p.m.
assisted by a skeletal force, also on rotation, primarily to act on petitions for bail and other urgent matters.
On Saturday afternoons, Sundays and non-working holidays, any Judge may act on bailable offenses conform-
ably with the provisions of Section 7, Rule 112 of the Rules of Court.
All Executive Judges, whether in single sala or multiple sala shall remain on duty on Saturday mornings.
114 Viudez II v. Court of Appeals, G.R. No. 152889, June 5, 2009.
115 Viudez II v. Court of Appeals, G.R. No. 152889, June 5, 2009.
116 Malaloan v. Court of Appeals, G.R. No. 104879, May 6, 1994.
117 Supreme Court Administrative Circular No. 7-92.
118 Supreme Court Administrative Circular No. 7-92; Report on the Judicial Audit of Cases in the Regional Trial
Court, A.M. No. 97-8-262-RTC, November 27, 1998.
119 People v. Lapitaje, G.R. No. 132042, February 19, 2003.
120 Rules of Court, Rule 113, Secs. 7, 8, and 9.

Oscar G. Raro
(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.121
These three contemplations of lawful warrantless arrests are known in jurisprudence

as arrest in flagrante delicto,122 arrest during hot pursuit,123 and arrest of escaped prisoner.
For the first, the arresting officer must be present, and therefore, must have direct personal
knowledge of the crime being intended, being committed, or had just been committed; for
the second, he must have probable cause based on personal knowledge of the facts that the crime
was committed; and for the third, he is neither required to have personal knowledge nor
probable cause of the crime for which the prisoner is detained, but only of the fact that
the prisoner who escaped is either convicted by final judgment or awaiting judgment on
his case.
For in flagrante arrest and arrest in hot pursuit, the officers personal knowledge of the
fact of the commission of an offense is absolutely required.124 Personal knowledge must
not be equated with experience in previous arrests made. Thus, it does not amount
to personal knowledge as it is incredible, for the arresting officer to see, based on such
experience, that while he was riding a motorcycle from a distance of eight to ten meters,
he could see the minuscule amount of powdery substance (0.03 gram) inside a plastic
sachet being held by the accused125
These three instances of warrantless arrests are exceptions to the constitutional man-
date that arrest to be reasonable must be by virtue of a warrant. Their application must
be strictly construed in favor of the accused.126
Warrantless arrest may be executed by a private citizen through a citizens arrest.

When a police officer made the arrest outside his territorial area of jurisdiction, the arrest
is justified as a citizens arrest.127 A citizens arrest, however, must likewise comply with the
strict conditions for a warrantless arrest. Thus, there is no lawful warrantless arrest done
by a member of the Citizens Crime Watch, who was not a witness to the incident, nor a
member of the investigating team, and therefore, would not have any personal knowledge

122 Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997.
123 People v. Doria, G.R. No. 125299, January 22, 1999.
124 People v. Villareal, G.R. No. 201363, March 18, 2013.
125 People v. Villareal, G.R. No. 201363, March 18, 2013.
126 People v. Burgos, 144 SCRA 1 at 14 [1986]; In Re: Umil v. Ramos, G.R. Nos. 81567, 84581-82, 84583-84,
83162, 85727, G.R. No. 86332, J. Feliciano, concurring and dissenting.
127 People v. Rayray, G.R. No. 90628, February 1, 1995.
130 The IBP Journal

of the crime.128
6.1. Arrest In Flagrante Delicto
Two conditions must precede an arrest in flagrante delicto to be lawful: (1) the person
to be arrested must execute an overt act indicating that he has just committed, is actu-
ally committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.129 In short, what is required is personal
knowledge that, and presence of the arresting officer while, the accused intends to commit,
actually committing, or has just committed a crime. Thus, even if intelligence report may
be equated with personal knowledge of the commission of the crime, an arrest may not
be made without warrant since the crime was not committed in the presence of the ar-
resting officer.130
Personal knowledge goes beyond mere belief but must be based on overt acts by
the accused that he intends to do, is actually doing, or had just done a crime,131 or that the
behavior or conduct of the person to be arrested is clearly indicative of a criminal act.132
.133 Thus, the fact that the accused and the informant were just talking with each other,
and upon being approached by the arresting officer the accused attempted to run away, is
irrelevant and cannot by itself be construed as adequate to charge the police officer with
personal knowledge that the accused just engaged in, was actually engaging in or was at-
tempting to engage in criminal activity.134 It must not be equated with personal gathering
of information conducted by the police.135 It refers to facts or circumstances convinc-
ingly indicative or constitutive of probable cause.136 Probable cause, in this context, is
such facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed by the person sought to be arrested.137
Thus, a reliable information alone received two days before,138 or the previous af-
128 People v. Mendez, G.R. No. 147671, November 21, 2002.

129 People v. Edao, G.R. No. 188133, July 7, 2014; People v. Villareal, G.R. No. 201363, March 18, 2013, citing
Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611, 624, citing People v. Tudtud, 458 Phil.
752, 775 (2003); Ambre v. People, G.R. No. 191532, August 15, 2012 citing People v. Chua, 444 Phil. 757, 770
(2003).
130 People v. Montilla, G.R. No. 123872, January 30, 1998, J. Panganiban, concurring and dissenting.
131 People v. Elamparo, G.R. No. 121572, March 31, 2000; People v. Molina, G.R. No. 133917, February 19,
2001; People v. Briones, G.R. No. 90319, October 15, 1991; This is an identical requirement imposed upon the
complainant and his witnesses in the application for search warrant.
133 People v. Binad Sy Chua, G.R. No. 136066-67, February 4, 2003.
134 People v. Edao, G.R. No. 188133, July 7, 2014.
135 People v. Manlulu, G.R. No. 102140, April 22, 1994.
136 People v. Chua Ho San, G.R. No. 128222, June 17, 1999 citing People v. Encinada, 280 SCRA 72, at 85
[1997];; People v. Montilla, 285 SCRA 703 [1998]; People v. Claudio, 160 SCRA 646 [1988]; People v. Maspil,
Jr., 188 SCRA 751 [1988]; People v. Lo Ho Wing, 193 SCRA 122 [1991]; People v. Tangliben, 184 SCRA 220
[1990]; Posadas v. Court of Appeals, 188 SCRA 288 [1990]; People v. Malmstedt, 198 SCRA 401 [1991].
137 Martinez v. People, G.R. No. 198694, February 13, 2013.
138 People v. Aminnudin, 163 SCRA 402, July 6, 1988, J. Cruz.

Oscar G. Raro
ternoon, or just hours before,139 that accused is transporting prohibited drugs,140does not
equate to personal knowledge to make the arrest lawfully in flagrante. These situations
should not be confused where the police, after receiving reliable information, did not
just arrest the suspect on sight, but as a result of a buy-bust operation set-up thereafter
against the suspect. In these cases, the in flagrante arrest will obviously be sustained because
the basis of the warrantless arrest is not the reliable information alone, but the act of the suspect
committing the crime in the presence of the arresting officer during entrapment.141
Presence does not only mean that the arresting person sees the offense even at a
distance.142 It also covers situation when he only hears a disturbance which prompted him
to proceed promptly to the scene of the crime.143 But there is no presence to justify in
flagrante commission of the crime of tampering with an electric meter when the assignee
of such meter was not around during the inspection. Thus, a warrantless arrest is illegal
when made nineteen hours later144 or a day thereafter145 after the commission of the of-
fense. Also, while a warrantless arrest is valid against a person caught red-handed in pos-
session of a prohibited substance, the warrantless arrest of the person which he pointed as
his source is illegal for not being based on the arresting officers personal knowledge.146
6.2. Arrest in Hot Pursuit
The preconditions for hot pursuit arrest are that a crime has just been committed
as a fact147 and the person making the arrest has personal knowledge of facts indicating
that the person to be arrested has committed it.148 As distinguished from in flagrante ar-
139 People v. Binad Sy Chua, G.R. No. 136066-67, February 4, 2003; People v. Molina, G.R. No. 133917, February
19, 2001.
140 People v. Encinada, G.R. No. 116720, October 2, 1997, per Panganiban, J .
141 People v. Aspiras, G.R. Nos. 138382-84, February 12, 2002; Tecson v. Court of Appeals, G.R. No. 113218,
November 22, 2001; People v. Lacap, G.R. No. 139114, October 23, 2001; People v. Beriarmente, G.R. No.
137612, September 25, 2001; People v. Ganenas, G.R. No. 141400; People v. Gonzales, G.R. Nos. 113255-
56, July 19, 2001; People v. Zheng Bai Hui, G.R. No. 127580, August 22, 2000; People v. Montano, G.R. No.
130836, August 11, 2000; People v. Sy Bing Yok, G.R. No. 121345, June 23, 1999; People v. Juatan, G.R. No.
104378, August 20, 1996; People v. Abbu, G.R. No. 93728, August 21, 1995; People v. Morico, G.R. No. 92660,
July 14, 1995; People v. Garcia, G.R. No. 105805, August 16, 1994; People v. Manalo, G.R. No. 107623, Feb-
ruary 23, 1994; People v. Ponsica, G.R. No. 108176, February 14, 1994; People v. Macasa, G.R. No. 105283,
January 21, 1994; People v. Gonzales, G.R. No. 106098, December 7, 1993; People v. Yumang, G.R. No. 94977,
May 17, 1993; People v. Eligino, G.R. No. 70113, December 11, 1992; People v. Peero, G.R. No. 91284, Sep-
tember 3, 1992, numerous cases.
142 People v. Alunday, G.R. No. 181546, September 3, 2008 citing People v. Sucro, G.R. No. 93239, 18 March
1991, 195 SCRA 388.
143 People v. Sucro, G.R. No. 93239, 18 March 1991, 195 SCRA 388 citing U.S. v. Fortaleza, 12 Phil. 472 [1909];
and U.S. v. Samonte, 16 Phil. 516 [1910]; Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997 citing
U.S. v. Samonte, 16 Phil. 516, 519, citing 3 Cyc., 886; Ramsey v. State, 17 S. E., 613; Dilger v. Com., 11 S. W.,
651; State v. McAfee, 12 S. E., 435; State v. Williams, 15 S. E., 554; and Hawkins v. Lutton, 70 N. W., 483; Also
People v. Del Rosario, G.R. No. 127755, April 14, 1999.
144 People v. Manlulu, G.R. No. 102140, April 22, 1994.
145 People v. Cendana, G.R. No. 84715, 17 October 1990, 190 SCRA 538.
146 People v. Enrile, G.R. No. 74189. May 26, 1993.
147 People v. Montilla, G.R. No. 123872, January 30, 1998.
148 People v. Villareal, G.R. No. 201363, March 18, 2013 citing People v. Cuizon, G.R. No. 109287, April 18, 1996,
256 SCRA 325, 341; People v. Agojo, G.R. No. 181318, April 16, 2009 citing People v. Del Rosario, 365 Phil.
292, 312 [1999].
132 The IBP Journal

rest, presence of the arresting officer during the actual commission of the offense is not
required in arrest in hot pursuit, as it suffices that the crime has just been committed
and the person arrested committed it based on personal knowledge of facts pointing to
the accused as the perpetrator.149
Thus, while an accused may not be arrested in flagrante for lack of presence of the ar-
resting officer, he may be arrested in hot pursuit.150 In one case,151 the police officers wit-
nessed in their presence the pay-off which consummated the crime of kidnapping. Had
they arrested the kidnappers at that time, it will constitute lawful in flagrante arrest. How-
ever, for one reason or the other, they did not make any arrest and instead just relayed
their knowledge of the crime to the other police officers stationed where the perpetrators
were expected to pass by. The consequent arrest made by these other officers is justified
by the Court as arrest in hot pursuit.
Personal knowledge of facts must be based on probable cause, which means an actu-
al belief or reasonable grounds of suspicion152 coupled with good faith on the part of the
arresting officer.153 In the absence of actual belief, the grounds of suspicion is reasonable
when the suspicion of the guilt of the person to be arrested is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable cause
of guilt of the person to be arrested.154 A classic example of the situation contemplated
here is when a policeman was summoned to the scene of a shooting incident, and upon
arrival found that a person was indeed shot where witnesses pointed to the assailant who
was then fleeing the scene of the crime moments after the shooting.155

The pursuit leading to the arrest must be hot or fresh which means immediately
after the commission of the offense and not six days156 or one or two days157 thereafter.
This is so because the phrase has in fact just been committed connotes immediacy in
point of time and excludes cases under the old rule where an offense has in fact been
committed no matter how long ago.158
That said, hot pursuit is a relative term depending upon the circumstances of the
arrest. Thus, a valid hot pursuit arrest was sustained when made: some twelve hours
after the commission of carnapping where the accused, after being tipped off to the po-
lice, was apprehended while walking toward the stolen vehicle with the key to the car in

150 People v. Agojo, G.R. No. 181318, April 16, 2009
151 People v. Uyboco, G.R. No. 178039, January 19, 2011.
152 People v. Cubcubin, Jr., G.R. No. 136267, July 10, 2001 citing People v. Mahusay, 282 SCRA 80 (1997); See
Posadas v. Ombudsman, G.R. No. 131492, September 29, 2000; Cadua v. Court of Appeals, 312 SCRA 703
(1999); People v. Doria, 301 SCRA 668 (1999).
155 People v. Jayson, G.R. No. 120330, November 18, 1997.
156
Lumanog v. People, G.R. Nos. 182555, 185123 and 187745, September 7, 2010; Also see Go v. Court of Ap-
peals, G.R. No. 101837, February 11, 1992.
157 People v. Aminola, G.R. No. 178062, September 8, 2010 (issue of illegal warrantless arrest, however, deemed
waived for failure to raise it during trial, but only during appeal).
158 Ilagan v. Enrile, G.R. No. 70748, October 21, 1985, Dissenting opinion of J. Teehankee.

Oscar G. Raro
his possession;159 or in the afternoon after discovering in the morning the lifeless body of a
person with numerous stab wounds, and on the basis of information given by witnesses,
the accused was arrested with blood stains still on his clothes matching those in the knife
used in the killing;160 or three hours after the killing where the accused was arrested on the
basis of an information provided by the assailants neighbor, who witnessed the killing;161
or immediately after a robbery against the driver and passengers of a jeepney where the ac-
cused were arrested on the basis of the information provided by the driver and passengers
themselves and where one of the passengers who accompanied the arresting team saw his
jacket still being worn by one of the accused when arrested.162
6.3. Arrest of Escaped Prisoner
An escaped prisoner, whether detained by reason of final judgment or in temporary

confinement while his case is pending may be arrested even without a warrant.163 Any
person, not necessarily a peace officer, may immediately pursue or retake the escapee
at any time and in any place within the Philippines.164 An escaped prisoner confined by
reason of final judgment may be arrested not only because of the fact of his escape but
that escape by itself is a continuing offense of Evasion of Service of Sentence.165 Thus he
may be subjected also to in flagrante arrest without warrant.166
A minor committed to the Philippine Training for Boys, an educational institution

and not a prison, who escapes from said institution, does not have the status of a preso fu-
gado or escaped prisoner.167 It follows that he could not be arrested as an escaped prisoner.
A convict sentenced and ordered to serve two years and four months of destierro dur-
ing which he should not enter any place within the radius of 100 kilometers from the City
of Manila, is guilty of evasion of sentence if he enters such prohibited area.168 He may be
arrested for evasion of service of sentence, but not as an escaped prisoner since destierro,
while also a deprivation of liberty, does not constitute imprisonment. 169
7. Illegality of Warrantless Arrest Waivable
The illegality of a warrantless arrest may be deemed waived by not raising the ques-
tion of its illegality before plea,170 by failure to move to quash the information on that
159 People v. Sinoc, G.R. No. 113511-12, July 11, 1997.

160 People v. Tonog, Jr., G.R. No. 94533, February 4, 1992, 205 SCRA 774 (1992).
161 People v. Gerente, 219 SCRA 756 (1993).
162 People v. Acol, 232 SCRA 406 (1994).
163 Salonga v. Holland, G.R. No. L-268. Marzo 28, 1946.76 Phi. 412 [1946]
165 Revised Penal Code, Arts. 157 to 159.
166 Parulan v. Director of Prisons, G.R. No. 28519, February 17, 1968.
167 People v. Soler, G.R. No. 45263, December 29, 1936.
168 People v. Abilong, G.R. NO. 1960, November 26, 1948.
169 People v. Bastasa, G.R. No. 32792, February 2, 1979.
170 People v. Lara, G.R. No. 199877, August 13, 2012 citing People v. Ayangao, 471 Phil. 379, 387-388 (2004).;
People v. Kimura, G.R. No. 130805, April 27, 2004.
134 The IBP Journal

ground before the trial court,171 and, under the old Rules and jurisprudence, by applying
for bail even if denied.172 Application for bail now, however, shall not amount to such
waiver of illegal arrest provided the question is raised before plea.173 Thus, the illegality of
the warrantless arrest may be raised even after posting bail but must be raised in a motion
to quash or other appropriate pleadings,174 before arraignment.175
That said, accuseds waiver of illegal warrantless arrest or his failure to raise such is-
sue before arraignment, does not amount to a waiver of the inadmissibility of evidence
seized during such illegal arrest.176 Therefore, once raised in an objection to the prosecu-
tions offer of evidence, such issue may be raised on appeal. In the same vein, even if the
warrantless arrest was proven to be indeed invalid, such illegal arrest is not sufficient to set
aside a valid judgment rendered upon sufficient complaint after a trial free from error.177
This is so because the illegality of the warrantless arrest cannot deprive the State of its
right to prosecute the guilty when all other facts on record point to his culpability.178
8. Method and Manner of Arrest
In both arrests by an officer of the law or by a private person, the arrester must iden-
tify himself, and communicate his intention to and the cause of, the arrest to the person
to be arrested.179 If the arrest is by virtue of a warrant, such fact must likewise be com-
municated to the person to be arrested, even while the officer need not have the warrant
in his possession at the time of arrest.180
There is no need to make such announcement of cause and intent when the subject
of the arrest, before the officer can do so, flees or forcibly resists or if such announce-
ment would imperil the arrest.181 The same announcement, plus the authority of the per-
son making the arrest, is required in arrest without a warrant. But such announcement is
unnecessary when the subject is engaged in the commission of an offense, being pursued
immediately after its commission, or in the act of escaping, fleeing or forcibly resisting
before the announcement could be made. The announcement may likewise be dispensed
171 Id. citing People v. Timon, 281 SCRA 579, 597.

172 Now, bail is no longer a bar to objections on illegal arrest, lack of or irregular preliminary investigaiton. (Rules
of Court, Rule 114, Section 26).
173 Rules of Court, Rule 115, Section 26; Rebellion v. People, G.R. No. 175700, July 5, 2010; People v. Tan,
G.R. No. 191069, November 15, 2010.
174 e.g. Motion for Determination of Lack of Probable Cause, Motion to Suppress Evidence obtained during an
illegal search and arrest.
175 People v. Velasco, G.R. No. 190318, November 27, 2013 citing Miclat, Jr. v. People, G.R. No. 176077, August
31, 2011, 656 SCRA 539, 549
176 People v. Lapitaje, G.R. No. 132042, February 19, 2003, 397 SCRA 674; Valdez v. People, G.R. No. 170180,
November 23, 2007, 538 SCRA 611.
177 People v. Velasco, G.R. No. 190318, November 27, 2013 citing People v. Trestiza, G.R. No. 193833, November
16, 2011, 660 SCRA 407, 443-444.
178 People v. Yau, G.R. No. 208170, August 20, 2014 citing People v. Manlulu, G.R. No. 102140, April 22, 1994,
231 SCRA 701, 710; People v. Calimlim, 416 Phil. 403, 420 (2001).
179 Rules of Court, Rule 113, Secs. 7, 8, and 9;
180 Rules of Court, Rule 113, Secs. 7.
181 Rules of Court, Rule 113, Secs. 7, 8, and 9; People v. Tan, G.R. Nos. 116200-02, June 21, 2001.

Oscar G. Raro
with if it will imperil the arrest.182
No violence or unnecessary force shall be employed in making the arrest and

the person arrested shall not be subject to a greater restraint than is necessary for his
detention.183 That said, an officer who is refused entry despite announcing his authority
and purpose, may break into any building or enclosure where the suspect is or is reason-
ably believed to be,184 and thereafter, break out of the said enclosure when necessary to
liberate himself.185
The officer making a lawful arrest may seek assistance by orally summoning as many
persons he deems necessary to effect the arrest, but the person so summoned shall assist
in the arrest without detriment or danger to himself.186
9. Duty of Person Making Warrantless Arrest
In cases of arrest without warrant, both in arrest in flagrante delicto and hot pursuit,
the arrested person shall be proceeded by inquest and the case filed in court without
preliminary investigation.187 In case of arrest of escaped prisoner, no such provision for
inquest is provided under the Rules.188 Obviously, the reason for the omission is that an
inquest procedure is unnecessary since an escaped prisoner is either already convicted by
final judgment or his case has already been filed in court for trial. That may be so, but
escape from prison also constitutes evasion of service of sentence189 for those convicted
by final judgment. Therefore, in the latter case, the inquest procedure must likewise be
required as the arrest for evasion of sentence is in flagrante, the crime being continuing in
nature. 190

10. Remedies against Arrest and Detention
10.1. Criminal Cases Against the Arresting Officer
Any person who made an illegal arrest may be criminally prosecuted for Unlawful
Arrest under the Revised Penal Code.191 The elements of unlawful arrest are that the of-
fender, who may be a police officer or a private person, arrests or detains another without
any authority in law or reasonable ground for the arrest for purpose of delivering him to
the proper authorities.192 The public officer or employee who made the illegal arrest may

183 Rules of Court, Rule 113, Secs. 2.
187 Rules of Court, Rule 112, Sec.7.
189 Revised Penal Code, Arts. 157 to 159.
190 Parulan v. Director of Prisons, G.R. No. 28519, February 17, 1968.
191 Unlawful Arrest under Articles 269 or Arbitrary Detention under Article 124 Revised Penal Code. (Morales v.
Enrile, G.R. Nos. 61016 and 61107, April 26, 1983.
192 Reyes, L.B., II The Revised Penal CodeI 551 (16th Ed. 2006).
136 The IBP Journal

likewise be prosecuted for Arbitrary Detention, also under the Revised Penal Code.193
10.2. Demand for Preliminary Investigation

and Application for Bail
If the warrantless arrest is lawful, the person arrested may prevent the conduct of
inquest and immediate filing of the case without preliminary investigation, by demanding
the conduct of preliminary investigation upon signing of waiver, in the presence of his
counsel,194 of Article 125 of the Revised Penal Code.195 The preliminary investigation in
this case must be terminated within fifteen (15) days from its inception. The accused shall
have the right to apply for bail meanwhile.196 This application for bail may be filed with
any court in the province, city, or municipality where he is being held.197
If the case is already filed in court, that is, after the filing of the complaint or infor-
mation, the accused may, within five (5) days from the time he learns of such filing, ask
the court for a preliminary investigation with the same right to adduce evidence in his
defense. This period of five (5) days is mandatory for while the Rules indeed give the ac-
cused the right to ask for a preliminary investigation, such right does not extend beyond
the lapse of the five-day period.198 The five-day period to demand the conduct of pre-
liminary investigation applies only in cases where the case is filed in court through inquest
and does not apply when the case is filed in court after the conduct of a regular prelimi-
nary investigation even if the accused was deprived of the right to file counter-affidavit
for lack of notice or for some other reasons. In the case of the latter, the motion should
be for reinvestigation or for reconsideration of the adverse resolution of the investigating
prosecutor upon prior approval of the Court,199 which motion may be filed even after
posting bail but before entering his plea.200
10.3. Motion to Quash or Recall Warrant of

Arrest; Certiorari
The propriety of the issuance of a warrant of arrest may be questioned in a motion to

quash a warrant of arrest201 which should be done before plea or arraignment.202 Thus, a
warrant of arrest may be quashed when issued against union members and organizers for
193 Article 124.
194 Rules of Court, Rule 112, Sec. 7, last paragraph.
195
Delay in the delivery of detained persons, when the person detained was not delivered to the proper judicial au-
thorities within twelve (12) hours for crime or offenses punishable by light felonies or their equivalent; eighteen
(18) hours, for those punishable by correctional penalties or their equivalent; and thirty-six (36) hours, for crimes
or offenses punishable by afflictive or capital penalties, or their equivalent.
196 Rules of Court, Rule 112, Sec. 7,
198 People v. Court of Appeals, G.R. No.116623, March 23, 1995 citing People v. Figueroa, 27 SCRA 1239 [1969].
199 Crespo v. Mogul, G.R. No. L-53373, June 30, 1987, 151 SCRA 462, 467; Dungog v. Court of Appeals, G.R.
No. 77850-51, March 25, 1988; Adasa v. Abalos, G.R. No. 168617, February 19, 2007, J. Ynares-Santiago,
concurring.
200 Rules of Court, Rule 114, Section 26; People v. Red, 55 Phil. 706, 711 [1931]; Borlongan v. Pea, G.R. No.
143591, May 5, 2010.
201 Verzosa v. Contreras, A.M. No. MTJ-06-1636, March 12, 2007.
202 People v. Gomez, G.R. No. 131946-47, February 8, 2000.

Oscar G. Raro
illegal strike when the law then in force required prior determination of the illegality of
the strike by the National Labor Relations Commission, especially so, when the said law
has been repealed;203 or when the warrant was preceded by an improper or incomplete
preliminary investigation.204 If the motion is denied, the accused may file a petition for
certiorari for lack of jurisdiction or grave abuse of discretion amounting to lack of jurisdic-
tion of the issuing court.205 A certiorari petition may likewise be filed even without resorting
first to a motion to recall warrant of arrest under certain exceptional circumstances such
as when the warrant of arrest was issued by a judge after having been merely offended by
the language of counsel in his motion to inhibit the judge,206 or when a warrant was issued
without personally examining the evidence to determine probable cause.207
The absence of probable cause for the issuance of a warrant of arrest, however, is not
a ground to quash the Information, but is a ground for the dismissal of the case.208
10.4. Habeas Corpus and Certiorari
The high prerogative writ of habeas corpus has been devised as a speedy and effective
remedy to relieve persons from unlawful restraint. Its object is to inquire into the legality
of the detention, and, if the detention is found to be illegal, to require the release of the
detainee.209 Therefore, the writ will not issue where the person in whose behalf the writ is
sought is out on bail, or is in the custody of an officer under process issued by a court or
judge with jurisdiction or by virtue of a judgment or order of a court of record.210 It is not
the proper remedy in a case where a warrant of arrest is assailed for an alleged improper
preliminary investigation.211 The remedy of the detainee is to file a motion to quash the
warrant and to ask for the conduct of preliminary investigation.
But if the arrest and detention are illegal, the detainee may file a petition for habeas
corpus.212
A petition for habeas corpus and certiorari may be combined in one petition.213 The union
of these two extraordinary writs in one action stems from the doctrine that both remedies
203 Federation of Free Workers v. Caguioa, G.R. No. 52292, May 16, 1985.
204
Alimpoos v. Court of Appeals, G.R. No. 27331, July 30, 1981; Sales v. Sandiganbayan, G.R. No. 14382, No-
vember 16, 2001.
205 Rules of Court, Rule 65; Federation of Free Workers v. Caguioa, G.R. No. 52292, May 16, 1985; Octubre v.
Velasco, A.M. No. MTJ-02-1444, July 22, 2004; Borlongan v. Pea, G.R. No. 143591, May 5, 2010; Abdula v.
Guiani, G.R. No. 118821, February 18, 2000.
206 Ceniza v. Sebastian, G.R. No. 39914, July 2, 1994.
207 Allado v. Diokno, G.R. No. 113630, May 5, 1994.
208 Rules of Court, Rule 112, Section 5; People v. Sandiganbayan, G.R. No. 144159, September 29, 2004.
209 Mangila v. Pangilinan, G.R. No. 160739, July 17, 2013.
210 Mangila v. Pangilinan, G.R. No. 160739, July 17, 2013 citing In Re: Azucena L. Garcia, G.R. No. 141443,
August 30, 2000, 339 SCRA 292, 301.
211 Alimpoos v. Court of Appeals, G.R. No. 27331, July 30, 1981 citing Luna v. Plaza, 26 SCRA 310, 323 [1968].
212 In the Matter of the Petition for Habeas Corpus of Benjamin Vergara, G.R. No. 154037, April 30, 2003;
213 Calvan v. Court of Appeals, G.R. No. 140823, October 3, 2000 citing 39 Am. Jur. 2d Habeas Corpus, Section
175.
138 The IBP Journal

are ancillary to each other.214 Thus, while the question that may be considered in both
writs is whether an inferior court has exceeded its jurisdiction, habeas corpus involves a
collateral attack on the order questioned and reaches the body but not the record, while
certiorari assails directly the questioned order and reaches the record but not the body.215
The writ of habeas corpus cannot be resorted to in cases of disappearance, the writ be-
ing a remedy to relieve a person from unlawful restraint.216
10.5. Action for Damages for Violation

of Constitutional Rights
The Civil Code makes liable for damages any public officer or employee or any
private individual who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs constitutional rights such as freedom from arbitrary arrest or illegal
detention and right to be secure in ones person against unreasonable searches and sei-
zures, among others.217 This action for damages for illegal arrest or detention is available
even during the period when the writ of habeas corpus is suspended; habeas corpus being a
remedy for the person illegally confined to be released from detention while damages are
explicitly recognized under the Civil Code.218
214 Galvez v. Court of Appeals, 237 SCRA 685 [1994]

215 Velasco v. Court of Appeals, 245 SCRA 677 at 684 [1995].
216 Martinez v. Mendoza, G.R. No. 153795, August 17, 2006; Burgos v. Esperon, Jr., G.R. No. 178497. February
4, 2014 and companion cases.
217 Civil Code, Article 32.
218 Aberca v. Ver, G.R. No. 69866, April 15, 1988 citing Article 1146 of the Civil Code.

Rommel J. Casis
Analytical Survey of 2013 Decisions on
Torts and Quasi-Delicts
Rommel J. Casis*
1. INTRODUCTION
This paper is a survey of 2013 decisions on Torts and Quasi Delicts. The cover-
age may seem peculiar to some considering that in many decisions, the term tort is
often considered an equivalent of the term quasi-delict. But any civil law scholar would
point out that the common law tort is not the same as civil laws quasi-delictor culpa aquili-
ana having emanated and evolved independently from two different legal traditions. The
distinction is further buttressed by the Code Commissions express rejection of the use of
the term tort in the entire Civil Code.1 Nevertheless, this rejection did not mean the
complete absence of tort as a concept in the same code. The code has various provisions
on what appears to be the equivalent of several kinds of torts in this jurisdiction. Quasi-
delict itself may be considered as a functional equivalent of one kind of tort, that is a tort
committed via negligence. Therefore, while tort and quasi-delictare not equivalent terms,
the latter may be considered as one of the actions covered by the former or that the latter
is a subset of the former.
A more exhaustive discussion may be found elsewhere2 but for purposes of this paper,
quasi-delict refers to the concept described in Article 2176 which states:
Article 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provi-
sions of this Chapter. (1902a)
As Article 2180 provides, the obligation imposed by Article 2176 is demandable not
only for ones own acts or omissions, but also for those of persons for whom one is respon-
sible. Article 2180, as amended by the relevant provisions of the Family Code, lists these
persons vicariously responsible for certain actors. This in a nutshell would constitute the
actions based on quasi-delict.
On the other hand, tort would be considered as a classification of actions found in

different parts of the Civil Code, which generally gives rise to an action for damages as a
result of the injury caused to the plaintiff. These actions would include:
quasi-delict (Articles 2176 and 2180);

strict liability tort (Articles 1711, 1723, 2183, 2187, 21892193);
* Tenured Faculty Member, University of the Philippines College of Law; LL.M. Columbia Law School; LL.B
University of the Philippines College of Law; B.A. Political Science, University of the Philippines College of
Social Sciences and Philosophy.
1 Napoleon Malolos and Teodoricomartin, Report of the Code Commission: With Annotations, 161-162
(1951).
2 Casis, Rommel J., Analysis of Philippine Law and Jurisprudence on Torts and Quasi-Delicts42-45 (2013).
140 The IBP Journal

Analytical Survey of 2013 Supreme Court Decisions on Torts and Quasi-Delicts
human relations torts (Articles 19, 20, 21, and 26);

and independent civil actions (Articles 32 to 35).
2. CONCEPTUAL FRAMEWORK
Cathay Pacific v. Reyes3
The respondents filed a complaint for damages against Cathay Pacific Airways and
Sampaguita Travel Corporation because their bookings for their return flight were can-
celled.
The Court characterized the cause of action as one based on a breach of a contract
of carriage. It said:
Respondents cause of action against Cathay Pacific stemmed from a

breach of contract of carriage. A contract of carriage is defined as one
whereby a certain person or association of persons obligate themselves to
transport persons, things, or news from one place to another for a fixed
price. Under Article 1732 of the Civil Code, this persons, corporations,
firms, or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation, of-
fering their services to the public is called a common carrier.
It held that Cathay was liable for damages because of breach of contract.
Cathay Pacific breached its contract of carriage with respondents when

it disallowed them to board the plane in Hong Kong going to Manila on
the date reflected on their tickets. Thus, Cathay Pacific opened itself to
claims for compensatory, actual, moral and exemplary damages, attor-
neys fees and costs of suit.
The Court also found a contractual relation between Sampaguita Travel and re-
spondents based on a contract for services. It held that there was failure on the part of
Sampaguita Travel to exercise due diligence in performing its obligations under the con-
tract of services because it failed to input the correct ticket number for Wilfredos ticket.
The Court also awarded damages on the basis of the breaches of contract committed
by Cathay and Sampaguita and used the applicable Civil Code provisions on Damages
based on breach of contract.
However, after discussing the damages to be awarded, the Court also said:
Cathay Pacific and Sampaguita Travel acted together in creating the

confusion in the bookings which led to the erroneous cancellation of
respondents bookings. Their negligence is the proximate cause of the
technical injury sustained by respondents. Therefore, they have become
joint tortfeasors, whose responsibility for quasi-delict, under Article 2194
of the Civil Code, is solidary.
3 Cathay Pacific v. Reyes, G.R. No. 185891, June 26, 2013.

Rommel J. Casis
Therefore, based on this paragraph, the Court treated the action as based on quasi-
delict. The concepts of negligence and proximate cause would only be relevant if the ac-
tion was based on quasi-delict. If that is the case, then the argument can be made that the
Court in this case finds no problem with accepting the existence of a quasi-delict despite
the pre-existing contractual relationship.
It must be recalled thatArticle 2176 states:
Article 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provi-
sions of this Chapter. (1902a)
Thus, the second sentence has been interpreted4 to mean that there can be no quasi-
delictif there is a pre-existing contractual relationship. However, there is a fairly large body
of jurisprudence that accepts the possibility of having an action based on quasi-delict
despite the existence of a pre-existing contractual relationship.5
However, the paragraph in this case notwithstanding, this case cannot be considered
as one of those cases which support the view that a quasi-delict can exist despite a pre-
existing contractual relationship. The paragraph in question came after the Court ruled
that the action was based on breach of contract and after applying the Civil Code provi-
sions on damages based on contracts. Therefore the paragraph in question is obiter dictum.
Sps. Mamaril v. The Boy Scout of the Philippines6
The spouses Mamaril and Boy Scout of the Philippines (BSP) executed a contract
whereby the former would park their six passenger jeepneys every night at the latters
compound for a fee of P300.00 per month for each unit. However, one unit went missing
and was never recovered. According to the security guards of AIB Security Agency (AIB),
with whom BSP had contracted, a manfamiliar to them took the subject vehicle out of
the compound. The spouses Mamaril filed a complaint for damages against BSP, AIB
and the two security guards, arguing that the loss was due to the gross negligence of the
security guards.
The trial court held the defendantssolidarily liable but the appellate court absolved
BSP from liability. The Court affirmed the decision of the appellate court.
The Court explained:
Article 20 of the Civil Code provides that every person, who, contrary
to law, willfully or negligently causes damage to another, shall indemnify
the latter for the same. Similarly, Article 2176 of the Civil Code states:
4 Fores v. Miranda, G.R. No. L-12163, 4 March 1959.

5 Casis, supra note 3 at 73-104.
6 Sps. Mamaril v. The Boy Scout, G.R. No. 179382, January 14, 2013.
142 The IBP Journal

Art. 2176. Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation be-
tween the parties, is called a quasi-delict and is governed by the provi-
sions of this Chapter.
In this case, it is undisputed that the proximate cause of the loss of Sps.
Mamarils vehicle was the negligent act of security guards Pea and
Gaddi in allowing an unidentified person to drive out the subject ve-
hicle. Proximate cause has been defined as that cause, which, in natural
and continuous sequence, unbroken by any efficient intervening cause,
produces the injury or loss, and without which the result would not have
occurred. Moreover, Pea and Gaddi failed to refute Sps. Mamarils con-
tention that they readily admitted being at fault during the investigation
that ensued.
On the other hand, the records are bereft of any finding of negligence
on the part of BSP. Hence, no reversible error was committed by the CA
in absolving it from any liability for the loss of the subject vehicle based
on fault or negligence.
Neither will the vicarious liability of an employer under Article 2180 of

the Civil Code apply in this case. It is uncontested that Pea and Gaddi
were assigned as security guards by AIB to BSP pursuant to the Guard
Service Contract. Clearly, therefore, no employer-employee relationship
existed between BSP and the security guards assigned in its premises.
Consequently, the latters negligence cannot be imputed against BSP but
should be attributed to AIB, the true employer of Pea and Gaddi.
Thus, this case seems to have been decidedby applying the rules on quasi-delict. This
fact makes the citation of Article 20, which admittedly is not a provision related to an ac-
tion based on quasi-delict, out of place.Article 20 has been used to justify the award of
damages resulting from a violation of some law or statute. In this case, the only law that
appears to be violated is the Civil Code or specifically, Article 2176.
However it must be noted that there was a pre-existing contractual relationship be-
tween the parties. As the Court itself pointed out, the parties had a lessor-lessee relation-
ship and applied the rules on a contract of lease in determining the obligations of BSP.
Therefore in this case, the Court had no problem with applying the rules on quasi-
delict in a situation where there was a pre-existing contractual relationship. However, it
can be pointed out that the Court never explicitly said that there was a quasi-delict in
this case but merely applied the rules on quasi-delict to determine whether there was a
quasi-delict. But the ruling that there was no quasi-delict was not based on the existence
of a pre-existing contractual relationship but based on the absence of negligence on the
part of BSP. Nevertheless, it did rule that there was negligence on the part of the security
guards.

Rommel J. Casis
3. ABUSE OF RIGHTS
Tankeh v. DBP 7
The Court ruled that Ruperto Tankeh was liable to petitioner Alejandro Tankeh for
damages on the basis of Article 1344 which provides that the commission of incidental
fraud obliges the person employing it to pay damages.
The Court further ruled that in addition to a violation of Article 1344, there was also
a patent abuse of right on the part of Ruperto. It said:
This abuse of right is included in Articles 19 and 21 of the Civil Code

which provide that:
Article 19. Every person must, in the exercise of his rights

and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
Article 21. Any person who wilfully causes loss or injury to

another in manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Respondent Ruperto V. Tankeh abused his right to pursue undertakings in the inter-
est of his business operations. This is because of his failure to at least act in good faith and
be transparent with petitioner regarding Sterling Shipping Lines, Inc.s daily operations.
In National Power Corporation v. Heirs of MacabangkitSangkay, this Court held that:
When a right is exercised in a manner not conformable with the norms

enshrined in Article 19 and like provisions on human relations in the
Civil Code, and the exercise results to [sic] the damage of [sic] another, a
legal wrong is committed and the wrongdoer is held responsible.
The damage, loss, and injury done to petitioner are shown by the following circum-
stances.
First, petitioner was informed by Development Bank of the Philippines that it would
still pursue his liability for the payment of the promissory note. This would not have hap-
pened if petitioner had allowed himself to be fully apprised of Sterling Shipping Lines,
Inc.s financial straits and if he felt that he could still participate in the companys opera-
tions. There is no evidence that respondent Ruperto V. Tankeh showed an earnest effort
to at least allow the possibility of making petitioner part of the administration a reality.
The respondent was the brother of the petitioner and was also the primary party that
compelled petitioner Alejandro Tankeh to be solidarily bound to the promissory note.
Ruperto V. Tankeh should have done his best to ensure that he had exerted the diligence
to comply with the obligations attendant to the participation of petitioner.
7 G.R. No. 171428, November 11, 2013.
144 The IBP Journal

Second, respondent Ruperto V. Tankehs refusal to enter into an agreement or settle-

ment with petitioner after the latters discovery of the sale of the M/V Sterling Ace was
an action that constituted bad faith. Due to Rupertos refusal, his brother, petitioner Ale-
jandro, became solidarily liable for an obligation that the latter could have avoided if he
had been given an opportunity to participate in the operations of Sterling Shipping Lines,
Inc. The simple sale of all of petitioners shares would not have solved petitioners prob-
lems, as it would not have negated his liability under the terms of the promissory note.
Finally, petitioner is still bound to the creditors of Sterling Shipping Lines, Inc.,
namely, public respondents Development Bank of the Philippines and Asset Privatiza-
tion Trust. This is an additional financial burden for petitioner. Nothing in the records
suggested the possibility that Development Bank of the Philippines or Asset Privatization
Trust through the Privatization Management Office will not pursue or is precluded from
pursuing its claim against the petitioner. Although petitioner Alejandro voluntarily signed
the promissory note and became a stockholder and board member, respondent should
have treated him with fairness, transparency, and consideration to minimize the risk of
incurring grave financial reverses. (citations omitted)
Thus, the Court ruled in favor of the petitioner in this regard on the basis of the
abuse of right principle.
However, in awarding moral damages, the Court applied the rules in cases of breach
of contract. It said:
In Francisco v. Ferrer, this Court ruled that moral damages may be awarded
on the following bases:
To recover moral damages in an action for breach of con-

tract, the breach must be palpably wanton, reckless, mali-
cious, in bad faith, oppressive or abusive.
Under the provisions of this law, in culpa contractual or

breach of contract, moral damages may be recovered when
the defendant acted in bad faith or was guilty of gross neg-
ligence (amounting to bad faith) or in wanton disregard of
his contractual obligation and, exceptionally, when the act
of breach of contract itself is constitutive of tort resulting in
physical injuries.
Moral damages may be awarded in breaches of contracts

where the defendant acted fraudulently or in bad faith.
Bad faith does not simply connote bad judgment or negli-

gence, it imports a dishonest purpose or some moral obliq-
uity and conscious doing of a wrong, a breach of known
duty through some motive or interest or ill will that partakes
of the nature of fraud.
xxxxxxxxx

Rommel J. Casis
The person claiming moral damages must prove the exis-

tence of bad faith by clear and convincing evidence for the
law always presumes good faith. It is not enough that one
merely suffered sleepless nights, mental anguish, serious
anxiety as the result of the actuations of the other party.
Invariably such action must be shown to have been willfully
done in bad faith or will ill motive. Mere allegations of be-
smirched reputation, embarrassment and sleepless nights are
insufficient to warrant an award for moral damages. It must
be shown that the proximate cause thereof was the unlawful
act or omission of the [private respondent] petitioners.
An award of moral damages would require certain con-

ditions to be met, to wit: (1) first, there must be an injury,
whether physical, mental or psychological, clearly sustained
by the claimant; (2) second, there must be culpable act or
omission factually established; (3) third, the wrongful act or
omission of the defendant is the proximate cause of the in-
jury sustained by the claimant; and (4) fourth, the award of
damages is predicated on any of the cases stated in Article
2219 of the Civil Code.
In this case, the four elements cited in Francisco are present. First, pe-
titioner suffered an injury due to the mental duress of being bound to
such an onerous debt to Development Bank of the Philippines and Asset
Privatization Trust. Second, the wrongful acts of undue exclusion done
by respondent Ruperto V. Tankeh clearly fulfilled the same requirement.
Third, the proximate cause of his injury was the failure of respondent
Ruperto V. Tankeh to comply with his obligation to allow petitioner to
either participate in the business or to fulfill his fiduciary responsibilities
with candor and good faith. (citations omitted)
It is strange that the Court would use the rules on breach of contract for
what it previously ruled was a violation based on Article 1344 and Arti-
cles 19 and 21 of the Civil Code. However, it did say that:
Finally, Article 2219 of the Civil Code provides that moral damages may
be awarded in case of acts and actions referred to in Article 21, which,
as stated, had been found to be attributed to respondent Ruperto V.
Tankeh. (citation omitted)
California Clothing v. Quiones8
Shirley Quiones, an employee of Cebu Pacific Air in Lapu-Lapu City, went inside
the Guess USA Boutique where she bought black jeans worth P2,098.00. However, out-
side the store, a Guess employee approached and informed her that she failed to pay for
the item. Insisting that she paid for the item, she suggested that they talk about it at the
Cebu Pacific office. When she arrived at the Cebu Pacific office, the Guess employees
allegedly subjected her to humiliation in front of the clients of Cebu Pacific and repeat-
8 G.R. No. 175822. October 23, 2013.
146 The IBP Journal

edly demanded payment for the black jeans. They supposedly even searched her wallet
to check how much money she had. Thereafter, several letters were sent to Cebu Pacific
regarding the incident.
Quionesthus filed the Complaint for Damages against petitioners California Cloth-
ing, Inc., and its employees. The trial court dismissed the complaint but the appellate
court reversed it, ruling in favor of Quiones.
The Court ruled that:
Respondents complaint against petitioners stemmed from the principle

of abuse of rights provided for in the Civil Code on the chapter of hu-
man relations. Respondent cried foul when petitioners allegedly embar-
rassed her when they insisted that she did not pay for the black jeans she
purchased from their shop despite the evidence of payment which is the
official receipt issued by the shop. The issuance of the receipt notwith-
standing, petitioners had the right to verify from respondent whether she
indeed made payment if they had reason to believe that she did not.
However, the exercise of such right is not without limitations. Any abuse
in the exercise of such right and in the performance of duty causing
damage or injury to another is actionable under the Civil Code. The
Courts pronouncement in Carpio v. Valmonte is noteworthy:
In the sphere of our law on human relations, the victim of a wrongful

act or omission, whether done willfully or negligently, is not left without
any remedy or recourse to obtain relief for the damage or injury he sus-
tained. Incorporated into our civil law are not only principles of equity
but also universal moral precepts which are designed to indicate certain
norms that spring from the fountain of good conscience and which are
meant to serve as guides for human conduct. First of these fundamental
precepts is the principle commonly known as abuse of rights under
Article 19 of the Civil Code. It provides that Every person must, in
the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due and observe honesty and good faith. . . .
The elements of abuse of rights are as follows: (1) there is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudic-
ing or injuring another.
In this case, petitioners claimed that there was a miscommunication be-

tween the cashier and the invoicer leading to the erroneous issuance of
the receipt to respondent. When they realized the mistake, they made a
cash count and discovered that the amount which is equivalent to the
price of the black jeans was missing. They, thus, concluded that it was
respondent who failed to make such payment. It was, therefore, within
their right to verify from respondent whether she indeed paid or not and
collect from her if she did not. However, the question now is whether
such right was exercised in good faith or they went overboard giving
respondent a cause of action against them.

Rommel J. Casis
Under the abuse of rights principle found in Article 19 of the Civil Code,
a person must, in the exercise of legal right or duty, act in good faith.
He would be liable if he instead acted in bad faith, with intent to preju-
dice another. Good faith refers to the state of mind which is manifested
by the acts of the individual concerned. It consists of the intention to
abstain from taking an unconscionable and unscrupulous advantage of
another. Malice or bad faith, on the other hand, implies a conscious and
intentional design to do a wrongful act for a dishonest purpose or moral
obliquity.
Initially, there was nothing wrong with petitioners asking respondent

whether she paid or not. The Guess employees were able to talk to re-
spondent at the Cebu Pacific Office. The confrontation started well, but
it eventually turned sour when voices were raised by both parties. As apt-
ly held by both the RTC and the CA, such was the natural consequence
of two parties with conflicting views insisting on their respective beliefs.
Considering, however, that respondent was in possession of the item pur-
chased from the shop, together with the official receipt of payment issued
by petitioners, the latter cannot insist that no such payment was made on
the basis of a mere speculation. Their claim should have been proven by
substantial evidence in the proper forum.
It is evident from the circumstances of the case that petitioners went

overboard and tried to force respondent to pay the amount they were
demanding. In the guise of asking for assistance, petitioners even sent
a demand letter to respondents employer not only informing it of the
incident but obviously imputing bad acts on the part of respondent. Peti-
tioners claimed that after receiving the receipt of payment and the item
purchased, respondent was noted to hurriedly left (sic) the store. They
also accused respondent that she was not completely being honest when
she was asked about the circumstances of payment, thus:
. . . After receiving the OR and the item, Ms. Gutierrez was

noted to hurriedly left (sic) the store. . . .
When I asked her about to whom she gave the money, she
gave out a blank expression and told me, I cant remem-
ber. Then I asked her how much money she gave, she an-
swered, P2,100; 2 pcs 1,000 and 1 pc 100 bill. Then I told
her that that would (sic) impossible since we have no such
denomination in our cash fund at that moment. Finally, I
asked her if how much change and if she received change
from the cashier, she then answered, I dont remember.
After asking these simple questions, I am very cer-
tain that she is not completely being honest about
this. In fact, we invited [her] to come to our boutique to
clear these matters but she vehemently refused saying that
shes in a hurry and very busy.
Clearly, these statements are outrightly accusatory. Petitioners accused
148 The IBP Journal

respondent that not only did she fail to pay for the jeans she purchased
but that she deliberately took the same without paying for it and later
hurriedly left the shop to evade payment. These accusations were made
despite the issuance of the receipt of payment and the release of the
item purchased. There was, likewise, no showing that respondent had the
intention to evade payment. Contrary to petitioners claim, respondent
was not in a rush in leaving the shop or the mall. This is evidenced by the
fact that the Guess employees did not have a hard time looking for her
when they realized the supposed non-payment.
It can be inferred from the foregoing that in sending the demand letter to
respondents employer, petitioners intended not only to ask for assistance
in collecting the disputed amount but to tarnish respondents reputation
in the eyes of her employer. To malign respondent without substantial
evidence and despite the latters possession of enough evidence in her
favor, is clearly impermissible. A person should not use his right unjustly
or contrary to honesty and good faith, otherwise, he opens himself to
liability. The exercise of a right must be in accordance with the purpose
for which it was established and must not be excessive or unduly harsh.
In this case, petitioners obviously abused their rights.
Ardiente v. Sps. Pastorfide9
Joyce Ardiente and her husband Dr. Roberto were owners of a housing unit which
they sold to Ma. Theresa Pastorfide. The parties agreed that the water and power bills of
the property shall be for the account of Pastorfide effective June 1, 1994. For four years,
Pastorfides use of the water connection in the name of Ardiente was never questioned
nor perturbed until on March 12, 1999, when without notice, the water connection of
Pastorfide was cut off. The Cagayan de Oro Water District (COWD) eventually explained
to Pastorfide that it was at the insistence of Ardientethat the water line was cut off.
Thus, the spousesPastorfide filed a complaint for damages against Ardiente, COWD
and its manager Gaspar Gonzalez. The trial and appellate courts ruled in favor of the
spouses Pastorfide.
The Court affirmed the lower courts decision.It said:
It is true that it is within petitioners right to ask and even require the
Spouses Pastorfide to cause the transfer of the formers account with
COWD to the latters name pursuant to their Memorandum of Agree-
ment. However, the remedy to enforce such right is not to cause the dis-
connection of the respondent spouses water supply. The exercise of a
right must be in accordance with the purpose for which it was established
and must not be excessive or unduly harsh; there must be no intention to
harm another. Otherwise, liability for damages to the injured party will
attach. In the present case, intention to harm was evident on the part
of petitioner when she requested for the disconnection of respondent
spouses water supply without warning or informing the latter of such
request. Petitioner claims that her request for disconnection was based on
9 Ardiente v. Sps. Pastorfide, G.R. No. 161921, July 17, 2013.

Rommel J. Casis
the advise of COWD personnel and that her intention was just to com-
pel the Spouses Pastorfide to comply with their agreement that petition-
ers account with COWD be transferred in respondent spouses name.
If such was petitioners only intention, then she should have advised re-
spondent spouses before or immediately after submitting her request for
disconnection, telling them that her request was simply to force them to
comply with their obligation under their Memorandum of Agreement.
But she did not. What made matters worse is the fact that COWD un-
dertook the disconnection also without prior notice and even failed to
reconnect the Spouses Pastorfides water supply despite payment of their
arrears. There was clearly an abuse of right on the part of petitioner,
COWD and Gonzalez. They are guilty of bad faith.
The principle of abuse of rights as enshrined in Article 19 of the Civil

Code provides that every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
xxx xxx xxx
To recapitulate, petitioners acts which violated the abovementioned pro-

visions of law is her unjustifiable act of having the respondent spouses
water supply disconnected, coupled with her failure to warn or at least
notify respondent spouses of such intention. On the part of COWD and
Gonzalez, it is their failure to give prior notice of the impending discon-
nection and their subsequent neglect to reconnect respondent spouses
water supply despite the latters settlement of their delinquent account.
(citations omitted)
4. TORTIOUS INTERFERENCE
Inocencio v. Hospicio de San Jose10
Hospicio de San Jose (HDSJ) leased a parcel of land to German Inocencio (Ger-
man). The lease contract was effective for one year, and was renewed for one-year periods
several times. The contract provided that it was nontransferable unless prior consent of
the lessor was obtained in writing.In 1946, German constructed two buildings on the
parcel of land which he subleased and designated his son Ramon Inocencio (Ramon)
to administer. On 21 September 1990, German received a letter from HDSJ informing
him that increased rentals shall take effect in November 1990 instead of August 1990, to
give [him] ample time to make the necessary rental adjustments with [his] sublessees.
German passed away in 1997but Ramon did not notify HDSJ of Germans death. After
Germans passing, Ramon collected the rentals from the sublessees, and paid the rentals
to HDSJ, and the taxes on the property. On 1 March 2001, HDSJs property administra-
tor, Five Star Multi-Services, Inc., notified Ramon that HDSJ wasterminating the lease
contract effective 31 March 2001:
We acknowledge the fact that Hospicio de San Jose has been accepting
the payment of your rentals since the demise of Mr. [German] Inocen-
10 Inocencio v. Hospicio de San Jose, G.R. No. 201787, September 25, 2013.
150 The IBP Journal

cio. Hence, an implied contract of lease between the two of you exists.
However, since there is no stipulation as to the period of the contract and
you are paying a monthly rental to our client, the period for the lease is
on a month-to-month basis (Art. 1687). Thus as of this date, your con-
tract should expire on March 31, 2001.
Ramon then sent a letter to HDSJ suggesting that the lease contract be renegotiated
for the welfare of the sublessees but HDSJ notified Ramon that itrefused because Ra-
mon had subleased the subject premises to about 20 families without the knowledge and
consent of the lessor. Thereafter, HDSJ refused to accept Ramons tender of payment of
rentals.
On 3 March 2005, HDSJ sent a letter to Ramon: (1) reiterating its stand that the lease
contract was terminated effective 31 March 2001; (2) demanding payment of P756,449.26
as unrealized fruits; and (3) giving him 30 days to vacate the property. The sublessees were
given written notices to vacate within 30 days and were notified that HDSJ was willing to
work out an amicable arrangement with the sublessees. Because of this, some of the sub-
lessees refused to pay rentals to Ramon. Subsequently, HDSJ entered into lease contracts
witha few of them.
HDSJ filed a Complaint for unlawful detainer against Ramon and his sublessees.
When Ramon passed away, he was substituted by his wife Analita. The trial courts and
the appellate court ruled in favor of Analita.
The Court party granted the petition for review and remandedthe case to the Met-
ropolitan Trial Court of Pasay, for determination of the value of the improvements to be
paid to the Inocencios, if HDSJ desires to keep the improvements. Otherwise, the Inocen-
cios shall be allowed to demolish the buildings at their expense.
The Court rued that Ramon had a valid month-to-month lease contract and that he
had the right to sublease.
However the Court also held that HDSJ did not commit tortious interference. Article
1314 of the Civil Code states:
Art. 1314. Any third person who induces another to violate his contract
shall be liable for damages to the other contracting party.
The Court said:
As correctly pointed out by the Inocencios, tortious interference

has the following elements: (1) existence of a valid contract; (2)
knowledge on the part of the third person of the existence of the
contract; and (3) interference of the third person without legal
justification or excuse.
The facts of the instant case show that there were valid sublease
contracts which were known to HDSJ. However, we find that the
third element is lacking in this case.

Rommel J. Casis
In So Ping Bun v. Court of Appeals, we held that there was no tor-

tious interference if the intrusion was impelled by purely eco-
nomic motives. In So Ping Bun, we explained that:
Authorities debate on whether interference may be jus-

tified where the defendant acts for the sole purpose of
furthering his own financial or economic interest. One
view is that, as a general rule, justification for interfer-
ing with the business relations of another exists where
the actors motive is to benefit himself. Such justification
does not exist where his sole motive is to cause harm to
the other. Added to this, some authorities believe that it
is not necessary that the interferers interest outweighs
that of the party whose rights are invaded, and that
an individual acts under an economic interest that is
substantial, not merely de minimis, such that wrongful
and malicious motives are negatived, for he acts in self-
protection. Moreover, justification for protecting ones
financial position should not be made to depend on a
comparison of his economic interest in the subject mat-
ter with that of others. It is sufficient if the impetus of
his conduct lies in a proper business interest rather than
in wrongful motives.
The evidence shows that HDSJ entered into agreements with Ramons
former sublessees for purely economic reasons (payment of rentals).
HDSJ had a right to collect the rentals from the sublessees upon termi-
nation of the lease contract. It does not appear that HDSJ was motivated
by spite or ill will towards the Inocencios.
5. ILLEGAL ACTS
Comsavings Bank v. Sps. Capistrano11
Spouses Danila and Estrella Capistrano were the owners of a residential lot. They
availed of the Unified Home Lending Program (UHLP) implemented by the National
Home Mortgage Finance Corporation (NHMFC). They executed a construction contract
with Carmencita Cruz-Bay, the proprietor of GCB Builders, for the total contract price
of P265,000 with the latter undertaking to complete the construction within 75 days.
To finance the construction, the spouses Capistrano applied for a loan with Comsavings
Bank. Subsequently, they executed in favor of GCB Builders a deed of assignment of the
amount of the P300,000 proceeds of the loan from Comsavings Bank. Comsavings Bank
informed Estrella Capistrano that she needed to sign various documents as part of the
requirements for the release of the loan including a certificate of house completion and
acceptance. After Comsavings Bank had released the total of P265,000 to GCB Builders
as construction cost, spouses Capistrano inquired from GCB Builders when their house
would be completed considering that their contract stipulated a completion period of 75
days. Cruz-Bay gave various excuses for the delay, such as the rainy season, but promised
to finish the construction as soon as possible. However, the year ended with the con-
11 G.R. No. 170942, August 28, 2013.
152 The IBP Journal

struction of the house unfinished. In February of the succeeding year, the spouses Cap-
istrano demanded the completion of the house. When Cruz-Bay told them to give the
further amount of P25,000 to finish the construction, they requested a breakdown of the
amounts already spent in the construction considering that the P303,450 that Comsav-
ings Bank had been paid by NHMFC on their loan had been more than the contract price
of the contract. Instead of furnishing them with the requested breakdown, GCB Builders
counsel sent a demand letter for an additional construction cost of P52,511.59. Later, the
spouses Capistrano received a letter from NHMFC advising that they should already start
paying their monthly amortizations of P4,278.00 because their loan had been released on
April 20, 1993 directly to Comsavings Bank. They protested the demand for amortiza-
tion payments, considering that they had not signed any certification of completion and
acceptance, and that even if there was such a certification of completion and acceptance,
it would have been forged.
Spouses Capistrano sued GCB Builders, Comsavings Bank and later NHMFC for
breach of contract and damages. The trial and appellate courts ruled in favor of spouses
Capistrano. The Court affirmed the lower courts. It explained:
The CA rightfully declared Comsavings Bank solidarily liable with GCB

Builders for the damages sustained by respondents. However, we point
out that such liability did not arise from Comsavings Banks breach of
warranties under its purchase of loan agreement with NHMFC. Under
the purchase of loan agreement, it undertook, for value received, to sell,
transfer and deliver to NHMFC the loan agreements, promissory notes
and other supporting documents that it had entered into and executed
with respondents, and warranted the genuineness of the loan documents
and the construction of the residential units. Having made the warran-
ties in favor of NHMFC, it would be liable in case of breach of the war-
ranties to NHMFC, not respondents, eliminating breach of such warran-
ties as a source of its liability towards respondents.
Instead, the liability of Comsavings Bank towards respondents was based on Article
20 and Article 1170 of the Civil Code, viz.:
Article 20. Every person who, contrary to law, willfully or negligently

causes damage to another, shall indemnify the latter for the same.
Article 1170. Those who in the performance of their obligations are

guilty of fraud, negligence, or delay, and those who in any manner con-
travene the tenor thereof, are liable for damages.
Based on the provisions, a banking institution like Comsavings Bank is obliged to

exercise the highest degree of diligence as well as high standards of integrity and perfor-
mance in all its transactions because its business is imbued with public interest. As aptly
declared in Philippine National Bank v. Pike: The stability of banks largely depends on the
confidence of the people in the honesty and efficiency of banks.
Gross negligence connotes want of care in the performance of ones duties; it is a

negligence characterized by the want of even slight care, acting or omitting to act in a
situation where there is duty to act, not inadvertently but willfully and intentionally, with a

Rommel J. Casis
conscious indifference to consequences insofar as other persons may be affected. It evinc-

es a thoughtless disregard of consequences without exerting any effort to avoid them.
There is no question that Comsavings Bank was grossly negligent in its dealings with
respondents because it did not comply with its legal obligation to exercise the required
diligence and integrity. As a banking institution serving as an originator under the UHLP
and being the maker of the certificate of acceptance/completion, it was fully aware that
the purpose of the signed certificate was to affirm that the house had been completely
constructed according to the approved plans and specifications, and that respondents had
thereby accepted the delivery of the complete house. Given the purpose of the certificate,
it should have desisted from presenting the certificate to respondents for their signature
without such conditions having been fulfilled. Yet, it made respondents sign the certificate
(through Estrella Capistrano, both in her personal capacity and as the attorney-in-fact
of her husband Danilo Capistrano) despite the construction of the house not yet even
starting. Its act was irregular per se because it contravened the purpose of the certificate.
Curiously, while the Court cited Article 20 as the basis of the liability of Comsavings
Bank, it did not identify the law which the latter violated.It must be remembered that
Article 20 provides for an award of damages in cases where the injury is caused by an
act contrary to law.The only other law identified by the Court was Article 1170 of the
Civil Code.Apart from the fact that is it doubtful that the law referred to by Article 20
of the Civil Code includes the Civil Code itself, if indeed Article 1170 was the basis of the
liability, there is no need for Article 20 because Article 1170 itself provides for an award
for damages. There is no need to tack it on to Article 20 in the same way that Article 19
needs Article 21.
6. ARTICLE 26
Sps. Hing v. Choachuy Sr.12
Spouses Bill and Victoria Hing were the registered owners of a parcel of land situated
in Barangay Basak, City of Mandaue, Cebu while Alexander Choachuy, Sr. and Allan
Choachuy were the owners of Aldo Development & Resources, Inc. (Aldo) located on lots
adjacent to the property of the spouses Hing. The Choachuys constructed an auto-repair
shop building (Aldo Goodyear Servitec) and subsequently Aldo filed a case against the
spouses Hing wherein they claimed that the spouses Hing were constructing a fence with-
out a valid permit and that the said construction would destroy the wall of its building,
which is adjacent to petitioners property. The court, in that case, denied Aldos applica-
tion for preliminary injunction for failure to substantiate its allegations. To get evidence
to support the said case, the Choachuys installed two video surveillance cameras on the
building of Aldo Goodyear Servitec facing the property of the spouses Hing.
The spouses Hing filed a Complaint for Injunction and Damages with prayer for is-
suance of a Writ of Preliminary Mandatory Injunction/Temporary Restraining Order
against the Choachuys. The trial court granted the TRO and ordered the Chuachuys to
remove the surveillance cameras but the appellate court granted the petition for certiora-
ri, explaining that the right to privacy of residence under Article 26 (1) of the Civil Code
was not violated since the property subject of the controversy was not used as a residence.
12 Sps. Hing v. Choachuy, Sr. G.R. No. 179736, June 26, 2013.
154 The IBP Journal

The Court reversed the appellate court. It explained:
Article 26 (1) of the Civil Code, on the other hand, protects an individu-
als right to privacy and provides a legal remedy against abuses that may
be committed against him by other individuals. It states:
Art. 26. Every person shall respect the dignity, personality, pri-
vacy and peace of mind of his neighbors and other persons.
The following and similar acts, though they may not constitute
a criminal offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of anothers residence;

xxxxxxxxx
This provision recognizes that a mans house is his castle, where his right
to privacy cannot be denied or even restricted by others. It includes any
act of intrusion into, peeping or peering inquisitively into the residence
of another without the consent of the latter. The phrase prying into
the privacy of anothers residence, however, does not mean that only
the residence is entitled to privacy. As elucidated by Civil law expert Ar-
turo M. Tolentino:
Our Code specifically mentions prying into the privacy of an-

others residence. This does not mean, however, that only the
residence is entitled to privacy, because the law covers also simi-
lar acts. A business office is entitled to the same pri-
vacy when the public is excluded therefrom and only
such individuals as are allowed to enter may come in.
...
Thus, an individuals right to privacy under Article 26 (1) of the Civil

Code should not be confined to his house or residence as it may extend to
places where he has the right to exclude the public or deny them access.
The phrase prying into the privacy of anothers residence, therefore,
covers places, locations, or even situations which an individual consid-
ers as private. And as long as his right is recognized by society, other
individuals may not infringe on his right to privacy. The CA, therefore,
erred in limiting the application of Article 26 (1) of the Civil Code only
to residences.
7. FRAUD
Consing, Jr. v. People13
Rafael Consing Jr. negotiated with and obtained for himself and his mother, Ce-
cilia de la Cruz, various loans totaling P18,000,000 from Unicapital, Inc. (Unicapital)
secured by a real estate mortgage constituted on a parcel of land under the name of
Cecilia. Pursuant to its option to purchase the mortgaged property, Unicapital agreed
13 Consing, Jr. v. People, G.R. No. 161075, July 15, 2013.

Rommel J. Casis
to purchase one-half of the property and paymentwas made by off-setting the amounts
due to Unicapital under the promissory notes of de la Cruz and Consing. The other
half of the property was purchased by Plus Builders, Inc. (Plus Builders), a joint venture
partner of Unicapital. But before Unicapital and Plus Builders could develop the prop-
erty, they learned that the title to the property was actually in the names of Po Willie Yu
and Juanito Tan Teng. It seemed that the certificate of title held by Ceciliawas spurious.
Thus, Unicapital demanded the return of the total amount paid to and received by Ce-
cilia and Consing, but the latter ignored the demands. Consing filed a suit for injunctive
relief, thereby seeking to enjoin Unicapital from proceeding against him on the ground
that he had acted as a mere agent of his mother. On the same date, Unicapital initiated
a criminal complaint for estafa through falsification of public document against Consing
and Cecilia in the Makati City Prosecutors Office. Later, Unicapital sued Consing for the
recovery of a sum of money and damages, with an application for a writ of preliminary
attachment (Makati civil case). Subsequently, the Office of the City Prosecutor of Makati
City filed against Consing and De la Cruz an information for estafa through falsification
of public document. Consing moved to defer his arraignment in the criminal case on the
ground of the existence of a prejudicial question due to the pendency of the civil cases.
The trial court issued an order suspending the proceedings in the criminal case on the
ground of the existence of a prejudicial question. The appellate court upheld the trial
court but later reversed itself on motion for reconsideration.
The Court affirmed the appellate court.
A perusal of Unicapitals complaint in the Makati civil case reveals that the action
was predicated on fraud. This was apparent from the allegations of Unicapital in its com-
plaint to the effect that Consing and de la Cruz had acted in a wanton, fraudulent, op-
pressive, or malevolent manner in offering as security and later object of sale, a property
which they do not own, and foisting to the public a spurious title. As such, the action was
one that could proceed independently of Criminal Case No. 00-120 pursuant to Article
33 of the Civil Code, which states as follows:
Article 33. In cases of defamation, fraud, and physical injuries a civil

action for damages, entirely separate and distinct from the criminal ac-
tion, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a pre-
ponderance of evidence.
It is well settled that a civil action based on defamation, fraud and physical injuries
may be independently instituted pursuant to Article 33 of the Civil Code, and does not
operate as a prejudicial question that will justify the suspension of a criminal case. This
was precisely the Courts thrust in G.R. No. 148193, thus:
Moreover, neither is there a prejudicial question if the civil and the crimi-
nal action can, according to law, proceed independently of each other.
Under Rule 111, Section 3 of the Revised Rules on Criminal Procedure,
in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code,
the independent civil action may be brought by the offended party. It
shall proceed independently of the criminal action and shall require only
a preponderance of evidence. In no case, however, may the offended
party recover damages twice for the same act or omission charged in the
156 The IBP Journal

criminal action.
xxxxxxxxx
In the instant case, Civil Case No. 99-95381, for Damages and Attach-
ment on account of the alleged fraud committed by respondent and his
mother in selling the disputed lot to PBI is an independent civil action
under Article 33 of the Civil Code. As such, it will not operate as a preju-
dicial question that will justify the suspension of the criminal case at bar.
Contrary to Consings stance, it was not improper for the CA to apply the ruling in
G.R. No. 148193 to his case with Unicapital, for, although the Manila and Makati civil
cases involved different complainants (i.e., Plus Builders and Unicapital), the civil actions
Plus Builders and Unicapital had separately instituted against him were undeniably of
similar mold, i.e., they were both based on fraud, and were thus covered by Article 33
of the Civil Code. Clearly, the Makati criminal case could not be suspended pending the
resolution of the Makati civil case that Unicapital had filed.
8. LAST CLEAR CHANCE AND CONTRIBUTORY NEGLIGENCE
Allied Banking v. BPI14
A check in the amount of P1,000,000 payable to Mateo Mgt. Group International

(MMGI) was presented for deposit and accepted at Allied Banking Corporations Kawit
Branch. The check was post-dated Oct. 9, 2003, and drawn against the account of
Marciano Silva, Jr. (Silva) with the Bank of the Philippine Islands (BPI) Bel-Air Branch.
Upon receipt, Allied sent the check for clearing to BPI through the Philippine Clearing
House Corporation (PCHC).The check was cleared by BPI and Allied credited the ac-
count of MMGI with P1,000,000. Subsequently, MMGIs account was closed and all the
funds therein were withdrawn. A month later, Silva discovered the debit of P1,000,000
from his account. In response to Silvas complaint, BPI credited his account with the
aforesaid sum. BPI returned a photocopy of the check to Allied for the reason: Post-
dated. Petitioner, however, refused to accept and sent back to BPI a photocopy of the
check. Thereafter, the check, or more accurately, the Charge Slip, was tossed several times
from Allied to BPI, and back to Allied, until BPI requested the PCHC to take custody
of the check. Acting on the request, PCHC directed BPI to deliver the original check
and informed it of PCHCs authority under Clearing House Operating Memo (CHOM)
No. 279 dated 06 September 1996 to split 50/50 the amount of the check subject of a
Ping-Pong controversy. Allied filed a complaint before the Arbitration Committee, as-
serting that BPI should solely bear the entire face value of the check due to its negligence
in failing to return the check to petitioner within the 24-hour reglementary period as
provided in Section 20.1 of the Clearing House Rules and Regulations (CHRR) 2000.
The Arbitration Committee rendered its decision in favor of Allied and against BPI. The
Committee reasoned inter alia that because both parties were negligent in the performance
of their duties, the Committee applied the doctrine of Last Clear Chance and ruled
that the loss should be shouldered by BPI alone. The trial court upheld the decision but
the appellate court reversed it.
14 Allied Banking v. BPI, G.R. No. 188363, February 27, 2013.

Rommel J. Casis
The Court affirmed the decision of the appellate court. It explained:
The doctrine of last clear chance, stated broadly, is that the negligence
of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable
care and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff s negligence. The doctrine neces-
sarily assumes negligence on the part of the defendant and contributory
negligence on the part of the plaintiff, and does not apply except upon
that assumption. Stated differently, the antecedent negligence of the
plaintiff does not preclude him from recovering damages caused by the
supervening negligence of the defendant, who had the last fair chance to
prevent the impending harm by the exercise of due diligence. Moreover,
in situations where the doctrine has been applied, it was defendants fail-
ure to exercise such ordinary care, having the last clear chance to avoid
loss or injury, which was the proximate cause of the occurrence of such
loss or injury.
In this case, the evidence clearly shows that the proximate cause of the
unwarranted encashment of the subject check was the negligence of
respondent who cleared a post-dated check sent to it thru the PCHC
clearing facility without observing its own verification procedure. As cor-
rectly found by the PCHC and upheld by the RTC, if only respondent
exercised ordinary care in the clearing process, it could have easily no-
ticed the glaring defect upon seeing the date written on the face of the
check Oct. 9, 2003. Respondent could have then promptly returned
the check and with the check thus dishonored, petitioner would have not
credited the amount thereof to the payees account. Thus, notwithstand-
ing the antecedent negligence of the petitioner in accepting the post-
dated check for deposit, it can seek reimbursement from respondent the
amount credited to the payees account covering the check.
What petitioner omitted to mention is that in the cited case of Philippine

Bank of Commerce v. Court of Appeals, while the Court found petitioner bank
as the culpable party under the doctrine of last clear chance since it had,
thru its teller, the last opportunity to avert the injury incurred by its client
simply by faithfully observing its own validation procedure, it neverthe-
less ruled that the plaintiff depositor (private respondent) must share in
the loss on account of its contributory negligence. Thus:
The foregoing notwithstanding, it cannot be denied that, in-

deed, private respondent was likewise negligent in not checking
its monthly statements of account. Had it done so, the company
would have been alerted to the series of frauds being committed
against RMC by its secretary. The damage would definitely not
have ballooned to such an amount if only RMC, particularly
Romeo Lipana, had exercised even a little vigilance in their fi-
nancial affairs. This omission by RMC amounts to con-
tributory negligence which shall mitigate the damages
that may be awarded to the private respondent under
158 The IBP Journal

Article 2179 of the New Civil Code, to wit:
. . . . When the plaintiff s own negligence was the im-

mediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contrib-
utory, the immediate and proximate cause of the injury
being the defendants lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the dam-
ages to be awarded.
In view of this, we believe that the demands of substantial justice

are satisfied by allocating the damage on a 60-40 ratio.
Thus, 40% of the damage awarded by the respondent appellate
court, except the award of P25,000.00 attorneys fees, shall be
borne by private respondent RMC; only the balance of 60%
needs to be paid by the petitioners. The award of attorneys fees
shall be borne exclusively by the petitioners.
In another earlier case, the Court refused to hold petitioner

bank solely liable for the loss notwithstanding the finding that
the proximate cause of the loss was due to its negligence. Since
the employees of private respondent bank were likewise found
negligent, its claim for damages is subject to mitigation by the
courts. Thus:
Both banks were negligent in the selection and supervi-

sion of their employees resulting in the encashment of
the forged checks by an impostor. Both banks were not
able to overcome the presumption of negligence in the
selection and supervision of their employees. It was the
gross negligence of the employees of both banks which
resulted in the fraud and the subsequent loss. While
it is true that petitioner BPIs negligence may
have been the proximate cause of the loss, re-
spondent CBCs negligence contributed equally
to the success of the impostor in encashing the
proceeds of the forged checks. Under these cir-
cumstances, we apply Article 2179 of the Civil Code
to the effect that while respondent CBC may recover its
losses, such losses are subject to mitigation by the courts.
..
Considering the comparative negligence of the two (2)

banks, we rule that the demands of substantial justice
are satisfied by allocating the loss of P2,413,215.16 and
the costs of the arbitration proceedings in the amount
of P7,250.00 and the costs of litigation on a 60-40 ratio.
Conformably with this ruling, no interests and attorneys
fees can be awarded to either of the parties.

Rommel J. Casis
Apportionment of damages between parties who are both negligent was followed in
subsequent cases involving banking transactions notwithstanding the courts finding that
one of them had the last clear opportunity to avoid the occurrence of the loss.
In Bank of America NT & SA v. Philippine Racing Club, the Court ruled:
In the case at bar, petitioner cannot evade responsibility for the loss by
attributing negligence on the part of respondent because, even if we
concur that the latter was indeed negligent in pre-signing blank checks,
the former had the last clear chance to avoid the loss. To reiterate, peti-
tioners own operations manager admitted that they could have called up
the client for verification or confirmation before honoring the dubious
checks. Verily, petitioner had the final opportunity to avert the injury that
befell the respondent. . . . Petitioners negligence has been undoubtedly
established and, thus, pursuant to Art. 1170 of the NCC, it must suffer
the consequence of said negligence.
In the interest of fairness, however, we believe it is proper to

consider respondents own negligence to mitigate petitioners
liability. Article 2179 of the Civil Code provides:
xxxxxxxxx
Explaining this provision in Lambert v. Heirs of Ray Castillon, the Court

held:
The underlying precept on contributory negligence is that

a plaintiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear the
consequences of his own negligence. The defendant must
thus be held liable only for the damages actually caused by
his negligence. . . .
xxxxxxxxx
Following established jurisprudential precedents, we believe the alloca-

tion of sixty percent (60%) of the actual damages involved in this case
(represented by the amount of the checks with legal interest) to petitioner
is proper under the premises. Respondent should, in light of its
contributory negligence, bear forty percent (40%) of its own
loss.
In Philippine National Bank v. F.F. Cruz and Co., Inc., the Court made a similar disposition,
thus:
Given the foregoing, we find no reversible error in the findings of the ap-
pellate court that PNB was negligent in the handling of FFCCIs combo
account, specifically, with respect to PNBs failure to detect the forgeries in
the subject applications for managers check which could have prevented
the loss. . . . PNB failed to meet the high standard of diligence required
160 The IBP Journal

by the circumstances to prevent the fraud. In Philippine Bank of Com-

merce v. Court of Appeals and The Consolidated Bank & Trust Corpo-
ration v. Court of Appeals, where the banks negligence is the proximate
cause of the loss and the depositor is guilty of contributory negligence,
we allocated the damages between the bank and the depositor on a 60-40
ratio. We apply the same ruling in this case considering that, as shown
above, PNBs negligence is the proximate cause of the loss while the issue
as to FFCCIs contributory negligence has been settled with finality in
G.R. No. 173278. Thus, the appellate court properly adjudged PNB to
bear the greater part of the loss consistent with these rulings.
Contributory negligence is conduct on the part of the injured party, contributing as

a legal cause to the harm he has suffered, which falls below the standard to which he is
required to conform for his own protection. Admittedly, petitioners acceptance of the
subject check for deposit despite the one year postdate written on its face was a clear viola-
tion of established banking regulations and practices. In such instances, payment should
be refused by the drawee bank and returned through the PCHC within the 24-hour
reglementary period. As aptly observed by the CA, petitioners failure to comply with this
basic policy regarding post-dated checks was a telling sign of its lack of due diligence in
handling checks coursed through it.
It bears stressing that the diligence required of banks is more than that of a Ro-
man pater familias or a good father of a family. The highest degree of diligence is
expected,considering the nature of the banking business that is imbued with public in-
terest. While it is true that respondents liability for its negligent clearing of the check is
greater, petitioner cannot take lightly its own violation of the long-standing rule against
encashment of post-dated checks and the injurious consequences of allowing such checks
into the clearing system.
Petitioner repeatedly harps on respondents transgression of clearing house rules

when the latter resorted to direct presentment way beyond the reglementary period but
glosses over its own negligent act that clearly fell short of the conduct expected of it as a
collecting bank. Petitioner must bear the consequences of its omission to exercise extraor-
dinary diligence in scrutinizing checks presented by its depositors.
Assessing the facts and in the light of the cited precedents, the Court thus finds no
error committed by the CA in allocating the resulting loss from the wrongful encashment
of the subject check on a 60-40 ratio.
This case is interesting because it applies both the doctrine of last clear chance and
the doctrine of contributory negligence. More specifically, it applied the doctrine of last
clear chance to determine which among two negligent parties should bear the liability for
the loss while it used the doctrine of contributory negligence to determine the amount of
damages that the liable party must pay.
In a previous case,15 the Court has explained thatwhile [t]he last clear chance doc-
trine of the common law was imported into our jurisdiction by Picart vs. Smith it is a
matter for debate whether, or to what extent, it has found its way into the Civil Code of
the Philippines. It added:
15 Phoenix v. IAC, G.R. No. L-65295, 10 March 1987.

Rommel J. Casis
The historical function of that doctrine in the common law was to miti-
gate the harshness of another common law doctrine or rule that of
contributory negligence. The common law rule of contributory negli-
gence prevented any recovery at all by a plaintiff who was also negligent,
even if the plaintiff s negligence was relatively minor as compared with
the wrongful act or omission of the defendant. The common law notion
of last clear chance permitted courts to grant recovery to a plaintiff who
had also been negligent provided that the defendant had the last clear
chance to avoid the casualty and failed to do so. Accordingly, it is difficult
to see what role, if any, the common law last clear chance doctrine has
to play in a jurisdiction where the common law concept of contributory
negligence as an absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code of the Philip-
pines. (citations omitted)
Thus, the reason for the adoption of the doctrine of last clear chance in
common law does not exist in this civil law jurisdiction.
It has been argued, however, that the doctrine may be used in this juris-
diction as a test to determine the proximate cause when both parties are
negligent.16 In fact it may be argued that this was the purpose for the rule
in Picart v. Smith.17
16 Casis, supra note [ ] at 335.

17 G.R. No. L-12219. March 15, 1918
162 The IBP Journal

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The IBP Journal

INTEGRATED BAR OF THE PHILIPPINES

Vincent Pepito F. Yambao, Jr.

Vivian C. Capiznon Eumir C. Lambino

VOLUME 38, NUMBER 3 & 4 (JULY - DECEMBER 2013)

Volume 38, Numbers 3 & 4

Revisiting Legal and Judicial Ethics: Challenges and Perspectives ............................. 1

The Misclassification of the Crime of Rape ..................................................................... 11

Government Liability Arising from Cancellation

Land Ownership and Registration of Title .................................................................... 80

Perspective on the Norm-Creating Process in the Relations of States ..................... 91

Standards of Conduct on Mediator Impartiality:

Arrest: Scope, Subtleties and Remedies ........................................................................ 118

Analytical Survey of 2013 Decisions on Torts and Quasi-Delicts .......................... 140

Subscription Rates (inclusive of postage):

Law, Ethics and Justice: Linkages

Volume 38, Number 3 & 4 - (July - December 2013 ) 1

The Ethos of the Legal Profession

2 Salvacion v. Central Bank, G.R. 94723 (August 21, 1997)

2 The IBP Journal

The Imperatives of Principled Legal Advocacy

Canon 1 of the Code of Professional Conduct announces the principal obligation

I am advancing a rather straightforward proposition: It is the

The fundamental obligation of the lawyer as a participant in the

No master but the law,

4 Estatuto General de la Abogacia Espanoloa, Titulo III, Capitulo Primero, Articulo 30

The Ethics of Prosecutorial Discretion

5 G.R. 195198 (February 11, 2013)

4 The IBP Journal

To answer that in the affirmative, is to me, to tolerate an injustice if not oppression.

To be sure, my proposition is not new at all.

a. The prosecutor, based on a complete investigation and a

Why indeed should a prosecutor be allowed to gamble with the

Volume 38, Number 3 & 4 - (July - December 2013 ) 5

Judging For Justice

6 The IBP Journal

A famous American philosopher-jurist, Appellate Judge Richard Posner puts it well:

Volume 38, Number 3 & 4 - (July - December 2013 ) 7

The Ethos of the Judge

Shift to Inquisitorial System of Trial

10 206 SCRA 382 (1997)

8 The IBP Journal

CONCLUSION: THE CULTIVATION OF LEGAL ACADEMIA

Volume 38, Number 3 & 4 - (July - December 2013 ) 9

10 The IBP Journal

On 30 September 1997, the Philippine Congress, influenced by the feminist move-

Volume 38, Number 3 & 4 - (July - December 2013 ) 11

her parents, grandparents, or guardian.2

II. THE PERSPECTIVES OF LIBERAL AND RADICAL FEMINISM

12 The IBP Journal

However liberal and radical feminists differ in their conceptual understanding of

Volume 38, Number 3 & 4 - (July - December 2013 ) 13

III. THE LEGAL RATIONALE BEHIND THE CLASSIFICATION

This observation is supported by Philippine jurisprudence. Even after the reclassifica-

14 The IBP Journal

A more graphic case depicts it as follows:

This reclassification is rendered more ludicrous by the following example. A torturer

Volume 38, Number 3 & 4 - (July - December 2013 ) 15

Indeed, when I attended a criminal law conference in the Universidad de Deusto in

IV. RAPE FROM THE PERSPECTIVE OF WOMEN

16 The IBP Journal

Philippine jurisprudence, no doubt influenced by American jurisprudence, agrees

Volume 38, Number 3 & 4 - (July - December 2013 ) 17